Holding

A Letters Patent appeal under clause 15 does not lie against interlocutory orders passed by the Single Judge trying an election petition; only the High Court Judge and the Supreme Court have jurisdiction over such orders.

Summary

The case concerned an election petition filed under the Representation of the People Act, 1951, where a Single Judge of the Gujarat High Court declined to order production of election records. The petitioner appealed the interlocutory order to a Division Bench of the same High Court under clause 15 of the Letters Patent. The Division Bench allowed the appeal, but the elected candidate challenged its maintainability, arguing that only the provisions of the Act and the Constitution permit appeal to the Supreme Court, not a Letters Patent appeal. The Supreme Court held that clause 15 of the Letters Patent does not apply to interlocutory orders in election petitions, as the Act creates a self‑contained code where only the Single Judge and the Supreme Court have jurisdiction over such matters. Consequently, the Division Bench lacked authority to hear the appeal, and the Letters Patent appeal was dismissed. The Supreme Court allowed the special leave appeal and set aside the Division Bench judgment.

Issues considered

Whether a Letters Patent appeal under clause 15 of the Gujarat High Court lies to a Division Bench against an interlocutory order of a Single Judge trying an election petition filed under the Representation of the People Act, 1951.

Legislation cited

Representation of the People Act, 1951s. 105, s. 116-A, s. 80-A, s. 81, s. 85, s. 86, s. 98, s. 99

Subjects

election petitionRepresentation of the People ActLetters Patent appealinterlocutory orderHigh Court jurisdictionSupreme Court appellate jurisdictionArticle 329(b)Section 116-ADivision Bench

Judgment

)' UPADHYAYA HARGOVIND DEVSHANKER A
.,, v.
' DHIRENDRASINH VIRBHADRASINHJI SOLANKI & OTHERS

FEBRUARY 17, 1988

[E.S. VENKATARAMIAH AND K.N. SINGH, JJ.] B
t
Whether a Letters Patent Appeal lies to a Division Bench of
y
- Gujarat High Court from an inter-locutory Order of a Single Judge of
that High Court in the course of trial of an election petition filed under
the Representation of the People Act, 1951-Determination of question.

'~ The question ~hlcharose for determination in this case was
c
1 whether a Letters Patent Appeal would lie to a Division Bench of the
High Court of Gujarat from an interlocutory order of a Single Judge of
that High Court in the course of the trial of an election petition filed
under the Representation of the People Act, 1951.
D
• The appellant and respondents Nos. 1 to 6 were candidates at an
election held to fill a seat in the Legislative Assembly of the Gujarat
State. The appellant was declared elected. Thereupon, the lst respon-
dent filed an election petition in the High Court, challenging the validity
y of the election of the appellant on a number of allegations, and in order

- to establish his case, he filed an application before the Single Judge who
was trying the election petition, to direct the Returning Officer to pro-
duce all the records.of the election, mentioned in the application, and
prayed for permission to inspect the same. The appellant opposed the
prayers made by the lst respondent.
E

The Single Judge declined to grant the application made by the Ist F

~
respondent .. Against the order of the Single Judge, the Ist respondent
preferred an appeal under clause 15 of the Letters Patent of the Gujarat
High Court. The Division Bench of the High Court allowed the appeal
to the extent indicated in its judgment, overruling the contention of the
fl , ,, appellant that the appeal was not maintainable as there was no pro-
vision in the Act, permitting an appeal to the Division Bench of the High G
Court against an interlocutory order of a Single Judge hearing an elec-
~ tion petition filed under the Act. Aggrieved by the decision of the
Division Bench, the appellant moved this Court for relief by special
leave.

Allowing the appeal, setting aside the judgment of the Division H

1043
1044 SUPREME COURT REPORTS [1988] 2 S.C.R.

