December 9 v. Syed Ahmad

VENKATARAMA AYYAR J.-The appellant and res pondents 1 to 5 herein were duly nominated for elec tion to the House of the People from the Hoshangabad Constituency in the State of Madhya Pradesh. Res pondents 4 and 5 candidates. election, leaving the At the polling the appellant first respondent 65,375 votes and the other candidates far less; and Returning Officer according! y declared the first respondent duly filed Election Petition No. 180 of 1952 for setting aside the election on the ground inter alia that 301 out of respondent favour of the votes counted in were liable to be rejected under Rule 47 ( 1) ( c) of Act No. XLIII of 1951 on the ballot the distinguishing marks pres papers did not have cribed under Rule 28, and that by reason of their im proper reception, the result of the election had been materially affected. Rule 28 is as follows : elected. The appellant the ground that the first "The ballot papers to be used for the purpose of applies voting at an election to which this Chapter shall contain a serial number and such distinguishing marks as the Election Commission may decide".

Under this rule, the Election Commission had decided the Parliamentary Consti- that the ballot papers 1 954 Hori Vishnu Kamath v. Syed Ahmad Jshaque and Otheis V111katarama AyyarJ. 1108 SUPREME COURT REPORTS [1955] tuencies should bear a green bar printed near the left margin, and that those for the State Assembly should bear a brown bar. y favour of the other respondent, remaining in What happened in this case was that voters for the House of the People in polling stations Nos. 316 and 317 in SobhapUr were given ballot papers with brown bar intended for the State Assembly, instead of ballot papers with green bar which had to be used for the House of the People. The total number of votes so polled was 443, out of which 62 were in favour of the appellant, 301 in favour of the first candidates. Now, Rule 47 ( 1) ( c) enacts that "a ballot paper con tained in a ballot box shall be rejected if it bears any the serial num serial number or mark different from bers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot boi< in which it was found was used".

In his that m election petition, contended accordance with papers this prov1S1on stations not having received at the Sobhapur polling ·the requisite mark should have been excluded, and that if that had been done, the first respondent would have lost the lead of 174 votes, and that he himself largest number of votes. He would have secured the accordingly prayed that he might be declared duly elected. the appellant ballot The first respondent that further contested the petition. He pleaded that the Returning Officer ar Sobhapur had rightly accepted the 301 votes, because Rule 47 was directory and not mandatory, votes had been accepted as valid by the Election Com mission, and the defect, if any, had been cured. He also filed· a recrimination petition under section 97 of therein pleaded inter alia Act No. XLIII of 1951, and that at polling station No. 299 at Malkajra and polling station No. 371 at Bammangaon ballot papers intended for use in the State Legislature election had been wrongly issued to voters to People by mistake of the polling officers, that all those ·votes had been wrongly the Returning . Officer, and that if they had been counted, he would the House of rejected by - y - S.C.R. SUPREME COURT REPORTS 1109 have got 117 votes more accordingly challenged the be declared elected. right of the appellant.. He the appellant The Election Tribunal held by a majority that Rule the 301 ballot 47(1) (c) was mandatory, and that papers found in the box of the first respondent bear ing the wrong mark should not have been counted; while the third Member was of the opinion that that rule was merely directory, and that the Returning Officer had the power to accept them.

The Tribunal, however, was unanimous the result of the election had not been materially affected by the erroneous reception of ground dismissed the petition. in holding the votes, ' 1954 lfari Vishnu Karnath v. Syed Ahmad lshaque and Othm -"- V enkatarama "AyyarJ. • -,( '" \ ... , .. • y ... The appellant then moved the High Court of Nag pur under articles 226 and 227 of the Constitution for the issue of a writ of certiorari or other order or direc tion for quashing the decision of the Election Tribu that it was illegal and without nal on the ground jurisdiction. Apart from supporting the decision on respondent contended that having "the merits, the first r.egard to article 329 (b) the High Court was not com petent to entertain the petition, substance it called in question the validity of an election. The petition was heard by a Bench consisting of Sinha, C. J., Mudholkar and Bhutt, JJ., who differed in .conclusions.

Sinha, C. J., and Bhutt, J., held that no firstly because writ could be the effect of article 329 (b) was to take away power, and secondly, because the Election Tribunal " had become functus officio after the pronouncement of there was no Tribu the decision, and that thereafter nal to which directions could be issued under article. Mudholkar, J., agreed with conclusion, but rested it on the second ground aforesaid. As re gards article 227, while Sinha, C. J. and Bhutt, J. held that it had no application to Election Tribunals, Mudholkar, J. was of the view that they " were in view within " the purview of" that article, but of article 329 (b), no relief could be granted either respondent, or setting aside the election of the the only " declaring the appellant elected, and issued under article 226, 1954 Hari Vishnu Karnath _v. ·Syed Ahmad lShague and Others Venkatarama . Ayyar.J. 1110 SUPREME COURT REPORTS [1955J consideration order that could be made was to set aside the decision of the T ribuna!. On the merits, Sinha, C. f. and Bhutt, J. took the view that the decision of the Tribunal that the result of the election had not been mate reception of votes rially affected by the erroneous that it could not was one within its jurisdiction, and be quashed under article 226, even if it had made a mistake of fact or law.

But Mudholkar, J. held that the Tribunal had taken as in arriving at that decision mistake of the polling officer in issuing wrong ballot papers and its effect on the result of the election, had acted in excess of its jurisdiction. He was ac cordingly of opinion that the decision should be quash ed leaving it to the Election Commission "to perform election their statutory duties in accordance petition". The petition was dismissed with the majority opinion. The learned Judges, how ever, granted a certificate under article 132( 1), and that is how this appeal comes before this Court. in the matter of the irrelevant matters, such · as arises territorial The first question that for decision in this. appeal is whether High Courts jurisdiction under article 226 to issue writs against decisions of Election Tribunals. That article confers on High Courts power to issue appropriate writs to any person or authority within terms absolute and unqualified, and Election Tribu nals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. to recognise or admit any limita tion on this power, that must be founded in the Constitution itself.

