Calcutta High Court (Appellete Side)
Sk. Rejabul Haque vs Sk. Serajuddin & Ors on 7 February, 2012
Author: Harish Tandon
Bench: Harish Tandon
In The High Court At Calcutta
Civil Revisional Jurisdiction
Appellate side
Present :
The Hon'ble Justice Harish Tandon.
C.O. No. 1720 of 2010.
Sk. Rejabul Haque
-vs-
Sk. Serajuddin & Ors.
For the petitioner : Mr. Sardar Amjad Ali
Mr. L. N. Bhattacharya
For the Opposite Party No.1 : Mr. Subir Kr. Bhattacharya
For the State : Mr. Subhabrata Datta
Heard on : 03.08.2010 & 13.01.2012
Judgment on : 7th February 2012
HARISH TANDON, J.:
This revisional application is directed against judgment and order dated 29.04.2010 passed by learned Civil Judge (Junior Division) 3rd Court, Tamluk in Judicial Misc. Case No.13 of 2008 by which an application under Section 79 of the west Bengal Panchayat Election Act, 2003 is dismissed.
Admittedly, the petitioner was one of the contesting candidates in Radhaballavchak, Panchayat Samiti No.25 and lost to the opposite party No.1 by a margin of one vote.
It is a specific case of the petitioner that the returning officer have illegally declared the valid ballot paper to be invalid and if those votes are counted the result which is declared could have been reversed.
The opposite party No.1 in his objection denied the allegations made in the application filed by the petitioner and specifically contended that the votes were counted in presence of the petitioner and his agent and at the time of declaring the invalid votes there was no objection raised either by the petitioner or his agent. From the written objection filed by the opposite party Nos. 2 and 4 before the court below, it is a specific stand of the said opposite parties that the decision relating to invalid votes was taken in presence of the agent upon taking due care of the rules of the Election Commission. Specific stand is taken that the petitioner never raised any dispute relating to invalidation of the valid votes but made prayer before the returning officer for recounting which after due consideration was rejected.
Mr. Amjad Ali, the learned Senior Advocate appearing for the petitioner submits that any dispute as envisaged under Section 79 of the West Bengal Panchayat Election Act, 2003 brings within its ambit not only the dispute which is pleaded but a dispute which is otherwise found during the trial of the proceeding. He further submits that the court below after having found a discrepancy as to number of votes recorded in Form 18 and Form 21 could not have proceeded to reject the said application. He succinctly argued that section 93 (1) (d) (iii) and (iv) of the said Act not only includes the dispute of improper reception, refusal or rejection of any vote or the reception of void vote, but also any non-compliance of the provisions of Act and the rules made therein. He audaciously submits that the contents of the petition which is required to be pleaded is provided in Section 82 of the said Act which does not envisage that all possible facts should be narrated therein. Lastly he submits that the court dealing an application under Section 79 of the said Act is the quasi judicial authority and is not bound by the technicalities of the code of civil procedure but are discharging its function as a court of equity, justice and good conscience.
Mr. Subhabrata Datta, the learned Advocate appearing for the state-
respondents submits that the only dispute pleaded by the petitioner in the said election petition is an illegal declaration of valid votes to be invalid which have been found by the court below to not have been proved by the petitioner. He strenuously submits that the evidence without any pleading in support there of cannot be looked by the court. Lastly he submits that none of the disputes as has been raised before this court was raised before the returning officer and as such the petitioner is not permitted to maintain the said election petition under Section 79 of the Said Act.
From the respective submissions as aforesaid, it is undisputed that the petitioner lost the election by a margin of one vote. It is also undisputed that the Panchayat Election are governed by West Bengal Panchayat Election Act, 2003. It is profitable to quote Section 79 of the said Act which provides a right to a candidate to question the election by raising a dispute which reads thus:
"79. Disputes as to elections.- (1) If any dispute arises as to the validity of an election under this Act, any person entitled to vote at such election may, within thirty days after the date of declaration of the results of such election, file a petition, calling in question such election on one or more of the grounds specified in sub-section (1) of section 93 and section 94-
(a) before the Civil Judge having jurisdiction where such election is in respect of a Gram Panchayat or a Panchayat Samiti,
(b) before the District Judge of the district, where such election is in respect of a Zilla Parishad or the Siliguri Mahakuma Parishad.
