Upadhyaya
Hargovind Devshanker Vs. Dhirendrasinh Virbhadrasinhji Solanki & Ors [1988]
INSC 46 (17 February
1988)
Venkataramiah,
E.S. (J) Venkataramiah, E.S. (J) Singh, K.N. (J)
CITATION:
1988 AIR 915 1988 SCR (2)1043 1988 SCC (2) 1 JT 1988 (1) 350 1988 SCALE (1)342
ACT:
Whether
a Letters Patent Appeal lies to a Division Bench of Gujarat High Court from an
interlocutory Order of a Single Judge of that High Court in the course of trial
of an election petition filed under the Representation of the People Act,
1951-Determination of question.
HEAD NOTE:
% The
question which arose for determination in this case was whether a Letters
Patent Appeal would lie to a Division Bench of the High Court of Gujarat from
an interlocutory order of a Single Judge of that High Court in the course of
the trial of an election petition filed under the Representation of the People
Act, 1951.
The
appellant and respondents Nos. 1 to 6 were candidates at an election held to
fill a seat in the Legislative Assembly of the Gujarat State. The appellant was declared
elected. Thereupon, the 1st respondent filed an election petition in the High
Court, challenging the validity of the election of the appellant on a number of
allegations, and in order to establish his case, he filed an application before
the Single Judge who was trying the election petition, to direct the Returning
Officer to produce all the records of the election, mentioned in the
application, and prayed for permission to inspect the same.
The
appellant opposed the prayers made by the 1st respondent.
The
Single Judge declined to grant the application made by the Ist respondent.
Against the order of the Single Judge, the Ist respondent preferred an appeal
under clause 15 of the Letters Patent of the Gujarat High Court. The Division
Bench of the High Court allowed the appeal to the extent indicated in its
judgment, overruling the contention of the appellant that the appeal was not
maintainable as there was no provision in the Act, permitting an appeal to the
Division Bench of the High Court against an interlocutory order of a Single
Judge hearing an election petition filed under the Act. Aggrieved by the
decision of the Division Bench, the appellant moved this Court for relief by
special leave.
Allowing
the appeal, setting aside the judgment of the Division 1044 Bench of the High
Court and dismissing the Letters Patent Appeal while expressing no opinion on
the merits of the case, the Court, ^
HELD:
The only point urged in this appeal by the appellant was that the appeal filed
under clause 15 of the Letters Patent of the High Court against the
interlocutory order passed by the Single Judge was not maintainable and,
therefore, the judgment of the Division Bench was liable to be set aside.
[1048C-D] Under the provisions of the Act as amended and the provisions of the
Constitution of India, no Court exercising power under any ordinary law other
than the Judge of a High Court who had been assigned the work of trying an
election petition under sub-section (2) of section 80 A of the Act and the
Supreme Court which was empowered to hear an appeal against any order passed by
the judge of the High Court under section 98 or section 99 of the Act, could
decide any question arising out of an election petition. The power of the
Supreme Court under the provisions of the Constitution was, however, unaffected
by any of the provisions of the Act. It meant that when an election petition
was pending in the High Court, only the judge who was asked to try the election
petition could deal with the questions arising in it and no other judge or
judges of the High Court could deal with them. When an order was passed under
section 98 or section 99 of the Act by a judge of the High Court in an election
petition, it was subject to the appellate jurisdiction of the Supreme Court
under section 116-A of the Act, Article 136 of the Constitution being excluded
in view of the express provisions of section 116-A of the Act, and being
resorted to by any party aggrieved by any order passed by the judge trying an
election petition not falling under section 98 or section 99 of the Act. It
followed that the Division Bench of the High Court, which was entitled to hear
an appeal against any order of a Single Judge under clause 15 of the Letters
Patent of the High Court, which was an ordinary law, could not hear an appeal
against any interlocutory order passed in the course of the trial of an
election petition by the Judge trying the election petition, since the Division
Bench was not specified in the Act as an appellate authority which could deal
with questions arising out of an election petition filed under the Act.
