05 May 1954
Supreme Court


Case number: Appeal (civil) 48 of 1954






DATE OF JUDGMENT: 05/05/1954


CITATION:  1954 AIR  440            1955 SCR  250  CITATOR INFO :  R          1955 SC 233  (10,19,21,22)  R          1955 SC 756  (2,6)  R          1957 SC 804  (10)  R          1958 SC 398  (19)  F          1958 SC 845  (20)  R          1959 SC 725  (11)  R          1960 SC 321  (10,11,22,23)  R          1962 SC1621  (5,75,113)  F          1966 SC  81  (4)  RF         1967 SC   1  (53,82)  RF         1970 SC1334  (11)  R          1973 SC2684  (7)  R          1981 SC 789  (11)  F          1990 SC 487  (10)  RF         1992 SC 435  (19)

ACT: Constitution   of  India-Article  226-Certiorari,  writ   of General principles governing the issue thereof-Manifest  and patent   error  apparent on the  face  of  proceedings-Clear ignorance  or  disregard of a provision  of  law-Absence  or excess of jurisdiction.

HEADNOTE: The  issue  of  prerogative writs in the  nature  of  habeas corpus, mandamus, quo warrantto, prohibition and  certiorari had their origin in England-in the King’s prerogative  power of  superintendence  over the due observance of law  by  his officials and Tribunals. The  powers of the Supreme Court as well as of all the  High Courts   in  India  under  articles  32  and  226   of   the Constitution respectively are very wide. The  Supreme Court as well as the High Courts in  India  can make an order or issue a writ in the nature of certiorari in all  appropriate cases and in appropriate manner so long  as the   broad  and  fundamental  principles  of  English   law regulating  the  exercise of jurisdiction in the  matter  of granting such writs are adhered to. A  writ  of certiorari can be availed of only to  remove  or



adjudicate  upon  the  validity  of  judicial  acts,   which expression includes the exercise of quasi-judicial functions by  administrative  bodies or other authorities  or  persons obliged  to  exercise such functions but  does  not  include purely ministerial acts. In granting a writ of certiorari the superior Court does not exercise  the  power of an appellate Tribunal,  the  control exercised  through it being merely in a supervisory and  not appellate capacity. It  does not review or reweigh the evidence upon  which  the determination  of  the inferior Court is based nor  does  it substitute its own views for those of the inferior Tribunal. A  writ of certiorari is generally granted when a Court  has acted without or in excess of its jurisdiction.  The want of jurisdiction may &rise from the nature of the subject-matter of  the proceeding or from the absence of  some  preliminary proceeding   or  the  Court  itself  may  not   be   legally constituted  or  may  suffer from a  certain  disability  by reason of extraneous circumstances.  If the jurisdiction  of the Court depends upon the existence of some collateral fact the  Court  cannot by a wrong decision of  the  fact  assume jurisdiction which it would not otherwise possess. A  writ  of certiorari is available in those cases  where  a Tribunal  though competent to enter upon an enquiry acts  in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular  procedure is prescribed. 251 A  mere  wrong  decision cannot be corrected by  a  writ  of certiorari  as  that would be -using it as the cloak  of  an appeal in disguise but a manifest error apparent on the face of the proceeding based on a clear ignorance or disregard of the   provisions  of  law  or  absence  of  or   excess   of jurisdiction, when shown, can be so corrected. Held,  that  in view of the facts and circumstances  of  the case the High Court was not right in holding that sufficient and  proper grounds existed for the issue of  certiorari  in the present case. Ryots of Garabandho v. Zemindar of Parlakimedi (70 I.A. 129, 140);  Election Commission, India v. Saka Venkata Subba  Rao ([1953]   S.C.R.   1144,   1150).    Rex   v.    Electricity Commissioners ([1924] 1 K.B. 171, 205); Walshall’s Overseers v. London and Northern Western Railway Co. (4 A.C. 30,  39); King  v. Nat Bell Liquors Limited ([19221 2 A.C. 128,  156); Banbury v. Fuller, (9 Exch. 111); Queen v. Commissioners for Special  Purposes of the Income Tax (21 Q.B.D. 313); Rex  v. Northumberland  Compensation  Appellate Tribunal  ([1952]  1 K.B.  338,  357);  Veerappa Pillai v. Raman  &  Raman  Ltd., ([19521  S.C.R.  583,  594); and  Halsbury,  Vol.   IX,  2nd edition, page 880, referred to.

