judgement:
Appeal No. 48 of 1954.
Appeal from the Judgment and Order dated the 1 1 th January, 1954, of the High Court of Judicature of Mysore in Civil Petition No. 29 of 1953, quashing the Order of the Election Tribunal, Shimoga, dated the 15th January, 1953, in Shimoga No. I of 1952 53.
K. section Krishnaswami Iyengar (K. section Venkataranga Iyengar and M. section K. Iyengar, with him) for the appellant.
Dr. Bakshi Tek Chand (R. Ganapathy Iyer and M. section K. Sastri, with him) for respondent No. 1.
C. K. Daphtary, Solicitor General for India (Jindra Lal, Porus A. Mehta and P. O. Gokhale, with him) for respondent No. 3. 1954.
May 5.
The Judgment of the Court was delivered by MUKERGEA J.
This appeal is directed against a judgment of a Division Bench of the Mysore High Court, dated the 11th January, 1954, by which the learned Judges granted an application, presented by the respondent No. I under article 226 of the Constitution, and directed a writ of certiorari to issue quashing the,, proceedings and order of the Election Tribunal, Shimoga, dated the 15th January, 1953, in Shimoga Election Case No. 1 of 1952 53.
The facts material for purposes of this appeal may be briefly narrated as follows: The appellant and respondent No. 1, as well as eight other persons, who figured as respondents Nos. 2 to 9 in the proceeding before the High Court, were duly nominated candidates for election to the Mysore Legislative Assembly from Tarikere Constituency at the general election of that State held in January , 1952.
Five of these nominated candidates withdrew their candidature within the prescribed period and the actual contest at the election was between the remaining five candidates including the appellant and respondept No. 1.
The polling took place on the 4th January, 1952, and the votes were counted on the 26th of January following.
As a result, of the counting the respondent No. 1 was found to have secured 8,093 votes which was the largest in number and the appellant followed him closely having obtained 8,059 votes.
The remaining three candidates, who were respondents Nos. 2, 3 and 4 before the High Court, got respectively 6,239, 1,644 and 1,142 votes.
The Returning Officer declared the respondent No. 1 to be the successful candidate and this declaration was published in the Mysore Gazette on the 11th February, 1952.
The respondent No. 1. lodged his return of election expenses with the necessary declaration sometime after that and notice of this return was published on the 31st March, 1952.
The appellant thereafter filed a petition before the Election Commission, challenging the validity of the election, inter alia, on the grounds that there was violation of the election rules in regard, to certain matters and that the respondent No. I by himself or through his agents were guilty of a number of major corrupt practices which materially affected the result of the election.
The petitioner prayed for a declaration that the election of respondent No. I was void and that he himself was duly elected.
This petition, which bears date, 10th of April, 1952, was sent by registered post to the Election Commission and was actually received by the latter on the 14th of April,; following.
The Election Commission referred the matter for determination by the Election Tribunal at 253 Shimoga and it came up for hearing before it on the 25th of October, 1952.
On that date the appellant filed an application for amendment of the petition, heading it as one under Order VI, rule 17, of the Civil Procedure Code, and the only amendment sought for was a modification of the prayer clause by adding a prayer for declaring the entire election to be void.
It was stated at the same time that in case this relief could not be granted, the petitioner would, in the alternative pray for the relief originally claimed by him, namely, that the election of respondent No. I should be declared to be void and the petitioner himself be held to be the elected candidate at the election.
Despite the objection of respondent No. 1, the Tribunal granted this prayer for amendment.
The hearing of the case then proceeded and on the averments made by the respective parties, as many as 27 issues were framed.
Of them, issues Nos. 1, 5, 6, 11, 12 and 14 are material for our present purpose and they stand as follows : (1) Has there been infringement of the rules relating to the time of commencement of poll by reason of the fact that the polling at Booth No. I for Ajjampur fixed at Ajjampur to take place at 8 A.m did not really commence until about half an hour later as alleged in paragraph 4 of the petition ? (5) Did the 1st respondent hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph I of the particulars and thereby commit the corrupt practice referred to in it ? (6) Did the 1st respondent take the assistance of a number of Government servants to further the prospects of his election as alleged in paragraph 2 of the list of particulars ? (11) Is the return of election expenses lodged by the 1st respondent false in material particulars and has the 1st respondent omitted to include in the return of election expenses, expenses incurred by him in connection with the election which would easily exceed the sanctioned limit of, Rs. 5,000 as per particulars stated in paragraph 7 of the list of particulars 254 (12) Has the election of the 1st respondent been procured and induced by the said corrupt practices with the result that the election has been materially affected ? (14) Would the petitioner have obtained a majority of votes had it not been for the aforesaid corrupt and illegal practices on the part of the first respondent? The Tribunal by a majority of 2 to 1 found all these issues in favour of the petitioner and against the respondent No. 1 and on the strength of their findings on these issues, declared the election of respondent No. 1 to be void and the petitioner to have been duly elected.
The judgment of the Tribunal is dated the 15th of January, 1953.
On the 5th February, 1953, the respondent No. I presented an application before the Mysore High Court under article 226 of the Constitution praying for a writ or direction in the nature of certiorari calling for the records of the proceeding of the Election Tribunal in Election Petition No. I of 195253 and quashing the same including the order pro nounced by the Tribunal as mentioned above.
This application was heard by a Division Bench consisting of Medappa C.J. and Balakrishnaiya J. and by their judgment dated the 11th January, 1954, the learned Judges allowed the petition of respondent No. 1 and directed the issue of a writ of certiorari as praved for.
It is against this judgment that the appellant has come up to this Court on the strength of a certificate granted by the High Court under articles 132(1) and 133(1) (c) of the Constitution.
The substantial contention raised by Mr. Ayyangar, who appeared in support of the appeal, is, that the learned Judges of the High Court misdirected themselves both on facts and law, in granting certiorari in the present case to quash the determination of the Election Tribunal.
It is urged, that the Tribunal in deciding the matter in the way it did did not act either without jurisdiction or in excess of its authority, nor was there any error apparent on the face of the proceedings which could justify the issuing of a writ to quash the same.
It is argued by the learned counsel 255 that, what the High Court has chosen to describe as errors of jurisdiction are really not matters which affect the competency of the Tribunal to enter or adjudicate upon the, matter in controversy between the parties and the reasons assigned by the learned Judges in support of their decision proceed upon a misreading and misconception of the :findings of fact which the Tribunal arrived at.
Two points really arise for our consideration upon the contentions raised in this appeal.
The first is, on what grounds could the High Court, in exercise of its powers under article 226 of the Constitution, grant a writ of certiorari to quash the adjudication of the Election Tribunal ?
The second is, whether such grounds did actually exist in the present case and are the High Court 's findings on that point proper findings which should not be disturbed in appeal ?
The principles upon which the superior Courts in England interfere by issuing writs of certiorari are fairly well known and they have generally formed the basis of decisions in our Indian Courts.
It is true that there is lack of uniformity even in the pronouncements of English Judges, with regard to the grounds upon which a writ, or, as it is now said, an order of certiorari, could issue, but such differences of opinion are unavoidable in judge made law which has developed through a long course of years.
As is well known, the issue of the prerogative writs, within which certiorari is included, had their origin in England in the King 's prerogative power of superintendence over the due observance of law by his officials and Tribunals.
The writ of certiorari is so named because in its original form it required that the King should be " certified of " the proceedings to be investigated and the object was to secure by the authority of a superior Court, that the jurisdiction of the inferior Tribunal should be properly exercised (1).
These principles were transplanted to other parts of the King 's dominions.
In India, during the British days ' the three chartered High Courts of Calcutta, Bombay and Madras were alone competent to issue (1) Vide Ryots of Garbandho v, Zemindar of Parlkime 70 I,A. 129 at page 140 256 writs and that too within specified limits and the power was not exercisable by the other High Courts at all.
" In that situation " as this Court observed in Election Commission, India vs Saka Venkata Subba Rao (1), " the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States ' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions " for any other purpose " being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King 's Bench in England.
" The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be 'considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well.
In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges.
We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.
One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the writ can be (I at 1150, 257 of judicial acts.
The expression " judicial acts " includes the exercise of quasi judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts.
Atkin L. J. thus summed up the law on this point in Rex vs Electricity Commissioners (1) : " Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling Jurisdiction of the King 's Bench Division exercised in these writs."
The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi judicial Tribunals or bodies is not in an appellate but supervisory capacity.
In granting a writ of certiorari the superior Court does not exercise the powers of an appellate Tribunal.
It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based.
