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Dandapani Das Vs. Mohan Nayak and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 30 of 1953
Judge
Reported inAIR1954Ori67
ActsConstitution of India - Articles 226 and 227; Evidence Act, 1872 - Sections 167; Code of Civil Procedure (CPC) , 1908 - Sections 107
AppellantDandapani Das
RespondentMohan Nayak and ors.
Appellant AdvocateH. Mohapatra and ;R.N.Misra, Advs.
Respondent AdvocateP.V.B. Rao and ;B. Mohapatra, Advs.
DispositionPetition dismissed
Cases ReferredIsrail Khan v. State
Excerpt:
.....under article 226 to interfere with the order of the tribunal was canvassed at some length. the election tribunal is undoubtedly a judicial tribunal and it clearly comes within the scope of the superintending powers of this court under article 227. in that case it was held relying on -manmatha nath v. state',air 1951 assam 106 (k), that though this court will not constitute itself into a court of appeal it may interfere if the order of the tribunal is bad on the face of it or with a view to prevent obvious miscarriage of justice where the lower court has acted in abuse of its jurisdiction. 18. this question, however, is somewhat academic in the present case because even if it is assumed that our powers under article 227 are wider than those under article 226 i am not satisfied that..........under arts. 226 and 227 of the constitution and we are asked to issue a writ of certiorari on the election tribunal and quash its aforesaid decision in exercise of the powers vested in us under article 226.3. in an able argument presented by mr. mohapatra, learned counsel for the petitioner, two points have been pressed upon us. firstly, that the tribunal admitted inadmissible evidence & therefore, acted in excess of its jurisdiction, secondly that apart from jurisdiction the reasoning adopted by the tribunal is not such as to justify the conclusion drawn by them and that the order requires to be set aside on that ground.4. as regards the first contention it has been assumed, for purposes of the proceedings in this case, that the language or article 227 is comprehensive enough to enable.....
Judgment:

Panigrahi, C.J.

1. This case raises a short, but important point relating to the jurisdiction and powers of the High Court under Articles 226 and 227 of the Constitution.

2. The petitioner states that in January 1952 he had been returned as a member of the Orissa State Legislative Assembly, to represent the scheduled castes in the Berhampur Constituency. Opposite party No. 1, Mohan Nayak filed an election petition under Section 81, Representation of the People Act (Act 43 of 1951) challenging the validity of the election of the petitioner, along with some others his contention being that the election of returned candidates was void on the grounds stated in Sections 100 and 101 of the said Act. The election petition filed by opposite party No. 1 was referred to a tribunal constituted under the Act, for trial and was registered as Election Case No. 4 of 1952. The Tribunal, by its order dated 17-3-1953, declared the election wholly void under Section 101 (a), (b) and (c), Representation of the People Act & directed that the present petitioner should be disqualified from being a member of either the Parliament or the State Legislature, for a period of six years under Section 140 of the said Act. This order of the Tribunal was published on 26-3-1953 under Section 106 of the Act. The present petition was filed on 30-3-1953 under Arts. 226 and 227 of the Constitution and we are asked to issue a writ of certiorari on the Election Tribunal and quash its aforesaid decision in exercise of the powers vested in us under Article 226.

3. In an able argument presented by Mr. Mohapatra, learned counsel for the petitioner, two points have been pressed upon us. Firstly, that the Tribunal admitted inadmissible evidence & therefore, acted in excess of its jurisdiction, secondly that apart from jurisdiction the reasoning adopted by the tribunal is not such as to justify the conclusion drawn by them and that the order requires to be set aside on that ground.

