1. I have had the advantage of reading the judgment of my learned brother and I entirely concur. I would, however, like to add a few words as to the meaning to be given to the words 'error apparent on the face of the record'. I conceive that in the English cases from which this expression has been borrowed the emphasis is not upon the word 'error' but upon the words 'apparent on the face of the record', that is to say that error must be such as can be ascertained from the record as it exists or should exist.
2. In 'Walsall Overseers v. London and North Western Rly. Co/, 1878-4 AC 30 (A), Lord Cairns, Lord Chancellor, stated, at_ page 39 :
'If there was upon the face of the order of the Court of Quarter Sessions anything which shewed that that order was erroneous, the Court of Queen's Bench might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the Court found error upon the face of it, to put an end to its existence by quashing it.'
3. In 'Rex v. Nat Bell Liquors', 1922-2 AC 128 (B), Lord Sumner stated, at page 155 of the Report:
'The key of the question is the amount of material stated or to be stated on the record returned and brought into the superior Court. If justices state more than they are bound to state, it may, so to speak, be used against them, and out of their own mouths they may be condemned, but there is no suggestion that, apart from questions of jurisdiction, a party may state further matters to the Court, either by new affidavits or by producing anything that is not on or part of the record.' Again, at page 159 of the Report, Lord Sumner added :
'When the Summary Jurisdiction Act provided, as the sufficient record of all summary convictions, a common form, which did not include any statement of the evidence for the conviction, it did not stint, the jurisdiction of the Queens' Bench, or alter the actual law of certiorari. What it did was to disarm its exercise. The effect was not to make that which had been error, error no longer but to remove nearly all opportunity for its detection. The face of the record 'spoke' no longer; it was the inscrutable face of a sphinx.'
The same point is clearly brought out in -- 'Rex v. Northumberland Compensation Appeal Tribunal', 1952-1 KB 338 (C), Lord Justice Denning states at page 349 of the Report:
'The record had to contain everything necessary to show that the Justices had jurisdiction to deal with the matter, and it had to set out their adjudication; but it was not necessary to set out either the evidence or the reasons. If a point of law arose, however, on which either party desired the ruling of the King's Bench, he could ask the justices to make a speaking order, that is, to make a special entry upon the record of the reasons for their judgment. The justices were not bound to do this, but they usually did so if they entertained a doubt about the point. When their reasons thus appeared on the record, the Court of King's Bench would on certiorari inquire into their correctness, and, if the reasons were wrong, would quash the decision.'
4. Their Lordships of the Supreme Courthave held in -- 'T. C. Basappa v. T. Nagappa : 1SCR250 , in a passage quoted at length by my learned brother that the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting writs in English law are applicable to India.
5. If any position as to the scope of certiorari other than that laid in the English decisions were adopted, it might well be that the High Court, having discovered an error on the record, would be bound to allow that error to subsist because it was not one of sufficient gravity to justify interference. Such a position has been negatived by this Court in --'Kishan Singh v. Board of Revenue, U. P. at Allahabad : AIR1955All557 , and by the Supreme Court in -- 'Sangram Singh v. Election Tribunal, Kotah : 2SCR1 , in passages which my learned brother has quoted and which it is not necessary for me to repeat.
6. In the present case, therefore, it is open to us to examine the order of the Chancellor which is a 'speaking order' to consider the interpretation which he places on the statute & the reasons therefor which he gives and on finding that he misinterpreted the relevant provisions of the statute, to quash his order in the exercise of our power of certiorari.
7. This is an appeal under Chapter VIII. Rule 5 of the Rules of Court against a judgment of a Single Judge of this Court allowing a petition under Article 226 of the Constitution filed by the respondent, Dr. Ishwari Prasad.
8. Briefly, the facts, which gave rise to the petition, are that the respondent, Dr. Ishwari Prasad, was a Professor in the University of Allahabad, appellant 2, and the Head of the Department of Political Science until 13-3-1954, the date on which he retired from the service of the University. He was also a member of the Academic Council of the University and as such was an ex officio member of the Court under head (vi) of Section 17 of the Allahabad University Act, 1921.
