Jha, C.J.

1. The petitioner is a registered voter for the State Assembly of Bihar and his name has been duly entered in the voters list in the constituency of Lachmipur-cum-Jamur in the district of Monghyr. He filed a nomination paper on 23-11-1951, for being elected to fill a seat in the said constituency. On 26-11-1951, the date fixed for scrutiny, his nomination paper was, on objection of another candidate for the same seat, rejected by the Returning Officer on the ground that it did not comply with the provisions of Section 33(5). Representation of the People Act, 1951 (Act LIII of 1951). The petitioner has, therefore, come up to this Court and asks for a writ in the nature of mandamus. or any other appropriate writ, under Article 226 of the Constitution, calling upon the Returning Officer to show cause why his order rejecting the nomination capers should not be quashed and the name of the petitioner included in the list of valid nominations and the list so rectified published in accordance with law.

2. We shall assume for the decision of the point raised before us that the Returning Officer has improperly rejected the nomination paper of the petitioner. The question for decision is whether, in view of the provisions of Article 329(b) of the Constitution, it is within our power, authority or jurisdiction to issue a writ in the nature of mandamus, or any other appropriate writ, for the rectification of the order of the Returning Officer under Article 226 of the Constitution and give an adequate remedy to the petitioner.

3. The Constitution in Part XV (Articles 324 to -329) under the head "Elections" lays down the law to be followed with respect to all matters relating" to or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State. Election to the House of the People or to the Legislative Assembly of a State is to be held on the basis of adult suffrage. Every citizen of India is entitled to vote for a seat in the House of the People and the Legislative Assembly of a State if he is not less than twenty-one years of age on such date as may be fixed in that behalf irrespective of his race, caste or sex or any of them and if he is not otherwise disqualified to be a voter. But this adult suffrage, which does not depend upon property qualification, could not be claimed as a matter of right by any citizen of India in the absence of the express provision in that behalf of the Constitution.

4. In order to appreciate the argument at the bar it is necessary to quote Articles 324(1), 326, 327 and 329(b) of the Constitution, which are as follows :

"324 (1). The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution, including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with elections to Parliament and to the Legislatures of States shall be vested in a Commission (referred to in this Constitution as the Election Commission)."

"326. The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty-one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election."

"327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses".

"329 (b). 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".

5. Pursuant to the power conferred under Article 327, Parliament has made law relating to elections in two Acts, Act XLIII of 1950 and Act XLIII of 1951, both entitled "The Representation of the People Act." It may be observed that it was within the competence of Parliament to make law in that behalf under Article 246(1), read with Items 72 and 95 of List I of Scheule 7 to the Constitution. Act XLIII of 1950 provides for the allocation of -seats in, and the delimitation of, constituencies for the pur- pose of elections to the House of the People and the Legislatures of States, the qualifications of voters at such elections, the preparation of electoral rolls, and matters connected therewith, and Act XLIII of 1951 provides for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, corrupt and illegal practices and other offences at or in connections with such elections and the decision of doubts and disputes arising out of or in connection with such elections (vide the preamble).

Para IV (Sections 19 to 29) of Act XLIII of , 1951 (hereinafter referred to as the Act) deals with the administrative machinery for the conduct of elections and provides for the appointment of Returning Officers, and Part V, which is divided into eight chapters, (sections 30 to 78), deals with the conduct of elections. Sections 30 of the Act provides for the appointment of dates for nominations; Section 32 provides for nomination of candidates for election, Section 33 provides for the presentation of nomination papers to the Returning Officers and the requirements for valid nominations; Section 35 provides for notice of nominations and the time and place for their scrutiny and Section 36 provides for the scrutiny of nominations on the date fixed for such scrutiny. Under Section 36(2) the Returning Officer has power, after such summary enquiry, if any, as he may think necessary, to refuse any nomination on any of the grounds mentioned in the section. Section 37 provides that any candidate may withdraw his candidature in the prescribed manner and within the time fixed in that behalf; Section 38 provides for publication of valid nominations. Under Section 53, in case of uncontested elections, the Returning Officer has power to declare a candidate or candidates duly elected if the case falls within Sub-section (2) or Sub-section (3) thereof, and in the case of a contested election, the Returning Officer has to report, under Section 67, the result of^ the election, as soon as may be after the result has been declared, to the authorities mentioned therein.

