1. The petitioner, the successful condidate at a District Board Election, prays that a writ of certiorari may issue to bring up and quash the order of the election Commissioner declaring his election void and ordering a fresh election. The result of the poll was that the petitioner had been returned by a majority of 114, having polled 1206 votes to the 1092 votes for his opponents, the first respondent. An election petition was brought by the first respondent alleging certain irregularities in the conduct of the polling officer in one of the polling booths. What had happened here was that the Polling Officer by a mistake had marked on the back of each ballot paper the number of the voter in the Electoral register. This number, according to Rule 16, is only to be marked on the counter-foil when the ballot-paper or counter foil is handed to the voter. The result was that 322 ballot papers so marked and put into the ballot-box in this polling booth were invalidated and rejected by the Election Officer. Two of these ballot papers were apparently invalid ort other grounds.
2. Rule 10(c) of the Local Boards Act rules governing disputed elections provides:
If in the opinion of the Election Commissioner the result of the election has been materially affected...by any non-compliance with the provisions of the Act or the rules made thereunder, the election of the returned candidate shall be void.
3. There were, therefore, two questions for the Commissioner to decide. Firstly, whether there had been a non-compliance with the Act or the rules; and secondly, whether such non-compliance had materially affected the result of the election. Undoubtedly there had been an infringement of the rules when the Polling Officer marked on the ballot papers the voters' numbers which he was only authorised to mark on the counter-foils. He made the same mistake as the presiding officer made in Woodward v. Sarsons (1875) L.R. 10 C.P. 732 with equally fatal results to the validity of the ballot papers. Rule 20(1) says that:
Any ballot-paper...on which any mark is made by which the elector may afterwards be identified shall be invalid.
4. The rule is modelled on Section 2 of the Ballot Act (35 and 36 Vic. C. 33) though the local draftsman has chosen to substitute the word 'may' for the word 'can' in the English Act and to introduce the superfluous word 'afterwards' before the word 'identified'. But the effect of Rule 20 and Section 2 is the same; it is to invalidate any ballot paper bearing on it a mark or writing indicating the identity of the voter. The Polling Officer had infringed Rule 16 and the ballot papers offended against Rule 20, so that there was certainly here a non-compliance with the rules.
5. The next question was whether this non-compliance had materially affected the result of the election. Rule 10(c), which makes this the basis of the Commissioner's power to declare the election void, has been extracted from Section 13 of the Ballot Act. The words 'result of the election' in the section have been held to mean the return of the candidate and not the amount of his majority. See Rogers on Elections Vol. II, p. 41 and the cases there cited. The words must have the same meaning in the Rule. So that if the number of ballot papers rejected by reason of non-compliance with the rules did not suffice to turn the scale against the elected candidate, though the extent of his majority might be affected, the result of the election could not be held to have been materially affected. This is made very clear by Mr. Justice O'Brien in East v. Clare (1892) 40 M. & H. 162 where he said:
I do not at all agree with the construction put upon that section (i.e., Section 13 Ballot Act) by Mr. Justice Grove in the Hackney case. He there says that 'the result of the election' does not necessarily mean the return of the candidate, but means his return by the particular number of votes. In his opinion therefore if the mistake or non-compliance with the rules produced a diminution of the votes by which the successful candidate was elected, although it might not be sufficient to destroy his majority, 'the result of the election' would be affected....
6. In my opinion that decision is entirely wrong. In Woodward v. Sarsons (1875) L.R. 10 C.P. 732 no less than 294 votes were spoiled by the mistake of the presiding officer, but they would not if admitted have turned the scale against the successful candidate and therefore did not affect the result of the election. It was held that this did not render the election invalid.
