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

1. Respondent no. 1 in this appeal was elected a member of the Madhya Pradesh State Legislative Assembly from the Ujjain North Assembly Constituency. The third respondent filed an election petition on 25-4-1972 in the Madhya Pradesh High Court for declaring the election of the first respondent void. After service of the notice of the election petition along with the enclosures thereto, respondent no. 1 made an application on 28-11-1972 to the High Court raising an objection that out of the copies of the election petition, list of Annexures, Annexures and Affidavits served on him, only the Annexures were signed by respondent no. 3 and the rest were not signed by him. Respondent no. 1 submitted to the Court that there was non-compliance with the requirement of subsection (3) of Section 81 of the Representation of the People Act, 1951 - (hereinafter called the Act) and hence the election petition was liable to be dismissed under Section 86 (1): A learned single Judge of the High Court to whom the election petition had been transferred for disposal heard the matter on several dates along with some other miscellaneous petitions filed in the case. Time was granted to learned counsel for respondent no. 3 to resist the prayer of respondent no. 1 for dismissal of the election petition. Eventually learned counsel for respondent no. 3 withdrew from the case and the said respondent presented his case in person to the Court. Several persons in the meantime intervened to say that respondent no. 3 had colluded with respondent no. 1, as a matter of fact there was no non-compliance with the requirement of Section 81 (3) of the Act, and therefore, the election petition could not be dismissed under section 86. They asked the Court to allow them to intervene. Prayer of one such person was refused by the High Court on 12-1-1973. Finally when the order on the objection of respondent no. 1 was going to be made on 23-1-l973, the appellant came forward to make an application for intervention. He stated that respondent no. 3 in collusion with respondent no. 1 had admitted that the copies of the petition were not attested to be true copies and were not signed by him, on enquiries he had come to know that all the copies of the petition and the annexures were duly attested to be true, copies of the petitions and were signed by respondent no. 3, it was not in the interest of justice to dismiss the election petition as a result of the false and collusive stand of respondents 3 and 1. The appellant offered to substantiate his allegations and prayed for a weeks time to do the same. In the meantime passing of the order on the petition of respondent no. 1 was asked to be deferred.2. The High Court asked the appellants counsel who was none else than the counsel of respondent no. 3 and who had withdrawn from representing him, to show under what provision of the Act or any other law an elector of the Constituency as the appellant was, had a right to intervene in the case. Since the appellants Advocate was unable to show it the prayer of the appellant was rejected by an order passed on 23-1-1973. Later on the same date by a reasoned and long order the objection of respondent no. 1 was allowed on the basis of the copies of the various papers as they were before the Court. It was held that there was non-compliance with the requirement of section 81 (3) of the Act and hence the election petition was dismissed by the separate order passed on 23-1-1973.3. The appellant presented an appeal to this Court under Sec. 11 6A of the Act along with a petition to permit him to file the appeal. In the alternative a prayer was made to treat the petition of appeal as a petition under Article 136 of the Constitution of India for seeking special leave of this Court, to file an appeal from the order refusing the appellants prayer made in his petition dated 23-1-1973. A Bench of this Court upon hearing counsel for the appellant and respondent no. 1 permitted the converting of the appeal of the appellant into a special leave petition and granted special leave by its order dated 11-10-1973.

Reasoning:
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.