HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Chief Justice's Court Special Appeal No.2158 of 2011 Pradeep Jain (Aditya) Versus Hari Shanker Jijauriya And Another Hon'ble Syed Rafat Alam, Chief Justice Hon'ble Krishna Murari, J.
This intra court appeal under the Rules of the Court has been preferred against the order dated 10.10.2011 passed by the learned Single Judge, rejecting Civil Misc. Amendment Application No.229033 of 2011 filed by respondent no.1 - appellant, seeking amendment in the written statement filed in an Election Petition No.2 of 2009.
Respondent no.1, herein, challenged the election of the appellant as Member of Parliament from 46th Jhansi Parliamentary Constituency, by filing Election Petition No.2 of 2009 on various grounds. In response to the notice, appellant put in appearance and filed written statement. After issues were framed, an application was moved by the appellant, seeking amendment in the written statement. Learned Single Judge vide order under appeal finding that the facts which were sought to be added in the written statement by way of amendment, were already covered by issues framed in the election petition and were basically in the nature of evidence which could be adduced during the course of trial, rejected the same. Aggrieved by the same, respondent no.1 - appellant has preferred this appeal.
At the outset, Sri N.K. Pandey, learned counsel appearing on behalf of the respondent no.1, herein, raised a preliminary objection with respect to the maintainability of this appeal. Placing reliance upon the pronouncement of the Hon'ble Apex Court in Upadhyaya Hargovind Devshanker Vs. Dhirendrasinh Virbhadrasinhji Solanki and others, AIR 1988 Supreme Court 915, it has been submitted that no intra court appeal is maintainable against interlocutory order passed by the learned Single Judge in an election petition filed under Representation of People Act, 1951 (hereinafter referred to as 'the Act of 1951').
Sri M.K. Gupta, learned counsel for the appellant sought to argue that though no appeal lies against the final order passed in an election petition but an appeal under Chapter VIII Rule 5 of the Rules of the Court would be maintainable against any interlocutory order passed during the course of trial of an election petition. He has placed reliance on various pronouncements of this Court as well as Hon'ble Apex Court, setting out the conditions under which an intra court appeal lies against an interlocutory order passed by the learned Single Judge in writ proceedings under Article 226 of the Constitution of India. He further submitted that since the Act of 1951 does not contain any provision of appeals from an interlocutory order passed by the learned Single Judge during the course of trial of an election petition, the normal procedure prescribed for such appeals under the Rules of the Court should be assumed to be applicable.
The sole question for consideration is whether an intra court appeal under the Rules of the Court is maintainable against an interlocutory order passed by learned Single Judge during the course of trial of an election petition filed under the Act of 1951.
The Act of 1951 was enacted by the Parliament in exercise of its power conferred by Article 329 (b) read with Article 327 of the Constitution of India. Under the scheme of the Act of 1951, as it originally stood, there was a provision for constituting an authority to decide the election disputes. Section 81 of the Act of 1951, provided that an election petition could be filed, calling in question any election by any candidate or any elector before the Election Commission under Section 85 of the Act of 1951. Election Commission was empowered to dismiss the election petition if it was not presented in accordance with the provisions of Section 81 of the Act of 1951 or if the same did not conform to the provisions of Section 83 of the Act of 1951 or if it is not accompanied with the Government treasury receipt showing deposit of the security amount. However, if the petition was not dismissed under Section 85 of the Act of 1951, the Election Commission was empowered to appoint an Election Tribunal for the trial of the petition. Section 86 contained the provision of procedure for constituting an Election Tribunal for the trial of the petition.
Under section 98 of the Act of 1951, the Election Tribunal so constituted was empowered to either dismiss the election petition or to declare the election of the returned candidate as illegal and void or to declare the election of the petitioner or any other candidate as duly elected.
The Act of 1951, as it originally stood, did not contain any provision of appeal against any order of the Tribunal. Under section 105 of the Act of 1951, as it then stood, that every order of the Tribunal interlocutory or final made under the Act of 1951 was final and conclusive. Thus, any person aggrieved by the decision of the Tribunal could only approach the High Court, having jurisdiction over the matter under Article 226 or the Hon'ble Supreme Court under Article 136 of the Constitution of India.
By amending Act 27 of 1956, the Act of 1951 was amended bringing certain changes with regard to the Constitution of the Tribunal. The amending Act provided an appeal against the final order made by the Tribunal under Section 98 or under Section 99 of the Act of 1951 to the High Court of the State in which the Tribunal was constituted. The decision of the High Court on the appeal was final and conclusive. Even the amending Act 27 of 1956 did not make any provision for an appeal against any interlocutory order passed by the Election Tribunal during the course of the Trial.
The Act of 1951 came to be further amended by Representation of People (Amendment), 1966. By introducing new Section 80-A, the power to try an election petition was vested in the High Court. The amending Act further substituted the earlier Section 116-A of the Act 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 before the Supreme Court. Even by this amendment in the Act made by the Parliament, there was no provision for appeal against any interlocutory order passed by the learned Single Judge entrusted to try the election petition.
Chapter IV-A of the Act of 1951, as it stands today, deals with the appeals. Section 116-A of Chapter IV-A provides for appeals to Supreme Court. Sub - section 1 of Section 116-A reads as under :
"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 the High Court under Section 98 or Section 99."
In N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, AIR 1952 SC 64, a Constitution Bench while considering the provisions of the Representation of People Act, 1951 has held 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 was further observed that it was the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the Legislature decided to take 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 Hon'ble Apex Court further observed as under :
"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 to look at the Act and the rules made thereunder."
In view of the above dictum of the Hon'ble Apex Court, Representation of People Act, 1951 is to be construed as a complete Code regarding all matters relating to settlement of election disputes.
Chapter IV-A of the Act of 1951 dealing with the appeals are exhaustive and do not contain any provision for an appeal against the interlocutory order passed during the course of trial of an election petition.
There is yet another aspect of the matter. Sub - section 7 of Section 86 of the Act of 1951, provides that 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 the trial. By enacting the said provision, the Legislature intended quick disposal of the election petitions for obvious reasons that the time is the essence as the term of an elected member is for a fixed period and for this reason did not make any provision for appeal against an interlocutory order passed during the trial of election petitions. The very intention of the Legislature by making a provision enacted in Sub-section 7 of Section 86 of the Act of 1951 would stand defeated, in case the appeal is held to be maintainable.
The issue in question has already been answered by the Division Bench judgment of this Court in Siaram Vs. Nathuram and others, 1968 ALJ 576, wherein it has been held that appeal against an interlocutory order passed by the learned Single Judge during proceedings of election petition, is not maintainable. This view further stands concluded by authoritative pronouncement of the Apex Court in Upadhyaya Hargovind Devshanker (supra), relied upon by the learned counsel for the respondent no.1. In paragraph no.17, Hon'ble Apex Court has observed as under :
"... 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 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 Art. 329(b) of the Constitution. Having regard to the history of the legislation and the limited nature of the appeal expressly provided in S. 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 has further been held as under :
"... 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 116-A of the Act in respect of orders passed under S. 98 or S. 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."
The law having been settled various case laws relating to maintainability of intra court appeal against interlocutory orders passed by learned Single Judge in writ proceedings relied upon by the learned counsel for the appellant, are of no help as they have no application and no useful purpose would be served by referring them.
In view of the aforesaid facts and discussions and the authoritative pronouncement of the Hon'ble Apex Court in the case of Upadhyaya Hargovind Devshanker (supra), the present appeal under the Rules of the Court is not maintainable and accordingly stands dismissed.
Order Date :- 11.11.2011 VMA (S.R. Alam, C.J.) (Krishna Murari, J.)