It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal.
The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person(2).
The supervision of the superior Court exercised through writs of certiorari goes on two points, as has been expressed by Lord Sumner in King vs Nat.Bell Liquors Limited (3).
One is the area of inferior jurisdiction and the qualifications and conditions of its exercise ; the other is the observance of law in the course of its exercise.
These two heads normally cover all the grounds on which a writ of certiorari could be demanded.
In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.
(I) (1924] I K.B. 17I at 205.
(2) Vide Per Lord Cairns in Walshall 's Overseers vs London and North Western Railway Co., 4 A.C. 30, 39.
(3) [1922) 2 A.C. 128, 156, 33 258
Certiorari may lie and is generally granted when a Court has acted without or in excess of its jurisdiction.
The want of jurisdiction may arise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances(1).
When the jurisdiction of the Court depends upon the existence of some collateral fact, it is well settled that the Court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess (2).
A Tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice.
A writ of certiorari may be available in such cases.
An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be amanifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law.
In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision.
The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by Morris L. J. in the recent case of Rex vs Northumberland Compensation Appellate Tribunal(3).
The Lord Justice says: It is plain that certiorari will not issue as the cloak of an appeal in disguise.
It does not lie in order to bring up an order or decision for re hearing of the issue raised in the proceedings.
It exists to correct error of law when revealed on the, face of an order or decision or irregularity or absence of or excess of jurisdiction when shown."
In dealing with the powers of the High Court under article 226 of the Constitution this Court has expressed itself in almost similar terms(1) and said (I) Vide Halsbury, 2nd edition, Vol.IX, page 88o (2) Vide Banbury vs Fuller, 9 Exch.III ; R. vs Income Tax Special Purposes Commissioners, (3) [19521 1 K.B. 338 at 357.(4) Vide Veerappa Pillai v, Ramon & Raman Ltd., [1952] S.C.R. at 594.
"Such writs as are referred to in article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction ,vested in them, or there is an error apparent on the face of the, record, and such act, omission, error or excess has resulted in manifest injustice.
However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution.
We will now proceed to examine the judgment of the High Court and see whether the learned Judges were right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case.
The grounds upon which the High Court has granted the writ have been placed in the judgment itself under three heads.
The first head point; out in what matters the Election Tribunal acted without jurisdiction.
It is said, in this connection, that the Tribunal had no jurisdiction to extend the period of limitation for the presentation of the election petition and it had no authority also to allow the petitioner 's prayer for amendment and to hear and dispose of the case on the basis of the amended petition.
The second head relaters to acts in excess of jurisdiction.
The Tribunal, it is said ' acted in excess of jurisdiction in so far as it went into and decided questions not definitely pleaded and put in issue, and not only did it set aside the election of respondent No. 1 but declared the petitioner to have been duly elected, although there was no definite finding and no proper materials for arriving at 260 a finding, that the petitioner could secure more votes than respondent No. 1 but for the corrupt practices of the latter.
The third head purports to deal with errors apparent on the face of the record.
These apparent errors, according to the High Court,, vitiated three of the material findings upon which the Tribunal based its decision.
These findings relate to the commencement of polling at one of the polling booths much later than the scheduled time, the respondent No. 1 's obtaining the services of a Government servant to further his prospects of election and also to his lodging a false return of expenses.
We will take up these points for consideration one after another.
As regards absence of jurisdiction the High Court is of opinion that the Tribunal acted without jurisdiction, first in extending the period of limitation in presentation of the election petition and secondly in allowing the petitioner 's prayer for amendment and dealing with the case on the basis of the amended petition.
The view taken by the High Court seems to be that under the Representation of the People Act (hereinafter called "the Act"), no power is given to the Election Tribunal to condone the delay, if an election petition is presented after the period prescribed by the rules, nor is it competent to allow an amendment of the petition after it is presented, except in the matter of supplying further and better particulars of the illegal and corrupt practices set out in the list annexed to the petition, as contemplated by section 83(3) of the Act.
Assuming, though not admitting, that the propositions of law enunciated by the learned Judges are correct, we do not think that they at all arise for consideration on the actual facts of the present case.
As regards the first matter, the election petition, as stated above, was despatched bythe petitioner by registered post to the Election Commission on the II th of April, 1952, and it reached the Commission on the 14th of April following.
We may take it therefore that 14th of April was the date when the election petition 261 could be deemed to have been presented to the Election Commission under section 81(2)(b) of the Act.
Under rule 119 of the Election Rules framed under the Act, an election petition against a returned candidate is to be presented at any time after the publication of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113, that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer.
It is not disputed that this notice of the return of election expenses was published in the Mysore Gazette on the 31st of March, 1952, and the petition therefore was just in time as it was presented within and not later than 14 days from that date.
The High Court seems to think that in computing the period of 14 days the date of publication is to be included.
This seems to us to be an unwarrantable view to take which is opposed to the ordinary canons of construction.
Dr. Tek Chand appearing for the respondent No. 1 plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's entertaining the election petition after the prescribed period in the present case.
Coming now to the question of amendment, the High Court, after an elaborate discussion of the various provisions of the Act, came to the conclusion that the Election Tribunal which is a special Court endowed with special jurisdiction has no general power of allowing amendment of the pleadings, and that the express provision of section 83(3) of the Act, which empowers the Tribunal to allow amendments with respect to certain specified matters, impliedly excludes the power of allowing general amendment as is contemplated by Order VI, rule 17, of the Civil Procedure Code.
Here again the discussion embarked upon by the High Court seems to us to be unnecessary and uncalled for.
The only amendment applied for by the petitioner was a modification in the prayer clause by insertion of an alternative prayer to the original prayer in the petition.
No change whatsoever was sought to 262 be introduced in the actual averments in the petition and the original prayer which was kept intact was repeated in the application for amendment.
The alternative prayer introduced by the amendment was not eventually allowed by the Tribunal which granted the prayer of the petitioner as it originally stood.
In these circumstances the mere fact that the Tribunal granted the petitioner 's application for amendment becomes altogether immaterial and has absolutely no bearing on the actual decision in the case.
We are unable to hold therefore that the Tribunal acted without jurisdiction in respect to either of these two matters.
The High Court has held that the Tribunal acted in excess of its jurisdiction in entering into certain questions which are not covered by the pleadings of the parties and not specifically put in issue.
The other act in excess of its authority committed by the Tribunal, according to the High Court, is that it declared the petitioner to be a duly elected candidate, on a mere speculation although it did not find and had no materials to find that the petitioner could secure more votes than the respondent No. 1.
On the first point the learned Judges have referred only to the allegation of corrupt practice made by the appellant, regarding the hiring and procuring by the respondent No. 1 of a motor bus belonging to Ahmed Jan for transporting his voters to the polling booths.
The issue framed on this point is issue No. 5 which is worded as follows: "Did the first respondent hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one Ahmed Jan, as alleged in paragraph 1 of the list of particulars and thereby commit the corrupt practice referred to in it?" The Tribunal found that the hiring of the bus by respondent No. 1 was not proved, but it was proved that the first respondent did procure the service bus of Ahmed Jan, who was acting as his agent, for conveying his voters.
The Tribunal further found that even if Ahmed Jan was not an agent of the first respondent, as he was actually carrying the voters of the latter 263 from Gowrapur to Sollapur in a bus, which bore the first respondent 's election symbol, with his knowledge and connivance, the first respondent must be held guilty of the corrupt practice in question.
The High Court says that as it was nowhere alleged in the petition that Ahmed Jan was an agent of respondent No. I or that he was carrving the voters with his connivance, the Tribunal must be held to have acted 'in excess of its jurisdiction in going into matters which were not definitely pleaded.
We do not think that this view of the High Court can be supported.
In paragraph 8 of the petition the appellant definitely stated that the first respondent by himself and through his agent committed major corrupt practices, one of which was the hiring or procuring of Ahmed Jan 's motor bus.
The Tribunal found, on a consideration of the evidence adduced in the case, that the motor bus was procured by the first respondent and his conduct in this respect, as disclosed by the evidence, showed that his voters were being carried by Ahmed Jan with his knowledge and connivance.
It may be pointed out that in paragraph 9 of the petition the petitioner clearly stated that the corrupt practices were committed by respondent No. 1, or his agents, or by several persons with his knowledge and connivance.
The finding of the Tribunal arrived at on this point is a finding of fact based on evidence adduced by the parties and it is not in any way outside the pleadings or inconsistent therewith.
