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Case Number

D.B Civil Misc. Writ Application No. 38 of 1951

Advocates

Inder Nath, for petitioner;
Murlimanohar, for opposite party

Judges

Kailash Wanchoo
Mr. K.L. Bapna

Acts

sec. 4 of the Rajasthan City Municipal Appeals (Regulation) Act (Act
Rajasthan City Municipal Appeals (Regulation) Act (Act

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Case Summary — Application under Article 226 (Nisar Ahmad)

Factual and Procedural Background

This is an application brought by Nisar Ahmad under Article 226 of the Constitution of India. The applicant was a candidate for election from Ward No. 8 of the Jodhpur Municipality. His rival candidate for the same ward was Haqiquatullah.

Key chronological facts from the opinion:

Dates for filing nominations: 21–22 February 1951; scrutiny date: 23 February 1951.
The applicant filed his nomination on 22 February 1951. On 23 February an objection to his nomination was raised by Haqiquatullah and was rejected the same day by the Officer-in-charge of Elections; the Officer-in-charge issued detailed reasons on 24 February 1951.
Haqiquatullah appealed to the Additional Commissioner, who accepted the appeal on 7 March 1951 and held the applicant's nomination bad, rejecting it. The applicant sought review before the Additional Commissioner (rejected) and then preferred a revision to the Minister-in-charge of Local Self Government. The first Minister set aside the Additional Commissioner and restored the Officer-in-charge's order; subsequently a change of Ministry occurred and the new Minister allowed a further review, setting aside the former Minister and upholding the Additional Commissioner (thereby rejecting the nomination).
The applicant then filed the present writ application under Article 226, contending that the Officer-in-charge's acceptance of his nomination under section 27 could not be questioned except by an election petition and asking the High Court to set aside the orders of the Additional Commissioner and the Minister-in-charge.

Legal Issues Presented

Whether orders of the Additional Commissioner and the Minister-in-charge could lawfully set aside the Officer-in-charge of Elections' order accepting a nomination under section 27 of the Municipal law.
Whether any right of appeal or revision lay against an order under section 27 accepting a nomination, having regard to the Jodhpur Municipal Act and the Rajasthan City Municipal Appeals (Regulation) Act (Act No. III of 1950).
Whether the applicant's conduct in applying to the Additional Commissioner and the Minister amounted to submission to jurisdiction that would disentitle him to writ relief.
Whether an order that is said to be null and void should be quashed by the High Court in exercise of its writ jurisdiction.
Whether the existence of an alternative remedy by election petition precluded the court from granting relief by way of writ in the present circumstances.

Arguments of the Parties

Applicant's Arguments

The Officer-in-charge of Elections had accepted the applicant's nomination (order dated 24 February 1951) and that order could not be questioned except by an election petition.
The orders subsequently passed by the Additional Commissioner and by the Minister-in-charge, which set aside the Officer-in-charge's acceptance of the nomination, were unlawful intrusions and should be set aside by the High Court under Article 226.

State's Arguments

The State and the opposite party opposed the writ application. The State advanced three main reasons why the court should not grant relief: (1) the applicant submitted to the jurisdiction of the Additional Commissioner and the Minister and therefore should be disentitled to the writ; (2) the orders were so obviously null and void that they should not be quashed by issuing a writ; and (3) the applicant had an alternative remedy by filing an election petition.
The State also candidly admitted that there was no provision in the Jodhpur Municipal Act for filing an appeal against an order under section 27 by which the Officer-in-charge accepts the nomination and rejects objections to it.

Opposite Party (Haqiquatullah)

The opinion records that Haqiquatullah opposed the application and that he initiated the original objection and appeal process, but does not set out a detailed account of his separate legal arguments within the text of the judgment.

