M. Varghese vs P.O. Mammen

Joseph Vithayathil, J.—This is a petition under Article 227 of the Constitution of India and Section 115, CPC for cancelling the order of the Election Commissioner, Haripad, in Election Petition No. 1 of 1953 relating to the election to the Karthikappally Panchayat, Ward VI. The election was conducted under the Travancore-Cochin Panchayat Act, 2 of 1050, as amended by Act 15 of 1952. It took place in May 1953. There were four candidates for the election, viz., the revision -Petitioner (Sri. Varghese), the Respondent (Sri. Maramen), Sri. Parameswaran Pillai and Sri. Narayana Pillai.

Sri. Varghese secured 316 votes, Sri. Mammen "292, Sri. Parameswaran Pillai 253 and Sri. Narayana Pillai 88 votes. Sri. Varghese was declared duly elected on 20-5-1953 and the result of the election was notified in the Travancore-Cochin Government Gazette dated 19-7-1953.

Sri. Mammen presented the election petition under Rule 73 of the Panchayat Rules for declaring the election of Sri. Varghese void on "the ground that Sri. Parameswaran Pillai was disqualified to stand as a candidate, that his nomination paper was improperly accepted and that the result of the election was materially affected by the improper acceptance of the nomination paper of Sri. Parameswaran Pillai.

Sri. Varghese alone contested the petition. He contended that Sri. Mammen was not a voter in the voters list of Ward No. VI of the Karthikappally Panchayat, that he was, therefore, not competent to file the petition, that the petition was barred by limitation, that the nomination paper of Sri Paiameswaran Filial was properly accepted, arid that the result of the election waa not in the least affected by the acceptance of his nomination paper.

The Election Commissioner found that Sri. Mammen was a voter in the voters list for Ward No. VI of the Karthikappally Panchayat and that he was a duly nominated candidate for the election. It was, therefore, held that he was competent to file the election petition. It was also held that the petition was filed within time.

The Commissioner further found that at the time of the nomination and election Sri. Parameswaran Pillai was an applicant to be adjudicated an insolvent and that he was, therefore, disqualified to stand as a candidate under Sub-clause (b) of Clause (2) of Section 18 of the Panchayat Act, which says that a person shall be disqualified for elaction as a member if such person is on the date of the election an applicant to be adjudicated an insolvent.

It was, therefore, held that the nomination of Sri. Parameswaran Pillai was improperly accepted by the Election Officer. The Commissioner also held that the result of the election was materially affected by the improper acceptance of the nomination of Sri. Parameswaran Pillai. As a result of these findings the election of Sri. Varghese was declared void under Rule 78 sub rule (1) (c) of the Panchayat Rules mid the election petition was allowed with costs.

The findings of the Election Commissioner that Sri. Mammen was competent to file the election petition, that the petition was filed in time and that Sri. Parameswaran Pillai was disquallfied to stand as a candidate are not questioned in the revision petition. Only two points were urged before. us by the revision Petitioner, viz., (1) the Election Commissioner went wrong in holding that the nomination of Sri. Parame''swaran Pillai was improperly accepted by the Election Officer and (2) there is no foundation for the finding of the Election Commissioner that the result of the election has been materially affected by the acceptance of the nomination or Sri. Parameswaran Pillai.

With regard to the first point, it was argued for the revision Petitioner that so long as there was nothing either in the Electoral Roll or In the nomination paper of Sri. Parameswaran Pillai to show that he was disqualified to stand as a candidate and so long as no objection was raised at the time of the scrutiny of the nomination papers to the effect that Sri. Parameswaran Pillai was disqualified to stand as a candidate for the election it cannot be said that there was an improper acceptance of the nomination paper by the Election Officer.

Reference was.made to the following observation of B, K. Mukherjea, J. (as he then was), in - Durga Shankar Mehta Vs. Thakur Raghuraj Singh and Others,

If the want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only \\f there is objection to the nomination. The Returning Officer, is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination.

But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination ...

It would have been improper acceptance if the want of qualification was apparent on the electoral roll itself or on the free of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry, made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him.

