Dhoom Singh vs Prakash Chandra Sethi

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1975 Supreme(SC) 76

SUPREME COURT OF INDIA
M.H. BEG, A. ALAGIRISWAMI AND N.L. UNTWALIA, JJ.
Dhoom Singh, Appellant
Versus
Prakash Chandra Sethi and others, Respondents.
Civil Appeal No. 1560 of 1973, D/20-2-1975.
Advocates appeared
Mr. S. V. Gupte, Sr. Advocate (M/s. S. S. Khanduja and R. C. Agarwala, Advocates with him), for Appellant. Mr. Ram Punjwani, Advocate, and M/s. C.S.S. Rao, D. N Mishra, J. B. Dadachanji and O. C. Mathur, Advocates of M/s. J. B. Dadachanji and Co., for Respondent No. 1. Respondent No. 3 in person.

Headnote:(1) Representation of the People Act, 1951 – S.116 A.86 (1), Proviso 98 application to intervene rejected by the High Court-election petition also dismissed under section 86 fur non-compliance of provisions of section-appeal to the Supreme Court by the intervener-Constitution of India-Art. 136.
       Although in view of the explanation appended to sub-section (1) of section 86, the 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 116-A, an intervener, who was not a party to the election petition and who not allowed by the High Court to intervene, could not be allowed to challange the order of the High Court made under section 85 of the Act on merits. [Para 5
       In an appeal by the intervener before the Supreme Court after obtaining leave, the appellant may assail the order of the High Court rejecting his application for intervening in the election petition. [Para 6
       (2) Representation of the People Act, 1951 - Ss.109, 110 and 112 - election petition when may be allowed to be continued by other persons- intervention cannot be allowed on the basis of collusion or fraud on the part of the petitioner -non-compliance of section 81, 82 or 117 -intervention not 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 day's 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. [Para 8
       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. [Para 9
       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 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 86 (1). Even in such a situation, there is no provision in the Act under which the High Court could permit a person to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate. (1969) 3 SCR 417, AIR 1970 All. 1 and AIR 1968 Punj 152 referred to. [Para 10

Judgment

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, Annexures and Affidavits served 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 non-compliance with the requirement of subsection (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 no. 3 withdrew from the case and the said respondent presented his case in person to the Court. Several persons in the meantime 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-l973, 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 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 substantiate his allegations 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.

2. 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 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 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 non-compliance 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.

3. The appellant presented an appeal to this Court under Sec. 11 6A 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 th

Click Here to Read the rest of this document

1975 Supreme(SC) 76

Cases Referred (1)