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KamalnaraIn Sharma Vs. Pt. Dwarka Prasad Mishra and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Case No. 90 of 1964
Judge
Reported inAIR1965MP15; 1964MPLJ893
ActsRepresentation of People Act, 1951 - Sections 83(1); Conduct of Election Rules, 1961 - Rule 94A; Constitution of India - Articles 133 and 226; Code of Civil Procedure (CPC) , 1908 - Sections 139
AppellantKamalnaraIn Sharma
RespondentPt. Dwarka Prasad Mishra and ors.
Appellant AdvocateB.P. Tiwari and ;B.B.L. Shrivastava, Advs.
Respondent AdvocateShambhunarain Misra, ;Y.S. Dharmadhikari and ;M.V. Tamasker, Advs. for Opposite Party No. 1
Cases ReferredSouthern Roadways (P) Ltd. v. P.M. Veeraswami
Excerpt:
- - 1 under articles 226 and 227 of the constitution and issued a writ of certiorari quashing an order of the election tribunal, raipur, permitting the petitioner to file a fresh affidavit for purposes of section 83 of the representation of the people act, 1951, (hereinafter referred to as the act) and directed the tribunal to determine, in the light of cur decision sought to be appealed against, the effect of the petitioner's failure to file an affidavit along with the election petition as required by the proviso to section 83(1) of the act on the allegations of corrupt practices made by him in his election petition. 3. at the time of the hearing of the petition under articles 226 and 227 of the constitution, the controversycentred round the question of the effect of the petitioner's.....dixit, c.j.1. this is an application under article 133(1)(c) of the constitution for a certificate for appeal to the supreme court from our decision, dated 15th april 1964, in miscellaneous petition no. 90 of 1964. by that decision we allowed an application filed by the opponent no. 1 under articles 226 and 227 of the constitution and issued a writ of certiorari quashing an order of the election tribunal, raipur, permitting the petitioner to file a fresh affidavit for purposes of section 83 of the representation of the people act, 1951, (hereinafter referred to as the act) and directed the tribunal to determine, in the light of cur decision sought to be appealed against, the effect of the petitioner's failure to file an affidavit along with the election petition as required by the proviso.....
Judgment:

Dixit, C.J.

1. This is an application under Article 133(1)(c) of the Constitution for a certificate for appeal to the Supreme Court from our decision, dated 15th April 1964, in Miscellaneous Petition No. 90 of 1964. By that decision we allowed an application filed by the opponent No. 1 under Articles 226 and 227 of the Constitution and issued a writ of certiorari quashing an order of the Election Tribunal, Raipur, permitting the petitioner to file a fresh affidavit for purposes of Section 83 of the Representation of the People Act, 1951, (hereinafter referred to as the Act) and directed the Tribunal to determine, in the light of cur decision sought to be appealed against, the effect of the petitioner's failure to file an affidavit along with the election petition as required by the proviso to Section 83(1) of the Act on the allegations of corrupt practices made by him in his election petition.

2. The material facts, briefly stated, are that the petitioner filed an election petition questioning the validity of the election of the opponent No. 1 to the Madhya Pradesh Legislative Assembly at a bye-election held in May 1963 from Kasdol constituency mainly on the ground that the opponent was guilty of having committed corrupt practices enumerated in the petition. Along with the election petition the applicant filed an affidavit in support of the allegations of corrupt practices which had not been sworn before any authority specified in Rule 94-A of the Conduct of Elections Rules, 1961, (hereinafter called the Rules) but which was sworn before the Clerk of Court of the District Judge's Court, Jabalpur. The opponent No. 1 raised before the Tribunal the objection that the proviso to Section 83(1) of the Act laying down that where an election petition alleges any corrupt practices, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practices and the particulars thereof was mandatory; that as the affidavit filed by the petitioner was not in the form prescribed by Rule 94-A of the Rules, the election petition was liable to be dismissed under Section 90(3) of the Act for non-compliance with Rule 94-A; and that in any case the allegations of corrupt practices in the petition were liable to be struck out, and could not be investigated. Before the Tribunal, the petitioner did not dispute that the affidavit, which he had filed along with the election petition, had not been sworn before any authority specified in Rule 94-A. The Election Tribunal also held that the affidavit sworn before the Clerk of Court of the Court of District Judge, Jabalpur, was defective in that it had not been sworn before any authority specified in Rule 94-A, but further held that on that defect alone the election petition could not be dismissed. The Tribunal, without deciding the question of the effect of non-compliance, of Rule 94-A on the allegations of corrupt practices made in the election petition by the applicant, permitted him to file a new affidavit sworn before any authority prescribed by Rule 94-A in substitution of the affidavit filed along with the election petition.

