1983 Supreme(Raj) 115

Rajasthan High Court, Full Bench
Dwarka Prasad, S.C. Agarwal & Kanta Bhatnagar, JJ.
Ramdhan - Appellant
Versus
Bhanwar Lal - Respondents
F.B. Civil Special Appeal No. 9 of 1980
Decided On : May 20, 1983

Headnote:(a) Representation of the Peoples Act—S. 80A (2)—Jurisdiction—Election Petition-Deciding a election dispute not by way of constituting a special jurisdiction but by extending an ordinary jurisdiction of the High Court.(b) Representation of Peoples Act—Sec. 116 A—Election Petition—Appeal — Appeal shall lie to Supreme Court against the judgment of the High Court.(c) Interpretation of statutes—Maxim—Unius Est Exclusic Alterius.(d) Representation of the Peoples Act—S. 116A—Non-obstante Clause, "Notwithstanding anything contained in any other law for time being in force— Meaning thereto.(e)-C.PC.—O. 6 R. 17- and Representation of Peoples Act—Amendment—Adding a new relief clause—Neither changes the nature or character of Election Petition—Amendment allowed by court held, valid.(f) C.P.C—O. 7. R. 11 and Representation of the Peoples Act~S 86 (1)— Election petition cannot be dismissed merely on ground of non-disclosure of a cause of action.(g)—Representation of the Peoples Act—Amendment in the petition-—-Allowed—Not a interlocutory order and amount to a judgment.

       In cases where a statute creates a new right, and also prescribes the remedy for the enforcement of such a right, it must be held that the right and the remedy are given uno flatu and the one cannot be dissociated from the other. If the litigant claims a right by virtue of particular statute, which is not available at common law, he cannot insist upon doing so by means other than those prescribed by the statute which alone confers the right. Where new rights are created by a statute which have no existence apart from the statute creating it and if the statute at the same time prescribing a particular method of enforcing such rights, then such remedy is the exclusive remedy available for enforcement of the new right created by the statute. The Representation of the Peoples Act not only provides a comprehensive machinery to deal with the election petitions in Part VI, but it also provides a special remedy under Section I16-A in respect of the orders passed on election petitions. As the special law which creates the new right also provides a remedy by way of appeal under Section 116-A it is not permissible to travel out-side the special law for the purpose of finding out another remedy for interlocutory orders or judgments in election petitions filed under the Act. The provisions of the statute are comprehensive enough and are limited in respect of the right of appeal and even in the absence of an express provision excluding the ordinary remedy, an inference may arise that the remedy provided by the statute is the only remedy and the ordinary remedy is barred by necessary amplication. The aggrieved party must be aware of the remedy provided in the statute for the enforcement of the rights created by the special Act. Section 98 and 99 provide the type of orders which the High Court may pass at the conclusion of the trial of the election petition and Section 116-A provides a right of appeal from every such orders passed under Sections 98 and 99 to the Supreme Court on questions of law and facts. In our view, therefore, the ordinary incidents and procedure of the court including the general right of appeal against the orders passed therein can be attracted only when the special Act creating new rights confers a jurisdiction to an established court without any words of limitation. Such cases fall within the second category of cases pointed out by Willes, J. But if the special Act also provides a specific right of appeal and is a self-contained code, the applicability of the general right of appeal would be impliedly barred. The Parliament in its wisdom thought that only one appeal should be provided in election disputes and that too not before the Division Bench of the High Court but before the Supreme Court. Even that right of appeal has been restricted to orders made under Sections 98 or 99 while the remaining orders are intended to be left undisturbed until an appeal is filed against the final order passed under Section 98 or 99 of the Act. While the amendments introduced by the Act No. 47 of 1966 were made with the object that the election disputes relating to the Legislative Assembly and Parliamentary elections should be disposed of as speadly as possible and with that end in view the forum of trial of election petition was altered from the District Judge to the High Court with the same object only one appeal has been provided in such matters, which is to be heard by the highest court in the country. The very purpose of speedy disposal of election disputes would be set at naught if the argument of the learned counsel for the appellant is accepted that the ordinary remedy of appeal available under the general law should also be allowed to be availed of. (para 39 & 52)

