Skip to content


Kalyan Singh Vs. Baldev Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 11 of 1960
Judge
Reported inAIR1961HP2
ActsCode of Civil Procedure (CPC) , 1908 - Order 4, Rule 1(1); ;Constitution of India - Articles 141, 226 and 227; ;Himachal Pradesh Territorial Councils Act, 1956 - Sections 19(1), 20 and 54(3); ;Himachal Pradesh Territorial Councils (Election of Members) Rules, 1957 - Rules 76 and 80
AppellantKalyan Singh
RespondentBaldev Singh and anr.
Appellant Advocate M.L. Aukta, Adv.
Respondent Advocate Kedar Ishwar, Govt. Adv.
DispositionPetition dismissed
Cases ReferredMunna Lal Tewary v. Harold R. Scott
Excerpt:
.....presented - petitioner contended that as per section 13 election petition had to be presented to district judge but as petition was presented to senior subordinate judge, such presentation was defective - court of senior subordinate judge includes presiding officer of court and if paper is presented to presiding officer of court it should be held to have been presented to court and it could not be denied that senior subordinate judge was officer - election petition was validly presented - petition rejected.;(ii) legislative competency - section 20 and 54 (3) of himachal pradesh territorial councils act, 1956 - petition against order setting aside election of petitioner - contention that rule 80 was beyond scope of section 20 whereby power was conferred upon central government to make..........it to the senior subordinate judge, nahan,on 31-8-1957, who transmitted it to the court of the district judge which was the authority constituted under the territorial councils act for the disposal of an election petition. the district judge dismissed the petition on the grounds that it was time-barred and that the security was not deposited in accordance with the provisions of rule 78 of the territorial councils (election of members) rules, i957. respondent no. 1 filed a writ petition against the order of the district judge, which was accepted and the district judge was directed to proceed with the petition in accordance with law.the learned district judge thereafter held that the petitioner had appointed one shri amar singh, a member of the armed forces, as his polling agent and as.....
Judgment:
ORDER

C.B. Capoor, J.C.

1. This is a petition by Shri Kalyan Singh under Articles 226 and 227 of the Constitution of India. At the elections to Territorial Council Himachal Pradesh held in 1957, the petitioner and respondent No. 1, were rival candidates from the Paonta constituency of Sirmur district. The petitioner was declared elected having defeated respondent No. 1 by 1068 votes. Respondent No. 1 filed an election petition, challenging the petitioner's election, and presented it to the Senior Subordinate Judge, Nahan,on 31-8-1957, who transmitted it to the Court of the District Judge which was the authority constituted under the territorial Councils Act for the disposal of an election petition. The District Judge dismissed the petition on the grounds that it was time-barred and that the security was not deposited in accordance with the provisions of Rule 78 of the Territorial Councils (Election of Members) Rules, i957. Respondent No. 1 filed a writ petition against the order of the District Judge, which was accepted and the District Judge was directed to proceed with the petition in accordance with law.

The learned District Judge thereafter held that the petitioner had appointed one Shri Amar Singh, a member of the Armed Forces, as his polling agent and as such was guilty of corrupt Practice as defined in Rule 80(6)(c) of the Territorial Councils (Election of Members) Rules, 1957, and set aside the election of the petitioner and it is against that order that the present petition is directed.

2. The petition is based on a variety of grounds, but those which were urged by the learned counsel for the petitioner were: Firstly, that the election petition was not validly presented and as such it was not liable to be entertained. Secondly, that the finding of the District Judge that Amar Singh was appointed as polling agent by the petitioner and that he had canvassed for him was incorrect and should be set aside. Thirdly, that Rule 80(6)(c) of the Territorial Councils (Election of Members) Rules, 1957, was ultra vires inasmuch as it was in excess of the rule making powers conferred by Section 20 and was beyond the scope of Section 15 of the Territorial Councils Act, 1956.

It has also been argued that the power conferred by Section 20 on the rule making body was in excess of the permissible limits of delegated legislation.