JUDGMENT: CiiviL Appellate JURISDICTION: Civil Appeal No. 48 of 1954. Appeal from the Judgment and Order dated the 1 1 th January, 1954,  of  the High Court of Judicature of Mysore  in  Civil Petition No. 29 of 1953, quashing the Order of the  Election Tribunal, Shimoga, dated the 15th January, 1953, in  Shimoga No. I of 1952-53. K.   S.  Krishnaswami Iyengar (K.  S.  Venkataranga  Iyengar and M. S. K. Iyengar, with him) for the appellant. Dr.  Bakshi Tek Chand (R.  Ganapathy Iyer and M.  S.      K. Sastri, with him) for respondent No. 1. C.   K.  Daphtary, Solicitor-General for India (Jindra  Lal,



Porus  A. Mehta and P. O. Gokhale, with him) for  respondent No. 3. 1954.  May 5. The Judgment of the Court was delivered by MUKERGEA J.-This appeal is directed against a judgment of  a Division  Bench  of the Mysore High Court,  dated  the  11th January,  1954,  by  which the  learned  Judges  granted  an application, presented by the respondent No. I under article 226  of the Constitution, and directed a writ of  certiorari to  issue  quashing  the,,  proceedings  and  order  of  the Election Tribunal, Shimoga, dated the 15th January, 1953, in Shimoga Election Case No. 1 of 1952-53. The  facts  material  for purposes of  this  appeal  may  be briefly  narrated as follows: The appellant  and  respondent No.  1,  as  well as eight other  persons,  who  figured  as respondents  Nos. 2 to 9 in the proceeding before  the  High Court,  were duly nominated candidates for election  to  the Mysore  Legislative Assembly from Tarikere  Constituency  at the  general election of that State held in January ,  1952. Five   of   these  nominated   candidates   withdrew   their candidature  within  the prescribed period  and  the  actual contest  at  the  election was between  the  remaining  five candidates including the appellant and respondept No. 1. The polling  took place on the 4th January, 1952, and the  votes were counted on the 26th of January following.  As a result, of  the  counting  the respondent No. 1 was  found  to  have secured 8,093 votes which was the largest in number and  the appellant followed him closely having obtained 8,059  votes. The remaining three candidates, who were respondents Nos. 2, 3 and 4 before the High Court, got respectively 6,239, 1,644 and  1,142  votes.   The  Returning  Officer  declared   the respondent  No.  1 to be the successful candidate  and  this declaration was published in the Mysore Gazette on the  11th February, 1952.  The respondent No. 1. lodged his return  of election  expenses with the necessary  declaration  sometime after  that and notice of this return was published  on  the 31st March, 1952.  The appellant thereafter filed a petition before the Election Commission, challenging the validity  of the  election,  inter alia, on the grounds  that  there  was violation  of  the  election rules  in  regard,  to  certain matters and that the respondent No. I by himself or  through his  agents  were  guilty  of  a  number  of  major  corrupt practices  which  materially  affected  the  result  of  the election.  The petitioner prayed for a declaration that  the election  of respondent No. I was  void and that he  himself was duly elected.  This petition, which bears date, 10th  of April,  1952,  was sent by registered post to  the  Election Commission  and was -actually received by the latter on  the 14th of April,; following.  The Election Commission referred the matter for determination by the Election Tribunal at 253 Shimoga and it came up for hearing before it on the 25th  of October,  1952.   On  that  date  the  appellant  filed   an application  for amendment of the -petition, heading  it  as one  under Order VI, rule 17, of the Civil  Procedure  Code, and the only amendment sought for was a modification of  the prayer  clause by adding a prayer for declaring  the  entire election to be void.  It was stated at the same time that in case this relief could not be granted, the petitioner would, in the alternative pray for the relief originally claimed by him, namely, that the election of respondent No. I should be declared to be void and the petitioner himself be held to be the   elected  candidate  at  the  election.   Despite   the objection  of  respondent No. 1, the Tribunal  granted  this prayer  for  amendment.   The  hearing  of  the  case   then proceeded  and  on  the averments  made  by  the  respective