3. At the time of the hearing of the petition under Articles 226 and 227 of the Constitution, the controversycentred round the question of the effect of the petitioner's failure to file along with the election petition an affidavitas required by the proviso to Section 83(1) of the Act on the allegations of corrupt practices made in the election petition. The petitioner did not dispute before us that the affidavit, which he had filed along with the election petition, had not been sworn before any authority prescribed by Rule 94-A. The opponent No. 1 also did not question the correctness of the order of the Tribunal that the election petition could not be dismissed for non-compliance with the, proviso to Section 83(1). It was, however, contended on his behalf that the proviso was mandatory and made it obligatory on the petitioner to file an affidavit in the pre-scribed form while presenting the election petition before the Election Commission; that his failure to do so rendered the petition ineffectual so far as the allegations of corrupt practices made therein were concerned; that those allegations not having been supported by an affidavit in the prescribed form were non est; that, therefore, there were no allegations of corrupt practices which the Tribunal could enquire into; and that the Tribunal had no power of curing this non-compliance with the proviso by permitting the petitioner to file a proper affidavit subsequently and of proceeding to try and investigate into the allegations of corrupt practices.

4. After examining the language of the proviso to Section 83(1) of the Act and noting the matters which must be taken into consideration for determining whether a provision of a statute is absolute or directory, we came to the conclusion that the proviso was imperative in its terms and that the object with which the proviso was inserted by Act No. 40 of 1961 in the Representation of the People Act, 1951, would be wholly defeated and the protection afforded by it to the person, against whom allegations of corrupt practices are made, nullified if it were to be held that the requirement that where allegations of corrupt practices are made the petition shall be accompanied by an affidavit in the prescribed form was directory and not mandatory. We pointed out that the affidavit filed along with election petition not having been-sworn before any authority prescribed by Rule 94-A was not any 'affidavit' as contemplated by the proviso to Section 83(1) and Rule 94-A.

We proceeded to say that in the very definition of 'affidavit' it is inherent that it should be sworn before the person having authority to administer oath or affirmation; that this is essential to constitute the paper an 'affidavit' and until an affidavit is properly sworn there is merely a paper containing the statements of the party; that when the statute requires that the affidavit shall be sworn before a particular authority, then for the validity of the affidavit it is essential that it must be sworn and affirmed before that authority and no one else, that as the requirement of an election petition containing allegations of corrupt practices being accompanied by an affidavit sworn before the prescribed authority was mandatory, the Tribunal had no power to permit the applicant, who failed to file an affidavit as required by the proviso to Section 83(1) and Rule 94-A at the time of the presentation of the election petition before the Election Commission, to file an affidavit subsequently in the form prescribed by Rule 94-A; and that the effect of this omission on the part of the petitioner was that on the allegations about corrupt practices made in the petition there could be no enquiry and th3 allegations had to be struck out. On behalf of the applicant, reliance was placed on Hussain Kamil v. Ram Sewak, AIR 1964 All 86, Bhaskararao v. C.V.K. Rao, AIR 1964Andh Pra 77, Chengalraya Naidu v. Pattabhi Reddi, AIR 1964 Andh Pra 164, Mahesh Prasad v. Manjay Lal, AIR 1964 Pat 53 and Satish Kumar v. Election Tribunal Alwar, AIR 1963 Raj 157. We dissented from the decisions in AIR 1964 All 86, AIR 1964 Andh Pra 77 and AIR 1964 Andh-Pra 154 where a view contrary to that taken by us has been expressed. In regard to other cases, we said that they did not at all touch the question which was before us for decision.

