TMI Blog1993 (4) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... Representation of the People Act, 1951. 2. This writ petition, along with other numbers of writ petitions, involving same question of law were heard by a Division Bench of this Court, composing of Mahinder Narain and P. N.Nag.JJ. During the hearing of the writ petition, the learned Attorney General raised a preliminary objection on behalf of the Chief Election Commissioner, the respondent, that the writ petition was not maintainable. The preliminary objection is based upon Article 329 of the Constitution of India, which provides that an election cannot be called in question except by an election petition. 3. Mahinder Narain, J., by a separate independent judgment dated 27th March, 1992 held that the writ petition was maintainable. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 32(b) of the Constitution of India .... . Next submission was that the impugned order had been passed in violation of the principles of natural justice. Such an order, therefore, is null and void. This order is also bad in the eyes of law as that the same has been passed without the report of the returning officer, which is a condition precedent for passing of such an order and also without taking into consideration the material circumstances into account. These arguments are based on merits of the case. The petition is not maintainable. It is neither necessary nor permissible to decide these questions in these writ petitions. These questions can be raised in the election petition in case it is filed and the order of the Election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in terms of Rule 10 of Chapter 4F read with Clause 26 of the Letters Patent as applicable to Delhi High Court, it is only the point of difference that shall be referred to a third Judge for his decision. The difference of opinion between the learned Judges constituting the Division Bench which heard the writ petition is on the question of maintainability of the writ petition and only the question of the maintainability of the writ petition ought to be referred to the third Judge for his decision. The only question that the third Judge is required to decide is whether the writ petition is maintainable or no(. It will not be proper 10 refer the entire matter to a third Judge. The case was not argued on merits on behalf of Chief Electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. 10. On the other hand the contention of Mr. Bansal is that the entire matter has been referred to a third Judge in terms of the reference by the Division Bench. The Third Judge is required to give his opinion on the entire matter and not on the question of maintainability alone. The entire matter was argued on behalf of the petitioners before the Division Bench i.e. on merits as well as on the question of maintainability. Mahinder Narain, J. decided the entire matter, whereas P. N. Nag, J. decided the question of maintainability only and did not proceed further to decide the case on merits. It is also contended by Mr. Bansal that, assuming this Bench returns the finding that the writ petition is maintainable, even then the entire ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thoughtful consideration to the entire matter. In my opinion the order of reference dated 27-3-1993 does not conform to clause 26 of the Letters Patent. Rule 10 of Chapter 4-F of Delhi High Court Rules provides that in case of difference of opinion between the Judges composing the Division Court, the point of difference shall be decided in accordance with the procedure referred to in clause 26 of the Letters Patent. Clause 26 of the Letters Patent is reproduced as under for the sake of convenience :-- POWER OF SINGLE JUDGES AND DIVISION COURTS 26. And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Lahore, in the exercise of its original or appellate jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the papers may be laid before Hon'ble the Chief Justice and he may designate a third Judge to hear the matter. The learned Judges ought to have stated explicitly as to what was to be decided by a third Judge. The expression 'matter' used in the reference has not been clarified as to the points to be decided by the third Judge; especially in the facts and circumstances of this case and in view of the stand taken by Mr. Bansal. In the absence of the clarification it is not possible to answer the reference. 13. In view of my above reasoning, this Bench must return the reference unanswered and without any finding. The papers may be laid before Hon'ble the Chief Justice for appropriate orders. 14. Order accordingly. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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