The other ground put forward by the High Court that the Tribunal exceeded its jurisdiction in declaring the appellant to be the duly elected candidate, although it had no materials to come to the conclusion that he could have secured more votes than respondent No. 1 but for the corrupt practices committed by the latter, seems to us to be without substance.
It appears that the learned Judges did not properly advert to the findings arrived at on this point by the Election Tribunal.
The petitioner, it may be noted, got only 34 votes less than the respondent No. 1.
The Tribunal has found that the bus of Ahmed Jan, which was procured by respondent No. 1, did carry to the polling booths about 60 voters in two trips and in the, circumstances of the case it could 264 be legitimately presumed that the majority of them did vote for respondent No. 1.
If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latter 's majority by 34 votes would be completely wiped out and the petitioner would gain an undisputed majority.
In paragraph 33 of its judgment the Tribunalstates as follows: "Hence on the 14th issue we hold that the petitioner would have obtained a majority of votes had it not been for the aforesaid corrupt practices on the part of the first respondent." Thus the finding is there and there is evidence in support of it.
Whether it is right or wrong is another matter and it may be that the view taken by the dissenting member of the Tribunal was the more proper; but it cannot be said that the Tribunal exceeded its jurisdiction in dealing with this matter.
We now come to what the High Court has described as errors apparent on the face of the record.
These errors, according to the High Court, appear in respect of three of the findings arrived at by the Tribunal.
The first of these findings relates to the time when the polling at Booth No. I at Ajjampur commenced on the date of election.
The Tribunal has held that the time fixed by notification was 8 A.M. in the morning but the polling did not commence till 25 minutes after that and the result was that a number of voters went away.
It is said that some of these voters would in all probability have voted for the appellant and as there was a difference of only 34 votes between him and the respondent No. 1 the results of the election have been materially affected by this irregularity or violation of the election rules.
There was evidence undoubtedly to show that some of the voters went away as the polling did not commence at the scheduled time; but the exact number of these persons is not known and there could not be any positive evidence to show as to how many of them would have voted for the appellant.
If the Tribunal had on the basis of these facts alone declared the appellant to be the duly elected candidate holding 265 that he could have secured more votes than respondent No. 1, obviously this would have been an error apparent on the face of the record, as such conclusion would rest merely on a surmise and nothing else.
The Tribunal however discussed this matter only in connection with the question as to whether the violation of any statutory rule or order in the holding of election did materially affect the result of the election which would entitle the Tribunal to declare the election of the returned candidate to be void under section 100(2) (c) of the Act.
This, the Tribunal *as competent to do under the provisions of the Act and in doing so it could take into consideration the circumstances And probabilities of the case.
But as we have stated already, the Tribunal declared the appellant to be duly elected upon the specific finding that, but for the corrupt ' practice of respondent No. I in the matter of procuring the service bus of Ahmed Jan, the appellant would have got majority of the votes.
We cannot say that this is an error apparent on the face of the record which would entitle the High Court to interfere by writ of certiorari.
As regards the other two findings, one relates to the receiving of assistance from Paramessh warappa, who is a Patel, by respondent No. 1, in furtherance of his prospects of election.
The High Court does not dispute the facts alleged by the appellant that Paramesshwarappa accompanied the first respondent and actually canvassed at several places and that he openly canvassed at one polling booth on the polling day.
The ]earned Judges say that even if these facts are believed, they only establish that Paramessh warappa canvassed for the petitioner but that would not amount to respondent No. 1 's taking assistance from him.
This does not seem to us to be a proper view to take.
There was allegation by the appellant of the respondent No. 1 's taking assistance from a Government servant within the meaning of section 123(8) of the Act.
In proof of the allegation evidence was given of the facts mentioned above.
If from these facts, which were found to be true, the Tribunal drew the conclusion that there )lad been an assistance taken from a Government 266 servant which would come within the purview of section 123(8) of the Act, it is impossible to say that this is an error apparent on the face of the record.
The remaining finding relates to the allegation of the petitioner that the respondent No. 1 in his return of election expenses omitted to include several items and if they had been taken into account the election expenses would have exceeded the sanctioned limit.
The Tribunal has held that the respondent No. 1 omitted to include, in his return of expenses, the petrol charges, the hiring charges in respect of some cars and vans hired by him and also the dinner expenses incurred in the hotels.
The High Court has observed that as regards the first item the finding of the Tribunal is based on no evidence and rests on mere speculation.
We do not think that we can accept this view as correct.
The first respondent stated that he had used two cars which were his own and incurred petrol expenses to the extent of Rs. 1,083 3 0.
The Tribunal has found in paragraph 29 of its order on the basis of both documentary and oral evidence that the respondent No. I had used six other cars and had purchased petrol for them for the purpose of his election campaign.
The Tribunal held that the first respondent must have spent not less than the sum of Rs. 1,250 on this account which was not included in the list of expenses.
We are unable to say that this finding rests on no evidence.
As regards the omission to include hiring charges the High Court has observed that the Tribunal did not record any finding that such hiring was proved.
The Tribunal has in fact found that as regards some cars they were hired, while others had been taken on loan, the money value for their use having been paid by the first respondent which is tantamount to saying that he had to pay the hiring charges.
The matter has been dealt with in paragraph 29(d) of the Tribunal 's order and the entire evidence has been gone through.
We are unable to say that the finding of the Tribunal that the respondent No. 1 had omitted to include in his return of election expenses the dinner and hotel charges is a finding unsupported by any evidence.
Reference may be made in this connection to paragraph 29(f) of the 267 Tribunal 's order which deals with the matter in detail.
On the whole our opinion is that the so called apparent errors pointed out by the High Court are neither errors of law nor do they appear on the face of the record.
An appellate Court might have on a review of this evidence come to a different conclusion but these are not matters which would justify the issue of a writ of certiorari.
In our opinion the judgment of the High Court cannot be supported and this appeal must be allowed.
The writ issued by the High Court will therefore be vacated.
We make no order as to costs of this appeal.
Appeal allowed.

dataset_name: IN-Abs

summary:
The issue of prerogative writs in the nature of habeas corpus, mandamus, quo warrantto, prohibition and certiorari had their origin in England in the King 's prerogative power of superintendence over the due observance of law by his officials and Tribunals.
The powers of the Supreme Court as well as of all the High Courts in India under articles 32 and 226 of the Constitution respectively are very wide.
The Supreme Court as well as the High Courts in India can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as the broad and fundamental principles of English law regulating the exercise of jurisdiction in the matter of granting such writs are adhered to.
A writ of certiorari can be availed of only to remove or adjudicate upon the validity of judicial acts, which expression includes the exercise of quasi judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions but does not include purely ministerial acts.
In granting a writ of certiorari the superior Court does not exercise the power of an appellate Tribunal, the control exercised through it being merely in a supervisory and not appellate capacity.
It does not review or reweigh the evidence upon which the determination of the inferior Court is based nor does it substitute its own views for those of the inferior Tribunal.
A writ of certiorari is generally granted when a Court has acted without or in excess of its jurisdiction.
The want of jurisdiction may &rise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceeding or the Court itself may not be legally constituted or may suffer from a certain disability by reason of extraneous circumstances.
If the jurisdiction of the Court depends upon the existence of some collateral fact the Court cannot by a wrong decision of the fact assume jurisdiction which it would not otherwise possess.
A writ of certiorari is available in those cases where a Tribunal though competent to enter upon an enquiry acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed.
251 A mere wrong decision cannot be corrected by a writ of certiorari as that would be using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceeding based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected.
Held, that in view of the facts and circumstances of the case the High Court was not right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case.
Ryots of Garabandho vs Zemindar of Parlakimedi (70 I.A. 129, 140); Election Commission, India vs Saka Venkata Subba Rao ([1953] S.C.R. 1144, 1150).
Rex vs Electricity Commissioners ([1924] 1 K.B. 171, 205); Walshall 's Overseers vs London and Northern Western Railway Co. (4 A.C. 30, 39); King vs Nat Bell Liquors Limited ([19221 2 A.C. 128, 156); Banbury vs Fuller, ; ; Queen vs Commissioners for Special Purposes of the Income Tax ; Rex vs Northumberland Compensation Appellate Tribunal ([1952] 1 K.B. 338, 357); Veerappa Pillai vs Raman & Raman Ltd., ([19521 S.C.R. 583, 594); and Halsbury, Vol.
IX, 2nd edition, page 880, referred to.


judgement:
vil Appeal No. 2347 of 1966.
Appeal from the judgment and decree, dated June 3, 1966 of the Calcutta High Court in Appeal No. 251 of 1965.
