Supreme Court - Daily Orders
Jagabandhu Behera vs Subrat Tarai . on 11 December, 2015
Bench: J. Chelameswar, Abhay Manohar Sapre
1
ITEM NO.55 COURT NO.5 SECTION XVII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 6150/2015
JAGABANDHU BEHERA Appellant(s)
VERSUS
SUBRAT TARAI & ORS. Respondent(s)
(With appln. (s) for ad-interim ex-parte stay and permission to
file additional documents and office report)
Date : 11/12/2015 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE J. CHELAMESWAR
HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE
For Appellant(s) Mr. Debesh Panda, Adv.
Mr. Kedar Nath Tripathy,Adv.
For Respondent(s) Mr. Ashok Panigrahi,Adv.
Ms. Tarani Kanta Biswal, Adv.
Mr. Surajit Bhaduri, Adv.
UPON hearing the counsel the Court made the following
O R D E R
The matter is filed invoking the statutory appellate jurisdiction of this Court under Section 116A of the Representation of the People Act, 1951 (for short, “the R.P. Act”). The impugned order, dated 13.05.2015 of the High Court of Orissa is an order by which an application filed by the Signature Not Verified Digitally signed by Usha Rani Bhardwaj Date: 2015.12.14 respondents-herein under Order VII Rule 11 along with 16:58:47 IST Reason: other provisions of the R.P. Act was allowed and by which the High Court struck off various paragraphs 2 commencing from paragraph 7(B) to 7(H) of the Election Petition.
Aggrieved by the same, the election petitioner is before us invoking the appellate jurisdiction of this Court, as indicated above. When the matter is taken up, a preliminary objection that the appeal is not maintainable is raised on behalf of the respondents. It is argued that the appellate jurisdiction of this Court under Section 116A is only confined to the orders under Section 98 and 99 of the R.P. Act. The impugned order is not an order falling under Section 98 or Section 99 of the R.P. Act and only an order under Order VII Rule 11 of the Code of Civil Procedure. Therefore, the appeal is not maintainable.
Heard learned counsel for the election petitioner and learned counsel for the respondents. We find substance in the submission made by learned counsel for the respondents that the instant appeal is not maintainable.
Learned counsel for the election petitioner prays that if this Court comes to the conclusion 3 that appeal is not maintainable the same may be treated as the petition under Article 136 of the Constitution. Learned counsel also explained the reasons which prompted the presentation of the instant appeal – being certain observations made earlier by this Court in the case of Dipak Chandra Ruhidas vs. Chandan Kumar Sarkar, (2003) 7 SCC 66, paragraph 15 and Ashok Mahadeo Mankar vs. Rajendra Bhausaheb Mulak, (2012) 12 SCC 27.
The question in the 1st of the above-mentioned judgments was whether an order dismissing an election petition for non-prosecution under Section 81, 82 and 117 of the R.P. Act was an order which is amenable to the statutory appellate jurisdiction under Section 116A of the R.P. Act.
This Court while holding that such an order is amenable to the appellate jurisdiction under Section 116A of the R.P. Act in view of explanation to Section 86(1) of the R.P. Act, incidentally made observations in paragraph 15 in the case of Dipak Chandra Ruhidas (supra) which reads as under :
“15. Section 116-A provides for an appeal. The said provision must be 4 given a liberal and purposive construction. The scope of an appeal should be held to be wider than an application for judicial review or a petition under Article 136 of the Constitution of India” The aforesaid observation, in our opinion, was not really required in view of the conclusion recorded by this Court that an appeal is clearly maintainable having regard to the explanation to Section 86(1). However, the said observation led to a further confusion in the case of Ashok Mahadeo Mankar vs. Rajendra Bhausaheb Mulak (supra). We do not propose to examine the same as the same is not necessary at present.
We are of the opinion that the appeal as presented is not maintainable. However, the jurisdiction of this Court under Article 136 of the Constitution is certainly available for examination of such a matter.
We are convinced that the election petitioner cannot be blamed solely for the wrong invocation of the appellate jurisdiction of this Court under Section 116-A of the R.P. Act. We, therefore, permit him to convert the instant appeal into a petition 5 under Article 136 of the Constitution within three weeks.
List the matter on 13.01.2016 if the election petitioner complies with the afore-mentioned direction.
[ Charanjeet Kaur ] [ Indu Bala Kapur ] A.R.-cum-P.S. Court Master