Decided on August 12,1968



CHHANGANI, J. - (1.)THIS is an election petition filed by one Shri Karan Singh calling in question the election of the respondent No. 1 Shri Nand Kumar Somani to the Lok Sabha from the Nagaur Parliamentary Constituency in the last general elections.
(2.)THE petition was initially presented by Shri Karan Singh on 11-4-1967 in which the respondent No. 1 Shri Nand Kumar Somani was impleaded as the sole respondent. It may be pointed out that the candidates for election from the Nagaur Parliamentary Constituency in the last general election included one Shri Gulab Chand Kabra, who shall be referred as respondent No. 2, as also one Shri Onkar Singh, who shall hereafter be referred to as applicant. After the presentation of the election petition Shri Gulab Chand Kabra submitted an application under sec. 86 of the Representation of the People Act (hereinafter referred to as the Act) on 9-5-1967 for being joined as a respondent. This Court, on 6-7-1967, allowed the application of Shri Gulab Chand Kabra and ordered that he shall be impleaded as a respondent on the condition that he deposited Rs. 2,000/- as security for costs within one month. THE said amount having been deposited, he was joined as a respondent by the order of this Court dated 21-7-1967. It may be further mentioned that after some charges of corrupt practices were struck down by this Court Shri Gulab Chand Kabra submitted an application for being transposed as a petitioner. This application was rejected on 13-9-1967. An application for re-hearing was presented but was eventually not pressed.
The other contesting candidate Shri Onkar Singh did not choose to put in any application under sec. 86 of the Act.

The respondent No. 1 contested the election petition and denied the various allegations made against him.

On the pleadings of the parties issues were framed on 23-10-1967. This Court framed one preliminary issue and four issues on merits. The preliminary issue was decided on 13-12-1967 and the case remanded for recording the evidence of the parties. No date was, however, fixed for recording evidence. On 3-5-1968 the petitioner Shri Karan Singh submitted an application for fixing an early date for recording his evidence. 7th and 8th May, 1965 were fixed for recording the petitioner's evidence. However, on behalf of the petitioner an adjournment was sought and eventually it was directed on 10-5-1968 that a date for recording evidence of the petitioner shall be fixed in the month of July, 1968. On 10th July, 1968 the petitioner Shri Karan Singh presented an application praying that the recording of his evidence should be commenced. The case came up before me and the petitioner insisted that his statement be recorded and the statements of his witnesses be also recorded. The case was taken up on 10th July at different points of time and eventually one Shri Mahavir Raj Bhansali, Advocate, appeared on behalf of Shri Gulab Chand Kabra, respondent No. 2, and prayed that his client should be transposed as a petitioner and be permitted to lead evidence in support of the allegations contained in the election petition. Shri Karan Singh also submitted an application praying that his evidence be closed. The Court closed the evidence of the petitioner Shri Karan Singh. Dealing with the prayer of Shri Mahavir Raj Bhansali on behalf of Shri Gulab Chand Kabra, he was directed to submit an application in writing. An application in writing was made by Shri Gulab Chand Kabra. This application was opposed by the respondent No. 1 but this Court permitted Shri Gulab Chand Kabra to lead evidence in support of the allegations contained in the election petition. On 7th August, 1968, however, Shri Gulab Chand Kabra also submitted a written application stating that his witnesses based their allegations on information received from other sources and that none of them was prepared to swear the allegations on oath. It was also stated that he himself had no personal knowledge regarding the allegations contained in the election petition. On this application, the evidence of Shri Gulab Chand Kabra was also closed. In the meanwhile, one Shri Onkar Singh applicant submitted an application under sec. 151, C. P. C. and secs. 109 and 110 of the Act. It was stated in this application that the action of the petitioner Shri Karan Singh in not examining himself and in not adducing evidence is equivalent to the withdrawal or non-prosecution of the election petition and consequently, this Court was requested to act under the provisions of secs. 109 and 110 of the Act. This application is contested by the respondent No. 1. I heard Mr. Bhargava on behalf of the applicant and Mr. Guman Mal Lodha for the respondent No. 1.

At the out set it will be useful to refer to the observations of the Supreme Court in Jagan Nath vs. Jaswant Singh (1) which read as follows - "the general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. " Proceeding to examine the legal position in the light of the above observations of the Supreme Court, I find it very difficult to invoke secs. 109 and 110 of the Act in the present case. On an ordinary, plain and grammatical construction of the language of secs. 109 and 110 of the Act an application for withdrawal is necessary for laying down the foundation for taking further proceedings as envisaged in these sections and having regard to the well-known and well settled principles relating to the interpretation of statutes I do not see any compelling and substantial reasons to ignore the plain grammatical meaning and to interpret these sections so as to authorise the Court to take proceedings envisaged in the sections even in cases where no such applications have been filed. I am very clear that in the absence of application for withdrawal a request for taking action under these sections on the basis of the conduct of the election-petitioner amounting to an act of non-prosecution of the election petition an implied withdrawal cannot be considered valid and permissible. As emphasised by the Supreme Court in the observations extracted above this Court can only act strictly in accordance with the provisions and cannot invoke and exercise powers not specifically conferred by the statutes.

