# [1955] 1 S.C.R. 1104

- **Citation:** [1955] 1 S.C.R. 1104
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Bench:** Mehr Chand Mahajan C. J, MuKHERJEA, S. R. DAs, V1v1AN BosE, Bhagwati, Jagannadhadas, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-1104-314
- **Pages:** 32

## Headnote

Constitution of India, Art. 226-Powers of High Court thereunder-Writ of certiorari against Election
Tribunals after they become functus offici~ertiorari against Record-Distinction between
writ of prohibition and writ of certiorari-Art. 227 of the Constitution-Superintendence of
High. Court over
Election Tribunals--
Superintendence-Judicial as
well
as
administrative-CectiorariScope and character of-Representation of the People (Conduct of
Elections and Election
Petitions)
Rules, 1951-Rule 47(1) (c)-
W hether mandatory or directory-Error manifest on the face of
record-Interference by certiorari.
Article 226 of the Constitution confers on High Courts powerto issue appropriate writs to any person or authority
within their
territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the
High Courts would fall \Vithin the sweep of that power.
The power
of the High Court under Art. 226 to issue writ of certiorari against
decisions of Election Tribunals remains unaffected by Art. 329(b) of
the Constitution.
The High Courts have power under Art. 226 of the Constitution, to issue writs of certiorari for quashing the decisions of Election
Tribunals, notwithstanding that they become functus officio after pronouncing the decisions.
The writ of certiofari for quashing the offending order or proceeding is directed against a record, and as a record can be brought
up only through human agency, it is ordinarily issued to the person
or authority \vhose decision is to be reviewed. If it is the record of
the decision that has to be removed by certiorafi, then the fact that
the tribunal has become functus officio subsequent to the decision
could have no effect on the jurisdiction of Court to remove the record.
i\.s the true scope of the writ of certiorari to quash is
that it
merely demolishes the offending order, the presence of the offender
before the court, though proper, is not necessary for the exercise of
the jurisdiction or to render its determination effective. The writ of
certiorari being in reality directed against the record, there is no
reason why it should not be issued to whosoever has the custody
thereof.
The writ of certiorari is directed to the body or officer whose
.ji..__
determination is to be reviewed, .or to any other person having th~
custody of the record or other papers to be certified.
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S.C.R ..
SUPREME COURT REPORTS
1105
The scope of Art. 226 of the Constitution is firstly that it confers on the High Courts power to issue writs · and directions and
secondly it defines the limits of that power. This latter it does by
enacting that it could be ex~rcised over any
person or authority
within the territories jn relation to which it exercises its jurisdiction.
The emphasis is on the
words "within the territory",
and
their significance is that the jurisdiction to issue writs is co-extensive
with the territorial jurisdiction of the court.
The reference is not
to the nature and composition of the court or tribunal but to the
area within which the power could be exercised.
There is one fundamental distinction between a writ of prohibition and a writ of certiorari. A writ of prohibition will lie when the
proceedings are to any extent pending and a writ of certiorari for
quashing will lie after the proceedings have terminated in a final
decision.
If a writ of prohibition could be issued only if there are
proceedings pending in a court, it must follow that it is incapable of
being granted when the court ha.s ceased
to exist, because there
could be then no proceeding on which it could operate. But it is
otherwise with a writ of certiorari to quash, because it is directed
against a decision which has been rendered by a Court or tribunal,
and the continued existence of that court or tribunal is not a condition of its decision being annulled.
Election Tribunals are subject to the superintendence of
the
High Courts under Art. 227 of the Constitution and th

## Text

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1954
December 9
1104
SUPREME COURT REPORTS
[19551
HARI VISHNU KAMA TH
ti,
SYED AHMAD ISHAQUE AND OTHERS.
[MEHR CHAND MAHAJAN C. J., MuKHERJEA,
S. R. DAs, V1v1AN BosE, BHAGWATI, JAGANNADHADAS
AND VENKATARAMA AYYAR JJ.]
Constitution of India, Art. 226-Powers of High Court thereunder-Writ of certiorari against Election
Tribunals after they become functus offici~ertiorari against Record-Distinction between
writ of prohibition and writ of certiorari-Art. 227 of the Constitution-Superintendence of
High. Court over
Election Tribunals--
Superintendence-Judicial as
well
as
administrative-CectiorariScope and character of-Representation of the People (Conduct of
Elections and Election
Petitions)
Rules, 1951-Rule 47(1) (c)-
W hether mandatory or directory-Error manifest on the face of
record-Interference by certiorari.
Article 226 of the Constitution confers on High Courts powerto issue appropriate writs to any person or authority
within their
territorial jurisdiction, in terms absolute and unqualified, and Election Tribunals functioning within the territorial jurisdiction of the
High Courts would fall \Vithin the sweep of that power.
The power
of the High Court under Art. 226 to issue writ of certiorari against
decisions of Election Tribunals remains unaffected by Art. 329(b) of
the Constitution.
The High Courts have power under Art. 226 of the Constitution, to issue writs of certiorari for quashing the decisions of Election
Tribunals, notwithstanding that they become functus officio after pronouncing the decisions.
