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Rahim Khan Vs. the Election Commission of India, New Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn. No. 511 of 1980
Judge
Reported inAIR1981P& H79
ActsRepresentation of the People Act, 1951 - Sections 8A, 11-A(2), 80, 80-A, 98, 99, 107(1) and 116-B; Constitution of India - Article 190(4)
AppellantRahim Khan
RespondentThe Election Commission of India, New Delhi and anr.
Cases ReferredSmt. Indira Nehru Gandhi v. Raj Narain
Excerpt:
.....letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of..........of the high court in terms of section 116b of the act.6. section 116b f the act deals with the stay of operation of the order of the high court and it reads:--'stay of operation of order of high court:-- (1) an application may be made to the high court for stay of operation on an order made by the high court under section 98 or section 99 before the expiration of the time allowed for appealing therefrom and the high court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order but no application for stay shall be made to the high court after an appeal has been preferred to the supreme court. (2) where an appeal has been preferred against an order made under section 98 or section 99 the supreme court may, on sufficient.....
Judgment:
ORDER

1. Ch. Rahim Khan petitioner contested Vidhan Sabha Election from Nuh Constituency of District Gurgaon in March, 1972, against Khurshid Ahmed and others and was declared elected. Khurshid Ahmed filed an election petition (No 7 of 1972) under Section 80 and 80A of the Representation of the People Act, 1951. (hereinafter the Act) and the same was accepted on March 12, 1973, by the High Court on the ground that the petitioner had committed corrupt practice at the election. The petitioner was disqualified for a period of six years under Section 8A (old) of the Act. The petitioner preferred an appeal to the Supreme Court under Section 116B of the Act against the order of the High Court dated March 12, 1973 and also applied for an interim stay of the operation of the impugned order. On May 4, 1973, the Supreme Court passed an interim order on the stray petition of the petitioner, the operative part of which reads:--

'The petitioner-appellant herein be and is hereby permitted to sign the register of the Haryana Legislative Assembly and shall not take pat in the proceedings of the said Assembly, shall not be entitled to any allowance of perquisites as a member o the said Assembly.

(2)...................'

2. The Supreme Court dismissed the appeal of the petitioner on August 8, 1974. The order of the Supreme Court, issued by the Deputy Registrar reads :

'The appeal above mentioned being called on for hearing before this Court on the 10 th,11th, 15th, 16th, 17th, 18 th, 19 th, 22nd, 23rd, 24 th, 25 th, 26 th, 29th and 30th days of April, 1974 up on hearing counsel for the appellant and respondent No. 1. This Court Doth Order: (1) That the appeal above mentioned be and is hereby dismissed; (2) That the parties herein shall bear their respective costs of this appeal throughout; (3) That this Court's order dated the 4th day of May, 1973, granting stay in Civil Misc, Petition No. 3751 of 1973 be and is hereby vacated; And this Court Doth further order that this order be punctually observed and carried into execution by all concerned;

Witness the Hon'ble Shri Ajit Nath Ray, Chief Justice of India at the Supreme Court, New Delhi dated this the eighth day of August, 1974.

Sd/-

Deputy Registrar'

3.A list of person disqualified under Section 8A and 11A(2) of the Act as on August 31, 1979 (relevant except P. 1) was prepared and the name of the petitioner was entered therein. The period of disqualification against the name of the petitioner was shown as six years from August 8, 1974. The petitioner moved the President of India /Election Commission praying for the removal of his disqualification and in the alternative pointing out that his period of disqualification should be taken as expired on March 12, 1979, that is on the expiry of six years with effect from March 12, 1973. The representation of the petitioner was declined and the view expressed by the authorities was that the period of disqualification would start from the date of the Supreme Court's judgment, that is August 8, 1974.The petitioner has filed the present writ petition praying that the list P. 1 in so far as it relates to him be quashed on the ground that the period of his disqualification of sic years stands expired on March, 12. 1979.

4. The Writ has been contested by the election Commission of India. In the written statement submitted on is behalf by S. K. Mediratta, Superintendent Legal, it has been averred that the period of six years disqualification on shall commence from the date of the order of the Supreme Court, that is, August 8, 1974 and not with effect from the date of the order of the High Court, that is March 12, 1973, because in an appeal field by the petitioner against the order of the High Court, the operation thereof was stayed by interim order dated May 4, 1973, which was vacated on August 8, 1974, when the appeal was dismissed by the Supreme Court.

5. The learned counsel for the petitioner has argued that the order of the Supreme Court dated May 4, 1973, the operative part of which has been reproduced above, did not stay the operation of the order of the high Court. The Supreme court did lay down terms and condition which only reiterate the effect of the order of the High Court. The petitioner was allowed to sign the register of the Haryana Legislative Assembly during the pendency of the appeal only to save him from the evil consequences of his seat being declared vacant by the House under Article 190(4) of the Constitution of India. The interim permission extended to the petitioner to sign the register of the Haryana Legislative Assembly did not have the effect of the stay of the operation of the impugned order of the High Court in terms of Section 116B of the Act.

