J.S. VERMA, J.

(1.) The only question for decision by us is whether an appeal under Cl. 10 of the Letters Patent is tenable against an interlocutory order passed in an election petition by a single Judge which amounts to a judgment within the meaning of that expression used in Cl. 10. This question has to be answered on the assumption that the right of appeal under Clause 10 of the Letters Patent subsists notwithstanding the enactment of M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam (29 of 1981) abolishing the right of such appeals since this enactment has been held to be constitutionally invalid by a Full Bench of this Court in Balkrishna Dass v. Perfect Pottery Co. Ltd. AIR 1985 Madh Pra 42. In case it is held that such an appeal is tenable, the appeal has to be heard and decided on merits by a Division Bench which will also decide whether the impugned interlocutory order passed in the election petition amounts to a judgment within the meaning of that expression used in Cl. 10 of the Letters Patent. On the other hand, if the conclusion reached by us is that no such appeal is tenable under Cl. 10 of the Letters Patent against an interlocutory order passed in an election petition by a single Judge even if the order amounts to a judgment within the meaning of that expression used in Cl. 10 of the Letters Patent, then the further question of considering the appeal on merits would not arise.

(2.) This appeal is against an interlocutory order dated 28-8-1985 passed by Gupta, J. in a pending election petition. The appellants contention is that the impugned order amounts to a judgment and is, therefore, appealable under Cl. 10 of the Letters Patent notwithstanding S. 116-A of the Representation of the People Act, 1951, providing for an appeal to the Supreme Court against final decision in an election, petition at the conclusion of the trial. This appeal came up for motion hearing on 25-9-1985 before a Division Bench consisting of myself and Adhikari, J. Reliance was"placed on behalf of the appellant on two decisions of the Gujarat High Court in Chhotalal Jivabhai v. Vadilal Mehta (1971) 12 Guj LR 850 and Indulal v. Prasannadas, AIR 1972 Guj 92 [LQ/GujHC/1971/116] and a decision of the Madras High Court in Kadiravan v. Thirumaiai Kumar ILR (1970) 2 Mad 183 in support of the contention that an appeal lies under Cl. 10 of the Letters Patent against an interlocutory order passed in an election petition by a single Judge which amounts to a judgment within the meaning of that expression used in Cl. 10. The question of tenability of such an appeal had been raised earlier in Amolakchand Chhajed v. Bhagwandas LPA No. 12 of 1973, decided on 23rd November 1973, before a Full Bench of this court but that question was left open after mentioning its importance and intricacy and referring to the decisions of the Gujarat and Madras High Courts in Chhotalal Jivabhai v. Vadilal Mehta, Indulal v. Prasannadas and Kadiravan v. Thirumali Kumar. The Division Bench, therefore considered it appropriate to refer the question of tenability of such an appeal to a Full Bench instead of deciding it itself. Accordingly, this question was referred by the Division Bench for being decided by a larger Bench. A Full Bench was then constituted consisting of myself, C.P. Sen, J., and B. M. Lal, J., to decide the question of tenability of the appeal under Cl. 10 of the Letters Patent assuming that the right of appeal under Cl. 10 of the Letters Patent survives in view of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (AIR 1985 Madh Pra 42) (supra). At the commencement of hearing of this question before the Full Bench on 28-10-1985 it was felt by one of us (B. M. Lal, J.) that the basic question of survival of right of appeal under Cl. 10 of the Letters Patent in all matters after the Constitution of India came into force and the changes in law were made from time to time also requires consideration in the present case. Obviously the consideration of this basic question could have involved, considering even the correctness of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (supra) at least impliedly, decided by a Bench of three Judges. It was, therefore, considered appropriate that the matter should be heard by a Bench of more than three Judges if this larger question had also to be considered. The matter was, therefore referred to a larger Bench. This is how the matter came to be heard by this Bench of five Judges. However, at the commencement of the hearing before us, it was decided unanimously that it would be inappropriate for this Court to consider this larger or basic question about survival of the right of appeal under Cl. 10 of the Letters Patent in all matters at a time when the question of correctness of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (supra) is before the Supreme Court in a pending appeal and consideration by us of this basic question could involve consideration of the correctness of the Full Bench decision in Balkrishna Dass v. Pottery Co. Ltd. (supra).

(3.) Accordingly, we have confined the hearing to the only question referred by the Division Bench regarding tenability of an appeal under Cl. 10 of the Letters Patent against an interlocutory order passed by a single Judge in a pending election petition which amounts to judgment within the meaning of Cl. 10 of the Letters Patent. Our decision is also, therefore, confined only to this point.