[1053G-H; 1054A-D] Under clause 15 of the Letters Patent, an appeal no doubt
lay from an order of a Single Judge of the High Court exercising Original
Jurisdiction to the High Court itself irrespective of the fact that the
judgment was preliminary or final or that it was one passed at an interlocutory
stage, provided it satisfied certain conditions, but the said 1045 provision
could not be extended to an election petition filed under the Act. Conferment
of the power to try an election petition under the Act did not amount to
enlargement of the existing jurisdiction of the High Court.
The
jurisdiction exercisable by the Single Judge under the Act was a special jurisdiction
conferred on the High Court by virtue of Article 329(b) of the Constitution. In
view of the limited nature of the appeal expressly provided in section 116-A of
the Act, it should be held that any other right of appeal (excluding that under
the Constitution) was taken away by necessary implication. Therefore, it was
difficult to subscribe to the view that when once the jurisdiction to try an
election petition was conferred on the High Court, all other powers incidental
to the ordinary original jurisdiction exercised by a single Judge of a High
Court would become applicable to an election petition under the Act. If the
Parliament had intended that the Division Bench of the High Court should
exercise its appellate jurisdiction under clause 15 of the Letters Patent of
the High Court, probably, it would not have enacted sub-section (7) of section
86 of the Act, having regard to the well- known tendency of one or the other
party to an election petition preferring appeals against the interlocutory
orders to the Division Bench. If such appeals against the interlocutory orders
to the High Court, were permitted, perhaps, no election dispute would be
finally settled till the next election became due. As regards the jurisdiction
to try an election petition and the right of appeal of the parties to an
election petition, the provisions of the Act (apart from the provisions in the
Constitution) constituted a complete code and no Judge or Judges other than the
Single Judge of the High Court, who was asked to try an election petition, and
the Supreme Court, exercising the appellate powers under section 116-A of the
Act in respect of orders passed under section 98 or section 99 of the Act or
under Article 136 of the Constitution in respect of other orders, could have any
jurisdiction to deal with any matter arising out of an election petition filed
under the Act. The Court disagreed with the view expressed on this question by
the Gujarat High Court in Dr. Chotalal Jivabhai Patel v. Vadilal Lallubhai
Mehta & Ors., (12 Gujarat Law Reporter 850), and overruled that decision of
the High Court. The Court also overruled the decision of the Madras High Court
in Kadiravan alias Shamsudeen v. B. Thirumalaikumar, ILR (1970) 2 Mad. 183 and
the decision of the Madhya Pradesh High Court in Laxmi Narayan Nayak v. Ramratan
Chaturvedi & Ors, AIR 1986 Madhya Pradesh 165 which had taken the same view
as in Dr. Chotalal Jivabhai Patel's Case (supra). The Court agreed with the
view expressed by the Allahabad High Court in Siaram v. Nathuram & Ors.,
[1968] ALL. L.J. 576 and by the Rajasthan High Court in Ramdhar v. Shanwar Lal,
AIR 1985 Rajasthan 185 which held that by necessary 1046 implication an appeal
to the High Court from an interlocutory order of the Single Judge of the High
Court in the course of trial of an election petition filed under the Act, was
excluded. [1054G-H; 1055A-H; 1056A-H] The Division Bench of the High Court of
Gujarat had no jurisdiction to hear the appeal filed by the Ist respondent
against the interlocutory order passed by the Single Judge who was trying the
election petition. Judgment of the Division Bench of the High Court set aside,
Letters Patent Appeal dismissed. [1057B] Dr. Chotalal Jivabhai Patel v. Vadilal
Lallubhai Mehta
Shamsudeen
v. B. Thirumalai Kumar, ILR (1970) 2 Mad.
183; and Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors., A.I.R. 1986
Madhya Pradesh 165, overruled.
Siaram
v. Nathuram and Ors., [1968] All. L.J. 576 and Ramdhan v. Bhanwarlal, A.I.R.
1985 Rajasthan 185 approved.
N.P. Ponnuswami
v. Returning Officer, Namekkal Constitutency and others, [1952] S.C.R. 218;
Shah Babulal Khimji v. Jayaban D. Kania & Anr., [1982] 1 S.C.R. 187 and
National Telephone Company Ltd. v. Post Master General, [1913] A.C.546,
referred to.
