Full Judgment Text
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PETITIONER:
UPADHYAYA HARGOVIND DEVSHANKER
Vs.
RESPONDENT:
DHIRENDRASINH VIRBHADRASINHJI SOLANKI & OTHERS
DATE OF JUDGMENT17/02/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
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.
HEADNOTE:
%
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.
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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
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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
JUDGMENT:
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.
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&
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.
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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
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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
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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 thereunder."
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.
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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
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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
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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
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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
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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
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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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