MANSUKHLAL PRABHUDAS BHOGAYATA Vs. JAGJIVANDAS JAMNADAS TANNA

JUDGEMENT

(1.) Letters Patent Appeal No. 1 has been filed against the order of our learned Brother N. H. Bhatt J. in Election Application No. 11 of 1981 in the Election Application No. 7 of 1981 in Election Petition No. 4 of 1980. The appeal arises under the following circumstances: Respondents Nos. 1 and 2 herein have filed Election Petition No. 4 of 1980 challenging the election of respondent No. 3 from Jamkhambhalia Constituency to Gujarat State Legislative Assembly during the elections held in May 1980 One of the grounds of challenge is that there was what is known as booth capturing by the supporters of the successful candidate the third respondent and in some of the booths bogus voting was indulged in by keeping out genuine voters and there was impersonation at those booths. In connection with these allegations of corrupt practice respondents No. 1 and 2 herein filed a summons for directions on 20/01/1981 seeking directions in the petition for the production of the record and inspection of the ballot papers and other materials which were kept sealed at the time of the election from Jamkhambhalia Constituency. The record which was sought to be brought in this manner and inspected was in connection with Polling Booths Nos. 98 99 and 87 and inspection that was sought for was of the used ballot papers counter-foils of ballot papers unused ballot papers marked copies of the electoral rolls and names and authorisations of polling agents of different candidates at these three booths. On 22/01/1981 N. H. Bhatt J. who was hearing the election petition passed the following order: Prayers A to F granted. C. A. disposed of. The appellant before us in this Letters Patent Appeal was original respondent No. 5 and his grievance was that neither he nor his advocate had received any intimation regarding the application for the inspection of election records. Neither he nor his advocate was aware of the filing of Election Application No. 7 of 1981. Thereupon directions were sought from the learned Single Judge. No copy of the application was served upon him or his advocate and the name of the appellants advocate was not shown on the Board when Election Application No. 7 of 1981 was notified for bearing. The grievance was made in this connection and Election Application No. 11 of 1981 was taken out for the review of the order passed by the learned Single Judge. That review was applied for by the successful candidate respondent No. 3 herein and even in those proceedings of Election Application No. 11 of 1981 neither the present appellant nor his advocate was served with any copy of the application and it was only subsequently that the appellant came to know about the orders passed in Election Application No. 7 of 1981 and Election Application No. 11 of 1981. In Election Application No. 11 of 1981 N. H. Bhatt J. passed a speaking order on 23/02/1981 dismissing the application but he adjourned further inspection till 2/03/1981 to enable the third respondent to have further recourse in accordance with law. The present third respondent the successful candidate has filed Letters Patent Appeal No. 2 of 1981 being the appeal against the order passed in Election Application No. 11 of 1981 and Letters Patent Appeal No. 3 of 1981 has also been filed by the successful candidate against the order passed in Election Application No. 7 of 1981 when only a short order stating that summons so mentioned in terms of Prayers A to F was granted by the learned Single Judge. In all these three appeals various contentions have been urged on behalf of the appellants concerned but Mr. J. C. Bhatt learned advocate appearing for the original petitioners is Election Petition No. 4 of 1980 has raised a preliminary objection in each of these three appeals regarding the maintainability of the Letters Patent Appeal. The contention which Mr. Bhatt has urged is that the orders passed by N. H. Bhatt J allowing inspection of certain documents were not judgment within the meaning of the word judgment in Clause 15 of the Letters Patent and since it was not a judgment no appeal can lie against the orders passed by N. H. Bhatt J. in Election Application No. 7 of 1981 and Election Application No. 11 of 1981. In this connection Mr. Bhatt has relied on the decision of this High Court in Indulal Kanaiyalal Yagnik v. Prasannadas D. Patwari and Others A.I.R. 1972 Guj. 92: (1972) 13 G.L.R. 269. On the other hand an effort has been made by Mr. Raval appearing for the successful candidate Himatbhai Rambhai Madam respondent No. 3 in Letters Patent Appeal No. 1 of 1981 and the appellant in Letters Patent Appeals Nos. 2 and 3 of 1981 to show that the appeals are maintainable. The contention of Mr. Raval is that when inspection was granted without there being prima facie evidence before the Court regarding any of the corrupt practices alleged in the main election petition the right of the successful candidate was finally adjudicated upon and therefore the orders passed in Election Application No. 7 of 1981 and Election Application No. 11 of 1981 would amount to judgment within the meaning of Clause 15 of the Letters Patent. In Indulal v. Prasannadas (supra) the appeal under clause 15 of the Letters Patent was against the decision given by me sitting as a Single Judge on a preliminary issue in Election Petition No. 1 of 1971. 