Calcutta High Court
Alo Rani Sarkar vs Swapan Majumdar on 20 April, 2023
Author: Subrata Talukdar
Bench: Subrata Talukdar
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IN THE HIGH COURT AT CALCUTTA
(CIVIL APPELLATE JURISDICTION)
ORIGINAL SIDE
Present:
The Hon'ble Justice Subrata Talukdar
And
The Hon'ble Justice Supratim Bhattacharya
APOT/95/2022
with
EP/2/2021
IA No. GA/1/2022, GA/2/2022, GA/3/2022
Alo Rani Sarkar
VS
Swapan Majumdar
For the Appellants : Mr. Anirban Ray,
Mr. Jayanta Sengupta,
Mr. Shayak Mitra,
Mr. Piyush Agarwal,
Mr. Piyush Kr. Ray,
Mr. Agnish Basu,
Mr. Kush Agarwal.
For Respondents : Mr. Jagriti Mishra,
Mr. Arindam Paul,
Mr. Subham Gupta,
Mr. Debayan Goswami,
Mr. Reshab Kumar,
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Ms. Ananya Bhattacharya,
Mr. Raj Kumar Mitra,
Ms. Parna Mukherjee.
For E.C.I. : Mr. Anuran Samanta.
Heard on : 18.01.2023
Judgment on : 20.04.2023
Subrata Talukdar, J.:- This appeal has been directed against the
Judgement and Order dated 20th May, 2022 dismissing Election Petition 2 of
2021 (EP/2/2021) and also deciding the application being GA 4 of 2022 filed
in connection with EP 2 of 2021.
The only issue to be decided by this Court is whether this intra-court
appeal being APOT 95 of 2022 is maintainable in the light of The
Representation of People Act, 1951 (for short the 1951 Act) under which the
said Election Petition being EP 2 of 2021 came to be filed before the
designated Court of this Hon'ble Court.
In the event this Court finds this appeal to be maintainable, only then
the next question would arise of hearing the parties on the merits of the
electoral dispute. In the event this Court decides against the maintainability
of this appeal, the parties shall be at liberty to approach the appropriate
Court which, in the statutory scheme of the 1951 Act, is the Hon'ble
Supreme Court of India.
Before adverting to the legal discussion on the maintainability of the
appeal a brief reference to the background facts is necessary.
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The present Appellant, Smt. Alo Rani Sarkar, was the Petitioner in EP
2 of 2021. The Appellant contested the Legislative Assembly Elections of the
State of West Bengal held in April, 2021 from Bongaon Dakshin (SC)
Assembly Constituency of District North 24 Parganas as the candidate of a
particular political party.
The Respondent in EP 2 of 2021, Mr. Swapan Majumdar, who is also
the Respondent in this appeal, contested as a candidate of a rival political
party from the same Constituency.
Upon declaration of the result the Respondent was declared the
winner and hence stood Elected. The Appellant/Petitioner challenged the
election of the Respondent before the Court of the Hon'ble Single Bench
being the designated Court in terms of Section 80A of the 1951 Act. The
Appellant/Petitioner alleged that the Respondent had indulged in corrupt
electoral practices. Hence, the election of the Respondent be declared void
and be set aside and an interim order of injunction be also passed
restraining the Respondent from functioning and/or acting as a Member of
the West Bengal Legislative Assembly till disposal of the Election Petition.
The Respondent thereafter filed two applications under Order 7 Rule
11 of the Code of Civil Procedure (CPC) before the Hon'ble Single Bench
seeking rejection of the Election Petition. One of the two applications was
simplicitor under Order 7 Rule 11 CPC and the other was under Order 7 Rule
11(d) of the CPC. In his application filed under Order 7 Rule 11(d), the
Respondent alleged that the Election Petition filed by the Appellant was not
maintainable since at the time of contesting the said Election the Appellant
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was a Bangladeshi national and not an Indian citizen. The Respondent
relied on several factual data before the Hon'ble Single Bench to
demonstrate that as on the date of the Assembly Election for Bangaon
Dakshin (SC) Constituency, the Appellant/Petitioner was the wife of a
Bangladeshi national and her name had appeared in the Voters List of
Bangladesh as well as the further fact that the Appellant/Petitioner was the
holder of a Bangladeshi National Identity Card. The Respondent therefore
sought dismissal of EP 2 of 2021 by the Hon'ble Single Bench on the ground
that the Election Petition was not maintainable at the behest of the
Appellant/Petitioner.
