09 December 1954
Supreme Court


Case number: Appeal (civil) 61 of 1954






DATE OF JUDGMENT: 09/12/1954


CITATION:  1955 AIR  233            1955 SCR  (1)1104

ACT: Constitution of India, Art. 226-Powers of High Court  there- under-Writ  of certiorari against Election  Tribunals  after they  become  functus  officio-Certiorari  against   Record- Distinction   between  writ  of  prohibition  and  writ   of certiorari-Art.  227 of the Constitution-Superintendence  of High Court over Election  Tribunals-Superintendence-Judicial as well as administrative-Certiorari-Scope and character  of -Representation  of  the People (Conduct  of  Elections  and Election   Petitions)  Rules,   1951-Rule   47(1)(c)-Whether mandatory or directory-Error manifest on the fa1e of record- Interference by certiorari.

HEADNOTE: Article 226 of the Constitution confers on High Courts power to issue appropriate writs to any person or authority within their  territorial  jurisdiction,  in  terms  absolute   and unqualified,  and Election Tribunals functioning within  the territorial  jurisdiction  of  the High  Courts  would  fall within the sweep of that power.  The power of the High Court under Art. 226 to issue writ of certiorari against decisions of  Election Tribunals remains unaffected by Art. 329(b)  of the Constitution. The  High Courts have power under Art. 226 of the  Constitu- tion,  to  issue  writs  of  certiorari  for  quashing   the decisions  of Election Tribunals, notwithstanding that  they become functus officio after pronouncing the decisions. The  writ of certiorari for quashing the offending order  or proceeding is directed against a record, and as a record can be  brought up only through human agency, it  is  ordinarily issued  to the person or authority whose decision is  to  be reviewed.   If it is the record of the decision that has  to be  removed by certiorari, then the fact that  the  tribunal has  become funtus officio subsequent to the decision  could have  no effect on the jurisdiction of Court to  remove  the record. As the true scope of the writ of certiorari to quash is that



it  merely demolishes the offending order, the  presence  of the  offender  before  the  court,  though  proper,  is  not necessary for the exercise of the jurisdiction or to  render its  determination effective.  The writ of certiorari  being in  reality directed against the record, there is no  reason why  it  should not be issued to whosoever has  the  custody thereof. The  writ of certiorari is directed to the body  or  officer whose  determination  is  to be reviewed, or  to  any  other person having the custody of the record or- other papers  to be certified. 1105 The scope of Art. 226 of the Constitution is firstly that it confers  on  the  High  Courts  power  to  issue  writs  and directions and secondly it defines the limits of that power. This  latter it does by enacting that it could be  exercised over  any  person  or authority within  the  territories  in relation  to  which  it  exercises  its  jurisdiction.   The emphasis  is on the words "within the territory", and  their significance  is  that the jurisdiction to  issue  writs  is coextensive with the territorial jurisdiction of the  court. The  reference is not to the nature and composition  of  the court  or  tribunal but to the area within which  the  power could be exercised. There  is  one  fundamental distinction between  a  writ  of prohibition and a writ of certiorari.  A writ of prohibition will lie when the proceedings are to any extent pending  and a  writ  of  certiorari  for quashing  will  lie  after  the proceedings have terminated in a final decision.  If a  writ of prohibition could be issued only if there are proceedings pending  in a court, it must follow that it is incapable  of being  granted when the court has ceased to  exist,  because there could be then no proceeding on which it could operate. But  it  is otherwise with a writ of  certiorari  to  quash, because  it  is directed against a decision which  has  been rendered by a Court or tribunal, and the continued existence of that court or tribunal is not a condition of its decision being annulled. Election Tribunals are subject to the superintendence of the High  Courts  under Art. 227 of the Constitution,  and  that superintendence is both judicial and administrative.   While in a certiorari under Art. 226 the High Court can only annul the  decision  of the Tribunals, it can, under Art.  227  do that, and also issue further directions in the matter. As  respects  the  character  and  scope  of  the  writs  of certiorari  the following propositions may be taken as  well established: (1)  Certiorari  will  be issued for  correcting  errors  of jurisdiction,as when     an inferior Court or Tribunal  acts without jurisdiction or in excess  of   it,  or   fails   to exercise it. (2)  Certiorari  will  also  be issued  when  the  Court  or Tribunal  acts  illegally in the exercise of  its  undoubted jurisdiction,   as  when  it  decides  without   giving   an opportunity  to  the parties to be heard,  or  violates  the principles of natural justice. (3)  The court issuing a writ of certiorari acts in exercise of  a  supervisory  and  not  appellate  jurisdiction.   One consequence  of  this  is that the  court  will  not  review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous.  (4)  An error in the decision or determination  itself  may also  be  amenable  to a writ of "certiorari"  if  it  is  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.   What  is an error apparent on the  face  of  the record  cannot be defined precisely or  exhaustively,  there being an element 1106 of  indefiniteness inherent in its very nature, and it  must be  left  to be determined judicially on the facts  of  each case. It  is well-established that an enactment in form  mandatory might  in  substance be directory, and that the use  of  the word "shall" does not conclude the matter.  There are  well- known  rules  for  determining  when  a  statute  should  be construed as mandatory and when directory.  All of them  are only  aids  for  ascertaining  the  true  intention  of  the legislature  which is the determining factor, and that  must ultimately depend on the context. The  word "shall" in Rule 47(1)(c) of the Representation  of the  People  (Conduct of Elections and  Election  Petitions) Rules, 1951 which enacts that "a ballot paper contained in a ballot  box shall be rejected if it bears any serial  number or mark different from the serial numbers or marks of ballot papers  authorised  for use at the polling  station  or  the polling booth at which the ballot box in which it was  found was  used",  cannot  be construed  as  meaning  "may".   The provisions   of  Rule  47(1)(c)  are  mandatory   like   the provisions   of  Rule  47(1)(a),  Rule  47(1)(b)  and   Rule 47(1)(d). Held,  that  in  maintaining  the  election  of  the   first respondent in the present case on the basis of the 301 votes which  were  liable to be rejected under Rule  47(1)(c)  the Tribunal was plainly in error.  As the error was manifest on the  face  of  the record, it  called  for  interference  in certiorari. Held  further,  that  the  prayer of  the  appellant  to  be declared  elected  must  be  refused under  s.  97,  as  the respondent  had pleaded in his recrimination  petition  that there  had  been violation of Rule 23, and  that  by  reason thereof  the election of the appellant was liable to be  set aside,  if  he had been declared elected and  that  plea-had been established. In the result the entire election was set aside. N.   P.   Ponnuswami   v.   Returning   Officer,    Namakkal Constituency  and Others ([1952] S.C.R. 218), Durga  Shankar v.  Raghuraj Singh ([1955] S.C.R. 267), T. C. Basappa v.  T. Nagappa ([1955] S.C.R. 250),  Clifford O’Sullivan ([1921)  2 A.C.  570), Rex v. Electricity Commissioners ([1924] 1  K.B. 171),  B. v. Wormwood Scrubbs (Governor) ([1948] 1 All  E.R. 438),  Waryam Singh and another v. Amarnath and  another  ([ 1954]  S.C.R.  565), Parry & Co.  v.  Commercial  Employees’ Association, Madras ([1952] S.C.R. 519), Veerappa Pillai  v. Raman and Raman Ltd. and Others ([1952] S.C.R. 583), Ibrahim Aboobaker  v. Custodian General ([1952] S.C.R. 696), Rex  v. Northumberland  Compensation Appeal Tribunal; Ex parte  Show ([1951]  1  K.B. 711; [1952] 1 K.B. 338), Rex  v.  Nat  Bell Liquors  Ltd.  ([1922] 2 A.C. 128), Batuk K. Vyas  v.  Surat Municipality  (A.I.R.  1953 Bom. 133), Julius v.  Bishop  of Oxford ([1880] L.R. 5 A.C. 214), Woodward v. Sarsons ([1875) L.R.  10  C. P. 733), Vashist Narain v Dev  Chandra  ([1955] S.C.R.  509)  and In Be South  Newington  Election  Petition ([1948] 2 A.E.R. 503), referred to. 1107



JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 61 of 1954. Appeal  under  Article 132(1) of the Constitution  of  India from  the Judgment and Order dated the 4th November 1953  of the   High   Court  of  Judicature  at   Nagpur   in   Civil Miscellaneous Petition No. 174 of’ 1953. N.   C. Chatterjee, Bakshi Tek Chand and Veda Vyas, (S.   K. Kapur  and Ganpat Rai, with them), for the appellant. G.   S.  Pathak, (Rameshwar Nath and Rajinder  Narain,  with him), for respondent No. 1. 1954.   December 9. The Judgment of the Court was  delivered by VENKATARAMA  AYYAR J.-The appellant and respondents 1  to  5 herein were duly nominated for election to the House of  the People  from  the Hoshangabad Constituency in the  State  of Madhya  Pradesh.  Respondents 4 and 5 subsequently  withdrew from  the  election,  leaving  the  contest  to  the   other candidates.   At  the polling the appellant  secured  65,201 votes  the  first  respondent 65,375  votes  and  the  other candidates  far less; and the Returning Officer  accordingly declared  the first respondent duly elected.  The  appellant then  filed  Election Petition No. 180 of 1952  for  setting aside the election on the ground inter alia that 301 out  of the  votes  counted in favour of the first  respondent  were liable to be rejected under Rule 47 (1) (c) of Act No. XLIII of  1951 on the ground that the ballot papers did  not  have the distinguishing marks prescribed under Rule 28, and  that by  reason  of their improper reception, the result  of  the election  had  been  materially affected.   Rule  28  is  as follows: "The  ballot papers to be used for the purpose of voting  at an  election to which this Chapter applies shall  contain  a serial number and such distinguishing marks as the  Election Commission may decide". Under  this rule, the Election Commission had  decided  that the ballot papers for the Parliamentary Consti- 142 1108 tuencies  should  bear  a green bar printed  near  the  left margin, and that those for the State Assembly should bear  a brown bar. What happened in this case was that voters for the House  of the People in polling stations Nos. 316 and 317 in  Sobhapur were  given  ballot papers with brown bar intended  for  the State  Assembly,  instead of ballot papers  with  green  bar which had to be used for the House of the People.  The total number  of votes so polled was 443, out of which 62 were  in favour  of  the  appellant,  301  in  favour  of  the  first respondent,  and  the  remaining  in  favour  of  the  other candidates.  Now, Rule 47(1)(c) enacts that "a ballot  paper contained in a ballot box shall be rejected if it bears  any serial number or mark different from the- serial numbers  or marks  of  ballot papers authorised for use at  the  polling station  or  the polling booth at which the  ballot  box  in which it was found was used".  In his election petition, the appellant  contended that in accordance with this  provision the ballot papers received at the Sobhapur polling  stations not having the requisite mark should have been excluded, and that if that had been done, the first respondent would  have lost  the lead of 174 votes, and that he himself would  have secured the largest number of votes.  He accordingly  prayed that he might be declared duly The  first  respondent contested the petition.   He  pleaded that the Returning Officer at Sobbapur had rightly  accepted the  301  votes,  because  Rule 47  was  directory  and  not



mandatory , and that further the votes had been accepted  as valid  by the Election Commission, and the defect,  if  any, had  been  cured.  He also filed  a  recrimination  petition under  section  97  of Act No. XLIII of  1951,  and  therein pleaded  inter  alia  that at polling  station  No.  299  at Malkajra and at polling station No. 371 at Bammangaon ballot papers  intended for use in the State  Legislature  election had been wrongly issued to voters to the House of the People by mistake of the polling officers, that all those votes had been wrongly rejected by the Returning Officer, and that  if they had been counted, he would 1109 have got 117 votes more than the appellant.  He  accordingly challenged  the  right  of  the  appellant  to  be  declared elected. The Election Tribunal held by a majority that Rule  47(1)(c) was  mandatory, and that the 301 ballot papers found in  the box  of the first respondent bearing the wrong  mark  should not  have  been counted; while the third Member was  of  the opinion  that  rule  was  merely  directory,  and  that  the Returning  Officer  had  the  power  to  accept  them.   The Tribunal, however, was unanimous in holding that the  result of  the  election had not been materially  affected  by  the erroneous  reception  of  the  votes,  and  on  that  ground dismissed the petition. The  appellant  then moved the High Court  of  Nagpur  under articles 226 and 227 of the Constitution for the issue of  a writ of certiorari or other order or direction for  quashing the decision of the Election Tribunal on the ground that  it was illegal and without jurisdiction.  Apart from supporting the  decision on the merits, the first respondent  contended that having regard to article 329(b) the High Court was  not competent  to  entertain the petition, as  in  substance  it called  in  question  the  validity  of  an  election.   The petition  was heard by a Bench consisting of Sinha,  C.  J., Mudholkar and Bhutt, JJ., who differed in their conclusions. Sinha,  C.  J., and Bhutt, J., held that no  writ  could  be issued  under  article 226, firstly because  the  effect  of article  329(b) was to take away that power,  and  secondly, because  the  Election Tribunal had become  functus  officio after the pronouncement of the decision, and that thereafter there  was no Tribunal to which directions could  be  issued under  that  article.   Mudholkar,  J.,  agreed  with   this conclusion,  but rested it on the second  ground  aforesaid. As  regards  article 227, while Sinha, C. J. and  Bhutt,  J. held  that  it  had no application  to  Election  Tribunals, Mudholkar, J. was of the view that they were also within the purview of that article, but that in view of article 329(b), no relief could be granted either setting aside the election of the first respondent, or declaring the appellant elected, and that the only 1110 order  that could be made was to set aside the  decision  of the Tribunal.  On the merits, Sinha, C.J. and Bhutt, J. took the  view that the decision of the Tribunal that the  result of  the  election had not been materially  affected  by  the erroneous   reception   of   votes  was   one   within   its jurisdiction, and that it could not be quashed under article 226,  even  if it had made a mistake of fact  or  law.   But Mudholkar, J. held that as in arriving at that decision  the Tribunal  had taken into consideration  irrelevant  matters, such as the mistake of the polling officer in issuing  wrong ballot papers and its effect on the result of the  election, it  had  acted in excess of its jurisdiction.   He  was  ac- cordingly  of  opinion that the decision should  be  quashed