The writ of certiofari for quashing the offending order or proceeding is directed against a record, and as a record can be brought
up only through human agency, it is ordinarily issued to the person
or authority \vhose decision is to be reviewed. If it is the record of
the decision that has to be removed by certiorafi, then the fact that
the tribunal has become functus officio subsequent to the decision
could have no effect on the jurisdiction of Court to remove the record.
i\.s the true scope of the writ of certiorari to quash is
that it
merely demolishes the offending order, the presence of the offender
before the court, though proper, is not necessary for the exercise of
the jurisdiction or to render its determination effective. The writ of
certiorari being in reality directed against the record, there is no
reason why it should not be issued to whosoever has the custody
thereof.
The writ of certiorari is directed to the body or officer whose
.ji..__
determination is to be reviewed, .or to any other person having th~
custody of the record or other papers to be certified.
-
..
y
' "
-
S.C.R ..
SUPREME COURT REPORTS
1105
The scope of Art. 226 of the Constitution is firstly that it confers on the High Courts power to issue writs · and directions and
secondly it defines the limits of that power. This latter it does by
enacting that it could be ex~rcised over any
person or authority
within the territories jn relation to which it exercises its jurisdiction.
The emphasis is on the
words "within the territory",
and
their significance is that the jurisdiction to issue writs is co-extensive
with the territorial jurisdiction of the court.
The reference is not
to the nature and composition of the court or tribunal but to the
area within which the power could be exercised.
There is one fundamental distinction between a writ of prohibition and a writ of certiorari. A writ of prohibition will lie when the
proceedings are to any extent pending and a writ of certiorari for
quashing will lie after the proceedings have terminated in a final
decision.
If a writ of prohibition could be issued only if there are
proceedings pending in a court, it must follow that it is incapable of
being granted when the court ha.s ceased
to exist, because there
could be then no proceeding on which it could operate. But it is
otherwise with a writ of certiorari to quash, because it is directed
against a decision which has been rendered by a Court or tribunal,
and the continued existence of that court or tribunal is not a condition of its decision being annulled.
Election Tribunals are subject to the superintendence of
the
High Courts under Art. 227 of the Constitution and that superintendence is both judicial and administrative.
While in a certiorari
under Art. 226 the High Court can .only annul the decision of the
Tribunals, it can, under Art. 227 do
that, and also
issue further
directions in the matter.
As respects the character and scope of the writs of certiorari the
following propositions may be taken as well established:
(1) Certiorari will be issued for correcting errors of jurisdiction,
as when an inferior Court or Tribunal acts without jurisdiction or
in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the Court or Tribunal
acts illegally· in the exercise of its undoubted jurisdiction, as when it
decides without giving an opportunity to the parties to be heard, or
violates the principles of natural justice.
( 3) The court issuing a writ of certiomri acts in exercise of a
supervisory and not appellate jurisdiction. One consequence of this
is that the court will not review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous.
( 4) An error in the decision or determination itself may also be
amenable to a writ of "certiorari" if it is a manifest error apparent
on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a
patent error which can be corrected by "certiorari" but not a mere
wrong decision. · What is an error apparent on the face of the record
cannot be defined precisely or ·exhaustively, there being an element
Hari Vishnu
Karnath
v.
Syed Ahmad
lshaque and Othm
Hari Vishnu
Karnath
v.
Syed Ahmad
i/Jhaque and OtherJ
1106
SUPREME COURT REPORTS
[1955]
of indefiniteness inherent in its very nature, and it must be left to
be determined judicially .on the facts of each case.
It is well-established that an ena.ctment
in
form mandatory
might in substance be directory, and that the use of the word "shall"
does not conclude the nlatter. There are well-known rules for determining w·hen a statute should be construed as mandatory and when
directory. All of them are only aids for ascertaining the true intention of the legislature which is the detennining factor, and that
must ulti1nately depend on the context.
The word "shall" in Rule 47(1)(c) of the
Representation of the
People (Conduct of Elections and Election Petitions) Rules,
1951
\Vhich enacts that "a ballot paper contained in a ballot box shall be
rejected if it bears any serial number or mark different from
the
serial numbers or marks of ballot papers authorised for use at the
polling station or the polling booth at which the ballot box in \vhich
it was found was used", cannot be construed as
meaning
"may".
The provisions of Rule 47(1)(c) are mandatory like the provisions of
Rule 47(1)(a), Rule 47(1)(b) and Rule 47(1)(d).
Held, that in maintaining the election of the first respondent in
the present case on the basis of the 301 votes which were liable to
be rejected under Rule 47(1) (c) the Tribunal was plainly in error.
As the error was manifest on the face of the record, it called for interference in certiorari.
Held further, that the prayer of the appellant to be declared
<
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elected must be refused under S. 97, as the respondent had pleaded
·r·
in his recrimination petition
that there had been violation of Rule
-..-
23, and that by reason thereof the election
of the
appellant was
liable to be set aside, if he had been declared elected and that that
plea had been established.
In the result the entire election was set aside.