By the Judgement and Order impugned dated 20th of May, 2022, the
Hon'ble Single Bench was pleased to find that the Appellant/Petitioner had
practically admitted to the fact she was a Bangladeshi national at the time
the said Assembly Election was held. The Hon'ble Single Bench further
found that the Appellant/Petitioner had only denied the charge of being a
Bangladeshi national on the ground that she had applied to the concerned
Bangladeshi authorities for deletion of her name from the Electoral Roll of
Bangladesh.
The Hon'ble Single Bench also held that it was not possible for any
person to hold a dual citizenship in India. The Appellant/Petitioner had
merely applied to have her name struck off from the Electoral Roll of
Bangladesh. Therefore, the Appellant/Petitioner still remained a
Bangladeshi national and hence was not qualified to contest the said
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Assembly Election as a candidate. Ipso facto, the Election Petition filed by
the Appellant/Petitioner was also not maintainable.
Based on the above stated facts, the Hon'ble Single Bench held that
the Election Petition is barred under the law of the land. The Hon'ble Single
Bench proceeded to exercise powers under Order XII Rule 6 of the CPC.
Order XII Rule 6 entitles the Court to exercise powers based upon admission
of facts, either upon the application of any party or of its own motion and
without waiting for determination of any other question between the parties,
by making such order or delivering such judgement as the Court may think
fit having regard to such admitted fact.
Based on the admitted facts emanating from the pleadings on record,
the Hon'ble Single Bench in exercise of powers under Order XII Rule 6 CPC
while dismissing EP 2 of 2021 also referred the issue of the identity of the
Appellant/Petitioner to the Election Commission of India for information and
taking necessary action.
The operative part of the Judgment and Order of the Hon'ble Single
Bench reads as follows:-
"22. From the enquiry report dated 29th June, 2021,
regarding deletion of name of Petitioner from the Electoral
Roll of Bangladesh which the Petitioner has relied upon in
her affidavit-in-opposition, it is ascertained that the
parents of the Petitioner all along used to reside in
Bangladesh. Admittedly her mother and brother are still
residing in Bangladesh. Therefore, Petitioner‟s claim that
she became the citizen of India by birth by virtue of the
provision of Article 5 of the Constitution or Section 3 of the
Citizenship Act is proved to have been false.
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23. This Court has already pointed out that in her EPIC
Card, Pan Card and Aadhar Card, the Petitioner
mentioned her date of birth as on 22nd March, 1969.
However, in NID Certificate issued by Bangladesh Election
Commission in favour of the Petitioner, her date of birth
was recorded as on 15th January, 1967. Therefore, there
is discrepancy between the said two documents. The
Petitioner could not produce any document in support of
her date of birth and place of birth. There is absolutely no
record to prove that the parents of the Petitioner came to
India from Bangladesh and acquired citizenship of this
Country following the procedures contained in Section 3(2)
to Section 6 of the Citizenship Act, 1955. Therefore, from
the documents submitted by the Petitioner it is found that
the parents of the Petitioner were not the citizens of India .
The Petitioner never acquired citizenship of this country
following the provisions of the Citizenship Act, 1955. On
the contrary the admitted position is that the Petitioner
was a Bangladeshi citizen on the date of declaration of
General Election of West Bengal State Assembly by the
Election Commission, filing of the nomination paper, date
of election and declaration of the result. It is further found
from the Petitioner‟s own documents that though she
claimed that she severed all marital relation with her
husband, she herself mentioned her husband‟s name
Harendra Nath Sarkar in the Voters Identity Card and
Aadhar Card. Needless to mention that Voter Identity
Card was issued in the name of Petitioner on 1st March,
2012, and Aadhar Card was issued subsequent to the
issuance of Voter Card. Thus, on the date of issuance of
Adhar Card marital tie of the Petitioner existed with the
said Harendra Nath Sarkar who is a Bangladeshi
national. The Petitioner herself admitted that her marriage
with Harendra Nath Sarkar was solemnized in the year
1980 and while she was living with her husband she
applied for citizenship of Bangladesh and on the basis of
her application her name was recorded in the electoral roll
of Bangladesh and National Identification Certificate was
issued in her name. Even assuming that in the mean time
the name of the Petitioner was struck off by the concerned
authority, on the date of Assembly Election the Petitioner
was not a citizen of India.