6. Part VI (Sections 79 to 122) of the Act deals with disputes regarding elections. Section 80 provides :

"No election shall be called in question except by an election petition presented in accordance with the provisions of this Part."

It may be observed that the provision of this section is in consonance with the provision of Article 329 (b). Section 81(1) provides : "An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-sections (1) and (2) of Section 100 and Section 101 to the Election Commission by any candidate at such election or any elector in such form and within such time but not earlier than the date of publication of the name or names of the returned candidate or candidates at such election under Section 67, as may be prescribed."

(The italics (here in single quotations) are mine).

Section 84 lays down what relief the petitioner may claim; Section 86 provides for the appointment of an Election Tribunal by the Election Commission; and Sections 100 and 101 lay down the grounds on which the election may be declared void by the Tribunal, and one of the grounds on which an election may be declared void is as laid down in Section 100(1)(c) which runs as follows :

"If the Tribunal is of opinion that the result of the election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void."

Section 105 provides that every order made by the Tribunal under this Act shall be final and conclusive.

7. On an analysis of the provisions of law, referred to above, the following propositions emerge : (1) the election is to be conducted by the machinery created under the Act; (2) no election can be called in question except by an election petition; (3) a candidate has a right to present an election petition to the Election Commission on the ground that his nomination paper has been improperly rejected; (4) the dispute is to be decided by a Tribunal to be appointed by the Election Commissioner in that behalf, whose decision shall be final; (5) election petitions cannot be presented earlier than the date of publication of the name or names of the returned candidate or candidates; and (6) election can be disputed even by an elector on the ground or grounds mentioned in the Act.

8. Now the question that arises for decision is whether rejection or acceptance of a nomination paper is "election" within the meaning of Article 329(b) of the Constitution. According to the petitioner, "election" means only the final stage of the election, that is, after the results of the elections are declared and published under Chapter VII of Part V of the Act, or, at any rate, the stage beginning with the publication of a list of valid nominations under Section 38, after the expiry of the period within which candidatures may be withdrawn under Section 37(1). The contention of the petitioner in short, is that rejection or acceptance of nominations does not constitute election, and, therefore, before the election commences it is open to him to invoke the authority of this Court under Article 226 of the Constitution for a mandamus or any other writ for the rectification of the order of the Returning Officer. This argument, in my opinion, has no substance.

The word "election" has not been defined in the Constitution, though it has been used in several Articles thereof. Nor is there any definition of the time at which an election is to be deemed to have commenced. In the absence of any definition of the time when election commences, Parker says;

"the safest course is to consider that the election has commenced as soon as any definite step is taken in respect of the candidature, or preparation for, or towards the conduct or management of, the election of any particular person (Parkers Election Agent and Returning Officer, 4th Edition, p. 220)".

According to Oxford dictionary also the word "election" means "the choice by popular vote of members of a representative body; the whole proceedings accompanying such a choice." Therefore, we must understand the word "election" to mean all the different stages of election, commencing after the appointment of dates for making nominations as provided under Section 30 of the Act. The Returning Officer commences his election activities as soon as any person is nominated as a candidate for election and the nomination paper is delivered to him in the prescribed manner. He holds scrutiny to determine the validity or otherwise of the nominations; and when he rejects or accepts a nomination paper, he takes a definite step towards the election of the candidate concerned and it cannot be said that such a step does not constitute election. In -- Harford v. Linskey (1899) 1 QBD 852 Wright J. observed : "A person, who at the time of nomination is disqualified for election in the manner in which this petitioner was disqualified, is disqualified also for nomination. The nomination is for this purpose an essential part of the election and if there are no competitors it of itself constitutes the election."