The contention prov1S1on of Mr. Pathak for the first respondent is that such a limitation has been imposed on that power by article 329(b ), which is as follows : jurisdiction, If we are • . , ' • .. • .. "Notwithstanding anything in · this Constitu·· tion- no election to either House of Parliament or to the House or either House of Legislature of a State- except by an election peti-. shall be called in question such manner tion presented to such authori•y and in >... 1 954 Bari Vishnu Karnath v. Syed Ahmail lshaque and Others V enkatarama AyarJ. • --, ' .t " °" - • > - > S.C.R. SUPREME COURT REPORTS 1111 sense as article, what as may be provided for by or under any law made by the appropriate Legislature". Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of article 329 (b). On is prohibited a plain reading of therein is setting the 1nztzat1on of proceedings aside an election otherwise than by an election peti tion presented to such authority and in such manner as provided therein.

A suit for setting aside an elec In N. P. tion would be barred under this provision. Ponnuswami v. Returning Officer, Namakkal Consti tuency and Others(1) it was held by this Court that the word "election" in article 329(b) was used m a the entire process including comprehensive issue of a notifica of election commencing with the tion and terminating with the declaration of election of a candidate, and that an application under article 226 challenging the validity of any of the acts that process would be barred. These are ing part of in question instances of original proceedings an election, and would be within the prohibition enacted in article 329(b ). But when once proceed in accordance with article ings have been 329(b) by presentation of an election petition, requirements of that article are fully satisfied. There after when the election petition is in due course heard by a Tribunal and decided, whether its decision open to attack, and if so, where and to what extent, must be determined by decisions of Tribunals.

There being no dispute they are subject to the supervisory jurisdiction of the High Courts under article 226, a writ of certiorari under that article will be competent against decisions of the Election Tribunals also. the general law applicable instituted calling The view that article 329(b) is limited in its ope initiation of proceedings for setting aside ration an election and not to the further stages following on the decision · of the Tribunal is forced, when the question is considered with reference to a candidate, w.hose election has been set aside considerably (1J [1952] S.C.R. 218. 15-89'8. C. India/59. 1954 Hari Vishnu Karnath v. Syed Ahmad lshaque and Others 1112 SUPREME COURT REPORTS [1955] . If he applies under by the Tribunal. article 226 for a· writ to set aside the order of the Tribunal he can- ' not m any sense be said to call in question the elec- to mamtam it. His tion; on the other hand, he seeks application could not, therefore, be barred by article 329(b).

And if the contention of the first respondent is well-founded, the that proceedings result will be under article 226 will be competent m one event and not in another and at the instance of one party and respon not the other. Learned dent was unable to give any reason why this differen tiation should be made. We cannot accept struction which leads to results so anomalous. counsel for the a This question may be said to be almost concluded In Durga Shankar v. Raghuraj Singh(') by authority. this Court could not the contention was raised that entertain an appeal against the decision of an Elec tion Tribunal under article 136 of the Constitution, as that would be a proceeding m which an election IS that that could be done only called m question, and In before a Tribunal as provided m article 329(b). overruling this contention, Mukherjea, J. observed : "The the land, 'non-obstante' clause with which article 329 of the Constitution begins and upon which the respondent's counsel lays so much stress, debars us, as it debars any other court in to entertain a suit or a proceeding calling m question any election to the Parliament or the State Legislature.

Election Tribunal alone that can decide such disputes and the proceeding has to be initiated by an election petition and in such manner as may be provided bv a statute. But once that Tribunal has made any de the powers termination or adjudication on the matter, of this Court to interfere by way of special leave can always be exercised". By parity of reasoning it must be held that the power of the High Court under article 226 to issue writ of certiorari against decisions of Election Tribunals mains equally unaffected by article 329(b). It is It is next contended that even if there IS jurisdic- (1) [1955] S.C.R. 267. • I - [ r t -, t 1954 Bari Vishnu Karnath v. Syed Ahmad lshaque and Othlt V enkatarama Ay,1ar ]. S;C.R. SUPREME COURT REPORTS 1113 to which raised tion in the High Court under article 226 to ISsue certiorari against a decision of an Election Tribunal, for the reason that under the it is incapable of exercise scheme of Act No.

XLIII of 1951, the Tribunal is an ad hoc body set up for determination of a particular election petition, that it becomes functus officio when thereafter there it pronounces its decision. and the writ could is no authority in existence be issued. The question thus is of considerable importance, on which there is little by way of direct authority; and it has to be answered primarily on a consideration of the nature of a writ of certiorari to quash. At the outset, it is necessary to mention that in England certiorari is issued not only for quashing It is decisions but also issued to remove actions an inferior court for trial to the High Court; to trans criminal fer orders of civil courts to bring courts for execution to the up depositions on an for bail when to the High Court for prisoner has been committed trial; and to remove the an inferior court when it is required for evidence in the High Court.

These are set out in Halsbury' s Laws of England, Volume IX, pages 840 to 851. therein that the writ has become obsolete in respect of most of these matters, as they are now regulated by statutes. in America appears That that is also in Corpus Juris Secun from the following statement dum, Volume 14, at page 151: and sentences of superior court; and indictment pending for various other It is observed the position application record of purposes. "At common law the writ of certiorari was used both as a writ of review after final judgment and also to remove the entire cause at any stage of the pro ceeding for hearing and determination in the superior court. In the United States it is now the general rule that the writ will be refused where there has been no in the lower final determination and tribunal are still pending". As we are concerned in this appeal with certiorari to to examme quash a decision, whether having regard to its nature such a writ for is necessary only the proceedings - 1 954 Hari Vishnu Karnath v.

Syea Ahmad lsha'l"' and Others Vmkatarama AyyarJ. 1114 SUPREME COURT REPORTS [1955] quashing can be issued to review Tribunal, which has ceased to exist. the decision of a According to the common law of England, certiorari is a high prerogative writ issued by the Court of the King's Bench or Chancery to inferior courts or tribu nals in the exercise of supervisory jurisdiction with a view to ensure that they acted within the bounds of their jurisdiction. To this end, they were commanded to transmit the records of a cause or matter pending with them to the superior court to be dealt with there, and if the order was found jurisdic tion, it was quashed. The court issuing certiorari to quash, however, could not substitute its own decision on the merits, or give directions to be complied with Its work was destructive; jurisdic it simply wiped out the order passed without In T. C. Basappa v. tion, and left the matter there. ), M:ukherjea, J. dealing with this ques T. Nagappa( 1 tion observed: the court or the tribunal. to be without It demolishes to be without "In granting a writ of 'certiorari' the power of an the superior court does not exercise appellate tribunal.