4. As regards the first contention it has been assumed, for purposes of the proceedings in this case, that the language or Article 227 is comprehensive enough to enable this Court to exercise its powers of superintendence over the election tribunal. It is also fairly well-settled, and the position has not been seriously controverted, that superintendence would include judicial review, though it must be borne in mind that the power of superintendence is not unlimited and cannot be employed to correct every form of hardship. The ordinary rule is that the superior Court having power of superintendence would seldom interfere on questions affecting the merits of the decision except when the mutter comes up on appeal. On the other hand every tribunal which has to decide rights after taking evidence, in amenable to the writ of certiorari. The Election Tribunal exercises judicial functions and is directed to follow the recognised law of procedure. If, therefore, any error of law or of procedure has been committed, the order can be brought up to the superior Court for being quashed. In this respect no distinction can be drawn between civil and criminal proceedings. Learned Counsel, therefore, contended that writ of certiorari in a more appropriate remedy under Article 226, in a case of this kind. The question is whether such a remedy is available.

5. The mere fact that some evidence which may not be strictly admissible has been admitted, is no ground for setting aside the decision of an inferior Court. Section 167, Evidence Act provides for such contingencies and says that improper admission of evidence is not itself a ground for the reversal of a decision if it shall appear to the Court that, independently of the evidence objected to, there was sufficient evidence to justify that decision.

The main attack of learned counsel is that the evidence of P. Ws. 7, 8 and 9 should not have been accepted. The tribunal, however, appears to have relied not only on the evidence or these three witnesses but also on the evidence of P. Ws. 12, 14, 24 and 25 in arriving at their concision that there had been a resort to coercion practised by one group over another, P. Ws. 7, 8 and 9 deposed that they were present at a meeting held at Sukinda and witnessed the taking of solemn declaration and a decision. The tribunal regarded the taking of an oath before a deity as an improbability and disposed of that part of the evidence as artificial. In discussing the value to be attached to the evidence of P. Ws. 7, 3 and 9 the Tribunal observed:

'The intrinsic value of the evidence of P. Ws. 7, 8 and 9 lies in the fact that the ex-communication of the Bouris of that village, as deposed, to by them is admitted on respondent's side as per the proceedings of the Tarini Hill meeting. (Ext. 27) ..... The cause for theex-communication is the fact that the Bouris of Bhowanipur did not fall in line with theviews of the other bouris of the Taluk in the matter of voting for respondents 1 and 2.'

The tribunal substantially accepted the case of the petitioner before them, that the other Bauds of Bhawanipur had been ex-communicated on account of their refusal to vote for the petitioner before us. After referring to the evidence given by some of the witnesses for the respondent, the tribunal held that

'the evidence of P. Ws. 7 and 9 about the Sukinda meeting in the afternoon of the 20th, the taking of a decision of vote for respondents 1 and 2 on the morning of the 21st December and the feeding of the Bauris on the night of 20th December, is worth believing.'

It was quite within the competence of the tribunal to believe one set of witnesses in preference to another set. Moreover, as the tribunal have pointed out, there was other evidence on the point, namely the evidence of P. Ws. 12, 14, 24 and 25 which evidence was probabilised by witness No. 13 for respondent No. 1. We have gone through the evidence of some of these witnesses in order to satisfy ourselves whether there was anything inherently improbable or absurd in it so as to induce a Court to discard it altogether. We find no reason either to exclude the evidence or to disbelieve it. It is true that in appraising evidence different Judges may, at times, entertain different opinions, but even on an appeal the superior Court is bound to respect the findings of the trial Court on questions of fact. We are, therefore, unable to accede to the proposition that the mere admission of Inadmissible evidence on an insignificant fact, is sufficient to warrant the conclusion that the tribunal was in error in taking the view that they did. The first contention must therefore be overruled.

6. The second and the more important point debated before us is as to the function of this Court under Article 226 and its power to issue writ of certiorari and quash the order of the Tribunal. Learned counsel's argument, is that the issue of a writ of Certiorari is not limited only to question of jurisdiction, and that the writ is far more extensive in its scope and amplitude and would include the power to interfere even in a case where the reasoning adopted by the Court or tribunal, or authority whose order is being impugned, is erroneous.

