# T. C. BASAPPA v. T. NAGAPPA AND ANOTHER

- **Citation:** [1955] 1 S.C.R. 250
- **Court:** Supreme Court of India
- **Decided:** 1954-01-11
- **Case number:** Civil Appeal No. 48 of 1954
- **Bench:** Mehr Chand Mahajan C.J, Mukherjea, V1v1AN BosE, Bhagwati, Venkatarama Ayyar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-c-basappa-v-t-nagappa-and-another-384
- **Pages:** 18

## Headnote

[1955)
Constitution
of
India-Article
226-Certiorari,
writ
ofGeneral principles governing the issue thereof-Manifest and patent
error apparent on the face of proceedings-Clear ignorance or disregard of a provision of law-Absence or excess of jurisdiction.
The issue of prerogative
writs in the nature of habeas corpus,
mandamus, quo 'warranto, prohib£tion and certiorari had their origin
in England in the King's
prerogative
power of
superintendenCe
over the due observance of law by his officials and Tribunals.
The powers of the Supren1e Court as well as of all the High
Courts in India under articles 32 and 226 of the Constitution respectively are very wide.
The Supreme Court as well as the High .Courts
in India can
make an order or issue
a writ in the nature
of
certiorari in all
appropriate cases and in appropriate manner so long as the
broad
and fundamental principles of English law regulating the exercise
of jurisdiction in the matter of granting such writs are adhered to.
A writ of certiorari can be availed of only to remove or adjμdicate upon the validity of judicial acts, which expression includes
the exercise of quasi-judicial functions bv administrative .bodies
or >--.,.--
other authorities or persons obliged to exercise such functions but
does not include purely ministerial acts.
.
In granting a writ of certiorari the superior
Court does not
exercise the power of an appellate Tribunal. the control exercised
through it being merely in a supervisory and not appellate capacity.
_,..
It does not review or reweigh the evidence
upon. which
the
determination of the inferior Court is based
nor docs it substitute
its own views for those of the inferior Tribunal.
A writ of certio1·ari is generally
granted whei:i ·a CoUrt
has
acted without or in excess
of its
jurisdiction. The want of juris-
"",.J..,
diction may arise from the natu.re of the subiect-matter of the pro-
'o
ceeding or from the absence of some preliminary proceeding or the
Court itself
may not be legally constituted or may suffer from a
certain
disability
by
reason of extraneous circumstances.
If the
jurisdiction of the Court depends upon the existence of some collateral fact the. Court cannot by a wrong decision of the fact assume
jurisdiction which it would. not. otherwise possess.
A writ of certiorari is available in those cases
where a Tribtlnal though competent to enter upon an enquiry acts
in flagrant
disre·gard of the rules
of procedure or
violates the principles of · .(
natural justice where no particular procedure is prescribed.
•
-
S.C.R.
SUPREME COURT REPORTS
251
A mere wrong decision cannot be corrected by a writ of .certiorari as that would be using it as the cloak of an appeal in disguise
but a manifest error apparent on the face of the proceeding based
on a clear ignorance or disregard of the provisions of law or absence
of or excess of jurisdiction, when shown, can be so corrected.
·
Held, that in view of the facts and circumstances of the case
the High Court was not right
in holding that sufficient and proper
grounds existed for the issue of certiorari in the present case.
Ryots of Garabandho v. Zemindar of Parlakimedi (70 I.A. 129,
140); Election Commission, India v. Saka Venkata Subba Rao ([1953]
S.C.R. 1144, 1150); Rex v. Electricity Commissioners ([1924] 1 K.B.
171, 205) ; Walshall's Overseers v. London and Northern Western
Railway Co. ( 4 A.C. 30, 39) ; King v. Nat Bell Liquors Limited
([1922] 2 A.C. 128, 156); Banbury v. Fuller, (9 Exch. 111); Queen v.
Commissioners for Special Purposes of the Income Tax (21 Q.B.D.
313) ; Rex v. Northumberland
Compensation
Appellate
Tribunal
([1952] 1 K.B. 338, 357); Veerappa Pillai v. Raman & Raman Ltd.,
-'
([1952] S.C.R. 583, 594); and Halsbury, Vol. IX, 2nd edition, page
, 880, referred to.
CIVIL
APPELLATE
JuRISDICTION: Civil
Appeal No.
48 of 1954.
Appeal from the Judgment and Order dated
the
11th January, 1954, of the High Court of Judicature of
Mysore in Civil Petition No. 29 of 1953, quashing the
Order of th

## Text

_Characters 0–39,941 of 42,121. This is a partial read: ask again with offset=39941 for what follows._

1954
.May5.
250
SUPREME COURT REPORTS
T. C. BASAPPA
v.
T. NAGAPPA AND ANOTHER.
[MEHR CHAND MAHAJAN C.J., MUKHERJEA,
V1v1AN BosE, BHAGWATI and
VENKATARAMA AYYAR JJ.J
[1955)
Constitution
of
India-Article
226-Certiorari,
writ
ofGeneral principles governing the issue thereof-Manifest and patent
error apparent on the face of proceedings-Clear ignorance or disregard of a provision of law-Absence or excess of jurisdiction.