The Court is the supreme governing body of the University under the Act and the executive body of the University is the Executive Council. The constitution of the Executive Council is laid down in the Statutes which are to be found in Chapter II of the Statutes, Ordinances and Regulations made under the Act. The Executive Council consists of twenty members of whom six are members of the Court elected by the Court at its annual meeting. In the annual meeting of the Court held in November 1952, the respondent was elected to the Executive Council.
One of the limitations placed by the Statutes on the powers of the Court to elect six of its members to the Executive Council is that two of the persons so elected must be members who themselves were elected as members of the Court by the registered graduates. Out of the six persons elected by the Court to the membership of the Executive Council, four were persons who had been elected to the Court by the registered graduates but the respondent was not one of those four persons,
9. Under head (xviii) of Section 17 of the Act read with clause (2) of the first Statute relating to the Court, the Chancellor of the University is empowered to appoint not more than 15 persons to be members of the Court and by a letter dated 8-3-1954, the Chancellor, in the exercise of the powers so vested in him, appointed the respondent to be a member of the University Court in place of Sri K.L. Misra. The express words in the letter of appointment which are relevant for the consideration of the petition are
'With effect from the date of the former's retirement (that is, the retirement of the respondent) from the post of Professor and Head of the Department of Political Science of the Allahabad University, viz. March 12, 1954, for the' residue of the term of office of Sri K..L. Misra, viz. up to December 14, 1955.'
It is admitted by the parties that in this letter reference to March 12 is a mistake for March 13. The respondent admittedly retired from the University with effect from 13-3-1954 and consequently his nomination to the membership of the Court com-menced with effect from his retirement and was to last till December, 14, 1955.
10. The question which arose before the University authorities was whether the respondent con-tinned to be a member of the Executive Council alter 13-3-1954 in view of the provisions of the Statute, Clause (2) of the first Statute relating to the Executive Council provides that the members of the Council other than ex officio members shall hold office for a period of three years, but there is a proviso appended to this clause which reads as follows :
'Provided that a member appointed or elected as a member of a particular body or as the holder of a particular post shall hold office so long only within that period as he continues to be a member of that body or the holder of that post, as the case may be.'
The question having arisen as to whether the case of the respondent fell within the ambit of this proviso, the Vice-Chancellor referred the matter for decision to the Chancellor under the provisions of Section 42 of the Act. On 20-8-1954, the Chancellor, by an order pf that date, decided that the respondent was not entitled to, continue to be a member, of the Executive 'Council. Thereupon a petition was filed in this Court under Article 226 of the Constitution for the issue of a writ of certiorari to quash that; decision and also for the issue of a writ of mandamus directing the appellants not to interfere with the attendance of the respondent at meetings of the Executive Council and in the peformance of his functions as such member.
In the petition, the Registrar University of Allahabad, the University of Allahabad through the Vice-Chancellor, the Vice-Chancellor of the University of Allahabad as holding the office of Vice-chancellor and the Chancellor of the University of Allahabad were impleaded as opposite-parties. The petition was contested on behalf of all the opposite-parties and the learned Single Judge of this Court, by his order dated 29-10-1954, upheld the contentions raised by the petitioner-respondent and allowed the petition.
A writ of certiorari was issued quashing the order of the Chancellor dated 20-8-1954. The prayer for a writ of mandamus, however., was refused in the circumstances of the case.. The order of the learned Single Judge has, now been challenged in this appeal.
11. The first point to be considered is whether the Chancellor, acting under Section 42 of the Allahabad University Act, constituted a quasi-judicial tribunal and any decision by him under the said section was, therefore, subject to the superintendence of this Court or he was acting only administratively.