5. The main ground on which the petitioner seeks a certificate for appeal to the Supreme Court is that our decision gives rise to a substantial question of law namely, whether the proviso to Section 83(1) of the Act and Rule 94-A are mandatory so as to preclude art enquiry into the allegations of corrupt practices when the election petition was not accompanied by an affidavit sworn before the prescribed authority as required by Section 33 and Rule 94-A. As the Allahabad and Andhra Pradesh High Courts have taken a different view from that expressed by us, the question of the construction of the proviso to Section 83(1) and Rule 94-A clearly becomes a substantial question of law rendering the case a fit one for appeal to the Supreme Court, (See Chunilal V. Mehta and Sens Ltd. v. C. S. and M. Co. Ltd., AIR 1962 SC 1314).

6. In his application for certificate for appeal, the petitioner has taken the ground that his counsel made an 'erroneous admission' on a question of law in so far as he accepted that the affidavit accompanying the election petition in support of the allegations of corrupt practices' had not been sworn before any of the authorities mentioned in Rule 94-A; that the affidavit sworn by the petitioner before the Clerk of Court of the Court of District Judge, Jabalpur, was an affidavit sworn before the 'Commissioner of Oaths' for the purposes of Rule 94-A; and that the Clerk of Court derived his authority under the Indian Oaths Act, 1873. At the time of the hearing of the petition under Articles 226 and 227 of the Constitution, this contention was never put forward before us. On the other hand, it was not disputed before us by the petitioner that the Clerk of the Court of the District Judge, Jabalpur, was not a Commissioner of Oaths. The petition is clearly not entitled to a certificate for appeal on a ground which was never urged in this Court and on which there was no adjudication. But it may be incidentally observed that in this State the Government has in the exercise of its power under Section 139(c) of the Civil Procedure Code empowered the District Judges to appoint Officers to administer oaths on affidavits made under the Civil Procedure Code and not for administering oaths on affidavits under other statutes.

The clerks of court appointed by the District Judges to administer oaths on affidavits under the Civil Procedure Code are designated as 'Officers for administering oaths on affidavits' and not 'Commissioner of Oaths'. These Officers have no power to administer any oath or take any affidavit in each and every matter; their power is limited to administer oaths on affidavits filed under the Civil Procedure Code. They are not 'Commissioner of Oaths', or 'notaries' appointed under the Notaries Act, 1952, who can under Section 8 of that Act administer oaths to, or take affidavit from, any person in any matter. If the petitioner had based himself for a certificate for appeal solely on the ground of 'wrong administer'' on the part of his counsel, then we would have had no hesitation in refusing the certificate. But, as stated earlier, our decision gives rise to a substantial question of law, namely, the construction of the proviso to Section 83(1) and Rule 94-A, and that entitles the applicant to a certificate for appeal to the Supreme Court.

7. While opposing the petitioner's prayer for grant of a certificate for appeal, Shri Shambhunarain Mishra, learned counsel appearing for the opponent No. 1, raised two objections, namely, (i) that the order sought to be appealed against is not an order passed by this Court in a civil proceeding, and (ii) that it is not a final order. In our opinion, both these objections must be rejected.

8. In connection with the first objection, the precise question that requires determination is whether the order passed by us on the opponent No. 1's application under Articles 226 and 227 of the Constitution quashing an order of the Election Tribunal and directing the Tribunal to decide the matter of the effect of the petitioner's failure to file an affidavit as required by the proviso to Section 83(1) of the Act on the allegations of corrupt practices made by him in his election petition is an order made in a civil proceeding of the High Court. Under Article 133 of the Constitution, an appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the case fulfils the requirements of Clause (a), or Clause (b), or Clause (c), of Article 133(1). The Constitution does not give any definition of 'civil proceeding'. For the disposal of this petition, it is not necessary to attempt to give an exact definition of what constitutes 'civil proceeding' and to say whether this or that proceeding will or will not be a civil proceeding. This much is clear that the expression 'civil proceeding' has been used in Article 133 in a wide sense so as to cover any proceeding of civil nature held by the High Court, whether in its original, appellate or revisional jurisdiction. The term 'civil proceeding' has been used in Article 133 in centradistinction to the term 'criminal proceeding' used in Article 134, so that a proceeding instituted under the ordinary criminal law of the land, which may result in conviction or acquittal of the person charged, is not a civil proceeding.