3. During the course of arguments, a question arose as to whether the rules framed by the Central Government, in exercise of the powers conferred by Section 20 of the Territorial Councils Act, which rules included Rule 80 also, had been placed on the table of both the Houses of Parliament, as prescribed by sub-section (3) of Section 54 of the said Act. The learned counsel for the petitioner filed an affidavit in support of the allegation that the said rules were not placed on the table of the Houses of Parliament and the respondents were required to file a counter-affidavit, if any, and it has been admitted on behalf of the respondents that the rules framed by the Central Government, in the exercise of powers conferred by S, 20 of the Territorial Councils Act, were not laid on the table of the Houses of Parliament. The petitioner has, with the leave of the Court, amended the petition and added a new ground that Rule 80, referred to above, was also ultra vires as the procedure prescribed by sub-section (3) of Section 54 of the Territorial Councils Act was not observed with respect to it.

4. Respondent No. 1 has contested the petition upon the grounds that Rule 80(6)(c) was intra vires and not beyond the scope of the powers of the rule making body, that the petitioner was guilty of having committed corrupt practice in appointing a member of the Armed Forces of the Union as his polling agent and that the finding on that question recorded by the learned District Judge was not liable to bequestioned in a writ petition under Arts. 226 and 227 of the Constitution of India and, lastly, that the election petition was properly presented. It has also been urged that in response to the writ petition, which the respondent No. 1 had filed against the order of the District Judge dismissing the election petition, the petitioner had put forward certain preliminary objections and had also urged additional grounds, which were, however, not pressed at the time of the hearing of the writ petition and as such would be deemed to have been abandoned.

5. The first question that arises for decision is as to whether the election petition was properly presented. The contention of the petitioner is that in accordance with Section 13 of the Territorial Councils Act, 1956, an election petition lies to the Court of the District Judge and as the petition, in the instant case, was presented to the Senior Subordinate Judge, Nahan, the presentation was defective and improper. It appears that by an order dated 4-4-1949, the then District Judge, Mahasu and Sirmur districts, had directed that the plaints, appeals, applications etc. lying to his Court might be presented to the Court of the Senior Subordinate Judge, Nahan, from where after scrutiny they shall be forwarded to his Court at Harvington, Simla. The aforesaid order was presumably made under Order IV, Rule 1(1), Civil Procedure Code, which runs as below:

'Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf'.

It has not been disputed on behalf of the petitioner that the aforesaid provision of law was applicable to the instant case. The contention advanced by him has been that by the order of 1949, it was the Court of the Senior Subordinate Judge which had been authorized to receive plaints etc. and as such Court was not an officer the delegation of powers was not in accordance with the provision of law. The Court of the Senior Sub Judge, in my opinion, includes the presiding officer of the Court and if a paper is presented to the presiding officer of a Court it should be held to have been presented to the Court and it could not be denied that the Senior Subordinate Judge, to whom the election petition under consideration was presented, was an officer.

6. It was next contended on behalf of the petitioner that the officer contemplated by the aforesaid provision of the Civil Procedure Code was a ministerial officer appointed by the District Judge, and the Senior Subordinate Judge, Nahan, not being such an officer, the power to receive plaints etc. could not have been delegated to him. The aforesaid construction, I am afraid, is very narrow and is not borne out by the words of the relevant provision. The word 'appoint' according to Corpus Juris, Volume IV, 1916 Edition, page 1402, inter alia, means designate or to nominate and there could be no doubt that the Senior Subordinate Judge Nahan, had been nominated by the District Judge, Mahasu, for receiving plaints etc. The contention that delegation under Order IV, Rule 1, Civil P. C., could have been made to a ministerial officer only is not correct. The presentation of the election petition, therefore, did not suffer from any impropriety.

7. In this view of the matter, it is not necessary to go into the contention, advanced on behalf of the respondent No. 1 to the effect that the question of the improper presentation of the election petition should be deemed to have been decided when it was held that the petition was filed within the prescribed period of limitation.