N. P. Ponnuswami v. Returning Officer, Namakkal Constituency
and Others ([1952] S.C.R. 218), Durga Shankar v. Raghuraj Singh
([1955] S.C.R. 267), T. C. Basappa v. T. Nagappa ([1955] S.C.R.
250), Clifford
O'Sullivan
([1921] 2 A.C. 570), Rex v.
Electricity Commissioners ([1924] 1 K.B. 171), R. v. Wormwood Scrubbs
(Governor) ([1948] 1 All E.R. 438), Waryam Singh and another v.
Amarnath and.another ([1954] S.C.R. 565), Parry & Co. v. Commercial
Employees' Association, Madras (fl952] S.C.R. 519), Veerappa Pillai
v. Raman and Raman Ltd. and Others ([1952] S.C.R. 583), Ibrahim
Aboobaker v. Custodian General ([1952] S.C.R. 696), Rex v. Northumberland Compensation Appeal T1·ibunal; Ex parte Shaw ( [ 1951] 1
K.B. 711; [1952] I K.B. 338), Rex v. Nat Bell Liquors Ltd. ([1922]
2 A.C. 128), Batuk K. Vyas v.
Surat Municipality · (A.LR. 1953
Born. 133), Julius v. Bishop of Oxford ([1880] L.R. 5 A.C. 214),
Woodward v. Sarsons ([1875] L.R. 10 C.P. 733), Vashist Narain v.
Dev Chandra ([1955] S.C.R. 509) and In Re South Newington Election Petiu"on ([1948] 2 A.E.R. 503), referred to,
•
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S.C.R.
SUPREME COURT REPORTS
1107
CrVIL
APPELLATE
JurusmcTION :
Civil
Appeal
NQ. 61 of 1954.
· Appeal under Article 132(1) of the
Constitution
of India from the Judgment and
Order dated the 4th
November 1953 of the
High
Court of
Judicature at
Nagpur in
Civil Miscellaneous
Petition
No. 174 of
1953.
N. C. Chatterjee,
Bakshi
Tek
Chand and Veda
Vyas, (S. K. Kapur and Ganpat Rai,
with them), for
the appellant.
G. S. Pathak,
(Rameshwar
Nath
and
Rajinder
Narain, with him), for respondent No. 1.
1954. December 9.
The
Judgment of the Court
was delivered by
VENKATARAMA
AYYAR J.-The
appellant and respondents 1 to 5 herein were duly nominated
for election to the House of the People from the Hoshangabad
Constituency in the
State of
Madhya Pradesh.
Respondents 4 and 5
subsequently
withdrew
from
the
election, leaving the
contest to the other
candidates.
At the polling the appellant secured 65,201 votes,
the
first respondent 65,375 votes and the other
candidates
far less; and
Returning
Officer according! y declared
the first respondent duly
elected.
The appellant
then
filed
Election Petition No. 180 of 1952 for setting aside
the election on the ground inter alia that 301 out
of
the votes counted in
favour of
the first
respondent
were liable to be rejected under Rule 47 ( 1) ( c) of Act
No. XLIII of 1951
on
the
ground that
the
ballot
papers did
not have
the distinguishing
marks
prescribed under Rule 28, and that by reason of their improper reception, the result
of the election
had
been
materially affected. Rule 28 is as follows :
"The ballot papers to be used for the purpose
of
voting at an election to which this
Chapter
applies
shall contain a serial number and such distinguishing
marks as the Election Commission may decide".
Under this rule, the Election Commission had decided
that the ballot papers for the Parliamentary
ConstiHariVishnu
Karnath
v.
Syed Ahmad
lshaque and Othm
1954
Hori Vishnu
Kamath
v.
Syed Ahmad
Jshaque and Otheis
V111katarama
AyyarJ.
1108
SUPREME COURT REPORTS
[1955]
tuencies should bear a green bar printed near the left
margin, and that those for the
State Assembly should
bear a brown bar.
What happened in this case was that voters for the
House of the
People in polling stations Nos. 316 and
317 in SobhapUr were given ballot papers with brown
bar intended for the
State Assembly, instead of ballot
papers with green bar
which had to be used for the
House of the
People.
The total number
of votes so
polled was 443, out of which 62 were in favour of the
appellant, 301 in favour of the first
respondent,
and
the remaining in
favour of the
other
candidates.
Now, Rule 47 ( 1) ( c) enacts that "a ballot paper contained in a ballot box shall be rejected if it bears any
serial number or mark
different from
the serial numbers or marks of ballot papers authorised
for
use at
the polling station or the polling booth at which the
ballot boi< in which it was found was used".
In his
election petition,
the
appellant
contended
that
m
accordance
with
this
prov1S1on the
ballot
papers
received at the Sobhapur polling
stations
not having
·the requisite
mark should have
been
excluded,
and
that if that had been done, the first respondent would
have lost the lead of 174
votes, and that
he
himself
would have secured the
largest
number of votes.
He
accordingly prayed that he might be declared duly
elected.
The first
respondent
contested the
petition.