A Bench of the High Court and dismissing the Letters Patent Appeal while
expressing no opinion on the merits of the case, the Court,

HELD: The only point urged in this appeal by the appellent was
that the appeal filed under clause 15 of the Letters Patent of the High
Court against the interlocutory order passed by the Single Judge was
B not maintainable and, therefore, the judgment of the Division Bench
was liable to be set aside. [1048C·Dl

Under the provisions of the Act as amended and the provisions of
the Constitution of India, no Court exercising power under any ordi·
nary law otlter than the Judge of a High Court who had been assigned
-
the work of trying an election petition under ~ub-section (2) of section~
c 80 A of the Act and the Supreme Court which was 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, could decide any question
!!
arising out of an election petition. The power of the Supreme Court
under the provisions of the Constitution was, however, unaffected by
D any of the provisions of the Act. It meant that when an election petition
was pending in the High Court, only the judge who was asked to try the
election petition could deal with the questions arising in it and no other
·1
judge or judges of the High Court could deal with them. When an order
was passed under section 98 or section 99 of the Act by a judge of the
High Court in an election petition, it was subject to the appellate juris-
E diction of the Supreme Court under section 116-A of the Act, Article
l36 of the Constitution being excluded in view of the express provisions
of section 116-A of the Act, and being resorted to by any party
aggrieved by any order passed by the judge trying an election petition
not falling under section 98 or section 99 of the Act. It followed that the
-
Division Bench of the High Court, which was entitled to hear an appeal
F against any order of a Single Judge under clause 15 of the Letters
Patent of the High Court, which was an ordinary law, could not hear an _.,.,
appeal against any interlocutory order passed in the course of the trial l
of an election petition by the Judge trying the election petition, since the
Division Bench was not specified in the Act as an appellate authority
which could deal with questions arising out of an election petition filed
G under the Act. [1053G-H; 1054A-D]

Under clause 15 of the Letters Patent, an appeal no doubt lay
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 was preliminary or rmal or that it was one passed at an
H interlocutory stage, provided it satisfied certain conditions, but the said
U.H. DEVSHANKER v. D.V. SOLANKI 1045

y provision could not be extended to an election petition filed under the A
Act. Conferment of the power to try an election petition under the Act
did not amount to enlargement of the existing jurisdiction of the High
Court. The jurisdiction exercisable by the Single Judge under the Act
was a special jurisdiction conferred on the High Court by virtue of
Article 329(b) of the Constitution. In view of the limited nature of the
appeal expressly provided in section 116-A of the Act, it should be held B
i.. that any other right of appeal (excluding that under the Constitution)
T was taken away by necessary implication. Therefore, it was difficult to

--
subscribe to the view that when once the jurisdiction to try an election
petition was conferred on the High Court, all other pawers incidental to
·1, the ordinary original jurisdiction exercised by a single Judge of a High
Court would become applicable to an election petition under the Act. If C
~ the Parliament had intended that the Division Bench of the High Court
"""!""'"'" ·should exercise its appellate jurisdiction under clause 15 of the Letters
1
Patent of the High Court, probably, it would not have enacted sub-
section (7) of section 86 of the Act, having regard to the well-known
tendency of one or the other party to an election petition preferring
appeals against the interlocutory orders to the Division Bench. If such D
appeals against the interlocutory orders to the High Court, were
permitted, perhaps, no election dispute would be finally settled till the
next election became due. 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)
Y constituted a complete code and no Judge or Judges other than the E

- Single Judge of the High Court, who was asked to try an election peti-
tion, and the Supreme Court, exercising the 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, could have any jurisdiction to deal with any matter
·-
arising out of an election petition filed under the Act. The Court disag- F
. reed with the view expressed on this question by the Gujarat High
Y Court in Dr. Chotalal Jivabhai Patel v. Vadilal Lallubhai Mehta &
Ors., (12 Gujarat Law Reporter 850), and overruled that decision of
the High Court. The Court also overruled the decision of the Madras
High Court in Kadiravan alias Shamsudeen v. B. Thirumalaikumar,
ILR (1970) 2 Mad. 183 and the decision of the Madhya Pradesh High G
Court in Laxmi Narayan Nayak v. Ramratan Chaturvedi & Ors, AIR
}-- 1986 Madhya Pradesh 165 which had taken the same view as in Dr.
Chotalal Jivabhai Patel's Case (supra). The Court agreed with the view
expressed by the Allahabad High Court in Siaram v. Nathuram & Ors., .
[1968) ALL. L.J. 576 and by the Rajasthan High Court in Ramdhar v.
Shanwar Lal, AIR 1985 Rajasthan 185 which held that by necessary H
1046 SUPREME COURT REPORTS [1988] 2 S.C.R.

