C ACHUTHA MENON Vs. ELECTION TRIBUNALTRICHUR

JUDGEMENT

(1.) This appeal is against the order by a learned Judge, refusing to admit a petition under Art.226. The appellant had thereby prayed that the order by the Election Tribunal, Trichur, directing scrutiny and recounting of votes, cast at the election of a member to the Legislative Assembly from Irinjalakuda in February 1960 be set aside. The order has been passed on September 19, 1960, and in proceedings arising from an election petition against the appellants election from the aforesaid Constituency. The appellant has been declared elected, because the number of votes in his favour had been found to be 29,069 and the number in favour of the respondent to be 28,708. Therefore, the majority in appellants favour is 361 votes, 567 having been discarded by the Returning Officer as not valid. The respondent has filed an election petition seeking not only to invalidate the appellants election under S.100, but to get himself declared as duly elected, under S.101, of the Representation of the People Act, 1951. That petition is being inquired into by the Election Tribunal, Trichur, and the proceedings are still at the initial stages. Earlier to the application, on which the order challenged before us has been passed, there was another to the Election Tribunal seeking scrutiny and recount of the ballot papers; but that was rejected. Only after the depositions of two persons on behalf of the election petitioner as Pw. 1 and Pw. 2 as well as one on behalf of the appellant as Dw. 1, had been recorded that a fresh petition was filed, repeating the prayer made earlier, that has been allowed, as already stated, on September 19, 1960. That has resulted in the writ petition being filed in this court and the learned Judge has declined to exercise his powers under Art.226 at this stage.

(2.) The appellants learned counsel has taken us through the entire order, and has urged the material, on which the Election Tribunal has ordered the recount, to be not sufficient for passing the order, part of the order to be based on surmises and conjectures, part to have dealt with irrelevant matters, the order to have decided something going to the very root of the dispute, to be causing such embarrassment as would justify even at this stage interference by issuing certiorari. He has, however not disputed that exercise of powers under Art.226 should not be like that of the appellate court and the writ of certiorari is issued on enumerated grounds. It is further well established that the writ is generally not issued where the orders asked to be vacated be on interlocutory applications before the lower tribunals. Therefore in dismissing this appeal we should not be taken as approbating all the conclusions by the Election Tribunal when it passed the order for recount. Indeed some of the conclusions would not be sustained had the exercise of our appellate powers been invoked for vacating the Tribunals order. The question, however, for adjudication in this appeal is whether grounds have been established to justify our interference by writ of certiorari against an order on an interlocutory application; and in deciding the question, the pronouncement of the Supreme Court in Veluswamy v. Raja Nainar, AIR 1959 SC 422 at p. 429 is decisive. We are further fortified by A. Sanjeevi Reddi v. G.C. Kondayya, AIR 1960 A.P. 421 in the view we are taking. It follows that unless the order challenged before us goes to the very root of the election proceeding, as was held in Y.B. Chavan v. Mangalmurthi, AIR 1958 Bom. 397, the writ should not be issued, and we are satisfied that the recount ordered is not such and further evidence will have to be gone into, before the petition can be properly disposed. We, therefore, hold that the first ground on which certiorari can be issued in such cases, does not exist.

(3.) The learned counsel his then urged that though, the Tribunal has the jurisdiction - and we think that in doing so he has made a fair concession - the order for recount should be passed not at the initial stages of the inquiry. The general practice, however, of directing such recount, is otherwise. In this connection, our attention has been drawn to the following passage in Rogers on Elections Vol. II, 20th Edn. pp. 199-200:-