The issue of prerogative
writs in the nature of habeas corpus,
mandamus, quo 'warranto, prohib£tion and certiorari had their origin
in England in the King's
prerogative
power of
superintendenCe
over the due observance of law by his officials and Tribunals.
The powers of the Supren1e Court as well as of all the High
Courts in India under articles 32 and 226 of the Constitution respectively are very wide.
The Supreme Court as well as the High .Courts
in India can
make an order or issue
a writ in the nature
of
certiorari in all
appropriate cases and in appropriate manner so long as the
broad
and fundamental principles of English law regulating the exercise
of jurisdiction in the matter of granting such writs are adhered to.
A writ of certiorari can be availed of only to remove or adjμdicate upon the validity of judicial acts, which expression includes
the exercise of quasi-judicial functions bv administrative .bodies
or >--.,.--
other authorities or persons obliged to exercise such functions but
does not include purely ministerial acts.
.
In granting a writ of certiorari the superior
Court does not
exercise the power of an appellate Tribunal. the control exercised
through it being merely in a supervisory and not appellate capacity.
_,..
It does not review or reweigh the evidence
upon. which
the
determination of the inferior Court is based
nor docs it substitute
its own views for those of the inferior Tribunal.
A writ of certio1·ari is generally
granted whei:i ·a CoUrt
has
acted without or in excess
of its
jurisdiction. The want of juris-
"",.J..,
diction may arise from the natu.re of the subiect-matter of the pro-
'o
ceeding or from the absence of some preliminary proceeding or the
Court itself
may not be legally constituted or may suffer from a
certain
disability
by
reason of extraneous circumstances.
If the
jurisdiction of the Court depends upon the existence of some collateral fact the. Court cannot by a wrong decision of the fact assume
jurisdiction which it would. not. otherwise possess.
A writ of certiorari is available in those cases
where a Tribtlnal though competent to enter upon an enquiry acts
in flagrant
disre·gard of the rules
of procedure or
violates the principles of · .(
natural justice where no particular procedure is prescribed.
•
-
S.C.R.
SUPREME COURT REPORTS
251
A mere wrong decision cannot be corrected by a writ of .certiorari as that would be using it as the cloak of an appeal in disguise
but a manifest error apparent on the face of the proceeding based
on a clear ignorance or disregard of the provisions of law or absence
of or excess of jurisdiction, when shown, can be so corrected.
·
Held, that in view of the facts and circumstances of the case
the High Court was not right
in holding that sufficient and proper
grounds existed for the issue of certiorari in the present case.
Ryots of Garabandho v. Zemindar of Parlakimedi (70 I.A. 129,
140); Election Commission, India v. Saka Venkata Subba Rao ([1953]
S.C.R. 1144, 1150); Rex v. Electricity Commissioners ([1924] 1 K.B.
171, 205) ; Walshall's Overseers v. London and Northern Western
Railway Co. ( 4 A.C. 30, 39) ; King v. Nat Bell Liquors Limited
([1922] 2 A.C. 128, 156); Banbury v. Fuller, (9 Exch. 111); Queen v.
Commissioners for Special Purposes of the Income Tax (21 Q.B.D.
313) ; Rex v. Northumberland
Compensation
Appellate
Tribunal
([1952] 1 K.B. 338, 357); Veerappa Pillai v. Raman & Raman Ltd.,
-'
([1952] S.C.R. 583, 594); and Halsbury, Vol. IX, 2nd edition, page
, 880, referred to.
CIVIL
APPELLATE
JuRISDICTION: Civil
Appeal No.
48 of 1954.
Appeal from the Judgment and Order dated
the
11th January, 1954, of the High Court of Judicature of
Mysore in Civil Petition No. 29 of 1953, quashing the
Order of the Election Tribunal, Shimoga dated the
15th January, 1953, in Shimoga No. 1 of 1952-53.
K. S. Krishnaswami Iyengar
(K. S. Venkataranga
Iyengar and M. S. K. Iyengar,
with him) for
the
appellant.
Dr. Bakshi Tek Chand
(R. Ganapathy Iyer and
M. S. K. Sastri, with him) for respondent No. 1.
C. K. Daphtary, Solicitor-General fior India (Jindra
Lal, Porus A. Mehta and P. G. Gokhale, with him) for
r-., respondent No. 3.
·
1954.
May 5.
The Judgment of the Court was
delivered by
MuKHERJEA J.-This appeal
is directed against a
judgment of a Division Bench of the Mysore High Court,
dated the
11th January, 1954,
by which the
learned
Judges granted an application,
presented by
the
respondent No. 1 under article 226 of the Constitution,
). -. and - directed a writ of certiorari to issue quashing the
proceedings
and
order of the Election Tribunal,
17-86 S. C. India/59 ·
1954
T. C. Basappa
v.
T. Nagappa
and Another.
1954
T. C. Basappa
v.
T. Nagappa
· and Another.