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24. Under such backdrop the question as to whether such
admitted facts can be taken into consideration to hold that
the election petition filed by the Petitioner is barred by the
provision of Article 173 read with Section 16 of The
Representation of the People Act, 1951 while disposing of
an application under Order VII Rule 11 of the CPC.
25. The law on this point is no longer res integra. In order
to dispose of an application under Order VII Rule 11 CPC,
the court can look into the averments in the plaint and no
other document. In other words, only the pleadings of the
Petitioner as disclosed in the election petition can be
considered while disposing of an application under Order
VII Rule11 CPC. Even the pleadings made out by the
Petitioner in her affidavit-inopposition cannot be
considered.
26. At the same time the court has come to this conclusion
that the Petitioner filed the election petition claiming to be
a citizen of India. She filed nomination paper as a citizen
of India. She contested the election as a citizen of India.
But from the documents filed and relied on by the
Petitioner in her affidavit-in-opposition, it is ascertained
that in the month of June 2021, her application for
deletion of her name from the electoral roll of Bangladesh
was under consideration before the appropriate authority
of Election Commission of Bangladesh. Thus, her name
was not deleted till 29th June, 2021 from NID and
Electoral Roll of Bangladesh. The record shows that the
Petitioner filed nomination to contest the State Assembly
seat of 96-Bangaon Dakshin of SC(Constituency) on 31st
March, 2021. Election was conducted on 22nd April 2021
and the result was published on 2nd May, 2021. The
election petition was filed on 11th June, 2021. Therefore,
admittedly on all the above dates, the name of the
Petitioner appeared on in the Electoral Roll of Bangladesh.
27. Thus, the election petition is barred under the
provision of Article 173 of the Constitution of India read
with Section 16 of the Representation of the People Act,
1950. This Court comes to the above decision not from any
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pleading filed by the Respondent, but from the pleadings
and documents annexed thereto in support of the
pleadings of the Petitioner in her plaint and written
objection.
28. However, when this Court finds that though the
election petition is barred under the above mentioned
provisions of law, the court cannot reject the plaint under
Order VII Rule 11 of the CPC because such pleadings were
not the part of the election petition filed by the Petitioner.
At this stage, under the facts and circumstances involved
in the instant case, this court finds that the court can
dispose of the election petition under Order XII Rule 6 of
the CPC.
29. Order XII Rule 6 speaks about judgment on
admissions. The said provision runs thus:-
(1) R 6(1). Where admissions of fact have been made
either in the pleading or otherwise, whether orally or in
writing, the court may at any stage of the suit, either on
the application of any party or of its own motion and
without waiting for the determination of any other
question between the parties, make such order or give
such judgment as it may think fit having regard to such
admissions.
(2) Whenever a judgment is pronounced under Rule 1 a
decree shall be drawn up upon in accordance with the
judgment and the decree shall bear the date on which the
judgment was pronounced.
30. From plain reading of the above provisions, it appears
that the power of the court under Order XII Rule 6, is very
wide. It is open to the court to pronounce a judgment on
admission on the pleading or otherwise. The word
"otherwise" in the said provision clearly indicates that it is
open to the court to base the judgment on statements
made by a party not only in the pleadings but also de hors
the pleadings. Such admission may be made either
expressly or constructively.
31. Thus, in order to pronounce a judgment under Order
XII Rule 6 CPC , it is not necessary that the defendant
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shall have to admit the claim of the plaintiff in his written
statement. He can admit any claim or fact even otherwise.
In the instant case the Petitioner admitted that she
acquired citizenship of Bangladesh mistakenly. However,
the name of the Petitioner still exists in the Electoral Roll of
Bangladesh. I am in agreement with the learned advocate
for the Respondent that the principle of „Dual Citizenship‟
is not applicable in India. Therefore, the Petitioner cannot
claim to be a citizen of India when her name appeared in
the Electoral Roll of Bangladesh. The relevant date is the
date of filing nomination paper by the Petitioner. It is
admitted from the documents filed by the Petitioner that
on the date of filing of the nomination paper by her she
was a Bangladeshi national.
