Hamirkha Alarkha Hasan vs Returning Officer and Others

Shah, C.J.—These are two petitions for appropriate writs under Article 226 of the Constitution and for the exercise of the High Court''s

powers under Article 227 of the Constitution. The Petitioner in Civil Miscellaneous Application No. 13 of 1953 and opponents Nos. 2 to 11

stood for election to the Saurashtra Legislative Assembly in 1952 from the Jamnagar City East Constituency. Opponent No. 2 Thakar Gokaldas

Hirjee had filed two nomination papers in the first of which he declared one Ranchhodji Meghji as his election agent and in the second he declared

himself as his election agent. His nomination was rejected by the Returning Officer on the ground that he had appointed more than one election

agent and had thereby contravened Sections 33, 39 and Section 40 of the Representation of the People Act, 1951. At the election that took

subsequently the-Petitioner Hamirkha Alarkha was declared elected by a large majority of votes: In Civil Miscellaneous Application No. 14 of

1953, the Petitioner Fulchand Purshottam and opponents Nos. 2 to 9 stood for election from the Jamnagar City West Constituency but the

nomination of opponent No. 2 Trambaklal Manishanker was rejected by the Returning Officer on the same grounds, the only difference in his case

being that he had revoked the appointment of his election agent, but that was done after filing the second nomination paper, so that at the time

when the second nomination paper was filed, he had appointed more than one election agent. At the election, the Petitioner Fulchand was declared

elected by a very large majority of votes. Gokaldas Hirjee and Trambaklal Manishanker having filed election petitions calling into question the

elections, the Election Tribunal held that the nomination of both these candidates had been improperly rejected by the Returning Officer and the

rejection had materially affected the result of the election. The Tribunal therefore declared the election from both the constituencies to be wholly

void.

29th March 1953 was thereafter fixed as the date for a fresh election and the Returning Officer having invited nominations from the abovesaid

constituencies on or before 16-12-1953 the Petitioners filed the present petitions on grounds, inter alia, that the decision of the Tribunal that the

nomination of opponent No. 2 in each of the petitions had been wrongly rejected, was in direct contravention of Sections 33, 36 and 40 of the

Representation of the People Act and the Rules made there under and was on that account perverse, and that the Tribunal had thereby assumed

jurisdiction to declare the election void, a Jurisdiction which on the facts and in law it did not have, and further that there was an error on the face

of the record inasmuch as the Tribunal had disregarded the specific provisions of the Representation of the People Act and the Rules made

thereunder and its order was grossly erroneous for those reasons.

The petitions are opposed by the Returning Officer and by opponent No. 2 in each of the petitions, and their principal contentions are, (1) that

the High Court has no jurisdiction to entertain the petition inasmuch as under Article 329(b) of the Constitution and under the Representation of the

People Act, the election Tribunal is constituted the sole forum for the trial of all matters relating to an election, that u/s 105 of the Representation of

the People Act the order of the Tribunal is final and. conclusive and that the Civil Courts jurisdiction was barred u/s 170 of the said Act, and (2)

that the Election Tribunal having acted by various of the powers vested in it and within its jurisdiction, and having had full authority to decide the

question raised before it the High Court had no powers to interfere with the decision even if the decision might be erroneous. They denied that the

order of the Election Tribunal was perverse or that there was an error on the face of the record.

I will deal first with the objection against the High Court''s jurisdiction. The contention of the learned Advocate General is that under Article

329(b) no ''election'' can be called in question except by an election Petition presented to the Election Tribunal appointed under the Representation

of the People Act, and that by reason of the opening words of the Article, viz., ""notwithstanding anything in this constitution,"" the interference by

Courts including the High Court in electoral matters is not permitted. It is argued that the matter involved in the present petitions relates to the

validity of the Returning Officer''s order rejecting the nomination of opponent No. 2 and therefore relates to an election as contemplated by Article

329(b). It is urged that the expression ''election'' in the said Article embraces the entire process beginning from the notification inviting nominations

and ending with the declaration of the candidates as duly elected as a result of the voting, and that it also includes all subsequent proceedings

arising out of the holding of an election. It is contended therefore that the question raised in these petitions cannot be agitated before any forum

except an Election Tribunal, and that the High Court''s jurisdiction to interfere in exercise of its powers under Articles 226 and 227 of the

