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Judgment
Nigam, J.C.
This is a petition under Arts. 226 and 227 of the Constitution of India praying that this Court be pleased to call for the record of Election Petition No. 233 of 1952, to quash the judgment of the Election Tribunal, dated 22-5-1953, in so far as it relates to issue No. 5, to substitute the part of the judgment quashed by a proper order or to direct respondent No. 1 to dispose of the case by making a proper order in place of the part of the judgment quashed. The petitioner has not pressed the prayer that this Court should substitute the part of the judgment quashed by a proper order.
The facts alleged by the petitioner are that the petitioner was duly elected to the Ajmer State Legislative Assembly and this election was challenged by an election petition filed by respondent No. 2 Madan Singh on the ground that the petitioner held an office of profit and had been guilty of corrupt and illegal practices. Respondent No. 2 prayed that the petitioner''s election be declared void and respondent No. 2 be declared duly elected to the State Legislative Assembly. In that election petition respondent No. 3 Munshiram, whose nomination paper was rejected by the Returning Officer and respondent No. 4 Lalchand, who had withdrawn from the contest, were also made parties. Respondent No. 3 filed a written statement on 6-10-1952 urging an additional ground that his nomination paper had been illegally rejected and that the election was materially affected by this rejection. He urged that the election of the petitioner be declared void, but respondent No. 2 was not entitled to a declaration that he had been duly elected. Respondent No. 2 had not in his petition urged the ground that respondent No. 3''s. nomination paper had been improperly rejected. Respondent No. 3 never filed any election petition against the petitioner and did not file any recrimination against respondent No. 2 under S. 97, Representation, of the People Act, 1951 (Act No. 43 of 1951).
The Election Tribunal framed issue No. 5 on the additional ground urged by respondent No. 3 and by its order, dated 22-5-1953, declared the election of the petitioner void on the ground that the nomination paper of respondent No. 3 had been illegally rejected. It is urged that the judgment of the Election Tribunal so far as it relates to issue No. 5 is erroneous and made without jurisdiction on the ground that the election of the petitioner could not be called into question except by an election petition and on grounds urged therein, the Election Tribunal acted without jurisdiction in taking cognizance of a plea raised by respondent No. 3 in his written statement.
Notice of the petition was issued to the four respondents. I have heard the learned counsel for the petitioner and the learned counsel for respondent No. 2. Respondent No. 3 has also addressed me. Respondents Nos. 1 and 4 have not put in appearance. The petition has been heard ex parte against them.
It is contended by the learned counsel for respondent No. 2 that the petition is not maintainable as no writ can be issued under Arts. 225 and 227 of the Constitution in the circumstances of the case. A writ under Art. 226 can be issued for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. It is conceded that no fundamental right is involved. The learned counsel has for the interpretation of the phrase ''any other purpose'' relied on -- ''Govind Prasad v. State of Bhopal'', AIR 1952 MP 1 (A); -- ''M. Ananthramiah v. Venkat Ratnam'', AIR 1953 Hyd 228 (B) and -- The State of Orissa Vs. Madan Gopal Rungta, . The last mentioned ruling lays down:
The concluding words of Art. 223 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under this Article.
As such, there must be an infringement of some legal right before the jurisdiction of the court be invoked.
The learned counsel for respondent No. 2 has urged that no legal right has been infringed. I have been referred to -- N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, In para. 18, their Lordships held that the right to vote or to stand as a candidate for the election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. I have also been referred to -- ''Stricklandlord v. Giuseppe Grima'', AIR 1930 PC 227 (E). Therein it was held that decisions on questions relating to the membership of legislative bodies were not decisions of mere ordinary civil rights. The learned counsel for the petitioner has referred me to -- Sheo Kumar and Another Vs. V.G. Oak and Others, The learned counsel for respondent No. 2 however, points out that in that case it was conceded by both the parties that the Election Tribunal functioning at Allahabad was subject to the jurisdiction of the High Court under Art. 226 of the Constitution. It is also argued by the learned counsel for the petitioner that the right of the membership to legislative bodies flows from statute and is a statutory right, There can, however, be no doubt that it is ''not an ordinary civil right.
The main objection, however, is that the jurisdiction of this Court is ousted by the provisions of Art. 329(b) of the Constitution. It is urged that this Court is not entitled to exercise supervision over the Election Tribunal.
The first contention of the learned counsel is that the power of supervision has to be exercised in the manner similar to that laid down in Cls. 2 and 3 of Art. 227. I am unable to agree with this. The learned counsel is unable to cite any authority in support of his contention. The plain language of the article clearly shows that Cls. 2 and 3 do not, in any way, affect, the provisions of the first clause.
