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C.V.K. Rao Vs. Dantu Bhaskararao - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 5167 of 1963
Judge
Reported inAIR1964AP185
ActsConstitution of India - Articles 132, 133 and 134; Representation of the People Act - Sections 116A and 116B
AppellantC.V.K. Rao
RespondentDantu Bhaskararao
Appellant AdvocateO. Chinnappa Reddy and ;A. Gangadhararao, Advs.
Respondent AdvocateAdv.-General
Excerpt:
.....of the representation or the people act is a civil proceeding within the sweep and range of article 133 and therefore an aggrieved person could invoke article 133 provided the inner requirements of the article are..........full bench is whether an appeal under section 116b of the representation of the people act is a civil proceeding for the purpose of article 133 of the constitution . thisreference has been necessitated by a divergence of judicial opinion.2. a few facts relevant in the context of this enquiry may be narrated me respondent was declaredelected to the andhra pradesh legislative assembly from the kakinada constituency at the general election field in 1962. the legality of this election was challenged before the election tribunal, rajanmundry, by the petitioner on the ground that the respondent had incurred the disqualification under section 7(d) the representation of the people act. hisabjection prevailed with the election tribunal with the result that the election was set aside. on appeal.....
Judgment:

Chandra Reddy, C.J.

1. The question to be answered by the Full bench is whether an appeal under Section 116B of the Representation of the People Act is a Civil proceeding for the purpose of Article 133 of the Constitution . Thisreference has been necessitated by a divergence of judicial opinion.

2. A few facts relevant in the context of this enquiry may be narrated me respondent was declaredelected to the Andhra pradesh Legislative Assembly from the Kakinada constituency at the general election field in 1962. The legality of this election was challenged before the Election Tribunal, Rajanmundry, by the petitioner on the ground that the respondent had incurred the disqualification under Section 7(d) the Representation of the People Act. Hisabjection prevailed with the Election Tribunal with the result that the election was set aside. On appeal by the aggrieved respondent, two of us constituting a Division Bench reversed that decision and upheld the election in the view that the postulates of a contractwithin the contemplation of Section 7(d) were notpresent in the instant case. It is to take this judgment In appeal that the present petition is med under Article 133 of the constitution.

3. Since the problem that presents itself here has to be solved with reference to Article 133 of the Constitution, it is necessary to set it out here. Article133, omitting the unnecessary portion, runs thus:

'An appeal shall lie to the Supreme Court fromany Judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies'.

4. The expression 'civil proceeding' is notdefined anywhere in the constitution. so, we have'to decide whether a proceeding is a civil proceedingor not with reference to its nature. Would it be posted that every proceeding in a High court, which is not criminal, would constitute a civil proceeding? That the answer could not be positive could he gatheredfrom Article 132 of the Constitution which recites:

'An appeal shall lie to the supreme Court from any judgment, decree or final order of a HighCourt in the territory of India, whether in a civil, criminal or other proceeding if the High Court certifies that the case involves a substantial question orlaw as to the interpretation of the Constitution'.

5. The three Articles, which vest High courts with the power to grant leave to prefer an appeal 10 the Supreme Court, are Articles 132, 133 and 134 of the 'Constitution. The first of them is couched in very wide language and leave could be given in regard to any proceeding irrespective of its nature, provided it is a judgment, decree or final order of a High Court. But the width of its amplitude is cut down byconfining the leave only to cases which involve a substantial question of law as to the interpretation of this Constitution. Articles 133 and 134 of the Constitution bear on civil and criminal proceedings respectively. A reading of these three Articles would dearly snow that there could be proceedings outer than civil and criminal and that the Constitution had not adopted a classification of proceedings into two categories of civil and criminal proceedings in Articles 133 and 134 which are mutually exclusive and together exhaustive.

6. It is needless to say that there are proceedings which are neither criminal nor civil such as advisory opinions rendered by High Courts in Income-tax matters falling outside the scope of Article 133. That is the reason why the Income-Tax Act contains a specific provision in the shape of Section 66(4) conferring the right of appeal on an aggrieved party against the opinion of the High Court. It is not necessary to attempt an exhaustive list of such proceedings. Suffice it for our purpose to say that proceedings other than civil and criminal do exist. What then is the import of the expression 'civil proceeding'?

7. Before we consider further the general question as to what a civil proceeding is, we shall turn to Section 116A of the Representation of the people Act, which has conferred a right of appeal against the decision of an Election Tribunal, to see whether such an appeal possesses all the attributes of a civil proceeding. Section 116A recites:

1. 'An , appeal shall lie from every order made by a Tribunal under Section 98 or Section 99 to the High Court of the State in which the Tribunal is situated.

2. me High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority and follow the same procedure with respect to an appeal under this Chapter as if the appeal were an 'appeal from an original decree passed oy a civil court situated within the local limits of its civil appellate jurisdiction.