Constitution is barred. Mr. Chimanlal Shah for the Petitioners concedes that an ''election'' meaning thereby all that relates to the process of election

is outside the purview of the High Court''s jurisdiction by reason of Article 329(b), but his basic objection is that the proceedings before an

Election Tribunal and at any rate the verdict of the Tribunal are not part of the process of election and that the High Court''s powers under Articles

226 and 227 are not excluded. Now the process leading upto an election and that relating to its progress and the final declaration of the results is

no doubt an election within the meaning of that expression under Article 329(b). The question of tile High Court''s jurisdiction to interfere with the

rejection of a nomination paper of a candidate by the Returning'' Officer has been the subject of several decisions and it has been consistently held

that it being a matter relating to an election the High Court has no jurisdiction to interfere by a writ under Article 226.

In N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, it was held that the word ''election'' has been used in part 15

of the constitution in the wide sense, that is to say to connote the entire procedure to be gone through to return a candidate to the Legislature. The

we- of the expression ""conduct of elections"" in Article 324 specifically points to the wide meaning, and that meaning can also be read consistently

into the other provisions which occur, in Part 15 including Article 329(b). The term ""election"" may be taken to embrace the whole procedure which

consists of several stages and embraces many steps whereby an elected member is returned. Dealing with an argument that since the

Representation of the People Act was enacted under Article 327 subject to the provisions of the Constitution, it cannot bar the jurisdiction of the

High Court to issue writs under Article 226, their Lordships held that this contention was completely shut out by reading the Act along with Article

329(b), and that the opening words ""notwithstanding anything in this Constitution"" were quite apt to exclude the Jurisdiction of the High Court to

deal with any matter which may arise while the elections were in progress. In their Lordships'' view, Article 329 (b) must be read as complimentary

to Clause (a) of that Article. Clause (a) bars the jurisdiction of the Courts with regard to such law as may be made under Articles 327 and 328

relating to the delimitation of constituencies or the allotment of the seats to such constituencies. Part 15 of the Constitution is a code by itself, i.e., it

creates rights and provides for their enforcement by a special tribunal to the exclusion of all Courts including the High Court and makes all the parts

of the election process the subject-matter of contest before the Election Tribunal.

In their Lordships'' opinion, the more reasonable view is that'' Article 329 covers all ""electoral matters."" Rejection of a nomination paper by a

Returning Officer was a part of that process and the Supreme Court therefore held that any dispute relating to it could not be made the subject

matter of a contest before the High Court. Their Lordships were of the view that having regard to the important functions which the legislature have

to perform in democratic countries, they have always recognised to be a matter of first importance that elections should be concluded as early as

possible according to time-schedule and all controversial matters and fill disputes arising out of elections should be postponed till after the elections

-f were over so that the election proceedings may not '' be unduly retarded or protracted. The scheme of the election law therefore is that no

significance should be attached to anything which did not affect the election, and if any irregularities were, committed while the election was in

progress and they belonged to the category or class which, under the law by which the elections are governed, would have the effect of vitiating the

election and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition

and not be made the subject of a dispute before any Court while the election is in progress. Strictly speaking, it is the sole right of the Legislature to

examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a

special tribunal an entirely new and unknown jurisdiction that special jurisdiction should be exercised in accordance with the law which creates it.

In Shankar Nanasaheb Karpe Vs. Returning Officer, Kolaba District and Another, , the Bombay High Court has likewise held that the High

Court has no jurisdiction to issue a writ under Article 226 of the Constitution, against an order of a Returning Officer rejecting a nomination paper

of a candidate. Dealing with the expression ''election'', the learned Chief Justice held that that term is not merely the ultimate decision or the ultimate

result, and that ''election'' is every stage from the time the notification is issued till the result is declared and even perhaps if there is an election

petition, till the decision of the Election Tribunal, and that the only way in which any matter relating to or in connection with an election can be

called in question is by an election petition to be presented to the authority provided for by the law, viz., the Election Tribunal. See also - ''In re Dr.