leaving  it  to the Election Commission  "to  perform  their statutory  duties in the matter of the  election  petition". The  petition was dismissed in accordance with the  majority opinion.  The learned Judges, however, granted a certificate under  article  132(1), and that is how  this  appeal  comes before this Court. The  first question that arises for decision in this  appeal is  whether High Courts have jurisdiction under article  226 to  issue  writs against decisions  of  Election  Tribunals. That   article  confers  on  High  Courts  power  to   issue appropriate  writs to any person or authority  within  their territorial jurisdiction, in terms absolute and unqualified, and  Election Tribunals functioning within  the  territorial jurisdiction of the High Courts would fall within the  sweep of that power.      If  we  are to recognise  or  admit  any limitation on  this  power,  that must be  founded  on  some provision in the Constitution itself.  The contention of Mr. Pathak  for the first respondent is that such  a  limitation has  been imposed on that power by article 329(b), which  is as follows: "Notwithstanding anything in this Constitution no election to either House of Parliament or to the House or either  House of the Legislature of a State shall be  called in question except by an election petition presented to such authority and in such manner 1111 as  may  be  provided for by or under any law  made  by  the appropriate Legislature". Now, the question is whether a writ is a proceeding in which an  election can properly be said to be called  in  question within the meaning of article 329(b).  On a plain reading of the article, what is prohibited therein is the initiation of proceedings for setting aside an election otherwise than  by an election petition presented to such authority and in such manner  as  provided therein.  A suit for setting  aside  an election  would  be barred under this provision.  In  N.  P. Ponnuswami  v. Returning Officer, Namakkal Constituency  and Others(1) it was held by this Court that the word "election" in  article  329(b)  was used in a  comprehensive  sense  as including the entire process of election commencing with the issue of a notification and terminating with the declaration of  election of a candidate, and that an  application  under article  226  challenging the validity of any  of  the  acts forming  part  of that process would be barred.   These  are instances  of  original proceedings calling in  question  an election,  and  would be within the prohibition  enacted  in article  329(b).   But  when  once  proceedings  have   been instituted in accordance with article 329(b) by presentation of  an election petition, the requirements of  that  article are fully satisfied.  Thereafter when the election  petition is  in due course heard by a Tribunal and  decided,  whether its decision is open to attack, and if so, where and to what extent, must be determined by the general law applicable  to decisions  of Tribunals.  There being no dispute  that  they are  subject  to the supervisory jurisdiction  of  the  High Courts  under article 226, a writ of certiorari  under  that article will be competent against decisions of the  Election Tribunals also. The view that article 329 (b) is limited in its operation to initiation of proceedings for setting aside an election  and not  to the further stages following on the decision of  the Tribunal  is considerably reinforced, when the  question  is considered with reference to a candidate, whose election has been set aside (1)  [1952] S.C R. 218.



1112 by the Tribunal.  If he applies under article 226 for a writ to  set  aside the order of the Tribunal, he cannot  in  any sense be said to call in question the election; on the other hand,  he seeks to maintain it.  His application could  not, therefore,  be  barred  by  article  329(b).   And  if   the contention  of  the first respondent  is  well-founded,  the result  will be that proceedings under article 226  will  be competent  in  one  event  and not in  another  and  at  the instance  of one party and not the other.   Learned  counsel for  the first respondent was unable to give any reason  why this  differentiation  should be made.  We cannot  accept  a construction which leads to results so anomalous. This  question  may  be  said  to  be  almost  concluded  by authority.   In  Durga  Shankar  v.  Raghuraj  Singh(1)  the contention was raised that this Court could not entertain an appeal  against the decision of an Election  Tribunal  under article  136  of  the  Constitution,  as  that  would  be  a proceeding  in which an election is called in question,  and that  could  be done only before a Tribunal as  provided  in article  329(b).  In overruling this contention,  Mukherjea, J. observed: "The  ’non-obstante’  clause with which article 329  of  the Constitution begins and upon which the respondent’s  counsel lays so much stress, debars us, as it debars any other court in the land, to entertain a suit or a proceeding calling  in question  any  election  to  the  Parliament  or  the  State Legislature.   It  is the Election Tribunal alone  that  can decide such disputes and the proceeding has to be  initiated by  an  election  petition  and in such  manner  as  may  be provided by a statute.  But once that Tribunal has made  any determination  or adjudication on the matter, the powers  of this  Court to interfere by way of special leave can  always be exercised". By parity of reasoning it must be held that the power of the High  Court  under article 226 to issue writ  of  certiorari against  decisions  of Election  Tribunals  remains  equally unaffected by article 329(b). It is next contended that even if there is jurisdic- (1)  [1955] S.C.R. 267.                             1113 tion in the High Court under article 226 to issue certiorari against a decision of an Election Tribunal, it is  incapable of exercise for the reason that under the scheme of Act  No. XLIII  of  1951, the Tribunal is an ad hoc body set  up  for determination  of  a particular election petition,  that  it becomes functus officio when it pronounces its decision, and that thereafter there is no authority in existence to  which the  writ could be issued.  The question thus raised  is  of considerable importance, on which there is little by way  of direct  authority; and it has to be answered primarily on  a consideration  of  the  nature of a writ  of  certiorari  to quash.   At the outset, it is necessary to mention  that  in England certiorari is issued not only for quashing decisions but also for various other purposes.  It is issued to remove actions  and  indictment pending in an  inferior  court  for trial to the High Court; to transfer orders of civil  courts and  sentences  of  criminal courts  for  execution  to  the superior  court; to bring up depositions on  an  application for  bail when the prisoner has been committed to  the  High Court  for  trial; and to remove the record of  an  inferior court  when it is required for evidence in the  High  Court. These are set out in Halsbury’s Laws of England, Volume  IX, pages 840 to 851.  It is observed therein that the writ  has become obsolete in respect of most of these matters, as they



are now regulated by statutes.  That is also the position in America appears from the following statement in Corpus Juris Secundum, Volume 14, at page 151: "At  common  law the writ of certiorari was used both  as  a writ  of review after final judgment and also to remove  the entire cause at any stage of the proceeding for hearing  and determination  in the superior court.  In the United  States it  is  now the general rule that the writ will  be  refused where  there  has  been  no  final  determination  and   the proceedings in the lower, tribunal are still pending". As we are concerned in this appeal with certiorari to  quash a  decision, it is necessary only to examine whether  having regard to its nature such a writ for 1114 quashing  can  be  issued  to  review  the  decision  of   a Tribunal, which has ceased to exist. According to the common law of England, certiorari is a high prerogative writ issued by the Court of the King’s Bench  or Chancery to inferior courts or tribunals in the exercise  of supervisory  jurisdiction  with a view to ensure  that  they acted within the bounds of their jurisdiction.  To this end, they  were commanded to transmit the records of a  cause  or matter  pending with them to the superior court to be  dealt with  there,  and  if  the order was  found  to  be  without juirsdiction, it was quashed.  The court issuing  certiorari to quash, however, could not substitute its own decision  on the  merits,, or give directions to be complied with by  the court or the tribunal.  Its work was destructive; it  simply wiped  out the order passed without jurisdiction,  and  left the matter there.  In T. C. Basappa v.T.     Nagappa(1), Mukherjea, J. dealing with this question     observed: "In granting a writ of ’certiorari’ the superior court  does not  exercise the power of an appellate tribunal.   It  does not   review  or  reweigh  the  evidence  upon   which   the determination of the inferior tribunal purports to be based. It  demolishes  the order which it considers to  be  without jurisdiction  or palpably erroneous but does not  substitute its  own  view  for those of  the  inferior  tribunal.   The offending  order or proceeding so to say is put out  of  the way as one which should not be used to the deteriment of any person.  Vide per Lord Cairns in Walsall’s Overseers v.L.   and N. W. Ry.  Co.(2)". In   Corpus Juris Secundum, Volume 14 at page 123 the  nature of a writ of certiorari for quashing is thus stated: "It  is  not  a  proceeding  against  the  tribunal  or   an individual composing it; it acts on the cause or  proceeding in the lower court, and removes it to the superior court for reinvestigation". The writ for quashing is thus directed against a record, and as a record can be brought up only (1) [1955] S C.R. 250. (2) [1879] 4 A.C.30, 39. 1115 through  human  agency,  it  is  issued  to  the  person  or authority  whose decision is to be reviewed.  If it  is  the record of the decision that has to be removed by certiorari, then  the fact that the tribunal has become functus  officio subsequent  to  the  decision could have no  effect  on  the jurisdiction of the court to remove the record.  If it is  a question of issuing directions, it is conceivable that there should  be in existence a person or authority to  whom  they could  be  issued, and when a certiorari other than  one  to quash  the decision is proposed to be issued, the fact  that the  tribunal has ceased to exist might operate as a bar  to its issue.  But if the true scope of certiorari to quash  is



