( 1 ) THIS is an application under Articles 226 and 227 of the Constitution of India directed against an order passed by the Election Tribunal, Chhalarpur in election petition no. 114 of 1957, on 28th August, 1957.

( 2 ) THE election out of which the election petition arose was to the legislative assembly of Madhya Pradesh from Amarpatan constituency. The tenth respondent shri Lal Behari Singh was a candidate but he retired from the contest under section 55-A of the Representation of the People Act, 1951 (hereinafter caned the act) on 19th February, 1957. At the election Shri Ram Hit Gupta, the second respondent was declared elected on 6th March, 1957. The petitioner, Shri Gulsher ahmed, was also a candidate, and he filed the election petition challenging the election of Shri Ram Hit Gupta. In his petition he did not join Shri Lal Behari Singh. Before the Election Commissioner a contention was raised that the petition was liable to be dismissed in view of the non-joinder of Shri Lal Behari Singh. The election Commissioner at first fixed the case for consideration of this objection, but later loft the matter open for the decision of the Election Tribunal and did not express any opinion. When the petition came before the Election Tribunal, the preliminary objection was taken up for consideration at the instance of Shri Ram hit Gupta. It may be mentioned that Shri Lal Behari Singh appeared and filed an application for being made a respondent to which the petitioner made no objection and thus Shri Lal Behari Singh came to be made a party to the dispute.

( 3 ) BY the order dated 26th August, 1957 the Election Tribunal dismissed the petition, purporting to act under Sub-section (3) of Section 90 of the Act. ( 4 ) THE aggrieved petitioner did not file an appeal under Section 116-A of the Act. He presented a petition purporting to be under articles 226 and 227 of the constitution for getting the order of the Election Tribunal quashed. At the hearing, a preliminary objection was taken that the petition was incompetent because an adequate statutory remedy was available to the petitioner. We heard arguments on this objection and announced to the parties cur opinion that the objection must be sustained. We stated at the time that the detailed reasons would be given later, and we do so now. We also agreed not to dismiss the petition there and then but to defer it for two days, while our reasons were being prepared.

( 5 ) THE short question is whether an appeal ran be said to lie from the impugned order under Section 116-A of the Act. That section reads as follows : " (1) An appeal shall lie from every order made by a Tribunal under section 98 or Section 99 to the High Court of the State in which the tribunal is situated. It is clear that if the impugned order can be said to be an order under Section 98 of the Act, however it may have been described by the learned Tribunal, an appeal was open, and it was the statutory remedy to be followed.

( 6 ) THE learned counsel for the petitioner contended that the power to dismiss an election petition for breach of Section 82 of the Act (which is the breach held to have taken place in this case) is given by the third Sub-section of Section 90 of the Act. That sub-section is not mentioned in Section 116-A and therefore no right of appeal against such an order is granted by the Act. The learned counsel also referred us to the- words of Section 98 which are as follows': "decision of the Tribunal.--At the conclusion of the trial of an election petition the Tribunal shall make an order -- (a) dismissing the election petition; or. . . . . . . (The rest of the section is not material ). The learned counsel drew our special attention to the words: 'at the conclusion of the trial of an election petition' which, he said, did not cover orders under Sub-section (3) of Section 90 of the Act. According to him, an order under that sub-section, is an order in limine and is not an order 'at the conclusion of the trial

Click Here to Read the rest of this document