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H. Abdul Wahid Abdul Ghani Vs. Dr. Balkrishna Vishunath Keskar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1044 of 1958
Judge
Reported inAIR1960All113
ActsRepresentation of the People Act, 1951 - Sections 117; Constitution of India - Article 226
AppellantH. Abdul Wahid Abdul Ghani
RespondentDr. Balkrishna Vishunath Keskar and ors.
Appellant AdvocateIqbal Ahamd, Adv.
Respondent AdvocateR.S. Pathak, Adv.
Excerpt:
.....this power conferred on the governor-general by the government of india act 1935 that certain treasury rules were made giving formal authorisation to prescribe procedures on the matters mentioned in the preface, or to make exceptions to general rules in specified cases, where necessary the result is that even departmental instructions on matters of minor importance or on subjects special or peculiar to the department concerned have the force of a statute, having been issued by a person duly authorised by the governor-general in exercise of his powers to grant that authorisation under sub-section (1) of section 151 of the government of india act, 1935. all the treasury rules contained in vol. pathak that there was no duty cast on the tribunal to look at the treasury rules and..........to be utilised by it in the manner authorised by law.his further contention is that the treasury rules, government orders and the evidence of the deputy accountant general, which were taker, into account by this court when deciding the case of bhuvanesh bhushan sharma : air1958all587 are pieces of evidence which cannot be react in the present case by this court and could not have been taken into account by the election tribunal, and, if those pieces of evidence are excluded from consideration the decision of that case that the entry of the head of account was by itself sufficient to show that the deposit was in favour of the secretary, election commission cannot be arrived at in this case.he has thus tried to distinguish the present case from that case and we have, therefore, to.....
Judgment:

V. Bhargava, J.

1. Haji Abdul Wahid has filed this petition under Article 226 of the Constitution for the issue of a writ of certiorari to quash a decision of the Election Tribunal, Allahabad dated 25-9-1957, by which the Tribunal dismissed under Section 90(3) of the Representation of the People Act an election, petition which had been presented by the present petitioner challenging the election of opposite party No. 1, Dr. Balkrishna Vishunath Keskar, to the House of the People from the Sultanpur Mus-firakhana Constituency No. 358.

The ground, on which the Tribunal dismissed the election petition under Section 90(3) of the Representation of the People Act, was that the Government Treasury receipt attached to the election petition by the petitioner when he presented the election petition to the Election Commission, did not show that the sum of Rs. 1,000/- deposited as security had been deposited in favour of the Secretary, Election Commission. The Tribunal held that the provisions of Section 117 of the Representation of the People Act were mandatory and, since the receipt did not have inscribed on it the words 'in favour of the Secretary, Election Commission,' there was non-compliance with the provisions of Section 117 of the Representation of the People Act- It is this decision that has been challenged by this writ petition.

2. When this writ petition came up for hear-ing before us, a very similar point bad already been decided by this Court in Bhuvanesh Bhushan Sharma v. Election Tribunal, Farrukhabad : AIR1958All587 . It was held in that case that if the head of account prescribed by the Central Government for the deposit of security for costs of an election petition was correctly shown in a Government Treasury receipt, it necessarily followed that the deposit was in favour of the Secretary, Election Commission, and consequently the entry of the head of account was sufficient to show that the deposit was in favour of the Secretary, election Commission. Subsequent to that decision by this Court, there has also been a decision by the Supreme Court in Kamaraja Nadar v. Kunju Thevar : [1959]1SCR583 where the Supreme Court held as follows :

'What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the cost of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of Rs. 1,000/-has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else.

If, therefore, it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the Chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of Section 117. No such literal compliance with the items of Section 117 is at all necessary as is contended for on behalf of the appellant before us.'