When neither of these things happened the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance. It is certainly not final and the Election Tribunal may, on evidence placed before it, come to finding that the candidate was not qualified at all. But the election should be held to be void on ground of the constitutional disqualification of the candidate and not on the ground that his nomination was improperly accepted by the Returning Officer.

In our opinion, Mr. Sen Is right that a case of this description comes under Sub-section (2)(c) of Section 100 and not under Sub-section (l)(c) of the; section us it really amounts to holding an election without complying with the provisions of the Constitution, and that is one of the grounds specified in Clause (c) of Sub-section (2).

The expression non-compliance with the provisions of the Constitution is in our opinion .sufficiently wide to cover such cases where the question is not one of improper acceptance or rejection of the nomination by the Returning Officer, but there is a fundamental disability in the candidate to stand for election at all. That was a case of election under the Representation of the People Act. But the Rules are similar, and the principle must apply to this case also.

Rule 78(1) of the Panchayat Rules reads:

78(1) . If the Election ''Commissio''er is of opinion:

(a) that the election has not been a free election by reason that the corrupt practice of bribery or of undue influence has extensively prevailed at the election; or

(b) that the election has not been a free election by reason that coercion or intimidation has been exercised or resorted to by any particular community, group or section, on Anr. community, group or section, to vote or not to vote in any particular way at the election; or

(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Election Commissioner shall declare the election to be wholly void.

Sub-rule (2) of Rule 78 reads:

(2) Subject to the provision of Sub-rule (3), if the, Election Commissioner is of opinion.

(a) that the election of a returned candidate has been procured or induced, or the result, of the election, has been materially affected, by the corrupt or illegal practice; or,

(b) that any corrupt practice specified in Ruli 82 has been committed by a returned candidate, or his agent or by any other person with the connivance of the returned candidate or his agent; or

(c) that the result of the election has been materially affected by the improper reception or refusal of a vote or by the reception of any vote which is void, or by any non-compliance with the provision of the Act or of any Rules made under the Act or of any other Act or any Rules relating to the election; or by any mistake in the use of any prescribed form, the Election Commissioner shall declare the elaction of the returned candidate to be void.

The case of improper acceptance of a nomination comes under Sub-rule (l)(c) while the case of non-compliance with the provisions of the Act or the Rules comes under Sub-rule (2)(c). In the first case the election shall be declared to be wholly void while in the second case only the election of the returned candidate shall be declared to be void.

It was Argued for the revision Petitioner that the election petition In this case was one for a declaration under R. 78(1) (C) that the election was wholly void on the ground that the result of the election was materially affected by the improper acceptance of the nomination paper, of Sri. Parameswaran Pillai and not one for a declaration under Sub-rule (2)(c) that the election of the returned candidate was void on the ground that the result of the election was materially affected by non-compliance with the provisions of the Act.

It was, therefore, contended that so long as there was no improper acceptance of a nomination paper, in this case within the meaning of Rule 78(-l)(c) the election petition was not maintainable and that the Election Commissioner; went wrong in declaring the- election void under) that sub-rule.

It is true that the prayer in the election petition was for a declaration, under Rule 78(1)(c), and that the ground alleged in the petition was the improper acceptance of the nomination paper of Sri. Parameswaran Pillai. But we do not think that the petition was liable to be dismissed on the ground. It was alleged in the petition that Sri. Parameswaran Pillai, one of the candidates for the election, was disqualified to stand as a candidate by reason of the fact that he was an applicant to be adjudicated an insolvent. It was also alleged that the result of the election was materially affected by the acceptance of his nomination.

Although, according to the election Petitioner, this would amount to improper acceptance of a nomination paper within the meaning of Sub-rule (l)(c) of Rule 78 and, therefore, a ground for declaring the election wholly void, so long as the petition contains averments sufficient to constitute a ground for holding that there has been non-compliance with the provisions of the Panchayat Act and that the result of the election has been materially affected by such non-compliance, the case will come under Sub-rule (2)(c) of Rule 78 and the Election Commissioner can declare the election of the returned candidate void.

Sub-rule (4) of Rule 73 which prescribes the requirements of an election petition only says that the "election petition shall contain a concise statement of the material facts on which the Petitioner relies." Rule 77 says that

at the conclusion of the trial of an election petition the Election Commissioner 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.

