- (1.) This is a petition by S. Hukam Singh & S. Ajit Singh under Articles 226 & 227 of the Constitution of India for the issue of a writ of certiorari or any other writ, direction or order setting aside or quashing the order of the Election Tribunal dated 20-11-1952 whereby respondents 8 to 11, who were not originally made parties to his petition under Section 82 of the Representation of the People Act (43 of 1951) hereafter called the Act, by respondent 1; but were applied for to be impleaded as such parties subsequently were allowed to be retained as respondents for opposing the petition. For the two seats, one being meant for the Scheduled castes, required to be filled in the House of the People, from the Kapurthala-Bhatinda double-member constituency, the Petitioners and respondents 1 to 11, according to their eligibility, had entered into a contest in the last general elections. Their nomination papers were accepted by the Returning Officer under Section 36 of the Act, but respondents 8 to 11 withdrew their candidatures under Section 37 within the time fixed therefor. As a result of the polling that took place from 15-1-1952 to 24-1-1952, the Petitioners were declared to be duly returned. On 15-5-52, S. Sardul Singh Caveeshar, respondent 1, presented an election petition under Section 81 of the Act, before the Election Commission calling in question the validity of the election of the returned candidates, and the same was published in the Gazette of India on 16-8-52. The petition was later sent for trial to the Election Tribunal consisting of the respondents 12 to 14. In the petition respondents 2 to 7 and the two Petitioners were arrayed as the opposite party, and notice of the petition was issued to them by the Tribunal for 17-9-52. On that date the Petitioners appeared and objected to the tenability of the petition. They urged that under Section 82 of the Act, it was imperative for respondent 1, S. Sardul Singh Caveeshar, to implead all the duly nominated members, and since he had failed to join respondents 8 to 11, who fell in that category, the petition could not be entertained and was liable to be thrown out. On the next date, viz., 30-9-1952, respondent 1 submitted an application to the Tribunal praying that respondents 8 to 11 be made pro forma parties to his petition. It was stated in that application that his failure to implead them was due to his ignorance about their having been duly nominated. The application came up before respondent 12, Chairman of the "Tribunal on 30-9-1952 and he made an order that the names of the respondents 3 to 11 be put on the election petition. Respondent 1 was allowed to make the necessary amendment in the election petition but as the objection raised by the Petitioners could not be decided by the Chairman alone, it was left to be determined during the trial of the position. On the same day respondent 1 submitted the amended petition containing the names of respondents 8 to 11 and they were described as pro forma parties. Notice was issued to respondents 8 to 11. Out of them respondent 8 put in appearance through his counsel on 20-10-1952 and opposed the petition stressing in particular that the petition should be republished so that he could exercise the right of recrimination. In his election petition S. Sardul Singh Caveeshar had asked for a declaration that the election of S. Hukam Singh and S. Ajit Singh was void and that he and respondent 7 had been duly elected or in the alternative that the whole election was void. The Tribunal drew up four preliminary issues covering the points on which the parties were at variance. In deciding those issues on 29-11-1952, the Tribunal held that the respondents 8 to 11 were necessary parties to the petition, that the effect of their non-joinder initially within the period fixed for filing election-petitions was not to render the petition unmaintainable; but that S. Sardul Singh's failure to implead them within. the prescribed time should deprive him of the right to ask for a declaration that he and respondent 7 had been duly elected and that since the Tribunal would deprive respondent 1 of that right, it would be unnecessary to give effect to the objection of respondent 8, that the election petition required to be republished Under Section 90 of the Act. As a consequence respondents 8 to 11 were not struck out but were retained as parties. The present petition was filed on 17-2-1953 and by an order made on 2-4-53 the Tribunal before whom the case had become ripe for arguments was asked not to pronounce its final decision during its pendency.
