J.N. Takru, J.
1. This petition by Lakshmi Shanker Yadav under Article 133 of the Constitution prays for the grant of a certificate of fitness to file an appeal to the Supreme Court against the judgment and decree of this Court dated 15-5-1959 passed in First Appeal No. 374 of 1958. The facts giving rise to it are as follows:
2. The petitioner and the opposite parties were candidates for election to the U. P. Legislative Assembly from the Shahganj Constituency No. 200 in the District of Jaunpur. The constituency was a double-member constituency in which one seat was reserved for a candidate of the scheduled caste. The petitioner, the first opposite-party, and some others were candidates for the general seat.
At the election the first respondent having secured the highest number of votes was declared elected from the general constituency. Thereupon the petitioner preferred an electipn petition to the Election Commission and that Commission in due course appointed the District Judge, Jaunpur, as the Election Tribunal and referred that petition to him.
3. The election of the first opposite-party was challenged on a number of grounds relating to the commission of corrupt practices and illegalities in the conduct of the said election and it was prayed that his election be declared void and the petitioner be declared to have been duly elected. The first opposite party filed a written statement, and as there was a further prayer that the petitioner be declared duly elected he also made an application under Section 97 of the Representation of the People Act --(hereinafter to be referred to as the Act).
On the pleadings of the parties a number of issues were struck, and the Tribunal after considering the evidence led by the parties thereon, dismissed the election petition. The petitioner then preferred an appeal to this Court and the latter by its judgment dated 15-5-1959 dismissed the appeal and upheld the election of the first opposite-party. Aggrieved by that decision, the petitioner now wishes to go up in appeal to the Supreme Court.
4. At the outset of the hearing of this petition, a preliminary objection was raised with regard to the maintainability of the petition under Article 133 of the Constitution. It was contended that as under Section 116A of the Act -- the section which provides for appeals against orders of Election Tribunals --the High Court functioned as a' persona designata, the judgments and orders passed by it in such appeals were not the judgments and orders of a High Court within the meaning of Article 133 of the Constitution.
On behalf of the first opposite party, it was, however, urged that Section 116A of the Act, properly construed, had only the effect of extending the ordinary appellate jurisdiction of the High Court, so as to include appeals from the orders of the Election Tribunals also, and as such the judgments, decrees and orders passed by it in such appeals, bore the same impress as the judgments, decrees and orders passed by it in its ordinary appellate jurisdiction. Having heard learned counsel for the parties, we are satisfied that there is no force in this preliminary objection and it must, therefore, be repelled. The material portions of Section 116A of the Act, which provide for appeals against orders of Election Tribunals, read as follows:
'1. An appeal shall He 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. The 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 Chanter as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction.....'
5. A plain reading of these sub-sections --particularly Sub-section (2) -- leaves no room for doubt in our minds that the powers, jurisdiction and authority which they confer upon the High Court are intended to be of the same nature as are possessed by it when it is dealing with appeals from the original decrees passed by the civil courts falling within its local limits. In this view of the matter, it is obvious that a High Court cannot be held to be acting as a persona designata when hearing an appeal from an order of the Tribunal under the aforesaid Act. We are fortified in our view by the decision of the Supreme Court in National Sewing Thread Co. Ltd. v. James Chadwick and Bros. Ltd., AIR 1953 SC 357. In that case their Lordships were called upon to decide as to the nature of the 'appellate jurisdiction which the High' Court exercised when dealing with appeals under Section 76 of the Trade Marks Act. Section 76 lays down that:
'save as otherwise expressly provided in this Act, an appeal shall lie, within the period prescribed by the Central Government, from any decision of the Registrar -- under this Act or the rules made thereunder to the High Court having jurisdiction.'
5a. After dealing with the various aspects of the matters, their Lordships observed:
'The rights created by the Trade Marks Act are civil rights for the protection of persons carrying on trade under marks which have acquired reputation. The statute creates the Registrar a tribunal for safeguarding these rights and for giving effect to the rights created by the Act, and the High Court as such without more has been given appellate jurisdiction over the decisions of this tribunal. The High Court while exercising this appellate jurisdiction has not to exercise it in a manner different from its other appellate jurisdiction. It is merely an addition of a new subject-matter of appeal to the appellate jurisdiction already exercised by the High Court.'
6. The aforesaid judgment of the Supreme Court concludes, in our opinion, all further discussion on this subject. Nevertheless on behalf of the petitioner the decision of the Supreme Court in Union of India v. Hanskumar Kishan Chand, AIR 1958 SC 947 was cited as an authority for the proposition contended for on his behalf. After examining that authority, we are satisfied that it has no application to the facts of the present case.
7. The question which fell for decision in AIR 1958 SC 947 (ubi supra) was regarding the nature of the appellate jurisdiction which was exercised by the High Court under Section 19(1)(f) of the Defence of India Act, when hearing an appeal from an award passed by an arbitrator appointed under Section 19(1)(b) of the said Act. Since the head notes of that case succinctly reproduce the decision of their Lordships, we feel, we cannot do better than just quote them. The said head notes run as follows:
There is a sharp distinction between a decision which is pronounced by a Court in a cause which it hears on the merits, and one which is given by it in a proceeding for the filing of an award. The former is a judgment, decree or order rendered in the exercise of its normal jurisdiction as a Civil Court, and that is appealable under the general law as for example, under Sections 96, 100, 104, 109 and 110 of the Code of Civil procedure. The latter is an adjudication of a private tribunal with the imprimatur of the Court stamped on it, and to the extent that the award is within the terms of the reference, it is final and not appealable. The position in law is the same when the reference to arbitration is made not under agreement of parties but under provisions of a statute. The result of those provisions again is to withdraw the dispute from the jurisdiction of the ordinary Courts and to refer it for the decision of a private tribunal. That decision is an award, and stands on the same footing as an award made on reference tinder agreement of parties.