(4.) On the only question for decision by us, I have reached the conclusion that the view taken by the Gujarat High Court in Chhotalal Jivabhai v. Vadilal Mehta (1971-12 Guj LR 850) (supra) and Indulal v. Prasannadas (AIR 1972 Guj 92 [LQ/GujHC/1971/116] ) (supra) as well as the Madras High Court in Kadiravan v. Thirumalai Kumar (ILR (1970) 2 Mad 183) (supra) must be preferred and followed since the same meets all the arguments advanced in support of the contrary view and it also appears to be more logical of the two views. The first of these decisions is the decision in Chhotalal Jivabhai v. Vadilal Mehta (supra) which considers this question at great length and meets all the arguments urged in support of the contrary view. Since I am in full agreement with the view taken therein as well as the reasons given, I propose to mention only briefly my reasons for taking this view. P. N. Bhagwati, C.J. (as he then was) speaking for the Division Bench of the Gujarat High Court in this decision, has considered the matter at length in paras 12, 13 and 20 to 23 of the judgment for reaching the conclusion as follows - "This construction which we are adopting does not lead to any harm or mischief nor does it operate to frustrate the object and purpose of the enactment of the new Scheme for trial of election disputes introduced by the Parliament. It was pressed upon us that if we hold that there is a right of appeal against intermediate orders under Clause 15, that would act as an impediment in the expeditious disposal of election petitions and it would be difficult, if not impossible, to dispose of election petitions within six months. We do not think this apprehension is well founded. Apart from the exceptional case which we have before us we cannot reasonably foresee any intermediate orders in the course of an election petition which would amount to judments within the meaning of Clause 15. Whatever intermediate orders may be passed in an election petition would be ordinarily orders regulating the procedure and would not amount to judgments within the meaning of Clause 15. The smooth and even course of an election petition is, therefore, not likely to be retarded or impeded by the view which we are inclined to take. Furthermore, it must be remembered that even if an appeal is entertained by the High Court against an intermediate order under Clause 15, the High Court would see to it that the time limit of six months which the Legislature has set for the disposal of the election petition is not, as far as practicable, transgressed. It may also be noted that the view we are taking will make it possible for an aggrieved party to obtain redress from the High Court without approaching the Supreme Court in the exercise of its extraordinary jurisdiction under Article 136...........The view contended for on behalf of the petitioner and the second respondent, therefore, commends itself to use and we accept it in preference to the view contended for on behalf of the first respondent. We, therefore, hold that the right of appeal against intermediate orders under Clause 15 is not excluded by necessary implication and if an intermediate order made by a single Judge in an election petition amounts to judgment within the meaning of Clause 15, it would be appealable.

(5.) This conclusion was reached basically as the reasoning that S. 116-A of the Representation of the People Act, 1951, providing for an appeal to the Supreme Court from every order made at the conclusion of the trial of the election petition under S. 98 or S. 99 of the Act supersedes only the right of appeal under Cl. 10 of the Letters Patent against the final decision in the election petition made at the conclusion of the trial and it does not even impliedly supersede the remaining right of appeal under Cl. 10 of the Letters Patent against an interlocutory order passed by a single Judge in the election petition which amounts to a judgment. It may be mentioned that Cl. 10 of the Letters Patent of this High Court and Cl. 15 of the Letters Patent considered by the Gujarat High Court are in pari materia for our purpose. This reasoning was based on the well established principle that where a matter is referred for trial to an established or existing Court, it imports that the ordinary incidents of the procedure of that Court including any general right of appeal from its decision attach likewise to that matter. Since trial of the election petition is by the High Court, according to the provisions of the Representation of the People Act, 1951, the ordinary incidents of procedure including the right of appeal apply to it where the trial is by single Judge. Obviously, the question of any appeal under Cl. 10 of the Letters Patent would not arise if any election petition is tried by a Division Bench since an appeal under Cl. 10 of the Letters Patent is provided only against a judgment of a single Judge. This, in substance, is the summary of the reasoning in the above Gujarat decision which was followed by that Court in Indulal v. Prasannadas, (AIR 1972 Guj 92 [LQ/GujHC/1971/116] ) (supra).

(6.) Same is the view taken later by a Division Bench of the Madras High Court in Kadiravan v. Thirumalai Kumar, ILR (1970) 2 Mad 183 which is based substantially on the reasoning given by Bhagwati, C.J. in the aforesaid decision given earlier even though reported later in Chhotalal Jivabhai v. Vadilal Mehta, (1971) 12 Guj LR 850.

(7.) In view of the fact that I am in complete agreement with this view and the reasons given elaborately in paras 12, 13 and 20 to 28 of the decision in Chhotalal Jivabhai v. Vadilal Mehta (supra) it is not necessary to reiterate the same. I would only mention that the right of appeal conferred by S. 116-A of the Representation of the People Act, 1951 can abrogate the right of appeal available under Clause 10 of the Letters Patent only to the extent S. 116-A covers the field and no more. Section 116A of the Representation of the People Act provides for an appeal against every order made by a High Court in an election petition under S. 98 or S. 99, i.e. at the conclusion of the trial of the election petition. The non obstante clause in sub-s.(1) of S. 116-A, therefore, has the effect of abrogating the right of appeal under CL 10 of the Letters Patent against the final decision of a single Judge in an election petition. The enacting part of S. 116-A gives no indication that it covers the entire field relating to appeals including appeals against interlocutory orders in addition to providing for appeals against the final orders made under S. 98 or 99. It nowhere says that an appeal shall not lie against any other order not specified therein as has been done in S. 39 of the Arbitration Act by use of the words "and from no others" which clearly indicate that except for orders specified in sub-s. (1) of S. 39, no appeal shall lie from any other order which has not been so specified.

(8.) I am, therefore, unable to accept the contention that S. 116-A of the Representation of the People Act covers the entire field of appeals, including an appeal against interlocutory order passed by a single Judge in the election petition which amounts to a judgment, and is, therefore, appealable under Cl. 10 of the Letters Patent. Even the learned counsel canvassing the contrary view before us conceded that but for the provision contained in S. 116-A of the Representation of the People Act an appeal under Cl. 10 of the Letters Patent would lie not only against every order made under S. 98 or 99 of the Act at the conclusion of the trial but also interlocutory order made therein by a single Judge which amounts to a judgment within the meaning of that expression used in Cl. 10. This argument itself implies that unless S. 116-A of the Representation of the People Act is construed as covering the entire field relating to the right of appeals against all orders passed in an election petition, the contrary view is not acceptable. As already indicated, I am unable to hold that S. 116-A covers the field relating to right of appeal in excess of the right of appeal only against the orders made at the conclusion of the trial under S. 98 or S. 99.

(9.) As a result of this construction made by me of S. 116-A, it follows that this appeal is tenable under Cl. 10 of the Letters Patent in case the impugned interlocutory order passed by the learned single Judge amounts to judgment within the meaning of that expression used in Cl. 10.

(10.) I may now refer to the two decisions supporting the contrary view which have been relied on by the learned Advocate-General, the counsel for respondent No. 1 and others who have appeared to support the contrary view. These decisions are Siaram v. Nathuram, 1968 All LJ 576 and Ramdhan v. Bhanwarlal, AIR 1985 Raj 185 [LQ/RajHC/1983/149] (FB).