M.C. Chagla and S.N. Mukherjee, for the appellant.
section V. Gupte, M.G. Poddar and D.N. Mukherjee, for the respondent.
Clause 3(c) of the deed provided for a renewal of the lease and was in the following terms : "3 (c).
The lessor will on the written request of the lessees made two calendar months before the expiry of the term hereby created and if there shall not at the time of such request be any existing breach or non observance of any of the covenants on the part of the lessees hereinabove contained grant to it one renewal of 10 years from the expiry of the said term at the same rent and containing the like convenants and provisos as are herein contained except that as regards the clause for renewal for further period the rent shall be as may be agreed between the lessor and the lessees.
" On December 1, 1963, the time fixed for applying for the renewal of the lease expired.
On December 13, the appellant made a written request for the renewal.
On December 23, 1963 the respondent 's solicitors replied stating that the request being out of time was ineffective and asking the appellant to, vacate the land on the expiry of the lease.
The appellant had erected structures on the land for the purpose of running a petrol delivery station and was a Thika tenant within the meaning of the Calcutta Thika Tenancy Act, 1949.
In February 1964 the respondent filed an application before the Controller asking for eviction of 240 the appellant under sections 3(vi) and 5 of the Calcutta Thika ,,Tenancy Act.
The Controller allowed the application.
An appeal from this order was dismissed by the appellate Authority.
A revision petition against the order was dismissed by the High Court.
While dismissing the revision petition, the High Court stayed the execution of the order of eviction for a month and observed that the authorities under the Calcutta Thika Tenancy Act had no power to decide whether the appellant was entitled to a renewal of the lease.
Thereafter the appellant filed the present suit on the Original Side of the Calcutta High Court asking for a declaration that it was entitled to a renewal of the lease, specific performance of the covenant for renewal, an injunction restraining execution of the order of eviction passed by the Controller and for other reliefs.
In paragraphs 13 and 14 of the plaint the appellant alleged that the delay in giving notice of renewal should be excused in view of the following special circumstances: (a) the delay was due to oversight; (b) the respondent had not altered her position for the worse or to her detriment within the space of 12 days; (c) neither party had treated the matter of time as being as the essence of the transaction; (d) the appellant had constructed a service station for petroleum products of immense utility to the public of the locality; (e) the appellant was in possession of the land.
The respondent contended that the application for renewal being made out of time was ineffective and that there was no ground for excusing the delay.
S.P. Mitra, J. accepted the respondent 's contention and dismissed the suit.
An appeal under clause 15 of the Letters Patent was dismissed by a Divisional Bench of the High Court.
Both the courts concurrently held that the letter, dated December 13, 1963 was not a proper exercise of the option by the ,appellant under the lease, dated February 17, 1954 and that there were no special circumstances for excusing the delay in ,giving the notice.
The appellant has filed the present appeal after obtaining a certificate from the High Court under article 133 ( 1 ) (a) and (b) of the Constitution.
The appellant neglected to make the application for renewal of the lease within the stipulated time.
Mr. Chagla has submitted that the time is not of the essence of the contract having regard to sec.
55 of the Indian Contract Act, 1877 as interpreted in the case of Jamshed Khodaram Irani vs Durjorji Dhunjibhai(1).
Section 55 of the Indian Contract Act provides that "when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified time, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the (1) L.R. 43 I.A. 26.
241 parties was that time should be of the essence of the contract.
" In Jemshed 's case(1) Viscount Haldane observed that the section did not lay down any principle as regards contracts to sell land in India different from those which obtained under the law of England.
It is well known that in the exercise of its jurisdiction to decree specific performance of contracts the Court of Chancery adopted the rule, especially in the case of contracts for the sale of land, that stipulations .as to time were not to be regarded as of the essence of the contract unless they were made so by express terms or unless a clear indication of a contrary intention appeared from the nature of the contract or the surrounding circumstances.
In his well considered judgment Viscount Haldane carefully refrained from saying that time was not to be regarded as of the essence in all contracts relating to land.
At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed as conditions precedent.
Equity followed the common law rule in respect of such contracts and did not regard the stipulation as to time as not of the essence of the bargain.
As stated in Halsbury 's Laws of England, 3rd ed., vol. 3, article 281, p. 165 "An option for the renewal of a lease, or for the purchase or re purchase of property, must in all cases be exercised strictly within the time limited for the purpose, otherwise it will lapse.
" This passage was quoted with approval by Danckwerts L.J. in Hare vs Nicoll(2).
A similar statement of law is to be found in Foa 's General Law of Landlord and Tenant, 8th article 453, p. 310, and in Hill and Redman 's Law of Landlord and Tenant, 14th ed., p. 54.
The reason is that a renewal of a lease is a privilege and if the tenant wishes to claim the privilege he must do so strictly within the time limited for the purpose.
With regard to equitable relief against the failure of the tenant to give notice of renewal within the stipulated time.
the law is accurately stated in Halsbury 's Laws of England, 3rd ed.
,vol. 23, p. 626, article 1329, footnote (u) thus : "Relief will not be given in equity against failure to give notice in time, save under special circumstances.
The decided cases show that in such cases relief is not given in equity save upon the ground of unavoidable accident, fraud, surprise, ignorance not wilful or inequitable conduct on the part of the lessor precluding him from refusing to give the renewal.
The limits of the equitable interference in such cases were clearly stated by the Master of the Rolls (Sir R.P.Arden) in Eaton vs Lyon.(3) He observed : "At law a covenant must be strictly and literally performed; in equity it must be really and substantially (1) L.R.43 I.A.26 (2) 145.
(3) ; , 692 3=695 6 30 E.R. 1223, 1224,1225 6. 242 performed according to the true intent and meaning of the parties so far as circumstances will admit; but if unavoidable accident, if by fraud, by surprise or ignorance not wilful, parties may have been prevented from executing it literally, a Court of Equity, will interfere; and upon compensation bei ng made, the party having done everything in his power, and being prevented by means, I have alluded to, will give relief .
I decide this case upon the principles on which, Lord Thurlow decided (Bayley vs The Corporation of Leominster , and I hope now, it will be known, that it is expected, these covenants shall be literally performed where it can be done; and that Equity will interpose, and go beyond the stipulations of the covenant at law, only where a literal performance has been prevented by the means, I have mentioned, and no injury is done to the lessor? ' We are of the opinion that the stipulation as to time in clause 3 (c) of .the indenture of lease dated February 17, 1954 should be regarded as of the essence of the contract.
" The appellant not 'having exercised the option of renewal within the time limited by the 'clause is not entitled to a renewal.
The appellant claims relief against the consequences of its default on the grounds enumerated in paragraphs 13 and 14 of the plaint.
Grounds (b) and (e) cannot be regarded as special circumstances.
to ground (d), it is.
not shown that the service station is of immense public utility.
The fact that the appellant constructed a service station is an irrelevant consideration.
Ground (c) is not established and it is not 'shown that the time is not of the essence of the bargain.
As to ground (a) there is some evidence to show that the delay in giving the notice of renewal was due to oversight.
But it is not shown that the delay was due to any unavoidable accident, excusable ignorance, fraud or surprise.
The delay arose from mere neglect on the part of the appellant and could have been avoided by reasonable diligence.
As observed 'by the Master of the Rolls in Reid & Anr.
vs Grave & Others(1): "The rule is now well established, that no accident will entitle a party to renew unless it be unavoidable.
I am of opinion, that nothing but accident, which, could not have been avoided by reasonable diligence, will entitle the plaintiff to a renewal in this Court.
" We may add that where no time is fixed for the purpose, an application for renewal for the lease may be made within a reasonable time before the expiry of the term (see Foa 's General Law of Landlord & Tenant, 8th ed., article 455, pp.
311 12, Ram Lal (1) , 248.
243 Dubey vs Secretary of State for India (1), Maharani Hemanta Kumari Devi vs Safatulla Biswas & Ors.(2).
In the present case, the lease fixes a time within which the application for renewal is to be made.
The time so fixed is of the essence of the bargain.
The tenant loses his right unless he makes the application within the stipulated time.
Equity will not relieve the tenant from the consequences of his own neglect which could well be avoided with reasonable diligence.
The appeal is dismissed with costs.
Y.P Appeal dismissed.

summary:
The respondent leased to the appellant a plot of land for a certain period and stipulated in the lease deed that the appellant would give notice of renewal of the lease within a certain time.
The appellant made the request for renewal of the lease 12 days after the time fixed.
The respondent asked the appellant to vacate the premises stating, that the request being made out of time, was ineffective.