Prima facie, these two decisions would show that the order of the Election Tribunal dismissing the election petition in the present case was incorrect because the correct head of account was entered in the Government Treasury receipt which was attached to the election petition. Mr. Fathak, learned counsel for opposite party No. 1, Dr. Balkrishna Vishunath Keskar, has however urged that decision of this Court in Bhuvnesh Bhushan Shanna's case : AIR1958All587 should not be applied to this case, because the decision in that case proceeded on the basis of an examination of certain treasury rules and government orders and further on the evidence of a Deputy Accountant General who was examined in this Court during the hearing of that case, whereas no such evidence is before this Count or was adduced before the Election Tribunal in the present case.

In advancing this argument, learned counsel relied on the view of the Supreme Court in the case of Kamaraja Nadar : [1959]1SCR583 cited above where the Supreme Court gave the decision that it could be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan was such that the Election Commission could, on a necessary applicaition made in that behalf, be in a position to realise a sum of Rs. 1000/- for payment of the cost to the successful party. The Supreme Court having recognised that evidence could be led, Mr. Pathak has contended that, in the present case also it was necessary that the petitioner should have led evidence in order to establish the fact that the money deposited by him was at the disposal of the Election Commission to be utilised by it in the manner authorised by law.

His further contention is that the treasury rules, government orders and the evidence of the Deputy Accountant General, which were taker, into account by this Court when deciding the case of Bhuvanesh Bhushan Sharma : AIR1958All587 are pieces of evidence which cannot be react in the present case by this Court and could not have been taken into account by the Election Tribunal, and, if those pieces of evidence are excluded from consideration the decision of that case that the entry of the head of account was by itself sufficient to show that the deposit was in favour of the Secretary, Election Commission cannot be arrived at in this case.

He has thus tried to distinguish the present case from that case and we have, therefore, to consider whether, in the present case, the Election Tribunal had before it any material or that it was bound to take into account any material and, if so, whether that material was sufficient to arrive at the same decision which was arrived at in the case of Bhuvanesh Bhushan Sharma : AIR1958All587 .

3. There can, of course be no doubti that, so far as the evidence of the Deputy Accountant General in the case of Bhuvanesh Bhushan Sharma : AIR1958All587 was concerned, that evidence was confined to that particular case only and any evidence given by him in that case before this Court cannot be taken info account when deciding the present writ petition, nor could it possibly have been taken in account by the Election Tribunal when dealing with the election petition of the present petitioner. It has, however, to be kept in view that the decision of this Court in Bhuvanesh Bhushan Sharma's case : AIR1958All587 did not turn on the evidence of the Deputy Accountant General.

The judgment of that case itself makes it clear that the actual decision about the effect of the entry of the correct head of account in the receipt was based on the Central Government Treasury Rules and the relevant government order which were notified for the information of the public. The Deputy Accountant General was examined mainly for the purpose of discovering whether there were any other rule and order which had not come to the notice of the Court and for the additional purpose of interpreting one of the rules on which the word 'refund' had been used.

The Court was inclined to interpret that word 'refund' in a certain manner and the Deputy Accountant General was questioned to make it sure that that interpretation was correct & was the interpretation which formed the basis of the actual procedure in the treasuries. Consequently, even if the evidence of the Deputy Accountant General had been entirely ignored, the decision of the Court would have been the same in Bhuvanesh Bhushan Sharma's case : AIR1958All587 as the one which has been given after taking some assistance from the evidence of the Deputy Accountant General. The result is that, in the present case, if the evidence of the Deputy Accountant General which was confined to the case of Bhuvanesh Bhushan Sharma : AIR1958All587 alone, is not taken into account but the rest of the material is taken into account, we would still arrive at the same decision.