The question whether a certain proceeding in the High Court is a 'civil, proceeding' or not must be decided by the nature of the proceeding. Generally speaking, any proceeding taken for establishing or disputing a civil right or a statutory right of civil nature would be a 'civil proceeding'. In determining the nature of proceedings under Article 226, it is important to note that the jurisdiction which the High Court exercises under Article 226 is original in character, as contrasted with its appellate or revisional jurisdiction, and the proceedings under Article 226 are not proceedings in continuation of the proceedings before any inferior tribunal under any Act or statute. That this is the nature of the jurisdiction exercised by the High Court under Article 226 is now well established by the authoritative pronouncement of the Supreme Court in State of Uttar Pradesh v. Dr. Vijay Anand, AIR 1963 SC 946. In that case, the Supreme Court stated the scope of proceedings under Articles 226 and 227 of the Constitution thus:

'Article 226 confers a power on a High Court to issue the writs, orders or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the saidwrits mainly to enable the High Courts to keep the subordinate tribunals within bounds.'

The Supreme Court then pointed out that before the Constitution, the chartered High Courts were issuing prerogative writs similar to those issued by the King's Bench Division, subject to the same limitations imposed on the said writs, noted the various decisions of the Madras High Court and the Privy Council on the nature of the jurisdiction exercised by the chartered High Courts is the matter of the issue of preroptive writs, and proceeded to say:

'It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and the decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not be confused with the ordinary civil jurisdiction of the High Court. This jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act.

It follows from the above observations of the Supreme Court that in the present case the nature of proceedings be fore the Election Tribunal cannot be takes into account while determining the nature of proceedings under Article 226 in which the order sought to be appealed from quashing the order of the Election Tribunal was passed by this Court. The fact that by the order sought to be appealed from the decision of the Election Tribunal was quashed is wholly immaterial in determining the nature of the proceedings under Article 226. Now, Article 226 of the Constitution empowers the High Court to issue writs, orders or directions mentioned therein for the enforcement of any of the rights conferred by Part III of the Constitution or for any other purpose, and as pointed out by the Supreme Court in State of Orissa. v. Madan Gopal, AIR 1952 SC 12, the existence of a right is the foundation of the exercise of jurisdiction of the Court under the said article. If the right adjudicated upon or enforced by the issue of a suitable direction or a writ in proceedings under Article 226 relates to freedom of property, freedom of residence, freedom of movement, freeedom of speech and expression, freedom of assembly, freedom of association and freedom of trade, profession or business, or relates to civil rights which appertain to citizenship, or relates to a statutory right of civil nature which s citizen has, then clearly the proceedings under Article 226 are civil proceedings.

It makes no difference to the nature of proceedings under Article 226 that a right or direction sought by the aggrieved party or issued by the High Court was in a purely civil matter, or in a revenue or taxation or election or in a criminal matter, or that the order quashed by the High Court by the issue of a writ of certiorari was of the Board of Revenue, or of an Election Tribunal, or of a criminal court, or of a taxing authority, to determining the nature of proceedings under Article 226, the test seems to us to be not to whom a writ or direction is issued or whose order is quashed, but it is 'what is the nature of the right sought to be adjudicated upon and enforced by proceedings under Article 226'. If the right is any of the rights conferred by Part III of the Constitution, or a civilright, or a statutory right of civil nature, then clearly proceedings under Article 226 for the enforcement of that right would be 'civil proceedings'.