that it merely demolishes the offending order, the  presence of  the  offender before the court, though  proper,  is  not necessary for the exercise of the jurisdiction or to  render its determination effective. Learned  counsel  for  the  first  respondent  invites   our attention  to  the  form  of the order nisi  in  a  writ  of certiorari,  and contends that as it requires the  court  or tribunal  whose proceedings are to be reviewed, to  transmit the records to the superior court, there is, if the tribunal has  ceased to exist, none to whom the writ could be  issued and none who could be compelled to produce the record.   But then, if the writ is in reality directed against the record, there is no reason why it should not be issued to  whosoever has the custody thereof.  The following statement of the law in  Ferris  on the Law of Extraordinary  Legal  Remedies  is apposite: "The  writ  is  directed  to  the  body  or  officer   whose determination  is  to be reviewed, or to  any  other  person having  the  custody of the record or other  papers  to  be, certifled". Under  section 103 of Act No. XLIII of 1951 the Tribunal  is directed to send the records of the case after the order  is pronounced  either to the relative District Judge or to  the Chief  Judge of the Court of Small Causes, and there  is  no legal impediment to a writ being issued to those officers to transmit  the record to the High Court.  We think  that  the power to issue a 143 1116 writ  under  article  226 to a person as  distinct  from  an authority  is  sufficiently  comprehensive to  take  in  any person  who has the custody of the record, and the  officers mentioned  in section 103 of Act No. XLIII of 1951 would  be persons  who  would be amenable to the jurisdiction  of  the High Court under the article. It  is argued that the wording of article 226 that the  High Court  shall have power to issue writs or directions to  any person  or  authority within  its  territorial  jurisdiction posits  that there exists a person or authority to  whom  it could  be  issued, and that in consequence, they  cannot  be issued  where no such authority exists.  We are  of  opinion that  this  is not the true import-of the  language  of  the article.   The  scope  of article 226  is  firstly  that  it confers  on  the  High  Courts  power  to  issue  writs  and directions,  and  secondly, it defines the  limits  of  that power.   This  latter it does by enacting that it  could  be exercised   over   any  person  or  authority   within   the territories   in   relation  to  which  it   exercises   its jurisdiction.   The  emphasis is on the  words  "within  the territory", and their significance is that the  jurisdiction to   issue  writ  is  co  extensive  with  the   territorial jurisdiction  of  the court.  The reference is  not  to  the nature  and composition of the court or tribunal but to  the area within which the power could be exercised. The  first  respondent relied on the  decision  in  Clifford O’Sullivan(1)  as  authority for the position that  no  writ could  be issued against a Tribunal after it had  ceased  to exist.   There, the facts were that the appellants had  been tried  by a military Court and convicted on 3-5-1921.   They applied  on 10-5-1921 for a writ of prohibition against  the officers  of the Court, and that was refused on  the  ground that  they  bad  become  functi  officio.   The   respondent contended that on the same reasoning certiorari against  the decision  of an Election Tribunal which bad  become  functus officio should also be refused, and he further relied on the



observations  of  Atkin,  L.J. in Rex  v.  Electricity  Com- missioners;  London Electricity Joint Committee Co.  (1920), Exparte(2) as establishing that there was no (1) (1921] 2 A.C. 570. (2) [1924] 1 K B. 171, 204, 205. 1117 difference  in law between a writ of prohibition and a  writ of  certiorari.  What is stated there is that both writs  of prohibition  and  certiorari  have  for  their  object   the restraining   of  inferior  courts  from   exceeding   their jurisdiction, and they could be issued not merely to  courts but to all authorities exercising judicial or quasi-judicial functions.  But there is one fundamental distinction between the two writs, and that is what is material for the  present purpose.   They  are  issued  at  different  stages  of  the proceedings.  When an inferior court takes up for hearing  a matter over which it has no jurisdiction, the person against whom  the proceedings are taken can move the superior  court for a writ of prohibition, and on that, an order will  issue forbidding   the   inferior  court   from   continuing   the proceedings.   On  the other band, if the court  hears  that cause  or matter and gives a decision, the  party  aggrieved would  have  to  move  the superior  court  for  a  writ  of certiorari, and on that, an order will be made quashing  the decision  on the ground of want of jurisdiction.   It  might happen  that  in a proceeding before the  inferior  court  a decision  might have been passed, which does not  completely dispose  of the matter, in which case it might be  necessary to apply both for certiorari and prohibition-certiorari  for quashing   what  had  been  decided,  and  prohibition   for arresting   the  further  continuance  of  the   proceeding. Authorities  have  gone to this extent that ,in  such  cases when  an application is made for a writ of  prohibition  and there  is no prayer for certiorari, it would be open to  the Court to stop further proceedings which are consequential on the decision.  But if the proceedings have terminated,  then it  is  too  late to issue prohibition  and  certiorari  for quashing  is  the  proper  remedy  to  resort  to.   Broadly speaking,  and apart from the cases of the kind referred  to above,  a writ of prohibition will lie when the  proceedings are  to  any  extent pending and a writ  of  certiorari  for quashing after they have terminated in a final decision. Now, if a writ of prohibition could be issued only if  there are  proceedings pending in a court, it must follow that  it is incapable of being granted when the 1118 court  has ceased to exist, because there could be  then  no proceeding  on which it could operate.  But it is  otherwise with  a writ of certiorari to quash, because it is  directed against  a  decision which has been rendered by a  court  or tribunal,  and  the  continued existence of  that  court  or tribunal is not a condition of its decision being  annulled. In  this  context, the following passage from  Juris  Corpus Secundum, Volume 14, page 126 may be usefully quoted: "Although  similar  to prohibition in that it will  lie  for want  or  excess  of  jurisdiction,  certiorari  is  to   be distinguished  from prohibition by the fact that  it........ is  directed to the cause or proceeding in the  lower  court and  not  to the court itself, while prohibition is  a  pre- ventive  remedy  issuing to restrain future  action  and  is directed to the court itself". The  decision in Clifford O’Sullivan(1) which was  concerned with a writ of prohibition is, therefore, inapplicable to  a writ  of certiorari to quash.  It has also to be noted  that in  that  case  as the military  Court  had  pronounced  its



