TMI Blog1988 (2) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant 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 appellant 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. In order to establish his case, the Ist 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 pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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. In exercise of its powers under Article 329(b) read with Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. In N.P. Ponnuswami v. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-D 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 subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined 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. 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 (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act,..... The relevant part of clause 15 of the Letters Patent which is referred to above provides for an appeal against a judgment passed by a Single Judge of a High Court to the same High Court and the scope of the said appellate power has been explained by this Court in Shah Babulal Khimji v. Jayaben D. Kania Anr., [1982] 1 S.C.R. 187. An appeal no doubt lies under that clause from an order of a Single Judge of the High Court exercising original jurisdiction to the High Court itself irrespective of the fact that the judgment is preliminary or final or that it is one passed at an interlocutory stage provided it satisfies the conditions set out in the above decision but the said provision cannot be extended to an election petition filed under the Act. Conferment of the power to try an election petition filed under the Act does not amount to enlargement of the existing jurisdiction of the High Court. The jurisdiction exercisable by the Single Judge under the Act is a special jurisdiction conferred on the High Court by virtue of Article 329(b) of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equate appreciation of the need to construe the Act as a complete code regarding all matters relating to settlement of election disputes. It is significant that in sub-section (7) of section 86 of the Act it is stated that 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. If Parliament intended that the Division Bench of the High Court should exercise its appellate jurisdiction under clause 15 of the Letters Patent of the High Court probably it would not have enacted sub-section (7) of section 86 of the Act having regard to the well-known tendency of one or the other party to an election petition preferring appeals against interlocutory orders to the Division Bench. The presence of such a remedy is enough to defeat the object of enacting sub-section (7) of section 86. If such appeals against interlocutory orders to the High Court are permitted perhaps no election dispute will be finally settled until the next election becomes due. The intention of Parliament is that at the level of the High Court only the Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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