MukherJea J, t
252
SUPREME COURT REPORTS
[1955]
Shimoga, dated the
15th January, 1953, m
Shimoga
Election Case No. I of 1952-53.
The facts material for purposes of this appeal may be
briefly narrated as follows : The appellant and respondent No. 1, as well as eight other persons, who figured as respondents Nos. 2 to 9 in the proceeding before
the High Court, were duly nominated candidates for
election
to
the Mysore
Legislative
Assembly
from
Tarikere Constituency at the general election of that
State held in January,
1952. Five of these
nominated
candidates withdrew their candidature within the pres-
,cribed period and the actual contest at the election
was between the remaining five candidates including
the appellant and respondent No. 1. The polling took
place on the 4th January, 1952, and the votes were
counted on the 26th of January following.
As a result
'>
of the counting the respondent No. 1 was found to have r
secured 8,093
votes which was
the largest in number
and the appellant followed him closely having obtained
8,059
votes.
The
remaining
three
candidates, who
were respondents Nos. 2, 3 and 4 before the High Court,
· got !respectively 6,239,
1,644
and
1,142
votes.
The
Returning Officer declared the respondent No. 1 to be
the successful
candidate and this declaration was pub- --.-
, lished in the Mysore Gazette on the 11th February,
· 1952. The respondent No. 1 lodged his return of election expenses with the necessary
declaration sometime
after that and notice of this return was published on
the 31st March, 1952.
The appellant thereafter filed a.
petition before the Election Commission, challenging
the validity of the
election, inter alia, on the grounds
· that there was violation of the election rules in regard r'.
to certain matters and that the respondent No. 1 by '
himself or through his agents were guilty of a number
of major corrupt practices which materially affected
the result of the election. The petitioner prayed for a
declaration that the election of respondent No. 1 was
void and that he himself was duly elected. This peti-
. tion, which bears date, 10th of April, 1952, was sent by
registered post to the Election Commission and was
, actually received by the, latter cin the 14th of April,- ;:,
, following.
The Election
Commission referred
the
matter for determination by the Election Tribunal at
--
..
'y
J
...,,_
S.C.R.
SUPREME COURT REPORTS
253
Shimoga and it came up for hearing before it on the
25th of
October,
1952. On that date the appellant
filed
an application for amendment of
the
petition,
heading it as one under Order VI, rule 17, of the Civil
Procedure Code, and the only amendment sought for
was a modification of the prayer clause by adding a
prayer:
for declaring the entire election to be void. It
was stated at the same time that in case this relief
could not be granted, the petitioner would, in the alternative pray for the
relief
originally claimed by him,
namely, that the election of respondent No. 1 should
be declared to be void and the petitioner himself be
held to be the elected candidate at the election. Despite the objection of respondent No. 1, the Tribunal
granted this prayer for amendment. The hearing of
the case then proceeded and on the averments made by
the respective parties, as many as 27 issues were framed.
Of them, issues Nos. 1, 5, 6, 11, 12 and 14 are material
for our present purpose and they stand as follows :
(1) Has there been infringement of the rules relating to the time of commencement of poll by reason of
the fact that the polling at Booth No. 1 for Ajjampur
fixed at Ajjampur to take place at 8 A.M. did not really
commence until about half an hour later as alleged in
paragraph 4 of the petition ?
(5) Did the 1st respondent hire and procure a
motor bus which was a service bus running between
Tarikere and Hiriyur, belonging to one Ahmed Jan, as
alleged in paragraph 1 of the particulars
and thereby
commit the corrupt practice referred to in it ?
f--,
( 6)b Didf tGhe 1st respondent take thf e hassishtance of
<J
a num er o
overnment servants to urt er t e prospects of his election as
alleged in paragraph 2 of the
list of particulars ?
(11) Is the return of election expenses lodged by
the 1st respondent false in material particulars and has
the ·1st respondent omitted to include in the return of
election · expenses,
expenses incurred by him in connection with the election which would easily exceed the
j, -· sanctioned limit of Rs. 5,000 as per particulars
stated
in paragr:aph 7 of the list of particulars ?
'
.
'
.
~ .
1954
T. C. Basappa
v.
T. Nagappa
and Another.
Mukherjea J,
.•954
·r. C. Basapp•
.v.
•T.Nagappa
.and Amith"·
.Mukher:fea J.
254
SUPREME COURT REPORTS
[1955]
(12) Has , the election ·of the 1st respondent been
procured and induced by the
said corrupt
practices
with the result that · the ··election has been materially
affected ?
( 14) Would
the
petitioner
have
obtained a
majority of votes had 1t not been for the aforesaid
·corrupt and illegal practices on the part of the first respondent?
The Tribunal by a majority of 2 to 1 found all these
·issues in favour of the petitioner and against the respondent No. 1 and on the strength of their findings on
these issues, declared the election of ·respondent No. 1
to , be void and the petitioner to have been duly elected .
. The judgment ·of the Tribunal is dated the 15th of
January, 1953.