The next contention is that this power was not intended to extend over Tribunals created under Part XV of the Constitution. It is conceded that sub-clause 4 excludes only Tribunals constituted by or under any law relating to the Armed Forces. But it is argued that the power does not extend over Tribunals created under the provisions of the Constitution itself. No provision in the Constitution except Art. 329 to which I will refer later, can be said to take away the power of superintendence which this Court exercises under Art. 227 over an Election Tribunal when once it has been constituted to hear a petition. I am, therefore, unable to attach any weight to this contention.
The learned counsel for respondent No. 2 has next contended that Part XV creates a separate and parallel agency for the exercise of the supervision and, as such, even though Cl. 4 of Art. 227 does not exclude the supervisory power of the High Court, they are excluded by the provisions of Arts, 324-329. The learned counsel has relied on -- N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, Their Lordships then laid down:
Article 329(b) ousts the jurisdiction of the Courts with regard to matters arising between the commencement of the polling and the final selection. If Part XV of the Constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a special tribunal to the exclusion of all Courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process namely acceptance or rejection of nomination paper to be made the subject matter of contest before the High Courts and thereby upset the time schedule of the elections.
It is thus settled law that Art. 329(b) ousts the jurisdiction of the Courts with regard to matters arising between the ''commencement of the polling'' and the ''final selection''. The learned counsel for respondent No. 2 has urged that the whole process of election upto the declaration of the result is excluded from the jurisdiction of the Court. It is also urged Chat the result of the election is not finally declared till the conclusion of the trial of the election petition, if any by the tribunal appointed for the purpose. Section 98 of Act 43 of 1951 reads:
At the conclusion of the trial of an election petition the Tribunal shall make an order--
(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void; or
(c) declaring the election of the returned candidate '' to be void and the petitioner or any other candidate to have been duly elected; or
(d) declaring the election to be wholly void.
The learned counsel''s contention is that under Cl. (c) the Tribunal may not only declare the result of the returned candidate to be void, but may also declare the petitioner or any other candidate to have been duly elected. It is suggested that, as such, in certain cases, the result] of the election is not finally declared and the final selection not known till the result of the election petition is announced and, as such, all proceedings before the Election Tribunal must be deemed to be proceedings in election and therefore the extraordinary powers conferred under Art. 227 can-not be exercised.
The learned counsel for the petitioner has, on the other hand, referred me to Art. 324 and the preamble to Act 43 of 1951. Article 324(1) reads:
The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (referred to in this Constitution as the Election Commission).
The learned counsel argues that the superintendence of the work of the election Tribunals has not been vested in the Election Commission. Had that been the intention, the Article would have been differently worded and instead of specifying that the power included the power of appointment of Election Tribunals for a particular purpose, the article could have easily stated that the sphere of superintendence included decision of doubts and disputes arising out of or in connection with elections.
The next point urged in the same connection is that the words used are ''doubts and disputes arising out of or in connection with elections'' and not ''in the course of the elections''. The learned counsel''s contention is that it is clear that the process of election comes to an end with the declaration of the result of the polling and does not cover the adjudication of disputes ''arising out of or in connection with'' elections and it was to remove doubts whether the power of appointment of the Election Tribunals vested in the Election Commission that this power of appointment was specifically mentioned in Art, 324(1).
Another argument relied upon is that the interpretation put forward by the learned counsel for respondent No. 2, if adopted would lead to an absurdity. It is urged that, according to the contention of the learned counsel for respondent No. 2, ail Election Tribunals are to be supervised by the Election Commission. Doubts and disputes connected with elections to the offices of the President and Vice-President have under Art. 71(1) of the Constitution to be inquired into and decided by the Supreme Court. It is pointed out that if the contention of the learned counsel for respondent No. 2 is accepted, we would be faced with the anomaly that the Supreme Court while acting under the powers conferred on it by Art. 71(1) would be subject to the superintendence of the Election Commission, a state of affairs which could never have been intended.
The learned counsel has next urged that S. 153, Representation of the People Act, 1951 visualises the extension of time for completion of the election. It is suggested that in cases in which election petitions were presented, there was no extension of the period by which the elections had to be completed. The argument is that the Election Commission itself holds that election is completed as soon as the result of the polling is announced. Under S. 74 the names of the members elected to the State Legislative Assembly are published and these members are for all purposes treated as duly elected. The learned counsel points out that there can be no ''elected'' persons till the process of election has been completed.
Lastly the learned counsel has urged that the other High Courts have held that a writ can be issued against the Election Tribunals. I am referred to -- ''Sivathanu v. Kumara'', AIR 1953 TC 274 (G). It was therein held:
Article 329(b) of the Constitution and Ss. 105 and 170 of the Act of 1951 do not take away the jurisdiction of the High Court over Election Tribunal if the Tribunal acts without jurisdiction........