8. We are unconcerned with the rest of this Section. It is plain from this section that the jurisdiction exercised by the High Court in hearing appeals from the determination of an Election Tribunal is of the same character as that in regard to the hearing of appeals from original decrees passed by a Civil Court. That being so, decisions of the High Court In appeals from orders of Election Tribunals are of the same nature as judgments of the High Court in appeals against judgments of ordinary civil Courts. If that were the correct legal position, it could not be posited that the attributes of such a judgment are dissimilar to those of an ordinary appeal heard by a High court. These appeals are as much civil proceedings as appeals of an ordinary type.

9. We are also of the opinion that a petition before an Election Tribunal is a Civil Proceeding. Section 90 of the Act requires the Tribunal to try such a petition in accordance with the trial of suits as nearly as may be. Thus, the procedure to be followed by the Tribunal is assimilated to the procedure applicable to the trial of the suits under the Civil Procedure Code. The functions, to be performed by an Election Tribunal are not quite different from those of an ordinary civil Court. The Tribunal adjudicates upon the rights of the litigants appearing before It. Thus a matter which forms the subject matter of anelection enquiry can be taken to relate to rights of a civil nature. These proceedings are civil proceedings, since in them the legal rights of the parties are determined in the exercise of judicial function by the delivery of a definitive judgment. There can be nine doubt that a judgment pronounced either by an Election Tribunal or by a High Court under Section 116A determines the rights of the parties. It cannot be disputed that the rights to vote or the right to stand for election is a legal right possessed by a citizen of India. No doubt they are statutory rights. All the same they are rights which are valuable and which can be enforced and are of a civil nature having been derived from the Constitution. The Constitution in Part XV has made provision on these topics. That part deals with elections to the House of the People and to the State legislatures. Article 329 has prescribed the mode in which election to the House of the People or the state Legislature could be called in question. Article 321 occurring In this part has given powers to the Parliament to make a provision with respect to elections to either Houses of Parliament or the House of me Legislatures of the States including the preparation of electoral rolls, the delimitation of constituencies and an other matters. Pursuant to this, the Parliament has enacted the Representation of the People Act. An elaborate borate scheme is devised in this statute for the conduct of elections and for calling in question elections.

10. Section 80, which contains the same concept as that underlying Article 329, provides that an election could be questioned only in accordance with the provisions of Chapter II of Part VI. Section 81 provides for the presentation of election petition and Sections 82 - 84 lay down who should be joined as respondents, what averments the election petition should contain and what reliefs could be claimed by a petitioner, under Section 86, these petitions nave to be referred to the Election Tribunals for final disposal. Under Section 86(2) provision is made for the appointment of Election Tribunals, who are appointed out or the list of persons who are District Judges in the State and who in the opinion of the High court are fit to be appointed members of Election Tribunals. we rave already said that By virtue of section 90, the provisions of the Civil Procedure Code are made applicable to the trial of these petitions. Under Sub-section 2 the provisions of the Indian Evidence Act, subject to the provisions of the Act are made applicable to the trial of election petitions. Thus, it is plain that there is no material difference between proceedings m ordinary civil courts and those before the Election Tribunals. Taking into account the character of the powers and the activities of a Tribunal, we could can a Tribunal a Civil Court, of course, not in the sense of an ordinary Court.

11. This opinion of ours gains support from decided cases.

12. In Raghoobuns sanoy v. Kokil , Singh ILR 17 cal 872 at p. 875, it was observed that a court includes a Tribunal empowered to deal with a particular matter and authorised to receive evidence Bearing on that matter in order to enable It to arrive at a determination.

13. In Mahabaleswarappa v. Gopalaswami Mudailar, ILR 58 Mad 954 : (AIR 1935 Wad 573) a Division Bench of the Madras High Court ruled that an Election Tribunal was a Civil Court in the sense it decides on purely civil question between person seekingcivil rights, though he is not a civil court as that expression is used 'to denote the courts or ordinary civil jurisdiction'.

14. Srirama Rao v. survanarayanamurtni : AIR1954Mad340 , Nilmoni Singh Deo v. Taranath Mukherjoe, ILR 9 Cal 295 (PC)' are to the same effect. In the first case the Madras High Court ruled that a Registrar functioning under the Madras Co-operative Societies Act was a Civil court within the terms of Section 25 of the Madras Debt Conciliation Act. Venkataramama Ayyar J., who spoke for the Court, said that Courts, which determine disputed rights between subjects or between, a subject and a State would be civil Courts as opposed to criminal courts, notwithstanding that they are created by special statute and are mentioned in the statute as distinct from civil courts.

15. ILR 9 Cal 295 (PC) dealt with the Bengal Rent Act (Act X of 1959) under which certain classes ot rent suits were made exclusively triable by Revenua Officers in accordance with the procedure laid down therein. The question that arose there was whether revenue officials exercising the powers under the Act were acting as civil courts and it was answered in the affirmative. Lord Hobhouse observed in the course of the judgment that a Rent Court remained a civil court in the sense that it was deciding a civil question between persons seeking civil rights.