(11.) The Full Bench decision of Rajasthan High Court in Ramdhans case (supra) does not consider and meet the reasons given by the Gujarat and Madras High Courts in the aforesaid decisions for the conclusion reached therein and merely mentions in para 62 that certain aspects which had been adverted to in the Rajasthan case were not placed before the Gujarat and Madras High Courts. No counsel relying on the Rajasthan decision was able to point out to us any aspect considered therein which had been overlooked in the Gujarat and Madras decisions. The difference in the conclusion reached in the Rajasthan case results from the assumption that S.116-A of the Representation of the People Act covers the entire field pertaining to appeals and not merely the appeal against the orders passed under S. 98 or S. 99 of the Act. I have already pointed out my inability to accept this basic assumption which is the foundation of the contrary view taken in the Rajasthan case.

(12.) The decision of the Allahabad High Court in Siarams case (supra) no doubt, takes the same view as was taken in the Rajasthan case but it was also held that the appeal therein was against an interlocutory order passed by a single Judge which did not amount to a judgment against which alone appeal was permitted. Having taken the view that the impugned interlocutory order in that case did not amount to a judgment, and was, therefore, not appealable for this reasons, the ultimate conclusion reached in the Allahabad case was supportable or. this ground alone without going into the question of tenability of the appeal. That apart, the elaborate reasons given in the aforesaid first Gujarat decision on which I have placed reliance for reaching my conclusion were not considered at any length in the Allahabad decision. This decision is not of much assistance.

(13.) As a result of the aforesaid discussion, I have reached the conclusion that the view taken by the Gujarat and Madras High Courts in the aforesaid decisions must be preferred as the rsasoning therein is more persuasive and meets all the points urged to support the contrary view, with respect, I am unable to concur with the view taken by the Rajasthan and Allahabad High Courts in the aforesaid decisions.

(14.) Consequently, I hold that an appeal lies under Cl. 10 of the Letters Patent against an interlocutory order passed by single Judge in an election petition which amounts to a judgment within the meaning of that expression used in Cl. 10. The question for our decision is answered accordingly. In view of the conclusion I have reached on this point, I would direct that the appeal be now heard on merits by a Division Bench for deciding the further questions arising therein.

(15.) B. C. VARMA, J.: - I agree.

(16.) S. S. SHARMA, J.: - I agree.

(17.) P. SEN, J. (Minority view) :- I had the advantage of going through the opinion of the learned Acting Chief Justice that Letters Patent Appeal lies under Cl. 10 of the Letters Patent against an interlocutory order which amounts to a judgment within the meaning of that expression used in Cl. 10 in an election petition under the Representation of the People Act, 1951, but I regret that I am unable to subscribe to that view and according to me no such appeal lies against interlocutory orders which may amount to judgment in an election petition filed under S. 81 of the Act. We are not called into question to go into the correctness of the Full Bench decision of this Court in Balkrishna Dass v. Perfect Pottery Co. Ltd., AIR 1985 Madh Pra 42 because appeal is pending in the Supreme Court and the question has to be answered on the assumption that right of appeal under Cl. 10 of the Letters Patent subsists notwithstanding the enactment of the M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 198.1, abolishing Letters Patent Appeals.

(18.) There are conflicting views on this question. According to one set of decisions, the Representation of the People Act, 1951, is a self-contained Code which has created liability not existing at common law and at the same time gives a special remedy for enforcing it. Only appeal lies against decision of the single Judge of the High Court in an election petition under S. 116-A of the Act to the Supreme Court in respect of orders made under S. 98 or 99 of the Act and by necessary implication no appeal lies against interlocutory orders (Siaram v. Nathuram, 1968 All LJ 576 and Ramdhan v. Bhanwarial, AIR 1985 Raj 185 [LQ/RajHC/1983/149] ) (FB). The other view is that since now election petition is tried by a Judge of the High Court, the ordinary incidents of the procedure of the Court attach to the jurisdiction and, as such, the right of appeal against intermediate orders under Letters Patent which otherwise attaches as an ordinary incident is not excluded by necessary implication (Chhotalal Jivabhai v. Vadilal Mehta, 1971-12 Guj LR 850, Indulal v. Prasannadas, AIR 1972 Guj 92 [LQ/GujHC/1971/116] and Kadiravan v. Thirumali Kumar, ILR (1970) 2 Mad 183). It may be mentioned that the Rajasthan Full Bench case distinguished these cases by simply saying that all the aspects considered by the Full Bench were not considered in those cases. It may also be mentioned that P. N. Bhagwati, C.J. (as he then was) in Chhotalal Jivabhai v. Vadilal Mehta (supra) observed that there are two views possible but the view which they are adopting commends itself to them and which is accepted in preference to the other view. However, there is unanimity in all those decisions that some interlocutory orders that may be passed in an election petition may amount to judgment within the meaning of that clause of the Letters Patent, which provided for an appeal against such judgment. Evidently, two views are possible and the question is which view should be preferred under the present circumstances.