7. There have been two recent decisions of the Supreme Court in which the scope of Article 225 has been discussed. In --'Veerappa Pillai v. Raman and Raman Ltd.', reported in AIR, 1952 SC 192 (A) it was held that the writs referred to in Article 226 are intended to enable the High Court to issue them

'in grave cases where the subordinate tribunal or bodies or officers act wholly without jurisdiction or in excess of it or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of the record, and such act or omission or error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it is not so wide or large as if enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.'

The question whether the writs mentioned In Article 226 are analogous to the writs issued by the English Courts subject to all the limitations or restrictions Imposed on them by those Courts,did not directly arise in that case; and the question whether the High Court is at liberty to issue any suitable directions or orders or writs, untrammelled by any conditions if the interests ef justice so required it, was left open.

In -- 'Ibrahim Aboobakar v. Custodian, General of Evacuee Properly New Delhi', reported in AIR 1952 SC 319 (B), the Full Court ruled that a writ of certiorari cannot be granted to quash a decision of an inferior Court acting within its jurisdiction, on the ground that the decision is wrong. It was laid down that

'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. Want of jurisdiction may arise from the nature of the subject-matter so that the inferior Court might not have authority to enter on the inquiry or some part of it. It may also arise from the absence of some essential preliminary, or upon the existence of some particular facts collateral to the actual matter which the Court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the Court has jurisdiction, but while exercising it, it has 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.'

In view of this categorical statement of the law by the Supreme Court, it is no longer open to us to canvass the reasoning of the impugned decision, unless it can be shown that the authority which passed that order acted without jurisdiction, or in excess of it, or in violation of the principles of natural justice.

This was only a reiteration of the principle laid down in an earlier case reported in --'Parry and Co., Ltd. v. Commercial Employees Association Madras', AIR 1952 SC 179 (C). In that case, Mukhcrjee J., while setting aside anorder of the Madras High Court, observed:

'The Commissioner was certainly bound to decide the question, & he did decide that. At the worst, he may have come to an erroneous conclusion, but the conclusion is in respect of a matter which entirely lies within the jurisdiction of the Labour Commissioner to decide it, and it does not relate to anything collateral, an erroneous decision upon which might affect his jurisdiction. The records of the case do not disclose any error apparent on the face of the proceeding of any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice.'

8. It may thus be taken as well settled so far as Indian Courts are concerned, that a writ of certiorari will not issue merely on the ground that the tribunal came to an erroneous conclusion unless it also affects its jurisdiction. It is not seriously contended before us that the election tribunal has no jurisdiction to decide whether a corrupt practice had been indulged in, in this case. The reasoning adopted by the tribunal may or may not be appealing, that has no relevancy but the tribunal had certainly jurisdiction to decide the matter one way or the other. There is no appeal provided under the Representationof the People Act, and the functions of an appellate Court cannot be extended to proceedings where the propriety of the issue of a writ is under consideration.

9. Great stress was laid by learned counsel on a recent decision of the Court of Appeal in England, in -- 'R. v. Northumberland Compensation Appeal Tribunal', reported in 1952-1 All ER 122 (D). In that case there was an error of law apparent on the face of the record and certiorari was the only remedy available to correct that error. Denning L. J. observed:

'If the tribunal does state its reasons and.these reasons are wrong in law certiorari liesto quash the decision.'