It is, therefore, clear that although the prayer in the election petition was to declare the election petition to be wholly void under Rule 78 (1) (c) it was within the cornpetence of the Election Commissioner to declare the election of the returned candidate to be void under Sub-rule (2) (c) of that Rule. We are, therefore, unable to accept the argument of learned Counsel for the revision Petitioner that the Election Commissioner went wrong in not dismissing the election petition on the ground that it .was not maintainable.

With regard to the second point, the contention is that the finding of the Election Commissioner that the result of the election has been materially affected by the acceptance of the nomination of Sri. Parameswaran Filial is based on mere conjecture and that it has no legal basin whatsoever. The only witnesses who gave evidence on the point are the election Petitioner (Sri. Mammen), the disqualified candidate (Sri. Parameswaran Pillai) and the returned candidate (Sri. Vmghese).

Sri. Mammen stated that if Sri. Parameswaran Pillai''s nomination has not been accepted all those who voted for him would have voted for Sri. Mammen. Sri. Parameswaran Pillai also stated so. Sri. Varghese said that the majority of the voters who voted for Sri. Parameswaran Pillai would have voted, for him. Sri. Varghese contested the election as a Congress Candidate while the other candidates stood as Independents.

But, Sri. Mammen and Sri. Parameswaran Pillai were members of the Praja Socialist Party although they did not contest the election on Party Tickets. The Election Commissioner thought that since both of them were members of the Praja Socialist Party the voters who voted for Sri. Parameswaran Pillai would have voted for Sri. Mammen if. Sri. Parameswaran Pillai''s nomination has not been accepted.

The finding of the Election Commissioner that the result of the election was materially, affected by the acceptance of the nomination paper of Sri. Parameswaran Pillai is based on this conjecture. The questions for consideration are whether this finding can be upheld and whether, even if the finding cannot be supported in law, this Court can, in the exercise of its jurisdiction under Article 227 of the Constitution, set aside the order of the Election Commissioner.

A similar case came up for consideration before the Supreme Court in - Vashist Naraln v. Dev Chandra AIR 1934 SC 513 (B). That was an appeal preferred under Article 136 of the Constitution against an order of the Election Tribunal, Allahabad, setting aside an election to the U.P. Legislative Assembly. There were live candidates who contested the election. The votes secured by those candidates were as follows:

(1) Vashist Narain 12868 (2) Vireshwar Nath Rai 10996 (3) Mahadea 3950 (4) Dudhnath 1983 and(5) Oulab Chand 1768.

Vashist Naraln who secured the largest number of .votes was declared duly elected. Three electors filed an election petition seeking to set aside the election on the grounds, ''inter alia'', that the nomination of Dudhnath was improperly, accepted by the Election Officer and that the result of the election was thereby materially affected. The Election Tribunal found that the nomination of Dudhnath was improperly accepted by the Returning Officer and that the result of the election was thereby materially affected.

Section 100 of the Representation of the People Act, 1951, which deals with the grounds for declaring an election to be void corresponds, to Rule 78 of the Rules under the Travancore-Cochin Panchayat Act; and Sub-section (1)(c) of Section 100 corresponds to Sub-rule (l)(c) of Rule 78 while Sub-section (2)(c) of Section 100 corresponds to Sub-rule (50(c) of Rule 78. In dealing with the question, Giudjun Hasan J. observed as follows:

Before an election can be declared to be -wholly void u/s 100(1) (c) the Tribunal must find that the result of the election has been materially affected. These words have been the subject of much controversy before the Election Tribunal and it is agreed that the opinions expressed have not always been uniform or consistent.

These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting, candidates as would have brought about the defeat of the returned candidate.

His Lordship then discussed the question m to burden of proof and held that the burden of proving that the result of the election ban been materially affected was on the election Petitioner, His Lordship referred to the view expressed in - Raj Bahadur Surenura Naralrt Sinha v. Amulyadhone Roy IndiamElection Casets -Sen and Poddar-P. 188 to the effect that the burden of proving that non-compliance with the rules relating to election materially affected the result of the election was on the election Petitioner.

