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 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
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
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-
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,
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
