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Narayan Yeshwant Nene Vs. Rajaram Balkrishna Raut and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberCivil Appln. Nos. 2422 and 2423 of 1958 in F.A. Nos. 145 and 146 of 1958
Judge
Reported inAIR1961Bom21; (1959)61BOMLR1274; ILR1960Bom218
ActsRepresentation of the People Act, 1951 - Sections 110, 110(2), 110(3), 112, 113, 114, 115, 116, 116A, 116A(2), 116B and 117
AppellantNarayan Yeshwant Nene
RespondentRajaram Balkrishna Raut and anr.
Appellant AdvocateV.K. Joshi, Adv.
Respondent AdvocateS.B. Bhasme, ;M.A. Rane and ;G.N. Vaidya, Advs. and ;H.M. Seervai, Adv. General as Amicus Curiae
Excerpt:
.....116b, 116a - appeal against order of tribunal filed in high court -- high court permitting withdrawal of appeal and ordering disposal thereof -- whether such order a decision within section 116b -- order whether open to review.;the expression 'decision of the high court' in section 116b of the representation of the people act, 1951, means the final order of the high court disposing of the appeal on merits or otherwise. therefore, an order of the high court permitting withdrawal of the appeal filed against the tribunal under section 116a of the act and ordering disposal thereof, is a decision within the meaning of section 116b of the act, and such an order is final and conclusive and not open to review by the high court.;quaere: whether in view of section 116a(2) of the act the..........the record and to prosecute the petition of a person dying before its disposal. by section 116, an election proceeding may be continued even after the death of the original respondent against a substituted respondent. there can be no doubt therefore, that once a proceeding under the representation of the people act has readied the election commission or the tribunal, those authorities must hear and dispose it of on its merits,4. this court was requested by the appellant, nene, to he permitted to abandon the appeal. it may appear, in view of sub-section (2) of section 116a, that the provisions relating to the withdrawal of a petition or abatement, may also apply to an appeal filed against the order of the tribunal. but, on that question we express no considered opinion. the petitioner, in.....
Judgment:

Shah, J.

1. An election was held in the Parliamentary Constituency for Meeting a representative from the Kolaba District. One Rajaram Balkrishan Rant was declared elected by the Election Commissioner. Thereafter. one Narayan Yeshwant None (whom we shall hereafter refer to as 'Nene') applied to set aside the election on the ground that Rajaram Balkrishna Raut had been guilty of corrupt practices which had vitiated the election. That application was dismissed by the Tribunal constituted under the Representation of the People Act, 1951. Against the order passed by that Tribunal, an appeal was preferred to this Couer under Section 116A of the Act. That appeal teas placed for hearing before Mr. Justice S. T. Desai and Mr. Justice Miabhoy on 17-6-1958. It appears Irons the judgment recorded that alter arguments were heard by the Court on the merits of the dispute, a suggestion was thrown out by the Court that the petition for setting aside the election he abandoned in the larger interest of the public. The learned advocates who appeared on behalf of Nene and Raut after considering the suggestion informed the Court that the appeal need not be proceeded with. Thereafter, Mr. R, B. Kotwa], who appeared on behalf of None, stated that his client desired to withdraw the petition and the appeal may be allowed to be withdrawn. Mr. Sule, who appeared on behalf of Raut, stated that his client has no objection in the Petition and the appeal hearing permitted to be withdrawn. The Court then proceeded to pass the final order as follows:

'The result is that, the appeal will be allowed list Sw withdrawn. Learned Counsel for the parties the agreed that there should be no order for costs of the hearing of this appeal and that the order for east's made by the Tribunal should be vacated. Order accordingly'.

2. On 4-8-1958 one Jagannath Bhau Patil, who is the petitioner in this application has applied for being substituted as an appellant and for prosecuting the appeal. He contended that the proceeding for setting aside an election on the ground of corrupt practices is not merely a proceeding in which the two parties before the Court are concerned, but it is a dispute in which the entire electorate is concerned, and, having regard to the provisions of Section 110 of the Representation of the People Act, 1951, read with Section 116A of the Act, the appeal could not have been permitted to be withdrawn by the Court which heard the appeal. It is urged that the order allowing withdrawal of the appeal was without jurisdiction, when it was not followed by the publication of a notice of withdrawal of the appeal, and, therefore, the applicant he permitted to be substituted for the original appellant and to prosecute the appeal. When rule was issued the Court requested the Advocate General to appear and assist the Court as amicus curiae. This application is now placed before us for hearing and the learned Advocate General has appeared before us.