parties, as many as 27 issues were framed.  Of them,  issues Nos.  1,  5, 6, 11, 12 and 14 are material for  our  present purpose and they stand as follows : (1)  Has  there been infringement of the rules  relating  to the time of commencement of poll by reason of the fact  that the polling at Booth No. I for Ajjampur fixed at Ajjampur to take  place  at 8 A.m. did not really commence  until  about half an hour later as alleged in paragraph 4 of the petition ? (5)  Did  the  1st respondent hire and procure a  motor  bus which  was  a  service  bus  running  between  Tarikere  and Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph I of the particulars and thereby commit the corrupt practice referred to in it ? (6)  Did the 1st respondent take the assistance of a  number of  Government  servants  to further the  prospects  of  his election   as  alleged  in  paragraph  2  of  the  list   of particulars ?  (11)  Is the return of election expenses lodged by the  1st respondent  false  in material particulars and has  the  1st respondent  omitted  to include in the  return  of  election expenses,  expenses incurred by him in connection  with  the election which would easily exceed the sanctioned limit  of, Rs.  5,000 as per particulars stated in paragraph 7  of  the list of particulars 254 (12) Has  the election of the 1st respondent  been  procured and  induced by the said corrupt practices with  the  result that the election has been materially affected ?  (14) Would the petitioner have obtained a majority of votes had  it  not  been for the  aforesaid  corrupt  and  illegal practices on the part of the first respondent? The Tribunal by a majority of 2 to 1 found all these  issues in favour of the petitioner and against the respondent No. 1 and  on  the  strength of their findings  on  these  issues, declared the election of respondent No. 1 to be void and the petitioner  to have been duly elected.  The judgment of  the Tribunal  is  dated the 15th of January, 1953.  On  the  5th February,   1953,   the  respondent  No.  I   presented   an application  before the Mysore High Court under article  226 of  the Constitution praying for a writ or direction in  the nature  of  certiorari  calling  for  the  records  of   the proceeding of the Election Tribunal in Election Petition No. I  of 195253 and quashing the same including the order  pro- nounced   by   the  Tribunal  as  mentioned   above.    This application  was  heard by a Division  Bench  consisting  of Medappa  C.J.  and Balakrishnaiya J. and by  their  judgment dated  the. 11th January, 1954, the learned  Judges  allowed the petition of respondent No. 1 and directed the issue of a writ  of  certiorari  as  praved for.  It  is  against  this judgment that the appellant has come up to this Court on the strength  of a certificate granted by the High  Court  under articles 132(1) and 133(1) (c) of the Constitution. The  substantial  contention  raised by  Mr.  Ayyangar,  who appeared  in  support of the appeal, is,  that  the  learned Judges  of  the High Court misdirected  themselves  both  on facts and law, in granting certiorari in the present case to quash  the  determination of the Election Tribunal.   It  is urged,  that the Tribunal in deciding the matter in the  way it did did not act either without jurisdiction or in  excess of  its authority, nor was there any error apparent  on  the face of the proceedings which could justify the issuing of a writ to quash the same.  It is argued by the learned counsel 255 that,  what the High Court has chosen to describe as  errors