Apart from the general principles the case-law also goes against the petitioner.

In Heer Singh vs. Veerka (2) a Bench of this Court summed up the position as follows - "in our opinion, these provisions (referring to secs. 109 and 110) would have come into play only if the election petition were to be withdrawn from the Tribunal and the withdrawal was granted, but in the present case the election petition was never sought to be withdrawn at any stage. Permission to withdraw the election petition was never asked for much less it was given in the present case. Consequently, the provisions of sec. 110 (3) (c) were never, and could not be, attracted, and, therefore, the petitioners were not entitled to come before the Tribunal in any case. " In Heersingh vs. Veerka (2) a few voters of the constituency sought leave to appeal to the High Court after the dismissal of the election petition alleging that the election-petitioner had colluded with the respondents and they further relied upon the fact that the Tribunal had also recorded a finding to that effect. The learned counsel for the applicant submitted that in Heer Singh vs. Veerka the voters did not make any application during the trial stage and, therefore, the facts of that case are distinguishable and the principle of the case cannot be applied to the present case. It will be pertinent to observe that the Bench in Heersingh vs. Veerka (2) examined the matter exhaustively and after such examination stated the principles in general and wide terms, and bearing in mind the language of the relevant provisions, I entirely agree with the principle stated widely and unhesitatingly hold that the principles in that case should apply to the present case in spite of the apparent differences in the facts of the two cases.

In another decision of this Court Ganpat Singh vs. Brijmohanlal Sharma (3) a Bench of this Court stated as follows: - "it has been held by this Court in the case of Heersingh vs. Veerka, AIR 1958 Raj. 181, that the provisions of ss. 108 to 110 come into play only if the election petition is withdrawn and the withdrawal is granted. We respectfully agree with that view. " "learned counsel has argued that in this case though there was no application for withdrawing the election petition yet the petitioner Shri Kalyansingh was withdrawing from the case by a back door and this must be taken to be a case of withdrawal. There is much difference between withdrawing an election petition and in not conducting an election petition. " The facts of this case even though they may not be treated as identical with the facts of the present case, clearly resemble the facts of the present case and a few minor variation in the facts pointed out by the learned counsel cannot be considered sufficient to exclude the applicability of the principle of the case to the present case.

Recently after the amendment of the Representation of the People Act in 1966 by Act No. 47 of 1966 secs 109 and 100 came up for interpretation before a Full Bench of the Punjab High Court in Jugal Kishore s/o Lal Chand vs. Doctor Baldev Parkash (4) in connection with the controversy over the discretion of the High Court in the matter of refusing leave to withdraw petition and the High Court's competence to dismiss the election petition in default, Grover J. as he then was, in his concurring opinion, made observations pointing out that the Court cannot successfully prevent the petitioner from circumventing the provisions relating to the withdrawal of the election petition by choosing to absent or by omitting to produce or examine witnesses. The observations indicate that in case a petitioner does not present an application for withdrawal but merely omits to produce evidence, the provisions of secs. 109 and 110 of the Act cannot be invoked.

In Kesharilal Kavi vs. Narain Prakash (5) I expressed my respectful agreement with the opinion expressed by Grover J. as he then was.

The petitioner's counsel could not offer any successful answer to the submissions made on behalf of the respondent No. 1 on the basis of the case-law cited above. It was only generally contended that in the election petition contest is not only between election-petitioner and the respondent but is between the respondent and the entire constituency and that the election petition should not be permitted to be brought to immature termination. Such observations very appropriate in the context of the facts of the particular cases can not be permitted to warrant an inference that event hough the statutory requirements of secs. 109 and 110 are not fulfilled yet this Court should take action under secs. 109 and 110 of the Act. Had the applicant Onkar Singh taken action under sec. 66 of the Act and become a party, it would have been open to him to lead evidence in support of the election petition but at this stage he cannot be heard to say that the non-prosecution by the original petitioner Shri Karansingh be treated as an act amounting to withdrawal of the election petition so as to entitle him to be substituted as a petitioner. The application is, therefore, not maintainable and is dismissed.

The allegations in the election petition remain wholly unsubstantiated as neither the election-petitioner nor the respondent No. 2, who sought an opportunity to lead evidence, led any evidence. The election petition is also dismissed. In the peculiar circumstances of the case there will be no order as to costs.

(3.)THE substance of the above order shall be communicated forthwith to the election Commission and the Speaker of the Lok Sabha. An authenticated copy of this judgment shall be sent to the Election Commission as soon as it is prepared. .

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