12. The question whether a power is judicial or quasi-judicial or it is merely administrative has to be decided upon the language of the Statute, upon the nature of the power and, the consequences of its exercise upon the rights of others and the exigencies of the situation. The main thing to be considered is whether the authority concerned has to decide a dispute between two parties or it has merely to take note of the dispute to inform its mind before it exercises the power conferred upon it in its discretion. In the former case it acts judicially or quasi-judicially but in the latter case it acts administratively.
The principle on which it can be determined whether an authority has acted judicially, quasi-judi-cially or administratively has been considered in the case of Province of Bombay v. Khusaldas S. Advani : 1SCR621 . In order to decide this question it is necessary to refer to the provisions of Section 42 of the Act which reads as follows:--
'If any question arises whether any person has bteen duly elected or appointed as, or is entitled to be, a member of any authority or other body of the University, the matter shall be referred to the Chancellor, whose decision thereon shall be final.'
The Chancellor has not only to exercise his discretion but he has to take a decision thereon which necessarily implies that, in determining the dispute referred to him, he had to act judicially. The question, which can be referred to him under Section 42, is also whether any person has been duly elected or appointed, which necessarily implies that the Chancellor has not to consider the question whether in his opinion a person has been elected or appointed but has to determine whether he has been duly elected, that is, in accordance with the provisions of the Statute. It has therefore, been rightly conceded by the Advocate General that the Chancellor constituted a tribunal the decision of which is subject to the superintendence of this Court under Article 226 of the Constitution.
13. The point, which was strongly urged before the Single Judge, was that this Court had no authority under Article 226 of the Constitution to quash, by a writ of certiorari, an order made by a tribunal subject to the superintendence of this Court on the ground that it is, on the face of it, erroneous in law; the jurisdiction of this Court to interfere with orders passed by subordinate tribunals under Article 226 of the Constitution is limited to the cases where a tribunal has exceeded its jurisdiction or has acted against the principles of natural justice in the exercise of its limited jurisdiction; there is no power in this Court to exercise its jurisdiction under Article 226 of the Constitution in cases where the decision by a subordinate tribunal is erroneous in law on the face of the record.
In view of recent decisions of the Supreme Court, however, the learned Advocate General has conceded that it is open to this Court to quash thedecision of an inferior tribunal if it is erroneous in law on the face of the record.
14. Article 226 of the Constitution is couched in very wide terms. It gives power to the Indian High Courts to interfere, Under its supervisory jurisdiction, with the orders of inferior tribunals somewhat in the same manner as the court of King's Bench in England. Whatever restrictions there are, they have been placed by the courts themselves having regard to the fact that the Article gives a discretion to superior courts which is to be exercised OB well-known judicial principles.
The scope of the High Courts to interfere with decisions of inferior tribunals by issuing a writ of certiorari has now been finally determined by the Supreme Court in the case of Hari Vishnu v. Ahmad Ishaque : 1SCR1104 . Their Lordships, after considering all the Indian authorities as well as the authorities of the English Courts, have laid down that
'It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.'
In this very case, their Lordships have approved of the principle laid down by the court of appeal in England in the case of 1952-1 All E R 122 (C). In an earlier case of : 1SCR250 it was observed by their Lordships as follows;
'In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.'
It was also held by this Court in : AIR1955All557 (E) that
'the power of this Court to issue a writ of certiorari is not confined to the grounds where the subordinate court has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on the face of the record.'
The main question, therefore, canvassed before us was that the order passed by the Chancellor could not be regarded as an error apparent on the face of the record. At the highest it could only be regarded as a mere error of law and even on the principle laid: down by their Lordships of the Supreme Courts in Kamath's case (H), referred to above, it was not liable to be quashed by this Court
As has been observed by their Lordships of the Supreme Court in Kamath's Case (H), the real difficulty is not in staring the principle but in its application to the facts of a particular' case. Their Lordships observed as follows:
'When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.
Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J. in Batuk K. Vyas v. Surat Borough Municipality : AIR1953Bom133 that no error could b(c) said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another.
The fact is that what is an error apparent on the face of the record 'cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.'