32. In view of such circumstances, it is open for the court
to pronounce judgment under Order XII Rule 6 of the CPC.
33. For the reasons stated above this Court finds that
continuation of the proceeding in Election Petition 2/2021
will be unnecessary and fruitless exercise of judicial
process and time.
34. The court can under the facts and circumstances
dated above pass a judgment on admission.
35. In view of the above discussion, the election petition is
liable to be dismissed under Order XII Rule 6 of the CPC.
36. The instant application is thus disposed of.
37. The order of dismissal of election proceeding be
passed in EP2/2021.
38. In view of the peculiar facts and circumstances of this
case, a copy of this order be sent to the Election
Commission of India for information and taking necessary
action in respect of the Petitioner‟s status in this country
as on this date, through the learned Registrar General,
High Court, Calcutta."
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Aggrieved by the Judgement and Order of the Hon'ble Single Bench,
the Appellant/Petitioner has filed the instant appeal.
Mr. Jagriti Mishra, Learned Counsel appearing on behalf of the
Respondent raises a demurrer that an intra-court appeal is not maintainable.
It is submitted that the 1951 Act unambiguously provides that an appeal
against dismissal of an Election Petition shall lie before the Hon'ble Supreme
Court under Sections 116A of the 1951 Act. Section 116A provides for
appeals against orders made by the High Court in an Election Petition under
Section 98 or 99 of the 1951 Act. The period of limitation for filing an appeal
under Section 116A is also provided in the 1951 Act.
It is submitted that The Representation of People Act, 1950 was
followed by the 1951 Act and thereafter amendments were brought in 1966
creating a designated statutory court for challenging elections. The creation
of a statutory election Court arose from the intent as expressed in Article
329(b) of the Constitution of India. Relying on the authorities reported in AIR
1952 SC 64 (In Re: N.P. Ponnuswami), which stood reiterated in (1988) 2 SCC
1 (In Re: Upadhyaya Hargovind Devshanker vs. Dhirendrasinh
Virbhadrasinhji Solanki & Ors.), Learned Counsel submits that the present
intra-court appeal is not maintainable and requires to be dismissed in limine.
Per contra, Mr. Anirban Ray, Learned Counsel appearing for the
Appellant/Petitioner relies on the authorities reported in (2003) 10 SCC 361,
AIR 2007 Cal 260 and (1986) 4 SCC 78 to argue that the present appeal is
maintainable. It is submitted that Clause 15 of the Letters Patent does not
restrict the filing of an appeal in connection with an Election Petition,
11
notwithstanding the bar created under Section 116A of the 1951 Act. It is
pointed out that the right of filing an intra-court appeal cannot be taken
away by inference. Although the 1951 Act is a self-contained Code, an intra-
court appeal is maintainable in respect of any order passed in an Election
Petition which is not an Order under Sections 98 and 99 of the 1951 Act
which are only appealable to the Hon'ble Supreme Court under Section 116A
of the 1951 Act.
Having heard the parties and considering the materials placed, this
Court is at the threshold required to notice the statutory position governing
the field.
First, the designated Judge of a High Court shall have the power to try
an Election Petition under Section 80A of the 1951 Act. The grounds on
which an Election Petition may be presented have been specified in Section
100 of the 1951 Act. The involvement of a returned candidate in any corrupt
practice shall be one of the grounds for declaring the Election to be void
under Section 100 (1)(b) of the 1951 Act.
The contents of the Election Petition are specified in Section 83 of the
1951 Act.
The High Court shall render a decision in the Election Petition under
Section 98 of the 1951 Act. While passing an Order under Section 98, the
High Court shall be eligible to pass other orders as specified in Section 99 of
the 1951 Act. Sections 98 and 99 read as follows:-
"98. Decision of the High Court
At the conclusion of the trial of an election petition the
High Court shall make an order-
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(a) Dismissing the election petition; or
(b) declaring the elction of all or any of the returned
candidates to be void; or
(c) declaring the election of all or any of the returned
candidates to be void and the Petitioner or any other
candidate to have been duly elected.