sentence  before  the  application  was  filed,  a  writ  of prohibition  was bound to fail irrespective of the  question whether the Tribunal was functus officio or not, and that is the  ground on which Viscount Cave based his  decision.   He observed: "A  further  difficulty is caused to the appellants  by  the fact  that the officers constituting the so-called  military Court  have  long since completed  their  investigation  and reported to the commanding officer, so that nothing  remains to  be done by them, and a writ of prohibition  directed  to them would be of no avail. [See In re Pope(2) and Chabot  v. Lord Morpeth(3)]". In  this connection, reference must be made to the  decision in  B.  v.  Wormwood  Scrubbs  (Governor)(4).   There.,  the applicant  was  condemned  by a  court  martial  sitting  in Germany,   and  in  execution  of  its  sentence,,  he   was imprisoned  in  England.  He applied for a  writ  of  habeas corpus,  and  contended  that  the  military  Court  had  no jurisdiction over him.  The Court (1)  [1921] 2 A. C. 570. (3)  118481 15 Q. B. 446. (2)  (1833] 5 B. & Ad. 681. (4)  [1948] 1 All E. R. 438,                     1119 agreed  with this contention, and held that  the  conviction was  without jurisdiction and accordingly issued a  writ  of habeas corpus.  But as he was in the custody of the Governor of  the  Prison under a warrant of  conviction,  unless  the conviction itself was quashed no writ of habeas corpus could issue.   In these circumstances, the Court issued a writ  of certiorari quashing the conviction by the court martial.  It is  to be noted that the military Court was an ad hoc  body, and  was not in existence at the time of the writ,  and  the respondents  to  the application were the Governor  and  the Secretary  for  War.  The fact that the  court  martial  was dissolved  was  not  considered  a  bar  to  the  grant   of certiorari. Our  attention has also been invited to a decision  of  this Court  in  The Lloyds Bank Ltd. v. The  Lloyds  Bank  Indian Staff Association and others(1). In that case, following the decision  in Clifford O’Sullivan(2) the Calcutta High  Court had   refused  applications  for  the  issue  of  writs   of certiorari  and prohibition against the decision of the  All India  Industrial  Tribunal (Bank Disputes) on  the  ground, amongst  others, that the Tribunal had ceased to exist.   In appeal to this Court against this judgment, it was contended for the appellant that on a proper construction of section 7 of the Industrial Disputes Act, the Tribunal must be  deemed to  be not an ad hoc body established for adjudication of  a -particular dispute but a permanent Tribunal continuing  "in a   sort   of   suspended   animation"   and    "functioning intermittently".   This Court agreeing with the  High  Court rejected this contention.  But the point was not argued that certiorari  could  issue  even if the  Tribunal  had  become functus  officio, and no decision was given on the  question which is now under consideration. Looking  at  the substance of the matter, when once,  it  is held  that the intention of the Constitution was to vest  in the  High Court a power to supervise decisions of  Tribunals by  the  issue  of  appropriate  writ  and  directions,  the exercise of that power cannot be (1)  Civil Appeal No. 42 of 1952. (2)  (1921] 2A.  C. 570. 1120 defeated by technical -considerations of form and procedure.



In P. C. Basappa v. T. Nagappa(1), this Court observed: "In  view of the express provisions in our  Constitution  we need  not  now  look  back  to  the  early  history  or  the procedural technicalities of these writs in English law, nor feel  oppressed  by  any difference  or  change  of  opinion expressed  in  particular cases by English Judges.   We  can make an order or issue a writ in the nature of  ’certiorari’ in all appropriate cases and in appropriate manner, so  long as  we  keep to the broad and  fundamental  principles  that regulate  the  exercise  of jurisdiction in  the  matter  of granting such writs in English law". It will be in consonance with these principles to hold  that the High Courts have power under article 226 to issue  writs of  certiorari  for  quashing  the  decisions  of   Election Tribunals, notwithstanding that they become functus  officio after pronouncing the decisions. We  are  also  of opinion that the  Election  Tribunals  are subject  to  the superintendence of the  High  Courts  under article 227 of the Constitution, and that superintendence is both  judicial  and administrative.  That was held  by  this Court   in  Waryam  Singh  and  another  v.   Amarnath   and another(2),  where  it  was observed that  in  this  respect article 227 went further than section 224 of the  Government of  India  Act, 1935, under which  the  superintendence  was purely  administrative,  and that it restored  the  position under section 107 of the Government of India Act, 1915.   It may  also be noted that while in a certiorari under  article 226  the  High  Court can only annul  the  decision  of  the Tribunal, it can, under article 227, do that, and also issue further directions in the matter.  We must accordingly  hold that  the  application  of  the  appellant  for  a  writ  of certiorari  and  for other reliefs  was  maintainable  under articles 226 and 227 of the Constitution. Then  the question is whether there are proper  grounds  for the issue of certiorari in the present case. (1) (1955] S.C.R. 250. (2) [1954] S.C.R. 565. 1121 There  was  considerable  argument  before  us  as  to   the character  and  scope  of the writ  of  certiorari  and  the conditions under which it could be issued.  The question has been  considered by this Court in Parry & Co. v.  Commercial Employees’ Association, Madras(1), Veerappa Pillai v.  Raman and Raman Ltd. and Others(2), Ibrahim Aboobaker v. Custodian General(3)  and  quite  recently  in T.  C.  Basappa  v.  T. Nagappa(4). On  these  authorities, the following  propositions  may  be taken  as  established: (1) Certiorari will  be  issued  for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails  to  exercise it. (2) Certiorari will also  be  issued when the Court or Tribunal acts illegally in the exercise of its  undoubted  jurisdiction,  as when  it  decides  without giving  an  opportunity  to  the parties  to  be  heard,  or violates  the principles of natural justice. (3)  The  Court issuing  a  writ  of  certiorari  acts  in  exercise  of   a supervisory and not appellate jurisdiction.  One consequence of  this is that the Court will not review findings of  fact reached  by the inferior Court or Tribunal, even if they  be erroneous.  This is on the principle that a Court which  has jurisdiction  over a subject-matter has jurisdiction to  de- cide  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 re-hear the case on the evidence, and



substitute   its   own  findings   in   certiorari.    These propositions -are well settled and are not in dispute. (4)  The  further  question  on which there  has  been  some controversy  is  whether  a writ can  be  issued,  when  the decision  of the inferior Court or Tribunal is erroneous  in law.   This  question came up for consideration  in  Rex  v. Northumberland   Compensation  Appeal  Tribunal;  Ex   parte Shaw(5),  and  it  was  held that when  a  Tribunal  made  a "speaking  order"  and the reasons given in  that  order  in support of the decision (1) [1952] S C.R. 519.           (2) [1952] S.C.R. 583. (3) [1952] S.C.R. 696.           (4) (1955] S.C.R. 250. (5)  [1951] 1 K.B. 711. 1122 were  bad  in  law, certiorari could  be  granted.   It  was pointed  out  by Lord Goddard, C. J. that  had  always  been understood  to  be  the true scope of  the  power.   Walsall Overseers v. London and North Western Ry.  Co.(1) and Rex v. Nat  Bell  Liquors Ld. (2) were quoted in  support  of  this view.  In Walsall Overseers v. London and North Western  Ry. Co.(1), Lord Cairns, L.C. observed as follows: "If  there  was upon the face of the order of the  court  of quarter  sessions  anything  which  showed  that  order  was erroneous, the Court of Queen’s Bench might be asked to have the  order  brought into it, and to look at the  order,  and view  it upon the face of it, and if the court  found  error upon  the  face  of it, to put an end to  its  existence  by quashing it". In Rex v. Nat Bell Liquors Ld. (2) Lord Sumner said: "That supervision goes to two points; one is the area of the inferior jurisdiction and the qualifications and  conditions of  its exercise; the other is the observance of the law  in the course of its exercise". The  decision in Rex v. Northumberland  Compensation  Appeal Tribunal;  Ex  parte Shaw(3) was taken in  appeal,  and  was affirmed  by  the Court of Appeal in Rex  v.  Northumberland Compensation  Appeal Tribunal; Ex parte Shaw(4).  In  laying down  that  an  error  of law  was  a  ground  for  granting certiorari,  the learned Judges emphasised that it  must  be apparent  on  the  face of the record.   Denning,  L.J.  who stated the power in broad and general terms observed: "It will have been seen that throughout all the cases  there is one governing rule: certiorari is only available to quash a decision for error of law if the error appears on the face of the record". The position was thus summed up by Morris, L.J. "It is plain that certiorari will not issue as the cloak  of an appeal in disguise.  It does not lie in order to bring an order  or decision for rehearing of the issue raised in  the proceedings.   It  exists  to correct  error  of  law  where revealed on the face of an order or decision, (1)  [1879] 4 A.C. 30. (3)  [1961] 1 K. B. 711. (2)  [1922] 2 A.C. 128. (4)  [1952] 1 K.B. 338.                             1123 or  irregularity, or absence of, or excess of,  jurisdiction where shown". In  Veerappa Pillai v. Raman & Raman Ltd. and Others(1),  it was  observed by this court that under article 226 the  writ should  be  issued  "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



