Dhoom Singh v. Prakash Chandra Sethi & Ors.

Judgment

11 DHOOM STNGH PRAKASH CHANDRA SETH[ & ORS. February 20, 1975 [M. H. BEG, A. AlAGIRISWAMl AND N. L. UNTWAL!A, JJ.] ~t·prcsent~~lon of /'copfc Act 195l-Scctio11 81(3), 86(1)-116-A if a11 l'iecllon pet1t1011a co/111.m-e/y or frm1du/e11tly rcfrai11 from prosecuting tlie appea! whether a11otlzc1· l'Otl'I' can apply to proceed \\'ith the petitio11er-l11terpretatw11 of .lfat11te-Lacr111a. Respondent No. 1 was elected to Madhya Pradesh legislative Assembly. Third respondent filed an Election Petition for declaring the election of tht: first re~~nden~ v<;iid. Respondent No. 1 ~ade a1~ .application to _the High Court raismg obJect10n that copy of the election pettuon and the affidavit served 011 him were not signed and that it amounted to non-compliance with section 81 (3) of the Representation of People Act. 1951, and the election petition was liable to be dismissed under section 86(1 ). Several persons including appellant intervened to say that respondent No. 3 had colluded with respondent No. I and that as a matter of fa~t there was no non-compliance with the requirement of section 81 ( 3).

The appellant offered to sub>tantiate bis allegation. The intervention applica· tions fileC: were rejected by the High Court. The High Court held that there was non-compliance with section 81 (3) and, therefore, dismissed the election petition. The appellant filed an appeal to this Court under section 116-A of the Act. In the alternative, he prnyeJ to treat it as ·the petition under Article 136. This Hon'ble Court allowed the appeal to treat it as a Special Leave Petition and granted Special leave. The appellant was n!5t permitted to challenge the order of the High Court made under section 86. He was, however, allowed to challenge the refusal of the High Court to allow him to intervene. The appellant contended : ( I ) (2) That in substance and effect the action of the third respondent w"s. tantamount '.o withdrawal of his election petition and in that view of the matter the procedure prescribed in sections 109 and 110 of the· Act ought to have been followed and given effect to.

That in any view of the m~tter resr>ondent no. 3 should riot have been permitted to walk out of the field without an investigation of the facts allegeJ by the appellant which if found true, would have shown that there was no non-compliance with the requirement of tl1e law and the election petition was not liable to be dismissed under· section 86. (3) Ill an election disrmte the whole constituency is interested and any elector of that cons•itl'ency from which a candidate had bren returned and whose election has been challenged can intervene in the matter. HELD : It is difficult io acceot that in ~ubstance and in effect th~ action of respondent No. 3 even assuming that it was collusive or fraudulent had the effect of withdrawing his election petition. The legislature has chosen to make special provisions for the continuance of the election petition only in ca-se of it< withdrawal or abatement.

It is not necessary for this Court to express any opinion as to whether omission to do so is deliberate or inadvertant. Tt may be a case of Casus omis<.us. It is a well-known rule of -construction of statu'.es that a Statute, even more tha.n a contract. must be construed, ut res magis va/est auam pe·e11:. <O 'hat the intentions of the Legislature canno~ be treated a< vain or left to ope•ate in the <iir. Another consequence of this rnle is that a statute cannot be ex•ended to meet a case for which provision has clearly and undonbtedly not been made. [593H; 5998-Dl Shed!ta11 Singh v. Mohan Lal Gautam ( 1969) 3 S.C.R. 417 disti•nguished. HELD FURTHER : There is undoubtedlv a lacuna in the Act because it m~kc> provision when an election petitioner is ·allowed to withdraw but makes no 59 6 · ,uch provi~ion if he just r.efuses to prosecute it. However, in such conti11g1~ncy, if thought neces>ary it is for the Legislature to intervene. The Court w~1s helpk<s. The appeal was dismissed. [6000]

C1v1L APPELLATE JURISDICTION: Civil Appeal No. 1560 of 1973. i From the Judgment & Order dated the 23rd January, 1973 of thc Madhya Pradesh High Court in Election Petition No. J 3 or 197~. S. P. Gupta, S. S. Khanduja and E. C. Agarwala, for the Appel- ·'J:tnt .• Ram P1•11jwmu, C. S. S. Rao, iJ. N. Mishra, J. 8. Dadadia11ji am! O.C. Mathur, for Respondent No. I; Respondent No. 2 appeared in person. The Judgment of the Court was delivered hy IJNTWALIA, J. Respondent No. I in this appeal was elected_ a Member of the Madhya Pradesh State Legislative Assembly from the Ujjain North Assembly Constituency. The third respondent filed an eiection petition on, 25-4-1972 in the Madhya Pradesh High Court for declaring the election of the first respondent void. After service nf the notice of the election petition alongwith the enclosures thereto. Respondent No. 1 made an application on 28-11-1972 to the Higl1 Court raising an objection that out of the copies of the election pcti- ·1ion, list of Annexures, Anncxurcs and Affidavits served on him, only the anncxurcs were signed by Respondent No. 3 and the rest were not signed by him.

