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Raja Bahadur Kishore Chandra Deo Bhanj Vs. Raghunath Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberS.C. Appeal No. 15 of 1958
Judge
Reported inAIR1960Ori1
ActsConstitution of India - Articles 133, 133(1) and 329; Representation of the People Act, 1951 - Sections 98, 99, 116A and 123(7)
AppellantRaja Bahadur Kishore Chandra Deo Bhanj
RespondentRaghunath Misra and anr.
Appellant AdvocateB.K. Pal and ;J.K. Mohanty, Advs.
Respondent AdvocateH. Mohapatra and ;R.N. Misra, Advs.
Cases ReferredIn Tennekoon v. Duraisamy
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....g.c. das, j.1. this is an application under articles 132 and 133 of the constitution for leave to appeal to the supreme court against an order of this court in miscellaneous appeal no. 194 of 1957 declaring the election of the petitioner to the orissa legislative assembly void. at the outset mr. pal, counsel for the petitioner, conceded that article 132 of the constitution would not apply to this application, since it does not involve any question of interpretation of the constitution. his sole contention was that he is entitled to leave under article 133(1)(c) of the constitution, this being a fit case for appeal to the supreme court. mr. h. mohapatra, learned counsel appearing for the respondent, urged that an application under article 133 is not maintainable in the present context.his.....
Judgment:

G.C. Das, J.

1. This is an application under Articles 132 and 133 of the Constitution for leave to appeal to the Supreme Court against an order of this Court in Miscellaneous Appeal No. 194 of 1957 declaring the election of the petitioner to the Orissa Legislative Assembly void. At the outset Mr. Pal, counsel for the petitioner, conceded that Article 132 of the Constitution would not apply to this application, since it does not involve any question of interpretation of the Constitution. His sole contention was that he is entitled to leave under Article 133(1)(c) of the Constitution, this being a fit case for appeal to the Supreme Court. Mr. H. Mohapatra, learned counsel appearing for the respondent, urged that an application under Article 133 is not maintainable in the present context.

His whole argument was that Article 329(b) lays down a bar to interference by courts in electoral matters. Article 329 begins with the words: 'Notwithstanding anything in this Constitution.......' and Cl. (b) reads as follows:

'(b) No election to either House of Parliament Or to the House or either House of the Legislature of a State shall be called in question except by , an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.'

What really is prohibited by this provision is the initiation of the proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided by any law made by the appropriate Legislature: (Vide Hari Vishnu v. Ahmad Ishaque, (S) AIR 1955 S.C. 233). The Parliament accordingly enacted the Representation of the People Act, 1950 (Act 43 of 1950) providing a machinery to challenge an election to either House of Parliament or to the House or either House of the Legislature of a State by an election petition.

Section 116A of the said Act provides for appeals against orders of election Tribunals. According to that section an appeal would 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. Along with the powers, jurisdiction and authority of the High Court, it also lays down the procedure as to how the appeal has to be dealt with by that Court. Sub-section (2) of Section 116A lays down that the High Court shall, subject to the provisions of the Act, have the same powers, jurisdiction and authority, and follow the same procedure, with respect to an appeal under Chapter IVA, as if the appeal were an appeal frorm an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction.

It is under this provision that Miscellaneous Appeal No. 194 of 1957 against the judgment of the Election Tribunal, Puri, was filed and was dealt with by this Court. Now, Article 133 of the Constitution states inter alia that an appeal shall lie to the Supreme Court from any judgment, decree or. final order in a civil proceeding of a High Court in the territory of India, if the High Court certifies that the case is a fit one for appeal to the Supreme Court. Therefore, the sole question for consideration is whether the impugned order passed by this Court is a final order in a civil proceeding.

Mr. Mohapatra contended that for the expression 'civil proceeding' one has got to look to the? provisions in Article 132 where it is stated that are appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court 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 of law as to the interpretation of the Constitution. (The underlinings (here into * ') are mine). While dealing with the appellate powers of the Supreme Court, the framers of the Constitution have divided it into three parts, viz., (1) appeals involving substantial questions of law as to the interpretation of the Constitution (Article 132), (2) appeals with regard to civil matters (Article 133); and (3) appeals with regard to criminal matters (Article 134).