(19.) Article 329(b) of the Constitution provides that 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. Representation of the People Act, 1951, has been enacted under this provision. Part VI of the Act deals with disputes relating to election and begins with S. 80 which provides that no election shall be called in question except by an election petition presented in accordance with the provisions of that Part. Under sub-ss. (6) and (7) of S. 86, the trial of an election petition shall be continued from day to day until its conclusion and if the High Court finds the adjournment of the trial beyond the following day to be necessary, then the reasons for such adjournment should be recorded and 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 of presentation of the petition. Section 87 provides that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure. Chapter IV-A of that Part deals with appeals. Under S. 116-A notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to Supreme Court on any question (whether of law or fact) from every order made by a High Court under S. 98 or S. 99. It may be mentioned that under Explanation to sub-s.(1) of S. 86 an order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under Cl. (a) of S. 98. Since election petition is tried by a Judge of the High Court i.e. an established Court, normally ordinary incidents of the procedure of that Court are to apply including any general right of appeal from its decision, but where a statute creates new rights and liabilities and prescribes special remedy for enforcement of such right, then by express words or by necessary implication right of appeal which is ordinarily available may be excluded. The Supreme Court in N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., AIR 1952 SC 64 [LQ/SC/1952/2] held that Representation of the People Act is a self-contained enactment so far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with election, we have only to look at the Act and the rules made thereunder. It should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage. The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. Therefore, it was held that in view of the provisions of Art. 329(b) of the Constitution a writ of certiorari or mandamus under Art. 226 was barred in respect of electoral matters as the Representation of the People Act read with Part XV of the Constitution was a Code in itself and created rights and provides for the enforcement thereof by a special Tribunal. The Supreme Court in Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520 [LQ/SC/1954/99] held that the right of seeking election and sitting in Parliament or in a State Legislature is a creature of the Constitution and when the Constitution provides a special remedy for enforcing that right, no other remedy by ordinary action in a Court of law is available to a person in regard to election disputes. It may be stated that earlier under the Act election petition lay before election tribunal consisting of three members, then it was substituted by trial by a District Judge and now it is by a single Judge of the High Court.

(20.) The Supreme Court in K. Venkateswara Rao v. Bekkam Narsimha Reddi, AIR 1969 SC 872 [LQ/SC/1968/208] held that an analysis of the provisions of the Act is sufficient to show that the trial of an election petition is not the same thing as the trial of a suit, even though the procedure applicable to the trial of election petition is the same as that of the trial of a suit. While dealing with the question of applicability of the provisions of the Limitation Act to an election petition, it was observed that the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained Code which does not admit of the introduction of the principles or the provisions of law contained in the Limitation Act. In P. Narayan v. A. K. Srivastava, AIR 1975 SC 968 [LQ/SC/1975/66] it was held that an election petition and the affidavit filed in support thereof must be in accordance with the provisions of the Act and the rules made thereunder. But if the provisions of the High Court rules were infringed, the election petition could not be dismissed. It was observed that according to S. 86 of the Act, only petitions which do not comply with the provisions of S. 81 or 82 or 117 were liable to be dismissed and the failure to comply with the rules of the High Court in respect of affidavits could not be held to be fatal to the election petition. It may also be noted that S. 116-A which provides for appeal to the Supreme Court begins with the non obstante clause notwithstanding anything contained in any other law for the time being in force, the use of this non obstante clause goes to show that the enactment following it will have its full effect and the provisions of any other law to the contrary would not be operative in the same field which is covered by S. 116-A of the Act. It does not appeal to me that S. 116A merely excludes Letters Patent Appeals in respect of orders made by the High Court under S. 98 or 99 of the Act and in case of other orders amounting to judgment passed during trial of the election petition, the non obstante clause has no application. According to me, all appeals against the orders amounting to judgment, under Cl. 10 of the Letters Patent are barred by necessary implication under the Act. There is a time-bound programme provided in the Act for dealing with election petitions. It has to be disposed of as expeditiously as possible within a period of 6 months and the trial once began should go on day to day and for any adjournment reasons has to be recorded. This intention of the Legislature will be frustrated if appeals are entertained against interlocutory orders amounting to judgment under Cl. 10 of the Letters Patent. A clear view is emerging that as far as possible only one appeal should be provided in order to meet the mounting arrears of cases in various Courts. So far as our State is concerned, Letters Patent Appeals were abolished by M.P. Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam, 1981, but it has been held to be invalid by a Full Bench of this Court in Balkrishna Dass v. Perfect Pottery Co. Ltd., AIR 1985 Madh Pra 42 as the Full Bench was of the view that the enactment was beyond the competence of the State Legislature. Even under the amended S. 100, C.P.C., now Letters Patent Appeals against judgments in second appeals have been abolished.

(21.) I am, therefore, of the view that no appeal should be entertained under Cl. 10 of the Letters Patent against an interlocutory order passed in an election petition under the Act which amounts to judgment within the meaning of Cl. 10 of the Letters Patent,

(22.) Per B. M. Lal, J. (Minority view) : - I have had advantage of reading the opinion prepared by My Lord Acting Chief Justice, Shri Justice, J. S. Verma and senior learned Brother Shri Justice, C. P. Sen. However, I find myself unable to subscribe with the view expressed by my Lord the Acting Chief Justice and the finding reached by him. However, agreeing with the conclusion reached by my senior learned Brother C. P. Sen, J. I would like to express my own views.

(23.) In this context at the very outset I must give brief history as to how the Full Bench of three Judges and later on larger Bench of five Judges came to be constituted.

(24.) In Election Petition No. 43 of 1985 (Laxminarayan Nayak v. Ramratan Chaturvedi and others), learned Brother Gulab Gupta, J. has passed an order on 28-8-85 deciding certain preliminary issues against which the petitioner has filed the instant Letters Patent Appeal under Cl. 10 of the Letters Patent and the same came up for hearing before the Division Bench of this Court consisting of Honble Justice, J. S. Verma (as he then was) and Justice K. K. Adhikari. This Division Bench by its order dated 25-9-1985 referred the matter to the Chief Justice, Shri G. L. Oza (as he then was) for referring the matter to the Full Bench in view of the earlier decision of this Court in Amolak Chand v. Bhagwandas, LP.A.No. 12 of 1973, decided on 23rd Nov. 1973, upon which the Full Bench consisting of Honble J. S. Verma (as he then was) C. P. Sen, J. and myself was constituted.

