1. This appeal has been filed under the provisions of Section 116-A of the Representation of the People Act, 1951, and a preliminary objection has been taken to its maintainability. The circumstances under which the preliminary objection comes to be raised are as follows:
2. The respondent No. 2 Narayan Rajaram Kale and the respondents Nos. 3 to 5 and one Mahadeo Tukaram Thakre were candidates for the election from the Arvi Constituency to the Legislative Assembly of the State of Maharashtra at the last General Elections. The election was held on 22-2-1962. The respondent No. 2 Narayan was declared elected. He got 26,337 votes, whereas Mahadeo Tukaram Thakre got 25, 156 votes. After the declaration of the result, Mahadeo Thakre filed an election petition which was referred by the Election Commission for disposal to the Election Tribunal at Wardha. During the pendency of the election petition Mahadeo Thakre passed away on 26-8-1962 and consequent upon his passing away, the election petition abated under the provisions of Section 114 of the Representation of the People Act. The Tribunal declared the petition to have abated and on 31-8-1962 ordered that the notice of abatement should be published in the Official Gazette under Section 114 of the Act. The Tribunal also ordered that the case may be put up after the publication of the notice in the Official Gazette for proper orders. The notice was published in the Maharashtra Government Gazette on the 13th September 1962.
3. Now, Section 115 of the Representation of the People Act requires that after a notice of abatement of an election petition is published under Section 114,
'any person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner and upon compliance with the conditions of Section 117 as to security shall be entitled to be so substituted and to continue the proceedings upon such terms as the Tribunal may think fit'.
Relying upon this provision of the Act, the appellant Vithal Rajaram Hingwe, applied on 26-9-1962to be substituted in place of the original petitionerwho had passed away. In his application the appellant alleged that he had fulfilled the conditionsof Section 117 of the Act as to the deposit of Rs. 2000/-as security for the costs of the petition.
4. The application for substitution was opposed by the returned candidate Narayan Kale on several grounds, two of which ultimately came to be determined by the order impugned in this appeal. The first objection taken to the substitution of the appellant was that he was not a person 'who might himself have been a petitioner' a; required by Section 115 and therefore he was not entitled to be substituted. The Tribunal overruled this objection and held that the appellant was a competent per-son'to be substituted in place of the deceased peti-tioner. The other objection succeeded. It was the objection under Section 117 of the Act. It was contended that the treasury challan showing the deposit of an amount of Rs. 2000/- by the appellant, was not a receipt as required by Section 117 but only showed a deposit in the State Bank of India who were the agents of the Government Treasury and therefore the deposit was not in compliance with Section 117. The application for substitution was liable to be dismissed upon the short ground that it did not comply with the requirements of Section 117 and therefore of Section 115. It was this objection which was upheld and against which the appellant has filed the present appeal.
5. Before the appeal could be heard a preliminary objection to its maintainability has been raised on behalf of the respondent 2. The objection is that 'the order passed by the Tribunal against which the present appeal has been filed is not an appealable order having regard to the provisions of Section 116-A. Possibly, anticipating .such an objection, the appellant has at the foot of his memorandum of appeal made a prayer in paragraph 7 that the memorandum of appeal should alternatively be treated as an application for a writ of certiorari or a writ of mandamus as the case may be and relief should be granted to him under the provisions of Article 227 of the Constitution, and in the second alternative, that the appeal be treated as a revision under Section 115 of the Code of Civil Procedure and be disposed of as such. In view of these alternative prayers, we asked Mr. Masodkar who appears on behalf of the respondent No. 2, whether he was seriously pressing the preliminary objection; and Mr. Masodkar stated that he wants a decision upon the question. There is no dispute as to the jurisdiction of this Court to dispose of the question acting under our constitutional powers; but so far as the right of the appellant to file an appeal under Section 116-A of the Representation of the People Act is concerned, since the preliminary objection has been pressed we would briefly state our decision.
6. Section. 116-A of the Act states the right or appeal in the following words;
116A. Appeals against orders of Election Tribunate.