It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. the order which it considers jurisdiction or palpably erroneous but does not substitute its own view those of the inferior tribunal. The offending order or proceeding so to say is put out of the way as one which should not be used to the deteriment of any per son. Vide per Lord Cairns in Walsall's Overseers v. L. and N. W. Ry. Co.(•)". In Corpus Juris Secundum, Volume 14 at page 123 the nature of a writ of certiorari for quashing is stated: "It is not a proceeding against the tribunal or an the cause or pro removes individual composing it, it acts on ceeding in the lower court, and superior court for reinvestigation''. it to The writ for quashing is thus directed a record, and as a record can be brought up only against Ir) [1955] S.C.R. 250. (2} [1879] 4 A.C. 30, 39· - S.C.R. SUPREME COURT REPORTS 1115 jurisdiction of the court If it is a question of issuing directions, through human agency, it is issued . to the person or If it is the authority whose decision is to be reviewed. record of the decision that has to be removed by certiorari, then the fact tribunal has become functus officio subsequent to the decision could have to remove no effect on tlf e the record. is conceivable that there should be in existence a per son or authority to whom they could be issued, when_ a certiorari other than one to quash the decision is proposed to be issued, tribunal has ceased to exist might operate as a bar to its issue . But if the true scope of certiorari to quash is that it merely demolishes the offending order, the presence of the offender before the court, though proper, is not necessary for the exercise of render its determination effective. the jurisdiction or that the .. • 1954 Harl Vishnu Karnath v.

Syed Ahmad lshaque and Others V enkatarama 'AyyarJ~ that as it requires to be reviewed, to the form of Learned counsel for the first respondent invites our attention the order nisi in a writ of the court certiorari, and contends or tribunal whose proceedings are there is, if transmit the records to the superior court, the tribunal has ceased writ could be issued and none who could be compelled to produce the record. But then, if the writ there is no reason reality directed against the record, why it should not be issued to whosoever has the cus tody thereof. The following statement of the law in Ferris on the Law of Extraordinary Legal Remedies is apposite: to exist, none to whom "The writ is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified". Under section 103 of Act No. XLIII of 1951 the Tribunal is directed to send the records of the case after the order is pronounced either to the relative District Judge or to the Chief Judge of the Court of Small Causes, and there is no legal impediment to :i. writ be ing issued the High Court.

We think that the power to issue a to those officers to transmit the record 1954 ~ Hari Vishnu Karnath v. Syed Ahmad lshague and Ot"'7s Venkatarama Apar J. • . ' , . .,_ ' 1116 SUPREME COURT REPORTS [1955} writ under article 226 to a person as distinct from an in any authority is sufficiently comprehensive person who has and the officers mentioned in section 103 of Act No. XLIII of 1951 would be persons who would be amenable to the jurisdiction of the High Court under the article. the custody of the record, to take be issued, they cannot be that there exists a person It is argued that the wording of article 226 that to issue writs or the High Court shall have power its terri directions to any person or authority within torial jurisdiction posits authority to whom it could and that in consequence, issued where no such authority exists. We are of opinion is not language of the article. The the true import of the scope of article 226 is firstly that High Courts power to issue writs and directions, and the limits of secondly, it defines that power.

This latter it does by enacting that it could be exercised over any person or authority within · the territories relation jurisdiction. The emphasis their significance is that the jurisdiction to issue writ jurisdiction of the is co-extensive with the territorial court. The reference is not to the nature and position of the court or tribunal but to the area with in which the power could be exercised. to which it exercises its is on the words "within the territory'', it confers on The first respondent relied on the decision in Clif- ford O'Sullivan(') as authority for the position that no writ could be issued against a Tribunal after it had ceased to exist. There, the facts were that the appel lants had been tried by a military Court and convict ed on 3-5-1921. They applied on 10-5-1921 for a writ of prohibition against the officers of the Court, and that was refused on the ground that they had become functi officio.

The respondent contended that on the the decision of an same reasoning certiorari against Election Tribunal which had become officio should also be refused, and he further relied on observations of Atkin, L.f. in Rex v. Electricity Com· missioners; London Electricity Joint Committee Co. ) as establishing that there was no (1920), Ex parte( 2 functus !1) [1921] 2 A.G. 570. ' I ~ .J \ I r954 Hari Vishnu Karnath v. Syed Ahmad lshague and Others V 1t1katarama Ayyar]. .. S.C.R. SUPREME COURT REPORTS 1117 is one exerc1smg \Vhat is stated are taken can move in law between a writ of prohibition and a difference writ of certiorari. that both there is their ob writs of prohibition and certiorari have for the restraining of inferior courts from exceeding issued not mere their jurisdiction, and they could be judicial to courts but to all authorities or quasi-judicial functions. But there mental distinction between the two writs, and that is is material for the present purpose.

They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom superior the proceedings court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from continu ing the proceedings. On the other hand, if the court hears that cause or matter and gives a decision, superior aggrieved would have court for a writ of certiorari, that, an order will be made quashing the decision on the ground of want of jurisdiction. that in a pro court a decision might ceeding before the have been passed, which does not dispose of the matter, in which case it might be necessary and prohibition-certiorari for certiorari apply both for quashing what had been decided, hibition for arresting the further continuance of the to this extent that proceeding. Authorities have gone is made for a in such cases when an application for certi writ of prohibition and orari, it would be open to the Court to stop further proceedings which are consequential on the decision.

But · if the proceedings have terminated, then it is too late to issue prohibition and certiorari for quashing is the proper remedy to resort to. Broadly speaking, and apart from the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are to ~my extent pending and a writ of certiorari for quash~ ing after they have terminated in a final decision . to move and on there is no prayer It might happen completely inferior . Now, if a writ of prohibition could be issued only if there are proceedings pending in a court, it must follow that it is incapable of being granted. when the Hari Vishnu KamiJth v. Syed Ahmad lshaque and Othirs V enkatarama AyyarJ. 1118 SUPREME COURT REPORTS [1955] to exist, because there could be then court has ceased no proceeding on which it could operate. But it is otherwise with a writ of certiorari to quash, because it is directed against a decision · which has been dered by a court or tribunal, and the continued exist ence of that court or tribunal is not a condition of its decision being annulled. the fol lowing passage from Juris Corpus Secundum, Volume 14, page 126 may be usefully quoted: In this context, 'y issuing to restrain future action "Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari to be distinguished from prohibition by the fact that it ..... . is directed to the cause or proceeding in the lower court and not to the court itself, while prohibition is a pre ventive remedy is directed to the court itself".