John Mathai AIR 1952 Trav-C. 1 (C); ''Shanker Rao v. State of Madhya Bharat'' AIR Madh-B. 97 (F.B.)(D), where the relevant observations

are that an election commences when a nomination paper of a candidate is presented to the Returning Officer and ends when the election officer

declares the result of the election; and - ''Nrisinha Kumar v. Returning Officer AIR Cal 98 (E).

This legal position is not demurred to by Mr. Chimanlal Shah, but his contention is that the election is over as soon as the results are declared by

the Returning Officer and that the subsequent proceedings before a Tribunal and the conduct of those proceedings by the Tribunal are not part of

the election. What the Petitioners call into question are the proceedings before the Election Tribunal and the Tribunal''s verdict and these, according

to Mr. Shah, are not part of an election. There is substance in this contention. The term ''election'' embraces and extends to the stage the result of

the election is declared by the Returning Officer and what follows thereafter by way of an election petition to the Tribunal in respect of matters

relating to or in connection with the election are not part of the election, and, with respect, the observations of Chagla C.J. in - Shankar Nanasaheb

Karpe Vs. Returning Officer, Kolaba District and Another, '' viz., that election may cover the stage of an election petition and the decision of the

Election Tribunal thereon are perhaps a little too wide. But even if the election petition to the Tribunal and the Tribunal''s decision were to be taken

as forming a stage in the election or part of the process of election, that stage is over and what the Petitioners now dispute is the verdict of the

Tribunal, so far as I can see,, the whole process of ''election'' as that expression is used in Article 329(b) terminates at the results and it does not

embrace anything that occurs after the results are declared. Therefore what transpires subsequently is by no means part of the election and Article

329(b) will not bar the High Court''s jurisdiction to issue a writ in an appropriate case under Article 226 of the Constitution or to interfere in the

exercise of its powers of superintendence under Article 227 of the Constitution.

If as the learned Advocate General contends the proceedings before the Tribunal and its decision were part of the ''election'', and on that account

the High Court''s jurisdiction becomes barred, the party will not be left with any remedy for instance in a case where the Election Tribunal either

assumes jurisdiction which it has not or fails to exercise jurisdiction which it has or even in cases where there may be an apparent error on the face

of the record, nor again where the Tribunal acts capriciously or mala fide, a situation which surely could not have been contemplated by the

Constitution. I may refer in this connection to the observations of Chagla C.J. in - ''Shanker''s case (B)'' referred to above. Learned Counsel for

the Petitioner of that case pointed out that in the High Court''s view of the interpretation of Article 329(b) even if the Tribunal were to act without

jurisdiction or were to assume jurisdiction which it does not possess, the High Court would have no right to interfere. Dealing with the point the

learned Chief Justice said:

That is not our interpretation of Article 329 (b). All that we lay down is that to the extent that the merits of an election matter are concerned our

powers have been taken away but our powers have not been taken'' away to compel a tribunal which is set up to decide those matters acting with

jurisdiction and not in excess of the powers conferred upon it by statute.

In ''Ponnuswami''s case (A)'' the Supreme Court reserved its opinion saying the question as to what the powers of the High Court under Articles

226 and 227 and of the Supreme Court under Article 136 of the, Constitution may be, is one that will have to be decided on a proper occasion. In

- ''Shanker Rao v. State of Madhya Bharat'' (D) (Sic the High Court?) did not express any opinion on the question and said that the question may

have to be decided at the proper time when it comes before the Court.

