Dr. V.K. John and another vs G. Vasantha Pai and another

Rajamannar, C.J.—These two appeals are from the judgment of Rajagopala Aiyangar J. disposing of two writ petitions Nos. 719 and 723

of 1954. By the same judgment, the learned Judge disposed of two other writ petitions also; but we are not concerned with them. The two

petitions were filed under Art. 226 of the Constitution praying for the issue of a writ of certiorari calling for the records of the Election Tribunal,

Madras, in Election petition No. 28 of 1934, and the proceedings of the Tribunal in I. A. Nos. 7 and 8 of 1954 in said Election Petition, dated 1-

11-1954, and to quash the same.

There was a bye-election for two seats in the Madras Legislative Council from the Graduates'' Constituency. There were four candidates for the

two seats, namely, Dr. John, Dr. A. Srinivasan, Dr. M. Santhosham and Mr. G. Vasantha Pai. The election was by postal ballot. The date of the

poll was 8-4-1954. On 9-4-1954, the votes were scrutinised and counted, and Dr. John and Dr. Srinivasan were declared elected as having

polled the largest number of votes. The result of the election was published in the Fort St. George Gazette on 12-4-1954.

On 21-7-1954, Mr. G. Vasantha Pai filed an election petition, subsequently numbered as No. 28 of 1954, calling in question the said election. The

two returned candidates, as well as the third candidate, Dr. Santhosham, were impleaded as respondents 1 to 3. The Election Commissioner, New

Delhi, constituted an Election tribunal at Madras for the trial of the petition.

The petitioner prayed for an order (a) declaring the election to be wholly void, (b) declaring the election of both the returned candidates as void,

(c) giving a finding that the first respondent has been guilty of the corrupt practices specified in paragraphs 8, 9 (a) and 11, and the illegal practices

specified in paragraph 12 of the petition, and the second respondent has been guilty of the corrupt practices specified in paragraphs 8 and 11 of

the petition, and (d) for costs of the petition. The petition contained several allegations, which were directed against the first two respondents, Dr.

John and Dr. Srinivasan, individually, and also allegations and circumstances which would render the whole election void, as for example, that the

election was not a free election.

Dr. John and Dr. Srinivasan took out two applications I.A. Nos. 7 and 8 of 1954 respectively, inter alia, praying that the Tribunal may be pleased

to (1) direct the striking out of prayers (b) and (c) in paragraph 18 of the petition and (2) direct the striking out of paragraphs 5 to 7, the latter part

of paragraph 8, and paragraphs 9 to 16. The main grounds on which these applications were taken out were two :

(1) that under the Representation of the People Act, a petitioner in an election petition can claim only one of the reliefs specified in S. 84 of the Act

and therefore the petitioner in the present election petition was not entitled to claim both the reliefs, namely, that the whole election was void and

also that the election of the two returned candidates, respondents 1 and 2, should be set aside, and

(2) that the petition in so far as it prayed for the relief of having the election of the returned candidates set aside, was barred by time, as it had not

been filed within the period of limitation prescribed by rule 119 (a) of the rules framed under the Representation of the People Act.

The election tribunal found that neither ground was sustainable and rejected both the petitions. It is to quash the order of the election tribunal

dismissing these applications that W. Ps. Nos. 719 723 were filed. Rajagopala Aiyangar J. agreed with the Election Tribunal on both the points

and dismissed the writ petitions. Hence these two appeals.

Before us, the same points were again pressed. The first ground of attack against the election petition, namely, that the petitioner was not entitled

to claim more than one relief in his petition is founded on the terms of S. 84, Representation of the People Act. That section runs thus:

Relief that may be claimed by the petitioner:

A petitioner may claim any one of the following declarations :

(a) that the election of the returned candidate is void;

(b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected;

(c) that the election is wholly void.