4. Mr. Paithak has, however, further contended that even the treasury rules and the government orders governing the deposits in connection with these elections were not tendered as evidence before the Election Tribunal and should not be taken into account by us when deciding the present writ petition. This argument has not appealed to us. Section 117 of the Representation of the People Act lays down that the deposit is to be made in a Government Treasury and the Government Treasury receipt issued in pursuance of that deposit is to accompany the election petition when it is presented to the Election Commission,

This section, therefore, recognises that there are government treasuries which issue receipts after accepting deposits. In order to properly apply that section it is essential that the rules which govern such deposits in the treasuries, must be taken into account. The question whether those rules are statutory rules or merely departmental rules governing the procedure of the treasuries does not seem to be material. Once She legislature required the filing of a Government Treasury receipt after making a deposit in a government treasury, the Election Commission and the Election Tribunal, which had to consider whether the receipt was or was not a proper receipt, could only do so after looking at the rules governing the procedure in those treasuries.

In fact, even for the purpose of deciding whether a receipt attached to an election petition is a Government Treasury receipt, reference to the rules governing the treasuries will certainly be necessary. It appears to us, therefore, that from the very nature of the provisions contained in Section 117 of the Representation of the People Act an inference arises that the rules governing the treasuries have to be looked into by the authorities who have to decide the validity of the deposit.

5. Apart from this, there is the fact that at least the rules which govern the treasuries, have the force of a statute. It appears from the Government of India publication entitled 'Compilation of the Treasury Rules, Vol. I' that the rules confined therein were framed by the Governor General in exercise of the power conferred on him by Sub-section (1) of Section 151 of the Government of India Act, 1935, which, runs, as follow:

'151(1): Rules may be made by the Governor-General and by the Governor of a Province for the purpose of securing that all moneys received on account of the revenues of the Federation or of the Province, as the case may be, shall, with such exceptions, if any, as may be specified in the rules, be paid into the public account of the Federation or of the Province and the rules so made may prescribe, or authorise some person to prescribe the procedure Ito be followed in respect of the payment of moneys into the said account, the withdrawal of moneys therefrom, the custody of moneys therein, and any other matters connected with or ancillary to the matters aforesaid.'

The preface to the Government of India publication entitled 'Compilation of the Treasuries Rules, Volume I, mentions the facie that these treasury rules were framed by the Governor-General in exercise of that power. There is a further mention, that certain executive instruction's relating to resource, currency, coinage and allied subjects which do not fall strictly within the scope of Sub-section (1) of Section 151 of the Government of India Act, 1935, were also included in the volume but they were curtained in Part XIV of that volume. In the present case, the provisions contained in Part 14 of the volume are not required to be referred to and, consequently, we need not consider how far those provisions have the force of a statute.

There is a further mention in the preface that details of departmental instructions on matters of minor importance or on subjects special or peculiar to the department concerned have been left to be prescribed by the departmental regulations and the formal authorisation to prescribe procedure in these matters, or to make exceptions to general rules in specified cases have been provided, where necessary, by means of rules included in the Treasury Rules it is to be noticed that in Sub-section (1) of Section 151 of the Government of India Act. 1935, it was specifically laid down that the rules made by the Governor-General could prescribe, or authorise some person to prescribe, the procedure to be followed in respect of the payment of moneys into the account of the revenues of the federation, the withdrawal of moneys therefrom, the custody of moneys therein, and any other matters connected with or ancillary to the matters aforesaid.

The Government of India Act, 1935, thus specifically empowered the Governor-General either to himself issue instructions on such matters or to authorise some other person to do so. Clearly, it was under this power conferred on the Governor-General by the Government of India Act 1935 that certain treasury rules were made giving formal authorisation to prescribe procedures on the matters mentioned in the preface, or to make exceptions to general rules in specified cases, where necessary The result is that even departmental instructions on matters of minor importance or on subjects special or peculiar to the department concerned have the force of a statute, having been issued by a person duly authorised by the Governor-General in exercise of his powers to grant that authorisation under Sub-section (1) of Section 151 of the Government of India Act, 1935. All the treasury rules contained in Vol. I of the Compilation of the Treasury Rules, except those in Part XIV of that Volume, are thus statutory rules and courts and tribunals, when deciding cases, have to refer to them in exactly the same manner as they are required to refer to laws properly promulgated. In fact, these rules stand on the same footing as any properly published law which has come into force. In these circumstances, it was the duty of the Tribunal to look of these rules not only on the ground that the provisions of Section 117 of the Representation of the People Act indicate that it would be necessary to do so but also on the ground that these rules have the force of a statute and any ignorance of these rules by the Tribunal would be a manifest error apparent on the face of the record. It is true that it cannot be held in the present case that the Election Tribunal, in dismissing the election petition on the ground of non-compliance with the provisions of Section 117 of the Representation of the People Act, committed any error of jurisdiction. Interference by this Court in its writ jurisdiction is soughs on the ground that the Tribunal committed a manifest error apparent on the face of the record. The Supreme Court, in T.C. Basappa v. T. Nagappa : [1955]1SCR250 and Hari Vishnu Kamath v. Ahmad Ishaque : [1955]1SCR1104 , laid down the principle applicable when a court is requested to issue a writ of certiorari on the ground of an error in the decision or determination itself. The Supreme Court held :