On the 5th
February, 1953,
the
res-
\..
pondent No. 1 presented an application before the •
Mysore High Court under article 226 of the Constitution
praying for a writ or direction in the nature of certiorari calling for the records of the proceeding of the
Election Tribunal in Election Petition No. 1 of 195253 and quashing the same including the order pronounced by the · Tribunal · as mentioned above. This
application was heard by a Division Bench consisting 'Y
of Medappa C.J. and
Balakrishnaiya J. and by
their
judgment dated the 11th
January, 1954,
the learned
Judges allowed the petition of respondent No. 1 and
directed the issue of a writ of certiorari as prayed for.
It is against this judgment that the appellant has come
up to this Court on the strength of a certificate granted by the High Court under articles 132(1) and 133(1)(c)
of the Constitution.
,
The substantial contention raised by Mr. Ayyangar, ,-'
who appeared in support of the appeal, is, that the
learned Judges of the High Court misdirected themselves both on facts and law, in granting certiorari in
the present case to quash the determination of the
.Election Tribunal. It is urged; that the · Tribunal in
deCiding the matter in the way it did did 'not act either
wit4out jurisdiction or· in ·excess of its authority, nor
;Was there . any error apparent on the face of the pro- . A.I
cee'dings which 'could, justify the issuing of a writ to
quash the same. · It is argued by the learned · counsel
...
..
""(
J
S.C.R.
SUPREME• COURTi REPORTS
255
that, what the High Court · has chosen to describe as
errors of jurisdiction are· really not · matters which
affect the competericy of the · Tribunal to enter or adjudicate upon the matter in controversy between the
parties and the reasons assigned by the learned Judges
in support of their decision proceed· upon a misreading
and misconception of the findings of fact which the
Tribunal arrived at.
Two points really · ai:ise for our
consideration . upon
the ,contentions
raised
in
this
appeal. ·The first is, on what grounds could the High
Court, in exercise of its powers under article 226. of 'the
Constitution, grant a writ of· . certiorari to quash the
adjudication of the Election Tribunal ? The second is,
whether such grounds did actually exist· in the present
case and are the High Court's findings on that point
proper findings which should not be disturbed in
'
appeal ?
The . principles upon. which the. superior Cqurts in
England interfere by issuing writs of : certiorari are fairly
well
known and they have genera1ly formed the basis
of decisions in our Indian Courts. It is true that there
is lack of uniformity even in the pronouncements
of
English Judges, with regard to the grounds upon which
Ya wtit, or, as it is now said, an order of certiorari, could
issue,
but such differences of opinion are
unavoidable
in judge"made faw which has developed through a long
course cif years.
As is ·well· known, the issue of the
prerogative writs, within which· certiorari is
include•i.
had their origin in England in the King's prerogative
power of superintendence over the due · observance of
law by his officials and Tribunals. The writ of certiofari
;.... ) is so named because in its origina:1 · form it' required that
the King should be "certified' of"·· the proceedings
to
be' investigated' and the object ' was to secure by 'the
authority of a superior Court, ·that · the jurisdiction . of
the inferiOr Tribunal should be· properly exercised(1)
These principles were traiisplanted ,to
other. parts · of
the King's dominion:s;
Ill
India, during' the British
days,
the three chartered High · Courts · of Calcutta,
Bombay · and Madras ·were· al6ne ·competent to· issue
(1) Vide Ryots ·of Garabandhov. Zemikd~rof Pdrlaldmeili, ·70 I.A;· r29 ~t
page 140.
19541
T:c. Basappa'
v~
..
T. Nagappa
and Another.
Muk/iedea J·
1954.
T. C. Basappa
v.
T. Nagappa
0:.nd Ano~her
~
MuJcherjea J.
256.
SUPREME COURT REPORTS
[1955]
y
writs and that too within specified limits ·and the power
was not exercisable by the other High Courts at all.
"In that situation"
as this Court observed in Election
Commission, India v. Saka Venkata Subba Rao('), "the
makers of the Constitution having decided to provide
for certain basic safeguards fat the people in the new
set up, which they called fundamental rights, evidently
thought it necessary to provide also a quick and in-
~
expensive remedy for the enforcement of
such
rights
.i.
and, finding that the prerogative writs, which the Courts
in England had developed and used
whenever urgent
necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on
the High . Courts of issuing directions, orders, or writs
primarily for the enfor.cement of
fundamen;tal
rights,
the power
to issue
such
directions "for any other
.,,
purpose"
being also included with a view
apparently
to place all the High Courts in this country in somewhat the same position · as the Court of King's Bench
i.n England."
The language used in articles 32 and 226 of our
Constitution is very wide and the powers of the Supreme
Court as well as of all the High Courts in India extend
...,.
to issuing of ,orders, writs or directions .including writs
in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered
necessary for enforcement of
the fundamental
rights
and in the case of the High Courts, for other purposes
as well. 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
A
--
law, nor feel oppressed by any difference or change of '
9
qpinion 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 lorig · as we keep to the broad and fundamental principles
that regulate the exercise of jurisdiction in the mauer of granting such writs iμ English law.