In what circumstances each of these three reliefs may be claimed is set out in Ss. 100 and 101 of the Act. S. 100 (1) gives the grounds for

declaring the election to be wholly void, and sub-sec. (2) the grounds for declaring that the election of the returned candidate is void. S. 101 deals

with a case where a person who has filed an election petition has in addition to calling in question the election of the returned candidate, claims a

declaration that he himself or any other candidate has been duly elected. S. 98 was also relied on in this connection. It says:

At the conclusion of the trial of an election petition the Tribunal shall make an order:

(a) dismissing the election petition; or

(b) declaring the election of the returned candidate to be void; or

(c) declaring the election of the returned candidate to be void; and the petitioner or any other candidate to have been duly elected; or

(d) declaring the election to be wholly void.

The contention on behalf of the appellants before us, respondents 1 and 2 in the election petition, is that S. 84 read with S. 98 of the Act

precludes an election petitioner claiming more than one of the declarations (a), (b) and (c) in S. 84, and as the petition in this case prays both for

declarations (a) and (c) either the petition should be dismissed or the petitioner should be compelled to elect one or other of these two reliefs.

The Tribunal in their order observed that the petitioner would not state if be was claiming the reliefs cumulatively or alternatively and he persisted in

this attitude even at the hearing of arguments. They then proceeded to say:

We may state that there is no question under the Act of granting such reliefs cumulatively because S. 98 already referred to empowers the Tribunal

to pass one of the orders specified therein. Such reliefs cannot therefore be asked for cumulatively and we treat the relief sought in this petition only

as being prayed for in the alternative.

The learned Judge, Rajagopala Aiyangar J. agreed with the Tribunal that this was the proper method of approaching the problem, and it was for

the tribunal to decide eventually the relief which may be granted to the petitioner in the election petition. Before us, Mr. Vonkatasubramania Aiyar

for the respondent (election petitioner) conceded that the respondent will not be entitled to obtain both the reliefs having regard to the terms of S.

98 of the Act, and that though the petition did not expressly mention the two reliefs as alternative, they may be treated as such.

Apart from this concession we are of opinion that the petition is not liable to be dismissed on this ground. S. 81 of the Act provides that an election

petition calling in question any election may be presented on one or more grounds specified in sub-sec. (1) and (2) of S. 100 and S. 101. Sub-sec.

(1) relates to relief (c), sub-sec. (2) to relief (a) and S. 101 to relief (b) in S. 84 of the Act.

S. 81 permits an election petition on one or more of the grounds specified in these several provisions. There is nothing, therefore, to prevent an

election petitioner from alleging in the same petition grounds, some of which would fall within sub-sec. (1) and others under sub-sec. (2) of S. 100.

If so, it follows that the election petition may pray for more than one relief. What, however, is clear is that the Tribunal can actually grant only one

of these two reliefs or dismiss the entire petition under S, 98 of the Act.

The language, namely, ""A petitioner may claim any one of the following declarations""; is not inconsistent with the petitioner claiming any one of the

three alternatively. That this must be so will become evident by reference to a case where the petitioner not only seeks to set aside the election of

the returned candidates but claims that he should be declared duly elected. In such a case, cannot the petitioner claim relief (b) in the first instance,

and in the alternative relief (a)? Obviously he can.

The petitioner can claim that even if he cannot be declared duly elected the election of the returned candidate may be declared void. It would be

for the tribunal to give the appropriate relief. Otherwise, a most absurd result will follow. If the argument on behalf of the appellants were to be

accepted, in such a case the petitioner will be compelled to choose either relief (a) or relief (b).

Suppose he chooses relief (b), namely, that the election of the returned candidate is void and that the himself or any other candidate has been duly

elected and the Election Tribunal find that there are grounds to declare the election of the returned candidate void, but the Tribunal do not think

that the petitioner is entitled to be declared duly elected. In such a case, what is to happen? Should the petition be dismissed? In our opinion, there

can only be one answer, namely, that the alternative and lesser relief, namely, a declaration that the election of the returned candidate is void, can

certainly be granted.

It may be pointed out that S. 85 lays down when an election petition is liable to be dismissed by the Election Commission, namely, if the

provisions of Ss. 81, 83 or 117 are not complied with. S. 84 is not among the sections mentioned. The -decisions in - ''Audesh Pratap Singh v.