(2) When filing a petition under sub-section (1), the petitioner shall deposit in court, as security for the costs likely to be incurred,-
(a) five hundred rupees, where the petition is filed before the Civil Judge,
(b) one thousand rupees, where the petition is filed before the District Judge.
(3) Every petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
(4) The District Judge may transfer any petition filed before him under sub-
section (1) to any Judicial Officer subordinate to him not below the rank of a Subordinate Judge.
(5) In dealing with a petition under sub-section (1), the Civil Judge, the District Judge or the Judicial Officer to whom the petition is transferred under sub-section (4) (hereinafter referred to as the Judge) may hold such enquiry as he deems necessary.
(6) The Judges shall have all the powers of a civil court for the purposes of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents.
(7) The decision of the Judge shall be final and shall not be called in question in any court."
The grounds for declaring the election void is incorporated in Section 93 and 94 of the said Act which reads thus:
"93. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act;
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of this Act, or of any rules made under this Act, the Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the Court, a returned candidate has beeen guilty by an agent, other than his election agent, of any corrupt practice but the Court is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(c) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the Court may decide that the election of the returned candidate is not void.
94. Grounds for which a candidate other than the returned candidate may be declared to have been elected.- If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Court is of opinion-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Court shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected."
On conjoint reading of the aforesaid provisions it is manifest that the word "any dispute" as envisaged under Section 79 does not cover any kind of dispute but is restricted to the dispute enshrined under Section 93 and 94 of the said Act. Therefore, the word "any dispute" covers all and sundry disputes as tried to be contended by the petitioner is not acceptable, for the simple reason that is Sub-section 1 of Section 79 which includes the word "any dispute" in the first line conferred right upon any person to question the election on one or more grounds specified in Sub-section 1 of section 93 and Section 94.
It is further noticed that the jurisdiction to entertain the election petition is conferred upon the Civil Judge where such election in respect of a Gram Panchayat or Panchayat Samiti is held or before a District Judge where an election in respect of Zila Parishad or the Siliguri Mahakuma Parishad is held.
Sub-section 6 of Section 79 provides that the judges shall have all the powers of a Civil Court for the purpose of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents. Section 85 (1) of the said Act regulates the said proceeding in accordance with the code of civil procedure as nearly as may be applicable.
Although the election petitions are tried in summary manner but it cannot be said that the code of civil procedure or the evidence act has no applicability. The election petition is certainly guided by the procedural law which regulates the normal proceeding of the said court.
The result of the election where the people elects their representative should not be declared void in absence of any positive evidence to prove the illegality of the election unless a clear definite impeachable case is made out and proved beyond any reasonable doubt, the election can be declared to be illegal and/or void. The burden of proof, therefore, lay squarely on the election petitioner to show and prove the charges so as to maintain the purity of the election process. Failure to plead and prove the material fact may result into fatal consequences. (See Laxmi Kant Bajpai vs. Haji Yaqoob & Ors. reported in (2010) 4 SCC 81, M. Chandra vs. M. Thangamuthu & Anr. reported in (2010) 9 SCC 712).
It is settled law that the pleading is not the substitute of proof. It is also true that the party cannot derogate from his pleading in evidence as the evidence without any foundation in the pleading cannot be looked into.
It is a cordinal principle of law that the evidence beyond the pleading can neither be permitted to be adduced nor can such evidence be taken into consideration. (See Kattionkkula Murali Krishna vs. Veeramalla Koteswara Rao & Ors. reported in (2010) 1 SCC 466).
From length and breadth of the said election petition, the only dispute raised by the petitioner is the declaration of valid vote to be invalid by the returning officer. The Trial Court after scanning the evidence adduced by the petitioner held that he has not been able to prove the said allegation by an oral and documentary evidence. It is noticed that the trial court recorded the evidence of the petitioner where he admits that the returning officer did not declare the valid votes to be invalid when he was present therein.
Thus the trial court found that the petitioner himself admits that the returning officer did not declare any valid vote to be invalid before him but such invalidation is made in other table where the petitioner was not personally present but was represented by his agent. It further appears that the said agents were not cited as witness in the said election petition to corroborate the case. It is an admitted position that the petitioner did not raise any dispute before the returning officer for illegal invalidation of the valid votes either at the time of its alleged declaration nor after the declaration of the result but what is prayed by the petitioner before the returning officer was the recounting.
