Beli Rum and Others vs Election Tribunal and Others

S. Murtaza Fazl Ali, J.—These six applications for writ of certiorari to quash orders of the Tribunal arise out of election petitions filed by the

petitioners for setting aside the election of the opposite party elected candidates in each case. As all these applications involved a common question

for determination they have been heard together and I propose to deal with all these petitions by one common judgment which will govern all the

cases.

The facts giving rise to the present applications are common and may briefly be stated thus: In each case the petitioners filed an election petition

before the Election Commissioner for setting aside the election of the opposite parties who were elected during the last election. The cases were

referred to the Tribunal who was hearing them. It appears that along with their applications the petitioners filed challans as required by Section 125

of Jammu and Kashmir Representation of the People Act, 1957 showing a deposit of Rs. 1000 towards security costs of the respondents.

Thereafter the respondents raised preliminary objections before the Tribunal that the challans did not comply with the requirements of Section 125

of the said Act and hence the petitions should be rejected u/s 98 (3) of the Act. The Tribunal accepted the objection of the respondents and

dismissed the election petitions of the petitioners by his order dated 17-12-1957. Thereafter the petitioners came up in appeal to this Court against

this order and also filed petitions for writ. But as this Court was of the opinion that no appeal was maintainable, the petitioners pray that the order

of the Tribunal be quashed by an appropriate writ.

The following facts in the present case are undisputed:

That the petitioners filed challans along with their petitions,

that the challans were for Rs. 1000,

that the challans were by way of security,

that the challans were in favour of the Election Commissioner.

The Tribunal has held that there was no dispute Avith respect to these facts before him.

The Tribunal has, however, rejected the petitions of the petitioners mainly on two grounds: Firstly, that in the challans it has been written that the

deposit is pledged to the Election Commissioner and, therefore, the money was not put in control of the Election Commissioner so as to be utilized,

by him for the purpose of giving costs to the respondents in the event of their being successful. Secondly, that there is no mention in the Challans

that the security deposit was for costs of the respondents.

The Tribunal was of the view that Section 125 of the Act being mandatory in character it was. necessary for the petitioners to have strictly

complied with the provisions of that section and as the two requirements mentioned by him were wanting, it could not be said that the petitioners

had complied with provisions of Section 125 and hence their petition merited dismissal u/s 89(3) of the Act.

Mr. N.C. Chatterji appearing for the petitioners has submitted that the Tribunal has placed a wrong interpretation on the provisions of Section

125 of the Jammu and Kashmir Representation of the People Act and as a result of an erroneous view of law taken by him he has committed an

error apparent on the face of the record by dismissing the election petitions of the petitioners. He has, therefore, contended that the order of the

Tribunal must be quashed.

Mr. Chatterji in developing his argument on the question has further submitted that a literal compliance of the provisions of Section 125 was not

necessary once it is shown or appears from the challan that the requirements laid down in Section 125 have been substantially complied with. In

other words, ""his contention is that some of the provisions of Section 125 are not mandatory but directory. The learned Counsel has also laid

stress on the question as to the interpretation of the word 'pledged' as mentioned in the challan and the word 'show' as appears in Section 125 of

the Act.

Mr. Pathak appearing for the respondents has, however, contended that Section 125 being mandatory in character the Tribunal was fully

justified in holding that there was non-compliance thereof and that there was therefore, no error in the order of the Tribunal. He has further

submitted that even if the Tribunal had committed an error apparent on the face of the record, the error was not a palpable error so as to invoke

the jurisdiction of this Court u/s 103 of the Constitution of Jammu and Kashmir.

I shall deal with the contentions raised by counsel for the parties at length, but in order to appreciate the contentions, it would be necessary to

consider the provisions of Section 125 of the Act which has been the subject-matter of serious controversy between the parties.

Section 125 of the Act runs as under:

The petitioner shall enclose with the election petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made

by him either in a Government Treasury or in the State Bank of India or in the Jammu and Kashmir Bank in favour of the Election Commissioner or

such other officer as the Sadar-i-Riyasat may authorise in this behalf as security for the costs of the petition.