The decision in Clifford O'Sullivan(') which was con cerned with a writ of prohibition is, therefore, plicable to a writ of certiorari to quash. It has also to be noted that in that case as the military Court application had pronounced its was filed, a writ of prohibition was bound to fail irres pective of the Tribunal was functus officio or not, and that is the ground on which Viscount Cave based his decision. He observed: the question whether sentence before that the officers "A further difficulty is caused to the appellants constituting the so-called by the fact military Court have long since their m the commanding officer, vestigation and reported to so that nothing remains them, and a writ of prohibition directed to them would be of no avail. [See In re Pope(') and Chabot v. Lord Mor peth(3) r'. to be done by completed In this connection, reference must be made to the (Governor) (4 ). decision in R. v.

Wormwood Scrubbs condemned by a court mar There, the applicant was tial sitting in Germany, and in execution of its tence, he was imprisoned in England. He applied for a . writ of habeas corpus, .and contended that the. mili tary Court had no jurisdiction over him. The Court (1) [1921] 2 A.G. 570. (3) (1848] 15 Q. B. 446. (2J [1833) 5 B. & Ad. 681. (4) [1948] 1 All E. R. 438c S.C.R. SUPREME COURT REPORTS 1119 jurisdiction agreed with this contention, and held that the con viction was without accordingly issued a writ of habeas corpus. But as he was in the custody of the Governor of the Prison under a warrant itself was quashed ot conviction, unless the conviction no writ of habeas corpus could cumstances, certiorari It is quashing the conviction by the court martial. to be noted that the military Court was an ad hoc body, and was not in existence at time of the writ, and the respondents to the application were the Governor and the Secretarv for War.

The fact that the court martial was dissolved was not considered a bar to the grant of certiorari. issued a writ of issue. In these the Court 1 954 Hari Vishnu Karnath v. Syed Ahmad lshaque and Oth8rs V enkatarama Ayyar.J. r ). India Indµstrial Tribunal Our attention has also been invited to a decision of this Court in The Lloyds Bank Ltd. v. The Lloyds Bank. Indian Staff Association and others (1 In that case, following the decision in Clifford O'Sullivan (2 ) Calcutta High Court had refused applications for · issue of writs of certiorari and prohibition against decision of the All (Bank that the Disputes) on the ground, amongst others, In appeal to this Court Tribunal had ceased to exist. against this pellant that on a proper construction of section 7 of the Industrial Disputes Act, the Tribunal must be deemed to be not an ad hoc body established for ad but a permanent judication of a Tribunal continuing "in a sort of suspended intermittently".

This Court tion" and "functioning conten agreeing with the High Court rejected tion. But the point was not argued certiorari could issue even if the Tribunal had become functus officio, and no decision was given on the question, which is now under consideration. contended for the ·particular dispute judgment, it was Looking at the substance of the matter, when once it is held that the intention of the Constitution was to vest in the High Court a power to supervise deci appropriate writs sions of Tribunals by the issue of cannot be and directions, the exercise of that power (1) Civil Appeal No. 42 of 1952. {2) {1921) 2 A.C. 57~. 1954 Hori Vishnu Karnath v. Syed Ahmad hhaque and Othe13 Y enkatarama .Ayyar :J. 1120 SUPREME COURT REPORTS [1955] considerations of form and pro defeated by technical cedure. In T. C. Basappa v. T. Nagappa(' ), this Court observed: expressed in particular the nature of "In view of the express provisions in our Consti tution we need not now look back to the early his tory or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion cases by issue a English Judges.

We can make an order or writ in 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep· to the broad and late the exercise of granting such writs in English law". It will be in consonance with these principles to hold that the High Courts have power under article 226 to the decisions of issue writs of certiorari for quashing Election · Tribunals, notwithstanding that they become functus officio after pronouncing the decisions. fundamental principles jurisdiction in the matter of respect judicial article 227 went We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts the Constitution, and that that under article 227 of superintendence is both and administrative. That was held by this Court in Waryam Singh and another v. Amarnath and another('), where it was ob served that in this further than section 224 of the Government of India Act, 1935, under which the superintendence was purely adminis trative, and that it restored the position under tion 107 of the Government of India Act, 1915.

It may also be noted that while in a certiorari under article 226 the High Court can only annul the decision of the Tribunal, it can, under article 227, do that, and also the matter. We must the application of the appellant accordingly hold for a writ of certiorari and for other reliefs was main tainable under articles 226 the Consti tution. further directions and 227 of Then the question there are proper grounds for the issue of certiorari in the present case. is whether (r} [r955) S.C.R. 250. (2} [1954) S.C.R, 5()5. .. r Hari Vishnu Karnath v. Syet! Ahmat! /shaque anti Others Y mkatarama AyyarJ. - S.C.R. SUPREME COURT REPORTS 1121 'r There was considerable argument before us as to the character and scope of the writ of certiorari and the conditions under which it could be issued. The ques tion has been considered by this Court in Parry & Co. v. Commercial Employees' Association, Madras( 1), Veerappa Pillai v.

Raman and Raman Ltd. and Others( 2 ), Ibrahim Aboobaker v. Custodian General( 3 ) and quite recently in T. C. Basappa v. T. Nagappa( 4 ). the following propositions may On these authoriti:es, be taken as established: (1) Certiorari will be issued errors of jurisdiction, as when an in for correcting ferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of cer tiorari acts in exercise of a supervisory and not appel late jurisdiction. One consequence of this is that Court will not review findings of fact reached by the inferior Court or Tribunal, even if thev be erroneous. that a Court ~hich has juris- This is on the principle to de jurisdiction , ~ diction over a subject-matter cide wrong as well as right, and when the Legislature does not choose to against that decision, it would be defeating its purpose and the case policy, if a superior Court were to re-hear on the evidence, and certiorari.

These propositions are well are not in dispute. own findings settled confer a right of appeal substitute ) 1-"" '--. 'r controversy is whether a writ (4) The further question on which there has been be issued, the inferior Court or Tribunal is when the decision of erroneous in law. This question came up for · consi-. deration in Rex v. Northumberland Compensation Ap peal Tribunal; Ex parte Shaw( 5 ), and it was held that when a Tribunal made a "speaking order" and reasons given in that order in support of the decision· (1) [1952] S.C.R. 519. (2) [952] S.C.R. 696. \2) [1952] $.C.R. 583. (4) [1955] S.C.R. 1150 . . . . . . . . (5) [1951] I K.B. 711. 1122 SUPREME COURT REPORTS [1955] 1954 Hari Vishnu Karnath v. Syed Ahmad 4shaque and Others V enkatarama Ayya.J. in law, certiorari could be granted. It was were bad pointed out by Lord Goddard, C. J. that . had always been understood to be true scope of the power.