It may be stated that what Wright J. says is actually covered by Sub-sections (2) and (3) of Section 53 of the Act. In -- A. V. Srinivasalu v. S. Kuppuswami Goundar : AIR 1928 Mad 253 [LQ/MadHC/1927/363] Curgenven J. observed :

"I think therefore that the term "election" may be taken to embrace the whole procedure whereby an elected member is returned, whether or not it be found necessary to take a poll."

9. This view was followed by Mahajan J. with whom Harries C. J. agreed, in -- Sat Narain Gurwala v. Hanuman Parshad AIR 1946 Lah 85. No High Court has, so far as we know, taken a contrary view. It may be observed that the word "election" is a technical term and had been used in earlier Indian statutes and judicially interpreted to connote all the different stages of election. It is a well settled principle of law that when a particular word in a statute has been judicially interpreted it must be understood to have been used in a later statute in the sense attributed to it by the Courts unless a contrary intention is clear from the statute itself. In -- Barlow v. Teal 15 QBD 403 Coleridge C. J. said that one of the general principles is that "where cases have been decided on particular form of words, in Courts, and Acts of Parliament use those forms of words which have received judicial construction, in the absence of anything in the Acts showing that the legislature did not mean to use the words in the sense attributed to them by the Courts, the presumption is that Parliament did so use them."

In -- L. P. E. Pugh v. Ashotosh Sen, 56 I A 93 at p. 101 the Judicial Committee observed :

"It must be presumed that when the legislature has deliberately used a term which has a known legal significance in law it has attached to that term that known legal significance."

10. On a consideration of all these aspects of the matter, I am of the opinion that the Constituent Assembly must be deemed to have used the term "election" in Article 329(b) in its comprehensive sense, embracing the whole procedure whereby an elected member is returned.

11. The provision of Article 329(b) is mandatory. It lays down that no election shall be called in question except by an election petition presented to such authority and in such manner as may be provided lor by or under any law made by the appropriate legislature. The authority to whom the election petition is to be presented is the Election Tribunal to be appointed by the Election Commission under Art, 324. The Representation of the People Act, 1951 (Act XLIII of 1951) which has been enacted by "the appropriate legislature", namely, the Parliament, in exercise of the power under Article 327, provides the manner in, and the ground on, which election disputes are to be decided (vide ss. 84, 86, 100 and 101). It is provided by Section 100(1)(c) that if the result of an election has been materially affected by the improper acceptance or rejection of any nomination, the Tribunal shall declare the election to be wholly void. Therefore, the petitioner has a remedy by an election petition which he may file, if he so chooses, in accordance with the rules prescribed in that behalf. He is, therefore, not entitled to seek a remedy by means of a writ for the purpose of doing that for which there is a remedy only by an election petition under the provisions of the Act.

12. The marginal note to Article 329, read with the non-obstante clause with which the Article begins, clearly shows that when any election dispute arises the power to decide such dispute is exclusively vested in the Election Tribunal that may be appointed in that behalf by the Election Commission. The restriction imposed by Article 329(b) is in harmony with the wholesome principle of law that if a right is a creation of a special statute wherein a remedy is also provided for the enforcement of such right, then that remedy alone and no other remedy is available to the person who has been denied the exercise of that right. Willes J. in -- Wolver-hampton Water Works Company v. Hawksford 141 E R 486 held :

"There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law : there unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class if any liability at all exists. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

13. The same view was taken by Jenkins- C. J. in -- Bhaishankar Nanabhai " v. The Municipal Corporation of Bombay 31 Bom 604 [LQ/BomHC/1907/86] where he observed :

"Where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunals jurisdiction to determine those questions is exclusive."

14. As the Constitution has created a new right and has prescribed remedy under a statute specially enacted for enforcing that right, that procedure and no other must be followed. In my opinion, this Court has no power under Article 226 to issue a writ particularly in view of the fact that the same matter may be dealt with by an Election Tribunal whose order under Sections 105 shall be final.

15. But even if it be assumed that the jurisdiction of the High Court has not been abridged by Article 329, it is not a case in which we should issue a mandamus, or any other writ, in exercise of our power under Article 226 of the Constitution, firstly because there is a possibi-lity of a conflict of decisions between the Tri-bunal and this Court, and secondly because there is another remedy open to the petitioner.

