1. This is an application by Nisar Ahmad under Article 226 of the Constitution of India. The applicant stood as a candidate for election from Ward No. 8 to the Municipality of Jodhpur. Haqiquatullah, opposite party, was a rival candidate for the same ward. The dates for filing nominations were February 21 and 22, 1951 and the date for scrutiny was February 23. The applicant put in his nomination on February 22. On February 23 an objection was raised to the applicant's nomination By Haqiquatullah. This objection was rejected on the same day but the Officer-in-charge, Election, gave detailed reasons for the rejection by his order, dated February 24, 1951.
2. Thereafter Haqiquatullah made an appeal against the order accepting the applicant's nomination to the Additional Commissioner who accepted the appeal on the 7th of March 1951 and Held that the nomination of the petitioner was bad and rejected his nomination paper. The applicant made an application for review before the Additional Commissioner on the ground that he had no jurisdiction to interfere with the order of the Officer-in-charge of Elections with respect to nominations but the review application was rejected. Thereafter the applicant preferred a revision before the Minister in charge of Local Self-Government in which he again raised the point of jurisdiction. The then Minister set aside the order of the Additional Commissioner and restored the order of the Officer-in-charge, Elections. Thereafter Haqiquatullah filed a review application. In the meantime, there had been a change in the Ministry and the new minister allowed the review application and set aside the order of the former minister and upheld the order of the Additional Commissioner rejecting the nomination paper of the applicant. Thereupon the present application was made in this Court under Article 226 of the Constitution of India. The main contention of the applicant here is that the order of the Officer-in-charge. Elections accepting his nomination paper could not be questioned in any manner except by an election petition and therefore, this Court should set aside the order of the Additional Commissioner and the minister in charge.
3. The application has been opposed by the State of Rajasthan as well as by Haqiquatullah. It is not necessary to set out the reply of the State in detail because that reply is a Justification of the unjustifiable. Learned counsel appearing for the State has admitted that there is no provision in the Jodhpur Municipal Act for filing an appeal against an order under Section 27 by which the Officer-in-charge of Elections accepts the nomination paper of a candidate and rejects the objections filed against it. The position is so that the learned Counsel could not do otherwise. In this view of the matter, we do not think it necessary to examine in detail the various orders passed by the Additional Commissioner and the two ministers. It is enough to say that though the learned. Additional Commissioner tried to show in the order which he passed on the review application how he had jurisdiction, he contented himself by showing that he had jurisdiction against an order passed under Section 21-A, which no one ever disputed and said nothing about his jurisdiction to set aside an order under Section 27. accepting a nomination and rejecting objection to it, which had been done by his first order of the 7th of March. We agree with the view taken by the first minister in his order dated 24th of April, It is only necessary to refer to Rajasthan City Municipal Appeals (Regulation) Act (Act No. III of 1950) in this connection to clear any misapprehension that the order under Section 27 was open to appeal or revision under that Act. It is enough to say that this Act mainly provides for forum for municipal appeals. Section 3 of the Act says that wherever any Municipal law provides for a Municipal appeal, the appeal shall lie to the Commissioner. Therefore, this Act, did not create any right of appeal but merely provided that the appeals under the existing Municipal Acts would lie to the Commissioner. Section 4 of the Act forbids a second appeal but provides revisory powers in Government. But this is only in cases which are open to appeal or cases in which orders have been passed by a Municipal authority. The Officer-in-charge of Elections cannot, in our opinion, be called a Municipal authority within the meaning of this Act and therefore, there was no power of revision in the Government either.
4. Learned Counsel for the State, however, contends that we should not grant the present application for three reasons:
(1) that the applicant submitted to the jurisdiction of the Additional Commissioner and the Minister and, 'therefore, no writ should be granted in his favour;
(2) that the order being so obviously null and void, no writ should be granted to quash it, and
(3) that there is another remedy by an election petition and, therefore, this Court should not interfere.
5. We shall deal with these points one by one.
6. So far as the first point is concerned, there is no doubt that at some stage the applicant did make applications to the Additional Commissioner and the Minister. It may, however, be mentioned that it was Haqiquatullan who took the case to the Additional Commissioner and dragged the applicant there. It was only when the Additional Commissioner decided against the applicant and rejected his nomination paper that he applied to him for review of the order. This became necessary because the Additional commissioner had said in his earlier order that the objection as to jurisdiction had been given up, which appears rather strange to us. When the review application was rejected, the applicant certainly went in revision to the Minister. It is explained that this was done in case it was ever held that Section 4 of the Rajasthan City Municipal Appeals (Regulation) Act (Act No. III of 1950) gave revisory powers to Government. It appears, therefore that it was the force of circumstances which compelled the applicant to apply to the Additional Commissioner or to the Minister. Learned Counsel relied in this connection on Halsbury's Laws of England, Second Edition, Vol. 9, para. 1481 which is as follows:
'Although the writ is not of course it will nevertheless be granted 'ex debito justitiae', to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief, ....... The writ will never be granted to remove an erroneous order at the instance of the party in whose favour the error was made.'
7. Learned Counsel particularly relics on the words 'if the conduct of the party applying has not been such as to disentitle him to relief.' He also relies on 'REX v. WILLIAMS & EX PARTE PHILLIPS', (1914) 1 KB 608. That was a case where a baker was convicted in presence of two justices. He obtained a rule 'nisi' for a writ of certiorari to quash the conviction on the ground that one of the justices alleged to have taken part, in the conviction was a person concerned in the business of baking. The affidavit on which the rule nisi was obtained did not state that any objection to the competence of the Court was taken at the hearing before the justices, nor did it state that at the date of that hearing the applicant was without knowledge of the facts alleged to disqualify one of the justices. It was Held that this defect in the affidavit disentitled the applicant to the issue of a writ of certiorari 'ex debito justitae.' It was also held on the facts that the granting of the writ being discretionary, the discretion should be exercised by refusing the writ
8. In a number of cases, English Courts have refused a writ of certiorari where the objection to jurisdiction was not taken before the justices.