15. From this statement of law, it is clear that no exhaustive definition can be given to the words 'error apparent on the face of the record'. It will not entirely depend upon the nature of the error or upon the degree of the error. Each case will have to be determined on its own facts. A superior court or tribunal will have to examine an order itself and decide whether the order, in the circumstances of that particular case, can be regarded as erroneous on the face of the record or a mere error of law.
It was contended by the Advocate General that the words 'error apparent on the face of the record occur in Order 47 of the Code of Civil Procedure and it may be useful to refer to cases where the courts have determined the scope and ambit of the words 'error apparent on the face of the record' in Order 47, Rule 1 of the Code of Civil Procedure. In our opinion, it is not a safe guide to rely upon the cases interpreting the words 'error apparent on the face of the record' in Order 47, Rule 1, Civil P. C., in order to determine the scope of these words in connection with the power of: this Court to issue a writ of certiorari under Article 226 of the Constitution.
When a court is asked to review its own order, it may not be a valid ground for the court to say that, as it finds on the reconsideration of its order that it is illegal, it should be set aside as it is an error apparent on the face of the record. It may be different where a superior tribunal is called upon to decide whether any erroneous decision of an inferior tribunal is illegal on the face of it.
It was then contended by the Advocate General that in cases where the inferior tribunal has, in the opinion of the superior tribunal, incorrectly interpreted any Statute, it will only be a mere mistake of law and cannot be regarded as an error apparent on the face of the record. We do not see that that is a test which can be applied in all cases and can be accepted as correct.
16. In 'Kamath's case (H)', the Supreme Court quashed the decision of the Election Tribunal on the ground that it had not properly interpreted the scope and ambit of Section 100 of the Representation o the People Act. The respondent before the Supreme Court in that case had been duly declared elected a member of the Parliament. 301 votes, which were found in the ballot box of the respondent in that case, had been added to his votes.
If these 301 votes had been deducted from the total votes said to have been obtained by him, he could not have been declared elected and one of the questions, therefore, before the Election Tribunal was whether those votes were proper votes and could be counted for the respondent. By mistake the ballot papers of the State Legislature were issued to the electors of the Parliament and the electors, when voting for the respondent in that case, had placed the ballot papers of the Legislative Assembly in his box.
The contention of the petitioner in that case was that they were invalid votes and could not be counted in favour of the respondent. The Election Tribunal held that they were invalid votes and should have been rejected but, as, in their opinion, the addition of those votes did not materially affect the results of the election, the election could not be set aside. The Tribunal, in holding that the results-of the election were not materially affected by the addition of these votes, relied upon certain extraneous circumstances.
The Tribunal held that although those ballot papers were not valid in view of the provisions o Rule 47, the fact that they were found in the ballot box of the respondent indicated that the electors exercised their choice in favour of the respondent and consequently the result of the election was not materially affected. There were other circums-stances which were considered by the Tribunal in coming to that conclusion.
The Supreme Court, on the interpretation of Section 100, Representation of the People Act held that it was, not permissible for the Tribunal to consider the intention of the electors in deciding whether the result of the election had been materially affected. It was observed at page 248 of the Report after referring to Rules 47 and 48 of the Rules framed under the Act that---
''Under this rule quite clearly no candidate can be declared elected on the strength of votes which are liable to be rejected under Rule 47. The expression 'the result of the election' in Section 100(l)(c) must, unless there is something in the context compelling a different interpretation, be construed in the same sense as in S. 66, and there it clearly means the result on the basis of the valid votes.'
In my opinion, therefore, in that case it was nothing but an erroneous interpretation of the pro-visions of a Statute which was considered by the Supreme Court as 'an error apparent on the face of the record.' The determination of the questions as to what is the scope and the ambit of a particular provision of a Statute and what matters can legitimately be determined by a tribunal under the provisions of a particular Statute is nothing else but interpreting a Statute.
