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High Court of Madhya Pradesh
Shivdayal & S.P. Bhargava, JJ.
Kamal Narain Sharma
Vs.
Dwarka Prasad Mishra & another
F.A. No. 49 of 1967
Decided On : 4-5-1968
(2) Representation of the People Act, 1951 – S. 116-A - provision of section 4 of the Limitation Act, apply to appeals under the section - Limitation Act, 1963 - S. 29 (2).
In an appeal under section 116-A of the Representation of the People, Act, 1951, section 4 of the Limitation Act, 1963 is attracted with the aid of section 29(2) of that Act. (1964)6 SCR 129 relied on. [Paras 5 & 7]
(3) Limitation Act, 1963 - S. 4 - Summer Vacation of the High Court - receiving or filing of appeals during vacations barred with exceptions - benefit of section 4 available.
The effect of the order of the High Court was that no appeal (other than Jail Appeals under Section 420, Criminal Procedure Code) could be filed or received during the summer vacation. The exceptions were provided so that a relief which could not await the reopening of the Court after the Summer Vacation could be given by the Court during the Summer Vacation. Such relief’s are generally interim and are meant to preserve status quo. The procedure in such a case is that an interlocutory application is made, and since it can be made only in a pending appeal, the appeal is also permitted to be filed. But this exception could not take away the benefit under section 4, Limitation Act, which was available to an appellant who did not or could not file an appeal and whose appeal could not be received under the High Court's order: "No appeal will be received or filed during the Summer Vacation." [Para 6]
(4) Representation of the People Act, 1951 - Ss. 116-A, 99, 98 &100 - appeal and election petition - when become infructuous.
A legal proceeding cannot be put to an end as having become infructuous, if the determination of any question in issue will have operative effect on the right of the parties or will subject them to a penalty. [Para 10]
An election petition in which there are allegations of corrupt practices cannot be dismissed as infructuous merely because during its pendency, the returned candidate has ceased to be a member of the Legislature or because the Assembly to which he was returned has been dissolved. The matter would be different, if the allegations in the election petition are not of the commission of a corrupt practice but it is based on other grounds enumerated in section 100 of the Act. [Para 12]
Once the Election Tribunal becomes seized of an election petition it is statutory obligation of the Tribunal to give a decision on all matters which arise under the Act, unless it is shown that the determination of any such matter has been rendered unnecessary or that the Tribunal's power to deal with it has been abrogated. As a combined effect of sections 98 and 99 of the Act, it is not only to be seen whether any relief appropriate under section 100 or 101 should be granted or not, but also to record a finding whether any corrupt practice has or has not been proved to have been committed at the election, because that will entail future disqualifications under sections 140 and 141 of the Act. Even if it can be said that in consequence of the dissolution of the Assembly and fresh election having been held, the necessity for making a declaration that the election is void in respect of the seat to which the election petition relates, may not subsist, but the need for recording a finding under section 99 about commission of corrupt practices is not taken away. [Para 18]
The petition or the appeal in such a case cannot be dismissed as infructuous. [Para 19]
(5) Representations of the People Act, 1951 - Ss. 98 & 79 (f) – returned candidate -connotation of.
Once a candidate is declared a returned candidate, he does not cease to be so for the purposes of an election petition until that petition is finally decided. This will be so inspite of the returned candidate having ceased, for any reason, to be member of the Assembly or the Assembly itself having been dissolved. His election can, therefore, be declared to be void under section 98 and for the purpose of that section, he continues to be a returned candidate. [Para 13]
(6) Constitution of India - Arts 191 & 192 - Representation of the People Act, 1951 - Ss. 7, 70 & 140 - disqualification incurred during the term of office - who may declare the disqualification to have been in-cured-powers of the Governor.
It is true that the effect of a finding recorded under section 99 of the Act that a member of the Legislative Assembly committed a corrupt practice is that, by virtue of Article 191 of the Constitution[read with section 70 and 140 of the Act, he becomes disqualified for continuing as such member. It is also incontrovertible that it is the Governor who alone is the competent authority to adjudicate on the question whether such a member has become subject of a supervening disqualification, although his decision has to be in accordance with the opinion of the Election Commission.
But, it is the Tribunal or the appellate Court, and not the Governor, which will decide whether a corrupt practice has been committed or not. This is because section 7 comes into play only when a finding that a corrupt practice was committed has been recorded "in proceedings for questioning the validity, or regularity of an election. (1965) 3 SCR 53, referred to. [Para 21]
(7) Practice (Civil) - fixation of dates of hearing - Council coming from outside - matters to be seen.
It is usual practice with Courts to fix dates, as far as possible with the consent of the parties unless either of them is found unreasonable. This is not a hard and fast rule, nor the Court is bound to observe it. It is also usual with the Courts to reasonably accommodate counsel coming from other places, in the matter of fixing dates of hearing. [Para 32]
(8) Representation of the People Act, 1951 - S. 100 - Election Petitions - trial of - matters to the considered - expeditors disposal and ends of justice - discretion how to be exercised.