One of. the. fundamental principles in regard to the
~
. issuing of a writ of certiorari is, that the writ can be ·
(1) [1953] S.C.R. I144 at I150.
-
S.C.R.
SUPREME COURT REPORTS
257
Y
availed of only to remove or. adjudicate on the validity
of judicial · acts.
The expression "judicial acts"
includes
the exercise of
quasi-judicial
functions
by
administrative bodies or other authorities or persons
obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin L. J.
thus summed up the law on this point in Rex v. Electricity Commissioners(1) :
• t-
"Whenever any body or persons
having legal
authority to determine questions affecting the rights
of subjects and having the duty to act judicially act
in excess of their legal authority they
are subject to
the controlling jurisdiction of the King's Bench Division
exer.cised in these writs."
The second essential feature of a writ of certiorari is
that the control which is exercised through it over
judicial or quasi-judicial Tribunals or bodies is not in
an appellate but supervisory capacity.
In granting a
writ of certiorari the superior Court does not exercise
the powers 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 jurisY-
diction or palpably erroneous but does not
substitute
its own views 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 detriment of any person(2).
The supervision of the superior Court exercised
through writs of certiorari goes on two points, as has
been expressed by Lord Summer in King v. Nat Bell
l...
Liquors Limited(3).
One is the area of inferior jurisdic-
•
tion and the qualifications and conditions of its
exercise ; the other is the observance of law in the course
of its exercise. These two heads normally cover all the
grounds on which a writ of certiorari could be demanded. In fact there is little difficulty in the enunciation
of the principles; the difficulty really arises in applying
the principles to the facts of a particular case.
(1) [1924] I K.B. 171 at 205.
~
(2) Vide Per Lord Cairns in Walshall's Overseers v. London and North
.Pl, · Western Railway Co. 4 A.C. 30, 39.
(3) [1922] 2 A.C. 128, 156.
33
I
..
T. C. Basappa
v.
T.Nagappa
and Another.
Mtikherjea J.
1954·
T. C. Basil.pp.
v.
T.Nagappa
and Another.
Mukherjea ]:
258
SUPREME COURT REPORTS
[1955]
Certiorari may .lie and is generally granted when
a Court has acted without or .in , excess . ·of its
jurisdiction. The. want of jurisdiction may arise from the
nature of the subject-matter of the proceeding or from
the absence of some preliminary proceeding or· the
Court itself may not be
legally constituted· or suffer
from certain disability . by reason of extraneous circumstances('). When the jurisdiction of the Court depends
upon the existence of some collateral fact,
it is well
settled that the Court ,cannot by a , wrong decision .. of
the fact give it jurisdiction which it would not otherwise possess(').
A Tribunal may be competent to enter upon an
enquiry but in making the enquiry it may act in
flagrant disregard of the rules of procedure or where no
particular procedure is
prescribed, it may· violate
the
principles of natural justice. A writ of certiormri . may
be available in such cases. An error in the decision or
determination itself may also be amenable to a writ of
certiorari but it must be 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.
Iri other words, it is a patent error which can be
corrected by certiorari but not a mere wrong decision.
The essential features of the remedy by way of certiorari
have been stated with remarkable brevity · and clearness
by Morris L. J. in the recent case of Rex v. Northumberland Compensation Appellate Tribunal(').
The
Lord Justice says :
'It is plain that certiorari will not issue as sthe • cloak
of an appeal in disguise. It does ·not 1ie in order to
bring up an order or decision ·for re-hearing of the
issue raised
in the proceedings.
It
exists 'to correct
error of law when revealed on the face of an order or
decision or irregularity . or absence of or excess of jurisdiction when shown."
In dealing with the powers of the High Court under
article 226 of the Constitution' this ·Court . has
expressed itself in almost similar terins(4 ) and .said :
. ·
(1) Vide Hals bury, 2nd edition, Vol. IX, page 880. ·
,-
· (2)"Vide "Banbury v. Fuller, g ExCh:.
111; R.v. In.corm Tax Sptcial P11r:
Al
poses Commissioners, 21 Q.B.D. 313.
•
. '
:
1
(3) [1952] 1 K.B. 338 at 357.
.
(4) Vide Veerappa Pillai v. Raman & Raman· Ltd., [1952] S.C.R. 583 at
594·
_ ..
T
•
..
•
£.C.R.
SUPREME COURT REPORTS
259
z954
"Such writs as are referred to in article 226 are
obviously intended to enable the High Court to issue
them in grave cases where the subordiriate Tribunals
or bodies or officers act wholly without jurisdiction, or
in exceils' of it, or in violation of the principles of
natural justice, or refuse to exercise a jurisdiction
vested in them, or there is an error apparent on the
face of the record, and such act, omission, error or
excess has resulted in manifest injustice. However
extensive the jurisdiction may be, it seems to us
that it is not -so wide or large as to enable the High
Court to .convert itself into a Court' of appeal and
examine ·for itself the correctness. of the decision
impugned and decide what is the proper view to be
taken or the order to be made."
T. C. Basappa
These passages indicate with sufficient fullness the
general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under
article 226 of the Constitution .