on the face of the record".  In T. C.    Basappa    v.    T. Nagappa(2) 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". It  may  therefore  be  taken as  settled  that  a  writ  of certiorari could be issued to correct an error of law.   But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face  of the  record.   The real difficulty with  reference  to  this matter,  however,  is not so much in the  statement  of  the principle as in its application to the facts of a particular case.  When does an error cease to be mere error, and become an  error  apparent  on the face  of  the  record?   Learned Counsel on either side were unable to suggest any  clear-cut rule  by  which,  the boundary between the  two  classes  of errors  could  be  demarcated.  Mr.  Pathak  for  the  first respondent contended on the strength of certain observations of  Chagla, C. J. in Batuk K. Vyas v. Surat  Municipality(3) that  no error could be said to be apparent on the  face  of the record if it was not self-evident, and if it required an examination  or argument to establish it.  This  test  might afford a satisfactory basis for decision in the majority  of cases.  But there must be cases in (1) [1952] S.C.R. 583.          (2) [1955] S.C.R. 250. (3) A.I.R. 1953 Bom. 133. 144 1124 which  even  this test might break  down,  because  judicial opinions also differ, and an error that might be  considered by  one Judge as self-evident might not be so considered  by another.  The fact is that what is an error apparent on  the face   of  the  record  cannot  be  defined   precisely   or exhaustively,  there  being  an  element  of  indefiniteness inherent  in  its  very nature, and it must be  left  to  be determined judicially on the facts of each case. These   being   the  principles  governing  the   grant   of certiorari,  we may now proceed to consider whether  on  the facts  found,  this is a fit case for a writ  being  issued. The  Tribunal,  as already stated, held by a  majority  that Rule 47 (1) (c) was mandatory, and that accordingly the  301 ballot  papers  found  in the box of  the  first  respondent should have been rejected under that rule on the ground that they had not the distinguishing marks prescribed by Rule 28. It  bad also held under section 100(2) (c) of Act No.  XLIII of  1951  that  the  result of the  election  had  not  been materially affected by the failure of the Returning  Officer to comply with Rule 47(1)(c).  It accordingly dismissed  the petition.   Now the contention of Mr. N. C.  Chatterjee  for the  appellant  is  that in  reaching  this  conclusion  the Tribunal  had  taken into account matters which  are  wholly extraneous  to an enquiry under section 100(2)(c),  such  as the  mistake of the polling officer in issuing wrong  ballot papers and its possible effect on the result of the  voting, and  that accordingly the decision was liable to be  quashed by  certiorari both on the ground of error  of  jurisdiction and error in the construction of section 100(2) (c) apparent on  the  face of the record.  The first respondent,  on  the other hand, contended that the decision of the Tribunal that the  301  ballot papers found in his box  should  have  been rejected  under Rule 47 (1) (c) was erroneous, because  that



rule  was only directory and not mandatory and  because  the Election  Commission  had  validated  them,  and  that   its decision  was  final.  He also contended that  even  if  the ballot  papers in question were liable to be rejected  under Rule  47 (1) (c), for the purpose of deciding under  section 100(2)(c)                             1125 whether  the  result  of the election  had  been  materially affected the Tribunal had to ascertain the true intention of the  voters;  and the mistake of the polling  officer  under Rule  23 and its effect on the result of the  election  were matters  which  were within the scope of the  enquiry  under that  section.  The correctness of these  contentions  falls now to be determined. On  the  question whether Rule 47(1) (c) is  mandatory,  the argument of Mr. Pathak is that notwithstanding that the rule provides that the Returning Officer shall reject the  ballot papers, its real meaning is that he has the power to  reject them,  and that on that construction, his discretion in  the matter of accepting them is not liable to be questioned.  He relies on certain well-recognised rules of construction such as  that  a statute should be construed as directory  if  it relates  to  the  performance of public duties,  or  if  the conditions  prescribed  therein  have  to  be  performed  by persons other than those on whom the right is conferred.  In particular, he relied on the following statement of the  law in  Maxwell  on Interpretation of  Statutes,  10th  Edition, pages 381 and 382: "To  hold that an Act which required an officer  to  prepare and deliver to another officer a list of voters on or before a  certain day, under a penalty, made a list  not  delivered till  a  later day invalid, would in effect, put it  in  the power of the person charged with the duty of preparing it to disfranchise the electors, a conclusion too unreasonable for acceptance". He  contended that to reject the votes of the  electors  for the  failure of the polling officer to deliver  the  correct ballot  papers under Rule 23 would be to disfranchise  them, and  that a construction which involved such  a  consequence should not be adopted. It  is well-established that an enactment in form  mandatory might  in  substance be directory, and that the use  of  the word "shall" does not conclude the matter.  The question was examined  at  length in Julius v. Bishop of  Oxford(1),  and various rules were (1)  [1880] 5 A.C. 214. 1126 laid down for determining when a statute might be  construed as  mandatory and when as directory.  They  are  well-known, and  there is no need to repeat them.  But they are  all  of them  only aids for ascertaining the true intention  of  the legislature  which is the determining factor, and that  must ultimately  depend on the context.  What we have to  see  is whether  in Rule 47 the word "shall" could be  construed  as meaning "may".  Rule 47(1) deals with three other categories of  ballot papers, and enacts that they shall  be  rejected. Rule  47(1) (a) relates to a ballot paper which  "bears  any mark  or  writing by which the elector can  be  identified". The secrecy of voting being of the essence of an election by ballot, this provision must be held to be mandatory, and the breach  of it must entail rejection of the votes.  That  was held in Woodward v. Sarsons(1) on a construction of  section 2  of  the  Ballot  Act, 1872.   That  section  had  also  a provision  corresponding to Rule 47(1) (b), and it was  held in that case that a breach of that section would render  the