The appellant flied a suit for a declaration that he was entitled to the renewal, and stated that the delay in making the request he excused as (a) it was due to oversight; (b) the respondent had not altered her position for the worse or to her detriment within the space of 12 days; (c) neither party had treated the matter of time as being as the essence of the transaction; (d) the appellant had constructed a service station for petroleum products of immense utility to the public of the locality; and (e) the appellant was in possession of the land.
The Court dismissed the suit, and this decision was affirmed in appeal.
Dismissing the appeal, this Court, .
HELD: The lease fixed a time within which the application for renewal was to be made.
The time so fixed was of essence of the bargain.
The tenant lost his right unless he made the 'application within the stipulated time.
Equity will not relieve the tenant from the consequences of his own neglect which could well be avoided with reasonable diligence.
At common law stipulations as to time in a contract giving an option for renewal of a lease of land were considered to be of the essence of the contract even if they were not expressed to be so and were construed conditions precedent.
Equity followed the common law rule in respect of such contracts and did not regard the stipulation as to time as not of the essence of the bargain, the reason being that a renewal of a lease is a privilege and if the tenant wishes to claim the privilege; he must do so strictly within the time limited for the purpose.
[241 D, E] With regard to equitable relief against a failure of the tenant to give notice of renewal within the stipulated time the relief cannot be given in equity save under special circumstances such as unavoidable accident, fraud, surprise, ignorance,, not wilful or inequitable conduct on the part of the lessor precluding him refusing to give the renewal.
[241 F] Grounds (b) *and (e) stated for the delay could not be regarded as special circumstances.
As to ground (d) it was not shown that the service station was of immense public utility.
The fact that the appellant constructed a service station was an irrelevant consideration.
Ground (c) was not established and it was not shown that the time was not the essence of the bargain.
As to ground (a) there was some evidence to show that the delay in giving the notice of renewal was due to oversight.
But it was not shown that the delay was due to any unavoidable 239 accident, excusable ignorance, fraud or surprise.
The delay arose from mere neglect on the part of the appellant and could have been avoided by reasonable diligence.
[242 E] Jamshed Khodaram Irani vs Durjorji Dhunjibhai, L.R. 43 I.A. 26, PIrate vs Nicoll , 145; Eaton vs Lyon ; ,692; Reid & Anr.
vs Grave & Ors. , 248, Ram Lal Dubey vs Secretary of State for India,, 39 C.L.J. 314 and Maharani Hemanta Kumari Devi vs Safatulla Biswas & Ors. , referred to.


judgement:
Civil Appeal No. 14 of 1968.
Appeal from the judgment and decree, dated December 12, 1964 of the Allahabad High Court in F.A.F.O. No. 401 of 1963.
R.M. Hazarnavis, K.L. Hathi and Atiqur Rehman, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
By a contract, dated March 8, 1945, the appellant agreed to supply meat to the Government of India.
The contract contained an arbitration clause for reference of disputes arising out of the contract to the officer named in the contract.
The appellant claims that a sum of Rs. 8,38,994/10/6/ is due to him in respect of the supplies of meat made by him during the period between April 1, 1945 and March 31, 1946.
He made representations to.
the Government for payment and for arbitration of the disputes.
On or about July 10, 1958 the Government refused to.
refer the matter to.
arbitration.
On July 11, 1961 the appellant filed an application in the Court of the District Judge, Jhansi, under sections 8 and 20 of the for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the Court.
The respondent contended that the application was barred by limitation.
The District Judge allowed the application.
He held that there was no period of limitation for making an application under sections 8 and 20.
The defendant filed an appeal against the order.
The High Court dismissed the appeal as incompetent in so far as it challenged the order under section 8, and allowed it in so far as it challenged the order under section 20.
The High Court held that the application was governed by article 181 of the Indian Limitation Act, 1908 and was barred by limitation as it was made more than three years after the disputes had arisen.
The appellant has filed this appeal after obtaining a certificate from the High Court.
The point in issue is whether an application under section 20 of the is governed by article 181 of the Indian L2Sup.
CI 69 16 234 Limitation Act.
Since the decision in Bai Manekbai vs Manekli Kavasji(1) it is well settled that the operation of article 181 is limited to applications under the Code of Civil Procedure.
In that case Westropp, C.J. after referring to the corresponding article 178 in the second schedule to the Limitation Act of 1877 observed: "An examination of all the other articles in the second schedule relating to "applications", that is to say of the Third division of that schedule, shows that the applications therein contemplated are such as are made under the Code of Civil Procedure.
Hence it is natural to conclude that the applications referred to in Article 178 are applications ejusdem generis, i.e., applications under the Code of Civil Procedure.
The preamble of the Act, moreover, purports to deal with 'certain applications ' only, and not with all applications.
" This decision was followed in numerous cases and was approved in Hansraj Gupta vs Official Liquidator Dehra Dun, Mussourie Electric Tramway Company(2).
Having regard to these decisions, Das, J. said in Shah Mulchand & Co., vs Jawahar Mills Ltd. (3): "This long catena of decisions may well be said to have as it were, added the word 'under the Code ' in the first column of that Article=." The Court held that the amendment of articles 15 8 and 178 and the insertion of the words "under the " in place of the words "under the Code of Civil Procedure, 1908" did not alter the settled meaning of article 181.
To the same effect is the decision in Bombay Gas Ca.: vs Gopal Bhiva.(4) Following these decisions the Court held in Wazirchand Mahajan & Anr.
vs Union of India(5) that an application under section 20 of the not being an application under the Code of Civil Procedure was not governed by article 181.
The High Court has come to the conclusion that an application under section 20 of the is governed by article 181 for the following reasons: Article 181 should be construed as if the words "under the Code" were added in it.
The repealed paragraph 17 of the second schedule to the Code and re enacted it in section 20 with minor modifications.
That being so, section 8(1) of the applied and the implied reference in article 181 to paragraph 17 of the second schedule to the Code should be construed as a reference to section 20 of the .
No different intention is to be found in the and there is nothing to indi (1) Bom.
213, 214.
(2) [1933] L.R. 60 I.A.13, 20.
(3) ; ,371.
(4) ; (5) ; 235 cate that an application under section 20 can be made at any time without any limitation.
The argument that the implied reference in article 181 to paragraph 17 of the second schedule to the Code should be construed as a reference to section 20 of the and not raised and considered in Wazirchand Mahalan 's case(1).
It is, therefore, our duty to examine this contention.
Section 8 (1) of the corresponds to the Interpretation Act, 1889 (52 & 53 vict.
c. 63) and runs as follows: "Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed, shall, unless a different intention appears, be construed as references to the provision so reenacted.
" The section embodies the rule of construction that where the provision of an Act is repealed and re enacted with or without modification, a reference to the repealed provision in any other enactment should be regarded as a reference to the provision re enacted in the new form unless it appears that the legislature had a different intention.
The was passed with a view to consolidate and amend the law relating to arbitration.
Formerly the general law relating to arbitration was to be found in the Indian Arbitration Act, 1899 and the Code of Civil Procedure, 1908.
Paragraphs 1 to 16 of the second schedule to the Code applied to all arbitrations in suits.
As to arbitrations otherwise than in suits, the Indian Arbitration Act, 1899 applied to cases where, if the subject matter submitted to arbitration were the subject of a suit, the suit could be instituted in a Presidency town; in other cases, the Code of Civil Procedure, 1908 applied The repealed both the enactments.
It extends to the whole of India except the State of Jammu and Kashmir, and save as provided in section 47 applies to all arbitrations.
As to the provisions of the new Act under which applications can be made to Court, sections 8, 14, 16, 28 and 30, correspond to provisions which are found in both the repealed enactments, sections 5 and 9 correspond to similar provisions in the Indian Arbitration Act, 1899, and sections 15 and 20 correspond to similar provisions in the second schedule to the Code and some sections such as sec.
11, are entirely new.
In the circumstances, a question may arise whether the provisions of the new Act can be regarded as reenactments of the repeated provisions of the Indian Arbitration Act, 1899 or of the Code.
But for the purpose of this case we shall ,assume that section 20 of the new Act is a re enactment with (1) ; 236 modification of paragraph 17 of the second schedule to the Code.
We shall also assume that article 181 of the Limitation Act as construed by the Courts should be regarded as containing a reference to the Code of Civil procedure including paragraph 17 of the second schedule thereof.
Even after making those two assumptions it appears to us that the implied reference in article 181 to the Code of Civil Procedure cannot be construed as a reference to the .
Before their amendment by the Indian , article 158 of the Limitation Act applied to applications "under the Code of Civil Procedure, 1908 to set aside an award" and article 178 applied to applications.