17. In the case of 1952-1 All ER 122 (C), which was approved by their Lordships of the Supreme Court, the facts were that the applicant in that case had been awarded compensation for loss o employment as clerk to a joint hospital board by the Gosforth Urban District Council as compensating authority, and he had appealed against the award to the tribunal on the ground that the compensating authority had failed to take into account his service with the district council, as required by the regulations. The tribunal upheld the decision of the compensating authority.
The applicant moved the Divisional Court of the King's Bench Division for an order of certiorari to remove the decision of the tribunal into the High Court to be quashed on the ground that the decision was erroneous on the face thereof. In the Divisional Court both the tribunal and the compensating authority were respondents to the motion. They both admitted that their decisions were wrong and that an error of law appeared on the face of the decision of the tribunal but they contended that the court had no power to make an order of certiorari since the tribunal had not acted without jurisdiction.
In the circumstances of that case a writ of certiorari was issued by the King's Bench Division and that decision was upheld by the Court of Appeal. What was considered to be an error apparent on the face of the record was nothing but interpretation of certain regulations made by the compensating authority and the tribunal.
18. In the case of -- 'Rex v. Westminster Compensation Appeal Tribunal and Sell; Ex Parte Road Haulage Executive', 1953-1 All ER 687 (J), this case was followed and a writ of certiorari was granted by the Court of Appeal. In that case, the second respondent, George James Sell was awarded by the tribunal appointed by the Minister of Labour and National Service compensation for the loss of emoluments suffered by him when certain transport undertakings of which he was a servant, were acquired by the applicants, the Road Haulage Executive, under the Transport Act, 1947. The amount of compensation was calculated in accordance with the provisions of the Transferred Undertakings (Compensation to Employees) Regulations, 1950, schedule II, para 5 (2), on the ground that the respondent had a right to the payment of compensation in the event of discharge within the meaning of para 4(1) (i) of the schedule.
It was admitted by the applicants in that case that the respondent had a right to claim damages for wrongful dismissal, but the contention was that such a right was not included in the phrase 'compensation in the event of discharge.' On that contention a motion was made for an order of certiorari to quash the award which was dismissed by the Divisional Court. On appeal, the Court of Appeal allowed the appeal and the award of the Tribunal was quashed.
19. In Halsbury's Laws of England, ThirdEdition, Volume II, page 61, para 118, under the head -- Error on the lace of the proceedings --the law has been laid down that-
'Where upon the face: of the proceedings themselves it appears that the determination of theIinferior tribunal is wrong in law, certiorari to quash will be granted .... Certiorari to quash will be granted where the charge laid before the magistrates, as stated in the information, does not constitute an offence punishable by the magistrates or where it does not amount in law to the offence of which the defendant is convicted or where an order is made which is unauthorised by the finding of the magistrates.'
20. Mr. Pathak,, on the other hand, contended that the words 'an error apparent on the face of the record' only means that if an error is revealed on the perusal of the judgment itself, it is nothing else but an error apparent on the face of the record. It is the duty of this Court to finally determine the law of the land.
Having declared what the law is on which the decision of a particular controversy depends, it is for the superior court to examine the decision of an inferior tribunal and see if the said law has been correctly followed by the inferior tribunal. If it finds on the face of the order, which is, a speaking order, that it had not observed the law as determined by the superior tribunal inasmuch as it has held contrary to that law, it can quash the order of the inferior tribunal. In this connection reliance was placed on the following observations of this Court in the case of : AIR1955All557 :
'This decision, to our mind, clearly lays down that the power of this Court to issue a writ of certiorari is not confined to the grounds where 'thesubordinate court has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on the face of the record. The difficulty does arise in deciding whether a particular error of law is an error on the face of the record.
To our mind, if a certain order passed by the subordinate tribunal gives the reasons for the decision, that is to say, it is a speaking order as it is termed by English Courts, then it is open to this Court, in the exercise of its power under Article 226 of the Constitution, to scrutinise the reasoning of the subordinate Tribunal so far as can be done without going outside the order itself, examine it and if this Court finds that the reasons are manifestly wrong on a question of law and the conclusions arrived at by the courts below are apparently erroneous then it is open to this Court to exercise its jurisdiction under Article 226 of the Constitution and quash such a decision.'