8. The second question that arises for consideration is as to whether in the exercise of jurisdiction under Articles 226 and 227 of the Constitution oi India, the finding of fact recorded by the learned District Judge on Issues Nos. 7(1) and 7(2) framed by him could be gone into. The scope of Article 227 is not wider than that of Article 226 and if anything it is narrower. In the case of Nagendra Nath Bora v. Commr. of Hills Division and Appeals, Assam reported in AIR 1958 SC 398, it was held that the powers of judicial interference under Article 227 with orders of judicial or quasi judicial nature are not greater than the powers under Article 226. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 the power of interference is limited to seeing that the tribunal functions within the limits of its authority. In the case of Gurdit Singh v. Regional Settlement Commr. reported in AIR 1960 Punj 58, it was held that the scope of a petition under Article 226 is very limited. It cannot review, reweigh or re-assess the finding of fact given by the Departmental Tribunals,

It was further held in the same case that where there was no such error apparent on the face of the record as could be rectified by the High Court in writ proceedings, the proceedings conducted by the departmental officers could be scrutinized for ascertaining that their conclusions were right or wrong. In the case of Bidya Bhushan v. State of Orissa, reported in AIR 1960 Orissa 68, it was held that it was not the function of the High Court, while exercising its jurisdiction under Article 226 to examine the weight to be given to a particular piece of evidence. In the case of Niranjan Prasad v. State, reported in AIR 1960 All 323, it was held that a finding of fact of a tribunal in quasi judicial proceedings could be quashed by a writ of certiorari if the Court held that there was no evidence in support of it and that it could not reasonably have been founded on the material before the inquiry tribunal.

9. In the instant case, it could not be said that there was no evidence whatsoever in support of the finding of fact recorded by the learned District Judge and that finding was, therefore, not liable to be interfered with in the exercise of the writ jurisdiction.

10. The next question that has been urged on behalf of the petitioner is that Rule 80 of the Rules framed under the Territorial Councils Act was ultra vires. A threefold contention has been advanced in that connection. It has, firstly, been urged that the aforesaid rule was beyond the scope of Section 20 of the Territorial Councils Act whereby power was conferred upon the Central Government to make rules and, secondly, that the power to make rules conferred by Section 20, read with Clause (k) thereof, was in excess of the limits within which a legislative body can delegate its powers to an outside agency, and, thirdly, that, as prescribed by sub-section (3) of Section 54 of the Territorial Councils Act, the said rule was not laid on the table of both the Houses of Parliament.

11. Before proceeding further, I consider it necessary to examine the scope of Arts. 226 and 227, of the Constitution of India. The latest case on the point is Satyanarayan Laxminarayan v. Mallikarjun Bhavanappa, reported in AIR 1960 SC 137. The facts of that case were as below: The respondent made an application in the Revenue Court of the Mamlatdar of Sirsi praying for delivery of possession of property which the appellant was on that date possessing as the tenant under him on the basis of a 'Mulegeni' deed executed by the respondent's pre-decessor-in-interest in favour of the appellant's pre-decessor-in-interest. The case was governed by the Bombay Tenancy and Agricultural Lands Act, 1948, and one of the questions in controversy was whether before applying for delivery of possession, it was incumbent upon the respondent to have given a notice terminating the tenancy. The Mamlatdar made an order for possession in favour of the respondent. The Collector allowed the appeal and set aside the order of the Mamlatdar. The Bombay Revenue Tribunal, to whom the matter was taken up on appeal, held that as the respondent had failed to terminate the tenancy by notice before instituting the action for ejectment, he was not entitled to entertain the application for recovery of possession.

Thereafter, the respondent made an application to the High Court of Bombay under Article 227 of the Constitution of India for the quashing of the order of the Revenue Tribunal and the Collector and for the restoration of the order of the Mamlatdar. The High Court was of the opinion that the Tribunal had committed an error which was apparent on the face of the record in holding that an order of possession could not be made unless a notice, terminating the tenancy had been given before the institution of the proceeding and it issued a writ of certiorari quashing the order of the Tribunal and restoring that of the Mamlatdar.

An appeal was filed against the order of the High Court and the Hon'ble Supreme Court reversed that order on the ground that the alleged error in the judgment of the Bombay Revenue Tribunal, namely that an order for possession should not be made unless a previous notice required by Section 14 of the Bombay Tenancy and Agricultural Lands Act, 1948, had been given, was not an error apparent on the face of the record so as to be capable of being corrected by a writ of certiorari and the following observations were made by the Hon'ble Court:

'An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.'

Article 227 of the Constitution corresponds to Section 107 of the Government of India Act, 1915. However wide it may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that the High Court cannot, in exercise of its power under that section, assume appellate powers to correct every mistake of law.Where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice, but, if anything, it may merely be an erroneous decision which error, not being apparent on the face of the record, cannot be corrected by the High Court in revision under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution.'

