Jamnaprasad Mukhariya v. Lachhiram Ratanmal Jain — 1953 DIGILAW 19 (MP)

JUDGMENT : DIXIT, J. This is an application under Arts.226 and 227 of the Constitution of India for an order to quash a determination of the non-applicant tribunal, whereby if determined that as the applicant had failed to give to the Tribunal a notice of his recriminatory petition within the prescribed time, he was not entitled to give evidence in support of it, and for a direction to the tribunal to receive the evidence that may be tendered by the applicant to prove that the election of the opponents Ramsahai and Sunnulal would have been void if they had been the returned candidates and a petition had been presented calling in question their election. 2. The matter for our consideration arises in this way. At the general election of the Madhya Bharat State Assembly held in January 1952, seven persons were nominated as candidates for election to fill two seats in the Bhelsa constituency. The applicant Jamnaprasad and the non-applicant No.7 Chaturbhuj were declared duly elected. A petition was shortly afterwards lodged with the Election Commission under S.81, Representation of the People Act, 1951 (hereinafter referred to as "the Act") by one of the unsuccessful candidates, namely, Lachhiram opponent No.1, praying for a declaration that the election of the returned candidates was void and that the non-applicants Ramsahai and Sunnulal have been duly elected. The election petition is being tried by a tribunal consisting of Mr. Dongre, the District Judge of Dhar as the Chairman and Mr. Surajbhan, the District Judge of Gwalior and Mr. Bhagwan Swaroop, an Advocate of this Court as members of the Tribunal. On the publication of the election petition under S.90 of the Act in the Official Gazette of 21-8-1952, the applicant Jamnaprasad gave notice to the Tribunal of his intention to lead evidence to prove that the election of Ramsahai and Sunnulal would have been void if they had been the returned candidates, by presenting before Mr. Surajbhan - a member of the Tribunal - at Gwalior a recriminatory petition addressed to the Chairman of the Tribunal. The recriminatory petition was filed on 4-9-1952. Mr. Surajbhan received it and then forwarded it to Mr. Dongre the Chairman of the Tribunal by registered post. Mr. Dongre received the notice on 11-9-1952. Surajbhan - a member of the Tribunal - at Gwalior a recriminatory petition addressed to the Chairman of the Tribunal. The recriminatory petition was filed on 4-9-1952. Mr. Surajbhan received it and then forwarded it to Mr. Dongre the Chairman of the Tribunal by registered post. Mr. Dongre received the notice on 11-9-1952. At the hearing of the election petition the non-applicant Lachhiram took the objection that the recriminatory petition had not been presented within time to the proper authority, namely, the Chairman of the Tribunal. Thereupon the Tribunal framed an issue as to whether the notice of "recrimination" under S.97 of the Act had been presented to the proper authority within time. After hearing the parties on this issue, the Tribunal came to the conclusion that as under the proviso to S.97 read with S.86(5) of the Act notice of "recrimination" was required to be given to the Chairman of the Tribunal within fourteen days from the date of publication of the election petition under S.90, the presentation on 4-9-1952 of the recriminatory petition by the applicant Jamnaprasad to Mr. Surajbhan a member of the Tribunal did not constitute a valid notice to the Chairman of the Tribunal and that when the notice was received on 11-9-1952 by the Chairman per registered post, the time limit prescribed in the proviso to S.97 for giving notice had already elapsed. The Tribunal, therefore, did not permit the applicant; to give any evidence in support of his recriminatory petition. 3. The Tribunal, therefore, did not permit the applicant; to give any evidence in support of his recriminatory petition. 3. In this petition, challenging the correctness of the decision of the Tribunal, the applicant states that inasmuch as the trial of anelection petition commences when it is presented to the proper authority and as the giving of a notice to the Tribunal under S.97 of the Act is a matter to be done after the commencement of the trial, sub-s.(5) of S.86 cannot be applied in construing the meaning of the word 'tribunal' used in S.97; that in relation to S.97 'tribunal' means the Chairman and all the members of the Tribunal; that when a copy of the election petition was served on the applicant under Section 90, the applicant was also given a notice in writing that the petition would be heard on 13-10-1952 at 11 A.M., in Gwalior in the Court Room of the District Judge, Gwalior, and that he should appear on this date either in person or through his pleader and file his reply to the petition, on or before the date of hearing and that in the event of there being a change in the place of the trial the applicant would be able to obtain the necessary information from the Court of District Judge Gwalior; that after the receipt of this notice there was no change in the place of the trial; that on 4-9-1952 Mr. Surajbhan one of the members of the Tribunal alone was in the Court of District Judge in Gwalior and the Chairman and the other members were not to be found in Gwalior; and that in these circumstances the recriminatory notice presented before Mr. Surajbhan on 4-9-1952 should be "considered to have been validly presented to the proper authority". The applicant's grievance is that the Tribunal has acted without jurisdiction in deciding that the notice of recrimi-nation was not given in time to the proper authority and that "in passing the impugned order the Tribunal has failed to exercise jurisdiction vested in it". 