It is quite clear from a perusal of this section that the challan filed by a petitioner must show the following things:

that a deposit of Rs. 1000 has been made,

that this deposit has been made by the petitioner,

that the deposit was made in favour of the Election Commissioner,

that the deposit was made either in a Government Treasury or in the State Bank of India or the Jammu and Kashmir Bank, and

that the deposit was as security for the costs of the petition.

It is not disputed before us that requirements Nos. 1, 2 and 4 have been complied with. The controversy rests as to whether requirements

Nos. 3 and 5 have been fulfilled. It must also be remembered that Section 125 uses the word 'showing' and not the word 'stating' before the word

'deposit'. The Tribunal seems to have over-looked the distinction between these two words and he has interpreted the word 'showing' to mean the

same thing as 'stating'. In my opinion, however, there is a clear distinction between the two words.

The word 'show' has been defined in various dictionaries as equivalent to 'disclose', 'make it clear', 'make it apparent', 'let it be seen' and 'manifest.'

It is, therefore, clear that the word 'show' has got a distinct and different connotation from the word 'state' and its scope is wider. This word being

used in Section 125, it is not necessary that the receipt by itself should state the various particulars. But all that is necessary is that it should be seen

either on a plain reading of the receipt or from a consideration of the surrounding circumstances that the particulars mentioned in Section 125 have

been complied with.

It is obvious, therefore, that the Legislature did not intend a literal compliance of Section 125 and that is why it has used the word 'show' and not

the word state'. Mr. Pathak, however, contended that the words 'show' and 'state' are practically synonymous and the word 'show' is even

stronger than the word 'state' and implies that the receipt itself should show that the particulars mentioned in Section 125 have been complied with.

I am, however, unable to accept this contention.

In my opinion once it is shown that the deposit was for security for costs and made in favour of the

Election Commissioner the provisions of Section 125 have been fully complied with. It is manifest that there are various modes of showing that the

challan contains the particulars mentioned in Section 125. For instance, in the case before us there can be no doubt that the security was meant to

be filed by the petitioners and not as appellants, because there is no mention in the challans that the security was being filed for filing an appeal, nor

was there any question of an appeal having been pending at the stage when the security was deposited.

There being no other provision under which security can be filed except as costs of the petition it will not be unreasonable to infer that even though

the word 'costs' was not mentioned in the challan, security was not for anything else but for costs. Thus, although the word 'costs' has not been

mentioned in the challan, the receipt itself shows on a consideration of the circumstances mentioned above that it was a security deposit for costs of

the petition.

I am fully supported in my view by two unreported Division Bench decisions of the Allahabad High Court in Bhuvanesh Bhushan Sharma Vs.

Election Tribunal, Farrukhabad and Another, and Girdhar Gopal Vs. Shri Farid Alam Chisti and Others, . In Bhuvanesh Bhushan Sharrna v.

Election Tribunal (A), their Lordships of the Allahabad High Court observed as follows:

The question turns mainly on the interpretation of the word 'showing'. It is to be noticed that the word used in Section 117 is 'showing' and not

'stating'. If the word 'stating' had been used, the only possible interpretation would have been that it should be written in the receipt itself that the

deposit was in favour of the Secretary to the Election Commission. The significance of using the word 'showing' instead of the word 'stating' cannot

be ignored....

The question that arises is whether, to serve the purposes indicated by these meanings of the word show', it is essential that the receipt should, on

the face of it, contain a note in writing that the deposit is in favour of the Secretary to the Election Commission. There is, of course, no doubt that, if

this note in so many words had appeared on the receipt itself, it should certainly have shown that the deposit was in favour of the Secretary to the

Election Commission, but we are unable to accept the contention that this is the only way by which the receipt could show that the deposit had

been made in favour of the Secretary to the Election Commission. In our opinion, the use of the word 'show' indicates that the contents of the

receipt should be such that any one who looks at the receipt can arrive at the conclusion that the deposit had been made in favour of the Secretary

to the Election Commission.

In the other case Girdhar Gopal v. Farid Alam Ghisti (B), the following observations were made by their Lordships of the Allahabad High Court:

It has been urged by learned Counsel for the opposite party, Ganga Prasad, who is the returned candidate, that the receipt nowhere mentions that

the deposit was as security for costs of the petition, and consequently the receipt, which was filed by the petitioner with his election petition, did not

satisfy the requirements of Section 117 of the Representation of the People Act. As we have held in the case, cited above, the word used in

Section 117 is 'showing' and not 'stating', so that the requirement of Section 117 is that the receipt should show that the deposit was as security for

costs of the petition.