It is this observation which forms the sheet anchor of learned counsel's argument. But it should be remembered that the facts of that case justified the above observation; and it should not be taken to be of universal application. It was a mistake of law that the tribunal committed in that case, and the tribunal also admitted it before the Court of King's Bench. I atn willing to accede to the proposition that, in a supervisory capacity, this Court has jurisdiction to control all inferior tribunals to see that they observe the law. But in order to justify interference the error of law must be apparent. Even in such cases the Superior Court does not substitute its own views for those of the tribunal as a Court of Appeal would do. It leaves it to the tribunal to hear the matter again and. in a proper case may command it to do so. If the order of the tribunal is a 'speaking order', and gives reasons for its judgment, the Court of King's Bench would on certiorari enquire into its correctness and if the reasons were wrong quash the decision. The superior Court is bound by the record and is to see that the inferior Court has not transgressed its jurisdiction. It cannot, and will not interfere if what has been done is within jurisdiction. The supervision is, therefore, confined to two points; one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; and the other is the observance of the law in the course of its exercise -- 'Rex v. Nat Bells Liquors Ltd.', 1922-2 AC 128 (E). After discussing instances where the writ of certiorari was issued in civil and criminal matters and orders of statutory tribunals and arbitrators Denning L. J. summed up his review as follows :

'It will have been seen that throughout all thecases there is one governing rule -- certiorari isonly available to quash a decision for an errorof law, if the error appears on the face of therecord.'

It was accordingly held that an error openly admitted in the face of the Court as was done in that case -- as well as an error that appears on the face of the record can be corrected by certiorari -- Morris L. J. did not go so far as that and sounded a note of caution. The Lord Justice observed at p. 133 of the report :

'It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct an error of law where revealed on the face of an order, or decision, or irregularity or absence or excess of jurisdiction where shown.'

10. It was pointed out that the above decision of the Court of Appeal in 1951 was not brought to the notice of their Lordships of the Supreme Court when -- 'Verrappa Pillai's case (A)' and --'Ebrahim Aboo Bakar's case (B)', were before them. That may be so, but I do not think that the principle enunciated by their Lordships of the Supreme Court is, in any way affected by thedecision of the Court of Appeal in -- 'R. v. Northumberland Compensation Appeal Tribunal (D). The correct rule, as I understand it, is that there must be an error apparent on the face of the record or of the order impugned; or that the error should be admitted in the face of the Court; and the error, must be an error of law which affects the jurisdiction of the tribunal. The mere fact that two views are possible on a question of fact would not be sufficient to hold that the order of the tribunal is bad and to justify the issue of a writ of certiorari to quash that order.

11. It must also be pointed cut that when the superior Court quashes an order of the tribunal on the ground of an apparent error of law, in a proceeding like this, it has no jurisdiction to substitute its own decision. All that it can do is to send back the record to the tribunal for their final order. Learned counsel for the petitioner wanted us merely to record an order that the decision of the tribunal is quashed. But such an order would leave the election petition itself undisposed of. Even if we discovered any error of law it may well be that we may remit it to the tribunal for a fresh disposal, after expressing our opinion that the order pronounced by the tribunal is wrong in law. But it does not lie in our power to make a declaration that the election of the petitioner is valid, or to make a declaration that There was no corrupt practice resorted to by the petitioner, such a declaration can only be given by the tribunal set up in accordance with the provisions of the Representation of the People Act.

The petitioner before the tribunal, in the election case was one Mohan Nayak (who is opposite party No. 1 in the present proceeding) and he prayed for a declaration by the tribunal that he and opposite party No. 3 had been duly elected. Is it within the competence of this Court to give such a declaration? And can we set aside the election of the petitioner before us and opposite party No. 2 on the ground that there was no free election? These arc matters entirely within the exclusive jurisdiction of the election tribunal and it is that body alone which, under the law, is competent to decide. When the rule nisi was issued in this case the tribunal had ceased to function and the records were sent for from the Court of the District Judge, in whose custody they are kept under Section 103, Representation of the People Act, 1951. In such circumstances, even if we issue a writ of ccrtiorari we are unable to direct the tribunal to resume their proceedings --(per Bramwell E.) -- in -- 'Weston v. Sneyd' (1857) 1 H & N 703 (F). This would be an additional reason for refusing to grant the relief prayed for by the petitioners. In this connexion, I would quote a passage from Halsbury (Vol. IX, Second Edition, p. 254, para 1445) :

'Certiorari will not be granted where, if the writ were subsequently quashed, the inferior Court could not be ordered by a writ of procedendo to resume the proceedings.'