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 660 of 1988.
From
the Judgment and Order dated 20.8.1987 of the Gujarat High Court in Election Petn.
No. 6 of 1985.
Shanti
Bhushan, P.M. Raval, M.V. Goswami and Ambrish Kumar for the Appellant.
Vithalbhai
B. Patel and R.P. Kapoor for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The question which
arises for consideration in this appeal is whether a Letters Patent appeal lies
to a Division Bench of the High Court of Gujarat from an interlocutory order passed
by a Single Judge of that High Court in the course of the trial of an election
petition filed under the provisions of the Representation of the People Act,
1951 (hereinafter referred to as 'the Act') or not.
1047
At the election held on March
5, 1985 to fill a seat
in the Legislative Assembly of the State of Gujarat from the Lunavada Legislative Assembly Constituency the appellant and
respondent Nos. 1 to 6 were the candidates. At that election the appellant
having secured the largest number of votes was declared as elected to the
Legislative Assembly. Thereupon the 1st respondent filed an election petition
in Election Petition No. 6 of 1985 on the file of the High Court of Gujarat
under section 81 of the Act questioning the validity of the election of the
appellant on various grounds. The appellant contested the election petition. On
the basis of the pleadings a number of issues were framed. In the course of the
election petition, the first respondent had made inter alia the following
allegations:
(i) that
bogus votes had been cast in favour of the appellant in the names of dead
persons;
(ii)
that votes had been cast in the names of voters who were physically far away
from the constituency and had not come for voting on the date of polling; and
(iii) that
votes had been cast in the names of voters who were out of the country on the
day of polling.
In
order to establish his case, the Ist respondent applied to the learned Single
Judge who was trying the election petition to direct the Returning Officer to
produce all the records of election and particularly the used ballot papers and
counterfoils of used ballot papers, the unused ballot papers, the marked copies
of electoral rolls and the authorisations of the polling agents of different
candidates in respect of 13 villages and 14 polling booths mentioned in the
application. The Ist respondent prayed for permission to inspect the ballot
papers, the marked copies of voters' lists and certain other materials referred
to above. The appellant objected to the grant of the prayers made by the Ist
respondent.
After
taking into consideration the evidence that had been adduced before him and
hearing the arguments of the learned counsel for the parties, the learned
Single Judge declined to grant the application made by the Ist respondent by
his Order dated July 18/21, 1986. Aggrieved by the order passed by the learned
Single Judge the Ist respondent preferred an appeal under clause 15 of the
Letters Patent of the High Court of Gujarat in Letters Patent Appeal No. 3 of
1987 which was heard by a Division Bench of the High Court.
Before
the 1048 Division Bench the appellant contended that the appeal was not
maintainable on the ground that there was no provision in the Act which
permitted an appeal to the Division Bench of the High Court against an
interlocutory order of a Judge hearing the election petition filed under the
Act and that clause 15 of the Letters Patent was not applicable to the case.
The Division Bench after overruling the objection regarding the maintainability
of the appeal in view of the decision of the High Court of Gujarat in Dr. Chotalal
Jivabhai Patel v. Vadilal Lallubhai Mehta & Ors., 12 Gujarat Law Reporter
850 allowed the appeal to the extent indicated in the course of its judgment.
Aggrieved by the decision of the Division Bench, the appellant has filed this
appeal by special leave under Article 136 of the Constitution of India.
The
only point urged on behalf of the appellant in the course of this appeal is
that the appeal filed under clause 15 of the Letters Patent of the High Court
against the interlocutory order passed by the learned Single Judge was not
maintainable and, therefore, the judgment of the Division Bench was liable to
be set aside. In order to appreciate the submissions made by the learned
counsel for the parties before us, it is necessary to refer to the relevant
provisions of the Constitution, the Act and the Letters Patent.
Article
329(b) of the Constitution of India reads thus:
"329.
Bar to interfere by courts in electoral matters-Notwithstanding anything in
this Constitution.
(a)..........................................
(b) 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." (underlining by
us) Article 327 of the Constitution gives power to Parliament to make
provisions with respect to elections to Legislatures. It reads thus:
"327.