Table of Precedents Cited

Precedent / Authority	Rule or Principle Cited For	Application by the Court
Piru Pramanik v. Pabna Dhanahhandar Co. Ltd., Pabna (A.I.R. 1937 Cal. 427)	The rule that a right of appeal must be given by express enactment and that consent or waiver by parties cannot create appellate jurisdiction where none exists by law.	The court relied on this authority to support the proposition that there was no appellate jurisdiction in this case merely because parties acted as if there were; jurisdiction could not be created by consent where the statute did not provide an appeal.
King v. Williams, Ex parte Phillips (1914 (1) K.B. 608)	Illustration that failure to take objection to jurisdiction at the earliest opportunity may disentitle an applicant from obtaining a writ as a matter of discretion.	The court discussed this case as part of authorities where English courts have refused certiorari when objection to jurisdiction was not taken at the appropriate time; but then distinguished the present facts from such cases.
Farquharson v. Morgan (1894 (1) Q.B. 552)	Where total absence of jurisdiction appears on the face of the proceedings, the High Court is bound to issue prohibition even if the applicant consented or acquiesced.	The court invoked this principle to justify issuing a prohibitory order and interfering despite any purported consent or acquiescence, because the Additional Commissioner and Minister had no semblance of jurisdiction to interfere with the Officer-in-charge's discretion.
English and Empire Digest (note) — court-martial example (unnamed)	Authority for the principle that where an objection to constitution/competence is not taken at trial, there may be a presumption of regularity and courts have in some cases refused certiorari.	The court reviewed such examples to explain the general discretionary practice in English courts of refusing certiorari where objections to jurisdiction were not timely raised; it was then contrasted with the present case where there was total absence of jurisdiction.
Halsbury's Laws of England, 2nd Ed., Vol. 9, paras 1481–1482 (legal treatise)	Para 1481: Writs to quash proceedings should be granted ex debito justitiae if lower court acted without jurisdiction unless applicant's conduct disentitles him. Para 1482: Where an unauthorised person has purported to act judicially, certiorari may not be granted as the order has no legal force.	The court cited these passages to frame the general discretionary principles about granting writs and to analyze whether the applicant's conduct or the nullity of impugned orders should prevent relief; the court applied these principles and explained why the facts here justified interference despite the general cautions.

Court's Reasoning and Analysis

The court's reasoning proceeds through a structured analysis of jurisdiction, statutory interpretation, the applicant's conduct, the nature of the impugned orders, and the availability of alternative remedies. The court's analysis is limited to the material facts and authorities cited in the opinion and is summarized below.

1. Statutory scope and absence of appellate/revisional jurisdiction:

The court noted the State's admission that the Jodhpur Municipal Act contained no provision for appeal against an order under section 27 (the provision under which the Officer-in-charge accepted the nomination and rejected objections). The court then examined the Rajasthan City Municipal Appeals (Regulation) Act, Act No. III of 1950, observing that:

Section 3 of that Act merely prescribes that where any municipal law provides for a municipal appeal, the appeal shall lie to the Commissioner; it does not create a new right of appeal.
Section 4 forbids a second appeal but provides revisory powers in Government only in cases which are open to appeal or in respect of orders passed by a Municipal authority.
The Officer-in-charge of Elections was not, in the court's view, a "Municipal authority" within the meaning of the Act; consequently, the Government had no revisory power in relation to orders under section 27 of the Municipal law.

On this statutory reading the court concluded that neither the Additional Commissioner nor the Government (Minister) had jurisdiction to set aside the Officer-in-charge's acceptance of the nomination.

2. Applicant's conduct and waiver/submission to jurisdiction:

The court considered the State's argument that the applicant had submitted to the jurisdiction of the Additional Commissioner and the Minister and therefore should be disentitled to a writ. The court acknowledged that the applicant did make applications to both authorities but recorded the factual context:

Haqiquatullah initiated the appeal to the Additional Commissioner; the applicant was effectively dragged into the proceedings and only sought review after the Additional Commissioner decided against him.
The applicant's subsequent revision petition to the Minister was explained as an effort to preserve any possible remedy in case section 4 of the Rajasthan Act was interpreted to give Government revisory power.