12. On behalf of the petitioner, reliance was placed upon the ruling of the Hon'ble Supreme Court, reported in (S) AIR 1955 SC 233, Hari Vishnu Kamath v. Ahmad Ishaque, but that ruling does not lend support to the petitioner. In that case also it was held that a writ of certiorari can 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. It was further held that the test that 110 error can be said to be apparent on the face of the record if it is not self-evident, and if it requires an examination or argument to establish it, may afford a satisfactory basis for decision in the majority of cases.

This case was relied upon by the Hon'ble Supreme Court in the Satyanarayan Laxminarayan Hegde's case, AIR 1960 SC 137, referred to above .

13. It, therefore, follows that before an error of law can be rectified by an issue of the writ of certiorari, it must be an error which is apparent on the face of the record and self-evident.

14. It has next to be seen if the conclusion arrived at by the learned District Judge on the question of the vires of Rule 80 can be said to be a patently erroneous one. It has been contended, on behalf of the petitioner that the finding recorded by the learned District Judge was manifestly erroneous inasmuch as the setting aside of the election of a returned candidate merely on the ground of commission of a corrupt practice was not contemplated by the relevant provision of the Act, namely Section 15, and as such it was beyond the scope of the rule-making body.

15. While it is true that Section 15 of the Territorial Councils Act did not contemplate the settingaside of the election of a returned candidate merelyon the ground of commission of a corrupt practice,the fact remains that very wide powers were conferred on the rule-making body by Clause (k) of Section 20. The relevant portion of Section 20(k) runsas below :

Section 20. 'The Central Government may make rules to regulate all or any of the following matters for the purpose of the holding of elections of members under this Act, namely :

... ... ... ... ...... ... ... ... ... (k) any other matter relating to elections or election disputes in respect of which the Central Government deems it necessary to make rules under this section or in respect of which this Act males no provision or makes insufficient provision and provision is, in the opinion of the Central Government, necessary.'

It will have been noticed that it also empowers the Central Government to make rules relating to election disputes if in respect thereof there is no provision in the Act or the provision is insufficient and in the opinion of the Central Government it is necessary to make such a provision. In other words, Clause (k) empowers the Central Government to make a rule that may even be in derogation of the provisions contained in the body of the Act.

The mere fact that Rule 80 does not find place in Part IV of the Rules which has been headed as 'Disputes regarding elections' cannot lead to the conclusion that the said rule does not relate to disputes regarding elections. Rule 80 is merely an adjunct to and a supplement to Rule 76 which finds place in Part IV, referred to above, and there can be no doubt that Rule 80 relates to disputes regarding elections and is covered by Clause (k) of Section 20. Thus, on the face of it the framing of Rule 80, or for the matter of that, of Rule 76 was within the rule-making power conferred on the Central Government by Section 20.

16. The second point that has been made out on behalf of the petitioner was that the rule making power conferred upon the Central Government by Section 20(k) of the Territorial Councils Act was in excess of the limits within which a legislative body can delegate its functions to an outside agency. A decision on that question depends upon a consideration of the principles governing the delegation of power by a legislative body to an outside agency and the testing of the relevant provisions of the Territorial Councils Act and the rules framed thereunder on the touchstone of those principles. This is a course of investigation which by no means can be said to be a simple one. As for example, it may have to be determined as to whether the provision contained in Section 20, Clause (k), that the Central Government may make a rule in respect of a matter, inter alia, relating to election disputes if either there is no provision in the Act relating to that matter or the provision is considered to be insufficient amounted to abdication or effacement of the legislative body and the creation of a parallel legislative body and that the provision contained in Rule 76 that the election of a returned candidate can be challenged merely on the commission by him or by his agent of a corrupt practice was a matter of policy and an essential feature of legislation or a mere matter of detail.

These are such questions that even though their correct solution may be one only it could not be said that a different opinion may not reasonably be held thereon. Thus, assuming for the sake of argument, but not deciding, that the Central Legislature transgressed permissible limits of delegated legislation in arming the Central Government with very wide and comprehensive powers the error in holding that Rule 80 was intra vires cannot be said to be self-evident and patent on the face of the record.