He
pleaded that the
Returning Officer ar Sobhapur
had
rightly accepted the 301 votes,
because
Rule 47 was
directory and not mandatory,
and
that further
the
votes had been accepted as valid by the Election Commission, and the defect, if any,
had been cured.
He
also filed· a recrimination
petition under section 97
of
Act No. XLIII of 1951, and
therein pleaded inter alia
that at polling station No. 299 at
Malkajra and
at
polling station No. 371 at Bammangaon ballot papers
intended for use in the
State
Legislature election had
been wrongly issued to voters to
the
House of
the
People by mistake of the polling officers, that all those
·votes had been wrongly
rejected
by
the
Returning
. Officer, and that if they had been counted, he would
y
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...
S.C.R.
SUPREME COURT REPORTS
1109
have got 117 votes
more
than
the
appellant.. He
accordingly challenged the
right of the appellant
to
be declared elected.
The Election Tribunal held by a majority that Rule
47(1) (c) was mandatory,
and that the 301
ballot
papers found in the box of the first
respondent bearing the wrong mark should not have been counted;
while the third Member was of the opinion that that
rule was
merely directory,
and that
the
Returning
Officer had the power to accept them.
The
Tribunal,
however, was unanimous
in holding
that the result
of the election had not been materially affected
by
the erroneous reception of the votes,
and
on that
ground dismissed the petition.
The appellant then moved the High Court of Nagpur under articles 226 and 227 of the
Constitution for
the issue of a writ of certiorari or other order or direction for quashing the decision of the Election
Tribunal on the
ground that it was illegal and
without
jurisdiction.
Apart from supporting
the decision
on
"the merits, the first respondent contended that
having
r.egard to article 329 (b) the
High Court was not competent to entertain the
petition,
as
in
substance it
called in question the
validity
of an
election.
The
petition was heard by a Bench
consisting of
Sinha,
C. J., Mudholkar and Bhutt, JJ., who differed in
their
.conclusions.
Sinha, C. J., and Bhutt, J., held that no
writ could be issued under article 226, firstly because
the effect of article 329 (b) was to
take
away
that
power, and secondly, because
the
Election
Tribunal
" had become functus officio after the pronouncement of
the decision, and that thereafter
there was no
Tribunal to which directions
could
be issued
under
that
article.
Mudholkar, J., agreed
with
this
conclusion,
but rested it on the second ground
aforesaid.
As regards article 227, while Sinha, C. J. and Bhutt, J.
held that it had no application to Election
Tribunals,
Mudholkar, J. was of the view that they " were
also
within " the purview of" that article, but that in view
of article 329 (b), no relief
could
be granted
either
setting aside the election of the
first
respondent,
or
" declaring the
appellant elected, and that
the only
1954
lfari Vishnu
Karnath
v.
Syed Ahmad
lshaque and Othm
-"-
V enkatarama
"AyyarJ.
1954
Hari Vishnu
Karnath
_v.
·Syed Ahmad
lShague and Others
Venkatarama
. Ayyar.J.
1110
SUPREME COURT REPORTS
[1955J
order that could be made was to set aside the decision
of the T ribuna!. On the merits, Sinha, C. f. and Bhutt,
J. took the view that the decision
of
the
Tribunal
that the result of the election
had
not been
materially affected
by the
erroneous
reception
of
votes
was one within its jurisdiction, and
that it could not
be quashed under article 226,
even if it had made a
mistake of fact or law.
But Mudholkar, J. held that
as in arriving at that decision the Tribunal had taken
into
consideration
irrelevant
matters,
such · as
themistake of the polling officer in issuing
wrong ballot
papers and its effect on the result of the
election,
it
had acted in excess
of its jurisdiction.
He was accordingly of opinion that the decision should be quashed leaving it to the
Election
Commission "to perform
their statutory duties
in the
matter
of the
election
petition".
The petition was dismissed
in accordance
with the majority opinion. The learned
Judges,
however, granted a certificate
under article 132( 1), and
that is how this appeal comes before this Court.
The first question that
arises
for decision in this.
appeal is whether
High
Courts
have
jurisdiction
under article 226 to issue writs against
decisions
of
Election
Tribunals.
That
article
confers
on
High •
Courts power to issue appropriate
writs to any person
or authority
within
their territorial
jurisdiction,
in
terms absolute and
unqualified, and
Election Tribunals functioning
within the territorial jurisdiction
of
the
High Courts would fall within the sweep
of that
power.
If we are to recognise or admit any limitation on this power, that must be founded
on
some
prov1S1on
in the
Constitution itself.
The contention
of Mr. Pathak for the
first respondent is that such
a
limitation has been imposed
on that power by article
329(b ), which is as follows :
"Notwithstanding
anything
in · this
Constitu··
tionno election to either
House of
Parliament or to theHouse or either
House of
Legislature of
a
State-
•
. ,
shall be called in question
except by an election
peti-.
>...
tion presented to such authori•y
and in
such manner
'
• ..
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•
"
--,
'
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•
>
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>
S.C.R.
SUPREME COURT REPORTS
1111
as may be provided for by or under any law made by
the appropriate
Legislature".