Power of Parliament to make provision with respect to elections to
Legislatures-Subject to the provisions of this Constitution, Parliament may
from time to time by law 1049 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." In exercise of its powers under Article 329(b) read with Article
327 of the Constitution Parliament enacted the Act in the year 1951. In the
Act, provision was made for constituting an authority to decide election
disputes as required by clause (b) of Article 329 of the Constitution of India.
The scheme of the Act, as it originally stood, insofar as the presentation of
the election petitions and their trial was concerned was as follows:
Under section
81 of the Act an election petition calling in question any election had to be
presented to the Election Commission by any candiate 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 the candidates at
such election. The election petition so presented to the Election Commission
was liable to be dismissed by the Election Commission itself under section 85
of the Act if it was not presented in accordance with the provisions of section
81 of the Act, if the petition did not conform to the provisions of section 83
of the Act or if the petitioner had not enclosed with the petition a Government
treasury receipt showing that a deposit of Rs. 1,000 had been made by him
either in a Government treasury or in the Reserve Bank of India in favour of
the Secretary to the Election Commission as security for the costs of the
petition. If the petition was not dismissed under section 85 of the Act, the
Election Commission was required to appoint an Election Tribunal for the trial
of the petition. Under section 86 of the Act every election tribunal appointed
under this section was to consist of a Chairman who was either or had been a
Judge of the High Court or a person selected by the Election Commission from
the list maintained by it under clause (a) of sub-section (2) of section 86 of
the Act and two other members of whom one was a person who had been a District
Judge in the State and was in the opinion of the High Court fit to be appointed
as a member of the Election Tribunal and the other was an advocate of that High
Court who had been in practice for a period of not less than 10 years and who
was in the opinion of the High Court fit to be appointed as 1050 such member.
The Election Tribunal had under section 98 of the Act the power to dismiss an
election petition, to declare the election of the returned candidate or the
returned candidates as void and to declare the election of all or any of the
returned candidates to be void and the petitioner or any other candidate was
duly elected or to declare the election to be wholly void.
It had
also the power to pass certain other orders mentioned in section 99 of the Act.
The powers of the Tribunal, the procedure to be followed by it and the other
details regarding the trial of an election petition had been set out in Chapter
III of Part VI of the Act. Section 105 of the Act, as it then stood, declared
that every order of the Tribunal made under the Act was final and conclusive.
No appeal was provided against the order of the Tribunal interlocutory or
final. Any person aggrieved by the decision of the Tribunal could only move
either the High Court having jurisdiction over the matter under Article 226 or
the Supreme Court of India under Article 136 of the Constitution.
In
N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and others, [1952]
S.C.R. 218 a Constitution Bench of this Court observed that the right to vote
or to stand as a candidate for an election was not a civil right but was a
creature of statute or special law and must be subject to the limitations
imposed by it. It further observed that it was the sole right of the
Legislature to examine and determine all materials retained to the election of
its own members and if the Legislature took it out of its own hands and vested
in a special tribunal an entirely new and unknown jurisdiction, that special
jurisdiction should be exercised in accordance with the law which created it.
After
considering the relevant provisions of the Act, the Court observed at page 230
thus:
"Obviously,
the Act is a self-contained enactment so far as elections are concerned, which
means that whenever we have to ascertain the true position in regard to any
matter connected with elections, we have only to look at the Act and the rules
made there under." It proceeded further to observe at Page 231 thus:
"It
is well-recognised that where a right or liability is created by a statute
which gives a special remedy for enforcing it, the remedy provided by that
statute only must be availed of." 1051 It is thus seen that when the Act
was originally enacted the authority constituted by law under Article 329(b) of
the Constitution of India to try an election petition was a single-tier authority,
i.e., the Election Tribunal constituted under section 86 of the Act against
whose orders, interlocutory or final, there was no appeal provided by the Act.
Apart from the remedies available under the constitutional provisions against
the orders of the Election Tribunal no other court in India had jurisdiction to
interfere with the orders of the Election Tribunal either in appeal or
otherwise.
In
1957 Parliament perhaps felt that the scheme of the provisions relating to
settlement of disputes regarding elections was not quite satisfactory.
