urgently required Judgement of Himachal Pradesh High Court.

The case pertains to Himachal Pradesh Public Service Commision.

I hope the bellow judgement are the same which you required:

Kalyan Singh vs Baldev Singh And Anr. on 11 August, 1960

    Kalyan Singh vs Baldev Singh And Anr. on 11/8/1960

ORDER

   C.B. Capoor, J.C.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

... ... ... ... ... ... ... ... ... ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   20. In fine, I hold that the order of the learned District Judge does not
suffer from any error that may be self-evident or patent on the face of the
record. The petition is accordingly rejected. No order is made as to costs.

 
  

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