(25.) This Letters Patent Appeal came for final hearing on 28-10-1975. During the course of arguments before the Full Bench, I raised the basic question, whether Letters Patent, in view of the fact that after coming into force of the Constitution of India and introducing several changes in law and notwithstanding the Full Bench decision (to which I was one of the Members of the Bench and delivered my separate judgment) in Balkishan Das v. Perfect Pottery Co. Ltd. AIR 1985 Madh Pra 42 wherein only the. limited question of competency of State Legislature which passed the Madhya Pradesh Uchcha Nyayalaya (Letters Patent Appeals Samapti) Adhiniyam (29 of 1981) was under consideration in view of the entry No. 78 in List I of Schedule 7 of the Constitution, and the majority view was that the State Legislature had no competency to legislate the said Samapti Adhiniyam of 1981, still survives.

(26.) The aforesaid question is really a matter of thought provoking on the analogy that even after 35 years of our independence and our Country becoming Sovereign Socialist Secular Democratic Republic, still our Courts in India are governed by adopting Letters Patent issued by the King Emperor of England under his Royal Prerogative power. It is nothing but sheer indication of continuation of domination of sovereign powers of King Emperor of England, over us as if the Royal Prerogative powers of King still prevail upon our Constitution even after our Country becoming a sovereign republic where there is no root of sovereign powers of King and when no order, notification or Charter issued by the King Emperor of England under his monarchial or prerogative powers, have been adopted in our Constitution.

(27.) Two sovereign powers i.e., one of Our Sovereign Socialist Secular Democratic Republic of India, issued under the Constitution and another of monarch i.e. the King Emperor of England, cannot run together and, therefore, laws enacted by our Parliament prevail upon the laws so passed or issued by the King Emperor under his prerogative powers, after coming into force of our Constitution. Therefore, the very continuance of the laws so made by the King of England appears to be inconsistent with the legal philosophy of our constitutional policy.

(28.) With the aforesaid background if we trace the history as to how the judicial system existed during the time of Mugals, then after the formation of East India Company and during the regime of King or Queen of England. This, no doubt, is very interesting matter, but without going in detail, it will suffice to say that at first the Court of Judicial Commissioner of Central Provinces and Berar was established by an Act of Governor General of India in Council, being Act No. XIII of 1865. However, in British India by various charters and lastly by British Act 1861, Her Majesty Queen Victoria was authorised to establish High Courts by issuing Letters Patent (which meant the mandate of the King or Queen of England). By issuing the Letters Patent in 1862 and 1865, certain High Courts were constituted in India. However, first Government of India Act was enacted in the year 1800, but from time to time the same has been repealed and the last but one was that of 1915 and the last was Government of India Act, 1935, which is relevant for us. The Government of India Act, 1935, by Chapter II, S. 219, gave power to the King Emperor of England to establish High Courts in British India by issuing Letters Patent. Section 223 related to jurisdiction and practice and procedure of the High Courts and by S. 229 the power to His/Her Majesty to constitute or reconstitute High Courts by Letters Patent, was given.

(29.) On 2-1-1936, King Emperor, George V Edward of England, by issuing Letters Patent under his Royal prerogative powers, established the High Court of Judicature of Nagpur and in this way, the Nagpur High Court came into existence.

(30.) Now, we come to the post-independence era, i.e. after 15-8-1947. By Indian Independence Act, 1947 (10 and 11 Geo VI, c. 30), enacted by the British Parliament, vide S. 18(3) the existing laws then in force were saved and therefore it is said that the Letters Patent being the law, has been saved. Then again, by coming into force of Indian (Provisional Constitution) Order, 1947, again the Letters Patent.has been saved. but consequent to the coming into force of the Indian Provisional Constitution (Amendment) Order, 1948 (published in Part I at page 142 of C.P. and Berar Gazette dated 19-3-48) by Clause 2(a), the words "His Majesty" and "Letters Patent" appearing in S. 219 of the Government of India Act, 1935 were substituted by the words "Governor General" and "Orders". As such S. 229 of the Government of India Act, 1935 was also amended and the powers of His Majesty to constitute or to reconstitute High Courts by Letters Patent, were deleted and it was the Governor General of India who was only authorised to constitute and establish High Court by his "orders" and his powers were not regulated by the "Letters Patent" which was the exclusive prerogative of King Emperor of England. Therefore, after coming into force of the Indian Provisional Constitution (Amendment) Order, 1948, the entire legal position in respect of Letters Patent, changed.

(31.) However, before coming into force of our Constitution, i.e. up to 25-1-1950, the Governor General of India, by issuing certain orders under S. 229 of the Government of India Act, 1935 regulated the establishment and jurisdiction of the High Courts and this power was never derived from the Letters Patent. Therefore, the Letters Patent deemed to have been omitted. Whatever orders were passed under S. 229 of the Government of India Act, 1935, were the orders of the Governor General in Council, but were not of the King Emperor under the Instrument of Letters Patent.

(32.) While enacting relevant provisions of our Constitution relating to the establishment of the High Court, there is no whisper about the provisions of Letters Patent and that is so because it stood repealed much earlier as the orders passed before 25-1-1950 were never issued by the Governor General of India by deriving his powers from the Letters Patent, but were issued under the amended provisions of S. 229 of the Government of India Act, 1935.

(33.) After coming into force of Constitution of India, i.e. with effect from 26th January, 1950, the Indian Independence Act, 1947 and Government of India Act, 1935 stand repealed by Art. 395 of the Constitution of India.

(34.) In the light of these two important aforesaid repealed Acts, we have to see, how far the law as to establishment and administration of the existing High Courts in independent India, has been saved. Article 225 of the Constitution merely preserves the power of the constitution of the High Courts, as they were before the Constitution. The words used "subject to the provision of this Constitution", only relate to the relevant provisions of our Constitution, relating to the establishment and administration of High Courts, i.e. provisions of Arts.214 to 231, embodied in Chapter V of the Constitution and, therefore, the words used "subject to the provisions of this Constitution", only imply abridgement of its jurisdiction.