'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 an 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.'

In the present case, not only is the principle laid down by the Supreme Court applicable but this case appears to us to be fully covered by the example given by the Supreme Court. The Supreme Court held that where decision is based on clear ignorance or disregard of the provisions of law, it would be a manifest error apparent on the face of the record and the decision would be amenable to a writ of certiorari. In the present case, the contention of Mr. Fathak that the treasury rules were not examined by the Election Tribunal would mean that the Tribunal gave its decision on clear ignorance of those rules which had the force of law. The example envisages two types of cases: One set of cases would be those where there is disregard of the provisions of law, meaning cases in which the relevant provisions of law are brought to the notice of the court or the tribunal but the Court or tribunal disregards them.

The other set of cases are those where the decision is based on clear ignorance of the provisions of law which position can only arise when the provisions of law are not brought to the notice of the Court or tribunal at all and the court or tribunal also does not for itself discover the relevant provisions of law. The contention of Mr. Pathak that there was no duty cast on the Tribunal to look at the treasury rules and interfere by issue of a writ of certiorari when those rules were not brought to the notice of the Tribunal is, therefore, clearly untenable. Consequently, if the rules were not brought to the notice of the Tribunal, the decision of the Tribunal would have to be held to be one based on clear ignorance of the provisions of law and this would, therefore, be a fit case for correcting that error by issue of a writ of certiorari on the principle laid down by the Supreme Court in the two cases cited above.

6. We may also mention that even on facts we were not quite satisfied that, in reality, the decision of the Election Tribunal was given in complete ignorance of the treasury rules even though there is no specific mention of those rules in the order dismissing the election petition under Section 90(3) of the Representation of the People Act. In that order there is a reference to another decision given by the Tribunal in Election Petition No.192 of 1957, Mahendra Pal Singh v. Mohan LalGautam and the decision in that case was followedby the Tribunal in the present case. It is truethat the Tribunal made a reference only to thatpart of the decision in the earlier case where ithad been held that the requirements of Section 117of the Representation of the People Act were ofa mandatory character. 1To us, however, it appeared that, in fact, theTribunal, when deciding the present case, reliedupon its decision in the earlier case not merely onthe question whether Section 117 of the Representation of the People Act was of a mandatory character but also on the further points discussed in thatcase on the basis of which the Tribunal had heldthat there had been failure to comply with the requirements of Section 117 of the Representation ofthe People Act. In the light of this impression,we questioned learned counsel for the parties whobad appeared before the Election Tribunal. ShriIqbal Ahmad, who has appeared for the presentpetitioner before us, had also appeared for him before the Election Tribunal.

He stated that when this election petition came up for hearing before the Election Tribunal, the Tribunal made a remark that it had already heard arguments in Mohan Lal Gautam's case, Election Petn. No. 192 of 1957 and asked Sri Iqbal Ahmad whether he had anything more to say. Shri Iqbal Ahmad, who had nothing to add to the arguments that had been advanced in the case of Sri Mohan Lal Gautam, thereupon said that he could not say anything at all. This version of Shri Iqbal Ahmad was borne out by the statement of Shri R.S. Pathak who had appeared on behalf of the respondent in the election petition. Dr. Balkrishna Vishunath Keskar. The decision of the Election Tribunal in Sri Mohan Lal Gautam's case Election Petn. No. 192 of 1957 was reported in the U. P. Gazette (Extraordinary) dated 8-11-1957 at page 9.