The learned counsel has also referred to -- ''Hukam
Singh v. Sardul Singh'', AIR 1953 Pepsu 133 (H); wherein it was held that the Election Tribunal is a court of justice amenable to control of High Court. The question was considered at p. 136, column 1, and it was held that:
An Election Tribunal created to determine an election petition, after the result of the election has been declared, is in my view not immune from the superintending control of the High Court
In -- ''Jamnaprasad v. Lachhiram'', AIR 1953 MP 197 (I), also it was held that Art. 329(b) did not take away the jurisdiction of the High Court in regard to the proceedings before the Election Tribunal. The same view was held in -- ''Babulal v. Jagat Narain'', AIR 1953 VP 51 (J).
On a consideration of the arguments, I am of opinion that Art. 329(b) does not bar the jurisdiction of the High Court to exercise supervision over an Election Tribunal constituted after the declaration of the election result to decide disputes connected with the election or arising out of the same.
The next contention of the learned counsel for respondent No. 2 is that tills Court should not issue a writ as there is no one who can carry out its directions. It is pointed out that the Election Tribunal was appointed for a limited period and that it has now ceased to exist. My attention has been drawn to notification No. 19/233/52-Elec. III, dated 19-7-1952, published in the Gazette of India, dated 26-7-1952, part I, S. I, at p. 362. The learned counsel has pointed out that a separate Election Tribunal was appointed for the trial of each of the seven election petitions mentioned in the notification. It is stressed that with the completion of the work entrusted to it, the particular Tribunal to which Shri Madan Singh''s petition was referred has ceased to exist. The learned counsel for the petitioner has argued that the Election Tribunal has not ceased to exist as it has not, as yet, completed its task. The argument is that till the petition has been disposed of in accordance with the law, the Tribunal continues to exist even though it may be dormant. I am unable to accept this contention for otherwise, the Tribunal would continue to exist till all remediable processes had either been availed of or had become barred by time.
In the alternative the learned counsel has urged that if this Court vacates the order passed by the Election Tribunal, the Election Tribunal will be automatically revived. I am unable to accept this view either. The election Tribunal was appointed by the Election Commission and on the completion of its task, it has ceased to exist. It can be revived or re-appointed only by the Election Commission and an order of this Court vacating the order passed by the Election Tribunal will not automatically revive the Election Tribunal. All that this Court can do is to vacate the order. It cannot revive the Tribunal. It is therefore not permissible to issue a direction that the Tribunal should dispose of the election petition in accordance with directions given by this Court.
The next objection in the same connection is that the Tribunal''s decision has already been communicated to the Election Commission which has to take further action. It is contended that if this court takes any action, the Election Commission will be affected by the directions issued by this Court. The argument is that the, Election Commission is not a party to these proceedings. No order giving any directions to the Election Commission can be passed by this Court. By vacating the order of the Election Tribunal, this Court would be indirectly issuing instructions to the Election Commission to cease taking further action and also to annul notifications already issued by it. It is argued that this Court will not do indirectly what it cannot do directly. In these circumstances, it is suggested that no directions should be issued by this Court. The learned counsel for the petitioner has argued that the Election Commission is only an executive agency for taking certain actions consequent on the judgment of the Election Tribunal. It is pointed out that no relief is being sought against the Commission and its rights will not be affected by any order that may be passed by this Court. On that basis it is argued that there is no bar to the exercise of the discretionary powers of the Court.
The Election Commission is not situated within the territorial jurisdiction of this Court and hence it is not subject to the writ process of this Court. For all intents and purposes, any writ issued by this Court will affect the actions of the Election Commission and it will be compelled, if the writ is to be respected, to follow a course of conduct other than it has chosen at present. If the Election Commission chooses to ignore the writ of this Court, then this Court will have no authority to enforce it. I am, therefore, of opinion that it would be wrong not only in principle but also against the practice of the courts to issue the directions prayed for.
On merits also, I am of opinion that the petitioner is not entitled to any relief. That the Tribunal had jurisdiction to hear and decide the petition entrusted to it is conceded. That Shri Munshi Ram''s objection was not a recrimination in terms of S. 97 of Act 43 of 1951 cannot be disputed as the objection that his nomination paper had been improperly rejected was not a recrimination against Shri Madan Singh but an argument supporting his case so far as the first relief claimed by him that the election of the returned candidate be declared void is concerned. The question for my determination therefore is whether the Election Tribunal was right in permitting this additional ground to be raised in a written statement filed by Shri Munshi Ram.