Walsall Overseers v. London and North Western Ry. Co.(') and Rex v. Nat Bell Liquors Ld.( 2 ) were this view. In Walsall Overseers quoted in support of v. London and North Western Ry. Co.(1 ), Lord Cairns, L.C. observed as follows: - - "If there was upon the face of the order of the court of quarter sessions anything which showed that order was erroneous, the Court of Queen's Bench to have the order brought into it, and might be asked to look at the order, and view it upon the face of it, and if the court found error upon the face of it, to put an end to its existence by quashing it". In Rex v. Nat Bell Liquors Ld. (') Lord Sumner said: "That supervision goes to two points; one is the jurisdiction and the qualifications the obser area of the inferior and conditions of its exercise; the other is vance of the law in the course of its exercise". The decision in Rex v. Northumberland, Compensation Appeal Tribunal; Ex parte Shaw(•) was taken in appeal, and was the Court of Appeal in Rex v.

Northumberland Compensation Appeal Tribunal; Ex that an error of law parte Shaw('). learned was a ground Judges emphasised that it must be apparent on stated record. Denning, L.J. who face of power in broad and general terms observed: In laying down for granting certiorari, affirmed by "It will have been seen that there is one governing rule: certiorari all the is only to quash a decision for error of law if the available error appears on the face of the record". The position was thus summed up by Morries, L.J.: throughout "It is plain that certiorari will not issue . as . the It does not lie in order cloak of an appeal in disguise. to bring an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, (1) [1879) 4 A.O. 30. (3) [1951] l K.B. 71 I. (2) [1922] 2 A.O. 128. (4) [1952) l K.B. 338. S.C.R. SUPREME COURT REPORTS 1123 it was observed by or irregularity, or absence of, or excess of, jurisdiction where shown".

In Veerappa Pillai v. Raman & Raman Ltd. and that under Others(1), article 226 the writ should be issued "in grave or officers where the subordinate tribunals or bodies t, 'r , act wholly without jurisdiction, or in excess of it, or justice, or __) in violation of the principles of natural refuse exercise a jurisdiction vested in them, or there is an error apparent on the face of the record". In T. C. Basappa v. T. Nagappa( 2 ) law was thus stated: this court - 1954 Hari Vishnu Karnath v. Syed Ahmad lshaque and Other.; V enkatarama AyyarJ. "An error in the decision or determination itself may also be amenable to a writ of 'certiorari' but it must be a manifest error apparent on the face of the ignorance proceedings, e.g., when it is based on clear or disregard of the provisions of law. In other words, it is a patent error which can be corrected by 'certiorari' but not a mere wrong decision". It may therefore be taken as settled that a writ of issued to correct an error of law. certiorari could be But it is essential that it should be something more than a mere error; it must be one which must bf manifest on the face of the record.

The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record ? Learned Counsel on either side were unable to suggest any clear-cut rule by which two classes of errors could the boundary between the respondent be demarcated. Mr. Pathak for the contended on the strength of certain observations of Chagla, C. J. in Batuk K. Vyas v. Surat Municipality(s) that no error could be said to be apparent on the face of the required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be case5 record if it was· not self-evident, and if 11) [1952] S.C.R. 583. (2) [1955] S.C.R. 250. (3) A.LR. 1953 Born. 133. ... .. ' / - ,1954 Hari VUhnu Karnath v.

Syed Ahmad lshaque and Others V tnkatarama AJ!)'ar ]. 1124 SUPREME COURT REPORTS [1955] which even this test might break down, because judi cial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely being an element of inherent in its very nature, and it must be left to be determined judicially on the facts of each case. or exhaustively, indefiniteness These being the principles governing the grant of certiorari, we may now proceed to consider whether is a fit case for a writ being on the facts found, this issued. The Tribunal, as already stated, held by a majority that Rule 47(1) (c) was mandatory, and that accordingly the 301 ballot papers found in the box of been rejected under the first respondent should have that rule on the ground that they had not the distin guishing marks prescribed by Rule 28.

It had also held under section 100(2) ( c) of Act No. XLIII of 1951 that the result of the election had not been materially affected by the failure of the Returning Officer comply with Rule 47(1) (c). It accordingly dismissed the contention of Mr. N. C. the petition. Now Chatterjee for the appellant conclusion the Tribunal had taken into account mat ters which are wholly extraneous to an enquiry under section 100(2) ( c ), such as the mistake of the polling officer in issuing wrong ballot papers and its possible effect on the result of the voting, and that accordingly the decision was liable to be quashed by certiorari both on the ground of error of jurisdiction and error in the construction of section 100(2) (c) apparent on the face the other of the hand, contended that the decision of the Tribunal that the 301 ballot papers found in his box should have been rejected under Rule 47(1) (c) was erroneous, be and not manda cause that rule was only directory the Election Commission validated that its decision was finaL He also contended that even if the ballot papers in ques tion were liable to be rejected under Rule 47(1) (c), section 100(2) (c} for the purpose of deciding under record.

The first respondent, on and because them, and reaching that in Hari Vishnu Karnath v. Syed Ahmad lshaque and Others V enkatarama AyyarJ. ' ' - '· S.C.R. SUPREME COURT REPORTS 1125 rule provides whether the result of the election had been materially the true inten :affected the Tribunal had to ascertain tion of the voters; and the mistake of polling officer under Rule 23 and its effect on the result of the election were matters which were within the scope ·of the enquiry under that section. The correctness ·of these contentions falls now to be determined. On the question whether Rule 47 (1) ( c) is manda argument of Mr. Pathak is that notwith tory, the Return standing that the ing Officer shall meaning is that he has the power to reject them, and that on that construction, his discretion in the matter liable to be questioned. He ·of accepting them is not construction relies on certain well-recognised rules of as direc .such as that a statute it relates to the performance of public duties, or if the conditions prescribed therein have to be per those on whom the formed by persons other than right is conferred.