1 held on the preliminary issue that the election petition filed by the petitioner of that election petition was properly constituted and was not liable to be dismissed on account of non-joinder of one Vasudev Tripathi. The election petition was filed challenging the election of the successful candidate who was declared elected as a Member of the House of people from Ahmedabad City Constituency. The election was challenged on various grounds which included inter alia allegations of corrupt practice within the meaning of sub-secs. (2) and (3) of sec. 123 of the Representation of the People Act 1951 The appellant in the Letters Patent Appeal before the Division Bench contested the election petition and one of the contentions raised by him in an amended paragraph introduced in the written statement was that there were allegations of corrupt practice made in the petition against Vasudev Tripathi President of the City District Congress (Shashak) Committee and since he was one of the candidates validly nominated for the election though he withdrew his candidature on or before the date fixed for withdrawal of nomination papers he was a candidate within the meaning of sec. 79 (b) and hence a necessary party under sec. 82(b) and in his absence the petition was by reason of sec. 86 liable to be dismissed in limine on account of non-compliance with sec 82(b). This contention formed the subject matter of issue No. (2) before me in the election petition. Since this issue raised the question whether the petition was liable to be dismissed in limine under sec. 86 it was tried by me as a preliminary issue and I held for reasons given in a judgment delivered on 20/08/1971 that there were no allegations of corrupt practice against Vasudev Tripathi in the petition and it was therefore not necessary for the petitioner in the election petition to joint Vasudev Tripathi as respondent and non-joinder of Vasudev Tripathi did not render the petition liable to be dismissed under sec. 86. It was on this decision regarding the preliminary issue based on non-joinder of Vasudev Tripathi that the Letters Patent Appeal under Clause 15 of the Letters Patent was filed by Indulal Yagnik the successful candidate in that election. The Division Bench started with the classic definition of the word judgment given by Sir Richard Couch C. J. in Justices of the Peace for Calcutta v. Oriental Gas Company (1872) 8 Bengal Law Reports 433 and the definition is:

(2.) We are not concerned at the present stage with the merits of the case. Mr. Raval said that the Supreme Court has laid down in Ram Sevak Yadav v. Hussain Kamil Kidwai A.I.R. 1964 S.C. 1249 and subsequent cases that when the secrecy of the ballot is to be disturbed certain safeguards have to be followed and the safeguards are that there must be averments and particulars in the election petition itself regarding the alleged corrupt practice or the alleged acts of omission or commission on the part of the Returning Officer which would justify passing an order for giving inspection to the parties concerned of the sealed packets which were sealed in accordance with the provisions of the Representation of the People Act 1951 and the rules made thereunder to preserve the secrecy of the ballot. Mr. Raval further emphasized that the second condition which has been laid down by the Supreme Court for disturbing the secrecy of the ballot is that there must be prima facie evidence before the Election Tribunal or before the Election Judge hearing the election petition showing that there was sufficient prima facie evidence and grounds for disturbing the secrecy of the ballot. Mr. Raval has contended that in the instant case by passing the order without examining the necessary averments in the election petition and without any prima facie evidence in support of the allegation of booth-capturing etc. and forgeries committed on a large scale at the three booths question and further without and prima facie evidence in that behalf Bhatt J. has granted an inspection in this matter and therefore pro tanto the merits of the case have to that extent been decided so far as the application for inspection was concerned. Mr. Raval is right when he contends that the rights of the parties may not necessarily be in the main matter which is before the Court. The rights of the parties may be in a connected proceeding but there must be substantive determination of the rights of the parties. However in the instant case we find that in connection with Election Petition No. 4 of 1980 an ancillary proceeding was taken out namely Election Application No. 7 of 1981 and the ancillary proceeding was to pave the way for the progress of Election Petition No. 4 of 1980. In order to prove their case that forgery was committed and that impersonation was committed in any of these three booths of