       The maxim "Expression" Unius Est Exclusic Alterius is a general rule of construction of statutes and is based upon the probable intention of the legislature. Thus, it is well established that where a particular remedy is provided by a statute and the forum is also indicated therein then it must be sought in the particular forum and in the particular manner provided by the statute and all other forums and modes for seeking the remedy are excluded. It may be observed that where a statute gives a right and creates a liability which does not exist at common law, and the statute at the same time provides a special mode for enforcing such right or liability, then that mode alone must be pursued. No doubt the application of the maxim requires great deal of caution. However, as a general rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another thing. It, therefore, logically follows that if a statute enumerates the things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its operation and effect. If the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those named, is impliedly prohibited. (Paras 40, 44 & 47)

       It is important to note that Section 116-A begins with a non-obstante clause. The use of the words "notwithstanding anything contained in any other law for the time being in force" gives the provisions contained in Section 116-A regarding appeals an over-riding effect over the provisions of other statutes, including section 18 of the Ordinance. The use of the non-obstante clause goes to show that the enactment following it will have its full effect and the provisions of any other law to the contrary would not be operative in the same field which is covered by the provisions of Section "116-A of the Act. The provisions contained in any other law, including Section 18 of the Ordinance, are completely excluded so far as relating to appeals from orders made on election petitions. The Parliament has deliberately enacted the non-obstante clause, while providing an appeal from the orders passed by a Single Judge of the High Court on election petitions relating to Legislative Assembly and Parliamentary elections, so as to consciously exclude the operation of the provisions contained in Section 18 of the High Court Ordinance and analogous provisions contained in the Letters Patent to appeals from final orders and judgments passed by a Single Judge of the High Court. In our view, the non-obstante clause should be allowed to have its full operation and the operation of any other provision relating to appeals from orders passed by a Single Judge of the High Court on election petitions is completely barred. Thus, the enacting part of Section 116-A provides that an appeal shall lie from the orders made by a Single Judge of the High Court directly to the Supreme Court and also specifies the kinds of orders in respect of which the right of appeal to the Supreme Court can be availed of. The application of the provisions of the existing laws incon-sistent with the new provisions contained in Section 116-A, which are contained in Section 18 of the Ordinance and analogous provisions of the Letters Patent of the various High Courts, in respect of appeals against orders passed by a Single Judge of the High Court cannot be held applicable to orders passed by a Single Judge of the High Court on election petitions on account of the non-obstants clause. Thus, it is realy clear that any other order passed by the High Court during the trial of the election petition could not be made subject-matter of an appeal irrespective of the fact that it may amount to a judgment within the meaning of Section 18 of the Ordinance. (para 55)The argument of the learned counsel for the election petitioner is that the order granting amendment of the election petition is an interlocutory and interim order and as it is neither a preliminary nor a final judgment and as such no appeal lies against the said order passed by the learned Single Judge under Sec. 18 of the Ordinance. The learned Single Judge has accepted the plea of the election petitioner that the absence of a relief clause in the original election petition was merely an inadvertent mistake and as such he allowed the same to be rectified by making an amendment. It is apparent that adding a relief clause by way of amendment would neither change the nature or character of the election petition nor it would constitute a new petition. (Paras 63 & 83)

       The election petition cannot be dismissed in the present case under Order 7, rule 11 C.P.C. on the ground of non disclosure of a cause of action nor there is any ground for rejection of the petition under sec. 86(1) of the Act, as there is no allegation of non-compliance with the provisions of secs. 81, 82 or 117. In such circumstances, the court has to proceed with the trial of the election petition and it has discretion to allow or disallow an amendment prayed for in accordance with the provisions of Order 6, rule 17 C.P.C. (Para 82)