Now, the question is whether a writ is a proceeding
in which an election can properly be said to be called
in question within the meaning of article 329 (b).
On
a plain reading of the
article,
what is
prohibited
therein is
the
1nztzat1on
of proceedings
for
setting
aside an election otherwise than by an
election
petition presented to such
authority and in such manner
as provided therein.
A suit for setting aside an election would be barred under this provision. In N. P.
Ponnuswami v. Returning Officer, Namakkal
Constituency and Others(1) it was held by this Court that
the word "election" in article 329(b)
was
used
m a
comprehensive
sense as
including the entire
process
of election commencing with the issue of a notification and terminating with the declaration
of election
of a candidate, and that an application
under article
226 challenging the validity of any of the
acts forming part of
that process would be barred.
These are
instances of original proceedings
calling
in
question
an election, and would be
within
the
prohibition
enacted in
article 329(b ).
But
when once
proceedings have been
instituted
in accordance with article
329(b) by
presentation of an
election
petition,
the
requirements of that article are fully satisfied.
Thereafter when the election petition is in due course
heard
by a
Tribunal and decided,
whether its decision
is
open to attack, and if so, where and to what extent,
must be determined by the general law applicable to
decisions of
Tribunals.
There being no dispute
that
they are subject to the supervisory
jurisdiction
of the
High Courts under article 226, a
writ
of
certiorari
under that article will be competent against decisions
of the Election Tribunals also.
The view that article 329(b) is limited in its operation to initiation of
proceedings for setting aside
an election and not to the further stages following on
the decision · of the
Tribunal is
considerably
reinforced, when the question is considered with reference
to a candidate, w.hose
election has been set aside
(1J [1952] S.C.R. 218.
15-89'8. C. India/59.
1954
Bari Vishnu
Karnath
v.
Syed Ahmail
lshaque and Others
V enkatarama
AyarJ.
1954
Hari Vishnu
Karnath
v.
Syed Ahmad
lshaque and Others
1112
SUPREME COURT REPORTS
[1955]
by the Tribunal.
If he applies under
article 226 for
a· writ to set aside the order of the Tribunal he can-
.
'
not m any sense be said to call in
question the election; on the other hand, he seeks
to mamtam it.
His
application could not, therefore,
be
barred
by article
329(b). And if the contention of the first respondent
is well-founded, the result
will be
that
proceedings
under article 226 will be competent m one event and
not in another and at the instance
of one party and
not the other. Learned
counsel for the
first
respondent was unable to give any reason why this differentiation should be made.
We cannot
accept
a
construction which leads to results so anomalous.
This question may be said to be almost concluded
by authority. In Durga Shankar v. Raghuraj Singh(')
the contention was raised that this
Court could not
entertain an appeal against
the decision of an Election
Tribunal under article 136 of the
Constitution,
as that would be a proceeding m which an election IS
called m question, and that that could be done only
before a Tribunal as provided m
article 329(b).
In
overruling this contention, Mukherjea, J. observed :
"The 'non-obstante'
clause
with
which
article
329 of the
Constitution begins and upon
which the
respondent's counsel lays so much stress, debars us,
as it debars any other court in
the land,
to entertain
a suit or a proceeding calling m question any election
to the
Parliament or the State Legislature.
It is the
Election
Tribunal alone that can decide such disputes
and the proceeding has to be initiated by an election
petition and in such manner as may be
provided bv
a statute.
But once that
Tribunal has made any determination or adjudication on the matter, the powers
of this
Court to interfere by way of special
leave can
always be exercised".
By parity of reasoning it must be held that the power
of the
High Court under article 226 to issue writ of
certiorari against decisions of
Election
Tribunals
remains equally unaffected by article 329(b).
It is next contended that even if there IS jurisdic-
(1) [1955] S.C.R. 267.
•I
-
[
r
t-
,
t
-
S;C.R.
SUPREME COURT REPORTS
1113
tion in the High
Court under
article 226 to ISsue
certiorari against a decision of an
Election
Tribunal,
it is incapable of exercise for the reason that under the
scheme of Act No. XLIII of 1951,
the Tribunal is an
ad hoc body set up for
determination of a particular
election petition, that it becomes functus officio when
it pronounces its decision. and
that
thereafter there
is no authority in existence to which the writ could
be issued.
The question thus raised is of considerable
importance, on which there is little
by way of direct
authority; and it has to be answered
primarily on a
consideration of the nature of a writ of certiorari to
quash.
At the outset, it is necessary to mention that
in England certiorari is issued not only
for quashing
decisions
but also
for various other
purposes. It is
issued to remove actions
and indictment
pending
in
an inferior court for trial to the
High Court; to transfer orders of civil courts
and sentences
of
criminal
courts for execution to the superior
court;
to
bring
up depositions
on an
application
for bail when the
prisoner has been committed to the
High Court for
trial; and to remove the record of
an inferior court
when it is required
for evidence in the
High
Court.
These are set
out in
Halsbury' s Laws of
England,
Volume IX, pages 840 to 851.