9. Another case which was relied upon is at note p. of the English and Empire Digest Vol. XXII, page 176. In that, a court-martial was trying a person charged with a crime punishable with death. The law provided that one of the members of the Court-martial should be a person of legal knowledge and experience. The accused was sentenced to death. He afterwards applied to the King's Bench Division for a writ of 'certiorari' to quash the conviction on the ground that no certificate as to legal knowledge and experience as to a member of the Court was handed in. The application was refused on the ground that in the absence of any objection at the trial, there was a general presumption of law that the Court was properly constituted.
10. A review of these cases shows either that they add cases relating to comparatively trivial matters and in such matters, the writ of certiorari which was a discretionary writ was not issued or that objection to jurisdiction depended upon proof of certain facts and was not taken at the proper time. This discretion is something analogous to the discretion which we have in India under Section 531 of the Code of Criminal Procedure.
11. In this case, however, in the first place, the applicant never willingly submitted to the jurisdiction of the Additional Commissioner or the Minister but was forced by circumstances to do so. In the second place, this case relates to an election and the Additional Commissioner and the Minister never had the semblance of a jurisdiction to interfere with the discretion of the Officer in-charge of the elections. Under these circumstances, we are of opinion that we should interfere under Article 226 of the Constitution of India. We may point out that it is well established that an appeal does not exist in the nature of things. A right of appeal from any decision of any Tribunal must be given by an express enactment. Where there is no appeal provided by law consent or waiver on the part of the parties cannot invest the appellate Court with the jurisdiction it did not possess. 'Vide 'PIRU PRAMANIK V. DHANA-BHANDAR CO. LTD. PABNA', AIR (24) 1937 Cal 427.
12. We may also refer to the case of 'FARQU-HARSON v. MORGAN', (1894).1 Q B 552. In that case, it was held that where total absence of jurisdiction appears on the face of the proceedings in an inferior Court, the High Court is bound to issue a prohibition although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the interior Court. We may point out that the election in this particular Ward not yet taking place an order in the nature of prohibition is to be issued to the Returning Officer and in such a case even consent or acquiescence will not make any difference as discussed above.
13. The next point that is urged is that weshould not issue a writ to quash an order which isnull and void. Reliance in this connection isplaced on Halsbury's Laws of England, SecondEdition, Vol. 9, para. 1482 which is as follows:
'Where grounds are made out upon which theCourt might grant the writ, it will not do so...... where an unauthorised person haspurported to act in a judicial capacity.'
14. There is no doubt that where a person without authority sets himself as a judicial tribunal and decides some matter, a writ of certiorari will not be granted by this Court to set aside such a person's order because the order has no force and effect in law and it is unnecessary to set it aside. But the position, in our opinion, is somewhat different in cases like the present. Here the unauthorised persons who have usurped the jurisdiction to set aside the order of the Officer-in-charge of the elections are the Additional Commissioner and the Minister in charge to whom the Officer-in-charge of the elections is certainly subordinate on the executive side. It is possible for the Officer-in-charge of the elections to think that he is bound by the orders of the superior authorities who have purported to act as appellate authorities. In such a case, therefore, we are of opinion that an order should be passed under Article 226 of the Constitution of India.
15. The last point that has been urged is that the applicant has another remedy, namely, he can file an election petition and, therefore, this Court should not help him. It is no doubt true that the applicant has the remedy of filing an election petition and if the applicant had come to us against the order of the Officer-in-charge of the elections rejecting his nomination paper we would not have been disposed to give him any relief. But the case here is this. The applicant's nomination paper has been accepted by the Officer-in-charge of the elections but that acceptance has been set aside by the Additional Commissioner which order in its turn has been upheld by the Minister and these two authorities had no business to interfere with the order of the Officer-in-charge of the elections. We are of opinion that it would not be right to leave the applicant to the remedy of an election petition against the order of what we can only consider at the nest busy bodies when the order of a property constituted authority namely, the Officer-in-charge of the elections is in his favour. We may also point out that there is another danger if we were to follow the principle that we should not interfere in a case like the present because it is possible to get redress by an election petition. That danger is that if some authority decides to interfere with the decisions of the Officer-in-charge of elections or the returning officer and rejects all nomination papers accepted by him of candidates belonging to particular parties, the result would be that candidates of one particular party might get elected unopposed. It is possible to have a wholesale abuse of this kind and it is, therefore, necessary for his Court to interfere at this stage so that no authority may ever be disposed to take the coarse which we have mentioned above. Therefore, even though the applicant may be able to get remedy in this case through an election petition, there is good reason why we should grant him relief now.
16. We, therefore, allow the application and order that all proceedings taken before and orders passed by the Additional Commissioner and the Minister in charge after the 24h of February 1951 in connection with the nomination of the applicant are null and void and are hereby set aside and the order of the 24th of February 1951 made by the Officer-in-charge of Elections which he accepted the nomination of the applicant, stands. The Officer-in-charge of the Elections is prohibited from taking into consideration the order of- the Additional Commissioner dated 7th of March 1951 or of the Minister in charge dated 16th of May 1951 and he shall proceed further to complete the election business of Ward No. 8 of the Jodhpur Municipality. The applicant will get his costs from the State and we fix Rs. 80/- per day of hearing as Counsel's fee.