It need not necessarily state this fact in so many words. Of course one way of showing that the deposit was as security for costs of the election

petition was to state it in plain language in the receipt itself. But even if it is not so plainly stated, the other contents of the receipt may be such as to

show, without any doubt, that the deposit was as security for costs of the petition. It was in this light that we proceed to examine the contents of

the receipt.

The view which I have taken is further supported by an unreported decision of the Madhya Pradesh High Court in Shivprasad Chandpuria v.

Chandrika Prasad, F.A. No. 141 of 1957 : (since reported in Shivaprasad Vs. Chandrika Prasad and Others, , where their Lordships of the

Madhya Pradesh High Court have observed as under :

It was also held by the Tribunal that the-deposit in question was not shown to be for payment of costs of an election petition. This last ground, we

think hardly arises, because it was clearly stated in the challan that the security deposit was in respect of the Bargi Assembly Constituency (No.

97), and further that the deposit was for an election petition. The omission of the word 'costs' has not much significance. In our opinion, the last

requirement of Section 117 was complied with. The question is whether requirement (iv), as analysed by the Election Tribunal, was complied with.

As against these decisions Mr. Pathak only put forward an argument which was accepted by Mr. K.K. Banerji, Election Tribunal operating

within the jurisdiction of the Allahabad High Court. The view taken by Mr. K.K. Bannerji was not accepted by the Allahabad High Court. Such

being the case it is not necessary for us to consider the reasonings of Mr. K.K. Bannerji. Mr. Pathak was, however, unable to cite before us a

decision of any other High Court where a view contrary to the view taken by the Allahabad and Madhya Pradesh High Courts was taken.

For these reasons I am not in a position to accept the contention of Mr. Pathak that merely because the word 'costs' was not written in the

challans, the challans would not show that the security was for costs of the petitions. Having regard, therefore, to the fact that the amount

mentioned in the challans was the same as contemplated by Section 125, the authority in favour of which the deposit was made was also the same

as mentioned in the section and further having regard to the stage at which the deposit was made, it is absolutely clear to me that the challans did

show that the deposit was made towards the security for costs of the petitions.

Moreover, the view taken by me finds ample support from an unreported decision of the Supreme Court in almost similar circumstances. In K.

Kamaraja Nadar v. Kunju Thevar, C.A. Nos. 783 and 764 of 1957 and 48 of 1958 : (since reported in K. Kamaraja Nadar Vs. Kunju Thevar

and Others, their Lordships of the Supreme Court were considering the question as to whether Section 117 of the Indian Act which Is exactly the

same as Section 125 of this Act was mandatory or directory.

In that case the deposit was made not in favour of the Secretary Election Commission but in favour of the Election Commission itself. There was

undoubtedly, therefore, a literal non-compliance with the provisions of Section 117 of the Act which applied to India. In spite of that, their

Lordships of the Supreme Court held that a part of the provision of Section 125 which required deposit in the name of the Secretary to Election

Commission was only directory, Their Lordships while dealing with the contention of the appellants observed as follows:

...The above illustration is sufficient to demonstrate that the words ""in favour of the Secretary to the Election Commission used in Section 117 are

directory and not mandatory in their character. What is of the essence of the provisions contained in Section 117 is that the petitioners should

furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury Receipt showing that a deposit of

one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election

Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that

behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or

any one else.

...No such literal compliance with the terms of Section 117 is at all necessary as is contended for on behalf of the appellant before us.

A perusal of the decision of the Supreme Court, in my opinion, clearly shows that although in that case the mistake in the challan was mis-

description of the authority in whose favour the security was deposited yet their Lordships were considering a broad question as to whether an

error of description or non-description of a particular or certain particulars required by Section 117 would entail a dismissal of an election petition

u/s 90 of the Act. This would be clear from the statement of facts which their Lordships have given in their judgment and which is to the following

effect:

The Election Commission also discovered a defect in the deposit of Rs. 1000 inasmuch as the proper and complete head of account had not been

mentioned in the treasury receipt nor had the deposit been made in favour of the Secretary, Election Commission as laid down in Section 117 of

the Act. This question also was left to the Tribunal to decide after hearing the parties, if the defect should be treated as fatal or one that could be

cured by fresh deposit or otherwise so as to secure the costs of the appellant if eventually awarded to him.