16. The Returning Officer has a judicial duty to perform at the scrutiny. It is his duty to decide whether or not a nomination paper, should be accepted; and if he rejects the nomi- nation paper, even though improperly, he acts with jurisdiction and discharges a judicial and not a ministerial function and in such a case this Court has no power to interfere with the decision by a mandamus or any other appropriate writ. It was held in -- Sharp v. Wake-field (1891) App Cas 173 that the Court will not by mandamus order a public officer who is invested with judicial, as distinct from ministerial power to perform a specific act in order to carry out his public duty. In -- Rex v. Justices of Kingston Ex parte Davy 86 L T 590 Lord Alverstone C. J. observed : "I think it is quite unusual to direct a judicial tribunal to act in a particular way unless it is quite plain that what they have to do is purely ministerial, and is not judicial."

In -- Manindra Chandra Nandi v. Provas Chandra Mitter ILR 51 Cal 279 [LQ/CalHC/1923/249] J., on a review of the decisions of the Indian High Courts as also of the English Courts, observed :

"Whether a question within the jurisdiction of a public officer entrusted with judicial powers has been bona fide entertained and decided by such officer, the Court will not interfere with his decision merely upon the ground that the decision was erroneous either with respect to facts or in point of law."

17. Now, if this Court issues a writ calling upon the Returning Officer to revise his decision and include the name of the petitioner in the list and rectify the list already made, the order will amount to a review of the order of the Returning Officer. But under the Act the order of the Returning Officer is subject to review by the Election Tribunal whose decision shall be final. Thus there is a possibility of a conflict of decisions. Such a possibility ought to be avoided f by refusing the prayer for a writ.

18. Then again the petitioner has a remedy by an election petition; and if another remedy is open, a writ ought not to issue even if the alternative remedy is not equally convenient.

It was held in -- the Queen v. the Registrar of Joint Stock Companies, 21 Q B D 131 at p. 136 as follows :

"It is a well established rule of practice, as to which there can be no doubt, that a mandamus ought not to be granted where there is another appropriate remedy. I do not wish to put it so high as to say that the other remedy must be as convenient, for I think that if no reasonable objection can be taken to the alternative remedy a mandamus ought not to be granted."

19. The principle of this case was followed by this Court in -- B. B. L. Railway v. District Board, 30 Patna 287.

20. Therefore, on a consideration of all the points raised before us, I do not consider that this is a fit case in which we ought to grant a mandamus or any other writ. The application is accordingly dismissed. There will be no order as to costs.

21. Miscellaneous Judicial Cases Nos. 366, 367, 368, 369, 371, 372, 373, 374, 375, 376, 377, 378, 379, 380, 381, 382, 393 and 394 of 1951 were heard for admission along with this case. For the reasons given by us, these applications are rejected.

Reuben, J.

22. I agree with what has been said by my Lord the Chief Justice. The use of the word "elections" in the plural and its association with the word "conduct" indicate that the Constituent Assembly was thinking not merely of the choice finally made by the electors but of proceedings leading up to that choice. The use of the word in the singular in Article 329 and the provision for questioning an "election" show that the word was intended to include the final choice. It was contended that it does more, and that it indicates the division of the whole proceedings into three stages, firstly, a preparatory stage during which the electoral rolls are prepared; secondly, an intermediate stage, when nominations are called for and re- ceived, and nomination papers are scrutinised and rejected or accepted as the case may be; and thirdly, the "elections", during which the polling takes place and the choice of the electors is ascertained. There was some difference at the bar as to the exact moment when the intermediate stage ends and the final stage begins but all agreed in putting it after the scrutiny of the nomination papers. It is only the final stage, it has been contended, which is governed by Article 329, and the jurisdiction of the Courts is not barred during the intermediate stage.

