Case: Thammanna Vs. K. Veera Reddy &amp; Ors

The material facts are these :2. In the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 respondents 1 to 4, 6, 7 and the appellant filed their nominations for Amarchinta Assembly Constituency. Polling took place on February 25, 1978, and Shri K. Veera Reddy, respondent 1, was declared elected on February 27, 1978. He secured 34727 votes while his nearest rival, respondent 2, got 29, 419 votes. The appellant obtained 822 votes only3. Shri V. Krishna Reddy, (Respondent 7 herein), being a voter for 198 Amarchinta Assembly Constituency in Mahabunagar District filed an election petition in the High Court to get the election of the first respondent declared void on the ground that on the date of filing the nomination paper as well as on the date of the election, this respondent had subsisting contracts with the Government of Andhra Pradesh and, as such, he was under Section 9A of the Representation of the People Act, 1950 (hereinafter referred to as the Act) disqualified to be chosen to fill the seat. All the candidates who had filed their nominations, were joined in the Election-Petition as respondents. The appellant was impleaded as original respondent 5. The Election-Petition was contested by respondent 1, (K. Veera Reddy), only. The appellant (i. e. original Respondent 5) did not file any written statement. He did not lead any evidence, nor did he cross-examine the witnesses produced by respondent 1 or the Election-Petitioner. He did not participate even in the arguments.

Reasoning:
In the present case, these conditions, particularly Nos. (1) and (3), have not been fulfilled. Before the High Court the appellant did not, at any stage, join the contest. He did not file any written statement or affidavit. He did not engage any counsel. He did not cross-examine the witnesses produced by the Election-Petitioner and the contesting respondent 1. He did not appear in the witness box. He did not address any arguments. In short, he did nothing tangible to participate in the proceedings before the High Court18. In the face of the stark facts of the case, detailed above, it is not possible to say that the appellant was aggrieved or prejudicially affected by the decision of the High Court, dismissing the election-petition19. We are further unable to accept the wide argument, that since an election petition is in the nature of a representative action on behalf of the whole body of electors in the constituency, on neglect or failure of the election-petitioner to file an appeal against the order of dismissal of his election-petition, any other elector, particularly who is a respondent in the election-petition, can, in view of Sections 109/110 of the Act, be substituted for him for the purpos of filing and continuing the appeal. It is true that an election-petition once filed cannot be abandoned or withdrawn by the petitioner at his sweetwill22. But it is equally clear from the language, setting and scheme of the provisions in Sections 109 to 116, that they do not, either in terms, or, in principle, apply to appeals or the procedure to be followed at the appellate stage before the Supreme Court23. Firstly, these provisions are to be found in Chapter IV, under the main Caption : Withdrawal and Abatement of Election Petitions. Then, the provisions of these sections, also, repeatedly refer to the withdrawal or abatement of election-petitions and also to procedure in respect thereof before the High Court. The provisions relating to Appeals in Sections 116-A, 116-B and 116-C, have been included separately, in Chapter IV-A, captioned; Appeals24. Secondly, Section 116-C, as already noticed, enjoins upon the Supreme Court to hear determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court. No. doubt this is subject to the provisions of the Act and the rules if any, made thereunder. But this clause only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded, expressly or by necessary implication by any provision of the Act. There is no. provision in Chapter IV-A of the Act, analogous to Sections 109 to 116 of the Act which curtails, restricts or fetters an appellants right to withdraw an appeal. Nor is there any such provision in the Code or the Rules of this Court which does so. If the intention of the Legislature was that the provisions of Secs. 109 to 116 which apply to the withdrawal of election-petitions, should also govern the withdrawal of appeals, there was no. difficulty in inserting similar provisions in Section 116-C or elsewhere in Chapter IV-A25. In this view we are fortified by the decision of this Court in Bijayananda Patnaiks case (ibid). (AIR 1963 SC 1566  ). In that case the provisions of Ss. 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S. filed an election petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, Bs application, the Tribunal dismissed the petition under Section 90 (3), for non-compliance with the provisions of Section 82 of the Act. S. went in appeal under Section 116-A to the High Court. Subsequently, S. applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal26. In appeal by special leave, this Court held that S. had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so28. If an appellant, who is an aggrieved person under Section 116-C of the Act, has got a right to withdraw or abandon his appeal unconditionally a fortiori, he has every right not to file an appeal against the dismissal of his Election Petition, much less has any other respondent who never joined the contest in the Election Petition, a right to file an appeal if the aggrieved party does not do so. In other words, the principle that an Election Petition is a representative action on behalf of the whole body of electors in the constituency, has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Act, and its application cannot be extended to appeals under the Act29. In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceedings under Section 110 (3) (c) of the Act. It will bear repetition that the appellant took no. interest, whatever, in the controversy in the Election Petition which was confined only to the election-petitioner and respondent 1. Conditions 1 and 3, the satisfaction of which is necessary to give locus standi to a person to file an appeal under Section 116-C, have not been filled in the instant case. The appellant cannot, by any reckoning, be said to be a person aggrieved by the decision of the High Court, dismissing the Election Petition.