A implication an appeal to the High Court from an interlocutory order of y
the Single Judge of the High Court in the course of trial of an election peti-
tion filed under the Act, was excluded. [1054G-H; 1055A-H; 1056A-H] i ,.

The Division Bench of the High Court of Gujarat had no jurisdic-
tion to hear the appeal filed by the Ist respondent against the inter-
B locutory order passed by the Single Judge who was trying the election
petition. Judgment of the Division Bench of the High Court set aside, '{
Letters Patent Appeal dismissed. [1057B I

Dr. Chotalal Jivabhai Patel v. Vadilal Lallubhai Mehta & Ors., _..
12 Gujarat Law Reporter 850; Kadiravan alias Shamsudeen v. B. f!
Thirumalai Kumar, ILR (1970) 2 Mad. 183; and Laxmi Narayan Nayak. ~ '
c v. Ramratan Chaturvedi and Ors., A.I.R. 1986 Madhya Pradesh 165, .
overruled. · ·.
,.
Siaram v. Nathuram and Ors., [1968] All. L.J. 576 and Ramdhan
v. Bhanwarlal, A.I.R. 1985 Rajasthan 185 approved.
D
N.P. Ponnuswami v. Returning Officer, Namekkal Constitutency ,
and others, [1952] S.C.R. 218; Shah Babula/ Khimji v. Jayaban D.
Kania & Anr., [1982] 1 S.C.R. 187 and National Telephone Company
Ltd. v. Post Master General, [1913] A.C. 546, referred to.

E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 660 'f
of 1988.

From the Judgment and Order dated 20.8.1987 of the Gujarat
High Court in Election Petn. No. 6of1985.
-
F Shanti Bhushan, P.M. ·Raval, M.V. Goswami and Arnbrish
Kumar for the Appellant.

Vithalbhai B. Patel and R.P. Kapoor for the Respondents.

The Judgment of the Court was delivered by
j
G
VENKATARAMIAH, J. The question which arises for consi-
deration in this appeal is whether a Letters Patent appeal lies to a '-f
Division Bench of the High Court of Gujarat from an interlocutory
order passed by a Single Judge of that High Court in the course of the
trial of an election petition filed under the provisions of the Represen- •
H tation of the People Act, 1951 (hereinafter referred to as 'the Act') or
not.
U.H. DEVSHANKER v. D.V. SOLANKI IVENKATARAMIAH, J.] 1047

At the election held on March 5, 1985 to fill a seat in the Legisla- A
tive Assembly of the State of Gujarat from the Lunavada Legislative
Assembly Constituency the appellant and respondent Nos. 1 to 6 were
the candidates. At that election the appellant having secured the
largest number of votes was declared as elected to the Legislative
Assembly. Thereupon the lst respondent filed an election petition in
Election Petition No. 6of1985 on the file of the High Court of Gujarat B
under section 81 of the Act questioning the validity of the election of
the appellant on various grounds. The appellant contested the election
petition. On the basis of the pleadings a number of issues were framed.
In the course of the election petition, the first respondent had made
inter alia the following allegations:

(i) that bogus votes had been cast in favour of the appellant in
c
the names of dead persons;

(ii) that votes had been cast in the names of voters who were
physically far away from the constituency and had not come for
voting on the date of polling; and D

(iii) that votes had been cast in the names of voters who were out
of the country on the day of polling.

In order to establish his case, th Ist respondent applied to the
Y learned Single Judge who was trying the election petition to direct the E
Returning Officer to produce all the records of election and particu-
larly the used ballot papers and counterfoils of used ballot papers, the
unused ballot papers, the marked copies of electoral rolls and the
authorisations of the polling agents of different candidates in respect
of 13 villages and 14 polling booths mentioned in the application. The
Ist respondent prayed for permission to inspect the ballot papers, the F
'"'-./'marked copies of voters' lists and certain other materials referred to
r above. The appellant objected to the grant of the prayers made by the
Ist respondent.