16. We have already said that a party seeks his remedy before an Election Tribunal in regard to his right of franchise and his right to seek election to any of the legislatures and a judgment given by a Tribunal in this behalf concludes the rights of the parties in this behalf. This characteristic satisfies the definition of a Civil proceeding as given in Stroud's Judicial Dictionary namely that it is a 'process for the recovery at individual right or redress of individual wrong, inclusive in its proper legal sense of suits by the Drawn. Proceedings under the Bankruptcy Act, 1190, and information in the nature of quo warranto have been included within the scope of Civil proceeding' in this Dictionary.

17. For all these reasons, we must hold that a proceeding before an Election Tribunal is a Civil Proceeding. A fortiori an appeal under Section 115A of the Representation of the People Act has all the attributes of a civil proceeding.

18. We will now proceed to refer to the rulings which have considered this question.

19. In V. V. Gin v. Dippala Suri Dora, 1958-2 Andh WR 324 : (AIR 1958 Andh Pra 542) a Division Bench of this Court held that an appeal under Section 116A of the Representation of the People Act was not 3 civil proceeding within the purview of Article 133 of the Constitution and hence no certificate of fithess could issue under Article 133 in regard to such a proceeding. This 'decision of She learned Judges was cased upon some observations of the Supreme court in Ponnswamy v. Returning Officer Namaxkal Constituency, : [1952]1SCR218 to the effect that a right to vote or to stand as a candidate for election was not a civil right but was a creature or Statute or special law.

In our considered opinion, the observations of the Supreme Court do not lend any countenance to the theory propounded by the learned judges. Those remarks only mean that the right of a citizen to vote or stand as a candidate is not a civil right in the sense that it is not known to common lawbut that is a statutory right; that being so it was subject to statutory obligations. Their Lordships would not have intended to lay down as a proposition of law that these statutory rights are not rights of a civil nature and therefore tell outside Me domain of Article 133 of the Constitution. They merely observed that it was a statutory right and as such was subject to statutory obligation. Moreover in that case they were concerned with the controversy whether an election petition was a civil proceeding or not. In our judgment, the statement of law contained in : [1952]1SCR218 does not furnish any basis for the principle embodied in 1958-2 Andh WR 324 : (AIR 1953 Andh Pra 642). To accept the construction placed by the learned Judges on the expression 'civil proceeding' is to cut down its content to a large extent. Such a narrow construction would defeat the very purpose of that Article. That Article has to be interpreted in its rational and comprehensive sense. With respect to our learned brothers we dissent from the principle underlying this ruling.

20. Another Division Bench of this court in S. C. C. M. P. No. 4022 of 1963 (AP) dissented from the rule stated in 1958-2 Andh W R 324 : (AIR 1958 Andh Pra 642). They were inclined to the view that an appeal under Section 116A of the Representation or the People Act was a Civil Proceeding as distinct from a Criminal Proceeding.

21. The Patna High Court has enunciated the same principle in Budhi Nath Jha v. Manilal Jadav, : AIR1960Pat361 (FB). The subject met an exhaustive treatment in that case. It was laid down there that an order in the exercise of revisional jurisdiction under Article 227 of the constitution setting aside the order of an Election Tribunal was one made in a Civil Proceeding and consequently attracted Article 133 of the Constitution. They said that the right of a person to stand for election was a Civil right and an election petition challenging the election of a successful candidate raised a question pertaining to civil rights between the parties.

22. To a similar effect is a judgment of the Allahabad High Court in Keshav Gupta v. Ghavur Ali Khan, AIR 1959 All 507.

23. In the same trend of thought are Guru Govinda Basu v. Sankari Prosad, : AIR1963Cal364 and Kishore Chandra Deo v. Raghunath Misra, : AIR1960Ori1 . No doubt in the latter case, one of the Judges Barman J., felt some doubt on this question. But in the final conclusion he did not express any disagreement with the other judge. On the other hand he agreed that a certificate or fitness should be granted under Article 133 of the Constitution.

24. It is thus seen that the weight of authority is overwhelmingly in favour of the conclusion that an appeal under Section 116B of the Representation or the People Act is a civil proceeding within the sweep and range of Article 133 and therefore an aggrieved person could invoke Article 133 provided the inner requirements of the Article are satisfied.

25. Apart from the rulings, the language of the Article can reasonably lend itself only to the interpretation put by us. It has also been the practice in almost all the High Courts to treat these proceedings as civil proceedings within the terms of this Article and issue a certificate of fitness. This general practicehas been referred to by the Supreme Court in Babu Ram v. Prasanni, : [1959]1SCR1403 .

26. The only point that survives is whether leaveshould be granted in this case. The petitioner canhave resort only to Clause (c) since obviously he doesnot come under Clause (a) or (b). In fact, the petitioner does not attempt to bring it under either of thetwo clauses and his request is that we should certifythat this matter is a fit one for appeal to the supremeCourt. Having regard to the general importance of thequestion involved, we think that we should issue a certificate of fitness in this case.


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