It is true that in the case before the Supreme Court the error of description consisted of the tact that the deposit was made in favour of the Election

Commissioner instead of the Secretary, Election Commission, yet their Lordships of the Supreme Court held that a literal compliance of Section

117 was not necessary in that sense.

Mr. Pathak has, however, contended that the decision of the Supreme Court cannot help the petitioners because in that case the only question

to be decided was as to whether the words 'in favour of the Secretary to the Election Commission' as used in Section 117 of the Indian Act were

directory or not and the Supreme Court did not give any decision on the type of non-compliance which has taken place in the present case. It is

true that their Lordships were considering specifically the question as to whether the provisions relating to deposit in favour of the Secretary

Election Commission were directory or not. But reading the judgment as a whole I am inclined to hold that the argument of the petitioners receives

great support from the observations made by their Lordships in the aforesaid decision.

Even if the decision of the Supreme Court does not apply, as I have already observed, having regard to the interpretation of the word 'showing'

used in Section 125 of the Act it cannot be said that merely by virtue of the omission of the word 'costs' in the challan the provisions of Section

125 have not been complied with. The contention of Mr. Pathak, on this point must therefore be overruled.

Mr. Pathak submitted Anr. argument on this question, namely that we were not entitled to take into consideration any extraneous circumstance

in order to know as to what the challan contained or showed. He contended that Section 93 of the Evidence Act was a bar to our adopting this

course. Section 93, Evidence Act, however, has no application to this case, because it was not a question of looking into evidence to explain some

patent ambiguity.

Before Section 93 of the Evidence Act would apply, it must be shown that there was a patent ambiguity. In our opinion there was no ambiguity in

the challan at all. It was really a matter as to how the challan is to be interpreted and for this Section 93, Evidence Act could not possibly be a bar.

I would, therefore, overrule this contention of Mr. Pathak also.

On a consideration of the circumstances mentioned above, I would hold that requirement No. 5 was fulfilled by the petitioners and the Tribunal

was wrong in holding that the challans did not fulfil the aforesaid requirement. It has not been disputed before us that if it was so, the Tribunal

committed an error apparent on the face of the record an error to discover which no investigation o any further fact was necessary and which

appears on the face of the judgment of the Tribunal itself.

I would now deal with the second branch of the contention of Mr. Chatterji, in impugning the second ground on which the Tribunal has

rejected the election petitions of the petitioners. The Tribunal thought that the use of the word 'pledged' invalidated the deposit. Mr. Chatterji

contends that word 'pledged' as used in the challan has not been used in a legal sense but has been used only in an ordinary sense.

The Tribunal has, however, taken the word 'pledged' in purely legal sense and has held that as money was pledged to the Election Commissioner it

was not in his absolute control. In my opinion the contention of Mr. Chntterji is sound and must prevail. The word 'pledged' appearing in the

challan after the words 'security deposit' has no doubt been used only in an ordinary sense ratker than as legal sense or the term. In construing the

word 'pledged' we must not overlook the fact that the words have not been used by a Legislature in an Act or statute but by a layman in a private

document and it will not be reasonable to infer that the word 'pledged' has been used in a purely legal sense.

A reference to the dictionary meaning of the word 'pledge' would show that in its ordinary sense it means 'give' or 'hand over' and if it is used in this

sense it cannot be said that it violates the provisions of Section 125 of the Act. As the ward pledged' appears after the words 'security deposit' it is

quite clear that it has been used in the sense that the security deposit has been handed over to the Election Commissioner in the election petitions

filed by the petitioners.

Mr. Pathak further contended that the provisions of Section 125 requiring that the deposit should be by way of security for costs were

mandatory and must be strictly complied with, as failure to fulfil these requirements would entail penalty u/s 98(3). He placed reliance on certain

decisions to show in what circumstances a statute can be construed to be mandatory, even though a part of it may be directory. It is not necessary

for me to consider these decisions, because I am of the opinion that Section 125 is mandatory in the sense that essential requirements must be

fulfilled. But having regard to the interpretation which I have given to the word 'showing' appearing in Section 125 of the Act, I have already held

that there was a sufficient compliance with the provisions of Section 125 even if the section was mandatory. Mr. Pathak, however, relied on a

Division Bench decision of the Patna High Court reported in Harihar Singh Vs. Singh Ganga Prasad and Others, . In that case the facts, however,

were quite different from the facts of the present case.