Additionally in exercise of power under Article 227 of the Constitution, the High Court is not supposed to reappraise the evidence like a First Appellate Court as held in case of State through Special Cell, New Delhi vs. Navjot Sandhu Alias Afshan Guru & Ors. reported in (2003) 6 SCC 641 in the following:
"21. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate it has been held as follows: (SCC pp. 758-59, paras 21-25) "21. The questions which arise for consideration are if in the circumstances of the case, the appellants rightly approached the High Court under Articles 226 and 227 of the Constitution and if so, was the High Court justified in refusing to grant any relief to the appellants because of the view which it took of the law and the facts of the case. We have, thus, to examine the power of the High Court under Articles 226 and 227 of the Constitution and Section 482 of the Code.
22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.
23. In Waryam Singh v. Amarnath this Court considered the scope of Article
227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.
24. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta this Court again reaffirmed that the power of superintendence of the High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, 'as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings'. The Court referred with approval the dictum of Morris, L.J. in R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw.
25. In Nagendra Nath Bora v. Commr. of Hills Division and Appeals this Court observed as under:
'It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority.' "
(emphasis supplied)
22. In the case of Industrial Credit and Investment Corpn. of India Ltd. v. Grapco Industries Ltd. it has been held that there is no bar on the High Court examining merits of a case in exercise of its jurisdiction under Article 227 of the Constitution of India if the circumstances so require. It has been held that, under Article 227 of the Constitution of India, the High Court can even interfere with interim orders of courts and tribunals if the order is made without jurisdiction."
The aforesaid proposition of law is reiterated in case of Shalini Shyam Shetty & Anr. vs. Rajendra Shankar Patil reported in (2010) 8 SCC 329 in these words :
"26. The High Courts' power of superintendence under Article 227 of the Constitution has its origin as early as in the Indian High Courts Act of 1861. This concept of superintendence has been borrowed from English Law. The power of superintendence owes its origin to the supervisory jurisdiction of the King's Bench in England. In the Presidency towns of the then Calcutta, Bombay, Madras initially Supreme Court was established under the Regulating Act of 1973. Those Courts were endowed with the power of superintendence, similar to the powers of the King's Bench under the English Law. Then the Indian High Courts in three Presidency towns were endowed with similar jurisdiction of superintendence. Such power was conferred on them under Section 15 of the Indian High Courts Act, 1861.
27. Section 15 of the Indian High Courts Act of 1861 runs as under:
"15. Each of the High Courts established under this Act shall have superintendence over all courts which may be subject to its appellate jurisdiction, and shall have power to call for returns, and to direct the transfer of any suit or appeal for any such court to any other court of equal or superior jurisdiction, and shall have power to make and issue general rules for regulating the practice and proceedings of such courts, and also to prescribe forms for every proceeding in the said courts for which it shall think necessary that a form be provided, and also for keeping all books, entries, and accounts to be kept by the officers, and also to settle tables of fees to be allowed to the Sheriff, Attorneys, and all clerks and officers of the courts, and from time to time to alter any such rule or form or table; and the rules so made, and the forms so framed, and the tables so settled, shall be used and observed in the said courts, provided that such general rules and forms and tables be not inconsistent with the provisions of any law in force, and shall before they are issued have received the sanction, in the Presidency of Fort William of the Governor General- in-Council, and in Madras or Bombay of the Governor-in-Council of the respective Presidencies."
28. Then in the Government of India Act, 1915, Section 107 continued this power of superintendence with the High Court. Section 107 of the Government of India Act, 1915 was structured as follows:
"107. Powers of High Court with respect to subordinate courts.--Each of the High Courts has superintendence over all courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say--
(a) call for returns;
(b) direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction;
(c) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;
(d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and
(e) settle tables of fees to be allowed to the sheriff, attorneys and all clerks and officers of courts:
Provided that such rules, forms and tables shall not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval, in the case of the High Court at Calcutta, of the Governor General-in- Council, and in other cases of the local Government."
29. In the Government of India Act, 1935 the said Section 107 was continued with slight changes in Section 224 of the Act, which is as follows:
"224. Administrative functions of High Courts.--(1) Every High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say,--
(a) call for returns;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and
(d) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of courts:
Provided that such rules, forms and tables shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision."
30. The history of this power has been elaborately traced by a Division Bench of the Calcutta High Court in Jahnabi Prosad Banerjee v. Basudeb Paul and that was followed in a Division Bench judgment of the Allahabad High Court in Sukhdeo Baiswar v. Brij Bhushan Misra.