(35.) Similarly, Art.372 of the Constitution, which is a saving clause, envisages continuance in force of existing laws and their adoptation. Clause (1) of Art.372 reads thus : "(1) Notwithstanding the repeal by this Constitution of the enactments referred to in Art.395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." Therefore, it is clear that the Government of India Act, 1935 and Indian Independence Act, 1947, though repealed, yet the laws made thereunder, have still been saved and still continue to be in force until altered, repealed or amended. But the Letters Patent was issued by the King Emperor of England exercising his Royal Prerogatives, it was not enacted by any Parliament, not even by British Parliament, and, therefore. Letters Patent was not an enactment, but a law within the definition of Art.366(10) of the Constitution. The words used under Art.372 (i.e. "until altered or repealed or amended by a competent Legislature or other competent authority") have got a significant meaning. A perusal of the Letters Patent shows that it contained, in all, 38 clauses; but after coming into force of the Constitution of India, most of the clauses thereof, stand repealed. viz. - Clause-2 of the Letters Patent stands repealed by Art. 216 Clause-3 " " " " " " by Art. 219 Clause-4 " " " " " " by the High Courts Seal Act, 1950 Clause-5 " " " " " " by S. 7(2) of the Indian Independence Act, 1947 Clause-6 " " " " " " by Art. 229 Clauses-7 and 8 " " " " " " by Advocates Act, 1961 Clause-9 " " " " " " by Art. 228 of the Constitution Thus, we find that almost all the relevant clauses of Letters Patent governing and regulating the function of the High Courts stand repealed and the rest of the clauses stand "altered/repealed by necessary implication, as there is a presumption of repeal by necessary implication. The maxim Expressio Unius Est Exclusio Alterius, is based on the theory that the Legislature while enacting a law, has a complete knowledge of the existing law on the same subject-matter. Therefore, while repealing most of the clauses of Letters Patent, the Constituent Assembly of India while engrafting Articles in Chapter V of the Constitution, had the knowledge of Letters Patent and hence as a general rule of interpretation, the mention of one thing implies exclusion of another and, therefore, in such cases, the doctrine of "qualified repeal" comes in operation and despite saving of certain provisions, if there is inconsistency between the remaining several provisions, then despite saving certain provision, repeal by implication shall be full and complete. Therefore, by necessary implication, it will be deemed that the remaining clauses of Letters Patent stand altered within the meaning of Article 372 of the Constitution.

(36.) Survival of the Letters Patent after coming into force of the Constitution has been considered by various High Courts, including ours and it has been held that the Letters Patent is saved by Arts. 225 and 372 of the Constitution.

(37.) But now, the legal position after the pronouncement of their Lordships of the Supreme Court in S. P. Gupta, V. M. Tarkunde v. President of India, AIR 1982 SC 149 [LQ/SC/1981/463] (relevant discussion at pages 986 to 992), has been entirely changed, wherein it has been observed that the High Courts in India came to be constituted or reconstituted after the commencement of the Constitution, i.e. in accordance with Art. 214 read with Art. 366(14) of the Constitution of India. Thus, the wording reconstituted in Art. 214 read with S. 366(14) as used relating to High Court includes relevant provisions of the States Reorganisation Act, 1956. Our High Court (High Court of Madhya Pradesh at Jabalpur) will come within the category of reconstituted High Court.

(38.) Further, in the year 1960 wisdom prevailed upon our Parliament to look into and consider that the laws enacted by the British Parliament, of which some of them became obsolete, thought it proper to repeal the laws enacted by the British Parliament and for this purpose alone. The British Statutes (Application to India) Repeal Act, 1960 (Act LVII of 1960) was passed repealing the British Statutes, in their application to India, as specified in the Schedule. The pith and substance to enact this Act also throws light on the subject i.e. Letters Patent issued by the King of England under his prerogative powers. Since the Letters Patent was not passed by any Parliament, it was not included in the Schedule repealing the British Statutes in their application to India, but the intention of passing the Act No. LVII of 1960 clearly envisages the repeal of Letters Patent as well and further by necessary implication, it stands repealed.

(39.) Therefore, despite the decision of Balkishandas case (AIR 1985 Madh Pra 42) (FB) (supra), (pending before the Supreme Court) it is also covered by the decision in S. P. Guptas case, (AIR 1982 SC 149 [LQ/SC/1981/463] ) (supra) wherein vide para 990, it has been held that constitution and organisation of the High Court is governed and vested with the Parliament alone by Entry No. 78, List I of Seventh Schedule of the Constitution. I, therefore, raised the point that on the basis of the aforesaid reasonings, despite Balkishandass case (supra) and numerous changes made in the relevant existing laws, Letters Patent does not survive.

(40.) On 28-10-1985, Shri Y. S. Dharmadhikari, learned counsel appearing for the appellant raised an objection that the Full Bench (consisting of three Judges) was not constituted to examine the question which I raised, therefore, My Lord, the Acting Chief Justice, Shri J. S. Verma, after examining the question relating to the existence/survival of Letters Patent, constituted a Larger Bench of Five Judges and in this way Justice S. S. Sharma and Justice B. C. Varma were included in the Larger Bench.

(41.) On 30-10-1985 when the matter came up for hearing, it was unanimously decided that the second question relating to the survival of the Letters Patent be dropped because of the pendency of Balkishandass case (AIR 1985 Madh Pra 42) (FB) (supra), before the Supreme Court and the only question remained for our decision was relating to the applicability of Cl. 10 of Letters Patent to the order (judgment within the meaning of Letters Patent Appeal) arising out of Election Petition cases under the Representation of the People Act, 1951, for which Full Bench of Three Judges was initially constituted. In this way again we reverted and relegated to our original position of the Bench of Three Judges only, as the Larger Bench of Five Judges was constituted for the sole purpose of determining the question of survival of the Letters Patent despite the decision of this Court in Balkishandass case (supra).