6. Section 116B f the Act deals with the stay of operation of the order of the high Court and it reads:--

'Stay of operation of order of High Court:--

(1) An application may be made to the high Court for stay of operation on an order made by the High Court under Section 98 or Section 99 before the expiration of the time allowed for appealing therefrom and the high Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order but no application for stay shall be made to the High Court after an appeal has been preferred to the Supreme Court.

(2) Where an appeal has been preferred against an order made under Section 98 or section 99 the Supreme Court may, on sufficient cause being shown and on such terms and condition as it may think fit, Stay the operation of the order appealed from.

(3) When the operation of an order is stayed by the high Court or, as the case may be, the Supreme Court, the order shall be deemed never to have take effect under Sub-section (1) of Section 107; and a copy of the stay order immediately be sent by the High Court or, as the case may be, the Supreme Court, to the election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned.'

7. On the stay petition of he petitioner, the Supreme Court passed the order reproduced above on May 4, 1973. By this order, either the prayer of the petitioner for stay was accepted or declined. According to the learned counsel for the petitioner, the stay prayed for was declined inasmuch as no specific order was passed staying the operation of the order of the High Court. I am not impressed by this contention. If the petitioner had not been granted interim stay, he could not be permitted to sign the register of the Haryana Legislative Assembly as a Member. This point came up for discussion before the Supreme Court in Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 1590, and it was observed :--

'... It would be a curious contradiction to say that a person is disqualified to be chosen as or being a Member and yet be allowed to sign the Register as Member. Can the Court, without stultifying itself and usurping power, permit a non-Member to sit in the house instead of or even in the visitor's gallery, unless it necessarily reads into the order of stay of judgment a suspension of the disqualification also?...... .......

The typical stay restores to the appellant, during its operation, the full status of a Member of a Legislature minus the right to participate in debates, including voting and drawing of remuneration as a legislator.'

8. It is clear from the observation or the Supreme Court that the petitioner could sign the register of the Haryana Legislative Assembly as a Member (and as a consequence thereof) could attend the Assembly during Session only as a Member without actually participating therein. If the interim stay of the operation of the order of the High Court prayed for had been declined, the petitioner could not be permitted to sign the register of the Haryana Legislative Assembly as a Member and further to attend the Assembly Session. Conversely, the permission extended to the petitioner by way of interim stay issued by the Supreme Court to sign the register of the Haryana Legislative assembly revived his membership. Such revival of membership of the stay of the operation of the impugned order of the high Court. It is thus clear that the permission given to the petitioner to sign the register of the Haryana Legislative Assembly of the supreme Court per se amounted to the stay of the operation of the order of the High Court.

9. After the petitioner had been permitted to sign the register of the Haryana Legislative Assembly he was debarred from taking part in he proceedings of the Assembly or to claim allowances or perquisites as a Member of the said Assembly. These terms and conditions laid down by the Supreme Court would have been unnecessary and redundant if the interim stay of the operation of the order of the high Court prayed for by the petitioner had been declined. The argument of the learned counsel for the petitioner is that by laying down the terms and conditions, the Supreme Court merely reiterated the consequences of the order of the High court. There is hardly any force in this contention. If the interim stay prayed for by the petitioner had been declined there could be no occasion for the Supreme court to reiterate the consequence of the order of the High Court. The supreme Court laid down the terms and condition had been revived inasmuch as he had been permitted to sign the register of the Legislative Assembly as a Member.

10. The Supreme court in its order dated August 8, 1974, specifically vacated the interim stay order issued on May, 4, 1973. If the contention of the learned counsel for the petitioner that the interim stay prayer of the petitioner was declined by the Supreme Court on May 4, 1973, is to prevail then no question of its vacation arose when the appeal of the petitioner was dismissed on August 8, 1974. The fact that the stay issued in favour of the petitioner on May 4, 1973, was specifically vacated on August 8, 1974, confirms that the stay order of the petitioner had been accepted and not declined.

11. The petitioner signed the register of the Haryana Legislative Assembly in pursuance of the stay order issued by the Supreme Court on May 4, 1973, with the result that his seat could not be declared vacant by the high court under article 190(4) of the constitution. It is obvious that the evil consequences of Article 190(4) did not follow because the petitioner signed the register of the Assembly as a Member and not otherwise. To avoid evil consequences under Article 190(4) object for issuing the stay order by the Supreme Court on May 4, 1973, but the fact remains that his membership of the Assembly was revived to enable him to sign the register of the Assembly in that capacity.

12. In view of discussion above, I hold that the stay order issued by the Supreme Court on May 4, 1973, in favour of the petitioner permitting him to sign the register of the Haryana Legislative Assembly as a Member thereof did amount to stay of the operation of the order of the High Court in terms of Section 116B of the Act. In this situation, the period of six years disqualification of the petitioner shall commence with effect from August 8, 1974, on which date the Supreme Court dismissed his appeal and not with effect from March 12, 1973, when his election was declared void by the high Court.

13. In the result the writ petition fails and is dismissed with no order as to costs.

14. Order accordingly.


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