We will now proceed to examine the judgment of
the High Court and see whether the learned Judges
were right in holding "that sufficient and proper
grounds existed for the issue of certiorari in the present
case •
. The grounds upon which the High Court has granted
the writ have been placed in the judgment itself under
three heads. The first head points out in what matters
the Election Tribunal acted without jurisdiction. It
is said, in this connection, that the Tribunal had no
jurisdiction to extend the period of limitation for the
presentation of the election petition and it had no
authority also to allow the petitioner's prayer for ·
amendment and to hear and dispose of the case on the
basis of the amended petition. The second head
relates to acts in excess of jurisdiction. The Tribunal,
it is said, acted in excess' of jurisdiction in so far as it
went into and decided questions not definitely pleaded
and put in issue, and not only did it set aside the
election of respondent No. I but declared the petitioner
to have been duly elected, although there was no
definite finding and no proper materials for arriving at
v.
T. Nagappa
and Another.
Mukherjea ].
1954
:T. c. Basappa
v.
T. Nagappti
and Another.
Mukhi1jtii J.
260
SUPREME COURT REPORTS
[1955)
a finding, that the petitioner could secure more
votes
than respondent No. 1 but for the corrupt practices of'
the latter.
The third head purports to deal with errors apparent
on · the face
of the record:
These
apparent errors,
according to the
High Court, vitiated three of the
material findings upon which. the Tribunal based its
decision. These findings relate to the commencement_
of polling at one of the polling booths much later than
the scheduled time, the respondent
No. l's obtaining
the services of a Government servant to £urt1f er his
prospects of election and also . to his lodging. la false
return of expenses. We will take up these points for
consideration one after another.
As regards absence of jurisdiction the High i Court
is of opinion that the Tribunal acted without
jurisdiction, first in extending the period of limitatiOn
in
presentation of the election petition and secondly in
allowing the _petitioner's prayer for amendmenj: and
dealing with the case on the basis: of the amended
petition. The view taken by the High Court seems to
be that under the Reprdentation of the People Act
(hereinafter called "the Act"), no power is given to
the Election Tribunal to condone the delay, if an election petition is presented after the period prescribed
by the rules, nor is it competent to allow an amendment of the petition after it is presented, except in
the matter of supplying further and better particulars
of the illegal and corrupt practices set out in the list
annexed to the
petition, as contemplated by
section
83(3) of the Act.
Assuming, though not admitting, that the propositions of law enunciated by the learned Judges are
correct, we do not think that they at all arise for consideration on the actual facts of the present case. As
regards the first matter, the election ·petition, as
stated
above, was despatched by the petitioner by registered
post to the Election Commission on the 11th of April,
1952, · and it reached the Commission on the . 14th of
April following. · . We may take it therefore that 14th
of Aptil was the date when the election
petition
i
,
I
..
I
•!
y
-.
i
S.C.R.
SUPREME COURT REPORTS
261
could be deemed to have been presented to the Election
Commission under section 81(2) (b) of the Act.
Under rule 119 of the Election Rules framed under the
Act, an election petition against a returned candidate
is to be presented at any time after the publication of
the name of such candidate under section 67 of the
Act, but not later than 14 days from the date of
publication of the notice in the official gazette under
rule 113, that the return of election expenses of
such
candidate and the declaration made in respect thereof
have been lodged
with the· Returning Officer. It 1s
not disputed that this notice of the return of election
expenses was published in the Mysore Gazette on the
31st of March, 1952, and the petition therefore was
just in time as it was presented within and not later
than 14 days from that date. The High Court seems
to think that in computing the period of 14 days the
date of publication is to be included. This seems to
us to be . an unwarrantable view to take which 1s
opposed to the ordinary canons of construction. Dr. Tek
Chand appeanng for the respondent No. 1 plainly
confessed his inability to support this view and we
must hold therefore that there 1s no question of the
Tribunal's entertaining the election petition after the
prescribed period in the present case.
Coming now to the question of amendment, the
High Court, after an
elaborate
dis.cussion of the
various ·provisions of the Act, came to the conclusion
that the Election Tribunal which is a special
Court
endowed with special jurisdiction has no general power
of allowing amendment of the pleadings, and that
the express provision of section 83(3) of the Act, which
empowers the Tribunal to allow amendments with
respect to certain specified matters, impliedly excludes
the power of allowing general amendment as is contemplated by Order VI, rule 17, of the Civil Procedure
Code. Here agam the discussion embarked. upon by
the
High Court seems to us to be unnecessary and
uncalled for. The only amendment applied for by the
petitioner was a modification in the prayer clause by
insertion of an alternative prayer to the original prayer
in the petition.
No change whatsoever was sought to
1954.
T. C. Basappa
v.
T.Nagappa
and Another.
Mukherjea J.
rg_5+'
T. c. Basappa
v.
T. Nagappa
and Another;
MukherjeaJ.·
26i
SUPREME COURT REPORTS
[1955]
be introduced in the ··-actual' averments' in the pettt10n
and the original prayer . which .. was kept. intact was
repeated
·in · the application ' for amendment.