Brij Narain'', AIR 1954 All-245 (A), and - ''Mahadeo v. Jwala-prasad'', AIR 1954 Nag 26 (B), support the view that we are taking; and though

the point did not fall to be considered directly, the decision of the Supreme Court in - Durga Shankar Mehta Vs. Thakur Raghuraj Singh and

Others, lends support to the contention that an election petition can seek alternative reliefs. We agree with Rajagopala Aiyangar J. that there is no

substance in this ground.

The second ground depends entirely on a construction of R. 119 of the rules made under the Representation of the People Act. Section 81 (1) of

the Act provides that an election petition may be filed within such time but not earlier than the date of publication of the name or names of the

returned candidate or candidates at such election tinder S. 67, as may be prescribed. It is in pursuance of this provision that R. 119 was made. It is

as follows :

Time within which an election petition shall be presented

An election petition calling in question an election may-

(a) in the case where such petition is against a returned candidate, be presented under S. 81 at any time after the date of publication of the name of

such candidate under S. 67 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; and

(b) in the case where there arc more returned candidates than one at an election and the election petition calls in question the election as a whole,

be presented under the said section 81 at any time after the date of publication of the names of all the returned candidates under S. 67 but not late

than 60 days from the expiration of the time specified in sub-rule (1) of rule 112 for the lodging of the return of election expenses of those

candidates with the Returning Officer.

It is not necessary to refer to Rr. 112 and 113 mentioned in clauses (a) and (b) of the above rule, as it is common ground that the present

election petition is beyond the time specified in clause (a) and within the time specified in clause (b). The question is which of the two clauses

applies to the present petition. Every one has agreed, the Tribunal and Rajagopala Aiyangar J. as well as counsel on both sides, that the language

of the rule gives rise to several difficulties. One thing is obvious; the two clauses of R. 119 must be taken to provide for any election petition that

may be presented whatever the relief or reliefs prayed for might be.

There is no direct decision dealing with this rule, which gives us any assistance. Counsel expended, therefore, all their ingenuity in persuading us to

construe the two clauses of the rule to suit their respective contentions. The construction of the respondent, election petitioner, which was accepted

by the Tribunal, and by Rajagopala Aiyangar J. is this: Where the petition calls in question the election of more returned candidates than one, it

does not fall within clause (a), and clause (b) would apply, when there are more returned candidates than one and the election petition calls in

question the election of each of the returned candidates, whatever be the grounds.

We are free to confess that R. 119 is not easy to construe, as it will be difficult to apply either clause (a) or (b) to certain election petitions.

Giving the question our deep consideration, we have arrived at the following construction of the two clauses, taking into account the implication of

the two different periods in the two clauses. Clause (a) would apply to every petition, in so far as it is directed against a returned candidate. If there

is only one returned candidate, clause (a) would apply, whether the relief prayed for is that his election should be set aside or the election should as

a whole be set aside because the result comes to the same thing, though the grounds may be different.

When there are more returned candidates than one, an election petition may pray for a declaration that the election of any one of them to be void

Even then, clause (a) would apply. It would equally, in our opinion, apply when the election of more than one candidate is impugned individually. In

such a case, though an election petition may comprise reliefs directed against several candidates, for the purpose of limitation such a petition should

be deemed to comprise several petitions each directed against one of the candidates returned and time must be calculated under clause (a) with

reference to each of them.

We have come to this definite opinion because under clause (a) the material date for computing time may differ with reference to each of the

returned candidates, because the material date is the date of publication of the notice in the official gazette under R. 113, that the return of election

expenses of such candidate and declaration made in respect thereof have been lodged with the Returning Officer. The date may not be the same

for all returned candidates. In such a case, obviously, it is an consonance with the principles of equity and justice that the time within which an

election petition could be presented against the election of a particular candidate should he connected with the date relating to the return of his

election expenses.

Clause of (b) of R. 119 would, in our opinion, apply only to a ease where there are more returned candidates than one and the election petition

prays that the election should be declared to be wholly void. With due respect to Rajagopala Aiyangar J. we think that the words ""Calls in question

the election as a whole"" must be construed with reference to the provisions of S. 84(c) and S. 100(1).