31. The history of Article 227 has also been traced by this Court in its Constitution Bench judgment in Waryam Singh v. Amarnath. In AIR para 13 at p. 217 of the Report this Court observed:
"13. ... The only question raised is as to the nature of the power of superintendence conferred by the article."
About the nature of the power of superintendence this Court relied on the Special Bench judgment delivered by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee.
32. In AIR para 14 at p. 217 of Waryam Singh this Court neatly formulated the ambit of High Courts' power under Article 227 in the following words:
"14. This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors."
33. Harries, C.J. in the Full Bench decision in Dalmia stated the principles on which the High Court can exercise its power under Article 227 very succinctly which we would better quote: (AIR pp. 193-94, para 6) "6. Though this Court has a right to interfere with decisions of courts and tribunals under its power of superintendence, it appears to me that that right must be exercised most sparingly and only in appropriate cases. The matter was considered by a Bench of this Court in Manmatha Nath Biswas v. Emperor. In that case a Bench over which Sir George Rankin, C.J. presided held that Section 107, Government of India Act (which roughly corresponds to Article 227 of the Constitution), does not vest the High Court with limitless power which may be exercised at the Court's discretion to remove the hardship of particular decisions. The power of superintendence it confers is a power of a known and well-recognised character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep subordinate courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner."
34. In stating the aforesaid principles, Harries, C.J. relied on what was said by George Rankin, C.J. in Manmatha Nath Biswas v. Emperor. At AIR p. 134, the learned Chief Justice in Manmatha Nath case held:
"... superintendence is not a legal fiction whereby a High Court Judge is vested with omnipotence but is as Norman, J., had said a term having a legal force and signification. The general superintendence which this Court has over all jurisdiction subject to appeal is a duty to keep them within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. It does not involve responsibility for the correctness of their decisions, either in fact or law."
35. Nasirullah Beg, J. of the Allahabad High Court in a very well-considered judgment rendered in Jodhey v. State discussed the provisions of Section 15 of the Indian High Courts Act of 1861, Section 107 of the Government of India Act, 1915 and Section 224 of the Government of India Act, 1935 and compared them with almost similar provisions of Article 227 of the Constitution. The learned Judge considered the power of the High Court under Article 227 to be plenary and unfettered but at the same time, in para 15 at AIR p. 792 of the Report, the learned Judge held that High Court should be cautious in its exercise. It was made clear, and rightly so, that the power of superintendence is not to be exercised unless there has been (a) an unwarranted assumption of jurisdiction, not vested in a court or tribunal, or (b) gross abuse of jurisdiction, or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. The learned Judge clarified if only there is a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice, power of superintendence can be exercised. This is a discretionary power to be exercised by the Court and cannot be claimed as a matter of right by a party.
36. This Court in its Constitution Bench decision in Nagendra Nath Bora v. Commr. of Hills Division and Appeals followed the ratio of the earlier Constitution Bench in Waryam Singh about the ambit of High Court's power of superintendence and quoted in Nagendra Nath the same passage, which has been excerpted above (see AIR p. 413, para 30 of the Report).
37. The Constitution Bench in Nagendra Nath, unanimously speaking through B.P. Sinha, J. (as His Lordship then was) pointed out that High Court's power of interference under Article 227 is not greater than its power under Article 226 and the power of interference under Article 227 of the Constitution is limited to ensure that the tribunals function within the limits of its authority. (emphasis supplied)
38. The subsequent Constitution Bench decision of this Court on Article 227 of the Constitution, rendered in State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela also expressed identical views. Bachawat, J. speaking for the unanimous Constitution Bench opined that the power under Article 227 cannot be fettered by the State Legislature but this supervisory jurisdiction is meant to keep the subordinate tribunal within the limits of their authority and to ensure that they obey law.
39. So the same expression, namely, to keep the courts and tribunals subordinate to the High Court "within the bounds of their authority" used in Manmatha Nath Biswas, to indicate the ambit of High Court's power of superintendence has been repeated over again and again by this Court in its Constitution Bench decisions.
