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Ram Swaroop and ors. Vs. G.D. Sahagal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 732 of 1959
Judge
Reported inAIR1959All697
ActsRepresentation of the People Act, 1951 - Sections 86, 86(1) and 89; Constitution of India - Articles 32 and 226
AppellantRam Swaroop and ors.
RespondentG.D. Sahagal and ors.
Appellant AdvocateJetendra Kumar, ;K.N. Tripathi and ;B.D. Mukherjee, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
election - sub-section (1) of section 86 and section 89 of representation of people act, 1951 - election petition dismissed by tribunal - person appointed as election tribunal is available - case remanded by the high court - case shall not be referred to election commission - particular individual having already being appointed by the commission to try the election petition has jurisdiction to continue the trial - no appointment of another tribunal. - .....petition and for the issue of a writ of certiorari quashing the entire proceedings held before the election tribunal, respondent no. 1, between 4-10-1958 and 5-3-1959 and the tribunal's order dated 4th march 1959.2. the facts leading to this petition are that the present petitioners filed an election petition against raja anand brahma shah and sobh nath, respondents nos. 2 and 3, who had been declared' elected as members of the legislative assembly from the 182 robertsganj legislative assembly constituency. the election commission of india appointed respondent no. 1 as election tribunal for the trial of that petition. the petition was dismissed under sub-section (3) of section 90 of the representation of the people act, 1951, on the ground of non-compliance with the provisions of section.....
Judgment:

R. Dayal, J.

1. This is a petition under Arts. 226 and 227 of the Constitution praying for the issue of a writ of quo warranto requiring the respondent No. 1, Sri G. D. Sahgal, District and Sessions Judge of Allahabad, to snow the authority under which he was trying Election Petition No. 366 of 1957 (Brij Bhushan and another v. Raja Anand Brahma Shah), for the issue of a writ of prohibition prohibiting the respondent No. 1 to proceed with the trial of the said election petition and for the issue of a writ of certiorari quashing the entire proceedings held before the Election Tribunal, respondent No. 1, between 4-10-1958 and 5-3-1959 and the Tribunal's order dated 4th March 1959.

2. The facts leading to this petition are that the present petitioners filed an election petition against Raja Anand Brahma Shah and Sobh Nath, respondents Nos. 2 and 3, who had been declared' elected as members of the Legislative Assembly from the 182 Robertsganj Legislative Assembly Constituency. The Election Commission of India appointed respondent No. 1 as Election Tribunal for the trial of that petition. The petition was dismissed under Sub-section (3) of Section 90 of the Representation of the People Act, 1951, on the ground of non-compliance with the provisions of Section 117 of the Act. The petitioners then presented Civil Misc.Writ No. 678 of 1958 in this Court. That writ petition was allowed on 29-7-1958. The operative portion of the order is:

'We, consequently, direct that a writ shall issue quashing the order of the Tribunal dated 19-9-1957 by which the election petition was dismissed, The petitioners will be entitled to their costs of this petition, which we fix at Rs. 100/-. The result of our order is that the election petition, which was wrongly dismissed by the Election Tribunal, shall be deemed to be pending and the Tribunal shall proceed to decide it in accordance with the law.'

3. Thereafter the respondent No. 1, the original Election Tribunal, took up the election petition for further proceedings on 4-10-1958. On 3-3-1959 the petitioners applied to the Tribunal questioning its jurisdiction. The application was rejected.

4. The jurisdiction of the respondent No. 1 is questioned on the grounds that it became functus officio after it had dismissed the election petition on 19-9-3957 and that neither the order of the High Court dated 29-7-1958 revived that Tribunal nor the High Court could have revived it. It is contended that the Election Commission should have started afresh in accordance with the provisions of Section 86 of the Act, that is it should have republished the election petition and should have appointed afresh a Tribunal to try the election petition.

We do not agree with these contentions and are of opinion that the order of the High Court dated 29-7-1958 did hold that the election petition, as a result of the quashing of the order of the Tribunal dated 19-9-1957, was pending, presumably before the Tribunal itself and that that Tribunal could proceed to decide the election petition in accordance with the law. This can be the only interpretation of the order of this Court. In the present case, this Court itself had ordered it to be pending before that Tribunal and to be tried by that Tribunal in accordance with the law, and surely that order of this Court cannot be questioned before it by means of this writ petition. It is submitted for the petitioners that this Court did not really mean the petition to go back to the same Tribunal.

We find it difficult to interpret the order of this Court in that way. The petition was deemed to be pending and must be deemed to be pending in the same Tribunal which had its existence on the date it pronounced the order. If no Tribunal existed, the petition was not pending anywhere, and, strictly speaking, it would have to be represented to the Election Tribunal or to the Election Commission by this Court a course which is not suggested to be correct by learned counsel for the petitioners.

5. The contention of the learned counsel for the petitioners that after the decision of this Court dated 29-7-1958, the election petition should again have been referred to the Election Commission and the Election Commission should have acted under Section 86 of the Representation of the People Act a second time also does not appeal to us. Sub-section (1) of Section 86 is only relevant for our present purposes. It is as follows :

'If the petition is not dismissed under Section 85 the Election Commission shall cause a copy thereof to be published in the Official Gazette and a copy to be served by post on each respondent, and shall then refer the petition to an Election Tribunal for trial.'

6. A reading of sub-s. (1), quoted above, I would show that it does not contemplate or providefor the appointment of another Tribunal to try the same election petition which, though dismissed previously by the Tribunal, had to be retried on account of those orders being set aside either by the appellate court or by the High Court in the exercise of its jurisdiction under Article 226 of the Constitution. Section 86 just provides that in case an election petition is not dismissed under Section 85, the Election Commission shall cause a copy thereof to be published in the official Gazette and shall then refer the petition to an Election Tribunal for trial. The Election Tribunal is appointed for the trial of the petition and, in one sense, the trial is not concluded till the election petition is finally disposed of.

It may appear to be disposed of finally by a certain order of the Tribunal; but in case that order is set aside and the election petition has to be reheard, it is difficult to say that the petition had been finally disposed of by the earlier order and its trial had come to an end. The petition, in such circumstances, will have to go back to the same Tribunal which had jurisdiction over it in the first instance. It could not have been contemplated by the Legislature that after the case has been remanded a copy of the election petition should again be published in the official Gazette and copies of it served a second time on the respondent. This would be an entirely futile proceeding,

7. If for any reason the Election Commission thinks that the Election Tribunal appointed by it cannot or should not proceed with the case, it has been granted full powers under Section 89 of the Act to withdraw and transfer election petitions. Under Section 89 the Election Commission has been authorised to withdraw any petition pending before the Tribunal and transfer it for trial to another Tribunal constituted in accordance with the provisions of Section 86. In such a case, another Tribunal may be constituted. It also may be that a District Judge appointed as Election Tribunal is transferred from one district to another and in such a case the Election Commission may constitute another Election Tribunal. But there is nothing in Sections 86 and 89 to suggest that if the person appointed as the Election Tribunal is still available and the case is remanded by the High Court, the matter should again be referred to the Election Commission. The particular individual having already been appointed by the Commission to try the Election Petition has jurisdiction to continue tie trial and to conclude it according to law.

8. For the reasons stated above, we do notaccept the contention raised on behalf of the petitioners against the Jurisdiction of the respondentNo. 1 to try this election petition. We, therefore,dismiss this petition.


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