Constitution of India, Art. 226 - Powers of High Court thereunder - Writ of certiorari against Election Tribunals after they become functus officio certiorari against Record - Distinction between writ of prohibition and writ of certiorari - Art. 227 of the Constitution - Superintendence of High. Court over Election Tribunals - Superintendence - Judicial as well as administrative - Certiorari Scope and character of - Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951- Rule 47(1) (c) - Whether 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 Election Tribunals functioning within the territorial jurisdiction of the High Courts would fall within 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 Constitution, to issue writs of certiorari for quashing the decisions of Election Tribunals, notwithstanding that they become functus officio after pronouncing the decisions.

The writ of certiorari for quashing the offending order or proceeding 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 whose decision is to be reviewed. If it is the record of the decision that has to be removed by certiorari, 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.

As 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, reason why it should not be issued to whosoever has thereof. there is no the custody

The writ of certiorari is directed to the body or officer whose determination is to be reviewed, or to any other person having the custody of the record or other papers to be certified.

The scope of Art. 226 of the Constitution is firstly that it confers 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 exercised over any person or authority within the territories in relation to which it exercises its jurisdiction. 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 prohibition 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 has 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 condition of its decision being annulled.

Election Tribunals are subject to the superintendence of the High Courts under Art. 227 of the Constitution and that superintendence 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 Art. 227 do that, and also issue further directions in the matter.

As respects the character and scope of the writs of certiorari the following propositions may be taken as well established:

(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it.

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of "certiorari" if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by "certiorari" but not a mere wrong decision. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

It is well-established that an enactment in form mandatory might in substance be directory, and that the use of the word "shall" does not conclude the matter. There are well-known rules for deter- mining when a statute should be construed as mandatory and when directory. All of them are only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context.

The word "shall" in Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 which enacts that "a ballot paper contained in a ballot box shall be rejected if it bears any serial number or mark different from the serial numbers or marks of ballot papers authorised for use at the polling station or the polling booth at which the ballot box in which it was found was used", cannot be construed as meaning "may". The provisions of Rule 47(1) (c) are mandatory like the provisions of Rule 47(1)(a), Rule 47(1)(b) and Rule 47(1)(d).