An appeal against an order of an Election Tribunal is a civil proceeding within the meaning of Article 133 of the Constitution.

G. C. DAS, J.

( 1 ) THIS is an application under Articles 132 and 133 of the Constitution for leave to appeal to the Supreme Court against an order of this Court in Miscellaneous Appeal No. 194 of 1957 declaring the election of the petitioner to the Orissa Legislative Assembly void. At the outset Mr. Pal, counsel for the petitioner, conceded that Article 132 of the Constitution would not apply to this application, since it does not involve any question of interpretation of the Constitution. His sole contention was that he is entitled to leave under Article 133 (1) (c) of the Constitution, this being a fit case for appeal to the Supreme Court. Mr. H. Mohapatra, learned counsel appearing for the respondent, urged that an application under Article 133 is not maintainable in the present context. His whole argument was that Article 329 (b) lays down a bar to interference by courts in electoral matters. Article 329 begins with the words: "notwithstanding anything in this Constitution. . . . . . . " and Cl. (b) reads as follows:

" (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. "

What really is prohibited by this provision is the initiation of the proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided by any law made by the appropriate Legislature: (Vide Hari Vishnu v. Ahmad Ishaque, (S) AIR 1955 S. C. 233 ). The Parliament accordingly enacted the Representation of the People Act, 1950 (Act 43 of 1950) providing a machinery to challenge an election to either House of Parliament or to the House or either House of the Legislature of a State by an election petition. Section 116a of the said Act provides for appeals against orders of election Tribunals. According to that section an appeal would lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. Along with the powers, jurisdiction and authority of the High Court, it also lays down the procedure as to how the appeal has to be dealt with by that Court. Sub-section (2) of Section 116a lays down that the High Court shall, subject to the provisions of the Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under Chapter IVA, as if the appeal were an appeal frorm an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. It is under this provision that Miscellaneous Appeal No. 194 of 1957 against the judgment of the Election Tribunal, Puri, was filed and was dealt with by this Court. Now, Article 133 of the Constitution states inter alia that an appeal shall lie to the Supreme Court from any judgment, decree or. final order in a civil proceeding of a High Court in the territory of India, if the High Court certifies that the case is a fit one for appeal to the Supreme Court. Therefore, the sole question for consideration is whether the impugned order passed by this Court is a final order in a civil proceeding. Mr. Mohapatra contended that for the expression "civil proceeding" one has got to look to the? provisions in Article 132 where it is stated that are appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a 'civil, criminal or other proceeding,' if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (The underlinings (here into * ') are mine ). While dealing with the appellate powers of the Supreme Court, the framers of the Constitution have divided it into three parts, viz. , (1) appeals involving substantial questions