The court therefore concluded that the applicant had not "willingly submitted" so as to disentitle him to relief; the applications were made under the force of circumstances.

3. Discretion to grant writs vs. total absence of jurisdiction:

The court addressed authorities (including Halsbury and English cases such as King v. Williams and the court-martial example) where writs were refused when objections to jurisdiction were not taken in time. It distinguished those authorities on the facts:

Those cases often involved trivial matters or situations in which the objection to jurisdiction required proof of particular facts and was not timely raised; the discretionary refusal of certiorari in English practice was analogous to Indian discretionary powers (the court refers to Section 531 CrPC analogy).
In the present case, the Additional Commissioner and the Minister never had the semblance of jurisdiction to interfere with the Officer-in-charge's discretionary decision under section 27. Where there is a total absence of jurisdiction on the face of the proceedings (citing Farquharson v. Morgan), the High Court must intervene by issuing prohibition or granting relief even if the applicant consented or acquiesced.

4. Nullity of orders and the need to quash despite alleged voidness:

The court considered the submission that an order by an unauthorised person which is null and void need not be quashed by certiorari (citing Halsbury para 1482). It distinguished that principle on these facts:

When an unauthorised superior authority (the Additional Commissioner or Minister) purports to set aside the Officer-in-charge's order, the Officer-in-charge — subordinate on the executive side — might feel bound by such superior orders and act upon them, thereby affecting the election process.
Because those superior officers could influence the conduct of the returning/accepting officer, the court considered it necessary to set aside the usurping orders and to prohibit the Officer-in-charge from giving effect to them, to prevent practical prejudice and potential abuse.

5. Alternative remedy of election petition:

The court accepted that ordinarily an election petition would be the appropriate remedy where a nomination had been rejected, but observed that in the present, distinct circumstances:

The Officer-in-charge originally accepted the applicant's nomination; it was subsequent interference by authorities without jurisdiction that threatened the applicant's position.
Leaving the applicant to an election petition would permit possible abuses—e.g., superior authorities might reject accepted nominations selectively and allow candidates of particular parties to be returned unopposed—so the court considered prompt intervention necessary to prevent such a miscarriage.

Conclusion of analysis: On the combined basis that no statutory right of appeal or revision lay against the Officer-in-charge's order under section 27, that the applicant did not voluntarily submit to an assumed jurisdiction, that the impugned orders evidenced a total absence of jurisdiction, and that public interest required timely intervention to prevent abuse of the election process, the court determined that writ relief under Article 226 was appropriate.

Holding and Implications

Core Ruling: The application is allowed; the High Court set aside the proceedings and orders by the Additional Commissioner and the Minister-in-charge made after 24 February 1951 in connection with the applicant's nomination.

Direct consequences and orders made by the Court (as stated in the opinion):

All proceedings taken and orders passed by the Additional Commissioner and the Minister-in-charge after 24 February 1951 concerning the applicant's nomination are declared null and void and are set aside.
The order dated 24 February 1951 of the Officer-in-charge of Elections, by which he accepted the applicant's nomination, is held to stand.
The Officer-in-charge of Elections is prohibited from taking into consideration the Additional Commissioner's order dated 7 March 1951 or the Minister-in-charge's order dated 16 May 1951 and is directed to proceed further to complete the election business of Ward No. 8 of the Jodhpur Municipality.
The applicant is to receive his costs from the State; counsel's fees are fixed at Rs. 80 per day of hearing.

Broader implications: The opinion rests on statutory interpretation and established principles regarding the limits of appellate and revisional jurisdiction, the consequences of total absence of jurisdiction, and the court's duty to prevent practical abuse in electoral processes. The opinion does not expressly posit the creation of a new legal precedent beyond its application of these principles to the facts; its practical effect is to restore the Officer-in-charge's original decision and to prevent superior executive authorities from usurping a decision taken under section 27 in the circumstances described.

