Case: Upadhyaya Hargovind Devshanker Vs. Dhirendrasinh Virbhadrasinhji Solanki &amp; Others

2. At the election held on March 5, 1985 to fill a seat in the Legislative Assembly of the State of Gujarat from the Lunavada Legislative Assembly Constituency the appellant and respondents 1 to 6 were the candidates. At that election the appellant having secured the largest number of votes was declared as elected to the Legislative Assembly. Thereupon respondent 1 filed an election petition in Election Petition No. 6 of 1985 on the file of the High Court of the 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, respondent 1 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 polling3. In order to establish his case, respondent 1 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 papers, the unused ballot papers, the marked copies of electoral rolls and the authorisation of the polling agents of different candidates in respect of 13 villages and 14 polling booths mentioned in the application. Respondent 1 prayed for permission to inspect the ballot papers, the marked copies of voters lists and certain other materials referred to above. The appellant objected to the grant of the prayers made by respondent 14. After taking into consideration the evidence that had been adduced before him and hearing the arguments of the learned counsel for the parties, the learned Single Judge declined to grant the application made by respondent 1 by his order dated July 18/21, 1986. Aggrieved by the order passed by the learned Single Judge respondent 1 preferred an appeal under Clause 15 of the Letters Patent of the High Court of Gujarat in Letters Patent Appeal No. 3 of 1987 which was heard by a Division Bench of the High Court. Before the Division Bench the appellant contended that the appeal was not maintainable on the ground that there was no provision in the Act which permitted an appeal to the Division Bench of the High Court against an interlocutory order of a judge hearing the election petition filed under the Act and that Clause 15 of the Letters Patent was not applicable to the case. The Division Bench after overruling the objection regarding maintainability of the appeal in the view of the decision of the High Court of Gujarat in Dr. Chotalal Jivabhai Patel v. Vadilal Lallubhai Mehta [12 Guj LR 850] allowed the appeal to the extent indicated in the course of its judgment. Aggrieved by the decision of the Division Bench, the appellant has filed this appeal by special leave under Article 136 of the Constitution of India

Reasoning:
We, therefore, find it difficult to subscribe to the view that when once the jurisdiction to try an election petition is conferred on the High Court all others powers incidental to the ordinary original jurisdiction exercised by a single Judge of a High Court would become applicable to an election petition filed under the Act. It is no doubt true that in Dr. Chotalal Jivabhai Patel case [12 Guj LR 850] the Division Bench of the High Court of Gujarat applied to the rule laid down in National Telephone Company Ltd. v. Postmaster General [1913 AC 546, 552] namely : "When a question is stated to be referred to an established court without more, it, ... imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches. " to an election petition field under the Act which the High Court could try in exercise of the special jurisdiction conferred on it by the Act and held that except an order under Section 98 or Section 99 of the Act which was made expressly appealable under Section 116-A of the Act of this Court all other orders passed by the judge trying an election petition would be appealable to the High Court under Clause 15 of the Letters Patent. The principle applied by the High Court under is not an unqualified case. That rule itself suggests that even where a court is asked to hear a case, it is quite possible that the nature if the jurisdiction may be such that all the incidents of procedure or any general right of appeal from its decision may not be attracted. Perhaps the Division Bench would not have reached the said conclusion if it considered the effect of Article 329(b) of the Constitution which authorised the creation of an authority for trying disputes arising out of elections to the House of Parliament and to the House of State legislatures and the history and the scheme of the Act and the limited right of appeal provided in Section 116-A of the Act. We do not find any discussion about the effect of the constitutional provision in Article 329(b) in the course of the said decision. There was also no adequate appreciation of the need of 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 endeavor 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 in would not have enacted sub-section (7) of Section 86 of the Act of 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 who is asked by the learned Chief Justice to try an election petition should be the sole judge to decide any question arising out of any such election petition and that at the appellate stage the Supreme Court alone should deal with any matter arising out of the election petition. We are of the view that as regards the jurisdiction to try an election petition and the right of appeal of the parties to an election petition, the provisions of the Act (apart from the provisions in the Constitution) constitute a complete code and no other judge or judges other than the Single Judge of the High Court who is asked to try an election petition and the Supreme Court exercising appellate powers under Section 116-A of the Act in respect of orders passed under Section 98 or Section 99 of the Act or under Article 136 of the Constitution in respect of other orders can have any jurisdiction to deal with any matter arising out of an election petition field under the Act. We do not therefore agree with the view expressed on this question by the High Court of Gujarat in Dr. Chotalal Jivabhai Patel case [12 Guj LR 850]. We therefore overrule the said decision. We also overrule the decision of the Madras High Court in Kadiravan alias Shamsudeen v. B. Thirumalaikumar [ILR (1970) 2 Mad 183] and the decision of the Madhya Pradesh High Court in Laxmi Narayan Nayak v. Ramratan Chaturvedi [AIR 1986 MP 165 (FB)] which have taken the same view as in Dr. Chotalal Jivabhai Patel case [12 Guj LR 850]. We are, however, in agreement with the view expressed by the High Court of Allahabad in Siaram v. Nathuram [1968 All LJ 576] and by the High Court of Rajasthan in Ramdhan v. Bhanwarlal [AIR 1985 Raj 185 ] which have held that by necessary implication an appeal to the High Court from an interlocutory order passed by the Single Judge of the High Court in the course of a trial of an election petition field under the Act is excluded. The reasons given in the latter case by the Full Bench of the Rajasthan High Court are indeed quite substantial19. The Division Bench of the High Court of Gujarat had, therefore, no jurisdiction to hear the appeal field by respondent 1 against the interlocutory order passed by the learned Single Judge who was trying the election petition.