Therefore by Act 27 of 1956 the Act was amended by introducing certain changes
with regard to the constitution of the Tribunal and by providing an appeal
against the final orders of the Tribunal under section 98 or section 99 of the
Act. Instead of an Election Tribunal consisting of three persons as it was
originally provided, under section 86 of the Act which was substituted in the
place of the original section 86 of the Act, it was provided that if an
election petition was not dismissed under section 85 of the Act by the Election
Commission, the Election Commission shall constitute a Tribunal for trying the
election petition by appointing a District Judge from a list of persons who
were District Judges in the State and were in the opinion of the High Court fit
to be appointed as members of the Election Tribunal. Under this provision the
Tribunal thus consisted of a single member. A new chapter entitled 'Chapter
IV-A' consisting of sections 116-A and 116-D was introduced into Part VI of the
Act providing for an appeal from any order of the Election Tribunal made under
section 98 or section 99 of the Act to the High Court of the State in which the
Tribunal was situated. The decision of the High Court on appeal under the said Chapter
and subject only to such decision the order of the Tribunal under section 98 or
section 99 of the Act was final and conclusive. Thus by the above amendment the
authority to decide election disputes constituted under Article 329(b) of the
Constitution of India became a two-tier authority, the Election Tribunal being
the original authority and the High Court being the appellate authority. The
decision of the High Court was no doubt subject to appeal to this Court under
the provisions of the Constitution. Even here there was no provision for an
appeal against the interlocutory orders passed by the Election Tribunal but
they were only subject to the jurisdiction of the High Court under Article 226
of the Constitution and this Court under Article 136 of the Constitution.
1052
The above situation continued till the Act was further amended by the
Representation of the People (Amendment) Act, 1966. By this amendment the power
to try an Election Petition was entrusted to the High Court. The new section
80-A which was introduced into the Act reads as follows:
"80-A.
High Court to try election petitions: (1) The Court having jurisdiction to try
an election petition shall be the High Court.
(2)Such
jurisdiction shall be exercised ordinarily by a single Judge of the High Court
and the Chief Justice shall, from time to time, assign one or more Judges for
that purpose.
Provided
that where the High Court consists only of one Judge, he shall try all election
petitions presented to that Court.
(3)
The High Court in its discretion may, in the interests of justice or
convenience, try an election petition, wholly or partly, at a place other than
the place of seat of the High Court." A new section was substituted in the
place of the former section 86 of the Act by the amendment made in the year.
1966. The relevant part of new section 86 reads thus:
"86.
Trial of election petitions-(1) The High Court shall dismiss an election
petition which does not comply with the provisions of section 81 or section 82
or section 117.
Explanation-An
order of the High Court dismissing an election petition under this sub- section
shall be deemed to be an order made under clause (a) of section 98.
(2) As
soon as may be after an election petition has been presented to the High Court,
it shall be referred to the Judge or one of the Judges who has or have been
assigned by the Chief Justice for the trial of election petitions under
sub-section (2) of section 80A.
1053
(7) Every election petition shall be tried as expeditiously as possible and endeavour
shall be made to conclude the trial within six months from the date on which
the election petition is presented to the High Court for trial".
By the
above said amendment the former section 116-A of the Act was substituted by new
section 116-A providing for an appeal against the order made by the High Court
under section 98 or section 99 of the Act to this Court. The new section 116-A
reads thus:
"116-A.
Appeals to Supreme Court-(1) Notwithstanding anything contained in any other
law for the time being in force, an appeal shall lie to the Supreme Court on
any question (whether of law or fact) from every order made by a High Court
under section 98 or section 99.
(2)
Every appeal under this Chapter shall be preferred within a period of thirty
days from the date of the order of the High Court under section 98 or section
99.