7. In the election petition in the present case it was stated on affidavit that of the rejected votes in the particular ballot-box, the successful candidate had a majority of 68 in his favour. That is to say, two of 322 invalid ballot-papers being bad on grounds other than the unauthorized mark made by the Polling Officer, of the remaining 320, 194 had been given for the petitioner and 126 for his opponent. The accuracy of this statement has not been contradicted, nor, it would seem, disbelieved by the Election Commissioner. He simply refused to consider it. He could, if he had wished for further confirmation, have ordered the ballot papers to be produced, and satisfied himself of the fact. Rule 31 enables the ballot-papers to be produced to the Court. This has nothing to do with the scrutiny. Woodward v. Sarsons (1875) L.R. 10 C.P. 733 shows that the distribution of the invalid votes is material to the question whether the non-compliance with the rules had affected the result of the election. But there is no reason to doubt the correctness of the figures; so that both on the invalid votes and on the good votes the petitioner had a majority. There was some argument before the Commissioner that electors on getting to know of the irregularity committed by the polling officer might have abstained from voting. But the Commissioner has found that there was no proof of it, though he remarks that he is unable to say that many were not kept away from the booth because they knew that their registered numbers would be marked on their ballot-papers. The fact remains that there was no evidence that anybody who wanted to vote was prevented from voting. There were 143 electors in the area of this polling booth who did not vote. Even on the assumption that had they all gone to the poll they would have voted for the respondent, the petitioner would still have had a majority upon all the ballot-papers. It is manifest, therefore, that the non-compliance of the polling officer with Rule 16 and the consequent invalidation of the ballot-papers under Rule 20 did not materially affect the result of the election, and the commissioner was wrong in his decision to the contrary.
8. The question then is whether this error of the commissioner can be remedied by means of certiorari:
The writ of certiorari is intended to bring into the High Court the decision of the inferior tribunal, in order that it may be certified whether the decision is within the jurisdiction of the inferior Court;...if it is a tribunal which has to decide rights after hearing evidence and opposition, it is amenable to a writ of certiorari.
9. Per Scrutton, L.J., in Rex v. London County Council (1931) 2 K.B. 215 . An election commissioner is undoubtedly such a tribunal. But certiorari will not issue in respect of a wrong decision of a tribunal upon a matter which it is within its power to decide; for there is, as Lord Sumner has observed in Rex v. Nat Bell Liquors, Ltd. 1922 2 A.C. 128 a difference between a wrong exercise by a tribunal of the jurisdiction which it has and an usurpation by the tribunal of a jurisdiction which it has not. In Colonial Bank of Australasia v. Willan (1874) L.R. 5 P.C. 417 , Sir James Colvile, J., has indicated how a usurpation of jurisdiction by the tribunal might arise. It may be founded on the incompetency of the Judge, or on the nature of the subject matter, or on the absence of some essential preliminary, or on a fact to be adjudicated upon in the inquiry, as where the decision of some fact in the course of the inquiry by the tribunal ousts its jurisdiction : Seethe judgment of Fletcher Moulton, L.J., in Rex v. Woodhouse (1906) 2 K.B. 501 . Thus a tribunal may wrongfully assume jurisdiction or decline jurisdiction upon an erroneous interpretation or understanding of the law which governs its powers. As stated by Lord Justice Farwell in Rex v. Board of Education the Court will prevent:
The intentional usurpation or mistaken assumption of a jurisdiction beyond that, given to the tribunal by law, and also the refusal of their true jurisdiction by the adoption of extraneous considerations in arriving at their conclusion or deciding a point other than that brought before them, in which cases the Courts have regarded them as declining jurisdiction.
10. In that case it was held that the Board of Education by deciding a question not put to it for decision and by avoiding an answer to the real question which it had to decide, had declined jurisdiction and had made itself amenable to correction by certiorari. The same principle was stated by the revisional Court (Lord Alverstone, C.J. and Wills & Kennedy, JJ.) in Rex v. Commissioner of Income-tax (1904) 91 L.T. 94. I think that in the present case the election commissioner has entirely misapprehended the real question for his decision. He has failed to decide it upon the mistaken hypothesis that the circumstance of 322 votes having been invalidated must have materially affected the result of the election. His words are:
I need hardly say that the disenfranchising of at least 322 voters when majority of the counter-petitioner was only 114 did materially affect the result of the election.
11. And being of opinion that 'a vote recorded on an invalidated paper is no vote at all' he declined to consider in what numbers the invalid ballot-papers had been distributed in favour of the rival candidates. In short, the election commissioner has declared the election void without considering and without determining the very question upon which his jurisdiction to declare the election void depended. He had no power to do that.
12. In my judgment this is a proper case for interference by certiorari and the commissioner's order should be quashed. The petition therefore succeeds and should be allowed with costs against the first respondent.
Venkatasubba Rao, J.
