Bhupinder Singh vs State of Punjab and Others

R.P. Sethi and H.S. Bedi, JJ.—Aggrieved by the election of the petitioner as Sarpanch of Gram Panchayat village Chhotian, Tehsil Sunam, District Sangrur, respondent No. 2 presented an election petition with the competent authority alongwith an application for interim relief praying therein for restraining the petitioner from discharging his duties as Sarpanch. The application for the grant of interim relief was dismissed by the concerned authority with the result that respondent No. 2 filed an appeal before respondent No. 3 who vide order impugned in the petition (Annexure P-3) set aside the order of the authority conducting the election petition and held, "the election of respondent No. 1 as Sarpanch is illegal and void and therefore the appellant is entitled to the grant of temporary injunction as prayed for". The order of the appellate authority impugned in this petition is alleged to be without jurisdiction and contrary to the provisions of the law applicable in the case.

We have heard the learned counsel for the parties appearing in the case and have decided to dispose of this petition at the preliminary stage.

It is acknowledged position of law that a right of appeal is neither natural nor inherent right attached to the litigation but is the creation of statute. A right of appeal is a substantive right and cannot be termed to be a procedural matter. As the appeal is the creation of a statute, the nature and character of the right to appeal is always controlled by the provisions of the relevant statute. It is also settled that the parties cannot confer a right of appeal upon themselves in any matter either by agreement or by acquiescence. Inherent lack of jurisdiction to entertain the appeal cannot be permitted to be cured by the consent, waiver or acquiescence of the parties. The Supreme Court in Smt. Ganga Bai Vs. Vijay Kumar and Others, held:

"... There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one''s peril, bring a suit of one''s choice. It is no answer to a suit, however frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeall is quite the opposite. The right of appeal inheres in no one and therefore one appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."

A perusal of the Punjab Gram Panchayat Act, 1952 (hereinafter to be referred to as the ''Act'') would indicate that no appeal is provided against an interim order passed by the authority entertaining the election petition. Election Petitions are filed under Chapter IIA of the Act. Section 13B of the Act deals with election petitions. Section 13-D provides as to what should be the contents of such a petition. Section 13-E prescribes the procedure on receiving election petitions. Section 13-G deals with the procedure before the prescribed authority. Section 13-I specifies the powers of the prescribed authority to make order to either dismiss the election petition or set aside the election. Section 13-V of the Act provides that any party aggrieved by an order made by the prescribed authority u/s 13-N may appeal can be filed only if the election petition is dismissed or the election is set aside but not otherwise on any ground. The order passed by the competent authority refusing to grant interim injunction was not an order passed in terms of Section 13-N of the Act and that no appeal was maintainable. The Additional District Judge while passing the order (Annexure P/3) appears to have completely ignored the relevant provisions of the law and opted to pass an order which on the face of it is without jurisdiction.

It was contended on behalf of the petitioner that the competent authority hearing the election petition was not justified in dismissing the application for the grant of temporary injunction without assigning sufficient reasons. It is submitted that in the presence of Section 13-G of the Act, provisions of Order 39 of the Code of Civil Procedure, 1908, were applicable and the prescribed authority was under a legal obligation to pass an effective order so far as the grant of temporary injunction was concerned. Section 13-G of the Act provides that every election petition shall be tried by the prescribed authority, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits. Such a provision postulates the conduct of the proceedings in the election petition but does not confer any additional right upon the election petitioner to apply for the grant of temporary injunction. The provisions of Section 13-G of the Act are enabling provisions confined to the procedure and not dealing with the ancillary matters not directly connected with the procedure for the conduct of the election Petition. This court in ''Kundan Singh v. The Executive Magistrate First Class, Barnala,2 (1975) 77 PLR 661, held:

" That the operation of Sub-section(1) of Section 13-G is confined to the procedure applicable for the trial of a suit and not to any ancillary matter which does not directly relate to such procedure. Moreover, while defining the powers of the prescribed authority, Section 11(1) of the Act has scrupulously avoided to refer to Order 39 of the Code of Civil Procedure. An Election Tribunal is a specially constituted Court of limited jurisdiction and has no authority to pass any order outside those limits, in the absence of any specific provision to the contrary, an Election Tribunal has no inherent jurisdiction like that vested in an ordinary Civil Court. The first respondent (the prescribed authority) appears to me to have out-stepped the limits of his jurisdiction in granting the application for temporary injunction as no law has vested such a jurisdiction in him".

Similar views were expressed in Ramashwar Dayal v. Sub Divisional Officer,3 ILR 1961 (All) 298 and Kartar Singh v. S.D.M. Rampura Phul, 4 1981 P.L.J 202.

It follows therefore that the prescribed authority conducting the election petition under the Act has no jurisdiction to grant any interlocutory injunction to a petitioner which may amount to the expression of opinion having effect on the merits of the case. Accordingly, this petition is allowed by setting aside the order impugned (Annexure P/3) in this petition.