Besides, the non-obstante Article 136 gives the Supreme Court a discretionary power to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter, passed or made by any court or Tribunal in the territory of India. We are not at present concerned with Article 134 which deals with the appellate jurisdiction of the Supreme Court in regard to criminal matters. We are solely concerned with Article 133 in the present case. By virtue of the provision in Sub-section (2) of Section 116A of the Representation of People Act as stated earlier, the High Court shall have the same powers, jurisdiction and authority and follow the same procedure with regard to appeals against orders of Election Tribunals as if the appeal were an appeal from an original decree passed by a civil Court situated within the local limits of the civil appellate jurisdiction, of that Court.

Thus, the Legislature by enacting the foregoing section intended the election Tribunals to be civil courts for purposes of appeal against their orders, and the High Court to follow the same procedure as if it were an appeal from an original decree passed by a civil court. Thus, there is no doubt that the final order passed by this Court is an order passed in a civil proceeding of this Court Accordingly, ft satisfes the condition as laid down under Article 133(1) of the Constitution.

If the argument of Mr. Mohapatra regarding Article 329(b) is accepted, then it would also bar the jurisdiction of the Supreme Court under Article 136. The identical point was raised in the case of Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520. In that case a preliminary point was raised that Article 329(b) ousts the jurisdiction of all ordinary courts in election disputes Repelling that contention their Lordships of tbe Supreme Court held that:

'The non-obstante clause with which Article 329 of the Constitution begins and upon which the respondent's counsel lays so much stress debars us, as it debars any other court in the land to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the Election Tribunal alone that can decide such disputes, and the proceeding has to be initiated by an election petition and in such manner, as may be provided by a statute. But once that Tribunal has made any determination or adjudication on the matter, the powers of this court to interfere by way of special leave can always be exercised.' (See p. 522).

In this view of the law, Article 329(b) would not oust the jurisdiction of this Court under Article 133. The substantial question of law involved in this case is the true interpretation of Clause (f) of Sub-section (7) of section 123 of the Representation of People Act. We are satisfied that there is an important question of law involved in this case. Mr. Mohapatra also referred us to Section 116B of the Representation of the People Act which lays down that the decision of the High Court on appeal is final; and there being no specific provision for appeal to the Supreme Court, this Court is incompetent to grant leave.

Doubtless it is final as far as that particular statute is concerned (Vide AIR 1924 P.C. 94) (Sic). But once it is held that the proceeding is a civil proceeding of the High Court and the final order is passed in that proceeding, the provision of Article 133 is clearly attracted. Thus, all the contentions raised by Mr. Mohapatra having failed the appellant is entitled to leave to appeal under Article 133(1)(c) of the Constitution and we certify that the case is a fit one for appeal to the Supreme Court.

2. Mr. Pal filed an application for stay of the operation of this Court's order. The Election Commission has in the meantime notified the judgment of this Court in an extra-ordinary issue of the Orissa Gazette, dated June 7, 1958. In view of that notification the application for stay has now become infructuous, and hence it is not pressed. The stay application is accordingly dismissed.

Barman, J.

3. I agreed with my learned brother Das J. granting leave to appeal to Supreme Court by his judgment dictated in Court on July 16, 1958, as soon as the hearing was concluded; but I wished to give my reasons later on, in view of the important points of law involved For further clarification, I desired a rehearing of the matter; and accordingly it was placed in the list and reheard by us on July 21, 1958.

4. I have read with great care the reasons given by my learned brother Das J. while granting certificate under Article 133(1)(c) of the Constitution. On merits, I agree with my learned brother that it is a fit case for grant of leave to appeal to the Supreme Court. But, with great respect, I have grave doubts, which I entertain, regarding the maintainability of the application on the ground that the decision of this Court, against which leave is prayed for, did not (sic) arise out of a civil proceeding as contemplated under Article 133 of the Constitution. I hesitated and was reluctant to grant certificate. However, I give my own reasons for my views, both on merits and the maintainability of the application for leave, as follows. Incidentally, the prayer for stay was not pressed and accordingly the application for stay is dismissed.

5. First, as regards merits, the judgment against which leave is prayed for, held that a Sarpanch though not a Government servant appointed by the Government, yet is a person in the service of the Government and is removable by the Government and as such a Sarpanch, under the Orissa Crania Panchayat Act, falls within, section 123(7)(f) of the Representation of the People Act and as the services of Sarpanches were admittedly made use of by the petitioner, he is guilty of corrupt practice contemplated under Section 123(7) of the Act and that the case falls under Sub-clause (b) of clause (1) of section 100.