While dealing with an election petition, the following principles must always be present to the mind:
(1) Though the election of a successful candidate is not to be lightly interfered with, the purity of the election process must be safe-guarded and it must be seen that people do not get elected by flagrant breaches of the law or lay corrupt practices. AIR 1954 SC 892, 1959 SCR 583 & 11 ELR 278 relied on.
(2) It is essential that an election petition must be decided expeditiously but justice is not to be sacrificed for the sake of speed. If due to the cropping up of extraordinary causes the disposal may be invitably delayed, matters cannot just be rushed up in a way that the parties are shut out from bringing the entire material on record.
(3) It is a very celebrated rule which is followed in all Courts and tribunals that a discretion that must be exercised with a judicial mind. To respectfully borrow the language of Lord Halsubury L.C. when extensive power is confined to the justices in their capacity as justices to be exercised judicially; and 'discretion' means when it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary vague, and fanciful, but legal and regular. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself." [Para 38]
(9) Civil P.C., 1908 - O. 6, R. 17 - tribunals have power to allow amendment - in respect of any particular of corrupt practice or to permit new instances to be included provided charges are specifically stated-application of provision of O. 6, R. 17, 15 not excluded by S. 83 (3) of the Representation of the People Act, 1951.
(10) Representation of the People Act, 1951 - Ss. 83 (3) & 90 (5) - amendment in election petition- when may be allowed.
The Ejection Tribunal have undoubtedly the power to allow an amendment in respect of any particulars of corrupt practice or to permit new instances to be included provided the grounds or charges are specifically stated in the petition, but new grounds or charges could not be permitted to be raised, nor the character of the petition could be permitted to be so altered as to make in substance a new petition. Order 6 Rule 17 of the Civil Procedure Code to the proceedings before the Election Tribunal was not excluded by section 83 (3) of the Act, as it stood before the amending Act of 1966. Now the relevant provision is contained in section 90 (5) of the Act. 1957 SCR 370, 1958 JLJ 98 (FB), (1960) 2 SCR 289: 1957 SCR 438: 1957 SCR 595: 1957 SC 96: (1873) 8 CP 107: 1962 JLJ 132 referred to. [Paras 39 & 40]
Shivdayal, J.
1. This appeal under section 116-A of the Representation of the People Act, 1951, (hereinafter called the Act), has arisen from an election petition filed by the appellant for a declaration that the election of Shri Dwarka Prasad Mishra (hereinafter called the (respondent) to the Madhya Pradesh Legislative Assembly from Kasdol Assembly constituency in the bye election held in May 1963, is void.
2. The appellant first contends that the trial of the petition was abruptly closed by the Tribunal and he was denied reasonable opportunity to fully cross examine the respondent. Secondly, his applications for leave to amend the petition were wrongly rejected by the Tribunal. Thirdly, admission of certain documentary evidence was wrongly refused by the Tribunal. Before we proceed to decided these preliminary points, we must consider the preliminary objections raised for the respondent; first, the appeal must be dismissed as barred by time; and, second, the appeal has become infructuous.
3. The judgment and order of the Tribunal is dated 28 December 1966. The appeal was filed in this Court on 1 July 1967. As provided in sub-section (3) of section 116-A of the Act, an appeal must be preferred within 30 days from the date of the order of the Tribunal. Application for certified copy was made on 29 December 1966. The copy was delivered to the appellant on 27 April 1967. This Court was closed for summer vacation from 7 May to 30 June 1967. This appeal was filed on the very day that the Court reopened after the vacation.
4. If the period from 29 December 1966 to 27 April 1967 and also the period from 7 May 1967 to 30 June 1967 are excluded under sections 12 (2) and section 4 of the Limitation Act respectively, from computation of the period of limitation, it must be held that this appeal was preferred within time. But, if either period is not so excluded, the appeal is clearly time barred.
5. Shri Dharmadhikari, learned counsel for the respondent, contends that neither section 12 (2) nor section 4 of the Limitation Act has any application to an appeal under section 116-A of the Act. This question will have to be examined in the light of the provisions contained in section 29 (2) of the Limitation Act, 1963. It reads thus:-
"Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (inclusive) shall apply in so far as, and to the extent to which, they are not expressly excluded by such special or local law."
The applicability of this section to an appeal under section 116-A of the Representation of the People Act was examined from different angles, and a variety of arguments were considered by their Lordships in Vidyachran Shukla Vs. Khubchand Bahgel [(1964) 6 SCR 129].
Although to that case the Limitation Act of 1908 was applicable yet, as there is no difference between Section 29 (2) of the 1908 Act and Section 29 (2) of the 1963 Act, so far as the application of section 12 is concerned, that case is authority where there is the question of applicability of section 12 of the 1963 Act read with section 29 (2) of that Act. Their Lordships held that by virtue of section 29 (2) the provisions of section 12 of that Act apply to any appeal under section 116 A of the Representation of People Act. That high and binding authority clinches the issue. For the same reasons it must be held that section 4 of the Limitation Act is also attracted with the aid of section 29 (2) of that Act.
6. It was an argument advanced by Shri Dharmadhikari that the appellant was not entitled to the exclusion of the period of Summer Vacation inasmuch as there was no absolute prohibition in th
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