23. I think this idea of three stages is inconsistent with the scheme of Part XV of the Constitution and other provision elsewhere in the Constitution. The Constituent Assembly has brought into being an Election Commission, to which it has given a permanent existence, and which it has entrusted with responsibility not only with regard to the preparation of the electoral rolls and the con- duct of the elections, but also with matter which may arise at any time in connection with the Houses of the Legislature, vide for instance Articles 103 Clause (2) and 192 Clause (2). It is impossible to think that, having given the Commission responsibility in respect of the first and third of the above stages, it refrained from giving it the same responsibility during the intermediate stage. In my opinion, the correct view of Article 324 is that it divides the proceedings into two parts over each of which the Election Commission is given superintendence, direction and control. One is the preparation of the electoral rolls. The other is the "elections", which start when the first steps are taken after the President, or Governor or Rajpramukh, as the case may be, calls on the constituency to return its representatives. I have advisedly used the word "parts" instead of "stages" because, while the preparation of the electoral rolls must precede the elections, the work of preparing the electoral rolls never ends, the rolls being liable to revision or correction at any time and requiring to be prepared every year (vide ss. 23 and 25 of Act XLIII of 1950).

24. In support of the contention that the Constitution contemplates an intermediate stage between the preparation of the electoral rolls and the "elections", we have been referred to a number of Articles of the Constitution, in some of which the word "elect" or its derivatives are used in apparent contradistinction to the word "choose" or "represent" and their derivatives used elsewhere in the Constitution. These two words, it is contended, are wider in their connotation than the word "elect" and they cover the intermediate stage. I am not impressed with this argument. The use in Articles 54, 55, 57 and 58 of derivatives of the word "elect" is explained by the fact that under the Constitution the President of India will be selected only by election. A similar explanation applies to Articles 66 and 68, since the Vice President of India will also be selected only by election. This also explains why derivatives of the word "elect" occur in Article 71, which deals with doubts and disputes arising out of or in connection with the election of a President or a Vice-President of India. The word "represent" and its derivatives are very different in their significance from the word "elect" and its derivatives. The question of representation arises at an election but in a different way. The election is aimed at making a choice or selection and the person chosen or selected as a result of the election will be a representative of the electors, or, if the electors are members of an electoral college, the electors may themselves be representatives of the persons whom the person elected will represent. Further a representative is not necessarily, a person who is elected. For instance, under Art 80 Clause 5 of the Constitution, "representatives" of the States specified in Para C of the First Schedule in the Council of States shall be "chosen in such manner as Parliament may by law prescribe". The derivatives of the word "represent" are used in one or other of these senses in Articles 55, 66, 80 (1) (b), 80 (2), 80 (4), 80 (5) and 82.

Thus although representation may in a sense be regarded as wider than election, because a representative may be appointed by election or in other ways, neither "representation" nor any of its derivatives can be treated as signifying something wider than "election" in the sense that it includes within its significance the polling and the steps leading up to the polling. The word "choose" is similar in its significance to the word "elect", but, as I have indicated in the reference I have just made to Clause 5 of Article 80 of the Constitution, it is wider in its significance. A choice may be expressed by election or by other means. The word "choice", therefore, includes election. A reference may also be made to Article 171 which provides in Sub-clauses (1), (b) and (c) of Clause (3) for election by particular electorates, and Clause (4) speaks of the members so elected as being "chosen". It is in this wide sense that the word and its derivatives are used in the different Articles of the Constitution to which we have been referred. This is directly illustrated by Clause (1) of Article 170 which in reference to the Legislative Assemblies of the States speaks of members "chosen by direct election". Article 84 prescribes certain necessary qualifications without which a person may not be "chosen" to fill a seat in Parliament. A similar provision in Article 173 relates to qualifications for membership of a State Legislature. Articles 102 and 191 prescribe disqualifications from membership of these bodies. The reason why the term "chosen" has been used in these Articles instead of "elected" is apparent from the fact that it is possible for persons to become members of these legislative bodies without being elected, vide Articles 80 (1) (a), 80 (5), 171 (3) (e), 331 and 333. We have been referred also to the provision in Section 32 of Act XLIII of 1951 permitting the nomination of any person as a candidate for election" if he is qualified to be chosen under the provisions of the Constitution and this Act." It is evident that the word "chosen" has been used in this context with reference to the provisions regarding qualifications and disqualifications contained in the Constitution which use the word "chosen". To sum up, the word "choice" is wider than the word "election". In its significance it includes election, but this is in a sense quite different from that with which we are concerned. It is not wider than election in the sense that it includes the intermediate stage of the proceedings leading up to the polling, whereas the "election" begins only with the actual polling.