, . After taking into consideration the evidence that had been
adduced before him and hearing the arguments of the learned counsel G
for the parties, the learned Single Judge declined to grant the applica-
tion made by the Ist respondent lly his Order dated July 18/21, 1986.
Aggrieved by the order passed by the learned Single Judge the Ist
respondent preferred an appeal under clause 15 of the Letters Patent
of t!ie High Court of Gujarat in Letters Patent Appeal No. 3 of 1987
which was heard by a Division Bench of the High Court. Before the H
1048 SUPREME COURT REPORTS [1988] 2 S.C.R.

A Division Bench the appellant contended that the appeal was not main-
tainable on the ground that there was no provision in the Act which
permitted an appeal to the Division Bench of the High Court against
an interlocutory oroer of a Judge hearing the election petition filed
under the Act and that clause 15 of the Letters Patent was not appli-
cable to the case. The Division Bench after overruling the objection
B regarding the maintainability of the appeal in view of the decision of
the High Court of Gujarat in Dr. <Jfwta/al Jivabhai Patel v. Vadilal
Lallubhai Mehta & Ors., 12 Gujarat Law Reporter 850 allowed the

c
appeal to the extent indicated in the course of its judgment. Aggrieved
by the decision of the Division Bench, the appellant has filed this
appeal by special leave under Article 136 of the Constitution of India.

The only point urged on behalf of the appellant in the course of ,J,..,
-
this appeal is that the appeal filed under clause 15 of the Letters Patent'~
of the High Court against the interlocutory order passed by the
learned Single Judge was not maintainable and, therefore, the judg-
ment of the Division Bench was liable to be set aside. In order to
D appreciate the submissions made by the learned counsel for the parties
before us, it is necessary to refer to the relevant provisions of the , '--
Constitution, the Act and the Letters Patent. ''

Article 329(b) of the Constitution of India reads thus:

E "329. Bar to interfere by courts in electoral matters-
Notwithstanding anything in this Constitution.

(a)

(b) no election to either House of Parliament or to
F the House or either House of the Legislature of a State
shall be called in question except by an election petition . _,.
pres~nted to such authority and in such manner as ma~ be )
provided for by or under any law made by the appropnate ·
Legislature."
(underlining by us)
G
Article 327 of the Constitution gives power to Parliament to
make provisions with respect to elections to Legislatures. It reads thus: '-1
"327. Power of Parliament to make provision with respect
to elections to Legislatures-Subject to the provisions of
H this Constitution, Parliament may from time to time by law
U.H. DEVSHANKER v. D.Y. SOLANKI IYENKATARAMIAH, J.) 1049

'( make provisiOn with respect to all matters relating to, or in
A
connection with, elections to either House of Parliament or
to the House or either House of the Legislature of a State
including the preparation of electoral rolls, the delimita-
tic.: of constituencies and all other matters necessary for.
securing the due constitution of such House or Houses."
B
~ In exercise of its powers under Article 329(b) read with Article
327 of the Constitution Parliament enacted the Act in the year 1951. In
the Act, provision was made for constituting an authority to decide
~ election disputes as required by clause (b) of Article 329 of the
Constitution of India. The scheme of the Act, as it originally stood,
{insofar as the presentation of the election petitions and their trial was
concerned was as follows: . c
Under section 81 of the Act an election petition calling in ques-
tion any election had to be presented to the Election Commission
by any candiate at such election or any elector in such form and
within such time but not earlier than the dat.e of publication of D
the name or names of the returned candidate or the candidates at
y such election. The election petition so presented to the Election
Commission was liable to be dismissed by the Election Commis-
sion itself under section 85 of the Act if it was not presented in
accordance with the provisions of section 81 of the Act, if the
~ petition did not conform to the provisions of section 83 of the E
Act or if the petitioner had not enclosed with the petition a
Government treasury receipt showing that a deposit of Rs.1,000
had been made by him either in a Government treasury or in the
~ Reserve Bank of India in favour of the Secretary to the Election
Commission as security for the costs of the petition. If the peti-
'· tion was not dismissed under section 85 of the Act, the Election F
Commission was required to appoint an Election Tribunal for the
trial of the petition. Under section 86 of the Act every election
tribunal appointed under this section was .to consist of a
Chairman who was either or had been a Judge of the High Court
. or a person selected by the Election Commission from the list
maintained by it under clause (a) of sub-section (2) of section 86 G
~· of the Act and two other members of whom one was .a person
who had been a District Judge in the State and was in the opinion
of the High Court fit to be appointed as a member of the Election
Tribunal and the other was an advocate of that High Court who .,
had been in practice for a period of not less than 10 years and
who was in the opinion of the High Court fit to be appointed as H
1050 SUPREME COURT REPORTS [1988] 2 S.C.R.