The
alternative prayer introduced by the ·amendment was
not eventually allowed. 'by the Tribunal · which granted
the- prayer of the petitioner as it originally stood. In
these circumstances the mere fact that the Tribunal
granted the . petitioner's
application. for
amendment
becomes altogether immaterial and; has absolutely no
bearing on the actual decision in . the case. We are
unable to hold therefore that the Tribunal acted without jurisdiction in respect · to either · · of · these · two
matters.
The High Court has held that the Tribimai' acted
Ill excess of ,its
jurisdictio~ . in entering into certain
questions which · are not covered by the pleadi11gs of
the parties and not specifically put iri issue. The other
act in excess of its authority committed by the .Tribunal, according to the High Court; is that it declared
the petitioner to be a duly elected · candidate, on a
mere speculation although it did · riot find and had no
materials to find that the' petitioner 'could secure , more
votes ·than the respondent No. l. . Qn the fiist point
the learned Judges have referred only to the allegation
of corrupt practice made by 'the' appellant, regarding
the hiring and procuring by the respondent Nb. 1 of a
motor bus belonging to Ahmed Jan for transporting
his voters to the polling · booth~. The· issue framed on
this point is issue No. 5 which is wbrded as follows : ·
"Did the first respond~nt hire ~nd procure a )notor
bus which was a service. bus. rurming betwee·n ·Tarikere
and Hiriyur, belonging to one; .Ali~~d' Jan, a·s
al,leged
in paragraph 1. of the list
o~ r".articulars and thereby
commit the corr~pt practicer~ferr~d io in it '?"
..
. The .Tribunal. found that· the. hiring of the bus . by
respondent . No. 1 was,. not.· proyed, . bu~ it .was proved
that . the first respondent did procure ~e servicec bus of
Ahmed Jan, .wh9 ,was. acring a~. his .agent,· for conveying
his 'IOters, , . Th,e ·Tribuna.l . ..further. ,found., that .. e,v~n if
Ahmed Jan. ·Was npt . an _agept. qf the. first respon_dent;
as he, , was .. actually , .carryffi.g .. the .:voters . of. the l~tt~r
i
..
..,_
•
f
).
S.C.R.
SUPREME COURT REPORTS
263
froin Gowrapur to Sollapur in a bus, which bore the
.first respondent's election symbol,
with his knowledge
and connivance, the ·first respondent must be held guilty
of the corrupt practice in question. The High Court
'says that as it was nowhere alleged in the petition that
Ahmed Jan was an agent of respondent No. I or that
he was carrying the voters with his connivance, the
Tribunal must be held to have acted in excess of its
jurisdiction in going into matters which were not definitely pleaded. We do not think that this view of the
High Court can be supported. In paragraph 8 of the
petition the appellant definitely stated that the first
respondent by himself and through his agent committed major corrupt practices, one of which was the
hiring or procuring of Ahmed Jan's motor bus. The
Tribunal found, on a consideration of the evidence
adduced in the case, that the motor bus was procured
by the first respondent and his conduct in this respect,
as disclosed by the evidence, showed that his . voters
were being carried by Ahmed Jan with his knowledge
and .connivance. It may be pointed out that in paragraph 9 of the petition the petitioner clearly stated
that the corrupt practices were committed by respondent No. 1, or his agents, or by several persons with
his knowledge and connivance. The finding of the Tribunal arrived at on this point is a finding of fact based
on evidence adduced by the parties and it is not in any
way outside the pleadings or inconsistent therewith .
The other ground put forward by the High Court that
the Tribunal exceeded its jurisdiction in declaring the
appellant to be the duly elected candidate, although it
had no materials to come to the conclusion that he could
have secured more votes than respondent No. I but for the
corrupt practices committed by the latter, seems to us
to be without substance. It appears
that the learned
. Judges did not properly advert to. the findings arrived
at on this point by the Election Tribunal. The petitioner, it may be noted, got only 34 votes less than the
respondent No. 1. The Tribunal has found that the bus
of Ahmed Jan, which was procured by respondent No.
1, 'did carry to the polling booths about 60 voters in
two trips and in the circumstances of the· case it could
1954
T. C. Basappa
v.
T. Nagappa
and Another.
Mukherjea J.
1954
T. C. BasaPfta
v.
T.Nagappa
and Another.
• Mukhei}ea 'j,
264
SUPREME COURT REPORTS
[1955]
be
legitimately presumed that the majority of them
did vote for respondent No. 1. If the votes of at least
40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latter's majority by 34 votes would be completely wiped out and the petitioner would gain an
undisputed majority. In paragraph 33 of its judgment the Tribunal states as follows :
"Hence on the 14th issue we hold that the petitioner would have obtained a majority of votes had it
not been for the aforesaid corrupt practices on the part
of the first respondent."
Thus the finding is there and there is evidence in
support of it. Whether it is right or wrong 1s another
matter and it may be that the view taken by the dissenting member of the Tribunal was the more proper ;
but it cannot be said that the
Tribunal exceeded its
jurisdiction in dealing with this matter.
