ORDER K.C. Agarwal, Ag. C.J.
1. Doubting the correctness of the decision given in election petition No. 1 of 1985* Ram Prakash Tripathi v. Smt. Sheela Dixit, a learned single judge has referred the following questions of law for decision by a larger bench:--
"(1) Whether substantial compliance of any mandatory provision of the law, especially of sub-section (3) of Sec. 81 of the Representation of the People Act shall be sufficient, or whether there should be literal compliance in order to save dismissal of the election petition under Sec. 86(1)?
(2) Whether it is necessary for compliance of the provisions of Sec. 81(3) of the Act to mention the words attested true copy above the signature of the election petitioner on each copy or whether mere signature or signature with the words 'the copy' will be complete compliance of the provisions of the law?"
2. In pursuance of the said reference, this bench has been constituted. The learned Advocate-General appearing for the respondents raised a preliminary objection to the validity of these cases to a larger bench. He contends that mere circumstance that a learned single Judge to whom the election petition had been assigned under the Re-
presentation of the People Act (hereinafter referred to as 'the Act') found himself in doubt about the correctness of the view taken by another single Judge could not provide reason for referring the matter to a larger bench.
3. The jurisdiction to try an election petition under the Act vests in the High Court. Sub-s.(2) of Section 80A of the Act provides :--
"2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more judges for that purpose:
Provided that where the High Court consists of one Judge, he shall try all election petitions presented to that Court."
According to Sub-s. (2) of S. 86 of the Act:
"As soon as may be after an election petition has been presented to the High Court; it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under Sub-s. (2) of S. 80A".
4. Upon being duly presented and registered, the election petition is laid before the Chief Justice for reference to a bench (vide rule 4, Chapter XV-A, Allahabad High Court Rules, 1952). 'Bench' is defined for these purposes in Rule2(ii) of the chapter as meaning the bench to which an election petition has been referred by the Chief Justice under sub-s.(2) of S. 86 of the Act. In the normal course, the Chief Justice assigns one or more Judges to try election petitions and the petitions arc referred to the Judge or one of the Judges assigned for the, purpose.
This though is the procedure ordinarily observed, nothing contained in Ss. 80A or 86 of the Act or the Rules of the Court, for that matter, detracts, in our opinion, against the general law relating to the precedent being given effect to. Sub-s. (2) of S. 80A quoted above significantly contains the expression 'ordinarily'. In R.G. Iyer's Judicial Dictionary at page 704, the word ordinarily is defined to mean 'habitually' or 'usually' or 'normally'. In Balck's Law Dictionary 5th Edition at page 989, the expression 'ordinary' is defined as meaning :--
"Regular, usual, normal, common, often recurring according to established order, settled, customary, reasonable, not characterised by peculiar or unusual circumstances, belonging to, exercised by, or characteristic of, the normal, or average individual."
5. Unusual or peculiar circumstances may arise within the contemplation of S. 80A read with S. 86 of the Act requiring or justifying the Chief Justice to assign or refer an election petition to a larger bench for trying the petition in entirety or a question or issue which such petition gives rise. The assignment by the Chief Justice within S. 80A(2) may be for the election petitions in general or for any one or more of these in particular. An election petition may have been assigned in its entirety or a point or issue raised therein and of importance may alone be assigned to a Judge or Judges. The single Judge in this case suggests a doubt in his mind as to the correctness on merits of a decision of another single Judge. In order that the doubt raised may be resolved, the Chief Justice may direct that the jurisdiction be exercised by a larger Bench and the petition shall then stand referred to such Bench. This departure from the practice normally followed would be due to the special reasons or the peculiar situation arising and we can see no hindrance created in the way by the provisions of the Act.
6. In Union of India v. Raghubir Singh (dead) by Us. (1989) 2 SCC 754 : (AIR 1989 SC 1933). On a question pertaining to the interpretation of Ss. 30(2) and 15 of the Land Acquisition (Amendment) Act, 1984, a Bench of two learned Judges found itself in doubt about the correctness of the view taken by a Bench of three learned Judges in Bhag Singh v. Union Territory of Chandigarh, (1985) 3 SCC 737 : (AIR 1985 SC 1576) and hence referred the matter to a larger Bench. The question arose as to the legality of the reference. Upholding the legality, the law on the point was laid down by a Constitution Bench. Chief Justice Pathak emphasised (at pp. 1938-39 of AIR):--
"India is governed by a judicial system identified by a hierarchy of courts, where the doctrine of binding precedent is a cardinal feature of its jurisprudence. It used to be disputed that Judges make law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts. There was a time, "observed Lord Reid, "when it was thought almost indecent to suggest that Judges make law they only declare it. But we do not believe in fairy tales any more".