13. I entirely agree and I wish to add a few words in order to refer to, and remove, a certain confusion that exists in the application of the principles governing certiorari as laid down in authoritative decisions. It seems to be wrongly assumed that nothing short of some sort of defect connected with jurisdiction can afford ground for certiorari. This erroneous notion is, in my opinion, due to a misreading of the decisions on the point. In one sense indeed, the question ultimately is one of jurisdiction and that view undoubtedly receives support from many of the cases where the remedy of certiorari was held available; but what is termed ' want of jurisdiction' in those decisions, has a much more extended meaning, than is generally assumed in arguments advanced on this subject. As Lord O'Brien says in the well-known case of The King (Martin) v. Mahony (1910) 2 I.R. 696:
Procedureby certiorari is not at all exclusively connected with cases of jurisdiction or its absence. (P. 716).
14. The two decisions to which my learned brother has referred, Rex v. Commissioner of Income-tax for City of London (1904) 91 L.T. 94 and The King v. The Board of Education (1910) 2 K.B. illustrate most clearly the extended use of the expression 'want of or defect of jurisdiction' and show, as already stated, in the words of Lord O'Brien, that procedure by certiorari is by no means confined to cases of jurisdiction. The King v. The Board of Education (1904) 91 L.T. 94 mentioned above is a very instructive one and shows incidentally how difficult it is sometimes to distinguish jurisdiction from misconception of law. In that case, certiorari to quash was held to lie in respect of an error described at one moment as a mistake in law, at another, as declining or wrongly assuming jurisdiction. There, it was found that the Board of Education evaded the real point by turning the question put to them into another question. The subject matter of the enquiry was - Is it true that the Swansea authority refused to provide salaries on the same scale for the non-provided as for the provided school? But the question which the Board had chosen to answer was not that asked, but the hypothetical question, whether the managers could have got as good teachers for the lower salaries. Farwell, L.J., in dealing with this matter, observes:
The statement of the Board as to want of evidence to show the impossibility of obtaining adequate teachers at the lower salaries shows a clear mistake in law. (P. 178).
The Board under Section 7 Sub-section 3, act in a judicial capacity and are bound to obey the law and art according to the ordinary rules of evidence; they can neither dispense with the requirements of the Act nor assume knowledge of particular facts not proved before them. (P. 178).
16. In these two passages what is referred to is a mistake in law; but in another passage the error is described as one of jurisdiction:
If the tribunal has exercised the discretion entrusted to it bona fide, not influenced by extraneous or irrelevant considerations and not arbitrarily or illegally, the Courts cannot interfere; they are not a Court of Appeal from the tribunal, but they have power to prevent intentional usurpation or mistaken assumption of a jurisdiction beyond that given to the tribunal by law, and also the refusal of their true jurisdiction by the adoption of extraneous considerations in arriving at their conclusion or deciding a point other their that brought before them, in which cases the Courts have regarded them as declining jurisdiction. (P. 179).
17. That the remedy by way of certiorari is not restricted to cases of jurisdiction strictly so-called, becomes manifest also from the judgments delivered in the other case to which I have referred. Lord Alverstone, C.J., points out that the fact that the commissioners are final Judges, would have been no answer to an application for certiorari, if it had been established that they had been considering an entirely wrong question. Did the Court below consider a wrong question altogether or did it deal with the proper question but deal with it wrongly? This distinction is of fundamental importance; in the former case, whether the error is described as one of law or of jurisdiction, certiorari would lie. Counsel on both sides have relied upon the observations of Lord Sumner in Rex v. Nat Bell Liquors Ltd (1922) 2 A.C. 128. Mr. Rajah Aiyar, who contends that only on grounds of jurisdiction could certiorari go, strongly relies upon this judgment; Mr. Jayarama Aiyar, equally relies on certain observations which go to show that even a misapprehension of the law is a ground for the writ:
It may well be,'observes Sumner,' that error as to the law of evidence, like any other error of law, if it is apparent on the record, is ground for quashing the order made below, but none of the objections taken here show that the magistrate acted under any misapprehension of the law. (P. 144.)
18. This passage clearly shows that the argument that no ground other than that of jurisdiction can justify the issue of certiorari, is wrong; but it is equally clear, as decisions of great authority have explained, that it is not every mistake in law that can be remedied by this writ. Once again to quote Farwell, L.J., in R v. The Board of Education (1910) 2 K.B. 165:
In this case the Board, by acting on a wrong construction of the Act, have not exercised the real discretion given to them thereby; a discretion to to say whether the sums provided are fit and proper on the assumption that the Act allows the authority to prefer provided to non-provided schools as such is entirely different from a discretion to say whether they are fit and proper when such preference is unlawful; wholly different considerations arise, and that which may be plain on one assumption in one way may be equally plain on the contrary assumption in another way. (p. 179).