25. Among other arguments, particular stress was laid on the provisions of Article 71 of the Constitution as contrasted with the provisions of Articles 324 and 329. Under Clause (1) of Article 71.

"All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final".

It is pointed out that the word "all" does not occur in Clause (1) of Article 324 and that an election petition under Clause (b) of Article 329 is permitted when an "election" is questioned and does not cover, as Clause (1) of Article 71 does, "all doubts and disputes arising out of or in connection with the election". I do not attach much significance to the absence of the word "all" from Article 324. When the Constituent Assembly designated in Clause (1) of Article 324 the Election Tribunal as the special authority for the decision of doubts and disputes arising out of or in connection with elections to the Houses of the Legislatures, it by necessary implications excluded the jurisdiction of the ordinary Courts of law to decide such doubts and disputes. The absence of the word "all" may be due to the fact, which appears from Clause (b) of Article 329, that the Constituent Assembly did not contemplate that it would be the duty of the Election Tribunal to decide all such doubts and disputes. It intended that the already well-established and well-understood system of questioning elections by means of election petitions should be followed, namely, that the election petitions will be filed after the counting of the votes and the announcement of the names of the successful candidates, and that only those election petitions will be con sidered which seek relief on the ground that the illegality or irregularity complained of has made the result of the election void (vide Section 100, Act XLIII of 1951).

It was to signify this intention that in Clause (b) of Article 329 the Constituent Assembly used the word "election" by itself. Had it used the comprehensive words used in Clause (1) of Article 71, the provisions might have been misunderstood to entitle persons aggrieved to file election petitions during the initial stages of the election proceedings. The ultimate right to complain about illegalities and irregularities during the election proceedings is preserved by the provision in Clause (b) of Article 329, be- cause these illegalities and irregularities will form the grounds on which the election might be questioned.

26. On the authority of -- Lachmi Chand Suchanti v. Ram Pratap Choudhry, 14 Patna 24, it has been contended that, notwithstanding the provision of a special tribunal to hear and decide election petitions, the petitioners are entitled to seek relief from the ordinary Courts because the remedy by way of an election petition will not be available to them till after the polling is completed and the result has been announced. That was a case where the Legislature had left it to the Local Government to appoint an election tribunal and the Government had failed to carry its statutory duty and appoint such a tribunal. Here, however, the Legislature itself contemplates that the tribunal will not be appointed till after the result of the polling is announced and an election petition has been admitted by the Election Commission. The petitioners, therefore are not being denied a right by being compelled to wait until that time. In -- Sat Narain Gurwala v. Hanuman Prashad (AIR 1946 Lah 85) Mahajan J., observed :

"In my view, if the special tribunal con stituted by these rules come into existence and they function, in that event, there can be no manner of doubt that the civil Courts would have no jurisdiction. Their jurisdiction to try any matter of a civil nature would be barred. On the other hand, if the tribunal though contemplated by the rules and by the Legislature, do not come into existence or having come into existence they refused to deal with the matter with which they are entrusted, in that event the jurisdiction of a civil Court which it has under Section 9, Civil Procedure Code, is not ousted."

27-28. What we are asked to decide in the pre- sent case is that the decision of the Returning Officer rejecting the nomination paper of the petitioner was incorrect. Under Act XLIII of 1951, and the rules framed in pursuance of its provisions, the responsibility of deciding whether the nomination paper should or should not be accepted was placed on the Returning Officer. Whether his decision was incorrect or not, it was a decision within his jurisdiction.