It appears from a perusal of that decision that the security deposit was made neither in favour of the Election Commissioner nor in favour of any of

the authorities as required by Section 117 of the Indian Act. Thus there was a complete non-compliance of that part of the section which required

that the deposit should be made in favour of a particular authority. Having regard to these special facts their Lordships of the Patna High Court

held that the deposit was invalid. Moreover, the question as to whether a part of Section 117 could be directory was not gone into in that decision

and the decision proceeded on the assumption that every portion of Section 117 was mandatory.

This view is, however, in direct conflict with the decision of the Supreme Court to which I have referred above. There are certain observations in

that case which go to show that if the deposit was not in favour of the Secretary to the Election Commission, the defect will not be cured. This

would appear from the following observations of their Lordships of the Patna High Court:

If the petitioner has not complied with the terms of Section 117 and if the challan does show on the face, of it that the deposit has been made in

favour of the Secretary to the Election Commission, the defect will not be cured by showing that subsequently the Treasury Officer has credited the

amount in his books in favour of the Secretary to the Election Commission, New Delhi. In our opinion, the provisions of Section 117 are

mandatory in character and if the provisions of that section are not complied with, the Election Tribunal is bound u/s 90(3) of that Act to dismiss

the election petition.

This view, however, has been overruled by the Supreme Court in the decision referred to above. It is well settled that if provisions of a particular

statute are mandatory they have got to be strictly complied, with and substantial compliance with the provisions is not curable. But in view of my

findings given above the question does not arise in this case. It is, therefore, not necessary to consider the various authorities which have been cited

on the principles governing interpretation of the mandatory provisions appearing in a statute.

I would now deal with the main contention of Mr. Pathak which has been the sheet anchor of his arguments. His contention is that even if the

deposit was valid and the Tribunal had committed an error of law, the present was not a case in which a writ of certiorari could be issued, unless it

is found that the error committed by the Tribunal was a palpable one or that there was a violation of the principles of natural justice.

Mr. Pathak has relied on several decisions to indicate the scope of interference in a proceeding for a writ of certiorari. Before I deal with the cases

cited by Mr. Pathak I would first of all deal with the case Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , which, in my opinion, is a

case directly in point on the question as to what are the powers of the High Court while dealing with a writ petition under Article 226 of the

Constitution of India and particularly in an election matter. On a careful consideration of the entire law on the subject their Lordships of the

Supreme Court observed as follows:

On these authorities, the following propositions may be taken as 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 'certiorari' acts in exercise of a supervisory and not appellate

jurisdiction.

One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This

is on the principle that a Court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the

Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were

to rehear the case on the evidence, and substitute its own findings in 'certiorari'. These propositions are well settled and are not in dispute.

From a perusal of this judgment, therefore, it is quite clear that this Court can issue writ of certiorari to quash an error of law apparent on the face

of the record. It is also clear that a certiorari will be issued when the Tribunal acts illegally in the exercise of its undoubted jurisdiction so as to

violate the principles of natural justice. Another principle that is clear from the decision of the Supreme Court is that the High Court will not

interfere in a case which entails review of certain findings of fact reached by the inferior Court.

In this particular case it is quite clear to me that the Tribunal in misinterpreting the challans as also the provisions of Section 125 of the Act

committed a clear error of law apparent on the face of the record in the exercise of its jurisdiction. It is also clear that by virtue of this error he

failed to exercise the jurisdiction which was vested in him by law, i.e. not hearing the cases on merits. In other words, the Tribunal deprived the

petitioners of a statutory right to declare the election to be void, because he took an erroneous view of law. In such circumstances, in my opinion, it

would be idle to contend that the High Court cannot grant any relief to the petitioners by way of a writ of certiorari. Mr. Pathak, however, placed

reliance on the following observations of the Supreme Court in the aforesaid case:

It may therefore be taken as settled that a writ of 'certiorari' could be issued to correct an error of law. But it is essential that it should be something

more than a mere error; it must be one which must be manifest on the face of the record."" I do not think that the observations quoted above help

the arguments of Mr. Pathak at all. Their Lordships of the Supreme Court laid stress not so much on the quality of the error as on the fact that the

error must be one which is manifest or apparent on the face of the record. Moreover on a perusal of the aforesaid decision of the Supreme Court I

find that it is on all fours with the facts of the present case. In the case before the Supreme Court the Tribunal had jurisdiction to reject or allow the

petition but he rejected the petition although he should not have rejected it.