3. Section 110 of the Represent at ion of the People Act. 1951, provides by the first Sub-section that if there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the Petitioners. By Sub-section (2), it is provided that no application for withdrawal shall be granted if in the opinion of the Election Commission or of the Tri-bunai, as the case may be, such application has been induced by any bargain or consideration which ought not to be allowed. By Sub-section (3), it is provided that if the application is granted, an order as to costs shall be passed; and the notice of withdrawal shall be published in the Official Gazette by the Election Commission or by the Tribunal, as the case m;iy be; and a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions of Section 117 as to security, shall be entitled to he so substituted and to continue the proceeding upon such terms as the Tribunal may think fit. It is evident from Section 110 of the Representation of the People Act thai an application for withdrawal which is not bona fide may not be allowed by the Tribunal or the Election Commission, and, even if the application is granted, any person who was entitled to present the petition, may upon such terms, as the Tribunal imposes, continue the proceeding. This provision sufficiently indicates that a proceeding for setting aside an election is one in which the entire electorate is interested, and may not be abandoned without due notice to the voters. That is further made clear by Sections 112 to 115, whereby any person, who might himself have been a petitioner, is permitted to come on the record and to prosecute the petition of a person dying before its disposal. By Section 116, an election proceeding may be continued even after the death of the original respondent against a substituted respondent. There can be no doubt therefore, that once a proceeding under the Representation of the People Act has readied the Election Commission or the Tribunal, those authorities must hear and dispose it of on its merits,

4. This Court was requested by the appellant, Nene, to he permitted to abandon the appeal. It may appear, in view of Sub-section (2) of Section 116A, that the provisions relating to the withdrawal of a petition or abatement, may also apply to an appeal filed against the order of the Tribunal. But, on that question we express no considered opinion. The Petitioner, in this case is faced with a twofold difficulty. There is an order passed by this Court, by which the appeal has been disposed of after permitting withdrawal, and the Legislature has not only cot enacted any provision for review of orders passed by the High Court in appeal, but has expressly enacted that the orders are to be final and conclusive. Again even if there was some irregularity in the passing of the order disposing of the appeal, this Court is incompetent on that account to set aside the order.

5. In support of the application, it is urged that an order of the Court permitting withdrawal of the appeal and ordering disposal thereof is not a decision within the meaning of Section 116B. It is contended that the decision contemplated by Section 116-B is an adjudication on the merits of the dispute between the parties before the Tribunal, and an order of disposal without adjudication of the merits of the dispute by the High Court in appeal, is not a decision within the meaning of Section 116B. We are unable to accept that contention. The expression 'decision' is not defined in the Act, and there is nothing in the context in which that expression occurs, which justifies the submission that a final order disposing of the appeal though not on the merits, is not a decision. Even a casual examination of the argument is likely to present numerous difficulties against its acceptance. If an appeal is permitted to be withdrawn and a notice of the intended withdrawal is published in the Official Gazette, and if, thereafter, no party comes before the Court, on the arguments advanced by the learned Advocate General, the appeal may still not be regarded as disposed of by a decision, and may permanently remain on the file of the Court. Similarly, if the appellant dies and no one conies forward to prosecute the appeal, if the argument is accepted, the appeal will remain undisposed there being no decision of the Court. In our view, the expression 'decision of the High Court' means the final order of the High Court disposing of the appeal on merits or otherwise. If that be the true effect of Section 116B, in our judgment, the order disposing of the appeal on withdrawal by the original appellant, must be regarded as a decision of the High Court, which is final and conclusive.

6. The Act does not provide for any review ot the judgment of this Court on any ground; find it is well settled that a Court is not invested with a power of review unless such, power is expressly conferred. The Legislature has not only not conferred a power of review upon this Court to review decisions in appeal under the Representation of the People Act, but has declared the order final and conclusive.

7. On that view of the case, in our judgment,the application filed by Jagannath Bhau Patil mustbe held not maintainable and must on that groundbe rejected. There will be no order as to costs ofthe application. The same order in Application No.2423 of 1958.

8. Application dismissed.


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