A S SUBBARAJ Vs. M MUTHIAH

JUDGEMENT

(1.) This is an application for the issue of a Writ of Prohibition directing the Election Tribunal, Tirunelveli, not to proceed with the hearing of the Election Petition No. 71 of 1952. At an election held on 16-1-1952 the petitioner A. S. Subbaraj was returned to the Legislative Assembly, Madras, from the Uttampalayam Constituency. The first respondent Muthiah, who was one of the three unsuccessful candidates for the seat, filed on 27-3-1952 a petition under Section 81 of the Representation of the People Act, hereinafter referred to as the Act, for setting aside the election. The Election Commission to which it was presented appointed under Section 86 of the Act an Election Tribunal for the hearing of this petition. Notice of the same was served on the petitioner on 28-9-1952. On 22-10-1952 when the petition came up for hearing before the Election Tribunal the petitioner raised a preliminary objection to its maintainability on the ground that it was not duly verified as required by Section 83 of the Representation of the People Act, 1951, & was, therefore, liable to be rejected 'in limine' under Section 85 of the Act. Section 83(1) of the Act runs as follows:

(2.) The provision of the Civil Procedure Code relating to verification is Order 6, Rule 15 which is as follows:

(3.) In this Court the argument for the petitioner proceeded on somewhat different lines. The contention that was mainly pressed by Mr. K. V. Venkatasubramania Aiyar was that Section 85 cast a duty on the Election Commission to dismiss the petition on the ground that it was not in accordance with Section 83, that its order wider Section 86 appointing an Election Tribunal for trial of the petition was in violation of the statutory duty cast on it under Section 85, that in consequence it had no legal operation and conferred no jurisdiction on the Election tribunal to try the petition and that this court should accordingly issue a Writ of Prohibition directing the Election Tribunal not to proceed with the trial. It will be seen that this in its substance is direct ed not against the order in C. M. P. No. 1 of 1952, but against the action of the Election Commission in not having passed an order of dismissal under S, 85 and in having appointed an Election Tribunal and transferred the petition to it for trial. The question is whether that can be permitted to be done in these proceedings. This is not an application for the issue of a Mandamus to the Election Commission to dismiss the election petition, nor for the issue of a Writ of Certiorari or other appropriate writ for quashing the order tinder Section 86 directing the trial of the petition by the Tribunal; and even if any such writ had been applied for, this court would have had no jurisdiction to issue it against the Election Commission which is at Delhi. On behalf of the petitioner it is argued that though no relief is sought against the Election Commission in this petition, nevertheless, if as he contends the Election Tribunal is not properly seized of the cause and has no jurisdiction to hear it, he is entitled to a writ of prohibition as a matter of right, 'ex debito justitiae' and. he quoted the decisions in -- 'Martin v. Mackonochie', (1878) 3 QBD 730 (A); -' Meckonochie v. Penzance', (1881) 6 AC 424 (B), --'Worthington v. Jaffries', (1875) LR 10 CP 379 (C), -- 'Farquharson v. Morgan', (1894) 1 QB 552 (D) and -' Rex v. North; Ex parte Oakey', (1927) 1 KB 491 (E), in support of this contention. It is unnecessary to discuss these decisions in detail because the position is well- settled and is thus summed up in Halsbury's Laws of England, Vol. 9, page 819, para 1398: "With certain exceptions, the issue of the writ of prohibition, though not of course, is of right and not discretionary, and the superior court cannot reluse to enforce public order in the administration of the law by the denial of a grant of the writ; smalmess of the matter in dispute and delay on the part of the applicant are not themselves grounds for refusal." The decision in 'Re London Scottish Permanent Building Society', (1893) 63 LJ QB 112 at pp. 114-115 (P) was particularly relied on as apposite to this case. There, in the course of winding up of building society a shareholder who had withdrawn his membership applied for the refund of his share money. The Judge referred the claim to the determination of an arbitrator in spite of the opposition of all the parties concerned. One of the questions raised in the case was whether a writ of prohibition could be issued in respect of this matter. In holding that there was an excess of jurisdiction and the writ should accordingly issue. Charles J. observed: