Dhoom Singh Vs. Prakash Chandra Sethi
& Ors [1975] INSC 41 (20 February 1975)
GUPTA, A.C.
GUPTA, A.C.
UNTWALIA, N.L.
BEG, M. HAMEEDULLAH ALAGIRISWAMI, A.
CITATION: 1975 AIR 1012 1975 SCR (3) 595 1975
SCC (1) 597
CITATOR INFO :
E 1984 SC 135 (21,22)
ACT:
Representation of People Act 1951--Section
81(3), 86(1)--116--A if an election petitioner collusively or fraudulently
refrain from prosecuting the appeal whether another voter can apply to proceed
with the petitioner--Interpretation of statute--Lacuna.
HEADNOTE:
Respondent No. 1 was elected to Madhya
Pradesh Legislative Assembly. Third respondent filed an Election Petition for
declaring the election of the first respondent void.
Respondent No. 1 made an application to the
High Court raising objection that copy of the election petition and the
affidavit served on 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. 1 and that as a, matter of fact there was no non-compliance with
the requirement of section 81(3). The appellant offered to substantiate his allegation.
The intervention applications filed 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 prayed 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 not 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:
(1) That in substance and effect the action
of the third respondent was tantamount to 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.
(2) That in any view of the matter respondent
no. 3 should not have been permitted to walk out of the 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 law and
the election petition was not liable to be dismissed undersection 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 matter.
HELD : It is difficult to accept that in
substance and in effect the 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 case of its withdrawal or
abatement. It is not necessary for this Court to express any opinion as to,
whether 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, utres magis valest quam
pereat.
so +hat the intentions of the Legislature
cannot be treated a-, vain or left to operate in the air. Another consequence
of this rule is that a statute cannot be extended to, meet a case for which
provision has clearly and undoubtedly not been made. [598H; 599B-D] Shedhan
Singh v. Mohan Lal, Gautam (1969) 3 S.C.R. 417 distinguished.
HELD FURTHER : There is undoubtedly a lacuna
in the Act because it makes provision when an election petitioner is allowed to
withdraw but makes no 596 such provision if he just refuses to prosecute it.
However, in such contingency, if thought necessary it is for the Legislature to
intervene. The Court was help'less. The appeal was dismissed. [600D]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1560 of 1973.
From the Judgment & Order dated the 23rd
January, 1973 of 'the Madhya Pradesh High Court in Election Petition No. 13 of
1972.
S.P. Gupta, S. S. Khanduja and E. C.
Agarwala, for the Appellant;
Ram Panjwani, C. S. S. Rao, D. N. Mishra, J.
B. Dadachanji and O.C. Mathur, for Respondent No. 1;
Respondent No. 2 appeared in person.
The Judgment of the Court was delivered\ by
UNTWALIA, J. Respondent No. 1 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 election petition on 25-4-1972 in
the Madhya Pradesh High Court for declaring the election of the first
respondent void. After service of the notice of the election petition along with
the enclosures thereto, 'Respondent No. 1 made an application on 28-11-1972 to
the High Court raising an objection that out of the copies of the election
petition, list of Annexures and Affidavits on him, only the annexures were
signed by Respondent No. 3 and the rest were not. Signed by him. Respondent No.
1 submitted to the Court that there was noncompliance with the requirement of
sub-section 3 of Section 81 of the Representation of the People Act,
1951-(hereinafter called ,the Act) and hence the election petition was liable
to be dismissed ,under section 86(1). A learned single Judge of the High Court
to whom the election petition had been 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 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
mean-time intervened to say that Respondent No. 3 had colluded with 'Respondent
No. 1, as a matter of fact there was no non-compliance with the requirement of
section 81(3) of the Act, and therefore, the election petition could not be
dismissed under section 86. They asked the Court to allow them to intervene.
Prayer of one such person was refused by the High Court on 12-1-1973. Finally
when the order on the objection of Respondent No. 1 was going to be made on
23-1-1973, the appellant came forward to make an application for intervention.
He stated that Respondent No.
3 in collusion with Respondent No. 1 had
admitted that the copies of the petition were not attested to be true copies
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 be true copies
of the petitions 597 and were signed by Respondent; No. 3, it was not in the
interest of' justice to dismiss the election petition as a result of the false
and collusive stand of Respondents 3 and
1. The appellant offered to sub-stantantive
his allegation and prayed for a week's time to do the same. In the meantime
passing of the order on the petition of Respondent No.1 was asked to be
deferred.
The High Court asked the appellant's counsel
who was none else 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 appellants 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 and long order the objection of Respondent No. 1
was allowed on the. basis of the copies of the various papers as they were
before the Court. It was held that there was noncompliance with the requirement
of section 81(3) of the Act and hence the election petition was dismissed by
the separate order Passed on 23-1-1973.
The appellant presented an appeal to this
Court under section 116A of the Act along with a petition to permit him to file
the appeal. In the alternative a prayer was made to treat the petition of
appeal as a petition under Article 136 of the Constitution of India for 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 of the appellant into a special leave petition and
granted special leave by its order dt. 11-10-1973. It also directed the
consideration, of 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
Respondent No. 1 pointed" out that special leave was granted on a limited
question and. at the outset it had to be decided whether the appellant's appeal
is competent. Mr. S. V. Gupte, learned counsel for the appellant submitted that
in this very appeal it had to be decided whether the appellant had a locus
standi to prefer an appeal to this Court, under section 116A 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 competent from the order of the High Court rejecting the
appellants prayer made in his petition dated 23-1-1973.
Although in view of the explanation appended
to subsection (1) of Section 86 of the Act an 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 difficult to satisfy
us that the scope of this appeal was to find out whether the appellant was a
person who had a right to file such an appear or in any event he had such
right. The appellant was not a party 598 to the election petition nor was he
allowed the intervention by the High Court. in this appeal, therefore, there is
no question 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 ,,appellant to assail the order made by the High Court
on his petition Bled 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
to 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 the 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 law and
the election petition was not liable to be dismissed undersection86..
(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 matter.
We do not think that any of the points urged
on behalf of the appellant is fit to succeed.
Chapter 11 of the Act containing sections 80
to 84 deal with presentation of election petitions. Chapter III starting from
section 86 is headed "Trial of Election Petitions".
Then comes Chapter IV incorporating sections
109 to 116 providing for the procedure to be followed in case of withdrawal and
abatement of election petitions. Under subsection (1) of section109 an election
petition may be withdrawn only by leave of the High Court. When such an
application is made notice is to be given not only 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 the 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 granted 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 case may be any
person who might himself have been petitioner can apply to be substituted under
sub-section (3) of section 112. It is ,difficult to accept the contention put
forward on behalf of the :appellant that in substance and in effect the action
of Respondent 599 No. 3, even assuming it was collusive, or fraudulent, had the
effect of withdrawing his election petition by him. It may also be added that
there was no such stand taken by the appellant in his petition filed in the
High Court on 23-11973. None of the provisions relating to withdrawal of
election petition was attracted in this case.
The Legislature in its wisdom has chosen to
make special provisions 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 Constituency
in all contingencies of failures of the election petition either due to the
collusion or fraud of the original election petitioner 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 valeat quam pere at, so that
the intentions of the legislature may not be treated as vain or left to operate
in the air." A second consequent of this rule is that " a statute may
not be extended to meet a case for which provision has clearly and undoubtedly
not been made"-See pages 69 and 70 of Craies on Statute Law-6th edition.
It seems plain that the High Court is enjoined
to dismiss ail 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, expressing 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 861. 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
necessity of avoiding any such situation as the present one was said to be it
is for the legislature to intervene and make clear and express provision of law
for the purpose.
Mr. Gupte in support of his argument placed
reliance upon a passage-which occurs at page 421 in tie Judgment of this court
in She dhan Singh v. Mohan Lal Gautam(1) and which is to the following effect :
"From the above provisions it is seen
that in an election petition, the contest is really between the Constituency on
the one side and the person or persons complained of on (1) [3] 1 S.C.R. 417.
600 the other. Once the machinery of the Act
is moved by a candidate or an elector, the, carriage of the case does not
entirely rest with the 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 allowed to avoid the consequences of their
misdeeds" But the said observations cannot and were not meant to travel
beyond the realm of the contingencies of withdrawal and abatement of an
election petition.
In Duryodhan v. Sitaram and others(1) one of
the learned Judges constituting 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 petitioner. The
argument that in such a situation "the intention of the legislature that a
petition should not fail by reason of any bargain or collusion between the
election petitioner and the successful candidate would be frustrated" was
repelled on the ground "There is undoubtedly a lacunas in the Act, because
it makes provision when an election petitioner is allowed to withdraw, but
makes no such provision if he just refuses to prosecute it. But that reason
would not, as pointed out by Grover, J. in Jugal Kishore's case AIR 1956 Punj be
a sufficient reason to construe the provisions beyond the purview of their
language." This is another type of contingency, where if thought
necessary, it is for the Legislature to intervene. The Court is helpless.
In our judgment, therefore, none of the
contentions raised on behalf of the appellant is fit to be accepted as sound.
The appeal fails and is dismissed. But in the
circumstances we shall make no order as to costs.
P.H.P. Appeal dismissed.
(1) A.I.R. 1970, Allahabad, 1.
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