of  jurisdiction  are really not matters  which  affect  the competency of the Tribunal to enter or adjudicate upon  the, matter  in controversy between the parties and  the  reasons assigned by the learned Judges in support of their  decision proceed upon a misreading and misconception of the :findings of  fact which the Tribunal arrived at.  Two  points  really arise  for our consideration upon the contentions raised  in this  appeal.  The first is, on what grounds could the  High Court,  in exercise of its powers under article 226  of  the Constitution,  grant  a  writ of  certiorari  to  quash  the adjudication  of  the  Election Tribunal ?  The  second  is, whether such grounds did actually exist in the present  case and  are  the  High Court’s findings on  that  point  proper findings which should not be disturbed in appeal ? The  principles  upon which the superior Courts  in  England interfere  by  issuing writs of certiorari are  fairly  well known and they have generally formed the basis of  decisions in  our  Indian Courts.  It is true that there  is  lack  of uniformity  even  in the pronouncements of  English  Judges, with  regard to the grounds upon which a writ, or, as it  is now  said,  an order of certiorari, could  issue,  but  such differences  of  opinion are unavoidable in  judge-made  law which  has developed through a long course of years.  As  is well known, the issue of the prerogative writs, within which certiorari  is included, had their origin in England in  the King’s  prerogative  power of superintendence over  the  due observance of law by his officials and Tribunals.  The  writ of  certiorari is so named because in its original  form  it required  that  the  King should be "  certified  of  "  the proceedings to be investigated and the object was to  secure by the authority of a superior Court, that the  jurisdiction of  the inferior Tribunal should be properly exercised  (1). These  principles  were transplanted to other parts  of  the King’s  dominions.  In India, during the British  days’  the three  chartered High Courts of Calcutta, Bombay and  Madras were alone competent to issue (1) Vide Ryots of Garbandho v, Zemindar of Parlkime  70 I,A. 129 at page 140 256 writs and that too within specified limits and the power was not exercisable by the other High Courts at all.  " In  that situation  " as this Court observed in Election  Commission, India  v.  Saka Venkata Subba Rao (1), " the makers  of  the Constitution  having  decided to provide for  certain  basic safeguards  for  the people in the new set  up,  which  they called fundamental rights, evidently thought it necessary to provide  also  a  quick  and  inexpensive  remedy  for   the enforcement of such rights and, finding that the prerogative writs,  which the Courts in England had developed  and  used whenever  urgent necessity demanded immediate  and  decisive interposition, were peculiarly suited for the purpose,  they conferred, in the States’ sphere, new and wide powers on the High   Courts  of  issuing  directions,  orders,  or   writs primarily  for  the enforcement of fundamental  rights,  the power  to  issue such directions " for any other  purpose  " being also included with a view apparently to place all  the High Courts-in this country in somewhat the same position as the Court of King’s Bench in England." The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well  as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of  habeas corpus,  mandamus, quo warranto, prohibition and  certiorari as  may  be  ’considered necessary for  enforcement  of  the fundamental  rights and in the case of the High Courts,  for



other  purposes as well.  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. One  of the fundamental principles in regard to the  issuing of a writ of certiorari is, that the. writ can be (I [1953] S.C.R. 1114 at 1150, 257 of judicial acts.  The expression " judicial acts " includes the  exercise of quasi-judicial functions by  administrative bodies  or other authorities or persons obliged to  exercise such functions and is used in contrast with what are  purely ministerial  acts.   Atkin L. J. thus summed up the  law  on this point in Rex v. Electricity Commissioners (1) : "  Whenever  any body or persons having legal  authority  to determine  questions  affecting the rights of  subjects  and having  the  duty to act judicially act in excess  of  their legal   authority  they  are  subject  to  the   controlling Jurisdiction of the King’s Bench Division exercised in these writs." The second essential feature of a writ of certiorari is that the  control which is exercised through it over judicial  or quasi-judicial  Tribunals or bodies is not in  an  appellate but supervisory capacity.  In granting a writ of  certiorari the  superior  Court  does not exercise  the  powers  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 views 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 detriment of any person(2). The  supervision  of the superior  Court  exercised  through writs  of  certiorari  goes  on  two  points,  as  has  been expressed  by  Lord  Sumner in King  v.  Nat.  Bell  Liquors Limited  (3).  One is the area of inferior jurisdiction  and the  qualifications  and conditions of its  exercise  ;  the other  is  the  observance  of law  in  the  course  of  its exercise.  These two heads normally cover all the grounds on which a writ of certiorari could be demanded. In fact  there is  little difficulty in the enunciation of the  principles; the  difficulty really arises in applying the principles  to the facts of a particular case. (I)  (1924] I K.B. 17I at 205. (2)  Vide Per Lord Cairns in Walshall’s Overseers v.  London and North Western Railway Co., 4 A.C. 30, 39. (3)  [1922) 2 A.C. 128, 156, 33 258 Certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction.  The want of jurisdiction may arise from the nature of the subject-matter of  the proceeding or from the absence of  some  preliminary proceeding   or  the  Court  itself  may  not   be   legally constituted  or suffer from certain disability by reason  of extraneous  circumstances(1).  When the jurisdiction of  the Court depends upon the existence of some collateral fact, it



