TMI Blog1983 (10) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... he election of respondent 2 under s. 100(1)(b) of the Representation of the People Act, 1951 ('Act' for short), declaring Shri Virendra Patil, respondent 5 of the election petition, as the duly elected candidate from the constituency and for an order declaring respondents 2, 3 and 4 of the election petition to have been guilty of corrupt practices within the meaning of s. 123 of the Act. In view of the reliefs claimed it became necessary to implead all the contesting candidates as required under s. 82 of the Act. On March 26, 1979, respondent 29 of the election petition filed his written statement as also a petition of recrimination within the meaning of s. 97 of the Act as against respondent 5 whom the election petitioner wanted to be declared as the duly elected candidate. On October 4, 1979 the present appellant who was respondent 19 in the election petition filed his written statement. The election petitioner who is respondent 1 in the appeal applied to the Court for deleting the 692 prayer in regard to the declaration of Shri Virendra Patil as the returned candidate. On November 16, 1979, the court allowed the application and prayer (c) of the election petition under w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... March 9, 1981, the election petitioner again asked for adjournment. The High Court declined the prayer for adjournment and said: On 693 the previous occasion, i.e. February 16, 1981, it was posted for commencement of evidence but neither the petitioner nor his witnesses were present. However, at the request of the petitioners counsel the matter was adjourned to today as a last chance. The list of witnesses and list of documents were also at the request of the petitioner's counsel permitted to be filed before February 2, 1981 with notice to respondents. This has not been done. However, when the matter was called today the petitioner is absent; none of his witnesses is also present. Shri K. Channabasappa, learned counsel for petitioner wanted to file the list of documents and witnesses today in Court and stated that the matter may be adjourned for trial to some other date. In view of the circumstances that petitioner is absent in spite of the fact that this is the second date fixed for trial of the petition, I have no option except to dismiss this petition for non-prosecution. This election petition is accordingly dismissed. There are three contesting respondents in this electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant is, therefore, free to contend that these orders must be ignored and the High Court should be called upon to comply with the statutory provision relating to withdrawal of election petition before such permission can be granted; (2) an election petition once filed does not mean a contest only between the parties thereto but continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition of the respondent but is liable to be continued by any person who might have been a petitioner. Therefore, an election petition cannot be dismissed for default and when the appellant who was himself entitled to file an election petition applied for permission to continue the case, the High Court should have given him the opportunity to continue the election petition; (3) the view taken by this Court in some cases that except in cases of withdrawal and abatement, the special provisions contained in the Act for notifying to the constituency so that any other person may apply for being allowed to continue the election petition, are not applicable. Apart f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creature of statute or special law and must be subject to the limitations imposed by it. In N.P. Ponnuswami's case it was pointed out that strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. In Jyoti Basu Ors. v. Debi Ghosal Ors.,(1) this Court said: A right to elect, fundamental though it is to democracy. is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... store the election petition was rejected, an application under Art. 136 of the Constitution for grant of special leave was made. In that the petitioner clearly prayed for leave against the order dated June 23, 1981. Leave has, therefore, been granted to him to appeal against the order of the High Court made on that day. The earlier orders dated November 16, 1979, September 12, 1980, and September 30, 1980, are not open to challenge in this appeal and Mr.Mridul for the respondent has rightly contended that these orders 698 have become final and cannot be assailed at this stage unless they can be shown to be nullity. The appellant has taken the stand that an election dispute is not one between two sets of parties who are before the Court, but it is a dispute concerning the entire constituency. That is the pronounced view of this Court. In Inamati Mallappa Basappa's case this Court observed: Once this process has been set in motion (an election petition has been filed (by the petitioner he has released certain forces which even he himself would not be able to recall and he would be bound to pursue the petition to its logical end..... This observation goes to show that an elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of recrimination to be omitted amounted to withdrawal of the election petition within the meaning of ss. 109 and 100 of the Act; and secondly, whether on that account the orders are a nullity. Prayer (c) in the election petition was concerned with the declaration of respondent 5, Shri Virendra Patil as duly elected from the constituency in question. This relief was asked to be deleted. No objection was raised to its deletion and in due course the Court allowed this prayer to be omitted. In opposition to the claim made in this prayer recrimination was filed by one of the respondents in the election petition. But once prayer (c) was dropped, the relief 700 of recrimination could no more stand. Consequently on the prayer of the recriminator that relief was also allowed to be omitted. In view of the contention of the appellant, it is necessary to decide whether omission of prayer (c) comes within the ambit of s. 109 of the Act. Sub-section (1) of s.109 provides that an election petition can be withdrawn only by leave of the High Court. Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition. There would be several instances where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this appeal. When proceed next to examine whether the election petition could be dismissed in the absence of the election petitioner and whether the appellant could apply for its restoration though he himself was not the election petitioner, The basis of the appellant's contention that the election petition cannot be dismissed for the absence of the election petitioner is that once an election petition is filed, it concerns the entire constituency. Purity of the electoral process in a democracy, it is contended, is of paramount importance and an election petition cannot be permitted to be dismissed for default inasmuch as that would lead to situations brought about by manipulation, undue influence, fraud or winning over of the election petitioner. The 2nd respondent's counsel has not disputed before us and rightly in our view that purity of the electoral process is paramount in a democracy and an election petition should not be permitted to be abandoned by undue influence or pressure over the election petitioner. It may be pointed out that there was no allegation of undue influence or pressure over the election petitioner to justify his conduct in this case. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid that an election petition once filed is not a contest only between the parties thereto but continues for the benefit of the whole constituency. It is for that purpose that in the Representation of the People Act, 1951, provisions have been made in sections 109 and 110 relating to withdrawal of an election petition and sections 112 and 116 relating to abatement of such a petition the effect of which is that the petition cannot come to an end by the withdrawal there of by the death of the petitioner or by the death or withdrawal of opposition by the respondent, but is liable in such cases to be continued by any person who might have been a petitioner. There is nothing in the entire Act providing or indicating that a similar procedure is to be followed in the event of a petitioner failing to prosecute the petition. such failure can be due to various causes. The petitioner can, by force of circumstances, be genuinely rendered helpless to prosecute the petition. For instance, he may find that his financial condition has suddenly worsened and that he can no longer afford the expenses of litigation. He may even, owing to exigencies of business or vocation or 703 profession, have to go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Rajendra Kumari Bajpai v.Ram Adhar Yadav Ors. referred to the Punjab case. Fazal Ali, J. speaking on behalf of the Court quoted a portion of the judgment of Grover, J. which we have cited above and said: We fully approve of the line of reasoning adopted by the High Court in that case. It, therefore, follows that the Code is applicable in disposing of an election petition when the election petitioner does not appear or take steps to prosecute the election petition. Dismissal of an election petition for default of appearance of the petitioner under the provisions of either Order IX or Order XVII of the Code would, therefore, be valid and would not be open to challenge on the ground that these provisions providing for dismissal of the election petition for default do not apply. The appellant was not the election petitioner. Order IX, rule 9 of the Code (and not rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition. That can be invoked in an appropriate case by the election petitioner only and not by a respondent. By its own language, rule 9 provides that where a suit is wholly or partly dismissed under rule 8, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fault in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent. This Court in Dhoom Singh v. Prakash Chandra Sethi Ors., held: 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 706 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 conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t out that if the intention of the legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act. We find that even earlier in Shcodhan Singh v. Mohan Lal Gautam, this Court had stated: 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 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. (underlining is ours) We must assume that the legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made. The fact tha ..... 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