4. Surajbhan on 4-9-1952 should be "considered to have been validly presented to the proper authority". The applicant's grievance is that the Tribunal has acted without jurisdiction in deciding that the notice of recrimi-nation was not given in time to the proper authority and that "in passing the impugned order the Tribunal has failed to exercise jurisdiction vested in it". 4. In the returns filed on behalf of the non-applicants Lachhiram and Ramsahai, the petition is opposed firstly on the ground that under Art.329(b) of the Constitution the Election Tribunal has exclusive jurisdiction to deter-mine whether a notice of recrimination has or has not been validly given and that, therefore, the decision of the Tribunal on merits cannot be challenged before this Court under Art.226 and Art.227 of the Constitution of India. Secondly it is stated that on merits the decision of the Tribunal is in accordance with law; that under S.86(5) of the Act the Chairman of Tribunal is deemed to be the 'tribunal' as respects any matter to be done before the commencement of the trial and as the receipt of the notice of recrimination is a matter anterior to a trial which commences in law only at the stage where the examination and determination of a cause is undertaken by a Tribunal, the notice presented by the applicant to Mr. Surajbhan was not a valid notice to the Tribunal; that the applicant was fully aware of the fact that the office of the Chairman of the Tribunal was in Dhar; and that the fact that the applicant was informed that the election petition would be heard in Gwalior was not relevant in determining the place where matters required to be done before the commencement of the trial should be done. 5. The first question that this case raises, is of some importance. It is whether this Court can enquire into the validity and correctness of the proceedings or orders of the Election Tribunal constituted under the Representation of the People Act, 1951. The question turns upon the construction of Art.329(b) of the Constitution and S.105 of the Act. 5. The first question that this case raises, is of some importance. It is whether this Court can enquire into the validity and correctness of the proceedings or orders of the Election Tribunal constituted under the Representation of the People Act, 1951. The question turns upon the construction of Art.329(b) of the Constitution and S.105 of the Act. Article 329(b) is: "Notwithstanding anything in this Constitution, no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." Section 105 of the Act is as follows: "Every order of the Tribunal made under this Act shall be final and conclusive." 6. The meaning and scope' of Art.329(b) has been explained by the various High Courts including this Court, and the Supreme Court in cases where nomination papers of candidates seeking election were rejected by the returning officers. I am not going to refer to all these cases. But I should like to refer to this Court's decision in - 'Shankar Rao v. State of Madhya Bharat', AIR 1952 Madh B 97 (A) and to the decision of the Supreme Court in - 'Ponnu-swami v. Returning Officer, Namakkal', AIR 1952 SC 64 (B). In the first case a Full Bench of this Court held that Art.329(b) of the Constitution means that notwithstanding anything contained in Arts.225, 226, 227 and 228 and other Articles of the Constitution, no election can be called in question by invoking the powers of the High Court under these Articles and that the ward 'election' in Art.329(b) means the whole procedure whereby a person is elected to the Parliament or to the State Legislature in. accordance with the provisions of the Act and that the acceptance or rejection of a nomination paper forms a part of the election. It was also observed by this Court that Ss.105 and 170 of the Act did not by themselves in any way affect the jurisdiction of the High Court under Art.226 or Art.227 and that the jurisdiction of the High Court to enquire under Arts.226 and 227 into the validity of any election was taken away not by the Act but by Art.329 itself. In 'the case of Ponnuswami (B)' the Supreme Court also held that the word 'election' had been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature; that Art.329(b) ousted the jurisdiction of the Court in regard to electrol matters and was enacted to lay down the only mode in which an election could be challenged and to provide that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any Court. It is thus plain from the meaning put. by the Supreme Court on the word 'election' that Art.329(b) excludes the jurisdiction of the Courts with regard to matters forming a part of the wholes procedure whereby a candidate is returned to the legislature. The learned Advocate-General appearing as amicus