(42.) Hence, without expressing any opinion on second question relating to the survival of the Letters Patent, I shall now confine and proceed to answer the question relating to the application of Cl. 10 of the Letters Patent to the orders (judgments within the meaning of Letters Patent Appeal) arising out of election petition cases.

(43.) Although the application of Cl. 10 of Letters Patent has been considered in relation to the orders arising out of Election Petition cases, in Chhotalal Jivabhai v. Vadilal Mehta decided on 29-7-1967 : (1971) 12 Guj LR 850 and Kadiravan v. Thirumali Kuma decided on 17-2-1969 : ILR (1970) 2 Mad 183 and also in Ramdhan v. Bhanwarlal decided on 20-5-1983. In the case of Chhotalal Jivabhai (supra), the Bench expressed opinion that two views are possible, one is that appeal under Letters Patent does lie against the orders arising out of election petition cases and another is that it does not lie. However, the former view, was adopted. Although, in Gujarat and Madras High Courts, all the relevant provisions of the Representation of the People Act, 1951 (hereinafter referred to as the Act), have been taken into consideration, yet thereafter, it has been held that appeal lies under Letters Patent against orders arising out of the orders passed in election petition. However, case of Ramdhan (supra) of Rajasthan High Court, takes a contrary view that no appeal lies under the Letters Patent.

(44.) In my opinion, applicability of Cl. 10 of the Letters Patent is to be considered in the light of the objects of the Representation of the People Act, 1951 which implies that the Act is a self-contained enactment so far as, elections to Legislatures are concerned, which means that whenever one has to ascertain the true position with regard to any matter connected with elections to the Legislatures, he has to look into the Act and the Rules made thereunder and at the same time the pith and substance of the Amending Act No. 47 of 1966 which has amended the relevant provisions of the Act, viz. Ss. 80A, 86, 98, 99 and 116A, has also to be taken into consideration.

(45.) Section 116A of the Act runs as under:- "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 S. 98 or S. 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 S. 98 or S. 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." Section 116A of the Act starts with non obstante clause and therefore, the words used "anything contained in any other law" include Letters Patent as well and therefore, no resort could be made for appeal under Cl. 10 of the Letters Patent. In this respect it has to be seen that the law as laid down is to be exercised in the same manner as provided in the statute. In Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 [LQ/SC/1975/97] . Their Lordships of the Supreme Court have held that- "Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. This rule squarely applies where the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other." The same view has been again reiterated by their Lordships of the Supreme Court in A. Madan Mohan v. Kalavakunta Chandra-sekhara, AIR 1984 SC 871 [LQ/SC/1984/38] holding that- "It is well-settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act........." Therefore, it is clear that the non obstante clauses as under S. 116A of the Act, be given effective meaning for the purposes of appeal so that this mandatory provision may not become otiose.

(46.) Further, Art. 329(2) of the Constitution is very emphatic on the subject. It reads thus : "329. Bar to interference by Courts in electoral matters. - Notwithstanding anything in this Constitution. (a) xxx xxx xxx (b) no election to either House of Parliament or to the House or either House of the Legislatures of a State shall be called in question except by an election presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature." In exercise of its powers under Art. 329(b) of the Constitution, the Parliament has enacted the Representation of the People Act, 1951 and therefore, the procedure provided by the Act has the binding force of a constitutional prescribed procedure and hence in no manner whatsoever, it could be by-passed and therefore, according to Art. 329(b) of the Constitution, an election dispute can only be resolved by an election petition under S. 80A of the Act and appeal under S. 116A of the Act before the Supreme Court alone. In Smt. Indira Nehru Gandhi v. Rajnarain, AIR 1975 SC 2299 [LQ/SC/1975/439] . Their Lordships of the Supreme Court have held that the Representation of the People Act provides a complete procedure which could not be circumvented. Therefore, the non obstante clause of S. 116A of the Act, makes Cl. 10 of the Letters Patent, a complete nugatory.

(47.) In this context it is necessary to point out that it is a settled legal position that Art. 19 of the Constitution does not extend any fundamental right to exercise the right of franchise and to contest any election, but such a right is purely a statutory right governed by a particular statute creating the right. As such the Act being a special Act, providing special right and giving original jurisdiction to the High Courts under S. 80A of the Act, Cl. 10 of the Letters Patent which is a general provision, could not be resorted to in the case of appeal arising out of election petitions.

(48.) In Union of India v. Mohindra Supply Co., AIR 1962 SC 256 [LQ/SC/1961/304] . Their Lordships of the Supreme Court dealing with the scope of Cl. 15 of the Letters Patent of Punjab High Court, which is pari materia to Cl. 10 of the Letters Patent of our High Court decided that when an Act is a complete Code in itself providing forum of appeal etc., then in that circumstances, Cl. 15 of Letters Patent cannot be invoked. Therefore, in my opinion, this preposition of law fully applies in the case of the Representation of the People Act, as well.

(49.) Further, the Amending Act No. 47 of 1966 introduced radical changes in the Representation of the People Act, 1951 by incorporating various new provisions, but for deciding the issue in hand, only a few provisions of the Act are necessary to be referred to i.e. S. 79(a) which defines High Court and S. 80A which deals with the trial of the election petitions. While interpreting the provisions of Art. 235 of the Constitution, in various cases Their Lordships of the Supreme Court have held that High Court" means "all the Judges of the High Court". Therefore, applying the definition of High Court and reading sub-s. (2) of S. 80A of the Act, it is abundantly clear that election petition also may be tried not by one Judge alone but also could be tried by more than one Judges and in that situation, question of application of Cl. 10 of the Letters Patent is automatically wiped out. The words used in S. 80A of the Act also neutralises the application of Cl. 10 of the Letters Patent.

