1. This is a petition under Article 226 of the Constitution by which the petitioner asks for a writ of ‘certiorari’ against the order of the Election Tribunal to have the order of the Tribunal quashed and thus to have himself declared as duly elected.
2. The petitioner was a candidate for election from the Champa constituency to the Madhya Pradesh Legislative Assembly. The election was held on 18-1-1952 and the result of the election was announced by the Returning Officer for Champa constituency (Shri M.P Dube) on 27-1-1952. The petitioner was declared elected from that constituency. The election of the petitioner was notified in the Madhya Pradesh Gazette, dated 8-2-1952, in accordance with the Representation of the People Act, 1951 (53 of 1951). The first respondent thereafter presented an election petition challenging the election of the petitioner on the ground that he held an office of profit within the meaning of Article 191(1)(a) of the Constitution and was, therefore, disqualified as a candidate and that the election was, therefore, void. An Election Tribunal was appointed under Section 86 of the Representation of the People Act, consisting of three members. The Tribunal by its order dated 2-2-1953 held that the election of the petitioner was void.
3. The order of the Tribunal was communicated to the Election Commission and was published in a Gazette Extraordinary, dated 21-2-1953. Thereafter the Election Commission proceeding under S. 150, Representation, of the People Act issued a notification calling upon the constituency to elect a person for the purpose of filling the vacancy so caused. The election thus ordered took place on 3-5-1953.
4. The present petition was filed by the petitioner on March 1953 to question the decision of the Election Tribunal and to have it quashed by a writ of ‘certiorari’ and for a further declaration that the petitioner was duly elected at the last election.
5. The jurisdiction of this Court to hear such a petition was challenged at the Bar when this petition was heard on 27-4-1953. Shri Bobde argued, on the authority of — ‘Election Commission, India v. Saka Venkata Rao ’, AIR 1953 SC 210 (A), that this Court has no jurisdiction to interfere even under its wide powers conferred by Article 226, with an election matter. It may be pointed out that in the petition as originally filed the Election Commission was made a respondent for the purpose of this proceeding. At the hearing Shri Kotval for the petitioner announced that he did not ask any relief against the Election Commission & that the name of the Election Commission be deleted. This he did apparently because of the above ruling of the Supreme Court where it has been laid down that the jurisdiction of the High Court under Article 226 of the Constitution is territorial in nature and the Election Commission cannot be said to be situated within that jurisdiction, even though it may hold its sittings within that jurisdiction to do certain things.
6. Shri Kotval, in support of his contention that this Court has jurisdiction to consider the present petition, cited to us the precedent of an earlier Bench (Mangalmurti and Deo JJ.) which in — ‘Mahadeo v. Jwala Prasad’, Misc. Petn. No. 70 of 1953, D/- 27-4-1953 (Nag) (B), considered the petition on merits even though the question of jurisdiction was specifically raised before it. Shri Kotval pointed out that the learned Judges dismissed the petition on merits after going into all the questions arising thereunder and thus indirectly indicated that this Court possessed such a jurisdiction.
7. We may point out that the question was raised also before Mangalmurti and Mudholkar JJ. in ten cases in connection with nomination papers but the learned Judges did not consider it necessary to decide it as they thought it inexpedient to interfere with elections and upset the programme. It was assumed for the purpose of those cases that the High Court possessed that jurisdiction. See — ‘Budhram v. V.G Bangale’, Misc. Petn. No. 1779 of 1951 Decided on 18-12-1951 (Nag) (C).
8. Again in — ‘Sujaniram v. Lal Shyamshah’, Misc. Petn. No. 305 of 1952 Decided on 4-2-1953 (Nag) (D) Sen and Deo JJ. decided the petition on merits assuming that there was such jurisdiction. That was a case in which the petitioner asked for a writ, order, or direction for quashing the order of the Election Tribunal, Rajnandgaon, and for a writ of prohibition against the Election Commission from holding a fresh election for the Chauki constituency. The question of jurisdiction was raised. The learned Judges observed:
“We do not consider it necessary to decide the objections raised by Shri Phadke in view of our conclusion that the application must fail on merits. It is not necessary to examine the scope of Article 329(b) and the effect of the decisions of the Supreme Court. We will assume for the purpose of this application that this Court has power under Article 226 to question the order of the Election Tribunal dismissing or allowing an election petition.”
