Abdulla Rowther vs Kesava Pillai and Others

Pakenham Walsh, J.—This is a Civil Miscellaneous Petition for the issue of a Writ of Certiorari to the Election Commissioner arising in the

following way. In May, 1932, an election for Ward No. 3 of Puduvayal Panchayat Board was held and the petitioner and the first respondent

were duly nominated for that election. Out of the 25 votes recorded, the Election Officer treated 22 votes as invalid and of the remaining 3 votes, 2

were secured by the first respondent and 1 by the petitioner. The first respondent was therefore declared duly elected. The petitioner then filed a

petition alleging several irregularities in the conduct of the election and prayed that he might be declared as having been duly elected or in the

alternative, to set aside the election and to direct a fresh one. The Election Officer had to declare these 22 votes invalid, as the ballot papers in

those cases contained the serial numbers of the voters and also their names. P.W. 1, the Polling Officer, under a mistaken impression, thought that

the name and the number of the votes should appear in the ballot paper. Of these 22 invalid votes, 15 were in favour of the petitioner and 7 in

favour of the first respondent. The Commissioner on the petition preferred to him found ""If these votes had not been declared invalid, there is little

doubt that the petitioner must have been declared as having been validly elected"". The question which he had to decide was whether u/s 10(c) of

the rules with respect to the decision of disputes as to the validity of elections the result of the election had been materially affected by any non-

compliance with the provisions of the Act or rules made thereunder. The view which he took was that in this case there was no non-compliance

with the provisions of the Act; to quote his own words, ""the word ''non-compliance'' means, in my opinion, an omission to do what has been

directed to be done. What the following officer is directed to do is mentioned in Rule 16 and it is not alleged that any direction given in that rule has

not been complied with by the polling officer. It cannot therefore be said within the meaning of Rule 10, Clause C, that there was any non-

compliance with the provisions of the Act or rules made thereunder. This case therefore does not come within the provisions of Rule 10, and I

cannot therefore say that, in this case, the election of the returned candidate is void"". He therefore dismissed the petition and this application is

made to the High Court to issue a writ of certiorari.

I do not think it is necessary to discuss the correctness or otherwise of the learned Commissioner''s view on the question which he had to

decide. It cannot be denied that the question arose for decision, that he had jurisdiction to decide it and that he did decide it. Under these

circumstances, the law seems clear that the High Court has no power to interfere by way of certiorari even if there was a wrong decision on fact or

law. It is argued for the petitioner that the Commissioner has refused to exercise jurisdiction on a mistaken view of the law. Apart from the question

whether, if this were true, it would justify interference by way of certiorari, I agree with the learned Advocate for the respondent that it is not the

correct way of putting it, for what the Commissioner did was to refuse to grant a certain relief which he certainly had jurisdiction to refuse. I have

been shown no authority that if he refused to grant relief on a mistaken view of fact or law, this Court can interfere by way of certiorari. Cases like

Sundaram alias Mytheenbibi v. Mamsa Mavuthar I.L.R.(1921) 44 Mad. 554 : 40 M.L.J. 497 have been quoted, but Section 115, Civil Procedure

Code, can at best only be analogous. The only case in my opinion cited for the petitioner which could at all justify his argument is Rex v. Board of

Education (1910) 2 K.B. 165. It is clear however that the interference by way of certiorari in that case was because the Board of Education did

not answer the question which was put to them to answer. That is not the case here. The Commissioner has answered the question which he had to

answer. The statement in that case by one of the learned Judges, Cozens-Hardy M.R. after giving a certain explanation which might account for the

view taken by the Board, runs thus:

If this be the explanation I can understand the decision, although it did not answer the question put. On any other view it seems to me the decision

was so perverse as really to amount to a non-exercise of the jurisdiction entrusted to the Board.

On this latter sentence it has been argued that the High Court can interfere if the decision is perverse. The same argument was addressed to me

recently in a similar case and I was unable to accept it. This remark at best is obiter. No other case has been quoted to me to show that mere

perversity is ground for interference. Moreover, I am not prepared to say that the view of the law taken by the Commissioner is perverse. The

learned Advocate for the respondent urges that it is the correct view of the law, though I am not prepared to say that I would accept this view. The

latest decision on this matter is Mahomed Asan Maracair v. Bijli Sahib Bahadur (1933) 66 M.L.J. 367 which follows M. Shanmuga Mudaliar Vs.

S. Subbaraya Mudaliar and Another, and Govindasami Pillai v. Ramalingaswami Pillai (1931) 62 M.L.J. 644 the observations in which are

precisely in point. At page 379 the learned Chief Justice remarks:

The question is not whether there has been here any error in law on the part of the Election Commissioner; and this Court is only entitled to

interfere, as has already been remarked, if there was a want of jurisdiction at the commencement of the proceedings. Once there is jurisdiction, any

errors committed subsequently cannot take away the jurisdiction once obtained.

Swarnammal Vs. K. Muniswami Chetty, was also referred to before me. In Halsbury''s Laws of England Vol. 9 after Section 1484 which

speaks of want of jurisdiction arising from the nature of the subject-matter and from the absence of some essential preliminary proceeding, it is

stated in Section 1485 at p. 881:

The case is more difficult where the jurisdiction of the Court below depends, not upon some preliminary proceeding, but upon the existence of

some particular fact. If the fact be collateral to the actual matter which the lower Court has to try, that Court cannot, by a wrong decision, with

regard to it, give itself jurisdiction which it would not otherwise possess. The lower Court must, indeed, decide as to the collateral fact, in the first

instance; but the superior Court may upon certiorari enquire into the correctness of the decision, and may quash the proceedings in the lower Court

if such decision is erroneous, or at any rate if there is no evidence to support it. On the other hand, if the fact in question be not collateral but a part

of the very issue which the lower Court has to inquire into, certiorari will not be granted, although the lower Court may have arrived at an

erroneous conclusion with regard to it.

Here there can be no doubt that the question as to whether the action of the polling officer amounted to a non-compliance with the provisions of

the Act or rules made thereunder was the very issue which the lower Court had to inquire into and not an issue collateral to the proceedings on

which it rested its jurisdiction. I am therefore of opinion that this Court has no power to interfere by way of certiorari even if the view of the law

taken by the Commissioner is incorrect.

The Civil Miscellaneous Petition is accordingly dismissed with costs. Costs Rs. 50.