It is observed
therein
that the writ has become
obsolete in
respect of most
of these matters, as they are now regulated by statutes.
That that is also
the
position
in
America
appears
from the following statement in Corpus Juris Secundum, Volume 14, at page 151:
"At common law the writ of certiorari
was used
both as a writ of review
after final judgment and also
to remove the entire
cause at any stage of the proceeding for hearing and determination in
the superior
court. In the United States it is now the general rule
that the writ will be refused where there has been no
final determination and the proceedings in the lower
tribunal are still pending".
As we are concerned in this
appeal with certiorari to
quash a decision,
it is necessary
only to examme
whether having regard to its nature such a writ for
1954
Bari Vishnu
Karnath
v.
Syed Ahmad
lshaque and Othlt
V enkatarama
Ay,1ar ].
1954
Hari Vishnu
Karnath
v.
Syea Ahmad
lsha'l"' and Others
Vmkatarama
AyyarJ.
1114
SUPREME COURT REPORTS
[1955]
quashing can be issued to review
the decision
of a
Tribunal, which has ceased to exist.
According to the common law of England, certiorari
is a high prerogative writ issued by the Court of the
King's Bench or
Chancery to inferior courts or tribunals in the exercise
of supervisory
jurisdiction
with
a view to ensure that they acted
within the bounds of
their jurisdiction.
To this end, they were commanded
to transmit the records of a cause or matter
pending
with them to the superior court to be dealt with there,
and if the order was found
to be without jurisdiction, it was quashed.
The court
issuing certiorari to
quash, however, could not
substitute its own decision
on the merits, or give directions to be complied
with
by the court or the tribunal.
Its work was destructive;
it simply wiped out the order passed
without
jurisdiction, and left the matter there. In T. C. Basappa v.
T. Nagappa( 1 ), M:ukherjea, J. dealing
with this question observed:
"In granting a writ of 'certiorari' the superior
court does
not
exercise
the power of an
appellate
tribunal. It does not review or reweigh the evidence
upon which the determination of the inferior tribunal
purports to be based.
It demolishes
the
order which
it considers
to be without
jurisdiction or palpably
erroneous but does not substitute
its own
view
for
those of the inferior tribunal.
The offending order or
proceeding so to say is put out of the
way
as one
which should not be used to the deteriment of any person.
Vide per Lord
Cairns in Walsall's Overseers v.
L. and N. W. Ry. Co.(•)".
In Corpus Juris Secundum, Volume 14 at page 123
the nature of a writ of certiorari for quashing is
thus
stated:
"It is not a proceeding against the tribunal or an
individual composing it, it acts on the cause or
proceeding in the lower court, and
removes
it to the
superior court for reinvestigation''.
The writ for quashing is thus directed
against
a
record, and as a record
can
be
brought up
only
Ir) [1955] S.C.R. 250.
(2} [1879] 4 A.C. 30, 39·
-
..
•
S.C.R.
SUPREME COURT REPORTS
1115
through human agency, it is issued . to the
person or
authority whose decision is to be reviewed. If it is the
record of the decision
that has
to be removed
by
certiorari, then the fact
that the tribunal has become
functus officio subsequent to the
decision could have
no effect on tlf e jurisdiction of the court to remove
the record.
If it is a question of issuing directions,
it
is conceivable that there should be in existence
a person or authority to whom they could be issued,
and
when_ a certiorari other than one to quash the decision
is proposed to be issued, the
fact
that the
tribunal
has ceased to exist might operate as a bar to its issue .
But if the true scope of certiorari to quash is that it
merely
demolishes the offending order, the
presence
of the offender before the court, though proper, is not
necessary for the exercise of
the jurisdiction or
to
render its determination effective.
Learned counsel for the first respondent invites our
attention to the form of the order nisi in a writ of
certiorari, and contends that as it requires the court
or tribunal whose proceedings are to be reviewed, to
transmit the records to the superior court,
there is, if
the tribunal has ceased
to exist, none to whom
the
writ could be issued and none who could be compelled
to produce the record.
But then,
if the writ
is
in
reality directed against the record,
there is no reason
why it should not be issued to whosoever
has
the custody thereof.
The following statement
of the law in
Ferris on the Law of
Extraordinary Legal Remedies is
apposite:
"The writ is directed to the body or officer whose
determination is to be reviewed, or to any other person
having the custody of the record or other papers to be
certified".
Under section 103 of
Act No. XLIII of 1951 the
Tribunal is directed to send the records of the case after
the order is pronounced either to the relative
District
Judge or to the
Chief Judge of the
Court of Small
Causes, and there is no legal impediment to :i. writ being issued to those officers to transmit
the record to
the High Court. We think that the power to issue a
1954
Harl Vishnu
Karnath
v.
Syed Ahmad
lshaque and Others
V enkatarama
'AyyarJ~
1954
~
Hari Vishnu
Karnath
v.
Syed Ahmad
lshague and Ot"'7s
Venkatarama
Apar J.