. such member. The Election Tribunal had under section 98 of the ~
A Act the power to dismiss an election petition, to declare the
election of the returned candidate or the returned can "idates as
, void. and to .declare the election of all or any of the r~turned,
candidates to be void and the petitioner or any other candidate
was duly elected or to declare the election to be wholly void. It
B had also the power to pass certain other. orders mentioned ill....l
section 99 of the Act. The powers of the Tribunal, the procedure T
· ·. · ... · to be followed by it and the other details regarding the trial of an
election petition had been set out in Chapter III of Part VI of the
, Act. Section 105 of the Act, as it then stood, declared that every
order of the Tribunal made under the Act was final and conclu-
sive. No appeal was provided against the order of the Tribunal.)
c interlocutory or final. Any person aggrieved by the decision of
the Tribunal could only move either the High Court having
jurisdiction over the matter under Article 226 or the Supreme
Court of India under Article 136 of the Constitution.·

D ( In N.P. Ponnuswami v. Returning Officer, Namakkal Consti-
tuency .and Others, (1952] S.C.R.1218 a Constitution Bench of this J
·Court observed that the right to vote or to stand as a candidate for an 'T
election was not a civil right but was a creature of statute or special law
and must be subject to the limitations imposed by it. It further ob-
served that it was the sole right of the Legislature to examine and I
· E determine all materials retained to the election of its own members~
and if the Legislature took it out of its own hands and vested in a
special tribunal an entirely new and unknown jurisdiction, that special
jurisdiction should be exercised in accordance with the law which ,
created it. After considering the relevant provisions of the Act, th~
Court observed at page 230 thus:

'.'Obviously, the 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 elections, we have only to look at
I
the Actand the rules made thereunder."
G
It proceeded further to observe at Page 231 thus:

"It is well-recognised that where a right or liability is
created by a statut.e which gives a special remedy for en-
forcing it, the remedy provided by that statute only must be
H availed of." .
U.H. DEVSHANKER v. D.V. SOLANKI [VENKATARAMIAH, J.[ 1051

It is thus seen that when the Act was originally enacted the authorit}" A
constituted by law under Article 329(b) of the Constitution of India to
try an election petition was a single-tier authority, i.e., the Election
Tribunal constituted under section 86 of the Act against whose orders,
interlocutory or final, there was no appeal provided by the Act. Apart
from the remedies available under the constitutional provi,,ions against
8
the orders of the Election Tribunal no other court in India had juris-
diction to interfere with the orders of the Election Tribunal either in
appeal or otherwise.

In 1957 Parliament perhaps felt that the scheme of the provisions
relating to settlement of disputes regarding elections was not quite
.,i:atisfactory. Therefore by Act 27 of 1956 the Act was amended by C
-I ll)troducing certain changes with regard to the constitution of the
1 Tribunal and by providing an appeal against the final orders of the
Tribunal under section 98 or section 99 of the Act. Instead of an
Election Tribunal consisting of three persons as it was originally pro-
. vided, under section 86 of the Act which was substituted in the place of D
the original section 86 of the Act, it was provided that if an election
petition was not dismissed under section 85 of the Act by the Election
Commission, the Election Commission shall constitute a Tribunal for
trying the election petition by appointing a District Judge from a list of
persons who were District Judges in the State and were in the opinion
y of the High Court fit to be appointed as members of the Election E
Tribunal. Under this provision the Tribunal thus consisted of a single
member. A new chapter entitled 'Chapter IV-A' consisting of sections
116-A and 116-D was introduced into Part VI of the Act providing for
an appeal from any order of the Election Tribunal made under section
98 or section 99 of the Act to the High Court of the State in which the
Tribunal was situated. The deCision of the High Court on appeal under F
the said Chapter and subject only to such decision the order of the
"·.A'ribunal under section 98 or section 99 of the Act was final and conclu-
. I sive. Thus by the above amendment the authority to decide election
disputes constituted under Article 329(b) of the Constitution of India
became a two-tier authority, the Election Tribunal being the original
' . authority and the High Court being the appellate authority. The deci- G
sion of the High Court was no doubt subject to appeal to this Court
'y under the provisions of the Constitution. Even here there was no
provision for an appeal against the interlocutory orders passed by the
Election Tribunal but they were only subject to the jurisdiction of the
High Court under Article 226 of the Constitution and this Court under
Article 136 of the Constitution.
H
1052 SUPREME COURT REPORTS [19881 2 S.C.R.