21. Reference in this connection may also be made to the following observations of their Lordships of the Supreme Court in the case of : 2SCR1 . That was a case where the Supreme Court was dealing with an order passed by an Election Tribunal. One of the contentions raised at the bar was that the Election Tribunal having been constituted for special purposes under the Act of Legislature, any decision arrived at by the said Tribunal should be considered as final and neither the High Court nor the Supreme Court should interfere with such an order in the exercise of its powers under Article 226 of the Constitution.
Reliance was also placed on' the express provisions of Section 105 of the Representation of the People Act. Dealing with that argument, the following observations were made by their Lordships of the Supreme Court:
'The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. The High Courts and the Supreme Court alone can determine what the law of the land is vis-a-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136 (of the Constitution).'
22. In order, therefore, to see whether the Chancellor has committed an error apparent on the face of the record, I have to consider the relevant provisions of the Statute and the reasonings given by the Chancellor for his decision.
23. The whole of the Statute which provides for the membership of the Executive Council and of which the proviso is a part is as follows ;
'1. (1) ............
Class I -- Ex-Officio Members.
The Deans of the Faculties.
Class II -- Other Members.
(i) Six members of the Court, elected by the Court at its annual meeting of whom two must be from among members of the Court elected by the registered graduates;
(ii) (a) Two Principals, elected by the Principals of Colleges, and
(b) One member elected by the Wardens, the Chairman of the Delegacy and the Proctor from among themselves;
(iii) Two members elected by the Academic Council from its own body;
(iv) Three members appointed by the Chancellor.
(2) Members other than ex-officio members shall hold office for a period of three years.
Provided that a member appointed or elected as a member of a particular body or as the holder' of a particular post shall hold office so long only within that period as he continues to be a member of that body or the holder of that post, as the case may be.'
Clause (2) of the Statute fixes the tenure of the membership of the members other than the ex-officio members. In the absence of any proviso, the result would have been that all those, who were elected as members of the Executive Council by the Court by virtue of their membership of the Court, would have continued to be members of the Executive Council for three years even though during that period they may have ceased to be members of that Court. Similar results would have followed in the case of members under Clause (ii) of Class II.
The members, who would have been elected by the Principals of colleges, would have claimed membership for three years although during that period they may have ceased to be Principals and to hold that office. In order to avoid this result the proviso seems to have been enacted and on the interpretation of the plain language of the proviso, 'to our mind, it only means that any member elected as a member of the Executive Council by virtue of his being a member of a particular body, that is, the Court, he will hold office, that is, he will remain member of the Executive Council so long only within that period as he continues to be a member of the Court.
In other words, the condition for the continuance of office as a member of the' Executive Council, in the case of a member elected by the Court, is his continuance as a member of the Court. It is an admitted fact that on 13-3-1954, the respondent was a member of the Court and also he continued to be a member of the Court on 14-3-1954. It cannot, therefore, be said that at any point of time he ceased to be a member of the Court. On the plain language of the proviso, therefore, he continued to be a member of the Court and as such he did not cease to be a member of the Executive Council.
24. The view taken by the Chancellor was that as he was a member of the Court by virtue of his being a member of the Academic Council, he belonged to the class of ex-officio members of the Court and his capacity of membership was changed when he was nominated to be a member of the Court by the Chancellor with effect from his retirement. It could not, therefore, be said that he continued to be a member of the Court. In support of the view taken by the Chancellor, it was contended by the Advocate General that if the status of the member changed during his period of membership, e.g. an ex-officio member becomes a life member although his membership of the Court continues without interruption, it is not in the eye of law the same membership and in the eye of law he cannot be regarded to continue to be a member within the meaning of the proviso.
