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PETITIONER: DHOOM SINGH

       Vs.

RESPONDENT: PRAKASH CHANDRA SETHI & ORS.

DATE OF JUDGMENT20/02/1975

BENCH: GUPTA, A.C. BENCH: 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 onhim 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

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             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 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 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]

JUDGMENT: 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   alongwith  the   enclosures   thereto, ’Respondent  No. 1 made an application on 28-11-1972 to  the

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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 substantantive  his  allegation and  prayed  for  a  week’s time to do  the  same.   In  the meantime passing of the order on the petition of Res- pondent 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  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. 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

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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 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 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  sub-

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section  (1)  of section- 109 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  23-1- 1973.   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 pereat, 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,

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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 Shedhan 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 152 (supra) 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. 601