is well settled that the Court cannot by a wrong decision of the  fact give it jurisdiction which it would not  otherwise possess (2). A Tribunal may be competent to enter upon an enquiry but  in making the enquiry it may act in  flagrant disregard of  the rules  of  procedure  or where no  particular  procedure  is prescribed,  it  may  violate  the  principles  of   natural justice.   A  writ of certiorari may be  available  in  such cases.  An error in the decision or determination itself may also  be  amenable to a writ of certiorari but  it  must  be amanifest  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.   The essential features of the remedy by  way  of certiorari  have  been stated with  remarkable  brevity  and clearness  by  Morris  L. J. in the recent case  of  Rex  v. Northumberland Compensation Appellate Tribunal(3).  The Lord Justice says: It  is plain that certiorari will not issue as the cloak  of an appeal in disguise.  It does not lie in order to bring up an  order or decision for re-hearing of the issue raised  in the  proceedings.   It exists to correct error of  law  when revealed   on  the,  face  of  an  order  or   decision   or irregularity  or absence of or excess of  jurisdiction  when shown." In  dealing with the powers of the High Court under  article 226  of the Constitution this Court has expressed itself  in almost similar terms(1) and said (I)  Vide Halsbury, 2nd edition, Vol.  IX, page 88o. (2)  Vide Banbury v. Fuller, 9 Exch.  III ; R. v. Income Tax Special Purposes Commissioners, 21 Q,B.D. 313. (3)  [19521 1 K.B. 338 at 357. (4)  Vide  Veerappa  Pillai v, Ramon &  Raman  Ltd.,  [1952] S.C.R.  at 594. 259 "Such writs as are referred to in article 226 are  obviously intended  to  enable the High Court to issue them  in  grave cases where the subordinate Tribunals or bodies or  officers act  wholly without jurisdiction, or in excess of it, or  in violation of the principles of natural justice, or refuse to exercise  a  jurisdiction ,vested in them, or  there  is  an error  apparent  on the face of the, record, and  such  act, omission,   error  or  excess  has  resulted   in   manifest injustice.   However extensive the jurisdiction may  be,  it seems to us that it is not so wide or large as to enable the High  Court  to convert itself into a Court  of  appeal  and examine for itself the correctness of the decision  impugned and decide what is the proper view to be taken or the  order to be made." These passages indicate with sufficient fullness the general principles  that govern the exercise of jurisdiction in  the matter of granting writs of certiorari under article 226  of the Constitution. We  will  now proceed to examine the judgment  of  the  High Court  and  see  whether the learned Judges  were  right  in holding  that sufficient and proper grounds existed for  the issue of certiorari in the present case. The  grounds upon which the High Court has granted the  writ have  been placed in the judgment itself under three  heads. The  first  head  point; out in what  matters  the  Election Tribunal  acted without jurisdiction.  It is said,  in  this connection, that the Tribunal had no jurisdiction to  extend the  period  of  limitation  for  the  presentation  of  the election petition and it had no authority also to allow  the