"under the same Code for the filing in Court of an award".
The amended articles 158 and 178.
The amended article 158 applies to applications "under the to set aside an award or to get an award remitted for consideration", that is to say, to application under sections 16 and 30 of the Act.
The amended article 178 applies to applications "under the for the filing in Court of an award", that is to say to applications under section 14 of the Act.
In amending articles 158 and 178 the legislature acted upon the view that the references to the Code of Civil Procedure, 1908 in the second schedule t9 the Limitation Act could not in the absence of the amendment be construed as references to.
At the same time the legislature refrained from amending article 181 and providing that the article will apply to other applications under the .
It is manifest that the legislature intended that save as provided in articles 158 and 178 there would not be any limitation for other applications under the Act, Take the case of an application under section 28 of the Act for enlargement of the time for making the award.
A similar application under paragraph 8 of the second schedule to the Code was governed by article 181,but a like application under section 12 of the Indian Arbitration Act,1899 was not subject to any period of limitation.
There is nothing to indicate that for the purpose of limitation section 20 of the new Act should be regarded as a re enactment of the corresponding provision of the.
Code and not of the Indian Arbitration Act, 1899.
An application under section 8 of the new Act corresponding to paragraph 5 of the second schedule to the Code and section 8 of the Indian Arbitration Act, 1899 stand on the same footing.
In the circumstances, it is not possible to construe the implied reference in article 181 to the Code of Civil Procedure as a reference to the , or to hold that article 181 applies to applications under that Act.
The rule of construction given in section 8 (1) of the cannot be applied, as it appears that the legislature had a different intention.
It follows that an application under sections 8 and 20 of the is not 237 governed by article 181.
The Limitation Act does not prescribe any period of limitation for such an application.
It follows that the present application under sections 8 and 20 is not barred by limitation.
In conclusion we must observe that the appellant 's claim relates to supplies during the period between April 1, 1945 and March 31, 1946.
There is a serious contention whether the claim is barred by limitation.
It will be the duty of the arbitrator to consider this matter carefully and to decide whether or not the claim is so barred.
In the result, the appeal is allowed, the order of the High Court is set aside and the order of the District.
Judge, Jhansi, is restored.
In the circumstances of the case, there will be no order as to costs in this Court.
G.C. Appeal allowed.

summary:
The appellant entered into a contract with the Government of India.
The contract contained an arbitration clause.
For certain supplies made under the contract the appellant made representations to the Government or payment and for arbitration of disputes.
On or about July 10, 1958 Government refused to refer the matter for arbitration.
On July 11, 1961 the appellant flied an application in the Court of the District Judge under sections 8 and 20 of the , for filing the arbitration agreement and for an order of reference of the disputes to an arbitrator appointed by the court.
The respondent contended that the application was barred by Limitation.
The District Judge allowed the application, holding that there was no limitation for making an application under sections 8 and 20.
The defendant 's appeal was dismissed by the High Court as incompetent in so far as it challenged the order under section 8 but was allowed in so far as it challenged the order under section 20.
The High Court held that an application under section 20 is governed 'by article 181 of the Indian Limitation Act, 1908.
In coming to this conclusion the High Court took into account the settled judicial view that the.
operation of article 181 is limited to applications under the Code of Civil Procedure.
and reasoned as follows: Article 181 should be construed as if the words 'under the Code ' were added in it.
The repealed paragraph 17 of the second schedule to the Code and re enacted it in section 70 with minor modifications.
That being so section 8(1) of the applied and the implied reference in article 181 to paragraph 17 of the second schedule to the Code should be construed as a reference to section 20 of the .
Appeal against the High Court 's judgment was filed with certificate.
HELD: The 'appeal must be allowed.
By the the Legislature amended articles 158 and 178 of the Limitation Act and made them applicable to the relevant proceedings under the but no similar change was made in article 181.
It is manifest that save as provided in articles 158 and 178 there would not be any limitation for other applications under the Act.
Further there is nothing to indicate that for the purpose of limitation section 20 of the 1940 Act should be regarded as a re enactment of the corresponding provision of the Code and not of the Indian Arbitration Act, 1899.
[236 D G] In the circumstances it is not possible to construe the implied reference in article 181 to the Code of Civil Procedure as a reference to the or to hold that article 181 applies to applications under that Act.
The rule of construction given in section 8(1)of the cannot be applied, as it appears that the legislature had a 233 different intention.
It follows that an application under sections 8 and 20 of the is not governed by article 181.
The Limitation Act does not prescribe any period of limitation for such an application.
[236 G H] The present application under sections 8 and 20 was therefore not barred by limitation.
[237 A] Bai Manekbai vs Manekji Kavasji, Born.
213, 214 Hansraj Gupta vs Official Liquidator Dehra Dun Mussourie Electric Tramway Company, (1933) L.R. 60 I.A. 13, 20, Shah Mulchand & Co. vs Jawahar Mills Ltd. ; , 371, Bombay Gas Co. vs Gopal Bhiva, ; and Wazirchand Mahajan & Anr.
vs Union of India, ; , referred


judgement:
Civil Appeal No. 793 of 1966.
Appeal by special leave from the judgment and order dated August 21, 1964 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 353 of 1963.
M.N. Phadke, Naunit Lal and B.P. Singh, for the appellant.
D.D. Verma and Ganpat Rai, for respondent No. 1.
The Judgment of the Court was delivered by Shelat, J.
This appeal, by special leave, is directed against the order of the High Court of Bombay (Nagpur Bench) which set aside the orders of the Assistant Commissioner of Labour and the Industrial Court, Nagpur and remanded the case to the Assistant Commissioner.
The appellant firm conducts a number of bidi factories at various places in Vidharba including the one at Kamptee.
Its head office is also situate there.
The factory at Kamptee and the head office have always been treated as separate entities though owned by the same firm.
Consequently, the head office was registered under the Central Provinces & Berar Shops and Establishment Act, 1947 and the factory at Kamptee was registered under the Factories Act.
The factory has also its own standing orders certified under the Central Provinces & Berar Industrial Disputes Settlement Act, 1947.
Respondent 1 was originally employed in the factory at Kamptee.
Two or three years thereafter he was directed to work at the head office and worked therein for about six years prior to the impugned order of dismissal passed against him by the munim of the head office.
Aggrieved by the order he flied 274 an application under section 16 of the C.P. & Berar Industrial Disputes Settlement Act alleging that the said order was incompetent and illegal.
The appellant firm contended that at the material time Respondent 1 was employed as a clerk in the head office, that the head office was a separate entity, that the dismissal order had not been passed 'by the appellant firm as the owner of the said factory, that the firm, as such owner, was wrongly impleaded and that the application was misconceived.
The Assistant Commissioner dismissed the application holding that Respondent 1 at the material time was not the employee in the factory, but was employed in the firm 's head office.
He relied on the fact that the head office and the factory had separate rules, that Respondent 1 used to sign his attendance in the register of the head office, that he was being paid his salary by the head office, and lastly, that his name was not on the muster roll of the factory.
He also found that whereas the staff of the head office was governed by the C.P. & Berar Shops & Establishments Act, the factory was governed by the C.P. & Berar Industrial Disputes Settlement Act.
Against the dismissal of his ,application, Respondent 1 filed a revision application before the Industrial Court, Nagpur.
The Industrial dismissed the application holding that the only question raised before it was whether Respondent 1 was the employee of the head office and that that being purely a question of fact, he could not interfere with the finding of fact arrived at by the Assistant Commissioner.
Respondent 1 thereafter filed a writ petition in the High Court challenging the said orders.
The High Court held that it was possible in law for an employer to have various establishments where different kinds of work would be done, in which case an employee in one establishment would be liable to be transferred to another establishment.
But the High Court observed that unless it was established that the employment of Respondent 1 in the factory was legally terminated it could not be assumed, merely because he was directed to work in the head office, that his employment was changed and the head office was substituted as his employer in place of the said factory.
As the order passed by the Assistant Commissioner was not clear on this question, the High Court remanded the case for disposal according to law.
Mr. Phadke for the appellants, raised the following contentions against the High Court 's order: (1) that the High Court made out a new case for Respondent 1, in that Respondent 1 had never challenged the validity of the order of dismissal on the ground that there was no change of employment, and that therefore, the head office was incompetent to order his dismissal, (2) that the facts of the case justified the conclusion that Respondent 1 had ceased to be the employee of the factory, and (3) that in any event he must be held to have given an implied consent to 275 his being treated as the employee of the head office.