Inter following statement of the law in Maxwell on pretation of Statutes, 10th Edition, pages 381 382: should be construed In particular, he the ballot papers, relied on reject "To hold that too unreasonable an Act which required an officer to prepare and deliver to list of another officer a voters on or before a certain day, under a penalty, invalid, made a list not delivered till a later day the person would in effect, put it in the power of charged with the duty of preparing it to disfranchise the electors, a conclusion ·ceptance". He contended that to reject the votes of the electors for the correct ballot papers under Rule 23 would be to dis franchise them, and that a construction which volved such a consequence should not be adopted. It is well-established that an enactment mandatory might in substance be directory, and that the use of the word "shall" does not conclude matter. The question was length Julius v.

Bishop of Oxford(1), and various rules were failure of the polling officer to deliver examined at (1) [1880) 5 A.O. 214. 1954 Hari Vishnu Karnath v. Syed Ahmad lshaque and Others V enkatarama Ayyar]. 1126 SUPREME COURT REPORTS [1955} • ) relates to a ballot on a construction of laid down for determining when a statute might be construed as mandatory and when as directory. They there is no need to repeat them. are well-known, and ascertaining But they are all of them only aids the de the true intention of the legislature which 1s tennining factor, depend and that must ultimately to see is whether in' on the context. What we have Rule 47 the word "shall" could be construed as me~.n- ing "may". Rule 47 (1) deals with three other cate- they shall be gories of ballot papers, and enacts that rejected. Rule 47(1) (a) which "bears any mark or writing by which the elec- tor can be identified". The secrecy of voting being of the essence of an election by ballot, this prov1S1on the breach of it must be held to be mandatory, and must entail rejection of the votes.

That was held m Woodward v. Sarsons( 1 section 2 of the Ballot Act, 1872. That section had also a provision corresponding to Rule 47 ( 1) (b), and it was held in that case that a breach of that section would render the vote void. That must also be the position with reference to a vote which is hit by Rnle 47(1) (b). Turning to Rule 47 ( 1) ( d), it provides that a ballot paper shall be rejected if it is spurious, or if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established. The word "shall" cannot m as meaning "may", because there can be no question of the Re- accept a spurious turning Officer being authorised to or unidentifiable vote. to be construed in a mandatory sense m Rule 47(1) it in (a), (b) and ( d), it would be proper to construe the same sense in Rule 47(1) (c) also. There is an- other reason which clinches against respondent. The practical bearing of the distinc- tion between a provision which is mandatory and one which is directory is former must be suffi- it is strictly observed, cient that it is substantially complied with.

How this rule to be worked when the Rule provides ballot paper shall be rejected? There can be no degrees . in the case of the latter If the word "shall" sub-rule be construed is · that a that while the the matter 1s (1) [1875] L.R. 10 C.P. 733· •f ""., 'y - ' i ' "'· Hari Vishnu Karnath v. Syed Ahmad · lshague and Others Venkatarama Ayyar]. S.C.R. SUPREME COURT REPORTS 1127 of compliance so far as that is conclusive datory. rejection to show that the provision is man concerned, to challenge. the House of It was next contended that the Election Commis sion had validated the votes in question, and that in consequence the acceptance of the · ballot papers by the Returning Officer under Rule 47 (1) (c) was not interchange of It appears stations ballot papers had occurred in several polling where election was held both for the Election People and the State Assembly, and the rule issued directions Commission had the ballot paper to the distinguishing mark which should bear under Rule 28 might be its approval was obtained before the votes were actu ally counted.

The Returning Officer at Hoshangabad reported to the Chief Electoral Officer, Madhya Pra desh that wrong ballot papers had been issued owing to the mistake of the polling officers, and obtained the approval of the Commission for their being includ contended ed, bdore by Mr. Pathak that the power of the Election Com includes mission to prescribe a distinguishing mark the power to change a mark already prescribed, substitute a fresh one in its stead, and that when the interchange of Election Commission approved of the ballot papers at Hoshangabad, it had, proved of the distinguishing mark which those ballot rightly papers bore, counted as valid by the Returning Officer. the votes were counted. they were and that in effect, therefore relaxed, It is the ballot papers has also There is no dispute that the Election Commission the power to prescribe a distinguishing which has mark for change it.

But the question is, was that done? The Commission did not decide in terms of Rule 28 that the ballot paper for election to the House of the People should bear a brown bar and not a green bar. The green bar continued to be the prescribed mark for the rule, and the overwhelming majo election under that mark. What rity of the ballot papers bore Commission has done is to condone the defects m a specified · number of ballot papers issued 16-89 S. C. India/59 ,. - - 1128 SUPREME COURT REPORTS [1955] 1 954 Hari Vishnu Karnath v. Syed Ahmad !shaque and Others V tnkatarama AyyarJ. Hoshangabad polling stations. That is not prescribing a distinguishing mark as contemplated by Rule 28, as that must relate to the election as a whole. There can be no question of there being one distinguishing mark for some of the voters and another for others with reference to the same election and at the same polling station. 'y • the polling officer the Election Commission was subsequent There is another difficulty in the way of accepting first respondent.

The approval the contention of the to the the votes were actual polling, though it was before counted. Rule 23 throws on duty of delivering a proper ballot paper to the voter. If a distinguishing mark had been prescribed under Rule 28, the ballot paper to be delivered must bear that mark. Therefore, if any change, or alteration of the original distinguishing mark is made, it must be made before distinguishing ballot paper should contain the · Election Commission mark. The approval by subsequent, to the polling, render therefore, valid the 301 ballot papers which did not bear the distinguishing mark prescribed liable to be rejected under Rule 47 (1) ( c). they are The conclusion of the majority of the Tribunal that in accepting the ballot papers in question the Return ing Officer had contravened that rule must therefore be accepted. the commencement of the poll, and for the election, the new cannot · that the result of It remains to deal with the contention of the appel the Election Tribunal under lant that the decision of the election bad section 100(2) ( c) not been materially affected is bad, as it is based on considerations extraneous to that section.

This opens up the question as to the scope of an enquiry under section 100(2) (c). That section requires that before an order setting aside an election could be made, two It must firstly be shown conditions must be satisfied: improper reception or refusal of that there had been a vote or reception of any vote which is void, or non compliance with the provisions of the Constitution or of the Act (No. XLIII of 1951) or any rules or orders made under that Act or of any other Act or rules re- y y .. .. Hari Vishnu Kamath v. Syet! Ahmad lshaque and Other1 V enkatarama AyyarJ. 'y " \ ;> - S.C.R. SUPREME COURT REPORTS 1129 , .. thereof the is mandatory, and that accordingly lacing to the election or any mistake in the use of the It must further be shown that as a prescribed form. result of the election had consequence been materially conditions affected. The cumulative, and must both be established, and burden of establishing them is on the person who seeks to have the election set aside.