It is u/s 105, Representation of the People Act, that every order of the Tribunal under the Act is final and conclusive, and u/s 170 the jurisdiction

of the Civil Courts is barred as to questions relating to the legality of any action taken or of any decision given by the Returning Officer or by any

other person appointed under this Act in connection with an election. The said Act has been enacted by the Parliament in exercise of its powers

under Article 327 of the Constitution and the law which the Parliament is to make under the said Article is subject to the provisions of the

Constitution. The provisions of the Representation of the People Act are thus subject to the provisions of the Constitution and. they do not

override the powers of the High Court under Articles 226 and 227. This is made clear by a comparisoft with the opening words of Article 329

which are ""notwithstanding anything contained in this Constitution"" so that if the matter falls within the scope of Article 329(b) the High Court''s

powers under Articles 225 and 227 are ousted, but they will not be ousted by reason of anything contained in an Act of the Parliament enacted

under Article 327. This question was incidentally considered in - AIR 1952 M P. 97 (FB)(D), where the view taken was that Sections 105 and

170 of the Representation of the People Act 1951, or any other provision of that. Act cannot by themselves in any way affect the jurisdiction of the

High Court to Issue writs under Article 226 of the Constitution. The High Court''s jurisdiction was taken away not by the Representation of the

People Act but by Article 329 itself.

Therefore, if the matter which is the subject of the present petitions does not fall within the term ''election'' in Article 329(b) then the High Court''s

jurisdiction to entertain the petitions is not barred by anything contained in the Representation of the People Act. By no stretch of reasoning can it

be said that the decision of an Election Tribunal is part of the election or is an election matter. The purpose of the petitions is to seek the

interference of the High Court on the ground that in holding that the Returning Officer had improperly rejected the nomination of opponent No. 2

the Election Tribunal had assumed a certain jurisdiction which did not really arise and that there was an apparent error on the face of the record.

The question whether the Returning Officer was justified in rejecting the nomination of opponent No. 2 no doubt arises, but it does not (sic)

incidentally and is not the main ground of the petitions. Whether the Petitioners succeed in showing that the Election Tribunal has assumed a

jurisdiction which it did not possess or whether there is an apparent error on the face of the record is Anr. matter. If the grounds are not made out

the petitions are liable to fail, but the High Court will have jurisdiction to interfere on these or any other sufficient grounds. That jurisdiction is not

taken away simply because a question arises incidentally as to the validity or otherwise of the nomination papers filed by opponent No. 2. What is

disputed in these petitions is the verdict of the Election Tribunal and that is a matter falling outside the scope of ''election'' as contemplated by

Article 329(b). This preliminary objection urged by the learned Advocate-General is therefore unsustainable and must be rejected.

Now the Petitioner''s contention is that although u/s 33(7), Representation of the People Act, it is open to a candidate to file more than one

nomination paper for election in the same constituency, by reason of Section 40 the candidate is required to appoint only one election agent, either

himself or some one other person, whatever may be the number of the nomination papers and that he cannot appoint more than one election agent.

u/s 33(1) the candidate is to deliver to the Returning Officer a nomination paper or nomination papers completed in the prescribed form and under

Sub-section (3) every nomination paper delivered under Sub-section (1) is to be accompanied by a declaration in writing subscribed by the

candidate that he has appointed as his election agent for the election either himself or Anr. person. The Petitioners contend that the election agent

thus appointed is to be one person only and not more than one and he is to be the same person in all the nomination papers. u/s 36(2) the

Returning Officer shall (examine the nomination papers, and he may refuse any nomination on one of the grounds contained in Clauses (a) to (e) of

the Sub-section, one of these, Clause (d), being that there has been any failure to comply with any of the provisions of Section 33 or Section 34.

The nomination papers in this case were rejected by the Returning Officer on the ground that there was a failure to comply with the provisions of

Section 33 inasmuch as more than one election agent had been nominated by the present Petitioners. The Tribunal has accepted the view, and in

our opinion rightly so, that a candidate cannot appoint more than, one election agent and whatever may be the number of the nomination papers

one and the same person has to be appointed as an election agent in all of them. The Tribunal has further held that the appointment of more than

one election agent does not invalidate all the nomination papers and, in doing so it has duly considered the provisions of Sub-sections (1) and (3)

of Section 33 as also of the foot-note appended to the form of the nomination paper prescribed under Rule 4 of the Rules framed under the Act.

The form is in Schedule II at p. 70 of the Rules and the foot-note relating to the appointment of the election agent says:

Only one election agent is to be appointed by a candidate. If more than one nomination paper is delivered by or on behalf of a candidate for

election in the same constituency, the name of the election agent so appointed, whether such agent is the candidate himself or any other person,

shall be specified in each of the nomination paper.