(i) An appeal shall lie from every order madeby a Tribunal under Section 98 or Section 99 tothe High Court of the State in which the Tribunalis situated.
* * * * * With the other provisions of the section we are not here concerned. Turning to the provisions of Sections 98 and 99 referred to in Sub-section (i) of Section 116A, it is conceded by Mr. Mandlekar on behalf of the appellant that the order impugned in this appeal would not attract the provisions of any of the clauses of Section 99. Therefore, he has to fail back upon the provisions of Section 98, and even so far as the provisions of Section 98 are concerned it is conceded that clauses (b) and (c) thereof would not be attracted, because the subject-matter of the order impugned in this appeal cannot possibly fall within the ambit of those clauses. Mr. Mandlekar however relied upon the provisions of clause (a) of Section 98 and that clause reads as follows:
'98. Decision of the Tribunal. At the conclusion of the trial of an election petition the Tribunal shall make an order
(a) dismissing the election petition; or*****'
Now, no doubt, a mere perusal of the order passed by the Tribunal (we shall presently quote the operative part of it) shows that in terms the Tribunal did not dismiss the election petition or even purport to dismiss it. Therefore, if the terms of the impugned order were to be looked at, the order could not be said to fall within the provisions of Section 98(a) st all anil would not therefore be appealable under Section 116-A(i). But Mr. Mandlekar has relied upon other provisions of the Act and the crucial provision upon which he relies is that contained in Sub-section (3) of Section 90.
7. Section 90 deals with 'procedure before the Tribunal' and in material provisions, thereof it has undergone within the last few years radical amendments. Sub-section. (3) was itself amended by Act 27 of 1956 and Act 40 of 1961; but the Explanation which is to be found at the foot of it, was added by Section 28 of Act 58 of 1958, and along with the Explanation the Sub-section now reads :
'The Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, or section 82 notwithstanding that it has not been dismissed by the Election Commission under Section 85.
Explanation.-- An order of the Tribunal dismissing an election petition under this Sub-section shall be deemed to be an older made, under clause (a) of Section 98.'
Therefore, an order passed under Sub-section (3) of Section 90 is by virtue of the Explanation, deemed to be an order under Section 98(a) and would therefore become appealable under Section 116A.
8. The further question that arises for determination here is whether the order impugned in the present appeal is an order under Section 90, Sub-section (3). Now, Sub-section (3) of Section 90 refers to an order dismissing an election petition which does not comply with the provisions of Section 81 or Section 82. It is thus only an order consequential upon non-compliance with Sections 81 and 82 which is deemed to be an order under Section 98(a) and therefore appealable under Section 116-A.
9. In the unamended Section 90(3) there was an express reference to Section 117 but with effect from 20-9-1961 those words were omitted by Section 19 of Act 40 of 1961. Thus, there is no reference to Section 117 in Sub-section (3) of Section 90 after its amendment by Act 40 of 1961, or in Sections 81 or 82. In other words, an order not complying with Section 117 simpliciter would not now be an order to which the Explanation to Sub-section (3) of Section 90 would be attracted and therefore it would not be deemed to be an order made under Section 98(a) an would not therefore be appealable under Section 116-A. This deliberate omission of Section 117. from Section 90(3) by an amendment in itself would show that where the Tribunal dismisses a petition for non-compliance with Sec-tion 117, the order would not be an appealableorder.
10. Mr. Mandlekar on behalf of the appellant concedes that Section 90(3) in literal terms would not apply to this case but he has sought to bring the order under Sub-section (3) of Section 90 by invoking the provisions of Sub-section (i) of Section 81, which runs as follows :
'81. Presentation of petitions, (i) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (i) of Section 100 and Section 101 to the Election Commission by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates,
Explanation.-- In this Sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
* * * * *' Mr. Mandlekar says that the order impugned in the appeal is an order passed under Section 81 because the ultimate result of the order is to hold that the election petition before the Tribunal was not validly presented. We are unable to appreciate the relevancy of this argument. Section 81. deals with three subjects (i) the grounds upon which an election petition may be presented (2) the persons who may present it and (3) the date of presentation. It does not lay down any other condition for presentation, nor does it make the deposit of Rs. 2000/- contemplated in Section 117 a condition of proper or valid presentation. Therefore Section 81 would not be attracted at all even if no deposit were made.