Provided
that the Supreme Court may entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that the appellant had sufficient
cause for not preferring the appeal within such period." Even on this
occasion the Act did not provide for any appeal against any interlocutory order
passed by Judge trying an election petition. After the above amendment the
authority referred to in Article 329(b) of the Constitution to decide an
election petition under the Act is again two- tier authority-the High Court
Judge trying an election petition being the original authority and the Supreme
Court the appellate authority. The effect of clause (b) of Article 329 of the
Constitution as already referred to above has been explained by the
Constitution Bench of this Court in N.P. Ponnuswami's case (supra). No Court
exercising power under any ordinary law other than the judge of a High Court
who has been assigned the work of trying an election petition under sub-section
(2) of section 80A of the Act and the Supreme Court which is empowered to hear
an appeal against any order passed by the Judge of the High Court under section
98 or section 99 of the Act can therefore decide any question arising out of an
election petition. The power of the Supreme Court under the provisions of the
Constitution which is the fundamental law of the land and not an ordinary law
is however unaffected by any of the provisions of 1054 the Act. It means that
when the election petition is pending in the High Court only the Judge who is
asked to try an election petition can deal with questions arising in it and no
other Judge or Judges of the High Court can deal with them. When the order
passed by the Judge of the High Court in an election petition is an order
passed under section 98 or section 99 of the Act it is subject to the appellate
jurisdiction of the Supreme Court under section 116-A of the Act as Article 136
of the Constitution naturally stands excluded in view of the express provisions
contained in section 116-A of the Act. The remedy available under Article 136
of the Constitution may, however, be resorted to by any party who is aggrieved
by any order passed by the Judge trying an election petition which does not
fall under section 98 or section 99 of the Act. It follows that the Division
Bench of the High Court which is entitled to hear an appeal against any order
of a Single Judge under clause 15 of the Letters Patent of the High Court which
is an ordinary law cannot hear an appeal against any interlocutory order passed
in the course of the trial of an election petition by the Judge trying an
election petition since the Division Bench is not specified in the Act as an
appellate authority which can deal with questions arising out of an election
petition filed under the Act.
Clause
15 of the Letters Patent of the High Court of Gujarat (omitting the unnecessary
portions) reads as follows:
"15.
Appeal from the Courts of original jurisdiction to the High Court in its
appellate jurisdiction.-And we do further ordain that an appeal shall lie to
the said High court ............ from the judgment (not being a judgment passed
in the exercise of appellate jurisdiction ..........) of one Judge of the said
High Court or one Judge of any Division Court, pursuant to section 108 of the
Government of India Act,.....
The
relevant part of clause 15 of the Letters Patent which is referred to above
provides for an appeal against a judgment passed by a Single Judge of a High
Court to the same High Court and the scope of the said appellate power has been
explained by this Court in Shah Babulal Khimji v. Jayaben D. Kania & Anr.,
[1982] 1 S.C.R. 187. An appeal no doubt lies under that clause from an order of
a Single Judge of the High Court exercising original jurisdiction to the High
Court itself irrespective of the fact that the judgment is preliminary or final
or that it is one passed at an interlocutory stage provided it satisfies the
conditions set out in the above decision but the said provision cannot 1055 be
extended to an election petition filed under the Act.
Conferment
of the power to try an election petition filed under the Act does not amount to
enlargement of the existing jurisdiction of the High Court. The jurisdiction
exercisable by the Single Judge under the Act is a special jurisdiction
conferred on the High Court by virtue of Article 329(b) of the Constitution.
Having regard to the history of the legislation and the limited nature of the
appeal expressly provided in section 116-A of the Act it should be held that
any other right of appeal (excluding that under the Constitution) is taken away
by necessary implication. We, therefore, find it difficult to subscribe to the
view that when once the jurisdiction to try an election petition is conferred
on the High Court all other powers incidental to the ordinary original
jurisdiction exercised by a Single Judge of a High Court would become
applicable to an election petition filed under the Act. It is no doubt true
that in Dr. Chotalal Jivabhai Patel's case (supra) the Division Bench of the
High Court of Gujarat applied the rule laid down in National Telephone Company
Ltd. v. Post Master General, [913] A.C. 546 namely "When a question is
stated to be referred to an established Court without more, it .......