1116
SUPREME COURT REPORTS
[1955}
writ under article 226 to a person as distinct from an
authority is sufficiently comprehensive
to take in any
person who has the custody of the record,
and the
officers mentioned in section 103 of Act No. XLIII of
1951 would be
persons
who would be amenable to
the jurisdiction of the High Court under the article.
It is argued that the wording of article 226 that
the High Court shall have power to issue writs or
directions to any person or authority within
its territorial jurisdiction posits that there exists a person
or
authority to whom it could
be issued,
and that in
consequence,
they cannot be
issued
where no such
authority exists.
We are of opinion that
this is not
the true import
of the language of the article.
The
scope of article 226 is firstly that
it
confers on the
High Courts power to issue writs and directions, and
secondly, it defines the limits of that
power.
This
latter it does by
enacting that it could be exercised
over any person or authority within · the territories in
relation
to which it exercises its
jurisdiction.
The
emphasis is on the words "within the territory'',
and
their significance is that the
jurisdiction to issue writ
is co-extensive with the territorial
jurisdiction
of the
court.
The reference is not to the nature
and
composition of the court or tribunal but to the area within which the power could be exercised.
The first respondent relied on the decision in Clifford O'Sullivan(') as authority for the position that
no writ could be issued against a Tribunal after it had
ceased to exist.
There, the facts were that
the appellants had been tried by a military
Court and convicted on 3-5-1921.
They applied on 10-5-1921 for a writ
of prohibition against
the officers of the
Court,
and
that was refused on the ground that they had become
functi officio.
The respondent contended that
on the
same reasoning certiorari against the decision of an
Election Tribunal which had become functus
officio
should also be refused, and he further relied
on
the
observations of Atkin, L.f. in Rex v. Electricity
Com·
missioners; London
Electricity
Joint
Committee
Co.
(1920), Ex parte( 2 ) as establishing that there was no
!1) [1921] 2 A.G. 570.
,
•
'
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'
' I
~ .J
\ I
..
S.C.R.
SUPREME COURT REPORTS
1117
difference in law between a writ of prohibition and a
writ of certiorari.
\Vhat is stated
there is
that both
writs of prohibition and certiorari have for their object
the restraining of inferior courts from exceeding
their jurisdiction,
and they could be issued not merely to courts but to all authorities
exerc1smg
judicial
or quasi-judicial functions.
But there is one fundamental distinction between the two writs, and that is
what is material for the present purpose.
They
are
issued at different stages of the proceedings.
When
an inferior court takes up for hearing a matter
over
which it has no jurisdiction, the
person against whom
the proceedings
are taken can
move
the
superior
court for a writ of prohibition, and on that, an order
will issue forbidding the inferior court from continuing the proceedings.
On the other hand, if the court
hears that cause or matter and gives a decision,
the
party
aggrieved would have
to move the
superior
court for a writ of certiorari,
and on
that, an order
will be made quashing the decision on the ground of
want
of jurisdiction.
It might happen that in a proceeding before the inferior
court a decision
might
have been passed, which does not
completely
dispose
of the matter, in
which case it might be necessary
to
apply both
for certiorari
and
prohibition-certiorari
for
quashing
what
had been
decided,
and
prohibition for arresting the further continuance of the
proceeding.
Authorities have gone
to this
extent that
in such cases when
an
application
is
made for a
writ of prohibition and
there is no prayer
for certiorari, it would be open to the
Court to stop
further
proceedings
which are consequential on the
decision.
But · if the proceedings
have terminated,
then it is too
late to issue prohibition and certiorari for quashing is
the proper remedy to resort to.
Broadly speaking, and
apart from the cases of the kind referred to above, a
writ of prohibition will lie when the proceedings are to
~my extent pending and a writ of certiorari for quash~
ing after they have terminated in a final decision .
. Now, if a writ of prohibition could be issued only
if there are proceedings
pending in a court, it must
follow that it is incapable of being granted. when the
r954
Hari Vishnu
Karnath
v.
Syed Ahmad
lshague and Others
V 1t1katarama
Ayyar].
Hari Vishnu
KamiJth
v.
Syed Ahmad
lshaque and Othirs
V enkatarama
AyyarJ.
1118
SUPREME COURT REPORTS
[1955]
court has ceased to exist, because there could be then
no proceeding on which it could operate.
But it is
otherwise with a writ of certiorari to quash, because
it is directed against a decision · which has been rendered by a court or tribunal, and the continued existence of that court or tribunal is not
a
condition
of
its decision being annulled.
In this context,
the following
passage from Juris Corpus Secundum, Volume
14, page 126 may be usefully quoted:
"Although similar to prohibition in that it will lie
for want or excess of jurisdiction, certiorari
is
to be
distinguished from prohibition by the fact that it ..... .
is directed to the cause or proceeding in the lower court
and not to the court itself, while prohibition is a preventive remedy issuing to restrain future action
and
is directed to the court itself".
The decision in Clifford O'Sullivan(') which was concerned with a writ of prohibition is, therefore,
inapplicable to a writ of certiorari to quash. It has also
to be noted that in that case as the military
Court
had pronounced its
sentence
before
the
application
was filed, a writ of prohibition was bound to fail irrespective of the
question
whether the Tribunal
was
functus officio or not, and that is the ground on which
Viscount Cave based his decision.