His Lordship, also noted that the Tribunal in., that case recognised the difficulty of offering:, positive proof in such cases and that they expressed the view that, they had to interpret and, follow the rule as it stood. Another case referred to is--C.M. Karalo v. B.K. Dalvl'', Election Cases by Doabia, Vol. I.p. 178 in which'' case it was held that the onus of proving thai the result of the election has been materially affected rests heavily on the election petition.

In - Babu Basu Sinha v. Babu Rajandhari Sinha Indian Election Petitions by Jagat Naraln, Vol. III p. 80, Anr. case referred .to by His Lordship, it was emphasised that it was not enough for the Petitioner to show that the result of the election might have been affected by the improper acceptance of a nomination paper but that he should show that it was actually affected thereby. His Lordship also referred to -Jagadish Singh v. Sree- Deolal Gazette of India Extraordinary-October 13, 1953.

In that case it was held that the question should always be decided on the basis of the material on the record and not on mere probabilities. The Tribunal distinguished between the improper rejection and art improper acceptance of nomination observing that, while in the former case there is a presumption that the election had been materially affected, in the latter the Petitioner must prove by affirmative evidence that the result had been materially affected. His Lordship then observed as follows:

We are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the Petitioner.

It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predict how many or which proportion of the votes will go to one or the other of the candidates.

While it must be recognised that the Petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty has been discharged. Should the Petitioner fall to find in his satisfactory evidence to enable the Court to find in his on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.

His Lordship then referred to two cases in whichthe margin of votes between the successful candidate and the candidate who secured the next highest number of votes was less than the number of votes secured by the candidate whose nomination was improperly accepted, viz., - Lakhan Lal Mishra v. Tribeni Kumar Gazette of India. Extraordinary, 2-2-1953 and - Mandal Sumltra nevi v. Sree Smaj- Narain Singh Gazette of India Extraordinary, February 26, 1953. In both these cases the Tribunal held that the result of the election has been materially affected. His Lordship made the following observation about the view taken in those cases.

We are unable to accept the soundness of the view. It seems to us that where the margin of votes is greater than the votes secured by the candidate whose nomination paper had been improperly accepted the result Is not only materially not affected but not affected at all; but where it is not possible to anticipate the result a; in the above mentioned-cases, we think that the Petitioner must discharge the burden of proving that fact and on his failure to do so the election must be allowed to stand.

His Lordship further observed:

We are of opinion that the language of Section 100(1)(c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. The number of wasted votes was 111. It is impossible to accept the ''ipse dixit'' of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.

The question is one of fact and has to be proved by positive evidence. If the Petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the Petitioner seeking to set aside the election on the ground of improper acceptance of the nomination paper, but neither the Tribunal nor this Court is concerned wish the inconvenience result from the operation of the law. How this state of things can be redefined is a matter elderly for the Legislaure (sic) to consider.

With regard to the argument, advanced by counsel for the Respondent that the finding of the Tribunal that the result of the election has been respectively (sic) affected was a finding of fact which did not call for interference in special (sic) His Leadership observed:

These is the condition for the satisfied under of Act. If the Tribunal could not be sure that Respondent 1 would get only 56 out of the wasted votes to give him an absolute majority how could the Tribunal conjecture that all the wasted votes would go to the second best candidate? The Tribunal misdirected itself in not comprehending what they had to find and proceeded merely upon a mere possibility. Their finding upon the matter is speculative and conjectural.

Their Lordships set aside the order of the Tribunal and held that it was not proved that the result of the election lias been materially affected by the improper acceptance of the nomination.

The facts of the present case are on all fours with the facts of the case decided by Their Lordships. In this case also there is no foundation for the finding of the Election Commissioner that the majority of the voles secured by Sri. Parameswaran Pillai would have gone to'', Sri. Mammen.

It was argued for the Respondent that Their Lordships of the Supreme Court were dealing with an appeal while the revision Petitioner in this case is invoking the jursdiction of that Court under Article 227 of the Constitution and that even if the order of the Election Commissioner is erroneous that is no ground for interference by this Court in the exercise of its jurisdiction under the Article.