In this connection it was also argued by the Advocate General that in properly construing the intention of the framers of this proviso, it was relevant to consider what could have been the intention of the electors when they elected the respondent to the membership of the Executive Council. ....The members of the Court, when they elected him to the membership of the Executive Council, must have visualised that the respondent was a member of the Court ex-officio by virtue of his membership of the Academy Council and his membership was liable to cease as soon as he ceased to be a member of the Academic Council., If the proviso is interpreted in a manner other than that suggested by the Chancellor, the result will be that the respondent will continue to be a member of the Executive Council though that may never have been intended by the electors.
25. I do not think that there is any force in this contention of the Advocate General. In interpreting the intention of the framers of the Statute, the primary thing, which is to be considered, is the language of the Statute. The intention has to be deduced from the language. The words are to be given their plain meaning and if the words used by the framers of the Statute are plain in their meaning, it is not permissible to deduce the intention of the framers from considerations extraneous to the meaning of the words used' by the framers of the Statute.
It is not necessary to refer to authorities on this point. It is a well settled principle of interpretationof Statutes that the intent of an enactment has to be determined by the language of the Statute. It is not permissible for courts to travel beyond the language of the Statute and try to fish the intention of the framers from considerations which the courts regard reasonable. It would be really legislating and not interpreting.
Having regard to the plain language of the proviso 1 am of opinion that any person, who continues to be member of the Court, will continue to be a member of the Executive Council and a mere change in his capacity, that is, the qualification under which he becomes a member of the Court, will not disentitle him to remain a member of the Executive Council, it has been accepted by the Advocate General before us as well as before the learned Single Judge that the interpretation put by him on the proviso will necessarily involve the addition of certain words. The proviso has to be construed as if after the phrase 'a member of that body' there are deemed to be added the words 'in the same capacity as he was elected or appointed to it. It is a well-known rule of construction that in the absence of anything to modify or qualify, the words used in the Statute must be given their plain meaning and that it is not open; to add words to a Statute, it was observed by their Lordships of the Privy Council in the case of --'Kamalaranjan Roy v. Secretary of State that 'the Court cannot put into an Act words which are not expressed and which cannot reasonably be implied on any recognised principle of construction.' Nothing should be import-, eel into an enactment merely on the basis of a speculation as to the intention of the Legislature.
26. The Chancellor has, however, tried to import the concept of capacity from the word 'continue'. In order to examine the reasoning of the Chancellor, it will be necessary to refer to a part of his order. Paragraph 9 of the order of the Chancellor reads as follows :
'The word 'continue' is defined in the Oxford Dictionary as meaning, 'to carry on; 'keep up'; 'maintain'; 'persist in'; 'to remain in existence or in its present condition'; 'to last, endure or persist in being'; 'to remain (in a specified state or capacity)'. The word 'continue' carries with it the sense of a running nature of things under the same conditions, that is, without a break in capacity, time, sequence, tenure or essence.
While construing the words 'continue in office' Baron Alderson in -- 'Oswald v. Mayor of Berwick-Upon Tweed', (1856) 5 HLC 856 (805) (L) said that to establish continuance the duties 'prima facie must not be changed; its liabilities and checks must not be varied; not even its duration and tenure varied.' Mere juxtaposition of two distinct periods of time without persistence of these essential attributes would not, therefore, be continuance.'
The case referred to by the Chancellor was a case where the court was called upon to interpret certain words in a security bond and the words used therein were 'to continue in the said office'. In interpreting those words, it was observed that the words 'to continue in the said office' necessarily implied the continuance of the duties, liabilities and checks. In the present case, it has not been pointed out that any change has been brought about in the duties or liabilities or checks of the respondent as a member of the Court. The qualification entitling him to become a member of the Court may have changed but his duties and liabilities as a member of the Court underwent no change.