9. After examining the merits of the dispute at considerable length, their Lordships observed:
“In exercise of the powers under Article 226 this Court does not function as a Court of appeal on questions of fact. As the finding is not vitiated by any error of law, the petition fails.”
10. We do not consider these precedents binding upon us because the learned Judges in their orders clearly stated that it was not necessary to examine the question of jurisdiction. There was no considered opinion on jurisdiction, and therefore the orders cannot be said to lay down a definite rule of law on the subject.
11. With all due respect, we are also not inclined to follow the earlier orders as a matter of mere practice, because all questions of jurisdiction have to be decided ‘in limine’ and this Court cannot enter into the merits of a controversy even to reject a contention of the petitioner without its own jurisdiction to do so being clear and manifest. In this connection the reluctance of their Lordships to express any opinion on merits when there was no jurisdiction, in — ‘Lord Strickland v. — ‘Giuseppe Grima’, AIR 1930 P.C 227 at p. 232(E) is a precedent well to remember. We accordingly heard arguments in support and against the preliminary objection and having done so, we are of the opinion that this Court has no jurisdiction in the present matter. Since the election was due to take place on 3-5-1953 we passed an order dismissing the petition on 1-5-1953 and stated that the reasons would be given later and we are now giving the reasons.
12. No authority for the proposition involved in this case has been brought to our notice. Reference has, however, been made to several rulings in which the meaning of the word ‘election’ as used in Article 329 and Part 15 of the Constitution has been explained. These rulings lay down that the process of election begins with the filing of nomination papers and ends with the declaration of the result. Reference may be made in this connection to —‘Ponnuswami v. Returning Officer, Namakkal’ AIR 1952 S.C 64 (F). —‘Shankar v. Returning Officer, Kolaba’, AIR 1952 Bom 277 (G), —‘Shankar Rao v. State of Madhya Bharat’, AIR 1952 Madh. B 97 (H) and —‘Rudra Pratap v. Bhagwandin’, AIR 1952 All 511 (I), In re — ‘Dr. John Matthai’, AIR 1952 Trav. C 1 (g) and — ‘Sukar Gope v. State Of Bihar*’, AIR 1953 Pat. 47 (K)
13. In Misc. Petn. No. 1779 of 1951 (C) (cit. sup.) Mudholkar J. before whom the Cochin-Travancore case was cited was of opinion that the word ‘election’ was used in different senses in Part 15 of the Constitution. The learned Judge observed:
“The entire controversy regarding jurisdiction does not, in my opinion, turn upon the meaning to be given to the word ‘election’ as used in cl. (b) of Article 329. I am clear that the word ‘election’ wherever used must not necessarily be understood either in the extended sense as contended for on behalf of the non-applicants or in a narrow sense as contended for on behalf of the applicants. In each case the meaning of the word will have to be ascertained from the context in which it is used. According to the Cochin-Travancore High Court whose judgment we have seen the word election has been used in this particular provision in an extended sense. With due respect to the learned Judges, I entertain serious doubts about that. Fortunately, however, I find it possible to decide these cases without having to interpret the word election.”
14. These observations which are obiter need not detain us as they are in conflict with what was observed by the Supreme Court in —‘AIR 1952 S.C 64 at p. 68 (F)’, and the matter can, if I may point out respectfully, no longer be viewed as stated in the above quotation.
15. Accepting the meaning now authoritatively given, we have to see whether, as contended, the election can be said to be over after the declaration of the result which was published in the gazette of 8-2-1952 as required by Section 74 of the Representation of the People Act, 1951.
16. The provisions of Chapter 15 of the Constitution deal with elections generally. Article 324 ‘vests’ the superintendence, direction and control of elections in an Election Commission. Article 327 gives Parliament the power to make provision With respect to elections to Legislatures. Article 328 confers power on the Legislature of a State to make provision by law with respect to matters relating to or in connection with, the elections to the House or either House of Legislature of a State including the preparation of electoral rolls & all other ancillary matters. Article 329 bars interference by Courts in electoral matters and reads:
“Notwithstanding anything in this Constitution
(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.”