curiae suggested that the words "notwithstanding anything in this Constitution" and the words "in such manner as may be provided for by or under any law made by the appropriate legislature" must be read as meaning that the jurisdiction of the High Court is taken away not only with regard to matters forming a part of the whole procedure whereby a candidate is returned but also in regard to the proceedings and orders of the Election Tribunal set up under the Act to try an election petition calling in question an election. As I understood him, he said that as the Constitution created the right of calling in question an election and prescribed a remedy under a statute specially enacted for enforcing that right, that procedure and remedy and no other must be followed; that if, therefore, the special statute, namely, the Representation of the People Act, 1951, provides that every order of the Tribunal made under the Act shall be final and conclusive, then this Court has no power under Art.226 or Art.227 to determine whether the order of the Tribunal is valid or correct. It is quite true that the words "notwithstanding anything in this Constitution" which, occur in Art.329(b) override all other provisions of the Constitution. It is quite true that the words "notwithstanding anything in this Constitution" which, occur in Art.329(b) override all other provisions of the Constitution. But it appears to me that the argument of the learned Advocate-General does not give due weight to the words "election" and "by an election petition" which occur in Art.329(b). The words "in such manner as may be provided for by or under any law made by the appropriate legislature" on which the learned Advocate-General laid considerable stress have to be read with the preceding words "except by an election petition presented to such authority". The effect of Art.329(b) is that so far as calling in question any election is concerned, it can be done only "by an election petition" by presenting to "such authority" and "in the manner" prescribed by a law of the appropriate legislature. The word 'election' must now be read in the sense indicated by the Supreme Court in the case of Ponnuswami. It is no doubt true that the Supreme Court explained the meaning of the word election' while dealing with the question whether rejection of a nomination paper is a part of election. But there is nothing in the decision of the Supreme Court to justify the view that the word 'election' would include proceedings and orders of an Election Tribunal and that "calling in question an election" could cover calling in question the working of the machinery set up for "calling in question an election". There is, however, a strong probability that very different language would have been used by the Constituent Assembly if "election" as used in Art.329(b) had been intended to bear what I cannot help calling the artificial meaning for which the learned Advocate-General contends. The learned Advocate-General drew our attention to the observation of the Supreme Court in the case of Ponnuswami that the words "notwithstanding anything in this Constitution" give to Art.329(b) "the same wide and binding effect as a statute passed by a sovereign legislature like the English Parliament" and said that inasmuch as the Representation of the People Act is the law contemplated in Art.329(b), S.105 of that Act must be taken to have the same binding effect so as to exclude the jurisdiction of this Court to question the validity of proceedings and orders of the Election Tribunal. As I read the observation which is to be found at the end of para 14 of the judgment of the Supreme Court in 'the case of Ponnuswami (B)', I think it refers to the binding effect of the provisions of Art.329(b) and not to the binding effect of any law contemplated by it. In that observation their Lordships of the Supreme Court did not import that the Representation of the People Act, 1951, had also the same binding effect "as a statute passed by a sovereign legislature like the English Parliament". Even assuming that the Representation of the People Act, 1951, has the binding effect suggested by the learned Advocate-General, I do not think that the provision in S.105 of the Act that "every order of the Tribunal made under the Act shall be final and conclusive" can be taken as preventing this Court from setting aside a decision of the Tribunal given without or in excess of its jurisdiction. In this connection I need only refer to what Lord Goddard, C.J., has said with regard to statutes passed by the English Parliament making the decisions of a Court or individual or a statutory authority final and conclusive. In - 'R. v. Northumberland Compensation Appeal Tribunal', (1951) 1 All ER 268 (C) he said at p.273: "Many statutes have taken away certiorari in respect of the matters with which those statutes have dealt, but that never debarred the Court from granting certiorari if it was a question of jurisdiction. If an inferior Court had wrongly given itself jurisdiction, certiorari would lie to quash its order, because it had no jurisdiction to make it. The taking away of certiorari by statute no doubt prevented the Court from inquiring into what I may call the merits of the determination, but it did not prevent the Court from inquiring whether or not the inferior Court had any jurisdiction to make the order. Many cases are found in the reports where, certiorari had been taken away, the statute providing that the decision of the inferior Court was not to be removed into any Court by writ of certiorari or otherwise, and yet the Courts granted certiorari in respect of those very matters on the ground of jurisdiction." 