(2.) Shri Bhagwati Parshad, appearing for respondent 1, made a double pronged attack by way of preliminary objections against the maintainability of the petition. His contention was that Article 329(b) of the Constitution of India and Section 105 of the Act, precluded this Court from interfering in matters exclusively relating to an election; as those matters could only be entertained, investigated and decided by an authority constituted under the Act. Article 329(b) provides a bar to interference by Courts in electoral matters and lays down inter alia that notwithstanding anything in the Constitution 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. This Article falls in Part XV of the Constitution relating to elections and is the last in that Part. The Parliament by enacting the Representation of the People Act, 1951 as its preamble would show, has made provision for the conduct of elections to the Houses of Parliament & to the House or Houses of the Legislature of each State, the qualifications and disqualifications for Membership of those Houses, the corrupt and 11; legal practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. In the light of the provisions of Article 329(b), therefore, it is the Election Commission or Election Tribunal constituted under the Act, that is competent to deal with disputes arising out of or in connection with elections and the jurisdiction of the Courts in matters concerning elections, to which Part XV of the Constitution applies must be held to be barred. That must, however, be different from saying that the jurisdiction of the High Court ensured by Article 227 of the Constitution is also barred. Clause (b) of Article 329 prohibits the calling in question of an election to either House of Parliament or to the House or either House of Legislature of a State except by an election petition presented to such authority and in such manner as has been provided by the Act. In the present case, the election petition is being dealt with by a Tribunal constituted under the Act and not by any Court, so that the provisions of Article 329(b) are being adhered to. The Election Tribunal is functioning within the territories of the PEPSU State and, therefore, within the territories in relation to which this Court exercises jurisdiction. It is a Tribunal whose procedure is regulated by and whose powers re derived from a particular enactment known as the Representation of the People Act, but it is undeniably a Court of justice exercising judicial or quasi-judicial powers. As laid down by Article 227 of the Constitution, the High Court has superintendence over all Courts and tribunals throughout the territories to which its jurisdiction extends. An exception to this jurisdiction is, however, created by Clause (4) of this Article in favour of Courts or tribunals constituted by or under any law relating to the Armed Forces. It is thus clear that the Court or tribunal intended to be taken out 'of the jurisdiction of superintendence by the High Court, has been mentioned in the Constitution itself. If a similar exception were intended by the Constitution to be made in favour of the election tribunals as well, the fact would have been expressly, specified in Article 227 or some other appropriate Article. The Election Tribunals do not stand as a class by themselves over which the High Court's power to see whether they are discharging their duties within the four corners of the law, which they are required to administer, does not exist. It is a different matter that the High Court would not interfere unless it finds that the proceedings before the Tribunal are void for total want of jurisdiction or the defect of jurisdiction is apparent on the record; but there appears to me to be no force in the contention that it has no jurisdiction to take note of and pass necessary orders even when the order of an Election Tribunal is patently 'ultra vires' or where the initial jurisdiction to entertain an election petition is lacking. The Act, no doubt, does not provide for an appeal or a revision against any order of the Election Tribunal; but it cannot follow as a corollary that the Tribunal has been made independent of the High Court's power of superintendence so specifically stated in Article 227 of the Constitution to be exercisable over all Courts and tribunals functioning within its jurisdiction. An Election Tribunal created to determine an election petition, after the result of the election has been declared, is in my view not immune from the superintending control of the High Court. The High Court would have, of course, no power to interfere in any matter which relates to the merits of the election petition, and it would exercise its powers under Article 227 very sparingly and only where the error complained of infringes the fundamental rights of a party or is likely to cause a miscarriage of justice.
(3.) The other bar on the jurisdiction of this Court to entertain a petition for a writ, as contended by Shri Bhagwati Parshad, is the one created by Section 105 of the Act which provides that every order of the Tribunal made under the Act shall be final and conclusive. The question was considered by this Bench in-'Shri Gian Chand V. The State' Civil Misc No. 189 of 1951 D/-24-12-1951 (Pep)(A) and it was held that so far as the Representation of the People Act is concerned, there could be no hesitation in saying that it could not take away the powers of the High Court which were expressly given to it by Article 226. Those observations apply equally with regard to the High Court's powers under Article 227.;