9. Now, it cannot be disputed that the right to vote or stand as a candidate for election, though it is not a civil right, is a creature of a statute or special law, and so also the right to call in question an election by an election petition presented in accordance with the Representation of the People Act, 1951, is also a statutory right (see N.P. Ponnuswami v. Returning Officer, Namakkal, AIR 1952 SC 64). These rights, though creatures of a statute, are 'civil rights.' The latter term does not mean only common law rights, but also includes any statutory right to property, status and office. In the case before us, the opponent No. 1 sought to enforce his 'statutory civil right' of having the allegations about corrupt practices made by the petitioner in his election petition struck out because of his (petitioner's) failure to file an affidavit as required by the imperative terms of the proviso to Section 83(1) of the Act and Rule 94-A of the Rules. Thus the proceedings tinder Article 226, in which the order sought to be appealed from was passed by us, were 'civil proceedings'.

10. On the question whether proceedings under Article 226 are civil proceedings, there is no unanimity in the decisions of the various High Courts. In some cases it has been held, with reference to the nature of the writ or direction sought, that proceedings under Article 226 are civil proceedings, and in others a contrary opinion has been expressed. It is not necessary to examine these cases in which the question of the nature of proceedings under Article 226 has been determined taking those proceedings as continuation of the proceedings of inferior tribunal or authority whose order was sought to be quashed. In view of the pronouncement of the Supreme Court in AIR 1963 SC 946 this approach to the question of determining the nature of proceedings under Article 226 cannot be regarded as correct.

11. A Full Bench of the Patna High Court in Collector of Monghyr v. Pratap Singh, (S) AIR 1957 Pat 102 has gone to the length of laying down a general proposition that proceedings under Article 226 are not 'civil proceedings' because the jurisdiction under Article 226 is an extra-ordinary jurisdiction vested in the High Court for the purpose of ensuring that the various courts and tribunals are kept within their jurisdiction and not for the purposes of declaring civil rights. We do not find ourselves in agreement with the decision of the Patna High Court. It is no doubt true that the High Court does not grant a mere declaratory relief under Article 226 of the Constitution. But the High Court does in proper cases issue writs and directions for enforcing fundamental rights and civil rights where the rights are infringed. It may be mentioned that in several cases under Article 226 of the Constitution this Court has granted certificates for appeal to the Supreme Court. In, so far as we are aware, no objection was taken either by the Court or by the counsel appearing in those cases that a certificate should not be granted as the order sought to be appealed against was not passed in a civil proceeding. These appeals were entertained by the Supreme Court without any objection that the order under appeal was not one made in a civil proceeding, The contention, therefore, of the learned counsel appearing for the opponent No. 1 that the order sought to be appealed against was not an order passed by this Court in a civil proceeding, must be rejected.

12. The opponent's second objection that the order sought to be appealed against was not a final order within Article 133 must also be rejected. It was urged by the learned counsel appearing for the opponent No. 1 that our order, dated 15th April 1964 quashed the determination of the Election Tribunal on the question of the effect of the absence of an affidavit as required by the proviso to Section 83(1) of the Act on the allegations of corrupt practices made in the election petition and set at large the controversy in regard to the question before the Tribunal, and that thus the order intended to be appealed from was an order of remand and did not finally dispose of the rights of the parties in the matter of investigation into the allegations of corrupt practices but left it to be determined by the Election Tribunal. Learned counsel relied on Jethanand and Sons v. State of U. P., AIR 1961 SC 794.

13. The flaw in the argument lies in assuming that the proceedings under Article 226, in which the order sought to be appealed from was passed, were a continuation of the proceedings before the Election. Tribunal and were integrally connected with the latter proceedings. After the decision of the Supreme Court in AIR 1963 SC 946 there is no warrant for making such an assumption. As pointed out earlier, it has been emphasized in that case that in exercising its power under Article 226 of the Constitution the High Court exercises the original jurisdiction and a petition under Article 226 of the Constitution is not a continuation of the proceedings before an inferior tribunal or authority. This being the nature of the proceedings under Article 226, the finality of the order passed by us on 15th April 1964 under Article 226 must be determined with reference to the effect of the order on the proceedings in the High Court itself and not with reference to its effect on proceedings before the Election Tribunal. The question as to what is a final order has been considered in a number of cases. While considering this question with reference to Section 205 of the Government of India Act, 1935, the Federal Court said in Mohd. Amin Bros. Ltd. v. Dominion of India, AIR 1950 FC 77 that-