6. Many cases are found in the reports where, certiorari had been taken away, the statute providing that the decision of the inferior Court was not to be removed into any Court by writ of certiorari or otherwise, and yet the Courts granted certiorari in respect of those very matters on the ground of jurisdiction." 6. The proposition that where a statute lays down that orders made or proceedings taken under it shall be final and conclusive, the finality cannot be: attached to proceedings and orders coram non judice also follows from the decisions of the Privy Council in - 'Colonial Bank of Australasia v. Willan', (1874) 5 PC 417 (D) and in - 'Secretary of State v. Mask and Co.', AIR 1940 PC 105 (E). In the former case Sir James Colvile in delivering the judgment of the Privy Council pointed out that: "There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen's Bench will grant a writ of certiorari, but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the Tribunal that made it, or of manifest fraud in the party procuring it." 7. In ' AIR 1940 PC 105 (E)' the Privy Council observed as follows: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is excluded the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been applied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure." 8. I am, therefore, inclined to think that while it would not be open to this Court to exercise its powers under Art.226 or Art.227 so as to interfere with a decision of the Tribunal merely upon the ground that the decision is erroneous either in respect of facts or in point of law, this Court has the power to examine and correct any decision of the Tribunal on the ground of jurisdiction, fraud or violation of the principles of natural justice. Indeed, the learned Advocate-General though at first he was disposed to say that the jurisdiction of this Court under Art.226 or Art.227 of the Constitution to review a decision of the Tribunal was completely barred, conceded later on that this Court was not prevented from inquiring whether or not the Tribunal had any jurisdiction to make the order challenged. 9. During the course of their arguments the learned Advocate-General and Mr. Shivdayal learned counsel for the opponent Lachhiram contended that a writ in the nature of certiorari could not be made in respect of an order passed by the Election Tribunal as it was not an inferior Tribunal. Learned Counsel relied especially on the fact that under S.86 of the Act a Judge of a High Court could be appointed a chairman of the tribunal and on the Privy Council decision reported in - 'Goonesinha v. O.L. de Kretser', AIR 1945 PC 83 (F). There is no force in the. contention that the Election Tribunal is not an inferior Tribunal. The Tribunal is a creature of the Representation of the People Act and its jurisdiction is strictly controlled by the Act which brings it into existence. It has to function within the four corners of the Act. It is a tribunal of limited jurisdiction and authority. That being so, it is clearly a tribunal inferior to a Court of general jurisdiction. It may be mentioned that the expression "inferior Court" came into use as a means to distinguish between the Superior Court and other Courts over which the Superior Court exercises a supervisory jurisdiction by writs of mandamus, certiorari or prohibition or other writs but the expression is now used to denote Courts of special or limited authority constituted "on such principles that their proceedings must show jurisdiction". The inferior or 'superior character of a Court or tribunal is not determined by the position or the status of the persons constituting it. It depends on the powers and jurisdiction conferred on the tribunal or the Court by the statute establishing it. On the question of the subordination of all tribunals of limited jurisdiction to the High Court, there is a significant decision of the Kings Bench Division in the 'King v. Assessment Committee of the Metropolitan Borough of Shoreditch; Ex parte Morgan', (1910) 2 KB 859 (G). On the question of the subordination of all tribunals of limited jurisdiction to the High Court, there is a significant decision of the Kings Bench Division in the 'King v. Assessment Committee of the Metropolitan Borough of Shoreditch; Ex parte Morgan', (1910) 2 KB 859 (G). Farwell L.J., observed as follows at page 880: "The existence of the provisional list is a condition precedent to their jurisdiction to hear and determine, and as the claimant is entitled to require them to hear and determine, they cannot refuse to take the steps necessary to give rise to such jurisdiction; if they do, their refusal may be called in question in the High Court. No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction; such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction for the existence of the limit necessitates an authority to determine, and enforce it: it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit at its own will and pleasure - such a tribunal would be autocratic, not limited - and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact; a Court with jurisdiction confined to the city of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the ward of Chepe." 