If what was intended was that clause (b) should apply to a case where the election petition calls in question the election of each of several returned

candidates, then appropriate language could have been used, such as for example ""in the ease where there are more returned candidates than one

at an election and the election petition calls in question the election of all of them."" We think that the expression ""as a whole"" should be understood

in the context with reference to the specific relief which is allowed to be claimed namely, a declaration that the election is wholly void.

In our opinion, this is the only reasonable construction of R. 119, which avoids many anomalies which would arise on any other construction. For

instance, in a case where a petition is filed to declare the election of one of several candidates to be void, if a petitioner finds that it will be out of

time under clause (a) all that he has got to do is to attack the election of the other candidates as well, and the petition would be in time. Or to give

an extreme illustration, if according to R. 119 (a), the time has elapsed within which a petition could be presented against every one of the returned

candidates individually - as for instance where several petitions are filed, each of them impugning the election of one of the candidates, nevertheless

if in a single petition the election of all the candidates is sought to be declared void, then the period of limitation would be that provided in clause

(b), and the petition might be in time.

In our opinion, such a result could not have been contemplated. The division of R. 119 into (a) and (b) provides for several contingencies, namely,

(1) where there is only one returned candidate, (2) where then: are more returned candidates than one, (3) when the election of a particular

candidate is challenged, and (4) when the entire election is sought to be declared wholly void.

It is only by adopting the construction which we have indicated above, that the two clauses can cover all the contingencies. We think it is a sound

principle to deal with a single petition in which the election of more candidates than one is individually impeached as really comprising several

petitions against each of the candidates.

Just as a suit brought against several defendants may be in time against some of the defendants but out of time against others, or a suit brought for

several reliefs may be barred by time in respect of some of the reliefs and be in time in respect of others, an election petition may be in time in

respect of some of the respondents but out of time as against others, and equally it may be in time in respect of one relief but barred in respect of

another relief.

The position then, according to our above construction, is that the petition against both respondents 1 and 2. so far as relief (b) in paragraph 18 of

the petition is concerned, is out of time under Rule 119(a). The petition, in so far as it seeks a declaration that the election is wholly void, is in time.

The next question is, whether because we have come to a conclusion different from the Tribunal''s on the question of limitation, we should

interfere. Mr. Venkatsubramania Aiyar, learned counsel for the respondent, raised the objection that even assuming that the Election Tribunal erred

in law on a construction of R. 119, it would only amount to a wrong decision, and this court should not issue a writ of certiorari to quash the order

of the Tribunal on the ground that it embodies a wrong decision in law.

He drew our attention to the latest pronouncement of the Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , in which

there is an exhaustive consideration of the powers of the High Court under Art. 226, and in particular, to the following passage;

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.

Reference may also be made to the prior decision of the Supreme Court in T.C. Basappa Vs. T. Nagappa and Another, in which the law was thus

stated:

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. In other words, it is a patent error which can be

corrected by ''certiorari'' but not a mere wrong decision.

On the other hand. Mr. M. K. Nambiar for the appellants relied upon a statement of the law contained in the decision of this Court in -

Krishnaswami Ayyer v. Mohanlal'' Binjani'', AIR 1949 Mad 535 (F), and the decision of the English Court of Appeal in - ''R. v. Northumberland

Compensation Appeal Tribunal'', 1952 1 All ER 122 (G). In our opinion, the proper order to be passed by us under Art. 226 in this case is not an

order directing the issue of a writ of certiorari but really an order in the nature of a writ of prohibition. The result of our construction of R. 119 is

that the election petition is not maintainable against the respondents 1 and 2 so far as relief (b) in paragraph 18 is concerned. The election tribunal

will, therefore, have no jurisdiction to proceed with the trial of the petition in respect of this relief.

The fact that alter listening to the parties they overruled the objection as to their jurisdiction in this behalf does not make any difference. If, as we

have now found the Tribunal was not competent to entertain the petition so far as that relief is concerned, the appropriate writ will, therefore, be a

writ of prohibition prohibiting the Election Tribunal from proceeding with the trial of the election petition, so far as relief (b) in paragraph 18 of the

petition is concerned. We accordingly direct such a writ of prohibition to issue to the Election. Tribunal.

The appeals are, otherwise, dismissed. No order as to costs.