17. The opening words “Notwithstanding any thing in this Constitution” are sufficiently wide to exclude the powers of this Court under Articles 226 and 227. It is manifest, therefore, that no election can be called in question except by an election petition presented as laid down in cl. (b) of Article 329. Parliament, under the provisions of the Constitution, framed the Representation of the People Act, 1951, and provided ‘inter alia’ for the disputes arising out of elections. These provisions are to be found, in Part 6 of the Act. That Part is divided Into five chapters. The second chapter deals with the presentation of election petitions to Election Commission, and the third chapter with the trial of election petitions and the necessary orders thereon. We are not concerned with the other chapters.
18. Under the second chapter, S. 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part 6 and provides for the presentation of petitions and the matters which the petition may contain, together with provisions for dismissing the petitions if the provisions are not strictly complied with. Section 80 reproduces Article 329(b).
19. The third chapter deals with the trial of election petitions; and if the petition is not dismissed, the Election Commission appoints an Election Tribunal for the purpose of such trial. The place of trial is always determined in the first instance by the Election Commission, but the Tribunal may in its discretion sit at any other place for any part of the trial. Provision is made in that chapter to invest the Tribunal with powers including those of a Civil Court, and the Tribunal is required at the conclusion of the trial to make an order. The provisions of S. 98 of the Act determine the kind of order which the Tribunal may pass, and it is provided there:
“At the conclusion of the trial of an election petition the Tribunal shall make an order—
(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void; or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected; or
(d) declaring the election to be wholly void.” Section 99 deals with other orders which the Tribunal may pass; S. 100 with the grounds for declaring election to be void; S. 101 with the grounds for which a candidate other than the returned candidate may be declared to have been elected; and S. 102 with the procedure in case of an equality of votes. Then follow five sections which deal with the action to be taken on the order and the consequences resulting therefrom. Section 103 provides that the Tribunal shall communicate its order to the Election Commission and transmit the record of the case to the District Judge of the district within which the place of trial appointed by the Election Commission is situate…. etc. Section 104 deals with those cases in which there is a difference of opinion, and it is provided that the view of the majority shall prevail. The remaining three sections must be quoted ‘in extenso’ here;
“105. ‘Order of the Tribunal to be final and conclusive’.— Every order of the Tribunal made under this Act shall be final and conclusive.
106. ‘Transmission of order to the appropriate authority etc. and its publication.’ As soon as may be after the receipt of any order made by the Tribunal under S. 98 or S. 99, the Election Commission shall forward copies of the order to the appropriate authority and, in the case where such order relates to an election (other than a primary election) to a House of Parliament or to an election to the House or a House of the Legislature of a State, also to the Speaker or Chairman, as the case may be, of the House concerned, and shall cause the order to be published in the Gazette of India and in the Official Gazette of the State concerned.
107. ‘Order to take effect only on publication.’ An order of the Tribunal under S. 98 or S. 99 shall not take effect until it is published in the Gazette of India under S. 106.”
20. The learned counsel for the respondent claims that inasmuch as the order has been published it has become final and conclusive and, further, that as a new election has been ordered, the Election Commission must be deemed to have adopted the order and the action of the Court in interfering at this stage would interfere with an order of the Election Commission, which is not possible in view of the clear pronouncement of their Lordships of the Supreme Court in ‘Election Commission, India v. Saka Venkata Rao (cit. sup.)’. (A)
21. On the other side it is contended that what the petitioner claims is not interference with any order of the Election Commission but the quashing of an order of a Tribunal which functioned within the territories over which this Court has jurisdiction and which by that reason was amenable to its jurisdiction under Article 228 of the Constitution.