The Tribunal has accepted the position that only one election agent is to be appointed; all the same it has taken the view that there is nothing in

these sections or in the Rule or in the foot-note to say that the appointment of more than one election agent will invalidate all the nomination papers.

In the Tribunal''s opinion the first nomination paper filed by the candidate in each case was in order, it being filed in the prescribed form, and that

the second nomination paper in which a different election agent had been declared was invalid. The Tribunal has come to this conclusion on general

principles of law regarding principals and agents and the gist of its reasoning is that on the candidate appointing a particular Individual as his

election agent, he has exhausted his right under the statute and any further appointment of such other person as his agent would be in excess of the

statutory right and would therefore be inoperative and void. Consequently when opponent No. 2 in Application 13 of 1953 appointed Ranchhodji

as his agent in the first nomination paper, his right to appoint an election agent u/s 40 was exhausted and he had no further right to appoint any

other person as his election agent before revoking the appointment first made.

In the Tribunal''s opinion, the appointment of an election agent made in the second nomination paper was void and of no effect whatever with the

result that the second nomination paper did not contain any declaration about the duly appointed agent. However, according to the Tribunal, this

did not affect the validity of the declaration regarding the appointment of the election agent in the first nomination paper and the first was therefore a

valid nomination paper, and the Returning Officer was not1 right in refusing the opponent No. 2''s nomination. The facts in the other petition are

slightly different, but the same principle has been applied by the Tribunal in reaching the con elusion that the nomination of opponent No. 2 of that

case was wrongly refused by the Returning Officer. The Tribunal has relied upon the decision in ''the Benares and Mirzapur pistricts Mohammadan

Rural Constituency 1937 reported in Sen and Poddar''s Election Cases at p. 154,'' and has also referred to with approval the order of the Election

Tribunal constituted to hear a petition filed by a candidate from the Borsad Constituency for election to the Bombay Legislative Assembly.

Mr. Chimanlal Shah has urged that the decision of the Election Tribunal in the present case- was altogether"" wrong and he has even

characterized it as perverse. The contention is that once the Tribunal had to hold that one and the same person y has to be appointed as an election

agent despite the number of nomination papers, the Tribunal had to hold that the provisions of Section 33(3) read with Section 40 had been

contravened and that the nomination of the candidate was liable to be refused u/s 36(2)(d). It is urged that that was the only natural corollary of the

view that only one election agent could be appointed, and that once that requirement was not complied with, it must follow as an inevitable

consequence that all nomination papers were invalid and that the nomination of the candidate was liable to be refused. He seeks to derive support

for this view from ''A Hand Book for Candidates issued by the Election Commission India'' in Chapter II whereof, dealing with nominations it has

been stated in the note to Clause (9) of the Chapter (at page 10) that the name of the same person should be mentioned as election agent in each

of the nomination papers, that the candidate cannot have different election agents in different nomination papers filed by him and that violation of

this rule may result in rejection of all his nomination papers. The Election Tribunal has taken a note of this note, and has treated it as not

authoritative and not binding.

Mr. Chimanlal Shah has also brought to our notice an order of the Election Tribunal of the State of Ajmer in Election Petition No. 242 of 1952

printed at page 1055 of the Gazette of India Extraordinary, where the Tribunal has held that the appointment of more than one person as an

election agent in different nomination papers may result in the rejection of all the nomination papers and that the Returning Officer''s order rejecting

all the nomination papers on that ground was valid. We do not consider it necessary to determine in these petitions which of the two conflicting''

views is correct, though speaking for ourselves we are not inclined to accept the argument based on the theory of the exhaustion of the candidate''s

right to appoint an election agent on his once exercising that right by appointing a particular individual as his agent. Section 33(7) of the

Representation of the People Act permits a candidate to file more than one nomination paper, and if that is so, the right to appoint an election agent

in each of the nomination papers is implicit. No question of the exhaustion of that right can therefore arise and the only factor that circumscribes the

right is that the election agent so appointed should be the same person in all the nomination papers. But whatever that might be, the Election

Tribunal had the jurisdiction to decide whether the nomination paper of opponent No. 2 had been validly rejected or otherwise and in fact it was

the only body which could decide that question. There is therefore no question of the assumption of the jurisdiction which it had not; on the

contrary that jurisdiction was vested in the Tribunal by the very provisions of the Act. u/s 100(c) of the Act, if the Tribunal is of the opinion that the

result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election

to be wholly void.