17. It only remains to consider as to what is the effect of the non-placing of the rules framed by the Central. Government in the exercise of powers conferred by Section 20 of the Territorial Councils Act on the, table of the Houses of Parliament. Sub-section (3) of Section 54 of the aforesaid Act runs as below :

'All rules made under this Act shall, as soon as may be after they are made, be laid for not less than thirty days before both Houses of Parliament and shall be subject to such modifications as Parliament may make during the session in which they are so laid or the session immediately following.'

It has been argued on behalf of the petitioner that in view of the aforesaid provision it was obligatory on the Central Government to have laid the rules framed by it in the exercise of powers under Section 20 of the Territorial Councils Act, on the table of both the Houses of Parliament. While ordinarily the use of the auxiliary verb 'shall' connotes an obligation rather than a direction, the said word has been interpreted to have been used in a directory sense also. The word 'shall' was used in Clause (3) of Article 320 of the Constitution of India and in the case of State of U. P. v. Manbodhan Lal, reported in 1957. All LJ (Vol. 55) 921: ((S) AIR 1955 SC 912), it was held by the Hon'ble Supreme Court that Article 320(3)(c) was not mandatory in nature but merely directory.

In the case of Dalmer Singh v. State of Pepsu, reported in AIR 1955 Pepsu 97, the provisions of Article 320(5) of the Constitution were held to be directory and not mandatory. The use of the word 'shall' in the aforesaid Article was not held to be material and it was held that the regulations were not to be formally approved by the House but were subject to any modifications the House may choose to make during the session in which they were laid before it. In the case of Munna Lal Tewary v. Harold R. Scott, reported in AIR 1955 Cal 451 also, it was held that Article 320(3) of the Constitution of India was not mandatory in nature.

18. The learned Government Advocate, in all fairness, invited my attention to the following observation made in the opinion of Section R. Das, C; J., in the case of In re Kerala Education Bill, 1957, reported in AIR 1958 SC 956 :

'Further, under Clause 37 the rules have to be laid for not less than 14 clays before the Legislative Assembly as soon as possible after they are made and are to be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid. After the rules are laid before the Legislative Assembly they may be altered or amended and it is then that the rules, as amended, become effective. If no amendments are made the rules come into operation after the period of 14 days expires.'

It was not one of the questions before the Hon'ble Supreme Court as to whether the rules which are required to be laid on the table of the House of Legislature become operative after such laying or prior to that and the observation made by His Lordship, if I may say so with respect, was in the nature of obiter dicta. And although even the obiter dicta of the Hon'ble Supreme Court are entitled to the highest of respect, they do not have the force of a ruling. It would, therefore, not be correct to hold on the aforesaid observations of His Lordship that a rule framed by a subordinate legislative body which is required to be laid on the table of the House of Legislature does not become operative until so laid.

Section 20 and for the matter of that Section 54 of the Territorial Councils Act does not provide that the rules which may be framed by the Central Government would not become operative and effective unless they have been laid on the table of the Houses of Parliament. I am, therefore, of the opinion that the omission on the part of the administrative department concerned to lay the rules framed by the Central Government in the exercise of the powers conferred by Section 20 of the Territorial Councils Act on the table of the Houses of Parliament I does not render the rules invalid or inoperative.

19. It has also been argued on behalf of the petitioner that as by Sub-section (1) of Section 19 of the Territorial Councils Act an order of the Court of the District Judge on an election petition has been declared to be final and conclusive, a High Court in the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India should be liberal in interfering with an erroneous order of the District Judge. The contention is not a convincing one. The intention of the Legislature was that the order of the District Judge should be final and it would be defeating that intention if an order of the District Judge is interfered with lightly.

In the exercise of the jurisdiction under Articles 226 and 227 of the Constitution of India, a Court should not assume to itself appellate powers when the filing of an appeal has been barred. I have already alluded to the observation made by the Hon'ble Supreme Court in the case reported in AIR 1960 SC 137, that it was well established that the High Court cannot in the exercise of its power under Section 11.5 of the Code of Civil Procedure or Article 227 of the Constitution of India assume appellate powers to correct every mistake of law.

20. In fine, I hold that the order of the learnedDistrict Judge does not suffer from any error thatmay be self-evident or patent on the face of therecord. The petition is accordingly rejected. Noorder is made as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //