Bombay High Court
Kailash Kishanrao Gorantyal vs Arjun Panditrao Khotkar on 18 November, 2016
Bench: T.V. Nalawade
1 EP 6 of 2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
903 ELECTION PETETION NO. 6 OF 2014
WITH EPAP/57/2016 IN EP/6/2014 WITH EPAP/66/2016
IN EP/6/2014 WITH EPAP/72/2016 IN EP/6/2014 WITH
EPAP/73/2016 IN EP/6/2014 WITH EPAP/74/2016 IN
EP/6/2014
KAILASH KISHANRAO GORANTYAL
VERSUS
ARJUN PANDITRAO KHOTKAR
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Shri. P.M. Shah, Senior Counsel, instructed by Shri.
Aditya Sikchi and Shri. R.R. Mantri, Advocates, for
petitioner.
Shri. S.V. Kanetkar, Senior Counsel, instructed by Shri.
A.B. Kale and Shri. A.A. Yadkikar, Advocates, for
respondent.
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CORAM: T.V. NALAWADE, J.
DATE : 18 NOVEMBER 2016
ORDER ON APLICATION IN EP NO.74 OF 2016 IN
ELECTIONI PETITION NO.6 OF 2014:
1) The application is filed by respondent No.1 to
raise objection that evidence in chief in the election
petition filed under the provisions of the Representation of
the People Act, 1951 cannot be given on affidavit as
provided under Order 18 Rule 4 of the Civil Procedure
Code. Heard both the sides.
2 EP 6 of 2014
2) The learned counsel for respondent No.1 took
this Court through various provisions of the aforesaid Act
and the Rules made by the High Court, Original Side
Rules 1980, and also Article 225 of the Constitution of
India and Section 129 of the Civil Procedure Code. He
placed reliance on two reported cases like (1) AIR 2005
SC 2441 (Kailash v. Nanhku); and, (2) AIR 1982 SC 983
(Jyoti Basu v. Debi Ghosal).
3) The relevant portion of the provision of section
87 of the Representation of the Peoples Act 1951 runs as
under :-
"87. Procedure before the High Court.-- (1)
Subject to the provisions of this Act and of any rules
made thereunder, every election petition shall be
tried by the High Court, as nearly as may be, in
accordance with the procedure applicable under the
Code of Civil Procedure, 1908 (5 of 1908) to the trial
of suits: ..."
4) The aforesaid provision is a special provision
for election petitions and there is no reference to the rules
framed by High Court for such petitions. In Bombay High
Court (Original Side) Rules, in Appendix II, there is Rule
28 which is as under :
3 EP 6 of 2014
"28. Where no specific provision is made in the Act,
the Code or the above rules, the Rules of the Bombay
High Court (on the Original Side) 1980 in their
application to suits will apply mutatis mutandis or as
the Judge may direct.
In Appendix II separate rules are made for few things like
summons/notice for such petitions.
5) The learned counsel for the respondent No.1
submitted that in view of the provision of Article 225 of
the Constitution of India and Section 129 of the Civil
Procedure Code, the procedure laid down by the High
Court for the purpose of election petition will prevail over
the provision of the Civil Procedure Code. This position
cannot be disputed. However, the provision of Rule 28,
quoted above, does not show that this Court has diverted
from the procedure given in section 87(1) of the special
legislation. Rule 28 speaks that if there no is no specific
provision made in the special Act, Civil Procedure Code
and the rules which can be found in Appendix II then only
the rules framed by the High Court on Original Side,
which may be for trial of suits, can be used as they are
and there is other option that the Judge may decide about
4 EP 6 of 2014
the procedure. The last part about the power given to the
Judge is subject to the provisions of the special legislation,
the provisions of the Code and also the rules framed under
Appendix II of Original Side Rules for working of this
Court. Thus, it cannot be said that the aforesaid rule 28
has provided that the procedure laid down for working of
Original Side of the High Court for trial of suits needs to
be used for trial of the election petitions. Learned counsel
for respondent No.1 submitted that, rule 28 also needs to
be read with Rule 274 of the High Court Original Side
Rules. This Court has already held that this Court is not
expected to go beyond the rules mentioned in Appendix II
already mentioned.
6) In the aforesaid two reported cases, on which
reliance was placed by learned counsel for respondent
No.1, the Apex Court has made it clear that when there is
conflict between the provisions of the Civil Procedure
Code and the special legislation made about the
procedure, the special legislation shall prevail. Learned
counsel for the respondent No.1 stressed much on the
observations which as sum and substance of the law laid
5 EP 6 of 2014
down by the Apex Court in the case of Kailash cited supra
at paragraph 45 (III). That portion is as under :
"45(iii) In case of conflict between the provisions
of the Representation of the People Act, 1951 and the
Rules framed thereunder or the Rules framed by the
High Court in exercise of the power conferred by
Article 225 of the Constitution on the one hand, and
the Rules of Procedure contained in the CPC on the
other hand, the former shall prevail over the latter."
7)
Even if the aforesaid portion is read as it is, in
view of the discussion made already it cannot said that the
rules made by this Court for trial of election petitions are
inconsistent with the provisions of the Civil Procedure
Code and there is intention of High Court to divert from
the procedure laid down in the Civil Procedure Code for
trial of election petitions. In the same case at para 45(ii)
the Apex Court has laid down that the rules of procedure
contained in Civil Procedure Code apply to the trial of
election petitions under the Act with flexibility and only as
guidelines. These observations can be used in two ways.
On one hand, the rules given in the Civil Procedure Code
are to be kept in mind as guidelines and they can be
treated as flexible. When there is no specific procedure
6 EP 6 of 2014
laid down by the High Court for recording the evidence of
election petitions and this Court has made it clear in rule
28 quoted above, that procedure given in the Code will be
followed, this Court holds that the objection raised by
respondent No.1 to the examination-in-chief on affidavit
cannot be accepted and the affidavit cannot be rejected.
Thus, there is no substance in the objection. The objection
stands rejected. The application is rejected. List the main
matter on 22nd November 2016 at 2.30 p.m.
Sd/-
(T.V. NALAWADE, J. )
rsl