Nothing has been pointed out in the Statute or in the Act which will go to show that the duties and the liabilities qua the membership of the Court are different of the ex-officio members from that 'of the other members. Even the dictionary meaning quotedby the Chancellor, to our mind, makes no difference so far as the interpretation of the word 'continue' is concerned. Emphasis appears to have been laid by the Chancellor on the words 'in a specified state or capacity within brackets after the words 'to remain.' Even it is be accepted that the part within the brackets forms part of the meaning of the word 'continue', it cannot be said that the 'specified state or capacity' of the respondent 'changed. In our opinion, therefore, the plain meaning of the proviso is that so long as a member of the Executive Council, who had been clected by the Court, remains a member of the Court, he continues to be member of the Executive Council. There is nothing in the language of the proviso to justify the interpretation that the change of qualification will result in the extinction of his membership of the Executive Council.
27. It was lastly contended by the Advocate General that there were various meanings given to the word 'continue' in dictionary and it was open to (he Chancellor to select any one of those mean-Ings and having selected that meaning and interpreted the proviso on the strength of that meaning, it cannot be said that the interpretation placed by the Chancellor is erroneous on the face of the record. I do not see that there is any substance in this contention.
A word may be given different meanings in a dictionary but what is the meaning which is to be given to that word in a Statute has to be determined in the light of the provision of the Statute in which that word has been used. It docs not give any power to the inferior tribunal to just arbitrarily select any meaning given to a word used in the Statute in dictionary but the superior court can examine whether the particular meaning given by the inferior court was the meaning which could be given to that word in that particular provision.
This Court has only to examine the' provisions of the Statute and the reasoning given by the Chancellor to come to the conclusion that the interpretation put by the Chancellor on the word 'continue' is erroneous on the face of it and cannot be accepted. The error committed, therefore, by the Chancellor, in my opinion, was an error apparent on the face of the record and his decision can be quashed by this Court in 'the exercise of its power under Article 226 of the Constitution.
28. Some argument was also addressed by Mr. Beg who appeared on behalf of the University. His contention 'was that as the Chancellor was an inferior tribunal created under the Statute for the specific purpose of determining the matters connected with the University and as finality has been given to his decision under Section 42, it is not open to this Court to interfere with the decision of the Chancellor in the exercise of its writ jurisdiction.
In effect, his argument was that, although there is no limitation on the powers of tin's Court, under Article 226 in the exercise of this power, this Court 'will not interfere with the decisions of domestic tribunals. I do not see that there is any force in this contention. So far as the effect of the words 'decision thereon shall be final' occurring in Section 42 is concerned, we have already referred to the case of the Supreme Court wherein the provisions' of Section 105 of the Representation of the People Act were considered end it was argued that as the decision of the Election Tribunal under that section' was final, it was not amenable to the jurisdiction of the High Court under Article 226 of the Constitution. That contention was precisely repelled by the Supreme Court.
As regards the contention that this Court will not interfere with the decision of a domestic tribunal in the exercise of its power under Article 226 of the Constitution, we are of opinion that when undersome Statute creating a tribunal, the tribunal is called upon to act judicially, any decision by such tribunal can be interfered with by this Court in appropriate cases and no general rule can be laid down that all decisions of such tribunals, which can be called domestic tribunals, cannot be interfered with'; by this Court.
29. It was also contended by Mr. Beg that the final jurisdiction given to High Courts and the Sup-eme Court to determine the law of the land does not apply to the cases where the law which is determined is a law which is liable to be changed by the domestic authorities and is not an enactment of any Legislature. I do not think that any such distinction can be drawn. Any order passed by the Chancellor had the result of affecting the right of the respondent as a member of the Executive Council and consequently such a determination was subject to the supervisory jurisdiction of this Court.
30. Mr. Pathak, who appeared for the respondent, further contended that the respondent was also nominated as a member of the Court on behalf of the Nepal Government. As that nomination became effective before he retired from the University, on the strength of that nomination it was open to him to contend that he continued to be a member of the Court within the meaning of the proviso. The learned Single Judge did not go into this question as he was going to allow the petition on the other point. As we are also agreeing with the view of the learned Single Judge, on the other question, it is not necessary for us to go into this question.
31. In the result, therefore, I would dismiss this appeal with costs.