Paragraph 1447 says :

'Where an inferior Court is one of Civil Jurisdiction, but by statute or custom it administers a law peculiar to its own forum, in respect of some particular matter and so possesses to this limited extent jurisdiction which the superior Court does not possess, certiorari will not issue to remove proceedings which come within that special jurisdiction.'

This shows tnat writ can be issued only in respect of matters which are within the jurisdiction of this Court. A declaration about the validity or otherwise of an election is exclusively within theprovince of ths election tribunal and it would appear from the above quotation that a writ of certiorari will not He.

12. On a consideration of the above principles I would direct that the petition should be dismissed, but wouid not mulct the petitioner with costs.

Nakasimham, J.

13. I agree that the petition should be dismissed without costs.

14. The petitioner invoked the jurisdiction of this Court not only under Article 226 of the Constitution but also under Article 227. The order under challenge is that of the Election Tribunal, Ganjam, Nayagarh, which set aside the petitioner's election mainly on the ground that the petitioner was guilty of corrupt practice or undue influence, coercion and intimidation. The petitioner is a member of the scheduled castes (Bauris). He was appointed as the headman of the Bauris by a solemn ceremony held shortly before the date of the last election from Berhampur constituency. The Tribunal believed the opposite-party's (No. 1) version that on the 20th and 21st of December, 1951 a meeting of the Bauris of the locality was held in a tope near the temple of Narshingha Mohapravu at village Sukinda and a solemn decision was taken to the effect that all Bauris should vote for the petitioner on pain of excommunication and fine to those who did not follow this decision. The Tribunal also believed the evidence led on the side of the opposite party to show that the aforesaid decision was communicated to all the Bauris of the constituency through their respective Mutha heads and Bholo Bhais. Though there was no direct evidence to show that any Bauri voter was coerced into giving his vote to the petitioner on account of this threat of excommunication and fine, there was evidence before the Tribunal to establish the fact that many of the Bauri Voters who originally agreed to give their votes to opposite-party No. 1 suddenly changed their mind and gave their votes to the petitioner. There was also some evidence before Tribunal to the effect that some of the Bauris of village Bhabanipur (vide the evidence of P. Ws. 7. S and 9) who did not follow the caste mandate mentioned above were subsequently excommunicated. An attempt was made on the side of the opposite party to show by evidence that the excommunication of those Bauris was due to other reasons. But the Tribunal did not accept that evidence. There was, however, the evidence of two witnesses (P. Ws. 24 and 32) to show that at public meetings held at two places the Bauris were informed of the decision of their caste and threatened with excommunication and fine if they did not, vote for the petitioner. The tribunal also relied on the evidence led by opposite party No. 1 to the effect that the Bauri voters (who were not called as witnesses before the Tribunal) informed him and his supporters that they dared not vote for them in view of the caste mandate. This piece of evidence was challenged as being hearsay and consequently inadmissible. The Tribunal, however, relied on -- 'Bibhabati Devi v. Ramondra Narayan', AIR 1947 PC 19 (G) and held that the reasons given by the Bauris who were not voting for opposite party No. 1 would be admissible even though those Bauris were not cited as witnesses in the proceeding. Mr. Mohapatra strenuously contended that this view of the Tribunal was wrong in law and that the entire finding on the question of undue influence, coercion and intimidation was vitiated by the same. Assuming, without deciding that the statementsmade by those Eauris who were not witnesses in the cases as to why they changed their mind and refused to vote for opposite party No. 1 are inad-missible, as hearsay, there is still some evidence on the basis of which the Tribunal was justified in coming to a finding about undue influence, coercion and intimidation. The meeting of the Bauris on the 20th and 21st December, 1951, and the resolution to vote for the petitioner on pain