While holding the petitioner guilty of corrupt practice under Section 123(7), this Court also held that the corrupt practice found was mostly based on interpretation of law contained in clause (7) of section 123 and that there are decisions in support of both the views and that there are decisions which support the view that the Sarpanches are not persons falling under Sub-clause (f) of Clause (7) of section 123 of the Representation of the People Act. This point of law is of great public importance in view of a large number of Sarpanches who are affected by this judgment.

I have carefully gone through the judgment and I am. satisfied that the case is a fit one for appeal to the Supreme Court and the appeal also involves a substantial question of law as aforesaid and therefore certificate should be granted if the application is maintainable in law.

6. This leads me to the consideration of the question as to maintainability of the application. The points urged by Mr. Harihar Mohapatra, learned Counsel for the respondent opposing this application, were shortly these:

(a) The judgment, against which leave is prayed for, was not a judgment in a 'civil proceeding' within the meaning of Article 133 of the Constitution of India. Therefore, the application under Article 133 is not maintainable;

(b) Article 329(b) is a bar to the proposed appeal to the Supreme Court from the judgment in question.

7. For convenience, I propose to deal with the second point, first on Article 329 of the Constitution. Mr. Harihar Mohapatra's contention was that no election can be called in question, except by an election petition and in such manner as may be provided by law made by the appropriate Legislature. In the present case, however, the petitioner, who was the returned candidate and whose election was declared void by the High Court, is proposing to file this appeal to the Supreme Court not by way of challenging or calling in question his own election but with a view to maintain his election.

This is a distinguishing feature which seems to me to be a complete answer to Mr. Harihar Mohapatra's argument on Article 329. In my view, on the facts and in the circumstances of the present case, this-being the petitioner's proposed appeal to maintain the election and not to call in question the election,-stands on a different footing altogether. I find support, in holding this view in a passage from a judgment of 'the Supreme Court in (S) AIR 1955 SC 233, where their Lordships held as follows:

'The view that Article 329(b) is limited in its operation to initiation of proceedings for setting aside an election .... ..... .... is considerablyreinforced, when the question is considered with reference to a candidate, whose election has been set aside by the Tribunal. If he applies under Article 226 for a writ to set aside the order of the Tribunal, he cannot in any sense be said to call in question the election; on the other hand, he seeks to maintain it. His application could not therefore, be barred by Article 329(b). And if the contention of the first respondent is well-founded, the result will be that proceedings under Article 226 will be competent in one event and not in another and at the instance of one party and not the other Learned counsel for the first respondent was unable to give any reason why this differentiation should be made. We cannot accept a construction, which leads to results so anomalous.

The case in which the Supreme Court made the above observations was a case arising out of an application under Article 226 of the Constitution for a writ to set aside the order of the Tribunal declaring the election void. In other words, the application was for maintaining the election and not by way of culling in question the election. It was in that context that the Supreme Court decided that when proceedings were by way of maintaining the election and not calling in question the election, Article 329(b) could be no bar.

Therefore, on the facts of the present case also, Article 329(b) cannot be any bar.

8. Then we come to the point whether or not it arose out of a 'civil proceeding' as contemplated under Article 133 of the Constitution. Simply because a proceeding is not a criminal case, it cannot be taken to be a civil proceeding as contemplated under Article 133. The Constitution contemplates 'other proceeding' besides civil and criminal. The proceeding in enforcement of a civil right is a civil proceeding. In Strpud's Judicial Dictionary the word 'civil proceeding' has been defined as-

'A process for the recovery of individual right or redress of individual wrong, inclusive in its proper legal sense, all suits by the Crown.'

So the whole question is whether the proceedings arising out of disputes regarding elections were in enforcement of or for recovery of individual right or redress of individual wrong. For this, we have to examine the nature of the right of an elector who presented the election petition, calling in question the election of the returned candidate.

9. Let us then consider the scheme of the Representation of the People Act, 1951 fas amended) which gives such right and lays down the nature of procedure for enforcement of that light. Part VI covering sections 79-122 deals with 'Disputes 'Regarding Elections'. Part VII covering Sections 123-138 deals with 'Corrupt Practices and Electoral Offences'. Part VIII covering sections 139-145 deals with 'Disqualifications'. For the present purpose, we are concerned with these thrre Parts of the Act. Now coming to the sections, let us examine the nature of some of the relevant provisions.

Section 81 provides that any elector can present a petition calling in question any election.