It would appear from that Judgment that, at the time of deciding that case, the Election Tribunal made a reference not only to the Central Government Treasury Rules but also to the U. P. Financial Handbook. It is true that, during arguments in the present case, the points which had been canvassed in the case of Shri Mohan Lal Gautam, were not repeated and gone into all over again but in the light of the comments made in the order of the Election Tribunal and the statements made by learned counsel before us, we can only arrive at the finding that all the material which was before the Election Tribunal when dealing with the case of Shri Mohan Lal Gautam must also be treated as having been before the. Election Tribunal when dealing with the election petition of the present petitioner.

This being the position, it is clear that the Election Tribunal had before it all the necessary rules and certain orders issued by or on behalf of the Auditor General of India or the Accountant General of Uttar Pradesh. There is, of course, no mention of the instructions contained in the Government of India, Ministry of Finance letter No. D-490-BI/52 dated 22-1-1952. which was also taken into account in the case of Bhuvanesh Bhushan Sharma : AIR1958All587 but it appears to us that the latter having been published for public information, it should also have been, taken into account by the Tribunal. On these materials, the decision of the Election Tribunal was clearly wrong for which view we need give no further reasons as all of them are already contained in the Judgment of this Court in the case of : AIR1958All587 cited above:

7. Mr. Pathak, in opposing the present petition under Article 226 of the Constitution urged one more point which we may deal with. Mr. Pathak made a reference to a decision of this Court in Mehnga Ram v. Labour Appellate Tribunal of India at Lucknow : (1957)ILLJ603All to a decision, of the Bombay High Court! in Gandhinagar Motor Transport Society v. State of Bombay : AIR1954Bom202 and to a decision of the Calcutta High Court in Messrs. Satya Narayan Transport Co. Ltd. v. Secretary, State Transport Authority, West Bengal : AIR1957Cal638 in which cases it was held that a High Court will not ordinarily issue a writ of certiorari on the basis of a point which was not taken or urged before the court or tribunal whose order is sought to be interfered by issue of that writ and urged that, in the present case., since it was not urged before the Election Tribunal that the entry of the correct head of account in the treasury receipt was sufficient proof to show that the deposit was in favour of the Secretary, Election Commission, and was a valid deposit, that point should not be allowed to be raised in the present writ petition and should not be the basis for the issue of a writ of Certiorari.

It appears to us that this argument completely ignores the reason for which we are interfering with the order of the Election Tribunal. The point whether the deposit was a valid deposit or whether it suffered from the defect that it was not in favour of the Secretary, Election Commission, was specifically canvassed before the Election Tribunal. That is precisely the point which we are called upon to decide in the present writ petition. Even the treasury rules, which had to be referred to, were before the Election Tribunal. Even if they were not before the Election Tribunal, the Tribunal made a manifest error apparent on the face of the record in deciding the election petition in complete ignorance of those treasury rules which had the force of law.

If the rules are referred to, they show that the decision of the Tribunal is clearly and manifestly incorrect. The petitioner has no other alternative remedy except to come up for relief from this Court under Art, 226 of the Constitution. In these circumstances, this is clearly a fit case where the Court should correct the error committed by the Election Tribunal in exercise of its powers under Article 226 of the Constitution.

8. The result is that this petition is allowedand the order of the Election Tribunal dated 25-9-1957, is quashed. The petitioner will be entitledto his costs of this petition which we fix at Rs. 100/-.The result of our order is that the election petitionof the petitioner shall be deemed to be still pending and the Election Tribunal shall now proceedto decide it in accordance with the law.


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