Ahmed Hussain v. State — 1953 DIGILAW 6 (KER)

Judgment :- 1. This is an application presented by Ahamed Hussain (Mohammed Kunju) residing in Valiakaikara, Pallithottam, Quilon, against three respondents, 1) The State of Travancore-Cochin, 2). The Municipal Commissioner, Quilon Municipality, and 3) Easa Sait (Yacoob Sait) Kapa Azhikom, Beach Ward (East, Quilon) respectively under Article 226 of the Constitution of India "to issue a writ of certiorari quashing the order of the District Collector, Order L.Dis.13507/52/LSG dated 2-1-1953 rejecting the nomination paper of the petitioner and also the order of the 1st respondent L.S. (E-12) 3/53/EHLSG dated 5th January 1953 dismissing the petition filed by this petitioner and also to issue a writ of mandamus or any other appropriate writ, order or direction to the 2nd respondent to include the petitioner's name in the list of duly nominated candidates and to proceed with the election only after the petitioner's name is so included as a duly nominated candidate for election to the Andamukhom South Ward of the Quilon Municipality in the election to the Municipal Council which is fixed to take place on 23-1-1953 or on any other date to which the election may be adjourned thereafter." The decision of the 2nd respondent accepting the nomination paper presented by the petitioner was made the subject-matter of appeal by the 3rd respondent to the District Collector, Quilon under rule 9 of the Rules framed under Section 323 of the Travancore District Municipalities Act, XXIII of 1116 and published in the Gazette dated 4th November, 1952. The order of the District Collector, a certified copy of which is produced along with this application shows that the applicant is disqualified to be elected as a Councillor under Section 52, Clause (1) (b) (v) of the Travancore District Municipalities Act which provides that: "52 [1]. A person shall be disqualified for election as a councillor if such person b] is at the date of election v] already a councillor whose term of office as such will not expire before his fresh election can take effect." This section was amended by the Travancore District Municipalities and the Cochin Municipal (Amendment) Act, XVII of 1952 and certain words that there were in Section 52(1)(b)(v) were deleted. The petitioner is a sitting councillor of the Quilon Municipality as under Ordinance IV of 1952 the term of office of the councillors was extended until noon on the 15th day of February 1953. Section 4(2) of that. The petitioner is a sitting councillor of the Quilon Municipality as under Ordinance IV of 1952 the term of office of the councillors was extended until noon on the 15th day of February 1953. Section 4(2) of that. Ordinance provides that the term of office of the councillors elected thereunder shall extend up to and expire at noon on the 15th of February 1953. 2. The Election Officer accepted the nomination paper of the applicant applying section 8 (10) of Act XXIII of 1116 (Travancore) which provides that: "an outgoing councillor shall, if otherwise qualified, be again eligible for election [or appointment]." on the basis that the petitioner possessed the qualifications necessary for election as a councillor. The District Collector who is the appellate authority was of the view that section 8 (10) stood qualified by section 52 (1)(b)(v) namely that in order to say that a person is'otherwise qualified" under section 8 (10) he must not merely possess the qualifications prescribed by the law but he must also be free from the disqualifications under any of the provisions of the law and according to the District Collector, the petitioner being disqualified to be a councillor under section 52(1)(b)(v), his nomination was rejected. Though the term of the newly elected councillors will start only from 15th February 1953, the District Collector, being of the view that the new election which is fixed to take place on the 23rd of January 1953 can take effect from the date on which the result of the election is declared, thought that the petitioner was disqualified under section 52(1)(b)(v) of the District Municipalities Act and therefore reversed the decision of the Election Officer and rejected the nomination paper of the petitioner. 3. The, petitioner sought redress by approaching the Government. A copy of the order passed by the Government is also produced by the petitioner. Therein it is stated that "rule 40 of the Rules relied upon by the petitioner and his advocates has no application" because no question of interpretation of any rule arises and it is not a case of the election being held in contravention of the rules. Therein it is stated that "rule 40 of the Rules relied upon by the petitioner and his advocates has no application" because no question of interpretation of any rule arises and it is not a case of the election being held in contravention of the rules. The copy of the petition is not produced but from the contents of the Government order it has to be gathered that the petitioner's prayers and allegations related to the validity of the order passed by the District Collector apart from the interpretation of the Rules also. 4. The applicant challenges both the orders of the District Collector and of the Government. It is argued that the order passed by the District Collector in appeal is outside his jurisdiction because what he was invited to consider in appeal was only the question as to whether the petitioner had the qualifications to stand as a candidate for election as councillor and the District Collector having gone beyond that question and considered whether the petitioner was subject to any disqualification and on the view entertained by him upon the latter point the nomination paper having been rejected, he has acted in excess of his jurisdiction. It is also stated that the decision of the District Collector discloses an error apparent on the face of the record. 