It is not necessary that the petitioner should himself he a candidate at such election or be, in any way otherwise interested, except as an elector of the constituency. The petitioner is somewhat like a complainant in a criminal case mating charges of corruct practices against the returned candidate whose election is being called in question.

Section 84 provides for relieff that may he claimed by the petitioner in asking for relief.

The petitioner in an election dispute, has nocause of action against the candidate whose election is being called in question, in the same sense as in a suit or any other civil proceeding.

Section 98 provides that at the conclusion of the trial, the Tribunal shall make an order dismissing or declaring an election void etc. as the case may be.

Section 99 provides for other orders to be made by the Tribunal while making order under section 98.

Their duty does not end by making an order under Section 98. Where allegations are made about corrupt practice, it is the duty of the Tribunal not only to enquire into these allegations but also to complete the enquiry by recording findings about them whether corrupt practice has been committed, nature of corrupt practice, the names of all persons who have been guilty of corrupt practice and the nature of that practice. It should be noted that it is from an order under sections 98 and 99 that an appeal shall lie to the High Court under section 116A.

Therefore, the nature of the proceeding in appeal under section 116A is to be judged from the nature of enquiry under Section 99 over which the High Court sits in appeal. The scope of proceeding under section 99 shows that it is not of civil nature -- it does not in giving findings as to corrupt practice adjudicate on any civil right--its primary consideration being the purity of the election, it proceeds to enquire and find out the names of persons guilty of corrupt practice presumably to be dealt with either under the penal provisions of the Representation of the People Act or under chapter IXA of the Indian Penal Code. It seems as if the function of the Tribunal under section 99 is as of a committing Magistrate in a criminal trial. It is over such an order under section 99 that the High Court sits in appeal under section 116A of the Act.

Section 100-- provides as to various grounds on which an election can be declared void.

One of the main grounds for declaring, an election void is corrupt practice as mentioned in the section. It is quite clear from the provisions that the purity of the election is the primary consideration.

Section 116A -- provides for appeals against orders of Election Tribunals under Section 98 or Section 99. It appears that Sub-section (2) of Section 116A provides for the procedure to be followed by the High Court with respect to an appeal as if the appeal were an appeal from an original decree passed by a Civil Court. It is a deeming provision with all its legal implications.

Section 116B -- provides for finality of orders and decisions of the High Court -- that the decision of the High Court shall be final and conclusive.

Section 123 -- sets cut the various items of corrupt practices, including bribery; undue influence; systematic appeal on communal and religious grounds; publication of any false statement in relation to the personal character or conduct of any candidate; hiring or procuring of any vehicle or vessel by a candidate for the conveyance of any elector; etc.

All these various items of corrupt practices cannot be said to be of civil nature. They are mostly offences of criminal nature for which the Indian Penal Code also makes provisions.

Section 131 -- provides for penalty for disorderly conduct in polling stations. Sub-section (4) authorises any police officer to take such steps and use such force as may be reasonably necessary for preventing such disorderly conduct.

Section 132 -- provides for penalty for misconduct at the polling station. It provides that for an offence under this section, a person shallbe punishable with imprisonment extending to three months or with fine or with both and that an offence punishable under this section shall be cognizable.

Section 133 -- provides for penalty for illegal hiring or procuring of conveyances at elections. A person guilty of such corrupt practice as specified in Section 123(5) at or in connection with an election shall be punishable with fine which may extend to two hundred and fifty rupees.

Section 135 -- makes removal of ballot papers from polling station to be an offence punishable with imprisonment for a term which may extend to one year or with fine up to Rs. 500/- or both.

Section 136 -- provides for other offences and penalties for fraudulent conduct on the part of any person as fully provided in the said section. Any person guilty of an electoral offence under Section 136 mentioned in Sub-section 2(a) of the said section shall be punishable with imprisonment for a term which may extend to two years or fine or both. Any person other than those mentioned in Section 136(2)(a) shall be punishable with imprisonment for six months or with fine or both.

Section 138 -- amends the Code of Criminal Procedure (Act 5 of 1898) making suitable provisions in appropriate places regarding offences relating to elections under Section 171F of the Indian Penal Code (punishment for undue influence or personation at an election), and Section 171G of the Indian Penal Code (false statement in connection with an election).

Section 139 -- makes provisions as to which offences shall entail disqualification for membership of the Legislature. It provides that the of fence of bribery (Sec. 171E of the Indian Penal Code), offence of undue influence or personation at an election (section 171F of the Indian Penal Code), both the offences punishable with imprisonment under the Indian Penal Code and offences punishable under Section 135 or Section 136(2)(a) of this Act shall entail disqualification for membership of the Legislature. It provides that the period of such disqualification shall be six years from the date of the conviction for the offence.