imports
that the ordinary incidents of the procedure of that Court are to attach, and
also that any general right of appeal from its decision likewise attaches"
to an election petition filed under the Act which the High Court could try in
exercise of the special jurisdiction conferred on it by the Act and held that
except an order under section 98 or section 99 of the Act which was made
expressly appealable under section 116A of the Act to this Court all other orders
passed by the Judge trying an election petition would be appealable to the High
Court under clause 15 of the Letters Patent. The principle applied by the High
Court is not an unqualified one. That rule itself suggests that even where a
court is asked to hear a case, it is quite possible that the nature of the
jurisdiction may be such that all the incidents of procedure or any general
right of appeal from its decision may not be attracted. Perhaps the Division
Bench would not have reached the said conclusion if it had considered the
effect of Article 329(b) of the Constitution which authorised the creation of
an authority for trying disputes arising out of elections to the Houses of
Parliament and to the Houses of State Legislatures and the history and the
scheme of the Act and the limited right of appeal provided in section 116-A of
the Act. We do not find any discussion about the effect of the constitutional
provision in Article 329(b) in the course of the said decision. There was also
no adequate appreciation of the need to construe the Act as a complete code
regarding all matters relating to settlement of election disputes. It is
significant that in sub-section (7) of section 86 of the Act it is stated that
every election petition shall be 1056 tried as expeditiously as possible and endeavour
shall be made to conclude the trial within six months from the date on which
the election petition is presented to the High Court for trial. If Parliament
intended that the Division Bench of the High Court should exercise its
appellate jurisdiction under clause 15 of the Letters Patent of the High Court
probably it would not have enacted sub-section (7) of section 86 of the Act
having regard to the well-known tendency of one or the other party to an
election petition preferring appeals against interlocutory orders to the
Division Bench. The presence of such a remedy is enough to defeat the object of
enacting sub-section (7) of section 86.
If
such appeals against interlocutory orders to the High Court are permitted perhaps
no election dispute will be finally settled until the next election becomes
due. The intention of Parliament is that at the level of the High Court only
the Judge who is asked by the learned Chief Justice to try an election petition
should be the sole Judge to decide any question arising out of any such
election petition and that at the appellate stage the Supreme Court alone
should deal with any matter arising out of the election petition. We are of the
view that as regards the jurisdiction to try an election petition and the right
of appeal of the parties to an election petition, the provisions of the Act
(apart from the provisions in the Constitution) constitute a complete code and
no other Judge or Judges other than the Single Judge of the High Court who is
asked to try an election petition and the Supreme Court exercising appellate
powers under section 116A of the Act in respect of orders passed under section
98 or section 99 of the Act or under Article 136 of the Constitution in respect
of other orders can have any jurisdiction to deal with any matter arising out
of an election petition filed under the Act. We do not therefore agree with the
view expressed on this question by the High Court of Gujarat in Dr. Chotalal Jivabhai
Patel's case (supra). We therefore overrule the said decision. We also overrule
the decision of the Madras High Court in Kadiravan alias Shamsudeen v. B. Thirumalaikumar,
I.L.R. (1970) 2 Mad. 183 and the decision of the Madhya
Pradesh High Court in Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors.,
A.I.R. 1986 Madhya Pradesh 165 which have taken the same view as in Dr. Chotalal
Jivabhai Patel's case (supra). We are, however, in agreement with the view
expressed by the High Court of Allahabad in Siaram v. Nathuram & Ors., [1968]
All. L.J. 576 and by the High Court of Rajasthan in Ramdhan v. Shanwarlal,
A.I.R. 1985 Rajasthan 185 which have held that by necessary implication an
appeal to the High Court from an interlocutory order passed by the Single Judge
of the High Court in the course of a trial of an election petition filed under
the Act is excluded. The reasons given in the latter case by the Full 1057
Bench of the Rajasthan High Court are indeed quite substantial.
The
Division Bench of the High Court of Gujarat had, therefore, no jurisdiction to
hear the appeal filed by the Ist respondent against the interlocutory order
passed by the learned Single Judge who was trying the election petition.
We,
therefore, set aside the judgment of the Division Bench of the High Court and dismiss
the Letters Patent appeal filed before the High Court. We however express no
opinion on the merits of the case. The parties are at liberty to resort to any
other remedy open to them in law. The appeal is accordingly allowed. No costs.
S.L.
Appeal allowed.
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