22. If the definition of an election, contended for by Shri Kotval, that it includes all proceedings commencing with the nomination & ending with the declaration of the result, is accepted (and that seems to be the meaning given by the Supreme Court), then it is obvious that the election must continue till a final decision, by whosoever it be, is reached regarding the result of the poll. To illustrate our meaning we have only to refer to cl. (c) of S. 98 by which under certain circumstances the election of the returned candidate is declared void and some other person is declared to have been duly elected. Shri Kotval, when he was faced with this example, had to concede (very reluctantly) that perhaps on his contention the proceedings of the Election Tribunal with this consequent result would be included in the process of election. Carrying the analogy forward, it is clear that Cl. (b) cannot on principle or authority be treated differently. Under that clause the Tribunal declares the election of a returned candidate to be void, and the implication of such a decision necessarily is that the result of the poll or the election is only declared] finally by the Tribunal and adopted by the Election Commission by its notification. If under Cl. (c) the process of election can be said to continue from nomination till action is taken by the Tribunal to declare some candidate elected, then on a parity of reasoning the result of the election under Cl. (b) is only when the returned candidate's election is declared void. It may be that a fresh election has to be held because by the decision the election becomes infructuous; but it remains an election all the same till the declaration of the final result, whether it be to substitute some other candidate in place of the returned candidate or to exclude even the returned candidate himself without substituting any other and to order a fresh election.
23. The intention of the Constitution seems to be that election matters should be left to the machinery provided for the consideration of election petitions in the law to be made. The intention of the law is clear that no other authority should do what the Tribunal and the Election Commission are required under the law to decide. The Constitution contemplates that all election disputes should be decided as laid down in Article 329(b). It is impossible to think that after the decision of the dispute in the ‘only way’, laid down by the Constitution, there can be any other mode of reopening the question. Once the ‘only process under which an election dispute can be decided has been gone through, the result announced must be final;’ otherwise we would be setting up a rival procedure which Article 329(b) does not warrant. This argument applies whether the dispute is taken to the High Court before the result of the election is known or after the result is known. That an election petition has been filed and dismissed or allowed does not remove the bar of Article 329(b) as that clause itself contemplates ‘only one mode of procedure and not two’.
24. Apart from policy, illustrations of which may be found in — AIR 1930 P.C 227 (E), ‘George Edmund de Silva v. Attorney General Ceylon’, AIR 1949 PC 261 (L) and ‘Theberge v. P. Laundry’, (1877) 2 A.C 102 (M), there is considerable difficulty in interfering with the order of the Tribunal. In the present case a fresh election has already been ordered by the Election Commission and is going on. Our interference at this stage would interfere, not only with the result of the foregone election, but would also affect the impending election. If we declare the petitioner to have been duly elected, there would be no room for a second election and we would be interfering, therefore, not with one election but two. The clear provisions of the law on the subject show that the consideration of such question is advisedly left to special and exclusive Tribunals and not to the ordinary Civil Courts, including this Court exercising its extraordinary powers under Articles 226 and 277.
25. There is another argument which is conclusive. The order of the Election Tribunal when adopted by the Election Commission and notified, becomes an order of the Election Commission. The Election Tribunal is nothing more than an amanuensis of the Election Commission, and the order made by the Election Tribunal, when adopted by the Election Commission, becomes not only conclusive but takes its effect for all intents and purposes as the act of the Election Commission. To issue a process against a body which is now ‘functus officio’ to quash its order would, in the events which have happened, be a process against the Election Commission itself. That is not possible because it has now been authoritatively ruled that the Election Commission is not subject to the writ process of the High Court within the territorial jurisdiction of which the Commission is not situate. It cannot be denied that in the present matter the Election Commission is not within our territorial jurisdiction and we cannot therefore by a writ compel the Election Commission to choose a course other than what it has. No Court does indirectly which it cannot do directly. It is manifest that we cannot issue our process to the Election Commission and we should not, even if the power be there (which we hold is not), issue a process which would indirectly compel the Election Commission to a course we could not have directly ordered. If the Election Commission chooses to ignore our order, there would be no means of compelling obedience. To act in this manner would be wrong, not only in principle, but also against the practice of Courts.
26. The second argument is also not without force, and we are quite clear that there is no jurisdiction to interfere. We are of opinion that such matters are exclusively within the jurisdiction of the election machinery provided by law and that this Court is excluded from interfering with it. For these reasons we hold that we have no jurisdiction to interfere at the instance of the petitioner. The petition is, therefore, dismissed with costs as already ordered. We certify the case as fit for appeal to the Supreme Court under Article 132 of the Constitution.
A/MKS.
27. Petition dismissed.