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Nisar Ahmad v. Addl. Commissioner, Jodhpur

Wanchoo, C.J:— This is an application by Nisar Ahmad under Art. 226 of the Constitution of India. The applicant stood as a candidate for election from Ward No. 8 to the Municipality of Jodhpur. Haqiquatullah, opposite party, was a rival candidate for the same ward. The dates for filing nominations were February 21 and 22, 1951 and the date for scrutiny was February 23. The applicant put in his nomination on February 22. On February 23 an objection was raised to the applicant's nomination by Haqiquatullah. This objection was rejected on the same day but the Officer-in-charge Elections gave detailed reasons for the rejection by his order dated February 24, 1951.

2. Thereafter Haqiquatullah made an appeal against the order accepting the applicant's nomination to the Additional Commissioner who accepted the appeal on the 7th of March 1951 and held that the nomination of the petitioner was bad and rejected his nomination paper. The applicant made an application for review before the Additional Commissioner on the ground that he had no jurisdiction to interfere with the order of the Officer-in-charge of Elections with respect to nominations but the review application was rejected. Thereafter the applicant preferred a revision before the Minister-in-charge of Local Self Government in which he again raised the point of jurisdiction. The then Minister set aside the order of the Additional Commissioner and restored the order of the Officer-in-charge Elections. Thereafter Haqiquatullah filed a review application. In the meantime, there had been a change in the Ministry and the Minister allowed the review application and set aside the order of the former Minister and upheld the order of the Additional Commissioner rejecting the nomination paper of the applicant. Thereupon the present application was made in this court under Art. 226 of the Constitution of India. The main contention of the applicant here is that the order of the Officer-in-charge Elections accepting his nomination paper could not be questioned in any manner except by an election petition and therefore, this court should set aside the order of the Additional Commissioner and the Minister-in-charge.

3. The application has been opposed by the State of Rajasthan as well as by Haqiquatullah. It is not necessary to set out the reply of the State in detail because that reply is a justification of the unjustifiable. Learned counsel appearing for the State has admitted that there is no provision in the Jodhpur Municipal Act for filing an appeal against an order under sec. 27 by which the Officer-in-charge of Elections accepts the nomination paper of a candidate and rejects the objections filed against it. The position is so clear that the learned counsel could not do otherwise. In this view of the matter, we do not think it necessary to examine in detail the various orders passed by the Additional Commissioner and the two Ministers. It is enough to say that though the learned Additional Commissioner tried to show in the order which he passed on the review application how he had jurisdiction, he contended himself by showing that he had jurisdiction against an order passed under sec. 21A, which no one ever disputed, and said nothing about his jurisdiction to set aside an order under sec. 27, accepting a nomination and rejecting objections to it, which had been done by his first order of the 7th of March. We agree with the view taken by the first Minister in his order dated 24th of April. It is only necessary to refer to Rajasthan City Municipal Appeals (Regulation) Act (Act No. III of 1950) in this connection to clear any mis-apprehension that the order under sec. 27 was open to appeal or revision under that Act. It is enough to say that this Act mainly provides for forum for Municipal appeals. Sec. 3 of the Act says that wherever any Municipal law provides for a Municipal appeal, the appeal shall lie to the Commissioner. Therefore, this Act did not create any right of appeal but merely provided that the appeals under the existing Municipal Acts would lie to the Commissioner. Sec. 4 of the Act forbids a second appeal but provides revisory powers in Government. But this is only in cases which are open to appeal or cases in which orders have been passed by a Municipal authority. The Officer-in-charge of Elections cannot, in our opinion, be called a Municipal authority within the meaning of this Act and therefore, there was no power of revision in this Government either.

4. Learned counsel for the State, however, contends that we should not grant the present application for three reasons:—

(1) That the applicant submitted to the jurisdiction of the Additional Commissioner and the Minister and, therefore, no writ should be granted in his favour,

(2) that the order being so obviously null and void, no writ should be granted to quash it, and,

(3) that there is another remedy by an election petition and, therefore, this court should not interfere.