19. As observed by Molony, C.J., in Rex v. Murphy (1921) 2 I.R. 190
When the Court has jurisdiction to decide a matter, its jurisdiction is not ousted because it happens to give an erroneous decision, and it certainly cannot be deemed to exceed or abuse its j jurisdiction merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence.
20. See also R (Limerick Corp) v. L.G.B. (1922) 2 I.R. 76 where this statement of the law has been approved). But the disregard of the law may be so flagrant as to amount to usurpation, declining or abuse of jurisdiction. Rex v. Board of Education (1910) 2 K.B. 165 illustrates this. The Board either misunderstood the question they had to decide; if not, their decision was so perverse as really to amount to 'a non-exercise of the jurisdiction' entrusted to them (Per Cozens-Hardy M.R., p. 175).
21. As to certiorari there is a well settled rule, namely, that it lies when in the exercise of jurisdiction there is error on the face of the adjudication see The King (Martin) v. Mahony (1910) 2 I.R. 699 Some confusion has been imported owing to a misunderstanding in regard to the application of this rule. The error must appear on the face of the record, that was the rule. The question became important in what is known as summary jurisdiction. It was formerly held that in order to enable a Court to judge whether a conviction was legal, it must set out the evidence; state all the conclusions of fact constituting the offence; give a proper judgment. When the evidence was made a part of the record, Judges directed their ingenuity to discover faults of evidence and conviction:
Parliament again and again intervened to protect magistrates and suitors from this dangerous, expensive and dilatory technicality (a) by declaring convictions etc., to be 'final' or 'final and conclusive.'; (b) by excluding certiorari; (c) by prescribing general forms of conviction without evidence.... So far as regarded non-certiorari and finality clauses...judicial decisions made them of small effect, but the general forms not stating evidence proved to be a successful remedy. (pp. 733 and 734).
22. This is the historical aspect of the question. When evidence was incorporated with the conviction, they were in the nature of speaking orders that might be quashed, because the error appeared on the face of the proceedings. Now the statute has made it unnecessary for magistrates to set out the evidence, the result being that the face of the record 'spoke' no longer; 'it was the inscrutable face of a sphinx.' See Rex v. Nat Bell Liquors Ltd. (1922) 2 A.C. 128 .
The statute did not stint the jurisdiction of the Queen's Bench, or alter the actual law of certiorari.
23. What it did was to disarm its exercise (p. 159). Naturally, in the case of tribunals exercising under the statute summary jurisdiction, certiorari in actual practice could lie only to correct errors of jurisdiction; the emphasis was, as one might expect, laid in the judgments in such cases, upon the question of jurisdiction. If this fact be not borne in mind, confusion necessarily results.
12. Turning to the case before us, the question which the learned Commissioner had to consider was, whether or not the result of the election was materially affected. On this point, I have very little to add to what my learned brother has said. Applying the rule laid down in Woodward v. Sarsons (1875) L.R. 10 C.P. 733 which is on all-fours, the invalid votes ought to have been counted. Taking the valid votes, the petitioner was returned by a majority of 114. If the invalid votes had been counted, he would have had a majority of 182. Even if it be assumed that every one of the 143 electors, who had not voted, did cast his vote in favour of the respondent, even then the petitioner would have had a majority of 39. According to Woodward v. Sarsons (1904) 91 L.T. 194 unless the spoilt votes, if admitted, would have turned the scale against the successful candidate, the result of the election could not in any way be deemed to be affected; in. other words, the election could be declared void only if by admitting the invalid votes, the respondent obtained a majority. In the light of this decision, the finding of the Commissioner cannot possibly be supported.
24. Then the question arises, is the error of such a nature as to justify the grant of certiorari? I agree with my learned brother that the facts of the present case bring it within the principles laid down in the two cases referred to above, namely Rex v. Commissioner of Income-tax (1904) 91 L.T. 194 and Rex v. Board of Education (1910) 2 K.B. 165. To what my learned brother has said on this part of the case, I have very little to add.
25. The lower Court's order is quashed and the petition is allowed with costs, which are fixed at Rs. 150 (One hundred and fifty only) to be paid to the petitioner by the first Respondent. The learned Commissioner is directed to enquire into the other matters raised in the petition and dispose of it according to law.