'The expression 'final order' has been used in contradistinction to what is known as 'interlocutory order' and the essential test to distinguish the one from the other has been discussed and formulated in several cases decided by the Judicial Committee. All the relevant authorities bearing on the question have been reviewed by this Court in their recent pronouncement in S. Kuppuswami Rao v. The King, 1947 FCR 180 : AIR 1949 FC 1 : 49 Cri LJ 625 and the law on point, so far as this Court is concerned, seems to be well settled. In full agreement with the decisions of the Judicial Committee in Firm Ram Chand Manjimal v. Firm Goverdhandas Vishindas Ratanchand, 47 Ind App 124 : AIR 1920 PC 86 and Abdul Rahman v. D.K. Cassim and Sons, 60 Ind App 76 : AIR 1933 PC 58 and the authorities of the English Courts upon which these pronouncements were based, it has been held by this Court that the test for determining the finality of an order is, whether the judgment or order finally disposed of the rights of the parties. To quote the language of Sir George Lowndes in 60 Ind App 76 : AIR 1933 PC 58 :

'the finality must be a finality in relation to the suit. If after the order the suit is still a live suit in which the rights of the parties have still to be determined, no appeal lies against it.'

The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one, but it the suit is still left alive and has got to be tried in the ordinary way, no finality could attach to the order.'

These observations apply with equal force in the construction of the expression 'final order' as used in Article 133. In the decision of the Supreme Court relied on by the learned counsel for the opponent No. 1, namely, AIR 1951 SC 794, it has been observed that an order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding and that if after the order, the civil proceeding still remains to be tried and the rights in dispute between the parties have to be determined, the order is not a final order within the meaning of Article 133. The above cases no doubt dealt with the question of the finality of an order passed by the High Court in an appeal arising out of the original proceedings in a subordinate court. But the test deductble from those decisions for determining the finality of an order is 'what is the effect of the order on the suit or original proceeding in which it is made'. If its effect is to put an end to the suit or original proceeding, so far as the court or tribunal before which the original proceeding is pending is concerned, then the order is a final order.

Judged by this test, there can be no doubt that the order, sought to be appealed from is a final order. That order finally disposed of the original proceedings in this court under Article 226 of the Constitution, and put an end to those proceedings. It is quite true that the effect of that order was to quash the decision of the Election Tribunal on the question, of the effect of absence of an affidavit as required by the proviso to Section 83(1) of the Act on the allegations of corrupt practices contained in the election petition, and the Tribunal has now to decide the matter again in the light of the said order. But for that reason, the order passed by us, issuing a writ of certiorari quashing the determination of the Election Tribunal, cannot be likened to an order of remand made by an appellate court. The quashing of the decision of the Tribunal no doubt leads to the re-hearing of the matter of the effect of the petitioner's failure to file an affidavit as required by the proviso to Section 83(1) on the allegations of corrupt practices made in the election petition. But this is a consequence of the quashing of the Tribunal's order. The Tribunal has no option in the matter but to consider the question afresh and to come to the right decision thereon. It is its statutory duty to do so. While quashing the determination of the Tribunal, we no doubt directed it to determine in the light of our order sought to be appealed from the effect of the petitioner's failure to file an affidavit as required by the proviso to Section 83(1) on the allegations of corrupt practices made by him in the election petition. But even if we had not given any such direction, yet the Election Tribunal would have been required to do its statutory duty and rehear the matter.