In support of these contentions he relied upon the fact that Respondent 1 had worked at the.
head office for the last six years without any protest, that his name was on the attendance register of the head office, that it was the head office which paid his salary, and lastly, that he worked in the head office under the direction and control of the munim of that office.
As to the first contention, it would not be correct to say that the High Court made out a new case for the first time for Respondent 1 which was not pleaded by him before the Assistant Commissioner.
In para 1 of his application he had expressly averred that about three years after his employment in the factory he had been ordered to work in the head office.
In reply to the application the appellants conceded that though Respondent 1 was first employed in the factory and had worked there for about three years, he had thereafter been transferred to and been working as a clerk in the head office.
There was, however, no averment in that reply that the contract of service of Respondent 1 with the said factory was at any time put an end to or that when he was directed to work in the head office a fresh contract of service was entered into.
between.
him and the head office.
The Assistant Commissioner in his said order held that the head office and the factory were two separate establishments registered under two different Acts, and, therefore, subject to different provisions of law.
He further held that since Respondent 1 was not actually working in the factory and his name did not figure in the factory 's muster roll and was not paid his wages by the factory, the applicant could not be said to be an employee of the said factory.
In his revision application before the Industrial Court, Respondent 1 made an express plea that when he was directed to work in the head office, he had received no notice from the factory that his services were terminated there or that he had henceforth become the employee of the head office.
It is clear from these pleadings that it was not for the first time in the High Court that Respondent 1 contended as to the incompetence of the head office to take disciplinary action against him and to pass the order of dismissal.
The first contention of Mr. Phadke, therefore, cannot be accepted.
As regards the second and the third contentions, there is no dispute that though the head office and the said factory belong to the same proprietors, they were always treated as two distinct entities registered under two different Acts, that Respondent 1 was employed first in the factory where he worked for 2 or 3 years and was thereafter ordered to work at the head office where admittedly he worked for about six years before the impugned order terminating his services was passed.
The question, therefore, which the Assistant Commissioner and the Industrial Court had to decide, in view of the pleadings of the parties, was whether 276 Respondent 1 had ceased to be the employee of the factory and was in the employment of the head office at the time when the impugned order was passed, or whether his services were simply lent to the head office and he continued all along to be the employee of the factory ? The general rule in respect of relationship of master and servant is that a subsisting contract of service with one master is a bar to service with any other master unless the contract otherwise provides or the master consents.
A contract of employment involving personal service is incapable of transfer.
Thus, where a businessman joins a partnership firm and takes his personal staff with him into the firm, his staff cannot be made the staff of the firm without the consent of the other partners.
Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd.(1).
In certain cases, however, it is.
possible to say that an employee has different .employers, as when the employer, in pursuance of a contract between him and a third party, lends or hires out the services of his employee to that third party for a particular work.
Such an arrangement, however, does not effect a transfer of the contract of service between the employer and his employee, but only amounts to a transfer of the benefit of his services.
Century Insurance Co. Ltd. vs Northern Ireland Road Transport Board(").
In such cases where a third party engages another person 's employee it is the general employer who is normally liable for the tortuous acts committed by the employee and his liability is not affected by the existence of a contract between him and the third party under which the services of the employee are lent or hired out for a temporary period to such third party.
In order to absolve the employer from the liability and to make the person who.
temporarily engages the employee or hires his services it is necessary to prove that the relationship of master and servant was temporarily constituted between such third party and the employee, and that it existed at the time when the tortuous act was committed by the employee.
There is, however, a presumption against there being such a transfer of an employee as to make the hirer or the person on whose behalf the employee is temporarily working and a heavy burden rests on the party seeking to establish that the relationship of master and servant has been constituted pro hac vice between the temporary employer and the employee of.
Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd.(1).
In cases where an employer has hired out or lent the services of his employee for a specific work and such an employee has caused damage to another person by his tortuous act, the question often arises as to who of the two, i.e. the employer or the person to whom such services are hired out or lent, is ; at 17.
(2) ; 277 vicariously responsible for such damage.
In cases commonly known as cranes and carriage cases, courts in England evolved the rule of the employee being temporarily the employee of such third party to impose the responsibility on him if it was established that in the matter of the act, in the performance of which the tortuous act was committed, such third party had exercised control and direction over the performance of the act in question and the manner in which it was to be performed.
The classic case commonly cited and in which this rule was applied is Quarman V. Burnett (1) of.
also Jones vs Scullard(2) where Lord Russel applied the test of the power to, direct and control the act in performance of which damage was caused to another person.
The position in law is, therefore, clear that except in the case of a statutory provision to the contrary, a right to the service of an employee cannot be the subject matter of a transfer by an employer to a third party without the employee 's consent.
Thus, in Nokes vs Doncaster Amalgamated Collieries, Ltd. (3) where an order was made under section 154 of the Companies Act, 1929 transferring all the assets and liabilities of a company to another company.
Viscount Simon held that such an order did not mean that contracts of service between the appellant and the transferer company also stood transferred.
The principle that even in cases where the services of an employee are lent to a third party temporarily for a particular work, the employee still remains the employee of the employer is illustrated in Denham vs Midland Employees Mutual Assurance Ltd.(4).
There Eastwoods Ltd. employed Le Grands to make test borings on their property.
Le Grands provided two skilled drillers with plant and tackle to carry out the borings and Eastwoods Ltd. agreed to provide one of the labourers, one Clegg to assist those skilled men free of charge to Le Grands.
While the said work .was being carried out, Clegg was killed in circumstances in which Le Grands were liable to pay damages to his widow on the ground that his death was caused on account of the negligence of Le Grands or their servants.
Le Grands sought to be indemnified by their insurers against their said liability.
They were covered by two policies, one with the Midland Employers Mutual Assurance Ltd. in respect of their liability to the employees and the other with Lloyds in respect of their liability to the public in general.
The policy issued by the Midland Employers Mutual Assurance Ltd. provided that if any person "under a contract of service" with the insured were to sustain any personal injury by accident caused during the period of employment, and if the insured became liable to pay damages for such injury the association would indemnify the insured against all sums for which he would be so liable.
The policy issued by the Lloyds indemnified Le Grands for any sums for which they might become liable to (1) ; (2) (3) [1940] 3 All England Law Reports 549.
(4) [1955] 2 Q.B.437.
278 pay in respect of death or accidental bodily injury to persons and loss or damage to.
property arising in or out of the business of borings carried out by Le Grands.
The question was whether at the time of his death Clegg was the servant of Le Grands and under "a contract of service" with them as provided in their policy with the Midland Assurance Ltd. Dealing with that question, Denning, L.J. observed that the difficulty which surrounded such a subject arose because of the concept that a servant of a general employer may be transferred to a temporary employer so as to become for the time being his .servant.
Such a concept was, he said, a very useful device to place liability on the shoulders of the one who should properly bear it, but did not affect the contract of service itself.
No contract of service can be transferred from one employer to another without the servant 's consent and such consent is not to be raised by operation of law but only by the real consent in fact of the man express or implied.
He further observed: "In none of the transfer cases which has been cited to us had the consent of the man been sought or obtained.
The general employer has simply told him to go and do some particular work for the temporary employer and he has gone.
The supposed transfer, when it takes place, is nothing more than a device a very convenient and just device, mark you to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation.
It only applies when the servant is transferred so completely that the temporary employer has the right to.
dictate, not only what the servant is to do, but also how he is to do it.
" Applying these principles to the facts before him, he observed that he had no doubt that if a third person had been injured by the negligence of Clegg in the course of his work, Le Grands and not Eastwoods would be liable to such third person.
also, when Clegg himself was killed, Le Grands were liable to his widow on the same footing that they were his masters and not merely invitors.
These results were achieved in law by holding that Clegg became the temporary servant of Le Grands.
He further observed that there was no harm in thus describing him so long as it was remembered that it was a device designed to cast liability on the temporary employer.
However, on the question whether Clegg was "under a contract of service" with Le Grands, he held that he was not, for his contract of service was with Eastwoods.
They had selected him and paid his wages and they alone could suspend or dismiss him.
Clegg was never asked to consent to a transfer of the contract of service and he never did so.
If he was not paid his wages or if he was wrongfully dismissed from 279 the work, he could sue Eastwoods for the breach of contract and no one else.
If he failed to turn up for work, Eastwoods alone 'could sue him.
He could, therefore, see no trace of a contract of service with Le Grands except the artificial transfer raised by law so as to make Le Grands liable to others for his faults or liable to him for their own faults and that the artificial transfer so raised cannot be said to be a contract of service within the said policy of assurance.