The jurisdiction was in the Tribunal and the Tribunal was constituted for the purpose of exercising that jurisdiction. It was open to the Tribunal to

construe Sections 33, 36 and 40 of the Act as also the foot-note to the form of the nomination paper in Schedule II in the manner that seemed to it

to be right, and because the Tribunal''s, view may happen to be not correct, assuming that it was so, it will not mean that the Tribunal had

committed any flagrant violation of the law or that its finding was perverse. The finding may be erroneous but the Tribunal had the jurisdiction to

decide rightly as well as wrongly. Two views were possible on the question of law which the Tribunal was called upon to decide and it was open

to the Tribunal to4 take one view in preference to the other. The view urged for on behalf of the Petitioners was not the only or the inevitable view,

and it is wrong, on that footing, to urge that after having held that only one election agent could be appointed, it was not open to the Tribunal to

hold that the first nomination paper was valid and that in doing so it assumed a jurisdiction which it did not have. The argument is a contradiction in

terms and at the highest it amounts to saying that the Tribunal''s Order was wrong in law. But as I said two views were possible and the mere fact

that two views are possible on a question of law does not make the decision of the Tribunal with jurisdiction bad on the ground that it has erred in

law.

This question has been considered by the Supreme Court in Parry and Co. Ltd. Vs. Commercial Employees'' Association, Madras, . There a writ

was sought from the Madras High Court against a decision of the Labour Commissioner, and the High Court having interfered by a writ the

Supreme Court observed as follows:

The Commissioner was certainly bound to decide the questions and he did decide them. At the worst, he may have come to an erroneous

conclusion, but the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Labour Commissioner to decide and it does

not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction. The records of the case do not disclose any error

apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the

principles of natural justice. Thus there was absolutely no ground here which would justify a superior Court in issuing a writ of ''certiorari'' for

removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court

has done really is to exercise the powers of an appellate Court and correct what it considered to be an error in the decision of the Labour

Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter

which he was bound to decide and in such cases a ''mandamus'' might legitimately issue commanding the authority to determine questions which it

left undecided; vide Board of Education v. Rice 1911 A.C. 179 (G), but no ''certiorari'' is available to quash a decision passed with jurisdiction by

an inferior tribunal on the mere ground that such decision is erroneous.

In Veerappa Pillai Vs. Raman and Raman Ltd. and Others, , dealing with the am bit and scope of the High Court''s jurisdiction in interfering

with the orders of an inferior tribunal, the Supreme Court has held:

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 subordinate

tribunals or bodies or officers act wholly without jurisdiction, or in excess 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 oh the face of the record, and such act, omission, error, or excess has resulted

in manifest injustice. However extensive the jurisdiction may be, 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 decisions impugned and decide what is the proper view to be taken or the order to be made.

Again in Ebrahim Aboobakar and Another Vs. Custodian General of Evacuee Property, , their Lordships have held that a writ of certiorari

cannot be granted to quash the decision of an inferior Court within its jurisdiction on the ground that the decision is wrong. 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. 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, See also - Mohsinali

Mahomedali and Others Vs. The State of Bombay, .

