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High Court Of Madhya Pradesh
J. S. VERMA, C. P. SEN, S. S. SHARMA, B. C. VARMA, B. M. LAL
LAXMI NARAYAN NAYAK - Appellant
Versus
RAMRATAN CHATURVEDI - Respondents
L. P. A. 98 Of 1985
Decided On : 11/19/1985
Per J. S. Verma, Ag. C. J. (B. C. Varma & S. S. Sharma, JJ. agreeing)- The right of appeal contemplated by Clause 10 of the Letters Patent against the final decision of a single judge in an election petition. The enacting part of S. 116-A gives no indication that it covers the entire field relating to appeals including appeals against interlocutory orders in addition to providing for appeals against the final orders made under sections 98 or 99. [Para 7]
Election petition is tried by a Judge of the High Court i.e. an established Court, normally ordinary incidents of the procedure of that Court are to apply including any general right of appeal from its decision, but where a statute .creates new rights and liabilities and prescribes special remedy for enforcement of such right, then by express words or by necessary implication right of appeal which is ordinarily available may be excluded. AIR 1952 SC 64 relied on. [Para 17]
The right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a Court of law is available. AIR 1954 SC 520, relied on. [Para 17]
An appeal lies under Clause 10 of the Letters Patent against an interlocutory order passed by single judge in an election petition which amount to a 'judgment' within the meaning of that expression used in Clause 10. AIR 172 Guj. 92, ILR (1970) 2 Madras 183, 1971 Gujrat LR Vol. XII p. 850, L. P A. No. 12 of 1973, decided on 23-11-1973 followed. 1985 JLJ 140 (FB) affirmed. [Para 14]
(2) Letters Patent-Cl. (10)-appeal under-ordinary incidents of procedure-not excluded by necessary implication.
Per C. P. Sen, J. (Contra)-Since the election petition is tried by a Judge of the High Court, the ordinary incidents of the procedure of the Court attach to the jurisdiction and, as such, the right of appeal against intermediate orders under Letters Patent which otherwise attaches as an ordinary incident is not excluded by necessary implication. 1971 Guj. L. R. 850, AIR 1972 Guj. 92 and ILR 1970 (2) Mad. 183 relied on. [Para 16]
(3) Constitution of India-Art. 329 (b)-election matters-writ petition barred-Representation of the Peoples Act, 1951-S. 116-A-the Act creates a special right.
The right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a remedy for enforcing that right, no other remedy by ordinary action in a Court of law is available to a person in regard to election disputes. AIR 1969 SC 872 and AIR 1975 SC 968 relied on. 1985 JLJ 140 discussed. [Para 17]
No appeal should be entertained under Clause 10 of the Letters Patent against an interlocutory order passed ill an election petition under the Act which amounts to 'judgment' within the meaning of Clause 10 of the Letters Patent. [Para 19]
(4) Per B. M. Lal J. (Contra) -Letters Patent -futility of.
Even after 35 years of our independence and our Country becoming Sovereign Socialist Secular Democratic Republic, still our Courts in India are governed by adopting Letters Patent issued by the king Emperor of England under his Royal Prerogative powers. It is nothing but sheer indication of continuation of domination of sovereign powers of King Emperor of England, over us as if the Royal Prerogative powers of King still prevail upon our Constitution even after our Country becoming sovereign republic where there is no Toot of sovereign powers of King and when no order, notification or Chapter issued by the King Emperor of England under his monarchial or prerogative powers, have been adopted in our Constitution. [Para 24]
(5) Constitution of India-Arts. 366 (10) & 372 (1)-Government of India Act, 1935-Indian Independence Act, 1947-Lettet's Patent-is not 'enactment' -it was made under 'law'-Article 366 (10) of the Constitution.
It is clear that the Government of India Act, 1935 and Indian Independence Act, 1947, though repealed, yet the laws made thereunder, have still been saved and still continue to be in force until altered, repealed or amended. But the Letters Patent was issued by the King Emperor of England exercising his Royal Prerogatives, it was not enactment, but a 'law' within the definition of Article 66 (l0) of the Constitution. [Para 32]
(6) Constitution of India-Art. 235-Represenralion of the People Act. 1951-Ss. 79 (9), 80-A & 86 (6) (7)-High Court-meaning of-application of Clause (10) of the Letters Patent-Letter Patent appeal when not available.
Article 235 lays down that High Court means "all the Judges of the High Court". Therefore applying the definition of 'High Court' and reading sub-section (2) section 80 A of the Act, it is abundantly clear that election petition also may be tried not by one Judge alone but also could be tried by more than one Judges and in that Situation, question of application of Clause 10 of the Letters Patent is automatically wiped out. The words used in section 80-A of the Act also neutralises the application of Clause 10 of the Letters Patent. [Para 46]
Similarly, by introducing sub-sections (6) and (7) to section 86 of the Act, the Legislature have shown their intension that the election petition be disposed of as early as possible say, With· in six months and if Clause 10 of the Letters Patent is made applicable then sub-section (6) section 86 of the Act, becomes redundant. [Para 47]
(7) Constitution of India-Art. 329(b)-Representation of the People Act. 1951-S. 116-A-no resort can be had to Letters Patent.