10. In our country having regard to the provisions of Arts.226 and 227 of the Constitution, the High Court must be regarded as a superior Court to whom all tribunals of limited jurisdiction are subordinate. In our country having regard to the provisions of Arts.226 and 227 of the Constitution, the High Court must be regarded as a superior Court to whom all tribunals of limited jurisdiction are subordinate. The Privy Council decision reported in ' AIR 1945 PC 83 (F)' is not an authority for the proposition that where a Judge of the High Court is the chairman or a member of the Tribunal then the Tribunal becomes a superior Court to whom another superior Court cannot issue a writ of certiorari. In that case the Privy Council affirmed an order of the Chief Justice of the Supreme Court of Ceylon refusing to issue a writ of certiorari, to quash an order passed by a Judge of the Supreme. Court as the Election Judge on the ground that the order was passed by the Election Judge as a Judge of the Supreme Court and that the cognizance of election petition was under an Order-in-Council an extension of, or addition to, the ordinary jurisdiction of the Supreme Court. The Ceylon case is not in point here. 11. This brings me to the question whether the Election Tribunal had jurisdiction to hold that the notice of recrimination given by the petitioner was not presented in time to the proper authority and whether by so holding the Tribunal gave itself jurisdiction which it did not possess or deprived itself of jurisdiction which had been entrusted to it by the Act. Learned counsel for the petitioner made no attempt to show how the decision of the Tribunal which he was attacking was without! jurisdiction or how by that decision the tribunal assumed a jurisdiction which it did not possess. He, however, urged that the tribunal had divested itself of jurisdiction by a wrong decision. The learned Advocate-General and Mr. Shivdayal who adopted the arguments of the Advocate-General relying on the Supreme Court's decisions in - 'Parry and Co. jurisdiction or how by that decision the tribunal assumed a jurisdiction which it did not possess. He, however, urged that the tribunal had divested itself of jurisdiction by a wrong decision. The learned Advocate-General and Mr. Shivdayal who adopted the arguments of the Advocate-General relying on the Supreme Court's decisions in - 'Parry and Co. Ltd., Dare House Madras v. Commercial Employees Association Madras', AIR 1952 SC 179 (H); - 'Veerappa Pillai v. Raman and Raman Ltd.', AIR 1952 SC 192 (I); - 'Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi', AIR 1952 SC 319 (J) contended that the question whether the applicant had or had not presented in time the notice of recrimination to the proper authority was not a matter of jurisdiction of the Tribunal and that, therefore, even if the Tribunal's decision was erroneous it could not be said that it was made without jurisdiction or that by that decision the Tribunal assumed a jurisdiction not given to it or refused to exercise the jurisdiction vested in it. 12. When one considers the provisions of S.97 of the Representation of the People Act, it seems plain that the contention put forward on behalf of the applicant is untenable. Under that section the returned candidate or any other party after fulfilling certain conditions is entitled to give evidence to prove that the election of a particular candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. The conditions are: that the returned candidate or such other party must give a notice to the Tribunal of his intention to give evidence within fourteen days from the date of publication of the election petition under S.90; he must also give the security referred to in Ss.117 and 118; and the notice must be accompanied by the statement and list of particulars required by S.83 in the case of an election petition and the notice must be signed and verified in like manner. The question whether the notice is to the Tribunal or whether it has been given in proper form and within the time prescribed or whether the security has been furnished are all matters for the decision of the Tribunal. The jurisdiction of the Tribunal to decide these questions is inherent in its very constitution as an Election Tribunal under the Act. The jurisdiction of the Tribunal to decide these questions is inherent in its very constitution as an Election Tribunal under the Act. It cannot, therefore, be maintained that the decision of the Tribunal on these questions is one without jurisdiction. Now, it must be remembered that the questions whether the notice is in proper form, or to the proper authority and within the prescribed time are a part of the very issue which the Tribunal has to decide in seeing whether the returned candidate or any other party concerned is entitled to give evidence. They are not what have been called collateral facts which have to be decided first by the Tribunal