Upadhyaya Hargovind Devshanker Vs. Dhirendrasinh virbhadrasinhji solanki & Others
EmailAppeal: Civil Appeal No. 660 of 1988.
Petitioner: Upadhyaya Hargovind Devshanker
Respondent: Dhirendrasinh virbhadrasinhji solanki & Others
Apeal: Civil Appeal No. 660 of 1988.
Judges: E.S. VENKATARAMIAH & K.N. SINGH, JJ.
Date of Judgment: Feb 17, 1988
Head Note:
REPRESENTATION OF THE PEOPLE ACT, 1951:
Sections 81, 83, 85, 86, 98, 99 and 116-A – Clause 15 of Letters Patent of the High Court of Gujarat – Constitution of India, 1950; Articles 136, 226, 327 and 329 (b) – Whether a Letters Patent appeal lies to a Division Bench from an interlocutory order passed by a Single Judge in the course of the trial of an election petition? – Effect of the constitutional provision in Article 329(b) – As regards jurisdiction to try an election petition and right of appeal of the parties, the provisions of the Act (apart from provisions in the Constitution) constitute a complete code – No 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 or under Art. 136 can have jurisdiction to deal with any matter arising out of an election petition – The Division Bench had no jurisdiction to hear the appeal against the interlocutory order.
Cases Reffered:
1. Dr. Chotalal Jivabhai Patel v. Vadilal Lallubhai Mehta & Ors., 12 Gujarat Law Reporter 850 – OVERRULED.
2. National Telephone Company Ltd. v. Post Master General, 1913 A.C. 546 – REFERRED.
3. N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others, (1952) S.C.R. 218 – FOLLOWED.
4. Siaram v. Nathuram & Ors., 1968 All.L.J. 576 – AFFIRMED.
5. Kadiravan alias Shamsudeen v. B. Thirumalaikumar, I.L.R. (1970) 2 Mad. 183 – OVERRULED.
6. Shah Babulal Khimji v. Jayaben D. Kania & Anr., (1982) 1 S.C.R. 187 – OVERRULED.
7. Ramdhan v. Bhanwarlal, AIR 1985 Rajasthan 185 – AFFIRMED.
8 Laxmi Narayan Nayak v. Ramratan Chaurvedi and Ors., AIR 1986 Madhya Pradesh 165 – OVERRULED.
2. National Telephone Company Ltd. v. Post Master General, 1913 A.C. 546 – REFERRED.
3. N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Others, (1952) S.C.R. 218 – FOLLOWED.
4. Siaram v. Nathuram & Ors., 1968 All.L.J. 576 – AFFIRMED.
5. Kadiravan alias Shamsudeen v. B. Thirumalaikumar, I.L.R. (1970) 2 Mad. 183 – OVERRULED.
6. Shah Babulal Khimji v. Jayaben D. Kania & Anr., (1982) 1 S.C.R. 187 – OVERRULED.
7. Ramdhan v. Bhanwarlal, AIR 1985 Rajasthan 185 – AFFIRMED.
8 Laxmi Narayan Nayak v. Ramratan Chaurvedi and Ors., AIR 1986 Madhya Pradesh 165 – OVERRULED.
JUDGEMENT:
VENKATARAMIAH, J.:
1. 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.
2. 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 appellants 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
3. In order to establish his case, the 1st 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 1st 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 prayer made by the 1st respondent.
4. 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 1st respondent by his Order dated July 18/21, 1986. Aggrieved by the order passed by the learned Single Judge the 1st 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 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 VS. 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.
5. 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.
6. 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)
7. 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 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.”
8. 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:
9. Under section 81 of the Act an election petition calling in question any election had to be presented 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 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 as 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 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.
10. In N.P. PONNUSWAMI VS. 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 matters relating 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 thereunder.”
11. It proceded 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.”
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.
12. 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-B 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.
13. 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 petition 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.”
14. 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.
……………………………..
(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.
15. 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.”
16. 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 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.
1. 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.
2. 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 appellants 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
3. In order to establish his case, the 1st 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 1st 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 prayer made by the 1st respondent.
4. 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 1st respondent by his Order dated July 18/21, 1986. Aggrieved by the order passed by the learned Single Judge the 1st 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 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 VS. 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.
5. 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.
6. 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)
7. 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 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.”
8. 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:
9. Under section 81 of the Act an election petition calling in question any election had to be presented 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 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 as 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 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.
10. In N.P. PONNUSWAMI VS. 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 matters relating 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 thereunder.”
11. It proceded 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.”
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.
12. 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-B 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.
13. 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 petition 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.”
14. 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.
……………………………..
(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.
15. 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.”
16. 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 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.