That was held by this Court in Vashist Narain v. Dev Chandra( 1 ). The Tribu- nal has held in favour of the appellant that Rule 47 (1) (c) in accept ing the 301 ballot papers which had not the requisite distinguishing marks the Returning Officer had con first condition has been travened that rule. So, satisfied. Then there remains question is whether the appellant has established the result of the election had been materially affected by contravention of Rule 47 ( 1) ( c). The contention of Mr. Chatterjee is that when once he has established that the Returning Officer had contravened Rule 47 the result of the ( 1) ( c), he has also established that election had been materially "-' marginal difference between the appellant and the first that if the ballot respondent was only 174 votes, and papers wrongly counted under Rule 47(1) (c) had been it was excluded he and not the first respondent that should have been declared elected under Rule 48, and that the result of the election had thus been materially affected. and the valid votes affected, because alone counted, the second, , that this argument, In reply, Mr.

Pathak contends if no other though it might have proved decisive intervened, could not prevail in view of factor had the other facts found in this case. He argued Rule 47 was not the only rule that had been broken; that owing to the mistake of the polling officer wrong ballot papers had been issued, and thus Rule 23 had been broken; that the printing of the distinguishing mark was faint and that Rule 28 had not also been that there was thus a chain properly complied with; of breaches all linked together, the final phase of it ~ being the breach of Rule 47 (1) .( c) and the effective cause thereof being the violation of Rule 23, and that (1) [1955] S.C.R. 509. -- 195:1 Bari Vishnu Karnath v. Syed Ahmad .lt/iagU4 and o • .,,., V enkatarat(UJ Ayyar J. v , y ' ·' - - ll30 SUPREME COURT REPORTS [19551 relevant to be to ascertain the ballot papers, in judging whether the result of the election had been affected, these were matters taken mto consideration.

The object of the election, he contend to send ed, was to enable the majority of the voters a representative of their choice and for that purpose it was necessary voters from defective or question whether not; that it was accordingly open to the Tribunal to look behind the barriers created by Rules 23, 28 and the voters, and if that 47 ( 1) ( c), discover the mind of was truly reflected m the result of the declared under Rule 48, dismiss section 100 (2) (c). the intention irrespective they were formally petition election consider whether Mr. Chatterjee disputes those set out m the petition, when this position, and contends section must be limited that the enqwry under that to the matters raised in the election petition, and as there was no complaint about the breach of Rule the scope of the 23 m that petition, it was outside It is unnecessary to enquiry. was open to the Tribunal to enquire into matters other than returned ·candidate merely seeks to support the decla- ration.

He has in this case presented a recrimination petition under section 97 raising the question of breach a matter which has of Rule 23, and that is therefore to be determined. The Tribunal has gone into question, and has held that there was a violation of that rule, and its conclusion 1s not open to attack m these proceedings, and has not, in fact, chal- lenged. The real controversy 1s as to the effect of that finding on the rights of the parties. The answer to this is to be found m section 97. Under that section, all matters which could. be put forward as grounds for setting aside the election of the petitioner if he had been returned under Rule 48 could be urged m answer to the prayer m his petition that he might be declared result of this undoubtedly 1s duly elected. And the that the first respondent could ap- show that if the pel\ant had been returned under Rule 48 his election would have been liable to be set aside for breach of Rule 23, and that therefore he · should n.ot be declared Bari Vishnu Karnath v.

Syed Ahmdd Ishaqt11J and Others V enkatarama AyyarJ. ., -.., ,. ,. - - S.C.R. SUPRE:KiE COURT REPORTS 1131 elected. That according to the Tribunal having been it is open to us to hold that by reason of the shown, violation of Rule 23, the appellant be declared elected. is not entitled ,. ground Can we go if Rule 23 had not been broken, this contention is well-founded. Section 46 counting of further, and uphold the election of the first respondent under section 100(2) ( c) on the wasted votes would have gone to him ? The argu ment of the appellant is that would, in effect, be accepting the very votes which the Legislature says in Rule 47(1) should be rejected, and that it is the Act. We think not warranted by the scheme of the Act provides that "when votes has been completed, the Returning Officer shall in the forthwith declare the manner provided by this Act or the rules made there under". The Rule 48.

That provides that the Returning Officer the votes "forthwith declare the should after counting candidate or candidates to whom the largest number of valid votes has been given, to be elected". Under can be declared this rule quite clearly no candidate elected on the strength of votes which are be rejected under Rule 47. The expression "the· result of the election" in section 100( 1) ( c) must, unless there tl1e context compelling a different is something in the same sense as m interpretation, be construed section 66, and there it clearly means result on the basis of the valid votes. contemplated by this the election result of section liable This conclusion is further fortified when the nature of the duties which a Returning Officer has to per form under Rule 47 is examined. Under that Rule, the Returning Officer has reject -certain classes of votes for not being in conformity with the rules.

They are set out under Rule 47 ( 1) (b) lh other cases, the rejection will depend on his -and ( c). decision whether the acceptance conditions for their have been satisfied. Thus in Rule 47(1) (a) he must decide whether the mark or writing is one from which the elector could be identified; under 'Rule 47 (1) ( d), automatically t954 Bari Vishnu Karnath v. Syed Ahmad lshaque and Others V enkatarama Ayyar ], 1132 SUPREME COURT REPORTS [19551 that of It provides the ballot paper question Tribunal spurious and under Rule or muti whether lated beyond identification; 47(2), whether more than one ballot paper has been cast by the voter. Rule 47(4) is important. "the decision of the Returning Officer as to the valid- ity of a ballot paper ...... shall be final subject to any contrary given by a Tribunal on the decision to the trial of an election petition calling 1s provision, election". Under a Court of appeal against the decision of constituted jurisdiction the Returning Officer, and as such its the Returning must be co-extensivem with If the Returning Officer and cannot extend further.

Officer had no power under Rule 47 to accept a vote which had not the distinguishing mark prescribed Rule 28 on the ground that it was due to the mistake of the presiding officer in delivering the wrong ballot paper-it is not contended power, and clearly he has not-the Tribunal review ing this decision under Rule 47 ( 4) can have no such power. Returning Officer was bound to reject under Rule 47. It is argued with great insistence that as the object intention of of the Election Rules is to discover the in the choice of a represen the majority of the voters tative, if an elector has shown a clear vote for a particular candidate. into account under section 100(2) (c), even though the the form vote might be bad for non-compliance with alities. But when the law prescribes that tion should be expressed in a particular manner, it ran be taken into account only if it is so expressed. An law, intention not duly expressed is, in a Court of in the same position as an intention not expressed at all It cannot accept a ballot paper which that must be that he has intention The decision in Woodward v.