(ii), Section 81 moreover requires that an election petition should be presented by any candidate at such election or any elector, and so far as that is concerned it seems to us that the Tribunal has clearly held that the appellant was an elector ana entitled to prosecute the election petition. There not appear to us that the order which passed would fall under Section 81 the grievance of the appellant is concerned. In fact, having regard to its provisions it seems- to us that the decision was in his favour. The true ground upon which the application of the petitioner was dismissed was quite a different ground. The objection which prevailed with tho Tribunal was the objection under Section 117 of the Act, namely., that the person claiming to be substituted -- (the present appellant) -- had not made the deposit of Rs. 2,000/ in compliance with the provisions of Section 117. We do not at this stage wish to pronounce upon the merits of that decision. That question, in the view we take of this matter, may later have to be considered by us. But so far as the preliminary objection is concerned it is quite clear that the order passed by the Tribunal impugned in the present appeal could not be an order under Section 81. The ultimate decision which the Tribunal came to is stated in paragraph 28 of its order: 'For all the reasonsstated above, the application ior substitution isdismissed.'
Therefore, all that the Tribunal decided was that under the provisions of Section 115 the ap- appellant was not entitled to be substituted in place of the original election petitioner and no more. The Tribunal did not pass an order dismissing the election petition, nor did it pass an order holding that the election petition was not in compliance With the provisions of Section 81. In fact, as we see it, there was no question of determining whether the election petition was in compliance with the provisions of Section 81 at that stage, because there was no election petition,
12. Section 112 states that 'an election petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners.' Therefore, on the death of the sole petitioner in the instant case, the election petition abated. If it did so abate, we do not see how by the mere making of an application for substitution in place of the deceased election petitioner, the abatement could in any way be affected or the abated petition revive. No doubt, if the application ior substitution had been allowed, then the appellant would have been substituted, and under Section 115, it could be said that the abated proceeding would revive and could be continued by the substituted petitioner. But that even did not take place in the instant case. Therefore, there was no question here of an election petition being before the Tribunal much less of an election petition being dismissed. We stress this point because a certain decision of the Supreme Court of India was brought to our notice and the argument was advanced that an order dismissing the application for non-compliance with Section 117 would be an order under Section 98(a) and therefore appealable.
13. Reference was made by Mr. Mandlekar to two decisions of the Supreme Court of India reported in Chandrika Prasad v. Shiv Prasad : AIR1959SC827 and to Harish Cbandra v. Triloki Singh : 1SCR370 . This case was merely referred to in the case first mentioned and it is really with the decision in Chandrika Prasad Tripathi's case : AIR1959SC827 that we are here con-cerned. In that case also, the question arose as to the nature of the deposit to ba made by a person who had himself filed an election petition. An objection was raised under Section 117 against that deposit and it was held by the Election Tribunal that the petitioner had not complied with the provisions of Section 117. Against that order an appeal was filed to the High Court of Madhya Pradesh, and the objection was raised that no appeal lay against the order. The Supreme Court discussed the provisions of Section 90(3) as it originally stood without the Explanation and before its amendment by Act 40 of 1961 and held that an order dismissing an election petition under Section 90(3) for non-compliance with the provisions of Section 117 is in substance and in law an order made at the conclusion of the trial under Section 98 and consequently appealable to the High Court under Section 116-A. Their Lordships, without the aid of the Explanation now -incorporated in Sub-section (3) of Section 90, held:
'Therefore, we think it would be reasonable to hold that, where the tribunal dismisses an election petition by virtue of the provisions contained in Section 90, Sub-section (3), the order of dismissal must be deemed to have been made under Section 98.'