5. We shall deal with these points one by one.

6. So far as the first point is concerned, there is no doubt that at some stage the applicant did make applications to the Additional Commissioner and the Minister. It may, however, be mentioned that it was Haqiquatullah who took the case to the Additional Commissioner and dragged the applicant there. It was only when the Additional Commissioner decided against the applicant and rejected his nomination paper that he applied to him for review of the order. This became necessary because the Additional Commissioner had said in his earlier order that the objection as to jurisdiction had been given up, which appears rather strange to us. When the review application was rejected, the applicant certainly went in revision to the Minister. It is explained that this was done in case it was ever held that sec. 4 of the Rajasthan City Municipal Appeals (Regulation) Act (Act No. III of 1950) gave revisory powers to Government. It appears, therefore that it was the force of circumstances which compelled the applicant to apply to the Additional Commissioner or to the Minister. Learned counsel relied in this connection on Halsbury's Laws of England, Second Edition, Vol. 9, para 1481 which is as follows:—

“Although the writ is not of course it will nevertheless be granted ex debito justitiae to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief……………. The writ will never be granted to remove an erroneous order at the instance of the party in whose favour the error was made.

7. Learned counsel particularly relies on the words “if the conduct of the party applying has not been such as to disentitle him to relief”. He also relies on the King v. Williams, Ex parte Phillips (1914 (1) K.B 608). That was a case where a baker was convicted in presence of two Justices. He obtained a Rule nisi for a writ of certiorari to quash the conviction on the ground that one of the Justices alleged to have taken part in the conviction was a person concerned in the business of baking. The affidavit on which the rule nisi was obtained did not state that any objection to the competence of the Court was taken at the hearing before the Justices, nor did it state that at the date of that hearing the applicant was without knowledge of the facts alleged to disqualify one of the Justices. It was held that this defect in the affidavit disentitled the applicant to the issue of a writ of certiorari ex debito justitiae. It was also held on the facts that the granting of the writ being discretionary, the discretion should be exercised by refusing the writ.

8. In a number of cases, English Courts have refused a writ of certiorari where the objection to jurisdiction was not taken before the Justices.

9. Another case which was relied upon is at note p. of the English and Empire Digest Vol. XXII page 176. In that, a court-martial was trying a person charged with a crime punishable with death. The law provided that one of the members of the court martial should be a person of legal knowledge and experience. The accused was sentenced to death. He afterwards applied to the King's Bench Division for a writ of certiorari to quash the conviction on the ground that no certificate as to legal knowledge and experience as to a member of the court was handed in. The application was refused on the ground that in the absence of any objection at the trial, there was a general presumption of law that the court was properly constituted.

10. A review of these cases shows either that they are cases relating to comparatively trivial matters and in such matters, the writ of certiorari which was a discretionary writ was not issued or that objection to jurisdiction depended upon proof of certain facts and was not taken at the proper time. This discretion is something analogous to the discretion which we have in India under sec. 531 of the Code of Criminal Procedure.

11. In this case, however, in the first place, the applicant never willingly submitted to the jurisdiction of the Additional Commissioner or the Minister but was forced by circumstances to do so. In the second place, this case relates to an election and the Additional Commissioner and the Minister never had the semblance of a jurisdiction to interfere with the discretion of the Officer-in-charge of the elections. Under these circumstances, we are of opinion that we should interfere under Art. 226 of the Constitution of India. We may point out that it is well established that an appeal does not exist in the nature of things. A right of appeal from any decision of any Tribunal must be given by an express enactment. Where there is no appeal provided by law consent or waiver on the part of the parties cannot invest the appellate court with the jurisdiction it did not possess, vide Piru Pramanik v. Pabna Dhanahhandar Co. Ltd., Pabna (A.I.R 1937 Cal. 427).