Sar sons( 1 ) was cited in the contention that for deciding whether support of the result of the election had it was permissible to take into account votes which had been rendered invalid by the mistake of the polling officer. That was a decision on section 13 of the Ballot Act, been affected (1) [1s15J L.R. rn c.P. 733. • ' ... - y • S.C.R. SUPREME COURT REPORTS 1133 the principles that no election 1872 which provided should be declared invalid by reason of non-compliance with rules, if it appeared to the Tribunal "that· the election was conducted in accordance with down in the body of this Act, and such non compliance or mistake did not affect the result of the election". What happened in that case was that. all issued at polling station No. 130 the ballot papers had been marked by the polling officer and had be It was con come invalid under section 2 of the Act. tended on behalf of the unsuccessful the whole the mistake of the polling officer rendered election void, without · reference question the election had been affected. whether the result of In repelling this contention, the Court observed page 750: candidate 1954 Hari V ishtiu Kamlith v:. Syed Ahmad lshaque and Other Venkatarama AyyarJ. common of electors "Inasmuch, the majority and therefore that the election cannot applicable therefore, as no voter was prevented from voting, it follows that the errors of the presid ing officers at the polling stations No.

130 and No. 125 did not affect the result of the election, and did not prevent from effectively exercising their votes in favour of the candidate preferred, declared void by the parliamentary elections". This was merely a decision on the facts panure from the prescribed rules of election polling stations was not so fundamental as the election not one "conducted the principles laid down under the body of this Act". Reliance was placed on certain observations the de to render accordance with in Re South Newington Election Petition(1). that case, the ballot paper had been rejected by the Returning Officer on the ground that it did not bear the requisite official mark. The Court in a petition to set aside the election held on an examination of the ballot paper that the official stamp had been applied, though im been accepted. perfectly, and The actual decision is in itself of no assistance respondent; but the Court observed in the course of its judgment: should have that it In (t) [1948] 2 All E.R. 503.

1954 Hari Vishnu Karnath v. Syed Ahmad lshaqu~ and Others Venkatarama Ayyar ]. 1134 SUPREME COURT REPORTS 119551 v "We think that, in a case where raised as a ·matter of criticism of the voter is in no sense to blame, where he has intended to vote and in a particular has expressed his intention of voting is con way, and, so far as his part of the transaction cerned, has done everything that he should, and the only defect ballot paper is some defect on the part of the official special machinery by which the election is conducted, consideration should (and, no doubt, would) be given, in order that the voter should not be disfranchised". These observations are no authority for proposi if there was no mark at all on the ballot tion that the ground of in paper it could still be accepted the dis tention. On the other hand, the whole of cussion is intelligible only on the hypothesis there was no mark at all on the ballot paper, it must be rejected.

In the result. we must hold in maintammg the election of the first respondent on the basis of the 301 votes which were liable to be rejected under Rule 47(1) (c) the Tribunal was plainly in error. Mr .. Chatterjee would have it that this error is one of .iuns diction. We are unable to take this view, because the Tribunal had jurisdiction to decide whether on .a construction of section 100 (2) ( c) it could go into the .fact of breach of Rule 23, and if it committed an error, in the exercise if its jurisdiction and it was an error thereof. But the error is mani not in the assumption for interfer fest on the face of the ence in certiorari. record, and calls rejecting the We have held that the election of the first respon dent should ·be set aside. We have further •held that 301 if the Returning Officer had, after ballot . papers which did not bear the correct marks, declared the appellant . elected, his election also would The combined effect of sec have to be declared voiil. there is no valid . tion 97 and section 100(2) ( c) is that circumstances, the proper orde1 election. Under the to pass is to quash the decision of the Tribunal .anti remove .it out of the way by ·certiorari under article respon 226, and to set aside the election of the ·.first dent in exercise of the powers by article .conferred .• y r - • :s.c.R. SUPREME COURT REPORTS 1135

A.s a result of our decision, the Election Commis ·sion will now proceed to hold a fresh election. This appeal must accordingly be allowed, the deci sions of the High Court and the Tribunal quashed .and the whole election set aside. The parties will bear their own costs throughout. Appeal allowed. 'I954 Hari Vishnu Karnath v. Syed Ahmad lshaque and Ot/ws. Venkatarama Ayyar J· - GURUNATH alias BHIMAJI ti. KAMALABAI, KOM KENCHANGAUDA NADGAUDAR AND OTHERS. Dtcemb..- 10. ' ' :[MEHR CHAND MAHAJAN C.J., MuKHERJEA, S. R. DAs, VIVIAN BosE, BHAGWATI, JAGANNADHADAS and VENKATARAMA AYYAR JJ.] Hindu Law-Adoption--Widow's power to adopt-When such power terminates. It is well-settled according to Hindu Law that a widow's - power to adopt comes to an end by the interposition of -a grandson or the son's widow competent to continue the line by adoption. The mother's authority to adopt is not extinguished by the mere fact that her son had attained ceremonial competence. The power to adopt does not depend upon any question of vest ing or divesting of property. The decision Judicial Committee of the Privy Council in Anant Bhikappa Patil v. Shankar Ramchandra Patil (L.R. 70 I.A. 232) is not sound in so far as it relates to the proper ties inherited from collaterals prior to adoption. In respect of such properties the adopted son can lay no claim on the ground of rela tion back. Shrinivas Krishnarao Kango v. Narayan Devji Kango ([1955] 1 S.C.R. 1), followed. Amarendra Mansing v. Sanatan ( [ 1933] L. R. 60 I.A. 242), explained, Anant Bhikappa Patil v. Shankar Ramcliandra Patil ([1943] LR. 70 I.A. 232), not relied on in part. Bhoobun Moyee v. Ram Kishore ([1865] 10 M.I.A. 279); Pudma Coomari v. Court of Wards ([1881] L.R.81.A.229); Thayammaland Kuttisami Aiyan v. Venkatarama Aiyan ([1887] L.R. 14 I.A. 67); Tarachum v. Suresh Chunder ( [ 1889] L.R. 16 I.A. 166); Ramkrishna