Taking note of hierarchial character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decision of the Courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in the future cases, in this latter aspect lies their particular value in developing the jurisprudence of the law.
The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables on organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court."
7. Mr. Justice Shetty after having discussed the aforesaid decision of the Supreme Court in Union of India v. Raghubir Singh (AIR 1989 SC 1933) (supra) in the case of Sundarjas Kanvalal Bhatija v. Collector, Thane, (1989) 3 JT 57 : (AIR 1990 SC 261) observed in paragraph 21 (of (1989) 3 JT) : (para 20 of AIR 1990 SC):--
"Cardozo propounded a similar thought with more emphasis:--
"I am not to mar the symmetry of the legal structure by the introduction of inconsis-
tencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of histoy or customs or policy or justice, lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another" (The Nature of the Judicial Process by Benjamin N. Cardozo P. 33). In our system of judicial review which is a part of our constitutional scheme. We hold it to be the duty of Judges of superior Courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with appologetic approach. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute."
8. The Supreme Court noticed too that in Mattu Lal v. Radhe Lal, (1974) 2 SCC 365 : (AIR 1974 SC 1596) it was specifically observed that where the view expressed by two different Division Benches of the Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. The Supreme Court also laid down in Acharya Mahrajshri Narendraprasadji. Anandprasadji Mahraj v. State of Gujarat, (1975) 1 SCC 11 : (AIR 1974 SC 2098) that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other.
9. For the sake of ensuring that the law declared by the High Court is certain, clear and consistent, and the public interest does not suffer, a reference on a disputed point is open to reference to a larger Bench even in an election petition under the Act. As we noticed earlier, nothing provided in the Act or the Rules serves as a constraint to leave the law on a point raised in an election petition unsettled or in a fluid state or be set with diametrically opposite views of Benches of equal strength Sections 80A and 86 of the Act do not intend in their letter or spirit to negative the law of the land on the subject of adherence to precedent and the hierarchy of Benches deciding a point is of as much relevance in these as in other matters.
10. The learned Advocate General referred to the decision in Upadhyaya Hargovind Devshanker v. Dhirendrasingh Virbhandra-sinhji Solanki, AIR 1988 SC 915 and argued on its basis that the Act is a special one and that every proceeding under this Act has to be governed by the provisions specifically enacted in the same. It was contended that since there is no power of making a reference by one single Judge to a larger Bench doubting the correctness of the earlier bench, the reference made was invalid.
11. We are unable to uphold this contention of the learned Advocate General. So far as the procedure in accordance with which an election petition should be tried and decided, the Act may be exhaustive and that anything cannot be read in it which is not provided for, but for making a reference to larger bench, no provision in any Act is required. The law laid down by the Supreme Court in various cases is that if a Judge intends to differ with the decision of another Judge, he has to make a reference to Division Bench. This is the law declared under Article 141 of the Constitution of India and is binding on us. That apart, the settled rule is that in case of a Judge not agreeing with the decision of another, it has to be referred to a larger Bench. So far as the decision in Upadhyaya Har Govind's case (AIR 1988 SC 915) (supra) is Concerned, an interlocutory order passed by a single Judge of the High Court in the course of trial of an election petition was appealed against before the Division Bench. The Supreme Court held that the Division Bench had no jurisdiction to hear the appeal against an interlocutory order passed by a learned single Judge trying the election petition and set aside the judgment of the Division Bench of the High Court. In arriving at that decision, the Supreme Court agreed with the decision of our Court in Siyaram v. Nathu Ram, 1968 All LJ 576 and the Full Bench decision of the Rajasthan High Court in AIR 1985 Raj 185. In both these decisions, the view was that by necessary implication, an appeal to the High Court from an interlocutory order passed by a single Judge of the High Court in the course of the trial of an election petition filed under the Act is excluded.
12. The cases referred to above have little relevance for deciding the controversy before us. It is settled that right of appeal does not in her in any litigant and that it has to be specifically conferred. If the Legislature has not made any provision for appeal against an interlocutory order, the necessary consequence is that an appeal against an interlocutory order would be incompetent. The learned Advocate Genera! cannot derive any benefit or advantage from these decisions. In our view, therefore, the preliminary objection taken by the learned Advocate General must be overruled.
13. For that we have said above, we overrule the preliminary objection raised by the learned Advocate General. Let the cases be now listed for decision.
14. Order accordingly.