We have already mentioned that their Lordships were in that case considering the matter under the unamended Sub-section (3) of Section 90. At that time Section 90(3) in terms referred to Section 117; now after its amendment by Act 40 of 1961 it does not. Therefore, toe real point decided in that case cannot now apply.
14. The explanation to Section 90(3) did not apply in that case though at the time when the Supreme Court pronounced the judgment the amend-ment had come into force and the Explanation had been added. Their Lordships observed at page 178 of the Report (Ele LR): (at p. 830 of AIR) with reference to that Explanation (which did not apply in that case) :
'We would like to add that by Act 58 of 1958 an Explanation has been added to Section 90, Subsection (3), which clarifies the legislative intention on this point. This Explanation provides thatan order of the tribunal dismissing an election petition under this Sub-section shall be deemed to be an order made under clause (a) of Section 98. After the enactment of this Explanation there can be no doubt that an order passed under Section 90, Sub-section (3), would be appealable under Section 116-A.'
Their Lordships pointed out that the view which they had taken in that case was reinforced by the enactment of the Explanation to Sub-section (3) of Section 90 and that the orders which were passed under the provisions of Section 81 referred to in Sub-section (3) of Section 90 would be appealable by virtue of the Explanation.
15. Now, no doubt, the position as adumbrated in the above decision is quite clear. But the point which has been raised on behalf of the respondent No. 2 is that the order impugned in the present appeal is not an order under Sub-section (3) of Section 90 at all. In fact, even the Explanation to Section 90(3) only speaks of 'an order of the Tribunal dismissing an election petition under this Sub-section'. Therefore, whatever order is made appealable by virtue of the Explanation must be an order dismissing an election petition under Sub-section (3) of Section 90 and it is from this point of view that we stress the distinction between the dismissal of an application for substitution and the dismissal of an election petition.
16. The two cases of the Supreme Court of India to which reference has been made were both cases where the petitioner who had originally, presented the election petition had made a default under Section 117. None of those cases was a case where upon the death of the original petitioner, the person claiming substitution had made that default and herein lies, in our opinion, the crucial difference. Having regard to the provisions of law to which we have already referred, it is clear that what the Legislature had in mind were orders disposing of an election petition in one of theseveral ways mentioned in Section 116-A read with Sections 98 and 99. These sections refer to the disposal of the election petition, as such, not of an application for substitution. To the appealable orders under these sections were super added the orders which were 'deemed to be orders' under Section 98(a) by virtue of the Explanation to sub-section (3) of Section 90. But even in the case of 'deemed to be orders' it is an order concerning the election petition that has been contemplated. Under Section 81 the dismissal of tho petition results because of non-compliance with any of the provisions of that section, namely, that the person who presents it was not a candidate at such an election or an elector or that it is otherwise not presented in the manner laid down in Sub-section (2) or not accompanied by the documents required by Sub-section (3). Under Section 82 the petition is again liable to be dismissed for nonjoinder of necessary parties. In either case, the order under those sections is an order dismissing an election petition and not an order dismissing an application for substitution as in the' present case. It seems to us that in respect of an order dismissing an application for substitution the Legislature did not intend to give a right of appeal. In the circumstances, therefore, the objection raised to the maintainability of this appeal will have to be sustained and the appeal as such will have to be dismissed.
17. But then there is an alternative prayer made in the so-called appeal that the appeal should be treated as an application under Article 227 of the Constitution and the necessary writs should be issued, or in the second alternative, that it should be treated as a revision application under Section 115 of the Code of Civil Procedure. As to which of these two remedies the appellant shall take we are not called upon to pronounce. But we do feel having regard to the decision to which we have come and in view of the fact that the appellant had already made those alternative prayers that he should be given an opportunity to amend the memorandum of appeal to convert it either into an application for the exercise of our constitutional powers or an application under Section 115 of the Code of Civil Procedure. If the appellant decides to convert it into an application for the exercise of our constitutional powers, a copy of the application shall be furnished to the respondents by the 16th March 1963 and the returns of the respondents shall be in by the 22nd March 1963. After the matter is finally disposed of we shall pass farther orders as to costs.
18. Order accordingly.