Section 140 -- provides that corrupt practices specified in Section 123 shall entail disqualification for membership of the legislature for a period of six years from the date on which the finding of the Election Tribunal as to such corrupt practice takes effect under the Act.

Section 141 -- is a provision for disqualification arising out of conviction for corrupt practices. If any person is convicted of an offence punishable with imprisonment under Section 171E of the Indian Penal Code (bribery) or Section 171F of the Indian Penal Code (undue influence or personation at an election) or of an offence punishable under Section 133 or Section 136(2)(a) of the Act or, is upon the trial of an election petition under Part VI (covering Sections 79-119A) found guilty of any corrupt practice. lie shall, for a period of six years from the date of conviction or from the date on which such finding takes effect, be disqualified i'or voting at any election.

10. It was in the context and background of the above scheme of the Representation of the People Act, 1951 (as amended) that their Lordships of the Supreme Court observed that theseproceedings under the Act are of quasi-criminal nature. An election enquiry is of quasi-criminal nature, inasmuch as its findings on corrupt practices have penal effect. In Harish Chandra Bajpai v. Triloki Singh (S) AIR 1957 S.C 444 : 12 E.L.R. 461, 465, 483 the Supreme Court has clearly laid down that charges of corrupt practice are quasi-criminal in nature. As regards the nature of the proceedings, the Supreme Court in a latest decision in K. Kamaraja Nadar v. Kunju Thevar and others 1958 S.C.J. 680 at p. 687 : (AIR 1958 SC 687 at p. 693) held as follows :

'These provisions go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power.'

In an earlier decision in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 the Supreme Court expressing the same view, observed as follows :

'The general rule is well settled that the statutory requirements of election law must be strictly observed, and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law, and that the Court possesses no common law power, xx xx xx x It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices.'

From the above, it is quite clear that purity of the election is the primary consideration. If an election petition succeeds, then sometimes (not always), as a consequence, certain benefits may accrue, under certain conditions, to certain persons, if declared elected, in place of the returned candidate. But this is only incidental. For instance, in case of a conviction on a criminal prosecution for theft, stolen goods, if recovered, are restored to the owner of the goods -- conviction of the accused is the primary consideration, the restoration of the goods to the owner is only incidental or consequential.

11. Having regard to the scheme of the election law as laid down in the Act, an ejection enquiry has, no doubt, certain feature not in common with an ordinary judicial enquiry. The conduct of the trial of an election petition is not to be left to the caprice of the parties and it is the concern of the Tribunal to purge elections of all kinds of corrupt practices and the impurities, so as to guard the political rights of citizens and the constituent cies. In Sreenivasan v. Election Tribunal, 11: E.L.R. 278 at pp. 293-294, a case decided by the Madras High Court, the difference between an election enquiry and an ordinary civil suit was brought out in the following words :

'An election petition is not a matter in which the only persons interested are candidates who strove against each other at elections. The public also arc substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process. The citizens at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices.

In a civil action the only persons who are interested are the individuals arrayed as plaintiffs or defendants, but that is not so in an election petition. That is made clear from a consideration of the provisions made in the Act for the withdrawal of election petition ..... ... In addition toall this a specific duty is imposed on the Tribunal to find whether any corrupt or illegal practice has been practised at the election and if so by whom, In view of the manifest difference between a civil suit and an election petition it will not be right, it seems to me, to press the analogy founded on the basis of a civil suit very far when we have to deal with an election petition.'

In the Tipperary case (1875) 3 O' M and H. 19 at p. 25, Morris J. expressed himself as follows :

'It was strongly urged that a petition is a mere cau.se in this Court, and that as an ordinary cause could not be instituted against a dead person, by analogy a petition could not be lodged seeking to set aside the return of a deceased person. I consider this is a fallacious analogy, because a petition is not a suit between two persons, hut is a proceeding in which the constituency itself is the principal party interested.'

The above observations were referred to and supported in a recent decision of the Supreme Court in Kamaraja Nadar case 1958 S.C.J. 680 at p. 688 : (AIR 1958 SC 687 at p. 693).

12. The right of an elector is not a civil right. As regards the nature of the right of an elector, the Supreme Court in Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 S.C.R. 218 at p. 220 : (AIR 1952 SC 64 at pp. 69 and 71) held as follows :

'The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. Strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.

Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of.'

13. In a recent decision of this Court in Jagannath Agarwalla v. State of Orissa, ILR (1957) Cut 27: (S) AIR 1957 Orissa 42 (Mohapatra and Rao JT.) Mr. Justice Mohapatra, in his judgment, threw light on this aspect of the matter and made certain valuable observations which enunciated the underlying principles and gave a guidance for correct decision on this point. The matter, before him, arose out of a claim against the State of Mayurbhanj before the Claims Officer who recommended that the claimant was entitled to a sum over one lakh of rupees.

The said claim was rejected by the Administrator. Thereupon the claimant moved the High Court under Article 226 of the Constitution. On these facts, in short, it was held that this was purely a claim in assertion of a civil right and the proceeding in enforcement of the civil right was a civil proceeding. I am convinced of the soundness of these principles laid down by Mohapatra J. on which this question is to be considered. His judgment, in brief, gives us a simple test by which the question --whether or not a particular proceeding is a civil proceeding -- can be decided. In Tennekoon v. Duraisamy (1958) 2 W.L.R. 994 (1005-9) the Privy Council, on appeal from Ceylon, while interpreting the words 'civil suits or actions' in Section 3 of the Appeals (Privy Council) Ordinance, made certain observations on principles, in the particular context of certain statutes applicable to Ceylon.

14. Mr. Harihar Mohapatra mentioned to us about all unreported decision of a Division Bench of the Andhra Pradesh High Court in the case of V. V Giri. The case has not yet been reported in any of the law journals. However, from sources so far available to us, it appears that Mr. V. V. Giri made a petition for certificate under Articles 132 and 133 of the Constitution, seeking leave to appeal to the Supreme Court against the judgment of the High Court, setting aside the order of the Election Tribunal, declaring Mr. Giri elected to the Lok Sabha from Parvathipuram double-member constituency. The Andhra Pradesh High Court (Manohar Prasad and Ansari JJ.) rejected the said application under Article 133 of the Constitution as, according to them, it was not a case arising in a civil proceeding.

It appears that the High Court accepted the following reasoning : There is no definition of 'civil proceeding' in the Constitution. The expression used in Article 133(1) is 'civil proceeding' and not a 'civil case or matter'. Ordinarily civil proceedings are proceedings relating to the right to property, status of a person or right to office. 'Proceedings' mean the form in which action was brought. Right to election was a creature of the statute. It was not a right to property or status. It was not a right vested in one person with the duty on the other to obey the right. It was also a right which could not be enforced in a court of law. When it was a right that could not be enforced by a court of law, it could not be deemed to be a civil right. Therefore, it was not a case of civil nature.

15. It was contended, on behalf of the petitioner before us, that by reason of the provision in Section 116A of the Act that the High Court shall have the same powers, jurisdiction and authority and follow the same procedure with respect to an appeal under Chapter IVA of the Act as if the appeal were an appeal from an original decree passed by a Civil Court, it must be a civil proceeding. There is fallacy in this argument. Section 116A(2), with the words 'as if, is a deeming provision and creates a legal fiction. The effect of such a legal fiction, however, is that a position, which otherwise would not obtain, is deemed to obtain under certain circumstances.

In the present case, under the deeming provision of Section 116A(2), the appeal is to be deemed to be one from the original decree passed bv a Civil Court, which, in fact, it was not. Because, in fact, it was not, therefore it had to be so deemed. The fact that the High Court has to follow civil procedure, as provided in Section 116A, does not make the proceeding a civil one. The 'proceeding' relates to the nature of the matter and 'procedure' relates to the mode in which the matter is to be tried and decided. As Mohapatra J. held in (S) AIR 1957 Orissa 42 referred to above, the proceeding which is in enforcement of the civil right is a civil proceeding.

16. In the present case before us, I was inclined to express the view that the judgment in appeal was not in a civil proceeding. However, the contrary view held by my learned brother Das J. is also plausible. But the question is of great importance in view of the large number of election appeals under Section 116A of the Representation of the People Act, which have been disposed of by the various High Courts in India. I can only express a wish that this controversy be finally set at rest by a decision of the Hon'ble Supreme Court.'

17. However, in the present case, I do not propose to express disagreement with my learned brother's view granting the certificate.

18. The result, therefore, is that leave to appeal to the Supreme Court is granted.


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