this particular constituency the proof of the allegations or part of the proof of the allegations could be found in the records which were sealed and unless inspection was taken of all or some those sealed documents preserving for the time being the secrecy of the ballot as far as possible and taking proper precautions to avoid identification of the voters proof of the fact whether forgery or impersonation was committed or not could not be had and it was for this limited purpose of paving the way for the determination of the substantive rights and liabilities which were under contest in the main election petition that inspection was given. When inspection was decided upon and after the inspection was granted the learned Single Judge would be able to proceed with the petition and determination of the substantive rights and liabilities for the adjudication of which the election petition was filed. In deciding this question of granting inspection N. H. Bhatt J. was not disposing of or deciding even partially any of the substantive rights in dispute in the main election petition or in any ancillary proceedings. It may be pointed out that the safeguards which are provided for preserving secrecy of the ballot are for the guidance of the Court and no substantive right of any of the contestant in the election petition can be said to be decided or determined when a particular view on the facts and circumstances of the particular case is taken by a Judge trying an election petition as to at what stage and upto what extent inspection from the sealed packets of the material sealed at the time of the election in question should be given to the parties before the Court. It is only when inspection is given that the further progress of the election petition for the determination of the substantive rights in main election petition can proceed further. In the passage which we have cited above the distinction between ancillary proceedings in which substantive rights of the parties are determined are instances of the type where application for setting aside an ex parte decree or an application for setting aside abatement or to excuse delay in filing an appeal are mentioned because determination of those matters one way or the other would ultimately affect the rights of the parties. If for example an application for setting aside abatement is granted the right of the other side to contend that the appeal has abated is determined. If an ex parte decree is set aside the parties who have benefitted by the ex parte decree can contend that their rights under the decree are decided upon. It is in these cases where proceedings are ancillary and affect the rights of the parties in the main matter that Courts have held that the substantive right of the parties even as regards the main petition are affected. The category in which ancillary proceedings could not amount to a judgment are for example cases of orders granting amendment and other orders of procedural character. In the instant case granting of inspection in accordance with law is a purely procedural matter and it may be pointed out that though the line of cases regarding secrecy of the ballot started with the decision of the Supreme Court in Ram Sevak Yadavs case A.I.R. 1964 S.C. 1249 (supra) there are other cases particularly the case of Shri Shashi Bhushan v. Prof Balraj Madhok & Others A.I.R. 1972 S.C. 1251 where the legal position. regarding secrecy of the ballot and in what circumstances it should be disturbed have been laid down by the Supreme Court. Therefore there cannot be said to be any substantive right of the parties determined merely because instructions for inspection with proper precaution which the learned Judge thought proper have been given in the instant case. In our view therefore the order passed in Election Application No. 7 of 1981 and Election Application No. 11 of 1981 were orders passed in ancillary proceedings dealing with procedural matters only and substantive rights of the parties were not determined in any manner whatsoever. There is no partial or final determination of any of the rights of the contesting parties in the present proceedings and therefore the orders passed by our learned Brother N. H. Bhatt J. in Election Application No. 7 of 1981 and Election Application No. 11 of 1981 cannot be said to amount to a judgment within the meaning of the word judgment in clause 15 of the Letters Patent.

(3.) there was an argument in the alternative at least so far as the appellant in Letters Patent Appeal No. 1 of 1981 is concerned that his right to oppose the application was finally decided but that is not a right which substantively determines any of the matters between the parties in controversy. It was a right to oppose at ancillary stage only and now that the original respondent No. 5 appellant in Letters Patent Appeal No. 1 of 1981 is fully cognizant of what is happening he will fight the matter on merits if he is so advised and try to satisfy the Court that there was no corrupt practice on the part of the successful candidate or whatever stand he wants to take up in that connection.