14. It seems to us that the question of the finality of our order dated the 15th April 1964 for purposes of Article 133 is really concluded by the decision of the Supreme Court in AIR 1952 SC 12. In that case, Government of Orissa passed an order cancelling the temporary permits for the working of some mines given to Madan Gopal Rungta and directed him to remove his assets appertaining to the mines within a fortnight. Madan Gopal then filed an application under Article 266 in the High Court of Orissa for the issue of a writ of mandamus. The High Court declined to investigate and pronounce on the rights of the parties and expressly kept the determination thereof in abeyance in the suit proposed to be filed by Madan Gopal, but held that it was necessary to protect Madan Gopal against irreparable and irremediable loss of possession of mining leases till the filing of a suit after the period of the expiry of notice under Section 80 C. P. C. The High Court, therefore, passed an order under Aft. 225 directing that till three months from the date of that order or one week after the institution of the contemplated suit by Madan Gopal, whichever was earlier, the Orissa Government should refrain from disturbing Madan Gopal's possession over the mining areas in question and that thereafter the order of the High Court would cease to have effect. The matter then went up to the Supreme Court on art appeal by the State of Orissa.

Before the Supreme Court, a preliminary objection was raised about the maintainability of the appeal on the ground that no final order had been passed by the High Court on the petition under Article 226. This objection was overruled by the Supreme Court by observing that the order passed by the Orissa High Court containing directions in the nature or interim relief completely and finally disposed of the petition under Article 226 and nothing further remained to be done in respect of that petition, and that, therefore, the order passed by the Orissa High Court was a final order. The decision of the Supreme Court in Madan Gopal's case, AIR 1952 SC 12 (supra) shows that the finality of an order under Article 226 must be determined on the test whether the order completely and finally disposed of the petition under Article 226. In view of this decision of the Supreme Court, it is difficult to uphold the contention of the opponent No. 1 that the order sought to be appealed against is not a final order.

15. A reference may also be made to a recent Full Bench decision of the Madras High Court in Southern Roadways (P) Ltd. v. P.M. Veeraswami, AIR 1964 Mad 194, where the Full Bench considered the question-

'Whether an order passed, either granting or refusingto grant a writ applied for under Article 266, which has theeffect of either reviving or leaving the controversy beforethe inferior tribunal for adjudication, can be regarded asa judgment or final order under Article 133 of the Constitution?'

The Full Bench answered the question by saying that proceedings under Article 226 are original in nature and must be distinguished from proceedings of the High Court in appellate jurisdiction; that the merits of the controversy in proceedings under Article 226 cannot be equated to the controversy regarding the rights or privileges asserted or claimed before the inferior tribunal whose order is sought to be quashed in those proceedings; and that the finality of an order under Article 226 cannot be made to depend on the revival or pendency or otherwise of the controversy before the Tribunal and an order finally disposing of art application under Article 226 cannot be regarded as any the less a final order because certain disputes still remain outstanding between the parties before the statutory authority against whom the writ is sought. The decision of the Madras High Court fully supports the view we have taken.

16. Before us, Shri Tiwari, learned counsel for the petitioner, stated that the order sought to be appealed from was 2 final order, also in the sense that in essence it put an end to the proceedings before the Tribunal. It was said that the petitioner's election petition was founded mainly on allegations of corrupt practices, and the result of the order passed by us on 15th April 1964 was that in the light of that order the Tribunal would now pass a formal order striking out the allegations and dismissing the election petition. If, as stated by the learned counsel for the petitioner, after cur decision dated the 15th April 1964 all that the Tribunal has to do now is to pass a formal order dismissing the election petition, then no doubt our order would be a final order even with reference to the proceedings before the election Tribunal. But, as we have endeavoured to point out earlier, the finality of the order under Article 226 must be determined solely on the test whether the order finally and completely disposed of the proceedings under Article 226. That it did, cannot be doubted,

17. For the foregoing reasons, our conclusion is that the order passed by us in proceedings under Article 226 was a final order in civil proceedings and the case raises a substantial question of law as to the construction of the proviso to Section 83(1) of the Act and Rule 94-A of the Rules. The petitioner is, therefore, entitled to get a certificate for appeal to the Supreme Court against our decision dated the 15th April 1964 in Miscellaneous Petition No. 90 of 1964. Let a certificate be issued to him accordingly. In the circumstances of the case, we leave the parties to bear their own costs of this petition.


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