Although Section 115, CPC is also mentioned in the revision petition, it is clear that the .section will not apply to the case since the Election Commissioner is not a Court within the meaning of the section. It is only in the exercise of its jurisdiction under Article 227 of the Constitution that this Court can interfere in the matter. The question is whether the facts of the case call for the exercise of that jurisdiction.

In - Mathew v. Ouseph AIR 1055 TC 24 (C) this Court held that the supervisory jurisdiction of this Court under Article 227 is not only administrative but also judicial Menon J. observed:

There can be no doubt that the Election Commissioner is a Tribunal with all the trappings of a Court and that he exercises judicial as distinct from administrative or inquisitorial functions in the discharge of his duties. There cannot also be any doabt that the word ''superintendence'' as pointed out by Rankin C.J. in - Manmatha Nath v. Emperor AIR 1P33 Cal 132'' (B) is a term of legal force and signification involving the responsibility to keep the Courts and Tribunals concerned within the bounds of their authority, to see that they do their duty, and that they do it in a legal manner.

In - Warayam Singh v. Amarnath AIR 1934 SC 215 (E) Bose J. said:

The material part of Article 227 substantially, reproduces the provisions of Section 107, Government of India Act, 1915, except that the power of superintendence has been extended by the Article, also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. (sic) The only question raised is as to the nature of the power of superintendence conferred by the Article.

Reference is made to Clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because Clause (2) is expressed to be without prediction is the generally of the provisions in Clause (sic).

Further, the preponderance of judicial opinion in India was that Section 107 which was similar in terms to Section 115 of the High Count; Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.

This power of superintendence conferred by Article 227 is, as pointed out by Harris C. J. in - Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors.

In - Haripada Dutta Vs. Ananta Mandal, P.N. Mookerjee J. discussed the case law relating to the question and came to the following conclusion:

The not conclusion thus emerges that under Article 227 of the Constitution every High Court has power or superintendence over all judicial and qunsi-judicial bodies within its territorial limits in respect of both Judicial and administrative matters. Written in letters of light the Article illumines the entire field of judicial and quasi-judicial activities with its own effulgence which apparently perceives no barriers.

The power conferred is immense and, as there are no words of restraint employed by the Article, the control envisaged may well be unlimited. Does it, however, necessarily follow that the exercise of this unlimited power should also be unrestrained and should be made in every case of error, however trifling, committed by the subject bodies?

If that be the legitimate construction it would plainly abrogate the necessity of almost all the provisions contained in the different municipal laws for the exercise of appellate or revisional powers. Such could never have been the intention of the Constitution and, in fairness to it, it is only just to hold that, however unlimited the control may be in its scope and extent, its exercise should be judicially restrained.

The mere fact that the Constitution employs no word of restraint is not enough to justify untrammeled exercise of the power conferred by the Article in question. In the vastness of its extent and the great responsibility which such vastness necessarily carries with it lies the restraint to the exercise of that power of superintendence.

It is not to be resorted to for correcting any and every mistake or for undoing any and every kind of injustice. By its very nature the remedy provided by the Article is to be applied only to extraordinary cases. For ordinary cases the normal remedies under the municipal laws are available and it is only wise that the field pertaining to such remedies should be left untouched by the Constitutional powers under Article 227.

Only, therefore, where grave injustice has occurred or is likely to occur by reason of some mistake committed by the inferior judicial or quasi-judicial bodies and the municipal law provides no adequate remedy, the High Courts are entitled - and indeed bound - to intervene under Article 227 and correct the mistake and grant appropriate relief. Where, again, gross violation of some statutory provision has been made by the inferior bodies and against such violation no adequate remedy is to be found in municipal law the High Courts ought to interfere, in appropriate cases, under the said Article.

The same principle was laid down in - Hrisikesh v. Brojendra Mohan AIR 1953 pal 731.(H), which was a case of the Election Commissioner setting aside an election under the Bengal Village Self-Government Act, 5 of 1919. P.N. Mookerjee J. observed in that case:

The setting aside of a valid election apart from the manifold inconveniences and hardship resulting, from it causes grave Injustice to the elected candidate and to the constituency or the electorate or the people concerned as well. It is, therefore, only meet and proper that when an election has been unlawfully set aside and, the matter has come to this Court under Article 217 and the Constitution for necessary redress, there being no other remedy open or available, the illegal order should not be allowed to stand.