petitioner’s prayer for amendment and to hear and dispose of the  case on the basis of the amended petition.  The  second head  relaters  to  acts in  excess  of  jurisdiction.   The Tribunal, it is said’ acted in excess of jurisdiction in  so far  as  it went into and decided questions  not  definitely pleaded and put in issue, and not only did it set aside  the election of respondent No. 1 but declared the petitioner  to have  been  duly  elected, although there  was  no  definite finding and no proper materials for arriving at 260 a finding, that the petitioner could secure more votes  than respondent  No.  1  but for the  corrupt  practices  of  the latter. The third head purports to deal with errors apparent on  the face of the record.  These apparent errors, according to the High  Court,, vitiated three of the material  findings  upon which  the  Tribunal  based its  decision.   These  findings relate to the commencement of polling at one of the  polling booths  much later than the scheduled time,  the  respondent No.  1’s obtaining the services of a Government  servant  to further his prospects of election and also to his lodging  a false return of expenses.  We will take up these points  for consideration one after another. As  regards  absence of jurisdiction the High  Court  is  of opinion that the Tribunal acted without jurisdiction,  first in extending the period of limitation in presentation of the election petition and secondly in allowing the  petitioner’s prayer for amendment and dealing with the case on the -basis of  the amended petition.  The view taken by the High  Court seems to be that under the Representation of the People  Act (hereinafter  called "the Act"), -no power is given  to  the Election  Tribunal  to  condone the delay,  if  an  election petition  is  presented after the period prescribed  by  the rules,  nor  is it competent to allow an  amendment  of  the petition  after  it is presented, except in  the  matter  of supplying further and better particulars of the illegal  and corrupt  practices  set  out  in the  list  annexed  to  the petition, as contemplated by section 83(3) of the Act. Assuming, though not admitting, that the propositions of law enunciated  by  the learned Judges are correct,  we  do  not think that they at all arise for consideration on the actual facts of the present case.  As regards the first matter, the election  petition,  as stated above, was  despatched  bythe petitioner by registered post to the Election Commission  on the  II th of April, 1952, and it reached the Commission  on the 14th of April following.  We may take it therefore  that 14th of April was the date when the election petition 261 could  be  deemed  to have been presented  to  the  Election Commission  under section 81(2)(b) of the Act.   Under  rule 119 of the Election Rules framed under the Act, an  election petition against a returned candidate is to be presented  at any time after the publication of the name of such candidate under section 67 of the Act, but not later than 14 days from the  date  of  publication of the  notice  in  the  official gazette under rule 113, that the return of election expenses of  such  candidate  and the  declaration  made  in  respect thereof have been lodged with the Returning Officer.  It  is not  disputed  that this notice of the  return  of  election expenses was published in the Mysore Gazette on the 31st  of March, 1952, and the petition therefore was just in time  as it was presented within and not later than 14 days from that date.   The High Court seems to think that in computing  the period of 14 days the date of publication is to be included. This  seems to us to be an unwarrantable view to take  which



is opposed to the ordinary canons of construction.  Dr.  Tek Chand  appearing for the respondent No. 1 plainly  confessed his  inability  to  support  this  view  and  we  must  hold therefore  that  there  is no  question  of  the  Tribunal’s entertaining  the  election petition  after  the  prescribed period in the present case. Coming  now  to the question of amendment, the  High  Court, after  an elaborate discussion of the various provisions  of the  Act, came to the conclusion that the Election  Tribunal which  is a special Court endowed with special  jurisdiction has no general power of allowing amendment of the pleadings, and that the express provision of section 83(3) of the  Act, which empowers the Tribunal to allow amendments with respect to  certain specified matters, impliedly excludes the  power of  allowing general amendment as is contemplated  by  Order VI,  rule 17, of the Civil Procedure Code.  Here  again  the discussion embarked upon by the High Court seems to us to be unnecessary  and uncalled for.  The only  amendment  applied for  by  the  petitioner was a modification  in  the  prayer clause by insertion of an alternative prayer to the original prayer in the petition.  No change whatsoever was sought to 262 be  introduced in- the actual averments in the petition  and the  original prayer which was kept intact was  repeated  in the  application  for  amendment.   The  alternative  prayer introduced  by the amendment was not eventually  allowed  by the  Tribunal which granted the prayer of the petitioner  as it  originally stood.  In these circumstances the mere  fact that  the Tribunal granted the petitioner’s application  for amendment  becomes altogether immaterial and has  absolutely no  bearing  on  the actual decision in the  case.   We  are unable  to  hold therefore that the Tribunal  acted  without jurisdiction in respect to either of these two matters. The High Court has held that the Tribunal acted in excess of its  jurisdiction in entering into certain  questions  which are  not  covered by the pleadings of the  parties  and  not specifically  put in issue.  The other act in excess of  its authority  committed by the Tribunal, according to the  High Court,  is  that  it declared the petitioner to  be  a  duly elected candidate, on a mere speculation although it did not find and had no materials to find that the petitioner  could secure  more votes than the respondent No. 1. On  the  first point   the  learned  Judges  have  referred  only  to   the allegation  of  corrupt  practice  made  by  the  appellant, regarding  the hiring and procuring by the respondent No.  1 of  a motor bus belonging to Ahmed Jan for transporting  his voters  to  the polling booths.  The issue  framed  on  this point is issue No. 5 which is worded as follows: "Did the first respondent hire and procure a motor bus which was  a  service bus running between  Tarikere  and  Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph 1 of the list of particulars and thereby commit the corrupt  practice referred to in it?" The Tribunal found that the hiring of the bus by  respondent No.  1  was  not proved, but it was proved  that  the  first respondent did procure the service bus of Ahmed Jan, who was acting as his agent, for conveying his voters.  The Tribunal further found that even if Ahmed Jan was not an agent of the first  respondent, as - he was actually carrying the  voters of the latter 263 from  Gowrapur  to Sollapur in a bus, which bore  the  first respondent’s   election  symbol,  with  his  knowledge   and connivance, the first respondent must be held guilty of  the corrupt  practice in question.  The High Court says that  as



