1954 (12) TMI 22 - SC - Indian Laws

High Courts' Jurisdiction under Article 226 for Writs on Election Tribunal Decisions

The Supreme Court clarified that High Courts have jurisdiction under Article 226 to issue writs against decisions of Election Tribunals. It held that Rule ... Supervisory jurisdiction under Article 226 - non-obstante clause in Article 329(b) and initiation of election proceedings - certiorari to quash and error apparent on the face of the record - functus officio and availability of writs against ad hoc tribunals - superintendence under Article 227 - mandatory character of Election Rule 47(1)(c) - distinguishing mark prescribed under Election Rule 28 - role and limits of the Returning Officer under Rule 47 and Rule 48 - scope of enquiry under section 100(2)(c) of Act No. XLIII of 1951 - recrimination under section 97 and its effect on relief under section 100(2)(c)Supervisory jurisdiction under Article 226 - non-obstante clause in Article 329(b) and initiation of election proceedings - Whether High Courts have jurisdiction under Article 226 to issue writs against decisions of Election Tribunals despite Article 329(b) - HELD THAT: - Article 329(b) bars original proceedings that call in question an election except by election petition presented as provided by law; it does not, however, oust the High Court's general supervisory jurisdiction under Article 226 over decisions of tribunals once an election petition has been instituted and decided by the appropriate Tribunal. Proceedings by way of writ after the Tribunal has adjudicated do not amount to initiating a fresh proceeding to call in question the election in the sense prohibited by Article 329(b). A construction that would permit Article 226 applications only by one class of parties and not others would be anomalous. Authority and reason support that certiorari under Article 226 remains competent against Election Tribunal decisions.The High Court has jurisdiction under Article 226 to issue writs of certiorari against decisions of Election Tribunals; Article 329(b) does not oust that jurisdiction once an election petition has been presented and decided.Certiorari to quash and error apparent on the face of the record - functus officio and availability of writs against ad hoc tribunals - Whether certiorari to quash can be issued against an Election Tribunal which has become functus officio - HELD THAT: - Certiorari to quash operates against a record or cause and not necessarily against the continued existence of the tribunal which made the decision. The writ's purpose is destructive of an order without substituting the superior court's merits decision. Historical authorities distinguish prohibition (a preventive remedy requiring proceedings to be pending) from certiorari to quash (a remedial writ competent after final decision). Where custody of the record exists in an identifiable person or officer (e.g., officers named by section 103 of the Act to receive tribunal records), certiorari can be issued to that person to bring up the record. Precedents show that dissolution of an ad hoc body is not a bar to quashing its decision where the record can be obtained and the court corrects errors apparent on the face of the record.A writ of certiorari to quash may be issued against the decision of an Election Tribunal even though the Tribunal has become functus officio; the absence of the tribunal's continued existence is not a bar to certiorari.Superintendence under Article 227 - role and limits of the Returning Officer under Rule 47 and Rule 48 - Whether Election Tribunals are subject to the superintendence of the High Courts under Article 227 and the scope of relief available thereunder - HELD THAT: - Article 227 confers on High Courts both judicial and administrative superintendence over subordinate courts and tribunals. Election Tribunals fall within this supervisory scope. Whereas certiorari under Article 226 can annul an impugned decision, Article 227 permits the High Court not only to quash but also to issue further directions in relation to the matter. Thus the High Court may exercise its superintendence to quash tribunal decisions and direct consequent action (for example, setting aside an election and directing fresh election arrangements).Election Tribunals are subject to the High Court's superintendence under Article 227, and the High Court may quash tribunal decisions and issue consequential directions.Mandatory character of Election Rule 47(1)(c) - distinguishing mark prescribed under Election Rule 28 - scope of enquiry under section 100(2)(c) of Act No. XLIII of 1951 - recrimination under section 97 and its effect on relief under section 100(2)(c) - Whether ballot papers lacking the distinguishing mark prescribed by Rule 28 are to be rejected under Rule 47(1)(c), whether post-poll approval by the Election Commission validated such papers, and whether the Tribunal erred in upholding the election on grounds extraneous to section 100(2)(c) - HELD THAT: - Rule 47(1)(a), (b) and (d) show that the directive to reject certain classes of ballot papers is mandatory; consistency of construction requires Rule 47(1)(c) likewise be mandatory because rejection admits no degrees of compliance. The Election Commission's subsequent approval amounted to condonation of defects in specified papers but did not amount to prescribing a new distinguishing mark under Rule 28 for the election as a whole; a change of the prescribed mark must occur before polling. Therefore ballot papers actually issued and cast without the prescribed distinguishing mark are liable to rejection under Rule 47(1)(c). Section 100(2)(c) requires both an established improper reception/refusal and a material effect on the result; the two conditions are cumulative and on the petitioner. The Returning Officer must declare the result on valid votes under