In Re: Annamalai Mudaliar, Ramaswamy J. discussed the question elaborately with reference to decided cases and sum rued up the substance of those decisions in the following words:

The substance of all these decisions can be summed up in three propositions, namely, it does not involve a responsibility of the superintending tribunal for the correctness of the decisions of the inferior Courts either in fact or in law, If the inferior Court, after hearing the patties, comes to an erroneous decision on a waiter within its jurisdiction, the Court having power of superintendence never interferes. The only mode of questioning the propriety of such a decision is by appeal. Nor can this power be invoked to get round any express provision of the Code of Criminal Procedure or any other law.

Secondly, the general superintendence conferred by this constitutional provision over all jurisdictions subject to appeal1 involves a duty to keep them within the bounds of their authority, to see that they do what their duty requires and they do it in a legal manner. Therefore), the interference under Article 227 would naturally be In cases where these is a gross dereliction of duty - Shitab Singh and Others Vs. Suraj Bali and Another, or there is a flagrant abuse of fundamental principles of law of natural Justice or there is in existence no other remedy for remedying the wrong - Madhusudhan Vs. Shyam Dass, ; - Basant Lai v. Arjundas AIR 1952 VP 4 (L) or present miscarriage of justice -- Juganath v. Mt. Puniya AIR 1952 MP 51 (M); - Mani Ram and Others Vs. Jhamru and Another, ; - Mitra v. Datta Gupta Union of Workmen of R.S, N.and I.G.N. and Rly. Co. Ltd. v. RS.N. Co. Ltd. AIR 1951 Gau 96 (O), Abdul Rahim Naskar Vs. Abdul Jabbar Naskar and Others,

Nor is Article 227 meant for correcting slight errors Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee, - State of West Bengal v. Durga Devi AIR 1951 Cal 100 (Q); or to interfere in oases of mere failure to appreciate evidence on the part of a final tribunal. - Bavalal v. Jivanlal AIR 1951 Sau 43 (R); - Israil Khan Vs. The State, .

In - Kishorilal v. Rameshwar Das AIR 1983 Hyd 67 (PB) (T) Sreenivasacharl J. observed:

Article 227 of the Constitution empowers each High Court to exercise superintendence not only over Courts but also over the tribunals throughout the territories within its jurisdiction. It can further issue writs of certiorari, etc., under Article 220. It is clear that the Authorities or Tribunals against which a writ of certiorari can be issued or power of superintendence exercised can be other than mere Courts of Justice.

Therefore after 26-1-1950, though not in revision but in the exercise of its powers of superintendence, the High Court can always set , right the order, passed ,by a Court or a Tribunal or any'' Authority., The remedy by way of writ of certiorari,. is limited in its- scope and, not 4 in all cases that such a remedy would lie; for it is only in cases of excess of Jurisdiction or utter want or absence of Jurisdiction that the-High Court would exercise its powers for the issue of a writ of certiorari. The powers under the provisional jurisdietion, however, through to a certain extent limited in their scope, are wider than the powers under certiorari.

Reference may also be made to the following observation of Chopra J. in - Tirath Singh v. Bachitar Singh AIR 1954 Pep 118 (U):

It is only where there is gross miscarriage of justice and flagrant violation of law or where the Tribunal has failed to act within the bounds of its authority or acts'' contrary to, the provisions of law prescribing the mode of its acting which has materially affected its decision that the High Court may interfere to remedy the obvious error or the grave injustice.

In appeal or revision the superior Court has the right and jurisdiction to make orders which the inferior Court should have made, and substitute its own decision, Tire High Court under its powers of superintendence is not competent, to interfere with and set right every error of law and fact committed by the Tribunal in exercise of its jurisdiction.

The powers are to be used sparingly and only in appropriate cases. The power of superintendence is a power to keep the subordinate Courts or Tribunals within the bounds of their authority, to see that they do what their duty enjoins and that they do it in a legal manner.