to enable itself to obtain jurisdiction before it proceeds to decide any main issue or to decide whether it shall or shall not do certain things. Having decided that the party desiring to give evidence has fulfilled the conditions laid down in S.97 of the Act, the Tribunal is not required to take any further decision. If the party concerned has satisfied those conditions, then the Tribunal in exercise of the jurisdiction conferred on it under S.90 of the Act records such evidence as may be tendered by that party. If on the other hand the party has failed to observe the preliminaries referred to in s.97 then he is not entitled to give any evidence. The right of the returned candidate or any other party to give evidence under S.97 of the Act is no doubt conditioned by certain requirements. But the jurisdiction of the Tribunal in no way depends on the existence of any of the facts stated in S.97. It may seem rather fine distinction but I think there is a distinction between a jurisdiction which is in fact limited by certain requirements, and a case in which a person having satisfied certain conditions becomes entitled to do or not to do a particular thing. In the latter case the question whether the person has or has not fulfilled certain conditions is a part of the very issue which the Tribunal has to decide when the person claims the right to do a particular thing and the decision of the Tribunal on those questions is not one which goes to its jurisdiction. In the latter case the question whether the person has or has not fulfilled certain conditions is a part of the very issue which the Tribunal has to decide when the person claims the right to do a particular thing and the decision of the Tribunal on those questions is not one which goes to its jurisdiction. In -'R. v. Income Tax Special Purposes Commissioner', (1888) 21 QBD 313 at p.319 (K), which is the leading case usually cited on this question, Lord Esher M.R. stated the law in this way : "When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction." 13. Again in the Privy Council case -'(1874) 5 PC 417 (D), after observing that absence of jurisdiction may be founded either on the character and constitution of the tribunal or upon the nature of the subject matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon a fact or facts to be adjudicated upon in the course of the inquiry, Sir James Colvile proceeded to say : "Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the function's of a Court of Appeal, and the power to retry a question which the judge was competent to decide. Accordingly the authorities of which -'Reg. v. James Bolton', (1841) (1 QB 66) (L) and -'Reg. v. St. Olave's Board of Works', (1857) 8 El and Bl 529 (M) may be taken as examples, establish that an adjudication by a judge having jurisdiction over the subject-matter is, if no defects appear on the face of it, to be taken as conclusive of the facts stated therein, and that the Court of Queen's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found." 14. These cases have been applied by the Supreme Court in -' AIR 1952 SC 319 (J)', and -' AIR 1952 SC 179 (H)', and also by other High Courts in several cases. The law to be gathered from the Supreme Court's decisions relied upon by the opponents and especially from the English cases referred to above, is that, f a certain state of facts has to exist before an inferior Tribunal has jurisdiction to do certain things, the Tribunal must, to enable itself to obtain jurisdiction, find that those facts exist. The law to be gathered from the Supreme Court's decisions relied upon by the opponents and especially from the English cases referred to above, is that, f a certain state of facts has to exist before an inferior Tribunal has jurisdiction to do certain things, the Tribunal must, to enable itself to obtain jurisdiction, find that those facts exist. The Tribunal cannot give itself jurisdiction by a wrong decision on them and the superior Court may by means of proceedings for certiorari, inquire into the correctness of the decision. The decision as to those facts is collateral because, though the existence of jurisdiction depends thereon, it is not the main question which the Tribunal has to decide. If on the other hand the Tribunal is given jurisdiction to determine certain facts and those facts form a part of the very issue which the Tribunal has to decide and the Act constituting the Tribunal gives it the power to come to a final decision on that matter then the decision of the Tribunal cannot be treated as one going to its jurisdiction and cannot, therefore, be questioned in any Court. Here I must explain the decision of the Bombay High Court to which I referred during the course of the hearing of the petition. It is the case of -'Sarafally Mamooji, In the matter of; -'34 Bom 659 (N)'. In that case in a Municipal Election petition, the Chief Judge of the Small Causes Court, unseated two of the successful candidates and found cause of objection against the candidate in whose favour were recorded the next highest number of votes. He declined to inquire further into the claims of any other candidates or to declare any other candidate elected, as, on his interpretation of S.33(2), Bombay Municipal Act, 1888, he was not enabled to do