The question of the power of superintendence of the High Court under Article 227 has been considered in Jagannath v. Mt. Puniya AIR 1952

MP. 51 (K). After a review of the relevant decisions on the subject, it was held that the word ''superintendence'' in Article 227, includes

administrative as well as judicial superintendence. This view was also taken by our own High Court in - ''Bavalal v. Jivanlal'' AIR 1951 Sau. 43 ,

(L), but it was there pointed out that the fact that the powers of superintendence included interference in judicial matters as well did not mean that

the High Court should invoke these powers in every case where the Court finds some error of fact or law in the proceedings of the lower Courts

and tribunals, and that if this was done the limitation placed upon a Court of Second appeal u/s 100, Code of Civil Procedure, and a Court of

revision u/s 115, Code of Civil Procedure. would become nugatory. The Madhya Bharat High Court has held that the power of superintendence

under Article 227 is not restricted to cases of non-exercise or illegal exercise of jurisdiction but extends also to cases where there has been an

obvious miscarriage of justice because a Court or a tribunal has approached the matter entrusted to it in an arbitrary or despotic manner and

against all rules of natural justice. At the same time it has held that the powers cannot be exercised to disturb a decision of a Court or a tribunal

merely because it has misconceived a point of law or come to a wrong decision of the facts. The opinion of Rankin C.J. in - Manmatha Nath

Biswas Vs. Emperor, on the power of superintendence which the Madhya Bharat High Court has followed is expressed in the following terms:

Superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence but is a term having a legal force and signification.

The general superintendence which this Court has over all jurisdiction subject to appeal is a duty to keep them within the bounds of their authority

to see that they do what their duty requires and that they do it in a legal maimer. It does not involve responsibility for the correctness of their

decisions, either in fact or law.

See also A.R. Sarin Vs. B.C. Patil and Another, .

In ''Ratilal Abhechand v. Custodian General of Evacuee properties'' AIR 1952 Sau 112 (O), we have held, following the decisions in - Parry

and Co. Ltd. Vs. Commercial Employees'' Association, Madras, , and in - Veerappa Pillai Vs. Raman and Raman Ltd. and Others, that the High

Court not having the jurisdiction of an appellate Court in the proceedings for the issue of a writ of certiorari will not embark upon an enquiry about

the correctness or otherwise of the Custodian General''s decision.

In the present case the Election Tribunal has not assumed Jurisdiction which it had not, nor has it acted in contravention of any natural

principles of justice, nor has the error, if any, resulted in manifest injustice. At the highest the only thing that can be said is that the decision of the

Election Tribunal was erroneous, it having been influenced by a wrong interpretation of the relevant Sections and Rules bearing on the point. But

the Tribunal had the jurisdiction to decide rightly as well as wrongly and the High Court is not sitting in appeal against that decision.

Mr. Chimanlal Shah also urged that there was an apparent error on the face of the record, but we are unable to see any such error. As

observed by Chagla C.J. in - Batuk K. Vyas Vs. Surat Borough Municipality and Others, :

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. We have had occasion several times to point out that only that error will be

corrected by this Court which is clearly apparent on the face of the record and which does not become apparent only by a process of examination

or argument.

With respect I agree with these observations. The error to be an error apparent on the face of the record should be so apparent and one need not

have to seek for it by a process of reasoning or argument, and if it is disclosed by such a process, then obviously it is not an error apparent on the

face of the record. I may also refer to Mallikarjun Bhavaneppa Vs. Satyanarayan Laxminarayan and Others, . There the Revenue Tribunal held

that the landlord was not entitled to get an order for possession without giving a notice to the tenant. In taking that view what the Tribunal was

doing was

to add to the provisions of Section 24 and insisting upon the notice by the landlord in cases of non-payment of rent when the Legislature has

thought fit not to require'' the landlord to give notice.

Therefore it was considered that the decision of the Tribunal was not merely erroneous but there'' was an error apparent on the face of the record.

The error was patent because the Tribunal had acted in conscious violation of the Tenancy Act and its provisions. That could not be said of the

Tribunal''s decision in the present case and the above decision is distinguishable on the facts. There is no error apparent on the face of the record in

the present case and there is no scope of interference on that account.

The Advocate General had urged that the Election commission ought to have been made a party to the present proceedings, and, in any event,

the Election Tribunal should have been brought on the record, since it is that Tribunal''s order that is being impugned. In"" the view we take, it is

unnecessary to consider the question raised, and we do not therefore say anything on the subject.

In the result therefore no grounds are made out for the issue of a writ under Article 226 or for interference under Article 227 of the

Constitution, and both the petitions are therefore dismissed. In view of the importance of the questions raised we make no order as to costs.

Baxi, J.

I agree.