A The above situation continued till the Act was further amended 'f
by the Representation of the People (Amendment) Act, 1966. By this
amendment the power to try an Election Petition was entrusted to the
High Court. The new section 80-A which was introduced into the Act
reads as follows:

B "80-A. High Court to try election petitions: ( 1) The Court
having jurisdiction to try an election petition shall be the }
High Court.

c
(2) Such jurisdiction shall be exercised ordinarily by
a single Judge of the High Court and the Chief Justice
shall, from time to time, assign one or more Judges for tha~.
-
purpose. , .y

Provided that where the High Court consists only of
one Judge, he shall try all election petitions presented to
that Court.
D
(3) .The High Court in its discretion may, in the in-
terests of justice or convenience, try an election petition,
wholly or partly, at a place other than the place of seat of
the High Court."

E A new section was substituted in the place of the former section
86 of the Act by the amendment made in the year. 1966. The relevant
part of new section 86 reads thus:

"86. Trial of election petitions-(1) The High Court shall
dismiss an election petition which does not comply with the
F provisions of section 81 or section 82 or section 117.
'A
Explanation-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.

G (2) As soon as may be aiter an election petition has ' -
been presented to the High Court, it shall be referred to -J
the Judge or one of the Judges who has or have been .,
assigned by the Chief Justice for the trial of election peti-
tions under sub-section (2) of section BOA.

H
U.H. DEVSHANKER v. D.V. SOLANKI IVENKA_TARAMIAH, J.] 1053

¥ (7) Every election petition shall be tried as expediti-
A
ously as possible and endeavour shall be made to conclude
' • the trial within six months from the date on which the elec-
tion petition is presented to the High Court for trial".

By the above said amendment the former section 116-A of the
Act was substituted by new section 116-~providing for an appeal B
i against the order made by the High Court der section 98 or section
99 of the Act to this Court. The new section 116'A reads thus:
r
-
'l
"116-A. 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
c
j-, question (whether of law or fact) from every order made by
a High Court under section 98 or section 99.
I

(2) Every appeal under this Chapter shall be prefer-
red within a period of thirty days from the date of the order
of the High Court under section 98 or section 99. D
<
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."
r E
.., Even on this occasion the Act did not provide for any appeal
against any interlocutory order passed by Judge trying an election
petition. After the above amendment the authority referred to in Arti-
cle 329(b) of the Constitution to decide an election petition under the
Act is again two-tier authority-the High Court Judge trying an elec-
tion petition being the original authority and the Supreme Court the F
>---y appellate authority. The effect of clause (b) of Article 329 of the
Constitution as already referred to above has been explained by the
Constitution Bench of this Court in N.P. Ponnuswami's case (supra).
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
' t election petition under sub-section (2) of section 80A of the Act and G
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 provi-
sions of the Constitution which is the fundamental law of the land and
not an ordinary law is however unaffected by any of the provisipns of H
1054 SUPREME COURT REPORTS [1988] 2 S.C.R.

A the Act. It means that when the election petition is pending in the High y ,.
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 I
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
B Supreme Court under section 116-A of the Act as Article 136 of the
Constitution naturally stands excluded in view of the express provi- t
sions contained in section 116-A of the Act. The remedy available

-
under Article 136ofthe 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
C 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 ..le
clause 15 of the Letters Patent of the High Court which is an ordinary t" \-
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
D an appellate authority which can deal with questions arising out of an
electior. petition filed under the Act.

