Case: Dhoom Singh Vs. Prakash Chandra Sethi &amp; Ors

notice is to be given not only to the parties to the election petition but it is to be published in the official gazette also. Sub-section (2) of Section 110 enjoins upon the High Court not to allow the: withdrawal application if it has been induced by any bargain or consideration which ought not to be allowed. If the withdrawal application is granted then Section 110 (3) (c) permits a person who might himself have been a petitioner in the election petition to apply to be substituted as petitioner in place of the party withdrawing within 14 days of the date of the publication of the notice in the official gazette. Similarly on the abatement of an election Petition on the death of the petitioner or petitioners as the case may be any person who might himself have been petitioner can apply to be substituted under sub-section (3) of Section 112.It is difficult to accept the contention put forward on behalf of the appellant that in substance and in effect the action of respondent no. 3, even assuming it was collusive or fraudulent. had the effect of withdrawing of his election petition by him. It may also be added that there was no such stand taken by the appellant in his petition filed in the High Court on 23-1-1973.None of the Provisions relating to withdrawal of election petition was attracted in this case.9. The Legislature in its wisdom has chosen to make specia1 provisions for the continuance of the election petition only in case if 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 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 consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" - See pages 69 and 70 of Craies on Statute Law - 6th edition.10. It seems plain that the High Court is enjoined to dismiss . an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under Section 86 (1). Even in such a situation we find no provision in the Act under which the High Court could Permit a person like the appellant to intervene in the matter or to substantiate- his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in, the matter. If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose.11. Mr. Gupte in support of his argument placed reliance upon a passage which occurs at pane 421 in the judgment of this Court in Sheodan Singh v. Mohan Lal Gautam (1969) 3 SCR 417 = (AIR 1969 SC 1024 ), and which is to the following effect"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."But the said observations cannot and were not meant to travel beyond the realm of the contingencies of withdrawal and abatement of an election petition.12. In Duryodhan v. Sitaram. AIR 1970 All I (FB) one of the learned Judges constituting the Full Bench in his separate judgment pointed out at page 14 of a similar contingency arising in the case of dismissal of an election petition for default of appearance of the election petitioner. The argument that in such a situation "the intention of the legislature that a petition should not fail by reason of any bargain or collusion between the election petitioner and the successful candidate would be frustrated" was repelled on the ground. "There is undoubtedly a lacuna in the Act, because it makes provision when an election petitioner is allowed to withdraw, but makes no such provision if he just refuses to prosecute it. But that reason would not, as pointed out by Grover, J. in Jugal Kishores case AIR 1968 Punj 152 (F.B.) (Supra) be a sufficient reason to construe the provisions beyond the purview of their language." This is another type of contingency, where if thought necessary; it is for the Legislature to intervene: The Court is helpless.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]5. Although in view of the explanation appended to sub-section (1) of Section 86 of the Act an order of the High Court dismissing the election petition under the said sub-section is to be deemed to be an order made under clause (a) of Section 98 and hence appealable under Sec. 116A, learned counsel for the appellant found it difficult to satisfy us that the scope of this appeal was to find out whether the appellant was a person who had a right to file such an appeal or in any event he had such right.The appellant was not a party to the election petition nor was he allowed the intervention by the High Court. In this appeal, therefore, there is no question of permitting the appellant to challenge the order of the High Court made under section 86 of the Act on merits.6. There is, however, no doubt that in this appeal it is open to the appellant to assail the order made by the High Court on his petition filed on 23-1-1973.We do not think that any of the points urged on behalf of the appellant is fit tois difficult to accept the contention put forward on behalf of the appellant that in substance and in effect the action of respondent no. 3, even assuming it was collusive or fraudulent. had the effect of withdrawing of his election petition by him. It may also be added that there was no such stand taken by the appellant in his petition filed in the High Court on 23-1-1973.None of the Provisions relating to withdrawal of election petition was attracted in this case.It seems plain that the High Court is enjoined to dismiss . an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. In the true cases of non-compliance with the said provisions of law a question of intervention by another person may not arise. But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under Section 86 (1). Even in such a situation we find no provision in the Act under which the High Court could Permit a person like the appellant to intervene in the matter or to substantiate- his allegations of fraud or collusion between the election petitioner and the returned candidate. It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in, the matter. If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for thethe said observations cannot and were not meant to travel beyond the realm of the contingencies of withdrawal and abatement of an election petition.The Court is helpless.