40. Same principles have been followed by this Court in Mani Nariman Daruwala v. Phiroz N. Bhatena, wherein it has been held that in exercise of its jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. This Court made it clear that except to this "limited extent" the High Court has no jurisdiction to interfere with the findings of fact (see SCC pp. 149-50, para 18). In coming to the above finding, this Court relied on its previous decision rendered in Chandavarkar Sita Ratna Rao v. Ashalata S. Guram. The decision in Chandavarkar is based on the principle of the Constitution Bench judgments in Waryam Singh and Nagendra Nath discussed above.
41. To the same effect is the judgment rendered in Laxmikant Revchand Bhojwani v. Pratapsing Mohansingh Pardeshi. In SCC para 9 at pp. 579-80 of the Report, this Court clearly reminded the High Court that under Article 227 that it cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
42. Same views have been taken by this Court in respect of the ambit of High Court's power under Article 227 in Lonand Grampanchayat v. Ramgiri Gosavi (see AIR pp. 222-34, para 5 of the Report) and the decision of this Court in Jijabai Vithalrao Gajre v. Pathankhan. The Constitution Bench ratio in Waryam Singh about the scope of Article 227 was again followed in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram Tahel Ramnand.
43*. In a rather recent decision of the Supreme Court in Surya Dev Rai v. Ram Chander Rai, a two-Judge Bench of this Court discussed the principles of interference by the High Court under Article 227. Of course in Surya Dev Rai this Court held that a writ of certiorari is maintainable against the order of a civil court, subordinate to the High Court (SCC p. 688, para 19 of the Report). The correctness of that ratio was doubted by another Division Bench of this Court in Radhey Shyam v. Chhabi Nath and a request to the Hon'ble Chief Justice for a reference to a larger Bench is pending. But insofar as the formulation of the principles on the scope of interference by the High Court under Article 227 is concerned, there is no divergence of views.
44. In para 38 sub-para (4) at SCC p. 695 of the Report, the following principles have been laid down in Surya Dev Rai and they are set out:
"38.(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction."
45. Sub-paras (5), (7) and (8) of para 38 are also on the same lines and extracted below: (Surya Dev Rai case, SCC pp. 695-96) "38.(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.
(6) * * * (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
(8) The High Court in exercise of certiorari or supervisory jurisdiction will not convert itself into a court of appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character."
46. Articles 226 and 227 stand on substantially different footing. As noted above, prior to the Constitution, the Chartered High Courts as also the Judicial Committee of the Privy Council could issue prerogative writs in exercise of their original jurisdiction. (See Umaji Keshao Meshram v. Radhikabai, SCC at p. 469.) However, after the Constitution every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. (State of U.P. v. Dr. Vijay Anand Maharaj, AIR p. 951.)
47. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. (See Surya Dev Rai, SCC p. 690, para 25 and also the decision of the Constitution Bench of this Court in Hari Vishnu Kamath v. Ahmad Ishaque, AIR p. 243, para 20.)"
There is no pleading in the election petition relating to the discrepancy in number of votes recorded in Form 18 and 21 by the returning officer. Although the court observed such discrepancy but ruled out the said point as it does not come under Section 79 of the said Act. The bone of contention of the petitioner is that once the court finds such discrepancy it ought to have determined the same for declaring the election void.
Though the court have made a casual observation but as indicated above there is no foundation laid in the pleading of the petitioner. Even other wise Section 93 (1) (d) (iii) and (iv) of the said Act does not imbibe within itself the said disputes. The Apex Court in case of Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao & Ors. reported in (2010) 1 SCC 466 held that an evidence de hors the pleading should not be looked into by the court in these words:
"24. It is a settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor can such evidence be taken into consideration. Moreover, even the two material issues viz. as to whether the counting of votes by the Election Officer was in accordance with the rules and regulations as also whether the votes polled in favour of the election petitioner were rejected as invalid or there was improper mixing of the votes have been found in favour of the appellant. It is evident from the observations of the Election Tribunal, extracted in paras 8 to 10 above, that the sole factor which had weighed with it to order re-count was that no prejudice will be caused to the appellant if the ballot papers are re-counted. Similarly, the factor which weighed with the High Court to affirm the view of the Election Tribunal is that re-counting of votes will reinforce the transparency in the process of election, particularly when the margin of votes was very narrow."
The trial court considered all the aspects of the matter and upon scanning the pleading and the evidence have arrived at the finding that the petitioner did not make out any case in support of his claim which cannot be faulted with.
The revisional application is thus dismissed.
However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Harish Tandon, J.)