Le Grands, therefore, were not entitled to 'be indemnified by the Midland Assurance Company under the employers ' liability policy but were entitled to be indemnified by Lloyds under their public liability policy.
A contract of service being thus incapable of transfer unilaterally, such a transfer of service from one employer to another can only be affected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to make a new contract between the employee and the third party.
Therefore, so long as the contract of service is not terminated, a new contract is not made as aforesaid and the employee continues to be in the employment of the employer.
Therefore, when an employer orders him to do a certain work for another person the employee still continues to be in his employment.
The only thing that happens in such a case is that he carries out the orders of his master.
The employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired.
It may be that such third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer.
That does not preclude the employee from claiming his wages from the employer.
The hirer may also exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done.
But if the employee fails to carry out his directions he cannot dismiss him and can only complain to the employer.
The right of dismissal vests in the employer.
Such being the position in law, it is of the utmost importance in the present case that the appellants at no time took the plea that the contract of employment with the factory was ever terminated or that the respondent gave his consent, express or implied, to his contract of service being transferred to the head office, or that there was a fresh contract of employment so brought about between him and the head office.
Unless, therefore, it is held from the circumstances relied upon by Mr. Phadke that there was a transfer of the contract of service or that Respondent 1 gave his consent, express or implied, to such a transfer, Respondent 1 would continue to be the servant of the factory.
Since the case has been remanded to the Assistant Commissioner, we refrain from making any observations as regards the effect of the admissions 280 said to have been made by Respondent 1 and relied on by the Assistant Commissioner.
Mr. Phadke, however, relied on Jestamani Gulabrai Dholkia vs The Scindia Steam Navigation Company(1) in support of his contention that there was a transfer of the contract of employment and that it was not a mere transfer of the benefit of the services of Respondent 1.
In that case the appellants were originally in the service of the Scindia Steam Navigation Company.
In 1937 Air Services of India Ltd. was incorporated.
In 1943, the Scindias purchased the ASI and by 1946 ASI became a full fledged subsidiary of the Scindias.
Between 1946 to 1951 the Scindias transferred several of their employees including the appellants to the ASI.
The Scindias had a number of such subsidiary companies and it was usual for them to transfer their employees to such companies and also to recall them whenever necessary.
In 1953, the Government of India decided to nationalise the airlines operating in India with effect from June 1953.
On April 6, 1953 the appellants wrote to the Scindias to recall them to their original posts but the Scindias refused to do so as they were not in a position to absorb them.
They pointed out that a Bill, called the Air Corporation Bill, 1953, was pending before Parliament, that under cl. 20 thereof persons working with ASI on the appointed day would become the employees of the Corporation, that under that clause they had the option to resign if they did not wish to join the Corporation and that if the appellants exercised that option.
the Scindias would treat them as having resigned from their service.
The Act was passed on May 28, of the Act provided that every employee of an existing air company employed by such company prior to July 1, 1952 and still in its employment immediately before the appointed day, shall, in so far as such employee is employed in connection with the undertaking which has vested in the Corporation by virtue of the Act, become, as from the appointed date, the employee of the Corporation in which the undertaking has vested.
On june 8, 1953 the appellants made a demand that if the Corporation were to retrench any persons from the staff loaned to ASI within the first five years, the Scindias should take them back.
The Scindias refused.
None of the appellants had exercised the option provided by section 20 (1 ).
On August 1, 1953 ASI became vested in the Corporation and section 20( 1 ) came into force as from that date.
The appellants contended inter alia that the contract of service between them and the Scindias was not transferable.
The contention was rejected on the ground that by reason of section 20(1) the contract of service of the appellants stood transferred to the Corporation and that though the appellants were not originally recruited by ASI and were transferred by the Scindias to the said company, (1) ; 281 they were the employees of ASI and were such employees on the appointed day and since they had not exercised the option under section 20( 1 ) they became the employees of the Corporation by operation of that provision.
The Scindias, therefore, were no longer concerned with them.
It is true that the appellants were transferred to ASI on condition that they would receive the same remuneration and other benefits as they were getting in the Scindias and further that it was possible to contend that Scindias alone could dismiss them.
But the learned Judges explained that these were special terms applicable to the appellants.
But in spite of them they still had become the employees of the ASI and were such employees on the appointed day.
It seems that this conclusion was reached on the footing that since ASI was the subsidiary company of the Scindias like several other subsidiary companies, and it was.
usual for the Scindias to transfer any of their employees to such subsidiary companies, the appellants on their transfer were deemed to have consented to become the employees of ASI in spite of the right of the Scindias to recall them whenever necessary and further that the appellants continued to be and were the employees of the ASI on the appointed day and were, therefore, governed by section 20(1 ) if the Act.
It is clear that this was a case of employees becoming the employees of the Corporation by virtue if the operation of a statute.
The decision, therefore, is not an authority for the proposition that an employer can transfer his employee to a third party without the consent of such employee or ' without terminating the contract of employment with him.
That being the position, the case of Jestamani vs The Scindia Steam Navigation(x) cannot assist Mr. Phadke.
In our view the High Court was, right in setting aside the order of the Assistant Commissioner and the Industrial Court on the ground that unless a finding was reached on the facts of the case that the contract of service with the said factory came to an end and a fresh contract with the head office came into being Respondent 1 continued to be in the employment of the factory and the head office, therefore, was not competent to dismiss him.
The appeal, therefore, fails and is dismissed with costs.
G.C. Appeal dismissed.

summary:
The appellant firm had a number of factories including one at Kamptee in Vidharba.
Its head office was also situated there,.
The factory at Kamptee and the head office were treated as separate establishment.
the factory being registered under the Factories Act and the Head Office under the C.P. and Berar Shops and Establishments Act, 1947.
Respondent No. 1 was originally employed at the aforesaid factory but later he was directed to work at the head office.
When the Head Office dismissed him from service he challenged the order of dismissal by an application under section 16 of the C.P. & Berar Industrial Disputes settlement Act.
The Assistant Commissioner dismissed the application holding that Respondent No. 1 at the material time was not an employee of the factory but was employed in the Head Office.
The Industrial Court refused, in revision, to interfere with the Assistant Commissioner 's order.
Respondent No. 1 filed a writ petition under article 226 of the Constitution.
The High Court observed that unless it was established that the employment of Respondent No. 1 in the factory was legally terminated it could be assumed merely because he was direct to work in the head office, that his employment was changed and the head office was substituted as his.
employer in place of the said factory.
, As the order passed by the Assistant Commissioner was not clear on this question the High Court remanded the case for disposal according to law.
The firm appealed to this Court.
HELD: (i) A contract for service is incapable of transfer unilaterally.
Such a transfer of service from one employer to another can only be effected by a tripartite agreement between the employer, the employee and the third party, the effect of which would be to terminate the original contract of service by mutual consent and to.
make a new contract between the employee and the third party.
So long as the contract of service is not terminated, a new contract is not made as aforesaid, and the employee continues to be in the employment of the employer.
Therefore, when an employer orders him to: do certain work for another person the employee still continues to be i.n his employment.
The only thing that happens in such a case is that he carries out the orders of his master.
employee has the right to claim his wages from the employer and not from the third party to whom his services are lent or hired.
It may be that such a third party may pay his wages during the time that he has hired his services, but that is because of his agreement with the employer.
that does not preclude the employee from claiming his wages from the employer.
the hirer may also.
exercise control and direction in the doing of the thing for which he is hired or even the manner in which it is to be done.
But if the employee fails to.
carry out his direction he cannot 273 dismiss him and can only complain to the employee.
The 'right of dismissal vests with the employer.
[279 &F] Such being the position in law, in the present case the High Court was right in setting aside the order of the Assistant Commissioner and the Industrial Court on the ground that unless a finding was reached on the facts of the case that the contract of service with the said factory came to an end and a fresh contract with the head office came into being, Respondent No. 1 continued to be in the employment of the factory and the head office therefore was not competent to dismiss him.
[281 F] Mersey Docks and Harbour Board vs Coggins & Griffith (Liverpool) Ltd. ; at 17, Century Insurance Co. Ltd. vs Northern Ireland Road Transport Board, [1942] A.C. 509, Quarman vs Burnett, ; , Jones vs Scullard, , Nokes vs Doncaster Amalgamated Collieries, Ltd. [1940] 3 All England Law Reports 549 and Denham vs Midland Employees Mutual Assurance Ltd., , referred to.
Jestamani Gulabrai Dholkia vs The Scindia Steam Navigation Company ; , distinguished.