vote void.  That must also be the position with reference to a  vote  which is hit by Rule 47 (1) (b).  Turning  to  Rule 47(1) (d), it provides that a ballot paper shall be rejected if it is spurious, or if it is so damaged or mutilated  that its   identity   as  a  genuine  ballot  paper   cannot   be established.   The word "shall" cannot in this  sub-rule  be construed as meaning "may", because there can be no question of  the  Returning  Officer being  authorized  to  accept  a spurious  or  unidentifiable vote.  If the word  "shall"  is thus to be construed in a mandatory sense in Rule 47(1) (a), (b)  and (d), it would be proper to construe it in the  same sense in Rule 47(1) (c) also.  There is another reason which clinches  the  matter  against the  first  respondent.   The practical  bearing  of the distinction between  a  provision which is mandatory and one which is directory is that  while the  former  must be strictly observed, in the case  of  the latter  it is sufficient that it is  substantially  complied with.  How is this rule to be worked when the Rule  provides that  a  ballot paper shall be rejected?  There  can  be  no degrees (1)  [1875] L.R. 10 C.P. 733.                             1127 of compliance so far as rejection is concerned, and that  is conclusive to show that the provision is mandatory. It  was  next  contended that the  Election  Commission  had validated the votes in question, and that in consequence the acceptance  of  the ballot papers by the  Returning  Officer under Rule 47 (1) (c) was not open to challenge.  It appears that  interchange of ballot papers had occurred  in  several polling stations where election was held both for the  House of  the  People  and the State Assembly,  and  the  Election Commission  had  issued directions that the rule as  to  the distinguishing mark which the ballot paper should bear under Rule  28  might  be relaxed, if its  approval  was  obtained before  the  votes  were actually  counted.   The  Returning Officer  at  Hoshangabad  reported to  the  Chief  Electoral Officer,  Madhya Pradesh that wrong ballot papers  had  been issued  owing  to the mistake of the polling  officers,  and obtained  the  approval of the Commission  for  their  being included, before the votes were counted.  It is contended by Mr.  Pathak  that the power of the  Election  Commission  to prescribe a distinguishing mark includes the power to change a mark already prescribed, and substitute a fresh one in its stead, and that when the Election Commission approved of the interchange  of  ballot papers at Hoshangabad,  it  had,  in effect,  approved  of the distinguishing  mark  which  those ballot  papers  bore, and that they were  therefore  rightly counted as valid by the Returning Officer. There  is no dispute that the Election Commission which  has the power to prescribe a distinguishing mark for the  ballot papers  has also the power to change it.  But  the  question is,  was that done?  The Commission did not decide in  terms of  Rule 28 that the ballot paper for election to the  House of  the People should bear a brown bar and not a green  bar. The  green bar continued to be the prescribed mark  for  the election  under that rule, and the overwhelming majority  of the  ballot papers bore that mark.  What the Commission  has done  is  to condone the defects in a  specified  number  of ballot papers issued in the 1128 Hoshangabad  polling  stations.  That is not  prescribing  a distinguishing mark as contemplated by Rule 28, as that must relate to the election as a whole.  There can be no question of  there  being  one distinguishing mark for  some  of  the voters  and  another for others with reference to  the  same



election and at the same polling station. There  is  another difficulty-in the way  of  accepting  the contention  of  the first respondent.  The approval  of  the Election  Commission was subsequent to the  actual  polling, though it was before the votes were counted.  Rule 23 throws on  the  polling  officer the duty of  delivering  a  proper ballot  paper  to the voter.  If a distinguishing  mark  had been  prescribed  under  Rule 28, the  ballot  paper  to  be delivered must bear that mark.  Therefore, if any change  or alteration  of the original distinguishing mark is made,  it must  be made before the commencement of the poll,  and  the ballot  paper  should contain the new  distinguishing  mark. The approval by the Election Commission’ subsequent, to  the polling,  therefore,  cannot  render valid  the  301  ballot papers which did not bear the distinguishing mark prescribed for  the election, and they are liable to be rejected  under Rule  47  (1) (c).  The conclusion of the  majority  of  the Tribunal that in accepting the ballot papers in question the Returning  Officer had contravened that rule must  therefore be accepted. It remains to deal with the contention of the appellant that the   decision  of  the  Election  Tribunal  under   section 100(2)(c)  that  the  result of the election  bad  not  been materially affected is bad, as it is based on considerations extraneous  to that section.  This opens up the question  as to  the scope of an enquiry under section  100(2)(c).   That section  requires  that  before an order  setting  aside  an election could be made, two conditions must be satisfied: It must firstly be shown that there had been improper reception or refusal of a vote or reception of any vote which is void, or noncompliance with the provisions of the Constitution  or of the Act (No.  XLIII of 1951) or any rules or orders  made under that Act or of any other Act or rules re- 1129 lating  to  the election or any mistake in the  use  of  the prescribed  form.   It  must  further be  shown  that  as  a consequence  thereof  the result of the  election  had  been materially  affected.   The two conditions  are  cumulative, and.   must   both  be  established,  and  the   burden   of establishing  them  is on the person who seeks to  have  the election  set aside.  That was held by this Courtin  Vashist Narain v. Dev Chandra(1).  The Tribunal has  held in  favour of the appellant that Rule 47 (1)  (c)  is  mandatory,   and that accordingly in accepting the  301 ballot  papers  which had  not  the requisite distinguishing marks  the  Returning Officer had contravened that rule.  So, the first  condition has been satisfied.  Then there remains the second, and  the question  is whether the appellant has established that  the result  of  the  election had been  materially  affected  by contravention  of  Rule  47(1)(c).  The  contention  of  Mr. Chatterjee  is  that when once he has established  that  the Returning  Officer had contravened Rule 47 (1) (c),  he  has also  established that the result of the election  had  been materially affected, because the marginal difference between the  appellant and the first respondent was only 174  votes, and that if the ballot papers wrongly counted under Rule  47 (1) (c) had been excluded and the valid votes alone counted, it was be and not the first respondent that should have been declared  elected under Rule 48, and that the result of  the election bad thus been materially affected. In reply, Mr. Pathak contends that this argument, though  it might   have  proved  decisive  if  no  other   factor   had intervened,  could  not prevail in view of the  other  facts found in this case.  He argued that Rule 47 was not the only rule that had been broken; that owing to the mistake of  the



polling  officer  wrong ballot papers had been  issued,  and thus  Rule  23  had been broken; that the  printing  of  the distinguishing mark was faint and that Rule 28 had not  also been properly complied with; that there was thus a chain  of breaches  all linked together, the final phase of  it  being the  breach  of  Rule 47 (1) (c)  and  the  effective  cause thereof being the violation of Rule 23, and that (1)  [1955] S.C.R. 509. 1130 in  judging  whether  the result of the  election  had  been affected,  these  were  matters relevant to  be  taken  into consideration.   The object of the election,  be  contended, was  to  enable  the  majority  of  the  voters  to  send  a representative  of their choice and for that purpose it  was necessary to ascertain the intention of the voters from  the ballot  papers,  irrespective of the question  whether  they were formally defective or not; that it was accordingly open to the Tribunal to look behind the barriers created by Rules 23, 28 and 47 (1) (c), discover the mind of the voters,  and if that was truly reflected in the result of the election as declared  under Rule 48, dismiss the petition under  section 100(2) Mr. Chatterjee disputes this position, and contends that the enquiry  under that section must be limited to  the  matters raised  in the election petition, and that as there  was  no complaint  about the breach of Rule 23 in that petition,  it was outside the scope of the enquiry.  It is unnecessary  to consider whether it was open to the Tribunal to enquire into matters  other than those set out in the petition, when  the returned candidate merely seeks to support the  declaration. He  has  in  this case presented  a  recrimination  petition tinder section 97 raising the question of breach of Rule 23, and  that is therefore a matter which has to be  determined. The Tribunal has gone into that question, and has held  that there  was a violation of that rule, and its  conclusion  is not  open  to attack in these proceedings, and has  not,  in fact,  been challenged.  The real controversy is as  to  the effect  of that finding on the rights of the  parties.   The answer  to  this is to be found in section 97.   Under  that section,  all matters which could be put forward as  grounds for  setting aside the election of the petitioner if be  had been returned under Rule 48 could be urged in answer to  the prayer  in  his  petition that he  might  be  declared  duly elected.   And  the result of this undoubtedly is  that  the first  respondent could show that if the appellant had  been returned  under Rule 48 his election would have been  liable to be set aside for breach of Rule 23, and that therefore he should not be declared                             1131 elected.  That according to the Tribunal having been  shown, it is open to us to hold that by reason of the violation  of Rule  23,  the  appellant is not  entitled  to  be  declared elected. Can  we  go further, and uphold the election  of  the  first respondent  under section 100 (2) (c) on the ground that  if Rule  23  had not been broken, the wasted votes  would  have gone  to him?  The argument of the appellant is that  would, in effect, be accepting the very votes which the Legislature says  in Rule 47(1) should be rejected, and that it  is  not warranted  by  the scheme of the Act.  We  think  that  this contention is well-founded.  Section 46 of the Act  provides that "when the counting of the votes has been completed, the Returning Officer shall forthwith declare the result of  the election  in the manner. provided by this Act or  the  rules made thereunder".  The rule contemplated by this section  is