We now come to what the High Court has described
as errors apparent on the face of the record. These
errors, according to the High Court, appear in respect
of three of the finding arrived at by the Tribunal.
The first of these findings relates to the time when the
polling at Booth No. 1 at Ajjampur commenced on the
date of election. The Tribunal has held that the time
fixed by notification was 8 A.M. in the morning but the
polling did not commence till 25 minutes after that
and the result was that a number of voters went away.
It is said that some of these voters would in all probability have voted for the appellant and as there was a
difference of only 34 votes between him and the respondent No. 1 the results of the election have been
materially affected by this· irregularity or violation of the
election rules. There was evidence undoubtedly to show
that some of the voters went away as the polling did
· not commence at the · scheduled time ; · but the exact
number of these persons is not known and there could
not be any positive evidence to show as
to how many
of them would have voted for the appeJlant. If the
Tribunal had on the basis- of these facts alone declared
' the appellant to be the duly elected candidate -holding
•
--
--
S.C.R.
SUPREME COURT REPORTS
265
that he could have secured more votes than respondent No. 1, obviously this would have been an error
apparent on the face of the record, as such conclusion
would rest merely on a surmise and nothing else. The
Tribunal however discussed this matter only in connection with the question as to whether the violation of
any statutory rule or order in the holding of election
did materially affect the result of the election which
would entitle the Tribunal to declare the election of
the returned candidate to be void under section 100(2)
( c) of the Act. This, the Tribunal was
competent to
do under the provisions of the Act and in doing so it
could take into consideration the circumstances and
probabilities of the case. But as we have stated already,
the
Tribunal
declared the appellant to be duly
elected upon the specific finding that, but for the corrupt practice of respondent No. 1 in the matter of
procuring the service bus of Ahmed Jan, the appellant
would have got majority of the votes. We cannot say
that this is an error apparent on the face of the record
which would entitle the High Court to interfere by
writ of certiorari.
As regards the other two findings, one relates to the
receiving of assistance from Paramesshwarappa, who
is a Patel, by respondent No. 1, in furtherance of his
prospects of election. The High Court does not dispute
the facts
alleged
by the appellant that Paramesshwarappa accompanied the first respondent and actually
canvassed at several places and that he openly canvassed at one polling booth on the polling day. The learned Judges say that even if these facts are believed,
they only establish that Paramesshwarappa canvassed
for the petitioner but that would not amount to respondent No. l's taking assistance from him. This does
not seem to us to be a proper view to take. There was
allegation by the appellant of the respondent No. l's
taking assistance from
a Government servant within
the meaning of section 123(8) of the Act. In proof of
the allegation evidence was given of the facts mentioned above. If from these facts, which were found
to be true,
the Tribunal drew the conclusion that there
had been an assistance taken from a Government
1954
T. C. Basappa
v •
. T. Nagappa
and An at her.
· Mukherjea J.
1954
T. C. Bgsappa
v.
T. Nagappa
and Another.
. Mukhedea J.
SUPREME COURT REPORTS
[1955]
servant
which would come within . the purview of section 123(8) of the Act, it is impossible to say that this
is an error apparent on the face of the record.
The remaining finding relates to the allegation of
the petitioner that the respondent No. 1 in his return
of election expenses omitted to include several items
and if they had been taken into account the election
expenses
would have exceeded the sanctioned limit ..
The Tribunal has held that the respondent No. 1
omitted to include, in his return of expenses; the petrol
charges, the hiring charges in respect of some cars and
vans hired by him and also the dinner expenses incurred in the hotels. The High Court has observed that
as regards the first item the finding of the Tribunal is
based on no evidence and rests
on mere speculation.
We do not think that we can accept this view as correct. The first respondent stated that he had used two
cars which were his own and incurred petrol expenses
to the extent of Rs. 1,083-3-0. The Tribunal has found
in paragraph 29 of its order on the basis of both documentary and oral evidence that the re·spondent No. 1 had
used six other cars and had purchased petrol for them
for the purpose of his election campaign. The Tribunal
held that the first respondent must have spent not less
than the sum of Rs. 1,250 on this account which was
not included in the list of expenses. We are unable to
say that this finding rests on no evidence.
As regards the omission to include hiring charges
the High Court has observed that the Tribunal did not
record any finding that such hiring was ·proved.
The
Tribunal has in fact found that as regards some cars
they were hired, while other' had been taken on loan,
the money value for their use having been paid by the
first respondent which is tantamount to saying that·
he had to pay the hiring charges. The matter has been
dealt with in paragraph 29( d) of the Tribunal's order
and the entire evidence has been gone through. We are
unable to say that the finding of . the Tribunal that the
respondent No. 1 had omitted to include in_ his return
of election expenses· the dinner and hotel charges is a
finding unsupported by any 'evidence. Reference
may
be made in this connection to paragraph 29(f) of the
•
S.C.R.
S,UPREME COURT REPQRT~
Tribunal's order which deals with the matter in deiaH.
On the whole our opinion , is that the so-called apparent errors pointed out by the High Court are neither
.-).