Apart from any bar that may be created by Article 329, Clause (b), therefore, we cannot in exercise of our powers under Article 226 substitute our decision for his. In the words of Sir James W. Colvile in the -- Colonial Bank of Australasia v. Willan, (L. R. 5 P. C. Appeal Cases 417) :

"Accordingly, the authorities, of which -- Rog v. Bolton, (1 Q. B. 66) and -- Reg v. St. Olave, (8 E. & B. 528) 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 Queens Bench will not on certiorari quash such an adjudication on the ground tnat any such fact, however essential, has been erroneously found."

As the effect which the statutory bar contained in Clause (b) of Article 329 has on this Courts powers under Article 226 of the Constitution has been debated in the arguments before us, I cannot leave this case without a further citation :

"There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queens Bench will grant a certiorari, but some of these authorities establish, and none are in consistent 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. *****

In order to determine the first it is necessary to have a clear apprehension of what is meant by the term want of jurisdiction. There must, of course, be certain conditions cm which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions 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 facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. 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, assumed, 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 functions of a Court of appeal, and the power to re-try a question which the Judge was competent to decide."

29. Finally, I would deal briefly with a point which does not arise in this case but was raised in Miscellaneous Judicial cases 368 and 379 of 1951, which were heard along with this case for admission. In these cases the complaint is that a nomination paper has been wrongly accepted by the Returning Officer and snould have been rejected. They arise out of proceedings for the election of members to the Bihar Legislative Assembly. It was urged that these proceedings are entirely without jurisdiction. The ground on which this contention is based is that the existing Legislative Assembly has merely been prorogued; it has not been dissolved and the period of its duration is not drawing to a close. It is contended that under Sub-section (2) of Section 16 of Act XLIII of 1951 a general election can only be held either on the expiration of the duration of an Assembly or on its dissolution. This argument ignores Sub-section (1) which provides that "a general election shall be held for the purpose of constituting the Legislative Assembly of each State under the Constitution in due time." and relates to the general elections for constituting the Legislative Assemblies of the States for the first time under the present Constitution. That Sub-section (1) is to be read separately from Sub-section (2), which relates to subsequent general elections, is clear from the use of the word "also", in Sub-section(2) which provides :

"A general election shall also be held on the expiration of the duration of an Assembly or on its dissolution in order that a new Assembly may be constituted."

30. That this is the correct reading is evident from Section 17 which provides for the issue by the Governor or Rajpramukh of notifications "for the purpose of constituting the Legislative Assembly of a State under the Constitution in due time or on the expiration of the duration of an Assembly or on its dissolution."

On this being pointed out by us, it was urged that it did not make any difference to the argument, inasmuch as the phrase "in due time" must be read in the light of Article 172, Clause (1) of the Constitution under which every Legislative Assembly of a State unless sooner dissolved shall continue for five years from the date appointed for its first meeting and the expiration of the said period of five years shall operate as a dissolution of the Assembly. The contention is that "due time" in connection with the existing State Assemblies means either on a dissolution of the Assemblies or on the expiry of a period of five years. It was not indicated definitely when this period of five years must be taken to have commenced. I am unable to accept this contention. Clause (1) of Article 172 relates to Legislative Assemblies of the States constituted under the present Constitution. The existing Legislative Assembly of the State of Bihar has been continued in existence by Article 382 of the Constitution, the provisions of Clause (1) of which are : "Until the House or Houses of the Legislature of each State specified in Para A of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the House or Houses of the Legislature of the corresponding Province functioning immediately before the commencement of this Constitution shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of such State."

31. This empowers the existing Legislative Assembly to exercise the powers and perform the duties conferred by the Constitution on a Legislative Assembly constituted under the Con stitution. It does not make the exist ing Legislative Assembly a Legislative Assembly constituted under the Consti tution. It further provides that the existing Legislative Assembly will continue to exercise those powers and perform those duties until a Legislative Assembly has been duly consti tuted and has been summoned to meet for the first session under the present Constitution. In other words, there is no provision for dissolu tion; the existing Assembly will continue in existence till the new Assembly is ready to meet and has been summoned to its first session. The term "due time" merely gives expression to the desire of the Legislature that the autho rities concerned will take steps to constitute the new Legislative Assemblies in reasonable time.