HARI VISHNU KAMATH versus SYED AHMAD ISHAQUE AND OTHERS.

Citation: [1955] 1 S.C.R. 1104 · Decided: 09-12-1954 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN · Disposal: Appeal(s) allowed

Cited by 19 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

1954 
December 9 
1104 
SUPREME COURT REPORTS 
[19551 
HARI VISHNU KAMA TH 
ti, 
SYED AHMAD ISHAQUE AND OTHERS. 
[MEHR CHAND MAHAJAN C. J., MuKHERJEA, 
S. R. DAs, V1v1AN BosE, BHAGWATI, JAGANNADHADAS 
AND VENKATARAMA AYYAR JJ.] 
Constitution of India, Art. 226-Powers of High Court there-
under-Writ of certiorari against Election 
Tribunals after they be-
come functus offici~ertiorari against Record-Distinction between 
writ of prohibition and writ of certiorari-Art. 227 of the Constitu-
tion-Superintendence of 
High. Court over 
Election Tribunals--
Superintendence-Judicial as 
well 
as 
administrative-Cectiorari-
Scope and character of-Representation of the People (Conduct of 
Elections and Election 
Petitions) 
Rules, 1951-Rule 47(1) (c)-
W hether mandatory or directory-Error manifest on the face of 
record-Interference by certiorari. 
Article 226 of the Constitution confers on High Courts power-
to issue appropriate writs to any person or authority 
within their 
territorial jurisdiction, in terms absolute and unqualified, and Elec-
tion Tribunals functioning within the territorial jurisdiction of the 
High Courts would fall \Vithin the sweep of that power. 
The power 
of the High Court under Art. 226 to issue writ of certiorari against 
decisions of Election Tribunals remains unaffected by Art. 329(b) of 
the Constitution. 
The High Courts have power under Art. 226 of the Constitu-
tion, to issue writs of certiorari for quashing the decisions of Election 
Tribunals, notwithstanding that they become functus officio after pro-
nouncing the decisions. 
The writ of certiofari for quashing the offending order or pro-
ceeding is directed against a record, and as a record can be brought 
up only through human agency, it is ordinarily issued to the person 
or authority \vhose decision is to be reviewed. If it is the record of 
the decision that has to be removed by certiorafi, then the fact that 
the tribunal has become functus officio subsequent to the decision 
could have no effect on the jurisdiction of Court to remove the record. 
i\.s the true scope of the writ of certiorari to quash is 
that it 
merely demolishes the offending order, the presence of the offender 
before the court, though proper, is not necessary for the exercise of 
the jurisdiction or to render its determination effective. The writ of 
certiorari being in reality directed against the record, there is no 
reason why it should not be issued to whosoever has the custody 
thereof. 
The writ of certiorari is directed to the body or officer whose 
.ji..__ 
determination is to be reviewed, .or to any other person having th~ 
custody of the record or other papers to be certified. 
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.. 
y 
' " 
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S.C.R .. 
SUPREME COURT REPORTS 
1105 
The scope of Art. 226 of the Constitution is firstly that it con-
fers on the High Courts power to issue writs · and directions and 
secondly it defines the limits of that power. This latter it does by 
enacting that it could be ex~rcised over any 
person or authority 
within the territories jn relation to which it exercises its jurisdic-
tion. 
The emphasis is on the 
words "within the territory", 
and 
their significance is that the jurisdiction to issue writs is co-extensive 
with the territorial jurisdiction of the court. 
The reference is not 
to the nature and composition of the court or tribunal but to the 
area within which the power could be exercised. 
There is one fundamental distinction between a writ of prohibi-
tion and a writ of certiorari. A writ of prohibition will lie when the 
proceedings are to any extent pending and a writ of certiorari for 
quashing will lie after the proceedings have terminated in a final 
decision. 
If a writ of prohibition could be issued only if there are 
proceedings pending in a court, it must follow that it is incapable of 
being granted when the court ha.s ceased 
to exist, because there 
could be then no proceeding on which it could operate. But it is 
otherwise with a writ of certiorari to quash, because it is directed 
against a decision which has been rendered by a Court or tribunal, 
and the continued existence of that court or tribunal is not a condi-
tion of its decision being annulled. 
Election Tribunals are subject to the superintendence of 
the 
High Courts under Art. 227 of the Constitution and that superin-
tendence is both judicial and administrative. 
While in a certiorari 
under Art. 226 the High Court can .only annul the decision of the 
Tribunals, it can, under

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