99. Other orders to be made by the High Court
(1) At the time of making an order under section 98, the
High Court shall also make an order-
(a) where any charge is made in the petition of any corrupt
practice having been committed at the election, recording-
(i) a finding whether any corrupt practice has or has not
been proved to have been committed at the election, and
the nature of that corrupt practice; and
(ii) the names of all persons, if any, who have been proved
at the trial to have been guilty of any corrupt practice and
the nature of that practice; and
(b) fixing the total amount of costs payable and specifying
the persons by and to whom costs shall be paid:
PROVIDED that a person who is not a party to the petition
shall not be named in the order under sub-clause (ii) of
clause (a) unless-
(a) He has been given notice to appear before the High Court
and to show cause why he should not be so named; and
(b) If he appears in pursuance of the notice, he has been
given an opportunity of cross-examining any witness who
has already been examined by the High Court and has
given evidence against him, or calling evidence in his
defence and of being heard.
(2) In this section and in section 100, the expression
"agent" has the same meaning as in section 123."
The procedure for filing an appeal is provided in Section 116C of the
1951 Act.
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Upon a close examination of the provisions of the statute, i.e. the
1951 Act, this Court finds that appeals under Section 116A shall lie against
orders passed under Sections 98 and 99 (supra). Admittedly, the trial of the
instant Election Petition being EP 2 of 2021 could not be held by the Hon'ble
Single Bench. Therefore, there could be no reason to conclude the trial as
contemplated by Section 98 (supra). Consequently, no decision could be
rendered by the High Court at the conclusion of the trial dismissing the
Election Petition and/or declaring the Election of the Returned Candidate to
be void and/or declaring the Petitioner or any other person to be duly
elected.
Since no decision could be rendered at the conclusion of the trial, no
other orders connected to the trial could be passed by the High Court under
Section 99 of 1951 Act. Stricto sensu therefore, no appeal could be filed
before the Hon'ble Supreme Court under Section 116A of the 1951 Act which
provides for appeals from every order made by a High Court under Section
98 or Section 99 (supra). For the benefit of this discussion Section 116A
stands quoted below.
"116A. Appeals to Supreme Court
(1) Notwithstanding anything contained 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
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is satisfied that the Appellant had sufficient cause for not
preferring the appeal within such period."
Clause 15 of the Letters Patent also contains no specific bar against
an intra-Court appeal from any other order in an Election Petition which is
not an order under Sections 98 and 99 of the 1951 Act. Clause 15 of the
Letters Patent reads as follows:-
"15. Appeal from the courts of original jurisdiction to the
High Court in its appellate jurisdiction.- And we do further
ordain that an appeal to the said High Court of Judicature
at Fort William in Bengal from the judgment (not being a
judgement passed in the exercise of appellate jurisdiction
in respect of a decree or order made in the exercise of
appellate jurisdiction by a court subject to the
superintendence of the said High Court, and not being an
order made in the exercise of revisional jurisdiction and
not being a sentence or order passed or made in the
exercise of the powers of superintendence under the
provisions of Section 107 of the Government of India Act or
in the exercise of criminal jurisdiction) 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,
and that notwithstanding anything hereinbefore provided,
an appeal shall lie to the said High Court or one Judge of
any Division Court, pursuant to Section 108 of the
Government of India Act made on or after the first day of
February, 1929 in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of
appellate jurisdiction by a court subject to the
superintendence of the said High Court, where the Judge
who passed the judgment declares that the case is fit one
for appeal, but that the right of appeal from other
judgments of Judges of the said High Court or of such
Division Court shall be to us, or heirs or successors in our
or their Privy Council as hereinafter provided."
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This point came up for discussion in (2012) 12 SCC 27 wherein
speaking for himself, one of the Hon'ble Judges observed as follows:-
"5. Section 116A of the Representation of the People Act,
1951 provides for appeals to this Court both on facts as
also on questions of law from every order made by the
High Court under Section 98 or 99 of the Act. Sub-section
(2) of Section 116A prescribes a period of 30 days for filing
of such appeals while proviso to sub-section (2) empowers
this Court to entertain an appeal even after the expiry of
the said period if the Appellant shows sufficient cause for
not preferring the appeal within such period.