it was nowhere alleged in the petition that Ahmed Jan was an agent of respondent No. I or that he was carrving the voters with his connivance, the Tribunal must be held to have acted ’in  excess of its jurisdiction in going into matters  which were not definitely pleaded.  We do not think that this view of  the High Court can be supported.  In paragraph 8 of  the petition  the  appellant definitely stated  that  the  first respondent by himself and through his agent committed  major corrupt practices, one of which was the hiring or  procuring of  Ahmed  Jan’s  motor  bus.   The  Tribunal  found,  on  a consideration of the evidence adduced in the case, that  the motor  bus  was  procured by the first  respondent  and  his conduct  in  this  respect, as disclosed  by  the  evidence, showed that his voters were being carried by Ahmed Jan  with his knowledge and connivance.  It may be pointed out that in -paragraph  9 of the petition the petitioner clearly  stated that the corrupt practices were committed by respondent  No. 1,  or his agents, or by several persons with his  knowledge and  connivance.  The finding of the Tribunal arrived at  on this point is a finding of fact based on evidence adduced by the  parties and it is not in any way outside the  pleadings or inconsistent therewith. The  other  ground put forward by the High  Court  that  the Tribunal   exceeded  its  jurisdiction  in   declaring   the appellant to be the duly elected candidate, although it  had no  materials to come to the conclusion that he  could  have secured  more  votes   than  respondent No. 1  but  for  the corrupt practices committed by the latter, seems to us to be without  substance.  It appears that the learned Judges  did not properly advert to the findings arrived at on this point by the Election Tribunal.  The petitioner, it may be  noted, got  only  34  votes less than the  respondent  No.  1.  The Tribunal  has  found that the bus of Ahmed  Jan,  which  was procured  by  respondent  No. 1, did carry  to  the  polling booths   about   60  voters  in  two  trips  and   in   the, circumstances of the case it could 264 be legitimately presumed that the majority of them did  vote for  respondent No. 1. If the votes of at least 40 or 50  of these  persons be left out of account as being  procured  by corrupt  practice  of  the first  respondent,  the  latter’s majority  by 34 votes would be completely wiped out and  the petitioner would gain an undisputed majority.  In  paragraph 33 of its judgment the Tribunalstates as follows: "Hence  on the 14th issue we hold that the petitioner  would have  obtained a majority of votes had it not been  for  the aforesaid  corrupt  practices  on  the  part  of  the  first respondent." Thus  the finding is there and there is evidence in  support of  it.  Whether it is right or wrong is another 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 Tribunal exceeded its jurisdiction in dealing with  this matter. We  now come to what the High Court has described as  errors apparent on the face of the record.  These errors, according to  the  High  Court,  appear in respect  of  three  of  the findings  arrived  at by the Tribunal.  The first  of  these findings relates to the time when the polling at Booth No. I at Ajjampur commenced on the date of election.  The Tribunal has  held that the time fixed by notification was 8 A.M.  in the morning but the polling did not commence till 25 minutes after  that and the result was that a number of voters  went away.   It  is said that some of these voters would  in  all probability have voted for the appellant and as there was  a