The question whether this is a fit case for the. High Court to interfere in the exercise of its Jurisdiction under Article 227 has to be decided in the light of these principles? If it were merely a case of a wrong decision by the Election Com- missioner either on a question of fact or on a question of law, it is clear that that, by itself will not be a sufficient ground for this Court to interfere in the exercise of its powers under the Article. But here the main question for decision by the Election Commissioner was whether the result of the election has been materially affected by the acceptance of the nomination paper of Sri. Parameswaran Pillai.

On this question the finding of the Election Commissioner is the result of mere conjecture. There is no foundation for the finding. The decision has, therefore, to be characterised as arbitrary. When there is no legal basis at all for the decision of the Triunal and when the decision is arbitrary in the eye of law we think that it is the duty of this Court to interfere in the exercise of its powers under Art, 227 of the Constitution especially when the aggrieved party has no other remedy.

Learned Counsel for the Respondent referred to the decision of the Supreme Court in - T.C. Basappa Vs. T. Nagappa and Another, in support of the position that it is rot proper for this Court to interfere with a finding of fact by an Election Tribunal. That was a ease of an application- under Article 226 of the Constitution for a writ of certiorari quashing the decision of an Election Tribunal. The Tribunal found that the election Petitioner would have obtained the majority of votes had it not been for the corrupt practices on the part of the returned candidate. Mukherjee J. (us he then was), observed:

The finding is there and there is evidence in support of it. Whether it is right or wrong is Anr. matter and it may be that the view taken by the dissenting member of the Tribunal was the more proper; but it cannot be said that the Triunal exceeded its jurisdiction in dealing with this matter.

We do not think that this decision applies to the facts of the present case. His Lordship expressly says that was evidence in support of the Tribunal. The following passage in the judgment shows that if there was the result of mere surmise their Lordships would, have interfered:

There was evidence undoubtedly to show that some of the voters went away as the polling did riot commence at the scheduled, time, but the exact number of these persons is not known and there could not be any positive evidence to show as to how many of them would have voted for the Appellant. If the Tribunal had on the basis of these facts alone declared the Appellant to be the only elected candidate holding that he could have secured more votes than Respondent, 1, obviously this would have been an error apparent on the face of the record, as such conclusion would rest merely on a surmise and nothing else.

The Tribunal however discusses this, matter only in connection with the question as to whether the violation of any statutory rule or order in the holding of election did materially affect the result of the election which would entitle the Tribunal to declare the election of the returned candidate to be void u/s 100(2)(c) of the Act.

This observation of His Lordship supports the position of the revision Petitioner that in a case in which the decision of the Election Tribunal is based on mere surmise this Court ought to interfere in the exercise of its powers under Article 227.

Another argument advanced on behalf of the Respondent was that under Rule 79(4) of the Election Rules the decision of the Election Commissioner is final and that, therefore, this Court cannot interfere with that decision. Rule 79(4) reads: "Every order of the Election Commissioner made under these Rules shall be final and conclusive." We do not think that his provision can in any manner affect the power of thus Court under Article 227 of the Constitution. The question was considered by the Madras High Court in R.V. Ranga Ayyar Vs. Sundararaja Ayyangar and Others, already referred to. Ramaswamy J. observed:

The clause ''inserted (that the decision shall be final) In Section 51(6) (c) of the Madras Act, 6 of 1932, has been the subject of decisions of Madras High Court. This High Court has held re peatedly that this clause does not take away the right of a Court to interfere but only indicates the finality so far as the right of appeal within the department is concerned.

The same view was expressed in AIR 195 Pepsu 118 (U) also referred to above. Chopra J. observed in that case:

Section 105, Representation of the People Act no doubt, enacts that, ''every order of the Tribunal under this Act shall be final and conclusive,''. Finality given to orders of the Statutory Tribunal cannot be deemed to interfere with the constitutional powers of superintendence of this Court, as no paramount or State legislature can abrogate supervisory powers granted by the Constitution.

We are, therefore, unable to accept this argument. In the remit, we jet aside the order of the Election Commissioner declaring: the election void and dismiss the election petition. The revision petition is allowed with costs including advocate''s fee Rs. 100/-.