6. Section 98 of the Act provides for the orders that the
High Court shall make at the conclusion of the trial in an
election petition. These orders could be in the nature of
dismissal of an election petition or declaring the election of
all or any of the returned candidates to be void or
declaring the election of all or any of the returned
candidates to be void and the Petitioner or any other
candidate to have been declared elected.
7. Section 86 of the Act deals with the trial of election
petitions and, inter alia, provides that the High Court shall
dismiss an election petition which does not comply with
the provisions of Sections 81 or 82 or Section 117 of the
Act. Any such dismissal may come after the parties go to
trial or even at the threshold. An election petition which
does not call for dismissal on the ground that the same
violates any one of the three provisions, namely, Section
81 or 82 or 117 may still be dismissed summarily and
without the parties going to trial on the merits of the
controversy under Order VII Rule 11 of CPC. Any such
order if may not be qualifying for a challenge before this
Court under Section 116A as an appeal is under that
provision limited to only such orders as are passed
under Section 98 of the Act at the conclusion of the trial of
election petition. Strictly speaking, it could well be said
that an order which does not fall within the four corners
of Section 98 inasmuch as the same is not passed at the
conclusion of the trial of an election petition may not
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qualify for being challenged in appeal under Section
116A including an order dismissing the petitions
summarily under Section 86 of the Act for non-compliance
of the provisions of the Sections 81, 82 and 117.
8. What is important and what makes a difference is the
presence of an explanation under Section 86(1) that by a
legal fiction makes an order passed under Section 86 of
the Act to be an order under Section 98 thereof
explanation reads :
"Explanation to Section 86: An order of the High Court
dismissing an election petition under this sub-section shall
be deemed to be an order made under clause (a) of Section
98."
The fiction is, however, limited to orders passed
under Section 86(1) alone namely to cases where
dismissal is for non-compliance with the provisions
of Sections 81, 82 and 117 of the Act. It does not extend to
dismissal under Order VII Rule 11 of the CPC for non-
compliance with the provisions of Section 83 of the Act. In
other words, if a petition does not state the material facts
on which the Petitioner relies as required under Section
83(1)(a) and thereby fails to disclose any cause of action
and is consequently dismissed by the Court in exercise of
its powers under Order VII, Rule 11 CPC, such an order of
rejection of the petition is not in terms of Explanation
to Section 86 treated as an order made under Section
98 so as to be appealable under Section 116A of the Act.
9. Mr. Prasad was, therefore, perfectly justified in arguing
that since the High Court has, in the instant case,
dismissed the election petitions not under Section 86 to
which the Explanation appearing thereunder is attracted
but under Order VII Rule 11 for the alleged failure of the
Petitioners to state the material facts on which they relied,
the order passed by the High Court was not appealable
under Section 116A. The only difficulty which was
encountered by us in holding that the special leave
petitions were maintainable is a decision of this Court in
Dipak Chandra Ruhidas case (supra) where this Court
has taken the view that Section 116A must be interpreted
liberally and an order dismissing the election petition on
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the ground that the averments do not state material facts
would be appealable under Section 116A. With utmost
respect to the Hon‟ble Judges comprising the Bench, we
find that conclusion to be contrary to the scheme of the
Act. We were, therefore, inclined to make a reference to a
larger Bench for re-consideration of that view, for the
same, in our opinion, extends the fiction created under the
Explanation to Section 86 even to case where the Court
does not invoke Section 86 while passing an order of
dismissal but exercises its power of rejection of the
plaint/petition under Order 7 Rule 11 CPC.
10. It is noteworthy that an order under Order VII Rule 11
CPC by reason of Section 2(2) of the CPC is a decree hence
appealable under Section 96 of the Code. Since, however,
the right of appeal under the Representation of the People
Act is regulated by Section 116A, the fact that an order
rejecting a plaint under Order VII Rule 11 CPC would have
been in the ordinary course appealable before the higher
Court hearing such appeals would not make any
difference. Inasmuch as the right of appeal is a creature of
the statute, and Section 116A does not provide for an
appeal against an order passed under Order VII Rule 11
CPC read with Section 83 of the Representation of the
People Act, 1951 no resort can be taken to that provision
by a process of interpretation of the Explanation to Section
86 or an artificial extension of the legal fiction beyond the
said provision. Mr. Prasad was not, however, very keen to
pursue his argument to its logical end for obvious reasons.