Respondent No. I submitted to the Court that there was non-compliance with the requirc;ment of sub·section 3 of Section i'1 of the Representation of the People Act, 1951-(hcreinafter called the Act) and hence the election petition was liable to be dismissed under section 86 (I ) . A learned single Judge of the High Court to whom the election petition had hecn transferred for disposal heard the matter on several dates along with some other miscellaneous petitions filed in the case. · Time was granted to learned counsel for Respondent No. 3 to resist the prayer of Respondent No. 1 for dismissal . F of the election petition. Eventually learned counsel for respondent withdrew from the case and the respondent presented his case in person to the Court. Several persons in the meantime intervened to say that Respondent No. 3 had colluded with Re~'10Ildent No. 1, as a matt.er of fact there was no non-compliani:e with the requirement of section 81(3) of the Act, and therefore, the election petition could not be dismissed under section 86.

Tiu~y :1skcd the Court to allow them to intervene. · Praver of one suc:h person was refused by the High Court on 12-1-1973. Finally when the order on the objection of Re~p::mdent No. 1 was going to be made on 23-1-1973, the appellan,t came forward to make an application for intervention. He stated that Respondent No. 3 in collu~ion with Respondent No. :l had admitted that the copies of the petition were not attested to be true conies and were not signed by him. on enquiries he had come to know that all 'the copies of the petition and the annexures were duly attested to he true copies of the petitions JI I DHOO~I S!~Gll \'.. P. c. SETH! (Untwalia, .!.) .111c.i were signed by Respondent No. 3, it was not in the interest 'ot justice to dismiss the election petition a~ a result of the false and· collw;ivc stand of Respondents 3 and 1. The appellant offered to· substantiate hL~ allegation and prayed for a week's time to do the ~ame.

In the meantime passing· of the order on the petition of Re~ pondent ·No. I was asked to be deferred. 'I11c High Court ask.:d the appellant's counsel who was none eise than the counsel of Respondent No. 3 and who had withdrawn from representing him, to show under what provision of the Act or any other law an elector of the Constituency as the appellant was, had a right to intervene in the case. Since the appellant's Advocate was unable to show it the prayer of the appellant was rejected by an order passed on 23-1-1973. Later on the same date by a reasoned tlmf lonp; order the ob_jection of Respondent No. I was allowed on the basis of the copies of the various papers as they were before the Court. It was held that there was non-compliance with the rc4uiremcnt of section 81 ( 3) of the Act and hence the elecuon · petition· was dismissed by the separate order passed on 23-1-1973.

The appellant presented-an appeal to this Court under section l I 6A of the Act along with a petition lo pennit him to file the ~tppeal. In the alternative a prayer was made to treat the petition· of appeal as a petition under Article 136 .of the Constitution of India fur seeking special leave of this Court, to file an appeal from the order refusing the appellant's prayer made in his petition dated 23-1-1973.· A Bench of this Court upon hearing counsel for the appellant and Respondent No. 1 permitted the converting of the appeal o[ the appellant into a special leave petition and granted special kave by its order dt. 11-10-1973. It also directed the consideration 0[ the question at the time of the hearing of the appeal whether an appeal would lie to this Court in the circumstances of· the case. Mr. Ram Panjwani, learned counsel for Respondctit No. l point..:d <>ut that special leave was granted on a limited question and at the "utsct it had to be decided whether the appellant's appeal is compeknt.

Mr. S. V. Guptc, learned counsel for the appellant ~ubmitted that in this ver.y appeal it had to be decided whether the appellall1 had a locus standi to prefer an appeal to this Court under section l 16A of the Act from the order of the High Court dismissing the election petition of Respondent No. 3 under section .86. In any view of the matter, counsel further submitted, the present appeal was ..:ompetent from the order of the High Court rejecting the appellant'~ prayer made in his petition dated 23-1-1973.

Although in view of the explanation appended to sub-section ( 1 ) o[ Section 86 of the Act au order of the High Court dismissing the election petition under the said sub-section is to be deemed to be an order made under clause (a) of Section 98 and hence appealable under section 116A, learned counsel for the appellant found it rlifficult t() satisfy us that the scope of this appeal was to find out whether th" appellant was a person who had a right to file such an appeal or in anv event he .had such light. The appellant was not a pa11y •to the election petition nor was he allowed the intervention by the .High Court. In this appeal, therefore, there is no 9uestion of permitting the appellant to challenge the order of the High Court made . under-section 86 of the Act on merits, There is, however, no doubt that in this appeal it is open to the .ap~Jlant to assail the order made by the High Court on bis petition filed on 23-1-1973. To do so it was argued for the appellant :- ( 1)

That in substance and effect the action of the third :respondent was tantamount tp withdrawal of his selection petition and in that view of the matter the procedure prescribed in sections 109 and 110 of the Act ought to have been followed and given effect to .. (2) That in any view of the matter Respondent No. 3 should not have been permitted to walk out of th~ field without an investigation of the facts alleged by the appellant, which if found true, would have shown that there was no non-compliance with the requirement of the Jaw and the election petition was not liable to be dismissed under-section 86. ( 3) In an election dispute the whole Constituency is interested and any elector of that Constituency from which a candidate had been returned and whose election has been challenged can intervene in the matte!'. We do not think that any of the points urged on behalf of the ;appellant is fit to succeed.