so. Macleod J., issued a mandamus holding that S.33 empowered the Chief Judge to fill up any number of vacancies, created by setting aside the election of any number of the returned candidates, from the list of unsuccessful candidates and that the case fell within the general principle referred to in -'Ex parte Milner (1851) 15 Jur 1037 (O)', that where an inferior tribunal improperly refused to enter upon a complaint, a mandamus would lie. The Bombay decision accords with the principles enumerated above. The Bombay decision accords with the principles enumerated above. That was a case where by a wrong construction of S.33, Bombay Municipal Act, the Chief Judge divested himself of the jurisdiction to decide the main question of the claim of other candidates that they were duly elected. The construction of S.33 was not the main issue which the Chief Judge had to decide. The case which is very much apposite here is the one to which I have already referred, namely, - '(1888) 21 QBD 313 (K)'. In that case a person claimed to be entitled under a statute to a refund of excess income-tax paid on proving certain facts to the satisfaction of the Commissioners for General Purposes. A certificate for refund was issued by the Commissioners but the Commissioners for Special Purposes refused to act upon it and order repayment of the amount saying that as the 'facts' necessary for a refund had not been proved, the Commissioners for General Purposes had no jurisdiction to give a certificate for repayment. It was held by the Court of Appeal that the Commissioners for General Purposes had been given jurisdiction to finally determine the requisite facts for a refund and that the Commissioners for Special Purposes could not question the decision of the Commissioners for General Purposes on those facts, even if erroneous as without jurisdiction. I think the present case is clearly one where the Tribunal has jurisdiction to determine finally whether a person desiring to give evidence has or has not satisfied the conditions laid down in S.97 of the Act and the question of the fulfilment of those conditions is not collateral to any main question which the Tribunal has to decide but is the very issue which the Tribunal has to enquire. It follows, therefore, that even though the applicant may think that the Tribunal arrived at erroneous decision, he would not be entitled to say that the decision of the Tribunal was one given without jurisdiction or that the Tribunal gave itself or deprived itself of jurisdiction by a wrong decision. It follows, therefore, that even though the applicant may think that the Tribunal arrived at erroneous decision, he would not be entitled to say that the decision of the Tribunal was one given without jurisdiction or that the Tribunal gave itself or deprived itself of jurisdiction by a wrong decision. It seems to me that the formula stated by Lord Esher M.R., in -'(1888) 21 QBD 313 at p.319 (K), and applied by the Supreme Court in -' AIR 1952 SC 319 (J)', makes it impossible for us to treat the petitioner's complaint as going to jurisdiction of the Tribunal and on the rule laid down by the Supreme Court in the cases reported in -' AIR 1952 SC 179 (H)'; -' AIR 1952 SC 192 (I)' and -' AIR 1952 SC 319 (J)', that a writ of certiorari cannot be granted to quash the decision of the inferior Court within its jurisdiction on the ground that the decision is wrong, the applicant's prayer for an order: of certiorari for quashing the decision of the tribunal must be refused. 15. In view of what I have said above it is really unnecessary for me to express an opinion upon the question whether the Tribunal arrived at a right decision. For, even if the Tribunal has wrongly construed certain provisions of the Act and arrived at an erroneous decision, that would not entitle the applicant to say that the decision was given without jurisdiction. But it appears to me extremely difficult to maintain that the decision of the Tribunal is wrong or manifestly unjust or that in giving that decision the Tribunal has acted contrary to the principles of natural justice. The notice which was received by the Chairman on 11-9-1952 being admittedly not within time, the short point is whether the presentation of a notice to a member of the Tribunal at the place of the trial is a valid presentation to the Chairman under S.97. The notice which was received by the Chairman on 11-9-1952 being admittedly not within time, the short point is whether the presentation of a notice to a member of the Tribunal at the place of the trial is a valid presentation to the Chairman under S.97. The applicant argues that as the trial of an election petition commences when it is presented to the Election Commission or at least when a tribunal is constituted, the word "tribunal" in S.97 of the Act has not the meaning given to it by S.86(5); that under S.97 a notice need only be given to the Tribunal and not to the Chairman; and that if at the time of giving of a notice at the place of the trial only one member is present and the others are not, then the presentation of the notice to the member present would be a valid presentation of the notice for the purposes of S.97. In my opinion, this view is not correct. The fact that on presentation of an election petition