No resort could be made under clause 10 of the Letters Patent against an order arising out of election petition in view of Article 329 (b) of the Constitution and the non-obstant clause of section 116-A of the Act. AIR 1956 AP 161, AIR 1972 Cal. 470, AIR 1965 Mysore 76, AIR 1982 SC 149, 1971 Gujrat LR Vol. XII r. 850, ILR (1970) 2 Madras 183, AIR 1985 SC 185, AIR 1975 SC 915, AIR 1984 SC 871, AIR 1975 SC 2299, AIR 1962 SC 756, AIR 1957 Mysore 44, AIR 1978 SC 851 and 1985 JLJ 140 discussed.
[Para 47]
(8) Per Full Bench-Clause 10 of the Letters Patent (M. P.)-Clause 10 -appeal lies against judgment of a single Judge.
An appeal lies under Clause 10 of the Letters Patent against an interlocutory order passed by a single judge in an election petition which amounts to a judgment within the meaning of that expression used in Clause 10. [Para 48]
( 1 ) THE only question for decision by us is whether an appeal under Cl. 10 of the Letters Patent is tenable against an interlocutory order passed in an election petition by a single Judge which amounts to a 'judgment' within the meaning of that expression used in Cl. 10. This question has to be answered on the assumption that the right of appeal under Clause 10 of the Letters Patent subsists notwithstanding the enactment of M. P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam (29 of 1981) abolishing the right of such appeals since this enactment has been held to be constitutionally invalid by a Full Bench of this Court in Balkrishna Dass v. Perfect Pottery Co. Ltd. AIR 1985 Madh Pra 42. In case it is held that such an appeal is tenable, the appeal has to be heard and decided on merits by a Division Bench which will also decide whether the impugned interlocutory order passed in the election petition amounts to a 'judgment' within the meaning of that expression used in Cl. 10 of the Letters Patent. On the other hand, if the conclusion reached by us is that no such appeal is tenable under Cl. 10 of the Letters Patent against an interlocutory order passed in an election petition by a single Judge even if the order amounts to a 'judgment' within the meaning of that expression used in Cl. 10 of the Letters Patent, then the further question of considering the appeal on merits would not arise.
( 2 ) THIS appeal is against an interlocutory order dated 28-8-1985 passed by Gupta, J. in a pending election petition. The appellant's contention is that the impugned order amounts to a 'judgment' and is, therefore, appealable under Cl. 10 of the Letters Patent notwithstanding S. 116-A of the Representation of the People Act, 1951, providing for an appeal to the Supreme Court against final decision in an election, petition at the conclusion of the trial. This appeal came up for motion hearing on 25-9-1985 before a Division Bench consisting of myself and Adhikari, J. Reliance was"placed on behalf of the appellant on two decisions of the Gujarat High Court in Chhotalal Jivabhai v. Vadilal Mehta (1971) 12 Guj LR 850 and Indulal v. Prasannadas, AIR 1972 Guj 92 and a decision of the Madras High Court in Kadiravan v. Thirumaiai Kumar ILR (1970) 2 Mad 183 in support of the contention that an appeal lies under Cl. 10 of the Letters Patent against an interlocutory order passed in an election petition by a single Judge which amounts to a 'judgment' within the meaning of that expression used in Cl. 10. The question of tenability of such an appeal had been raised earlier in Amolakchand Chhajed v. Bhagwandas LPA No. 12 of 1973, decided on 23rd November 1973, before a Full Bench of this court but that question was left open after mentioning its importance and intricacy and referring to the decisions of the Gujarat and Madras High Courts in Chhotalal Jivabhai v. Vadilal Mehta, Indulal v. Prasannadas and Kadiravan v. Thirumali Kumar. The Division Bench, therefore considered it appropriate to refer the question of tenability of such an appeal to a Full Bench instead of deciding it itself. Accordingly, this question was referred by the Division Bench for being decided by a larger Bench. A Full Bench was then constituted consisting of myself, C. P. Sen, J. , and B. M. Lal, J. , to decide the question of tenability of the appeal under Cl. 10 of the Letters Patent assuming that the right of appeal under Cl. 10 of the Letters Patent survives in view of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (AIR 1985 Madh Pra 42) (supra ). At the commencement of hearing of this question before the Full Bench on 28-10-1985 it was felt by one of us (B. M. Lal, J.) that the basicquestion could have involved, considering even the correctness of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (supra) at least impliedly, decided by a Bench of three Judges. It was, therefore, considered appropriate that the matter should
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