GEORGE Vs. DISTRICT MUNSIFF KANJIRAPPALLY

JUDGEMENT

(1.) The petitioner in this writ petition was respondent No. 1 in Election Petition No. 8 of 1963 before the District Munsiff, Kanjirappally. The 2nd respondent here, was the petitioner therein. The petitioner and respondents 2 and 3 were candidates for election from Ward No. 2 of Kuttikkal Panchayat at the election held on 27-11-1963. Respondent No. 3 withdrew his candidature within the time allowed by the rule. In the election the petitioner secured 226 votes and the 2nd respondent 225 votes. The petitioner was therefore declared to be the duly elected member of the panchayat from Ward No. 2. The 2nd respondent filed the election petition questioning the validity of the election of the petitioner on various grounds. That petition was heard and disposed of by the impugned order. By that order it was declared that the election of the Petitioner was invalid, and that the 2nd respondent was duly elected from Ward No. 2 of the Kuttikkal Panchayat as he was found to have secured the majority of votes. Ext. P1 is a copy of the order. The petitioner challenges the validity of this order for the reason that the Tribunal committed an error of law apparent on the face of the record incoming to the conclusion that the 2nd respondent got the majority of the votes. The Tribunal found that two of the votes cast in favour of the 2nd respondent and rejected by the Returning Officer as invalid, were valid votes in his favour and therefore he secured the majority of votes. The reason why the Returning Officer rejected the two votes as invalid was that the voters had affixed the mark on the back of the ballot papers. The Tribunal, on the other hand, found that the two voters really intended to vote for the 2nd respondent as they had made the marks on the symbol of the 2nd respondent even though the marks were made on the back of the ballot papers.

(2.) The point for consideration is whether the Tribunal committed an error of law apparent on the face of the record in holding that the two votes were validly cast in favour of the 2nd respondent. It is seen from the two ballot papers that the voters had affixed the marks on the back of the ballot papers. The symbol of the 2nd respondent in the election was 'horse', and the ballot papers being transparent that symbol is quite visible on the back of the ballot papers. According to the Tribunal, as the voters affixed the marks even though on the back of the ballot papers but against the symbol of the 2nd respondent, that was clear evidence to show that the voters intended to cast the votes in favour of the 2nd respondent. Mr. Velayudhan Nair, appearing for the petitioner, submitted that the view is erroneous in law. He drew my attention to R.41 of the Kerala Panchayats (Election of Members) Rules, 1962. R.41(1) reads:

(3.) It was argued by Mr. Velayudhan Nair that the order of the Tribunal discloses an error of law and that it is immaterial whether it requires an elaborate argument to satisfy the court that such an error exists. In other words, the submission of counsel was that even if it requires long argument to convince the court that there is an error of law, it is nonetheless an error of law apparent on the face of the record and therefore can be corrected in certiorari. Counsel submitted that the proper distinction between an error of law apparent on the face of the record and one not so apparent is that in the one case the error of law can be detected on reading the order by a person instructed in law and that in the other it cannot be so detected because the order does not set forth either the primary facts or the proposition of law on the basis of which the order was passed. The proposition that there is no error of law apparent on the face of the order means either that the reasons stated in the order on the point of law are correct, or that since no reasons are given on the point of law, no error appears on the face of the order. It was submitted that the distinction between an error of law apparent on the face of the record and an error not apparent, is not founded on the distinction between an error which is self evident and an error which requires an elaborate argument to expose it, but on the distinction between an error which can be detected in the order because it is expressed in the order, and one which cannot be detected because the materials for detecting such an error do not appear in the order. It is, no doubt, true that English decisions on certiorari make no distinction between an error of law which is self evident and an error which requires an elaborate argument to detect it if the facts or the proposition of law are set out in the order. The distinction which they make is between a speaking order and an order which is not speaking, a speaking order being one which sets forth the reasons in point of law for supporting the order made, and an unspeaking order being one which contains no reasons in point of law for making it. No error can appear in an unspeaking order as there is no proposition of law set forth in the order of which it can be said that it is erroneous. This does not mean that the order may not, in fact be erroneous in law in the sense that the order may be based on an erroneous proposition of law in the mind of the Tribunal which made the order, but since the error is not expressed in the order itself it does not appear in the order or is not apparent on the face of the order. But an error of law can appear in a speaking order, or is apparent on the face of a speaking order because the order contains reasons in point of law for making it, and it is possible to examine those reasons and decide that they are wrong in law. Reference may be made in this connection to the observations of Lord Summer in R. v. Nat Bell Liquors Ltd. (1922 (2) AC (JC) 128, 156) to show that certiorari will issue when there is a failure to observe the law and that the issue of it is not dependent upon the complicated nature of the argument to detect it.