to the Election Commission, if the petition is not dismissed under S.85, an Election Tribunal is appointed for the trial of the petition, points with reasonable clarity to the inference that the trial of an election petition does not commence either with its presentation to the Election Commission or with the appointment of a Tribunal. Nor can it be contended that it commences with the publication of an election petition under S.90. Such a contention would not be in conformity with the natural meaning of the word "trial" which means a judicial examination and determination of issues between the parties, whether they be of law or fact by the Judge. I take this definition from the Oxford English Dictionary. On this definition it is clear that the trial of an election petition commences when after the filing of a reply thereto and of a recriminatory petition, if any, the points in controversy between the parties are settled and their investigation begins. The meaning of the word 'trial' suggested by the learned counsel for the applicant if accepted would render S.86(5) of the Act wholly nugatory. In my opinion the giving of a notice of recrimination to the Tribunal is an act required to be done before the commencement of the trial. The meaning of the word 'trial' suggested by the learned counsel for the applicant if accepted would render S.86(5) of the Act wholly nugatory. In my opinion the giving of a notice of recrimination to the Tribunal is an act required to be done before the commencement of the trial. That being so, under Ss.86(5) and 97 a notice of the recrimination to the Tribunal in order to be valid must be given to the Chairman. As a matter of fact in the present case notice was given to the Chairman. Therefore, the question whether the notice was addressed to the proper authority does not arise. Now though it is provided by S.81 of the Act that an election petition shall be deemed to have been presented to the Election Commission when it is delivered to the Secretary of the Commission or to such other officer as may be appointed by the Election Commission in that behalf, by the person making the petition or by any person authorised by him in writing or when it is sent by registered post is delivered to the Secretary to the Commission or the officer so appointed, there is no analogous provision in the Act with regard to the presentation of a recriminatory petition. The Act nowhere says that a notice of recrimination shall be deemed to have been presented to the Chairman when it is left at the office of the Tribunal or at the place of the trial or when if is delivered to any member of the Tribunal or to any person authorised by the Chairman in that behalf. It is also not the case of the petitioner that the Chairman could have authorised a member of the Tribunal to receive the notice on his behalf and that in fact he did so authorise Mr. Surajbhan a member of the Tribunal. It was, therefore, incumbent on the applicant to deliver the notice within time to the Chairman of the Tribunal by presenting the notice personally or by sending it by registered post so to reach him within time in the ordinary course of post. Surajbhan a member of the Tribunal. It was, therefore, incumbent on the applicant to deliver the notice within time to the Chairman of the Tribunal by presenting the notice personally or by sending it by registered post so to reach him within time in the ordinary course of post. The fact that the applicant was informed by a notice that the trial would be held in Gwalior on 13-10-1952 would at the most indicate that the office of the Tribunal would be in Gwalior on 13-10-1952 and that the Chairman and the members of the Tribunal would be in Gwalior on that date. The petitioner was not justified in reading into that notice an intimation to the effect that the office of the Tribunal was located in Gwalior for all time or that the Chairman of the Tribunal would be in Gwalior before 13-10-1952. By the notifications published in the Gazette of 7-8-1952 page 323 and 21-8-1952 page 366 the applicant was left in no doubt that Mr. Dongre the District Judge of Dhar was the Chairman; that a copy of the election petition which was served on him was issued from Mr. Dongre's office in Dhar and that Mr. Dongre was discharging his duties as Chairman of the Tribunal from his address in Dhar. It cannot, therefore, be maintained that the petitioner was not made aware of the address of the Chairman of the Tribunal or of the location of the office of the Tribunal and was misled by the Tribunal itself as to the place where the notice of the recrimination had to be served on the Chairman of the Tribunal. The petitioner should have delivered the notice of recrimination to, the Chairman of the Tribunal at Dhar. The presentation of the notice to Mr. Surajbhan who was not authorised either by the Act or by the. Chairman himself, to receive the notice was not a valid presentation of the notice. In my judgment the Tribunal came to a right decision in holding that the notice of recrimination was not presented within time to the Chairman of the Tribunal. 16. For the above reasons the conclusion that I come to is that this application must be dismissed, leaving the parties to bear their own costs. 17. SHINDE, C.J. :- I agree.