Nor does it make any difference in the legal position that the reference under the statute is to a Court as arbitrator. In that case, the Court hears the matter not as a Civil Court but as persona designata, and its decision will be an award not open to appeal under the ordinary law applicable to decisions of Courts. A statute however, might provide for the decision of a dispute by a Court as Court and not as arbitrator, in which case its decision will be a decree or order of Court in its ordinary civil jurisdiction, and that will attract the normal procedure governing the decision of that Court, and a right of appeal will be comprehended therein..................................
It may be a question whether the reference to a Court under a particular statute is to it as a Court or as persona designata but when once it is determined that it is to it as persona designata, there can be no question that its decision is not open to appeal under the ordinary law.
Under Section 19(1)(b), of the Defence of India Act, the reference is admittedly to an arbitrator. He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under Section 19(1)(f) can be construed as a reference to it as an authority designated and not as a Court. The fact that in a particular case the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under Section 19(1)(b) is expressly referred to in Section 19(1)(f) as an award. Now, an appeal is essentially a continuation of the original proceedings and if the proceedings under Section 19 (1) (b) are arbitration proceedings, their character cannot suffer a charge, when they are brought up before an appellate tribunal. A proceeding which is at the inception an arbitration proceeding must retain its character as arbitration even when it is taken up in appeal, where that is provided by the statute.
The decision of the High Court in the appeal under Section 19(1)(f) is not a judgment, decree or order either within Sections 109 and 110, C. P. C. or Clause 29 of the Letters Patent of the Nagpur High Court.'
As a result of the aforesaid their Lordships held that. The Federal Court had power under Section 3(1)(ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in Section 2(b), meant a judgment, decree or order of High Court in a civil case; and as the decision in the appeal under Section 19(1)(f) of the Defence of India Act is not a judgment, decree or order but an award, no order could have been passed granting special leave under Section 3(a)(ii).
8. The aforesaid excerpts clearly bring out the difference between the facts of that case from those of the present case, in which, by virtue of Sub-section (2) of the Act, the High Court exercises all the powers, jurisdiction and authority which it does in connection with its ordinary civil jurisdiction and under the normal procedure governing the decision of that Court. We are, therefore, of the opinion that the High Court when dealing with the appeals from the orders of Election Tribunals, is not a persona designata but acts in its capacity as a High Court and its judgments, decrees and orders in such appeals are judgments, decrees and orders of a High Court within the meaning of Article 133(1) of the Constitution. The preliminary objection has, therefore, no force and is overruled.
9. Turning now to the merits of the petition, we find that four grounds have been taken in it though during the arguments only the first three of them were pressed before us. The said grounds run as follows:
'1. Because this Court has misinterpreted the scope of Section 97 of the Representation of People Act.
2. Because the respondent not having pleaded either in the written statement or the application under Section 97 of the Act that any votes cast in his favour had been improperly rejected or any votes cast in favour of the applicant had been improperly accepted, this Court acted illegally in taking into consideration the evidence led by the respondent in support of his objections contained in Paper No.1110-C.
3. Because the view taken by this Court that Section 97 of the Act applies only when allegations of corrupt practice are made is in contravention of well established canons of construction.'
Although three in number, these grounds really raise only one question concerning the construction of Section 97 of the Act. In order to appreciate the aforesaid grounds it is necessary to go back to the petition and to the written statement and the recriminations filed by the parties concerned. It appears that one of the grounds taken by the petitioner for having the election of the first opposite-party set aside was under Section 100(1)(d)(iii) of the Act, viz., that the result of the election, so far as it concerned the first opposite-party, had been materially affected by the improper reception of some of the votes of the first opposite-party and the improper rejection of some of the votes of the petitioner.
The first opposite-party denied the aforesaid allegations but neither in his written statement nor in his recriminations did he plead that some of his votes had also been improperly rejected and that some of the petitioner's votes had been improperly accepted. He was, however, allowed to adduce evidence in support of these allegations on the footing that he could do so in order to defend his election under Section 100(l)(d)(iii) of the Act. The contention of the learned counsel for the petitioner was, and, still is, that the first opposite-party should have taken that as a ground in his recriminations under Section 97 of the Act and his failure to do so precludes him under the proviso of that section from giving evidence in support of those allegations.
In support of this proposition, he relied upon Inayat Ulla Khan v. Diwan Chand Mahajan, AIR 1959 MP 58. After hearing the learned counsel for the parties, we are satisfied that the aforesaid grounds do raise a question of substantial and general importance of a recurring nature, worthy of the consideration of their Lordships of the Supreme Court. We accordingly declare that this is a fit case in which the certificate prayed for should be granted.
10. We accordingly grant this application andcertify that this case is a fit one for appeal to theSupreme Court, under Article 133(1)(c) of the Constitution.