Rule 48; neither the Returning Officer nor the Tribunal can count votes that Rule 47 mandates be rejected. Although the Tribunal can examine matters raised in recrimination under section 97, it cannot, when reviewing a decision under Rule 47(4), accept votes that were required to be rejected. The Tribunal's reliance on extraneous matters (such as the poll officers' mistake and purported voter intention) to sustain the result amounted to an error apparent on the face of the record because it accepted votes Rule 47 required to be rejected and thereby sustained an invalid result.Rule 47(1)(c) is mandatory; the 301 ballot papers lacking the prescribed distinguishing mark were liable to rejection notwithstanding post-poll approval by the Election Commission, and the Tribunal's maintenance of the election result by counting those votes was an error apparent on the face of the record warranting quashing.Final Conclusion: The appeal is allowed. The decisions of the Election Tribunal and the High Court are quashed; the election is set aside and there is no valid election. A fresh election shall be held by the Election Commission. Each party to bear its own costs. Issues Involved:1. Jurisdiction of High Courts under Article 226 to issue writs against decisions of Election Tribunals.2. Interpretation of Rule 47(1)(c) of Act No. XLIII of 1951 as mandatory or directory.3. Validity of Election Commission's approval of ballot papers with incorrect distinguishing marks.4. Scope of enquiry under Section 100(2)(c) of Act No. XLIII of 1951 regarding the material effect on election results.5. Application of Article 227 to Election Tribunals.Issue-wise Detailed Analysis:1. Jurisdiction of High Courts under Article 226 to issue writs against decisions of Election Tribunals:The Supreme Court held that High Courts have jurisdiction under Article 226 to issue writs against decisions of Election Tribunals. Article 226 confers on High Courts the power to issue appropriate writs to any person or authority within their territorial jurisdiction in absolute and unqualified terms. Election Tribunals functioning within the territorial jurisdiction of the High Courts fall within the sweep of that power. The limitation on this power must be founded on some provision in the Constitution itself, specifically Article 329(b), which bars the initiation of proceedings for setting aside an election otherwise than by an election petition. However, once proceedings have been instituted by an election petition, the requirements of Article 329(b) are fully satisfied, allowing the High Courts to exercise supervisory jurisdiction under Article 226.2. Interpretation of Rule 47(1)(c) of Act No. XLIII of 1951 as mandatory or directory:The Court determined that Rule 47(1)(c) is mandatory. The rule states 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 authorized for use at the polling station or the polling booth at which the ballot box in which it was found was used.' The Court reasoned that the use of the word 'shall' indicates a mandatory requirement, and the practical bearing of the distinction between mandatory and directory provisions supports this interpretation. The Court rejected the argument that the rule should be construed as directory to avoid disfranchising voters due to the polling officer's mistake.3. Validity of Election Commission's approval of ballot papers with incorrect distinguishing marks:The Court held that the Election Commission's approval of the ballot papers with incorrect distinguishing marks was not valid. Rule 28 requires that ballot papers contain a serial number and distinguishing marks as decided by the Election Commission. The Commission's approval of the ballot papers after the polling did not constitute a valid change of the distinguishing mark under Rule 28. The approval was a condonation of defects in specific ballot papers rather than a prescription of a new distinguishing mark for the election as a whole. Therefore, the 301 ballot papers without the correct distinguishing marks were liable to be rejected under Rule 47(1)(c).4. Scope of enquiry under Section 100(2)(c) of Act No. XLIII of 1951 regarding the material effect on election results:The Court clarified that Section 100(2)(c) requires two cumulative conditions to be satisfied before an election can be set aside: (1) improper reception or refusal of a vote or non-compliance with election rules, and (2) that the result of the election was materially affected by such improper reception or non-compliance. The Tribunal had found a breach of Rule 47(1)(c), satisfying the first condition. However, the Tribunal's decision that the election result was not materially affected was based on extraneous considerations, such as the mistake of the polling officer and its effect on the result. The Court held that the enquiry under Section 100(2)(c) must be limited to the matters raised in the election petition and that the Tribunal's consideration of irrelevant factors was an error of law apparent on the face of the record.5. Application of Article 227 to Election Tribunals:The Court held that Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution. This superintendence is both judicial and administrative. Article 227 goes further than Section 224 of the Government of India Act, 1935, by restoring the position under Section 107 of the Government of India Act, 1915. Under Article 227, the High Court can annul the decision of the Tribunal and issue further directions. Therefore, the application for a writ of certiorari and other reliefs was maintainable under Articles 226 and 227.Conclusion:The Supreme Court allowed the appeal, quashed the decisions of the High Court and the Tribunal, and set aside the entire election. The Election Commission was directed to hold a fresh election. The parties were ordered to bear their own costs throughout.