12. We may also refer to the case of Farquharson v. Morgan (1894 (1) Q.B 552). In that case, it was held that where total absence of jurisdiction appears on the face of the proceedings in an inferior court, the High Court is bound to issue a prohibition although the applicant for the writ has consented to or acquiesced in the exercise of jurisdiction by the inferior court. We may point out that the election in this particular Ward not yet taking place an order in the nature of prohibition is to be issued to the Returning Officer and in such a case even consent or acquiescence will not make any difference as discussed above.

13. The next point that is urged is that we should not issue a writ to quash an order which is null and void. Reliance in this connection is placed on Halsbury's Law of England, Second Edition, Vol. 9, para 1482 which is as follows:—

“Where grounds are made out upon which the Court might grant the writ, it will not do so ……… where an unauthorised person has purported to act in a judicial capacity.”

14. There is no doubt that where a person without authority sets himself as a judicial tribunal and decides some matter, a writ of certiorari will not be granted by this court to set aside such a person's order because the order has no force and effect in law and it is unnecessary to set it aside. But the position, in our opinion, is somewhat different in cases like the present. Here the unauthorised persons who have usurped the jurisdiction to set aside the order of the Officer-in-charge of the elections are the Additional Commissioner and the Minister-in-charge to whom the Officer-in-charge of the elections is certainly subordinate on the executive side. It is possible for the Officer-in-charge of the elections to think that he is bound by the orders of the superior authorities who have purported to act as appellate authorities. In such a case, therefore, we are of opinion that an order should be passed under Art. 226 of the Constitution of India.

15. The last point that has been urged is that the applicant has another remedy, namely, he can file an election petition and, therefore, this court should not help him. It is no doubt true that the applicant has the remedy of filing an election petition and if the applicant had come to us against the order of the Officer-in-charge of the elections rejecting his nomination paper, we would not have been disposed to give him any relief. But the case here is this. The applicant's nomination paper has been accepted by the Officer-in-charge of the elections but that acceptance has been set aside by the Additional Commissioner which order in its turn has been upheld by the Minister and these two authorities had no business to interfere with the order of the Officer-in-charge of the elections. We are of opinion that it would not be right to leave the applicant to the remedy of an election petition against the order of what we can only consider at the best busy bodies when the order of a properly constituted authority namely, the Officer-in-charge of the elections is in his favour. We may also point out that there is another danger is we were to follow the principle that we should not interfere in a case like the present because it is possible to get redress by an election petition. That danger is that if some authority decides to interfere with the decisions of the Officer-in-charge of elections or the returning officer and rejects all nomination papers accepted by him of candidates belonging to particular parties, the result would be that candidates of one particular party might get elected unopposed. It is possible to have a wholesale abuse of this kind and it is, therefore, necessary for this court to interfere at this stage so that no authority may ever be disposed to take the course which we have mentioned above. Therefore, even though the applicant may be able to get remedy in this case through an election petition, there is good reason why we should grant him relief now.

16. We, therefore, allow the application and order that all proceedings taken before and orders passed by the Additional Commissioner and the Minister-in-charge after the 24th of February 1951 in connection with the nomination of the applicant are null and void and are hereby set aside and the order of the 24th of February 1951 made by the Officer-in-charge elections by which he accepted nomination of the applicant, stands. The Officer-in-charge of the Elections is prohibited from taking into consideration the order of the Additional Commissioner dated 7th of March 1951 or of the Minister-in-charge dated 16th of May 1951 and he shall proceed further to complete the election business of Ward No. 8 of the Jodhpur Municipality. The applicant will get his costs from the State and we fix Rs. 80/- per day of hearing as counsel's fee.

Nisar Ahmad v. Addl. Commissioner, Jodhpur

Case Summary — Application under Article 226 (Nisar Ahmad)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicant's Arguments

State's Arguments

Opposite Party (Haqiquatullah)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nisar Ahmad v. Addl. Commissioner, Jodhpur

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