A reference to a larger bench would inevitably delay the
disposal of these appeals and even the election petitions.
Mr. Prasad, therefore, chose the alternative course
available to him and sought permission of this Court to
convert the SLPs into appeals under Section 116A of the
Act. Two applications, one seeking permission to convert
the petitions into an appeal under Section 116A and the
other seeking condonation of delay in the filing of the
appeals were accordingly made by the Petitioner. Having
heard learned counsel for the parties at some length we
are inclined to allow both these applications in both the
special leave petitions.
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11. Whether or not an appeal was maintainable against
the impugned order was and continues to be a highly
debatable issue as seen in the foregoing paragraphs. The
Petitioners appear to have been advised that the orders
could be challenged only by way of SLPs. That advice
cannot in the circumstances of the case, be said to be a
reckless piece of advice nor can the Petitioners be accused
of lack of diligence in the matter when the SLPs were
admittedly filed within the period of limitation stipulated
for the purpose. The decision of this Court in Deputy
Collector, Northern Sub-Division Panaji v. Comunidade of
Bambolim (1995) 5 SCC 333, recognizes a bonafide
mistake on the part of the counsel in pursuing a remedy
as a good ground for condonation of delay in approaching
the right forum in the right kind of proceedings. The
limitation prescribed for filing an appeal under Section
116A is just about 30 days from the date of the order.
There is, therefore, a delay of nearly 20 days in the filing
of the appeal which deserves to be condoned. We
accordingly allow the applications for conversion and for
condonation of delay in both the special leave petitions
and direct that the SLPs shall be treated as appeals filed
under Section 116A of the Representation of the People
Act."
Applying the same logic to the order of the Hon'ble Single Bench
which purports to dismiss the Election Petition based on admission of facts
and in exercise of powers under Order XII Rule 6 CPC, such a dismissal, not
being an order passed under Sections 98 and 99 of the 1951 Act, arguably is
amenable to an intra-Court appeal under Clause 15 of the Letters Patent.
However, at this juncture this Court must notice the clear
pronouncement of the Hon'ble Supreme Court in (1988) 2 SCC 1 (supra)
which at Paragraphs 16, 17, 18 and 19 thereof read as follows:-
"16. Even on this occasion the Act did not provide for any
appeal against any interlocutory order passed by judge
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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 case. No court exercising power under any
ordinary law other than the judge of a High Court who has
been assigned the work of trying an election petition under
sub-section (2) of Section 80-A of the Act and the Supreme
Court which is empowered to hear an appeal against any
order passed by the judge of the High Court under Section
98 or Section 99 of the Act can therefore decide any
question arising out of an election petition. The power of
the Supreme Court under the provisions of the Constitution
which is the fundamental law of the land and not an
ordinary law is however unaffected by any of the
provisions of the Act. It means that when the election
petition is pending in the High Court only the judge who is
asked to try an election petition can deal with questions
arising in it and no other judge or judges of the High Court
can deal with them. When the order passed by the judge
of the High Court in an election petition is an order passed
under Section 98 or Section 99 of the Act it is subject to the
appellate jurisdiction of the Supreme Court under Section
116-A of the Act as Article 136 of the Constitution
naturally stands excluded in view of the express
provisions contained in Section 116-A of the Act. The
remedy available under Article 136 of the Constitution
may, however, be resorted to by any party who is
aggrieved by any order passed by the judge trying an
election petition which does not fall under Section 98 or
Section 99 of the Act. It follows that the Division Bench of
the High Court which is entitled to hear an appeal against
any order of a Single Judge under Clause 15 of the Letters
Patent of the High Court which is an ordinary law cannot
hear an appeal against any interlocutory order passed in
the course of the trial of an election petition by the judge
trying an election petition since the Division Bench is not
specified in the Act as an appellate authority which can
20
deal with questions arising out of an election petition filed
under the Act.