Clause 15 of the Letters Patent of the High Court of Gujarat
(omitting the unnecessary portions) reads as follows:

E "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
F any Division Court, pursuant to section 108 of the Govern-
ment oflndia Act, ...... "
,..,....
The relevant part of clause 15 of the Letters Patent which is
referred to above provides for an appeal against a judgment passed by
a Single Judge of a High Court to the same High Court and the scope
G of the said appellate power has been explained by this Court in Shah
Babula/ Khimji v. Jayaben D. Kania & Anr., [1982] 1 S.C.R. 187. An
appeal no doubt lies under that clause from an order of a Single Judge
of the High Court exercising original jurisdiction to the High Court
itself irrespective of the fact that the judgment is preliminary or final
or that it is one passed at an interlocutory stage provided it satisfies the
H condjtions set out in the above decision but the said provision cannot
U.H. DEVSHANKER v. D.V. SOLANKI [VENKATARAMIAH, J.) 1055

)' be extended to an election petition filed under the Act. Conferment of. A
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 legisla-
tion and the limited nature of the appeal expressly provided in section B
116-A of the Act it should be held that any other right of appeal
1 (excluding that under the Constitution) is taken away by necessary
r 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 Judge of a High Court would become
I
. ~plicable to an election petition filed under the Act. It is no doubt
c
f ue that in Dr. Chotalal Jivabhai Patel's case (supra) the Division
Bench of the High Court of Gujarat applied the rule laid down in
National Telephone Company Ltd. v. Post Master General, [913] A.C.
546 namely "When a question is stated to be referred to an established
Court without more, it ............. imports that the ordinary inci- D
dents of the procedure of that Court are to attach, and also that any
general right of appeal from its decision likewise attaches" to an elec-
tion 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
r made expressly appealable under section 116A of the Act to this Court E
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 one.
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 or any general right of appeal from its F
).., . 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 G
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 H
1056 SUPREME COURT REPORTS [1988) 2 S.C.R.

A tried as expeditiously as possible and endeavour shall be made to y
conclude the trial within six months from the date on which the elec-
tion petition is presented to the High Court for trial. If Parliament
intended that the Division Bench of the High Court should exercise its
appellate jurisdiction under clause 15 of the Letters Patent of the High
Court probably it would not have enacted sub-section (7) of section 86
B of the Act having regard to the well-known tendency of one or the
other party to an election petition preferring appeals against inter- ~
locutory 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
C 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 l
Chief Justice to try an election petition should be the sole Judge 16 \
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
D 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 116A of the Act in
E respect of orders passed under section ~8 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's case (supra). We therefore overrule the said
F decision. We also overrule the decision of the Madras High Court in
Kadiravan alias Shamsudeen v. B. Thirumalaikumar, I.L.R. (1970) 2 ._,,(
Mad. 183 and the decision of the Madhya Pradesh High Court in~
Laxmi Narayan Nayak v. Ramratan Chaturvedi and Ors., A.I.R. 1986
Madhya Pradesh 165 which have taken the same view as in Dr.
Chotalal Jivabhai Patel's case (supn\). We are, however, in agreement
G with the view expressed by the High Court of Allahabad in Siaram v. 1 '
Nathuram & Ors., [1968) All. L.J. 576 and by the High Court of
Rajasthan in Ramdhan v. Shanwarlal, A.I.R. 1985 Ra.iasthan 185 -..(
which have held that by necessary implication an appeal to the High
Court from an interlocutory order passed by the Single Judge of the
High Court in the course of a trial of an election petition filed under
H the Act is excluded. The reasons given in the latter case by the Full
U.H. DEVSHANKER v. D.V. SOLANKI [VENKATARAMIAH, J.) 1057

Bench of the Rajasthan High Court are indeed quite substantial. A

The Division Bench of the High Court of Gujarat had, therefore,
no jurisdiction to hear the appeal filed by the Ist respondent against
the interlocutory order passed by the learned Single Judge who was
trying the election petition. We, therefore, set aside the judgment of B
the Division Bench of the High Court and dismiss the Letters Patent
appeal filed before the High Court. We however express no 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.

S.L. Appeal allowed. C

-