(50.) Similarly, by introducing sub-ss. (6) and (7) to S. 86 of the Act, the Legislature have shown their intention that the erection petition be disposed of as early as possible say, within six months and if Cl. 10 of the Letters Patent is made applicable then sub-s. (6) of S. 86 of the Act, becomes redundant. In my opinion, such was not the intention of the Legislature while enacting the provisions of S. 86 of the Act. Therefore, the pith and substance of the Amending Act No. 47 of 1966 also completely ruled out the possibility of the applicability of Cl. 10 of the Letters Patent in orders arising out of elections petitions.

(51.) The next question arises for consideration is whether appeal under S. 116A of the Act lies to the Supreme Court, against "every orders" and whether this expression every order includes interlocutory orders as well.

(52.) Section 116A of the Act specifically lays down that appeal lies to the Supreme Court against order passed under S. 98 or S. 99 of the Act. But, if we look to the provision of S. 86(1) and its explanation clause, then, even on a preliminary stage if an election petition is dismissed, that would be construed to be an order under S. 98(a) of the Act. It means that appeal lies against an order even if it is passed either at a preliminary stage or at final stage. S. 98 of the Act says "At the conclusion of the trial of an election petition the High Court shall make an order" dismissing the election petition under sub-s, (a) of S. 98. No doubt, election petition and every interlocutory application in an election case can be construed to be a petition; but to harmonise the words every order with the provisions of S. 86(1) of the Act and its explanation clause, and S. 98(1) and its other clauses, it is necessary to deal with this point in little more detail.

(53.) The words used in S. 98(a) of the Act are, "dismissing the election petition." The phraseology of the words which contains the word "petition", has to be construed in the light of its true logical and dictionary meaning particularly as to how this word is being used in common parlance, as well as in judicial sphere. According to the dictionary meaning the word petition has got the same meaning as application. It is also well-known that the two words i.e. petition and application are used interchangeably and the party ranged on opposite side is variously called opponent counter-petitioner, non-applicant or respondent.

(54.) It may also be seen that under S. 26 of the Hindu Marriage Act, which provides for custody of children, the language employed is "upon application or petition for the purpose". It would indicate that an interlocutory application will also be a petition. Therefore, in this context, the person who files the election petition is known as petitioner and the other party is known as respondent as this nomenclature has been used in election matters and even if the respondent files any interlocutory application in the election petition, it may be termed as petition and if that application/petition is dismissed, the same may be termed as dismissal of the election petition and if allowed, resulting in attracting other clauses of S. 98 relating to the valuable rights of the parties, will also give cause of action to the aggrieved party to prefer appeal under S. 116A of the Act which envisages "appeal against every order." The words "every order" also indicate any order passed on interlocutory application. By this interpretation only, we could harmonise the words and language used in S. 116A and S. 98(a) of the Act, i.e. every order and dismissal of election petition.

(55.) Therefore, I am of the opinion that if any application is presented either by the petitioner or by the respondent, during the course of election petition, that may be construed as petition in the light of the aforesaid discussion and if that application/petition is dismissed that will be construed to be a dismissal order under S. 98(a) of the Act, giving cause to the aggrieved party to file appeal by invoking the provisions of S. 116A of the Act. By this interpretation only the provisions of S. 98(a) of the Act can be correlated with the words every order used in S. 116A of the Act.

(56.) Therefore, against an interlocutory order which decides the matters of movement or affect vital or valuable rights of the parties and works serious injustice to the party concerned and attains the finality to the order, attracting sub-ss. (a), (b) and (c) of S. 98 of the Act, appeal under S. 116A of the Act, in wider sense would be maintainable, even against interlocutory orders, before the Supreme Court.

(57.) With due respects to the views taken by Gujarat and Madras High Courts, respectively, in the case of Chotalal Jivabhai, (1971-12 Guj LR 850) (supra) and Kadiravan (ILR (1970) 2 Mad 183) (supra), if accepted, I fear, would not only lead to a great anomaly but would run contrary to the provisions of Art. 329(b) of the Constitution and S. 116A of the Act; inasmuch as if Cl. 10 of the Letters Patent is made applicable in election petitions despite the statutory remedy provided in the Act itself, then why not Art. 226 of the Constitution be also resorted to in the matter of election petitions against orders arising out of an election petition or in any matter relating thereto with elections

(58.) In Mohinder Singh Gill v. The Chief Election Commissioner, (AIR 1978 SC 851 [LQ/SC/1977/331] ) it has been held : "..........Article 329(b) rules out the maintainability of the writ application." Further, it has been held - "..........The writ application is, therefore, barred under Art. 329(b) of the Constitution..........."

(59.) Therefore, to me, it appears that the view taken by the Gujarat High Court and Madras High Court, has not become the view of the Honble Supreme Court so far in view of the law laid down in Mohinder Singhs case (supra) and Smt. Indira Nehru Gandhis case (AIR 1975 SC 2299 [LQ/SC/1975/439] ) (supra).

(60.) Hence, from the discussion aforesaid, I am of the opinion that no resort could be made under Cl. 10 of the Letters Patent against an order arising out of election petition in view of Art. 329(b) of the Constitution and the non obstante clause of S. 116A of the Act.

(61.) Before parting with the case, I would like to mention by making the position clear that as stated aforesaid, since the second question relating to the survival of the Letters Patent was unanimously dropped, for which the Larger Bench of Five Judges was constituted and the sole purpose of its constitution came to an end, we are relegated to our original position of the Full Bench of Three Judges only. Initially, Full Bench of Three Judges was constituted to answer the question relating to the applicability of Cl. 10 of the Letters Patent in the orders arising out of election petitions. Therefore, in this situation, the majority view expressed by the Three Judges of the Full Bench in this regard will only prevail. ORDER

(62.) According to the majority opinion, it is held that an appeal lies under Cl. 10 of the Letters Patent against an interlocutory order passed by single Judge in an election petition which amounts to a judgment within the meaning of that expression used in Cl. 10. On this conclusion reached in the majority opinion, it is directed that the appeal be now listed for hearing on merits before a Division Bench for deciding the further questions arising therein. Order accordingly.