17. Clause 15 of the Letters Patent of the High Court of
Gujarat (omitting the unnecessary portions) reads as
follows:
15. Appeal from the courts of original jurisdiction to the
High Court in its appellate jurisdiction. And we do further
ordain that an appeal shall lie to the said High Court .......
from the judgment (not being a judgment passed in the
exercise of appellate jurisdiction .....) 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,
.......
18. 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 vs. Jayaben D. Kania. 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 Constitution. Having regard to the history of the legislation and the limited nature of the appeal expressly provided in Section 116-A of the Act it should be held that any other right of appeal (excluding that under the Constitution) is taken away by necessary implication. 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 other powers incidental to the ordinary original jurisdiction exercised by a Single 21 Judge of a High Court would become applicable to an election petition filed under the Act. It is not doubt true that in Dr Chotalal Jivabhai Patel case the Division Bench of the High Court of Gujarat applied to the rule laid down in National Telephone Company Ltd. v. Postmaster General 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." (emphasis added) to an election petition filed 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 to 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 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 of the jurisdiction may be such that all the incidents of procedure of 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 had 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 Houses of Parliament and to the Houses 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 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 22 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 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 filed 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. We therefore overrule the said decision. We also overrule the decision of the Madras High Court in Kadiravan alias Shamsudeen v. B. Thirumalaikumar and the decision of the Madhya Pradesh High Court in Laxmi Narayan Nayak v. Ramratan Chaturvedi which have taken the same view as in Dr. Chotalal Jivabhai Patel case. We are, however, in agreement with the view expressed by the High Court of Allahabad in Siaram v. Nathuram and by the High Cout of Rajasthan in Ramdhan v. Bhanwarlal which have held that by necessary implication an appeal to the High Court from an interlocutory order passed by the Single Judge of 23 the High Court in the course of a trial of an election petition filed under the Act is excluded. The reasons given in the latter case by the Full Bench of the Rajasthan High Court are indeed quite substantial.
19. the Division Bench of the High Court of Gujarat had, therefore, no jurisdiction to hear the appeal filed by Respondent 1 against the interlocutory order passed by the learned Single Judge who was trying the election petition. We, therefore, set aside the judgment of the Division Bench of the High Court and dismiss the Letters Patent appeal filed before the High Court. We however express to opinion on the merits of the case. The parties are at liberty to resort to any other remedy open to them in law. The appeal is accordingly allowed. No costs."
Having regard to the above discussion in (1988) 2 SCC 1, this Court cannot have two views on the entire procedure connected to an Election Petition being part of a single statutory framework. The period of limitation specified in the 1951 Act for filing an appeal to the Hon'ble Supreme Court also indicates the statutory intent of maintaining a single framework for conduct of election proceedings.
Therefore, arguably though the order impugned of the Hon'ble Single Bench is not an Order under Sections 98 and 99 of the 1951 Act but, at the same time, by the said impugned Order an Election Petition stood dismissed.
Accordingly, having regard to the pronouncement of law as laid down in (1988) 2 SCC 1 (supra) Orders, even if considered incidental to an Election Petition but have resulted in an adjudication of such Election Petition must be restricted to the particular channel of appeal to the Hon'ble Supreme Court having regard to the overall statutory intent of keeping disputes 24 connected to the electoral process under a consolidated adjudicatory framework.
Before parting with this discussion, this Court must also notice that the facts relied upon by the Hon'ble Single Bench as gathered from the pleadings on record are part of the "contents of an election petition disclosing material facts" and covered by Section 83 of the 1951 Act. Admittedly therefore, the Hon'ble Single Bench has considered such material facts and dismissed the Election Petition. Fundamentally therefore, the dismissal of an Election Petition is only amenable to a challenge as provided by Section 116A of the 1951 Act. or, by way of a Special Leave Petition under Article 136 of the Constitution of India.
APOT 95 of 2022 stands accordingly dismissed only on the ground of being not maintainable.
Parties shall be entitled to act on the basis of a server copy of this Judgement and Order placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
I agree.
(Supratim Bhattacharya, J.) (Subrata Talukdar, J.) 25 Later:-
Stay of the Order is prayed for by Mr. Sengupta, Learned Counsel appearing for the appellant.
The prayer for stay is considered and refused.
I agree.
(Supratim Bhattacharya, J.) (Subrata Talukdar, J.)