Rule  48.  That provides that the Returning  Officer  should after counting the votes "forthwith declare the candidate or candidates  to  whom the largest number of valid  votes  has been  given, to be elected".  Under this rule quite  clearly no  candidate  can be declared elected on  the  strength  of votes  which are liable to be rejected under Rule  47.   The expression  "the result of the election" in  section  100(1) (c)   must,  unless  there  is  something  in  the   context compelling  a different interpretation, be construed in  the same sense as in section 66, and there it clearly means  the result on the basis of the valid votes. This conclusion is further fortified when the nature of  the duties  which a Returning Officer has to perform under  Rule 47 is examined.  Under that Rule, the Returning Officer  has to  automatically  reject certain classes of votes  for  not being in conformity with the rules.  They are set out  under Rule47(1)(b)  and (c).  In other cases, the  rejection  will depend  on  his decision whether the  conditions  for  their acceptance have been satisfied.  Thus in Rule 47 (1) (a)  he must  decide whether the mark or writing is one  from  which the elector could be identified; under Rule 47 (1) (d), 145 1132 whether  the  ballot paper is spurious or  mutilated  beyond identification; and under Rule 47(2), whether more than  one ballot  paper  has been cast by the voter.  Rule 47  (4)  is important.  It provides that "the decision of the  Returning Officer as to the validity of a ballot paper.......shall  be final  subject  to any decision to the contrary given  by  a Tribunal  on  the trial of an election petition  calling  in question the election".  Under this provision, the  Tribunal is constituted a Court of appeal against the decision of the Returning Officer, and as such its jurisdiction must be  co- extensive  with  that of the Returning  Officer  and  cannot extend further.  If the Returning Officer had no power under Rule  47 to accept a vote which had not  the  distinguishing mark prescribed by Rule 28 on the ground that it was due  to the mistake of the presiding officer in delivering the wrong ballot paper-it is not contended that he has any such power, and clearly he has not-the Tribunal reviewing this  decision under Rule 47(4) can have no such power.  It cannot accept a ballot paper which the Returning Officer was bound to reject under Rule 47. It is argued with great insistence that as the object of the Election Rules is to discover the intention of the  majority of  the  voters  in the choice of a  representative,  if  an elector has shown a clear intention to vote for a particular candidate,  that  must be taken into account  under  section 100(2)  (c),  even  though the vote might be  bad  for  non- compliance   with  the  formalities.   But  when   the   law prescribes  that  the  intention should be  expressed  in  a particular  manner, it can be taken into account only if  it is  so expressed.  An intention not duly expressed is, in  a Court  of  law,  in the same position as  an  intention  not expressed at all. The decision in Woodward v. Sarsons(1) was cited in  support of  the contention that for deciding whether the  result  of the  election had been affected it was permissible  to  take into  account votes which bad been rendered invalid  by  the mistake  of  the polling officer.  That was  a  decision  on section 13 of the Ballot Act, (1)  [1875] L.R. 10 C.P. 733.                             1133 1872  which  provided that no election  should  be  declared invalid  by reason of non-compliance with the rules,  if  it



appeared to the Tribunal "that the election was conducted in accordance with the principles laid down in the body of this Act,  and that such noncompliance or mistake did not  affect the result of the election".  What happened in that case was that all the ballot papers issued at polling station No. 130 had  been  marked  by the polling  officer  and  bad  become invalid  under section 2 of the Act.  It was con. tended  on behalf of the unsuccessful candidate that the mistake of the polling  officer rendered the whole election  void,  without reference to the question whether the result of the election had been affected.  In repelling this contention, the  Court observed at page 750: "Inasmuch, therefore, as no voter was prevented from voting, it follows that the errors of the presiding officers at  the polling  stations  No. 130 and No. 125 did  not  affect  the result of the election, and did not prevent the majority  of electors  from effectively exercising their votes in  favour of  the  candidate they preferred, and  therefore  that  the election   cannot  be  declared  void  by  the  common   law applicable to parliamentary elections". This  was merely a decision on the facts that the  departure from  the  prescribed  rules  of  election  at  the  polling stations  was not so fundamental as to render  the  election not  one "conducted in accordance with the  principles  laid down under the body of this Act" Reliance  was  placed on certain observations  in  Re  South Newington  Election Petition(1).  In that case,  the  ballot paper  had  been rejected by the Returning  Officer  on  the ground  that  it did not bear the requisite  official  mark. The Court in a petition to set aside the election held on an examination of the ballot paper that the official stamp  had been  applied, though imperfectly, and that it  should  have been  accepted.   The  actual decision is in  itself  of  no assistance to the respondent; but the Court observed in  the course of its judgment: (1)  (1948] 2 All E.R 503. 1134 "We think that, in a case where the voter is in no sense  to blame,  where he has intended to vote and has expressed  his intention of voting in a particular way, and, so far as  his part  of the transaction is concerned, has  done  everything that  he should, and the  only defect raised as a matter  of criticism of the ballot paper is some defect on the part  of the  official machinery by which the election is  conducted, special  consideration  should  (and, no  doubt,  would)  be given, in order that the voter should not be disfranchised". These observations are no authority for the proposition that if  there  was no mark at all on the ballot paper  it  could still be accepted on the ground of intention.  On the  other hand,  the whole of the discussion is intelligible  only  on the  hypothesis  that  if there was no mark at  all  on  the ballot paper, it must be rejected. In the result, we must bold that in maintaining the election of the first respondent on the basis of the 301 votes  which were liable to be rejected under Rule 47(1)(c) the  Tribunal was  plainly  in error.  Mr. Chatterjee would have  it  that this  error is one of jurisdiction.  We are unable  to  take this  view, because the Tribunal had jurisdiction to  decide whether on a construction of section 100 (2) (c) it could go into  the fact of breach of Rule 23, and if it committed  an error,  it was an error in the exercise of its  jurisdiction and  not in the assumption thereof.  But the error is  mani- fest  on the face of the record, and calls for  interference in certiorari. We  have  held  that the election of  the  first  respondent



should  be  set  aside.  We have further held  that  if  the Returning Officer had, after rejecting the 301 ballot papers which did not bear the correct marks, declared the appellant elected,  his election also would have to be declared  void. The  combined effect of section 97 and section 100(2)(c)  is that  there is no valid election.  Under the  circumstances, the  proper  order to pass is to quash the decision  of  the Tribunal  and remove it out of the way by  certiorari  under article  226,  and to set aside the election  of  the  first respondent in exercise of the powers conferred by article 1135 227.      As a result of our decision, the Election  Commis- sion will now proceed to hold a fresh election. This  appeal must accordingly be allowed, the  decisions  of the  High  Court  and the Tribunal  quashed  and  the  whole election  set aside.  The parties will bear their own  costs throughout. Appeal allowed.