5. It cannot be said that the question of disqualification is beyond the scope of the consideration of the question of qualification. When a person has to be stated to be qualified to be a councillor he must satisfy certain positive and negative requirements, that is to say, he must possess certain qualifications and he must, at the same time, be free from certain disqualifications. To be free from disqualifications may also be stated to be a qualification, if that interpretation is necessary to bring the case within section 8 (10) which refers to a person being "otherwise qualified". If the consideration of the question of disqualification is within the ambit of the jurisdiction of the District Collector, which in my view it is, then the circumstance that his conclusion is erroneous will not make it liable to be interfered with by this court in certiorari as an error apparent on the face of the record. If the consideration of the question of disqualification is within the ambit of the jurisdiction of the District Collector, which in my view it is, then the circumstance that his conclusion is erroneous will not make it liable to be interfered with by this court in certiorari as an error apparent on the face of the record. A decision within jurisdiction however erroneous it may be, will not be an error apparent on the face of the record as to attract the jurisdiction of this court in certiorari. This principle is well settled. It has been laid down over and over again by this court as well as other courts and requires no citation. 6. Learned counsel for the applicant also contends that the Government refused to exercise jurisdiction in not having given an interpretation of the Rules pursuant to his application. Rule 40 provides that: "40 [1] If any question arises to the interpretation of these rules otherwise than in connection with an inquiry held under the rules for the decision of disputes as to the validity of an election, the question shall be referred to the Government whose decision shall be final." The Government were of the view that no question of interpretation at all arises in the case. Learned counsel for the applicant urges that view of the Government is not right. The authority to consider whether a question of interpretation does or does not arise is not indicated in the rules. In the absence of such an indication, it must be taken that the authority competent to give an interpretation is the authority competent to decide whether a question of interpretation does or does not arise because it is elementary that ordinarily an authority having jurisdiction to decide a question must also have jurisdiction to decide whether that question does or does not arise for decision and if the Government does decide that the question of interpretation of the Rules does not arise and if that decision is within their jurisdiction as in my judgment it is, then no interference in certiorari is called for. Again it is only in a case where a question of interpretation of the rules, otherwise than in connection with an inquiry held under the rules, arises that the Government can interpret. Again it is only in a case where a question of interpretation of the rules, otherwise than in connection with an inquiry held under the rules, arises that the Government can interpret. The question in this case arose in connection with an enquiry started before the Election Officer and continued before the appellate authority that is, the District Collector, for the decision of disputes as to the validity of an election, under Rule 40 (1) of the Rules. The word 'election' connotes the process commencing from the presentation of the nomination papers and ending with the declaration of the result of the election after the poll should a poll become necessary. Election in this case, therefore, commenced when the petitioner, the 3rd respondent and others presented their nomination papers and the enquiry having relation to the validity of the nomination paper presented by the petitioner, was an enquiry held under the rules for the decision of disputes as to the validity of an election. The appeal to the District Collector was under Rule 9 (3) and the question of interpretation having arisen thereafter in connection with an enquiry held under the rules as contemplated by Rule 40, the approach to the Government for interpretation of the rule is incompetent. In other words, Government had no jurisdiction to give the interpretation even though the party had otherwise a right to approach them for it. It cannot, therefore, be said that the Government refused to exercise jurisdiction vested in them by law in having declined to give an interpretation of the rules as requested by the petitioner. 7. It is upon the aforesaid grounds that the petitioner prays for the interference of this court with the order passed by the District Collector, Quilon, as also the one passed by the State. As in my view there is no case made out even prima facie for interference with either of the above said two orders I am disinclined even to issue notice to the respondents and the petition is, therefore, dismissed. Dismissed.