Chapter II of the Act containing sections 80 to 84 deal with ·presentation of election petitions. C"hapter III starting from sr.ction 86 is headed "Trial of Election l:'etitions". Then comes Chapt€:r IV inr,orporating sections 109 to 116 providing for the procedure !o be followed in case of withdrawal and abatement of election petitions. Under sub-section (1 ), of section 109 an election petition may be ·wit.hdrawn only by leave of the High Court. When such an applica· tion is' made notice is to be. given not onliy to the parties to the election petition but it is to be published in the official gazette also. ·sub-section (2.) of section 110 enjoins upon t.1e High Court not to allow . the withdrawal application if it has been induced by any bargain or consideration which ought not to be allowed.

If the withdrawal application is granced then section 110(3)(c) permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the notice in· the official gazette. Similarly on the abatement of an election petition on the death of the petitioner ·or petitioners as the ·<:aS(~ may be any person who might himself have' been petitioner can apply to be substituted under sub-section (3) of section 112. J[t is .<Jifficult to accept the contention put forward on 'behalf of the :appellant that in substance and in . effect the action of Respondent ll DHOOM SINGH \', P. C, SETHI (Untwa/ia, .I.) No. 3, even assumiu~ it was collusive or fraudulent, had the effect of. withdrawing his election petition by him. It may also be added tha~; ~here was. no such stand taken by the appellant in his. ~tition ~~Cl,. m the High Court on 23-1-1973.

None of the prov1s1ons relating, to withdrawal of election petition was attracted in this case. . The Legislature in its wisdom has chosen to make special provi· s1?ns for the continuance of the election petition only in case of its withdrawal or abatement. It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the Constituenoy in all contingencies of failures of the election petition either due to the collusion or fraud of the original elcction peiitioner or otherwise. It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent. It may be a case of Casus omissus. It is' a well~known rule of construction of statutes that "A statute. even more than a contract, must be construed, ut res magis va/etll qu41tt pereat, that the intentions of the legislature may not be treated. as vain or left to operate. in the air."

A second consequent of this (Ule is tha't "a statute may not be . extended to meet a case for which provision has clearly and undoubtedly not been made''-Scc pages 69 and 70 of Craies on Statute Law-,6th edition. It seems plain that the High Court is enjoined to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Act. In the true cases of non-compliance with the· said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are e:'!:pressing • no opinion of ours in. this regard even by any implication whether this was so or ·not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under section 8-6(1).

Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to .substantiate his allegations of fraud or collusion between the election petitioner and -the returned candidate. It is. difficult to press . into service the general principles of law governing. an election petition as was sought to be done on behalf of the appellant for his intervention in the matter. If there be any neccssi ty of avoiding any such situation as the present one was said to b.\! it is for the legislature to intervene. and make clear and express prov1- sion of faw for the purpose. Mr. Gupte in support of his argument placed reliance upon passage which occurs at page 421 in the judgm~nt ?f this court in . Sheahan Singh v. Mohan Lal Gautam(!) and which 1s to the following effect:

"From the above provisions it is seen that in an plection petition, the contest is really between the ·O)ns~ituency on the one side and the -person or persons corr•plamed of on -·(i)- [3) S.C.R. 417. [19751 3 s.c.R. the other. Once the machinery of the Act is moved by n candidate or an elector, the carriage of the case does not entirely rest with t_he petitioner. The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not atllowcd to avoid the consequences of their misdeeds." 15ut the said obs.:rvations cannot and were uot meant to t1av.:I beyond the realm of the contingencies of withdrawal and abatement of an election petition. fo Dµryodha11 v. Silaram and otliers( t) oue o( the learned Judge.-. coCllltituting the Full Bench in his separate judgment pointed out at page 14 of a similar contingency arising in the case of dismissal of an election petition for default of appearance of the election petition.er.

The argument that in such a situatio,n "the intention of the legislature that: a petition should not fail by reason of any bargain lll' collusion between the election petitioner and the successful candidate would be frustrated" was repelled on the ground "There i~ ·undoubtedly a lacuna in the Act, because it makes provision when a11 election . petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute it. But that reason would nuc, a.s pointed out by Grover, J. in Jugal Kishore's case AIR 1956 l'unj 152 (supra) be a sutlicicnt reason to construe the provision~ beyond the purvww of their language.'' This is another type of contingency, where if thought necessary." it is for the Lcgislatur~ to inkrvcnc. The Court is helpless. r n our judgment, therefore, none of. the contentions raised tin he half of the <!ppellant is fit to be accepted as sound. The appeal fail!i and is dismiss~d. But in the circumstances we shall 1n:ikc nP , 1rder as to costs. P H.P. Appeal dis111is.1ei/.

1 tl A.LR. 1970. Allahabad I.