In the present case the Tribunal rejected the petitions when he should not have rejected them. On principle therefore there is no difference in the

nature of the error committed by the inferior Tribunal. In the case before the Supreme Court also their Lordships did hold that although the

Tribunal had not committed an error of jurisdiction, yet as it had committed an error of law apparent on the face of the record their Lordships held

that the order was fit to be quashed by a writ of certiorari. Mr. Pathak tried to distinguish this case on the ground that it was based on special facts

of that case, but in my opinion, the distinction drawn by the learned Advocate is a distinction without any difference.

Mr. Pathak further relied upon an earlier decision of the Supreme Court in the case Ebrahim Aboobakar and Another Vs. Custodian General

of Evacuee Property, , where their Lordships of the Supreme Court have observed as follows:

It is plain that such a writ cannot be granted to quash the decision of an inferior Court within its jurisdiction on the ground that the decision is

wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it

or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior Court

might not have authority to enter on the inquiry or upon some part of it.

It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which

the Court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the Court has jurisdiction but

while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a Court

has jurisdiction to decide rightly as well as wrongly.

These observations were made in the context of the case before their Lordships. Their Lordships of the Supreme Court have, however, held

clearly that the error of jurisdiction may have arisen from the absence of some essential preliminary, or upon existence of some particular facts

collateral to the actual matter which the Court has to try. In the present case it is quite clear that the Tribunal has by taking erroneous view of the

law deprived the petitioners of a hearing on merits.

In doing so, he has clearly violated the principles of natural justice. I fail to understand how this case helps Mr. Pathak. Moreover, all the principles

governing the powers of the High Court in an application under article 226 have been clearly stated in the case of Kamath as mentioned above and

this case was also considered in that decision. ""Reliance was also placed on certain observations of the Supreme Court in the cases reported in

T.C. Basappa Vs. T. Nagappa and Another, , and Parry and Co. Ltd. Vs. Commercial Employees' Association, Madras, . But as these cases

have been considered by their Lordships of the Supreme Court in the later case of Kamath, which I have already dealt with, it is not necessary for

me to consider these decisions all over again.

Mr. Pathak further relied on a decision of the Bombay High Court in the case Batuk K. Vyas Vs. Surat Borough Municipality and Others, for

his contention that if two views are possible on a question of law, the order of a Tribunal cannot be interfered with. In this case their Lordships

came to a clear finding that there was no error of law apparent on the face of the record and the observations made thereafter were, more or less,

obiter and did not arise for the decision of that case. This will appear from the following observations made by their Lordships of the Bombay High

Court:

It is difficult to understand how this is an error of law apparent on the face of the record. Even assuming that there is force in the argument

advanced by Mr. Phadke, the mere fact that two views are possible on a question of law does not make the decision of a Tribunal with jurisdiction

bad on the ground that it has erred in law and the error is apparent on the face of the record.

This case was also considered by the Supreme Court in Kamath's case referred to above.

Mr. Pathak referred to certain decisions of the Allahabad High Court reported in Vishwa Mittra Vs. Dist. Judge, Jhansi and Others, and Sheo

Kumar and Another Vs. V.G. Oak and Others, . On a perusal of these decisions, however, I do not find that they lay down the principle that even

it a Tribunal has committed an error of law apparent on the face of the record the High Court should not interfere in proceedings for a writ of

certiorari,

Lastly, Mr. Pathak relied on the case Raman and Raman Ltd. Vs. The State of Madras and Another, , and particularly on the following

passage appearing in that case :

There may be tribunals, however, which, by virtue of legislation constituting them, have the powers to determine finally the preliminary facts on

which the further exercise of their jurisdiction depends. With respect to them, in such cases, their decision even if wrong on facts or law cannot be

corrected by a writ of certiorari. In cases where the facts in question are a part of the very issue which the interior tribunal has to enquire into, a

court will not issue a writ of certiorari, although the inferior tribunal may have arrived at an erroneous conclusion with regard to it.