He observed:
"A further
difficulty is caused to
the appellants
by the fact that the officers
constituting the so-called
military Court have long since
completed
their
mvestigation and reported to
the
commanding officer,
so that nothing remains to be done by them, and a
writ of prohibition directed to them would
be of no
avail.
[See In re Pope(') and Chabot v. Lord Morpeth(3) r'.
In this connection, reference must be made to the
decision in R. v. Wormwood Scrubbs
(Governor) (4 ).
There, the applicant was
condemned by a court martial sitting in Germany, and in execution of its
sentence, he was imprisoned in England.
He applied for
a . writ of habeas corpus, .and contended that the. military Court had no jurisdiction
over him.
The
Court
(1) [1921] 2 A.G. 570.
(2J [1833) 5 B. & Ad. 681.
(3) (1848] 15 Q. B. 446.
(4) [1948] 1 All E. R. 438c
'y
r
S.C.R.
SUPREME COURT REPORTS
1119
agreed with this contention, and held that the conviction
was without
jurisdiction
and
accordingly
issued a writ of habeas corpus.
But as he was in the
custody of the Governor of the Prison under a warrant
ot conviction, unless the conviction
itself was quashed
no writ of habeas
corpus
could
issue. In these
circumstances,
the
Court issued
a writ of
certiorari
quashing the conviction by the
court
martial. It is
to be noted that the military
Court was
an ad hoc
body, and was not in existence at
the
time
of the
writ, and the respondents to the application were the
Governor and the
Secretarv for War.
The fact that
the court martial was dissolved was not considered a
bar to the grant of certiorari.
Our attention has also been invited to a decision of
this Court in The Lloyds Bank Ltd. v. The Lloyds Bank.
Indian Staff
Association and others (1 ).
In that case,
following the decision in Clifford O'Sullivan (2 )
the
Calcutta High Court had refused applications for the
· issue of writs of certiorari and prohibition against
the
decision of the All India Indμstrial
Tribunal (Bank
Disputes) on the
ground, amongst others,
that the
Tribunal had ceased to exist.
In appeal to this Court
against this judgment, it was
contended for the
appellant that on a proper construction of section 7 of
the Industrial Disputes
Act, the
Tribunal
must
be
deemed to be not an ad hoc body established for
adjudication of a ·particular dispute
but a permanent
Tribunal continuing "in a sort of suspended
animation" and "functioning
intermittently".
This
Court
agreeing with the High
Court rejected
this
contention.
But the point
was not argued
that
certiorari
could issue even if the
Tribunal had become functus
officio, and no decision was
given on the
question,
which is now under consideration.
Looking at the substance of the matter, when once
it is held that the intention of the
Constitution
was
to vest in the
High Court a power to supervise decisions of Tribunals by the issue of
appropriate writs
and directions, the exercise of that power
cannot be
(1) Civil Appeal No. 42 of 1952.
{2) {1921) 2 A.C. 57~.
1954
Hari Vishnu
Karnath
v.
Syed Ahmad
lshaque and Oth8rs
V enkatarama
Ayyar.J.
1954
Hori Vishnu
Karnath
v.
Syed Ahmad
hhaque and Othe13
Y enkatarama
.Ayyar :J.
1120
SUPREME COURT REPORTS
[1955]
defeated by technical
considerations of form and procedure. In T. C. Basappa v. T. Nagappa(' ), this
Court
observed:
"In view of the express provisions in our Constitution we need not now
look back to the early
history or the procedural technicalities
of these writs in
English law, nor feel oppressed
by any
difference or
change of opinion
expressed
in particular
cases
by
English Judges.
We can make an order or issue a
writ in
the nature of 'certiorari' in
all appropriate
cases and in appropriate
manner, so long as
we keep·
to the broad and
fundamental
principles
that
regulate the
exercise of
jurisdiction in
the
matter of
granting such writs in English law".
It will be in consonance with these principles to hold
that the High Courts have power under article 226 to
issue writs of certiorari for quashing the decisions
of
Election · Tribunals, notwithstanding
that they become
functus officio after pronouncing the decisions.
We are also of opinion that the Election Tribunals
are subject to the superintendence of the High Courts
under article 227 of
the
Constitution, and that that
superintendence is
both
judicial
and administrative.
That was held by this
Court in Waryam Singh
and
another v. Amarnath and another('), where it was observed that in this respect
article 227 went
further
than section 224 of the Government of India
Act, 1935,
under which the superintendence was purely administrative, and that it restored the
position
under
section 107 of the Government of India Act, 1915. It may
also be noted that while in a certiorari under article
226 the High Court can only annul the decision of the
Tribunal, it can, under article 227,
do that, and also
issue
further
directions in the
matter.
We must
accordingly hold that the application of the appellant
for a writ of certiorari and for other reliefs was maintainable under articles 226
and 227
of
the
Constitution.
Then the
question is whether
there
are
proper
grounds for the issue of certiorari in the present case.
(r} [r955) S.C.R.