The contention of the learned counsel for the petitioner is that the Election Tribunal had to decide the petition that had been presented. The learned counsel refers me to the provisions of S. 80 and urges that no election can be called into question except by an election petition presented in accordance with the provisions of Part III of Act 43 of 1951. The argument is that the Election Tribunal exceeded its jurisdiction in taking into consideration a ground that has not been mentioned in the election petition, but was raised in the written statement of one of the respondents. It is pointed out that it was open to the respondents themselves to file election petitions challenging the election of the present petitioner, but they had to do so within the time prescribed. It is urged that no respondent can be permitted to circumvent this by being permitted to take the same objection by way of an additional plea raised in a written statement presented at a time when he could not have raised the same plea in an election petition.
This raises the question whether the Tribunal had power to permit an amendment of the election petition and also whether a party to the petition was entitled to raise such an objection in his written statement. I am unable to accept the contention of the learned counsel that the Tribunal is bound under the law to confine itself to the contents of the election petition. Section 197 permits the presentation of a recrimination and it cannot be argued that the Tribunal is not empowered to consider the merits of that recrimination. As such, it is clear that the Tribunal is not disentitled from taking into consideration facts which are not mentioned in the election petition.
It is contended that the Tribunal is constituted for the trial of the election petition as already presented and therefore cannot permit amendment of the petition, but must decide it as it is. My attention is drawn to S. 83(3) of Act 43 of 1951 which permits the Tribunal to allow amendment only of the particulars mentioned in the lists accompanying the petition. The learned counsel for the petitioner has referred to -- '' AIR 1953 MP 197 (I)'' and relies on head-note (f) which lays down that the trial of an election petition commences after the filing of a reply and when the points in controversy between the parties are settled and their investigation begins. The learned counsel for respondent No. 2 has referred me to -- Sitaram Hirachand Birla Vs. Yograjsing Shankarsing Parihar and Others, wherein it was held that the trial of the election petition begins as soon as it is instituted (i.e., as soon as the petition is entrusted to the Tribunal).
There may be difference of opinion as to whether the Tribunal could or could not allow amendment of the petition itself. The specific mention of the right to allow amendment of the particulars in the lists might suggest that the authority does not extend to allow amendment of the original petition itself. But I am of opinion that the Election Tribunal certainly had jurisdiction to decide whether it could permit an amendment of the petition and whether it was entitled to consider an objection raised in the written statement. That question concerns the rights of the parties to the proceedings and I am of opinion that it was within the jurisdiction of the Tribunal to decide whether the parties before it could raise such objections against the co-respondent, i.e., whether the parties to the proceedings had all the rights granted to parties by the CPC which has been made applicable to the proceedings before the Tribunal subject to the provisions of Act 43 of 1951 by S. 90(2) of the Act, or whether their rights were in any manner specifically or by necessary implication limited by the provisions of Act 43 of 1951.
A number of rulings have been cited before me during the course of the arguments, but I do not consider it necessary to refer to them as the question before me is not whether the Tribunal had jurisdiction to decide the petition or even whether the Tribunal had the right to decide the existence of certain preliminary facts determining its jurisdiction. The question in the present case relates to certain details after the Tribunal had become seised of the election petition which it had beyond doubt jurisdiction to hear and decide. I need refer only to '' AIR 1953 Pepsu 133 (H)'', from which the following passage has been relied on:
The Legislature has given the Election Tribunal jurisdiction to determine the existence of the preliminary facts on which further existence of its jurisdiction would depend.
In -- '' AIR 1953 MP 197 (I)'', it was held that the Tribunal had jurisdiction to determine finally whether a person desiring to give evidence had satisfied the conditions laid down in S. 97 of the Act. Both those questions are related to facts which had to be determined before the jurisdiction could be exercised. In the present case I am of opinion that the question calling for determination arose in the course of the proceedings and did not affect the jurisdiction of the Tribunal to hear and decide the petition. Even if it is urged that these questions were really questions relating to facts a decision on which determines the jurisdiction of the Tribunal the two rulings referred to above are sufficient authority for the conclusion that the Tribunal had jurisdiction to decide those questions.
It cannot be urged with any force that this Court can interfere with decisions within jurisdiction even if they are wrong. Several authorities have been cited before me, but I need refer only to -- Ebrahim Aboobakar and Another Vs. Custodian General of Evacuee Property, Head-note (b) reads:
A writ of certiorari cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. It must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly.
The decision of the Election Tribunal has been challenged before me only on the ground of jurisdiction. I have held that the Tribunal had jurisdiction to decide the question. I am, therefore, of opinion that even if the decision is incorrect, this Court will not interfere.
I have not considered it necessary to discuss the question of acquiescence urged by the learned counsel for respondent No. 2.
No other point has been pressed before me.
I, therefore, reject this application with costs to respondent No. 2 which I assess at Rs. 100/- (Rupees one hundred) only. Respondent No. 3 was not represented by any counsel and there will be no order as to costs in his favour.