On the basis of the aforesaid observations Mr. Pathak has contended that the Tribunal had jurisdiction to decide the question as to whether

Section 125 of the Act was complied with or not and as no appeal lay against this order even if the decision was wrong in law, this Court could not

quash the order of the Tribunal. On a close analysis of the decision of the Supreme Court I find that their Lordships were dealing with a statute

under which the order impugned was made specifically final.

There is no such provision in the present Act under which the order passed by the Tribunal of the nature he has passed in the present case is final.

In this connection Mr. Pathak drew our attention to Section 169 of the Act. This section, however, does not make the order final completely but

only says that if an order is passed in the exercise of the provisions of the Act it cannot be re-opened by a suit. But in view of my finding that the

order passed by the Tribunal was not in due exercise of the provisions of this Act it cannot be said that Section 169 would apply to a case like this.

Moreover, in the case before the Supreme Court the order made was purely an administrative or an executive order and the principles governing

interference with such orders would apply to a case where we are considering the merits of a judicial order. Thus the case cited by Mr. Pathak

does not apply to the facts of the present case and is of no assistance to him.

On the other hand, there are a number of decisions to the effect that where a Tribunal refuses to exercise jurisdiction due to an erroneous view

of law and the error committed by him is an error of law apparent on the face of the record, the High Court should interfere, as it has ample

jurisdiction to see that inferior Tribunals observe the law, in the course of exercise of their jurisdiction. This view has been taken by a Division

Bench of the Patna High Court in the case Sm. Kusum Kumari Devi v. Custodian of Evacuee Property, Bihar AIR 1854 Pat 238 (N), wherein

their Lordships of, the Patna High Court have observed as follows:

A writ of certiorari is a remedy of a very special character. The doctrine of certiorari is that the High Court exercises control over inferior tribunal

by issue of writ. The control is exercised by means of a power to quash the determination of the tribunal which on the face of it contravenes the

law. The scope of a writ of certiorari is very wide.

A writ of certiorari lies not merely when the tribunal acts in excess of jurisdiction but also when the tribunal commits an error of law apparent on

the face of the record; in other words, the High Court is able by virtue of the writ to see that the inferior tribunals keep within their jurisdiction and

also to see that the inferior tribunals observe the law in the course of exercise of that jurisdiction."" In that case their Lordships of the Patna High

Court relied on the principle stated by Lord Sumner in Rex v. Nat Bell Liquors Ltd. (1922) 2 AC 123 at p. 156 (O), and this case has been

referred to with approval in paragraph 22 of the judgment of the Supreme Court in the case reported in (S) Hari Vishnu Kamath Vs. Syed Ahmad

Ishaque and Others, , wherein Lord Sumner has observed as follows:

The supervision by certiorari goes to two points: one is the area of the inferior jurisdiction and the disqualifications and conditions of its exercise;

the other is the observance of the law in the course of its exercise.

This view was endorsed in a later case by Lord Goodword in Rex v. Northumberland Compensation Appeal Tribunal, 1951-1 KB 711 (P),

which was approved in appeal in Rex v. Northumberland Compensation Appeal Tribunal 1952-1 KB 338 (Q).

I would, therefore, find that the challans filed by the petitioners amounted to a sufficient compliance with the provisions of Section 125 of the

Jammu and Kashmir Representation of the People Act, 1957.

On a careful consideration of the arguments of the learned Counsel for the parties as also of the circumstances of this case, I hold that the

petitioners have been able to make out a case for interference by this Court. I would, further hold that the Tribunal committed an error of law

apparent on the face of the record in rejecting the election petitions of the petitioners and by virtue of such an error the petitioners have been

deprived of a valuable statutory right conferred upon them by the Jammu and Kashmir Representation of the People Act, i.e., to a hearing of the

cases on merits.

For the reasons given above I would allow all the applications, quash the orders of the Tribunal in each case and direct that the Tribunal must

now proceed with the cases before him according to law. In the peculiar circumstances of the case there would be no orders as to costs in any of

the petitions.

J.L. Kilam, J.

I agree to the judgment proposed by my learned brother Ali, J.