difference  of only 34 votes between him and the  respondent No.  1  the  results of the election  have  been  materially affected  by this irregularity or violation of the  election rules.  There was evidence undoubtedly to show that some  of the voters went away as the polling did not 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  duly  elected  candidate holding 265 that he could have secured more votes than respondent No. 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  discussed 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 under  section 100(2) (c) of the Act.  This, the Tribunal *as competent  to do under the provisions of the Act and in doing so it  could take into consideration the circumstances And  probabilities of  the case.  But as we have stated already,  the  Tribunal declared the appellant to be duly elected upon the  specific finding  that, but for the corrupt’ practice  of  respondent No.  I in the matter of procuring the service bus  of  Ahmed Jan, the appellant would have got majority of the votes.  We cannot say that this is an error apparent on the face of the record  which would entitle the High Court to  interfere  by writ of certiorari. As  regards  the  other two findings,  one  relates  to  the receiving  of  assistance from Paramessh warappa, who  is  a Patel, by respondent No. 1, in furtherance of his  prospects of  election.   The High Court does not  dispute  the  facts alleged  by the appellant that Paramesshwarappa  accompanied the  first  respondent  and actually  canvassed  at  several places and that he openly canvassed at one polling booth  on the polling day.  The ]earned Judges say that even if  these facts  are  believed,  they only  establish  that  Paramessh warappa  canvassed  for the petitioner but  that  would  not amount  to  respondent No. 1’s taking assistance  from  him. This does not seem to us to be a proper view to take.  There was  allegation by the appellant of the respondent  No.  1’s taking  assistance  from  a Government  servant  within  the meaning  of  section  123(8) of the Act.  In  proof  of  the allegation evidence was given of the facts mentioned  above. If  from  these  facts, which were found  to  be  true,  the Tribunal  drew  the  conclusion  that  there  )lad  been  an assistance taken from a Government 266 servant  which  would  come within the  purview  of  section 123(8)  of the Act, it is impossible to say that this is  an error apparent on the face of the record. The  remaining  finding  relates to the  allegation  of  the petitioner  that  the  respondent No. 1  in  his  return  of election  expenses omitted to include several items  and  if they had been taken into account the election expenses would have  exceeded the sanctioned limit.  The Tribunal has  held that the respondent No. 1 omitted to include, in his  return of  expenses,  the  petrol charges, the  hiring  charges  in respect  of  some cars and vans hired by him  and  also  the dinner expenses incurred in the hotels.  The High Court  has observed  that as regards the first item the finding of  the



Tribunal  is  based  on  no  evidence  and  rests  on   mere speculation.   We do not think that we can accept this  view as  correct.  The first respondent stated that he  had  used two cars which were his own and incurred petrol expenses  to the  extent  of Rs. 1,083-3-0.  The Tribunal  has  found  in paragraph  29 of its order on the basis of both  documentary and  oral  evidence that the respondent No. I had  used  six other cars and had purchased petrol for them for the purpose of his election campaign.  The Tribunal held that the  first respondent  must  have spent not less than the  sum  of  Rs. 1,250 on this account which was not included in the list  of expenses.   We are unable to say that this finding rests  on no evidence. As  regards the omission to include hiring charges the  High Court  has  observed that the Tribunal did  not  record  any finding  that such hiring was proved.  The Tribunal  has  in fact found that as regards some cars they were hired,  while others had been taken on loan, the money value for their use having been paid by the first respondent which is tantamount to saying that he had to pay the hiring charges.  The matter has  been  dealt with in paragraph 29(d) of  the  Tribunal’s order and the entire evidence has been gone through.  We are unable  to  say that the finding of the  Tribunal  that  the respondent  No.  1 had omitted to include in his  return  of election expenses the dinner and hotel charges is a  finding unsupported by any evidence.  Reference may be made in  this connection to paragraph 29(f) of the 267 Tribunal’s order which deals with the matter in detail.   On the whole our opinion is that the so-called apparent  errors pointed out by the High Court are neither errors of law  nor do  they  appear on the face of the  record.   An  appellate Court  might  have on a review of this evidence  come  to  a different  conclusion but these are not matters which  would justify  the issue of a writ of certiorari.  In our  opinion the judgment of the High Court cannot be supported and  this appeal  must be allowed.  The writ issued by the High  Court will therefore be vacated.  We make no order as to costs  of this appeal. Appeal allowed.