of excommunication and line have been proved toy direct evidence which, has been accepted. Similarly, the fact that the threat of excommunication and fine was disseminated amongst all Bauris of the constituency was proved by the evidence of two witnesses who spoke about two instances of such dissemination. There was also direct evidence before the Tribunal to show that though many Bauris originally desired tovote for opposite party No. 1 they later on changed their mind and refused to vote for him. Doubtless, there may not be direct evidence to show the reasons why the Bauris changed their mind. But on the aforesaid pieces of evidence a Court of fact like the Tribunal was justified in coming to a fair inference that the sudden change in theattitude of the Bauris of the locality was caused by threat of excommunication and fine as decid-ed in the meeting of their caste held on the 20th and 21st December, 1951.

15. The extent of the jurisdiction of this Court under Article 226 to interfere with the order of the Tribunal was canvassed at some length. My Lord has referred to the decisions cited in this connection, especially the recent decisions of their Lordships of the Supreme Court in -- 'AIR 1952 SC 192 (A)'; -- 'AIR 1952 SO 319 (B)' and -- 'AIR 1952 SC 179 (C). It was urged by Mr. Mohapatra that those decisions may require revision in view of the decision of the Court of Appeal in --1952-1 All ER 122 (D)', where the previous view field in England regarding the limited nature of the jurisdiction under certiorari was slightly modi-fled and it was held that certiorari to quash the decision of statutory Tribunal lay, not only where the Tribunal had exceeded its jurisdiction, but also where an error of law appeared on the face of the record. This decision was perhaps not cited before their Lordships of the Supreme Court in the aforesaid decisions. It is, however, for their Lordships of the Supreme Court to decide in an appropriate proceeding whether the powers of the High Court under Article 226 in an application for the issue of a writ of certiorari are wider than what they have been pleased to lay down in the three decisions mentioned above.

16. The petitioner has relied on Article 227 also. That Article has not yet come up for construction, before their Lordships of the Supreme Court. Hence, I see no reason why the view taken by a Division Bench of this Court regarding the scope of that Article in -- 'Jadumani Behara v. Jadumani Sahu', AIR 1952 Orissa 244 (H), should not be followed. The Election Tribunal is undoubtedly a judicial tribunal and it clearly comes within the scope of the superintending powers of this Court under Article 227. In that case it was held relying on -- 'Manmatha Nath v. Emperor', AIR 1933 Cal 132 (I); -- 'Mt. Maharup Kuer v. Mahabir Singh', AIR 1928 Pat 111 (J) .and -- Israil Khan v. State', AIR 1951 Assam 106 (K), that though this Court will not constitute itself into a Court of Appeal it may interfere if the order of the Tribunal is bad on the face of it or with a view to prevent obvious miscarriage of justice where the lower Court has acted in abuse of its jurisdiction.

The limitations imposed, on this Court in exercising its powers of issuing a writ of certiorari under Article 226 may not apply with full force when the Court exercises its powers under Article 227.

17. In the aforesaid Division Bench decision of this Court, the order of the Election Tribunal constituted under the Orissa Municipal Act, 1950 (Sections 21 to 24) was set aside and final orders were passed granting the relief asked for. Article 227 seems to be wide enough to enable this Court not only to set aside the order of the inferior Tribunal in appropriate cases but also to give adequate relief where the circumstances of the case justice the exercise of this extraordinary power. The fad that the Tribunal is an ad hoc Tribunal and ceased to exist after giving its decision does not make any difference as regards the exercise of this power.

18. This question, however, is somewhat academic in the present case because even if it is assumed that our powers under Article 227 are wider than those under Article 226 I am not satisfied that the petitioner has made out a case for interference. The only substantial point of law that was urged was the erroneous view taken by the Tribunal as regards hearsay evidence. I have already shown that even if that is excluded there was still some evidence which would justify the finding of the Tribunal. There is thus absolutely no case for interference with the order of the Tribunal.


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