P. B. GAJENDRAGADKAR J.: - (1.) THE following Judgment of the court was delivered by
(2.) THIS appeal by special leave arises outof an election petition filed by respondent 1 (No. 320 of1957) before the Election Commission, New Delhi, in which heprayed that the appellant's election to the Madhya PradeshLegislative Assembly from Bargi constituency should bedeclared to be void and that it should be further declaredthat he had himself been duly elected from the saidconstituency. The polling for the election in question wastaken on 9/03/1957, and the result was declared on 12/03/1957. Of the three candidates who had stood forelection, the appellant secured 9308 votes, respondent 1,8019 votes and the third candidate, respondent 2, 3210votes. The petition filed by respondent 1 was entrusted to theElection tribunal, Jabalpur, for trial. On 12/10/1957, the-appellant filed before the Election tribunal, anobjection under s. 90, sub-s. (3) of the Representation ofthe People Act, 1951 (hereinafter called the Act), allegingthat respondent 1 had not complied with the provisions of s.117 of the Act in regard tothe making of the deposit of the security for costs andpraying that his election petition should be dismissed onthat account under s. 90, sub-s. (3) of the Act. RespondentI disputed these allegations and urged that there was nojustification for dismissing his petition under s. 90, sub-s. (3) of the Act. By its order passed on 5/12/1957, the ElectionTribunal held that the provisions of s. 117 were mandatoryand that they had not been complied with by respondent 1. IDthe result the application filed by the appellant wasallowed, his objection was upheld and the election petitionpresented by respondent 1 was dismissed under s. 90, sub-s.(3) of the Act. On 27/12/1957, respondent 1 preferred an appeal inthe High court of Madhya Pradesh at Jabalpur against thesaid order (Appeal No. 141 of 1957). In the High court apreliminary objection was urged on behalf of the appellantthat the appeal preferred by respondent 1 was incompetentunder s. 116A of the Act. This objection was overruled andthe merits of the appeal were considered by the High court.On the merits the High court held that respondent I hadsubstantially complied with s. 117 and so the order passedby the Election tribunal dismissing the election petitionfiled by respondent 1 was set aside and the said petitionwas sent back to the Election tribunal for disposal inaccordance with law. On 22/02/1958, the appellant applied to the HighCourt for a certificate of fitness but his application wasdismissed. Thereupon the appellant applied for, andobtained, special leave to appeal from this. court on 14/04/1958. That is how this appeal has come to this court.
(3.) THE first point which calls for our decision in this appealis whether the High court was right in holding that theappeal preferred before it by respondent 1 was competent.THE appellant's contention is that the impugned order waspassed under s. 90, sub-s. (3) and no appeal is providedagainst such an order under s. 116A. Section 116A providesthat an appeal shall lie from every order made by thetribunal under s. 98 or s. 99 to the High court of the State in which thetribunal is constituted. We are not concerned in thepresent appeal with s. 99. THE case for respondent I isthat in substance and in law the impugned order must bedeemed to have been passed under s. 98. That is the viewwhich the High court has taken and we are satisfied that theHigh court is right. It is true that in terms and in form the order was passedunder s. 90 sub-s. (3); and it is also true that the rightto prefer on appeal is a creature of the statute and noappeal can be held to be competent unless it is shown thatsuch a right flows from the relevant statutory provisionitself, In order to decide whether or not an order passedunder s. 90, sub-s. (3) can be regarded in law and insubstance as an order passed under s. 98, it would berelevant to consider the scope and effect of the provisionsof the said two sections. Section 98(a) provides that atthe conclusion of the trial of an election petition thetribunal shall make an order dismissing the electionpetition. There is no doubt that in the present case theElection tribunal has dismissed the election, petition filedby respondent 1. But the appellant's contention is that thisdismissal cannot be said to be under s. 98(a) because theorder dismissing the petition has not been passed at theconclusion of the trial of the election petition. Thisargument is not well-founded. Section 90, subs. (3) underwhich the impugned order purports to have been passed occursin ch. III of Pt. VI which deals with the trial ofelection petitions. In other words., s. 90, sub-s. (3)confers power on the tribunal to dismiss the electionpetition after the trial of the election petition hascommenced. The scheme of ch. III clearly indicates thatonce an election petition is referred to an ElectionTribunal for trial under s. 86 the tribunal is possessed ofthe petition and all proceedings before it are proceedingsin the trial of the said petition. Section 85 shows thatfor failure to comply with the provisions of ss. 819 82 and117, the Election Commission is empowered to dismiss theelection petition. If the Election Commission exercises itsjurisdiction and passes an orderdismissing any election petition, it may be said that theelection petition never reached the stage of trial ; butonce the petition has passed the scrutiny of the ElectionCommission under s. 85 and it has been referred. to theElection tribunal for trial, any, further action taken bythe parties or any order passed by the tribunal under thesaid petition would constitute a part of the trial of thesaid petition. This question has been incidentallyconsidered by this court in Harish Chandra Bajpai v. TrilokiSingh (1) while it was dealing with s. 90, sub-s. (2) of theAct; and it has been held that ` the provisions of ch. IIIread as a whole clearly show that I the trial is used asmeaning the entire proceedings before the tribunal from thetime the petition is transferred to it under s. 86 until thepronouncement of the award `. Therefore, there can be nodoubt that the order passed under s. 90, sub-s. (3) is anorder passed at the conclusion of the trial. It is truethat it is an order on a preliminary point of law raised bythe appellant; but even so the decision of the preliminaryissue is undoubtedly a part of the trial of the petition andit cannot be said that the order passed on such apreliminary point is not an order passed at the conclusionof the trial when it, in fact, concludes the trial. Section 90, sub-s. (3) provides that the tribunal shalldismiss an election petition which does not comply with theprovisions of ss. 81, 82 or 117 notwithstanding that it hasnot been dismissed by the Election Commission under s. 85.It would thus be clear that an objection raised against thecompetence of the election petition on the ground that theprovisions of the aforesaid S. have not been compliedwith can be considered by the Election Commission suo motuunder s. 85 and if it is upheld the election petition can bedismissed without any further enquiry; but if the ElectionCommission does not dismiss the petition under s. 85, thenthe same objection can be raised before the ElectionTribunal by the respondent to the election petition ; andwhen it is so raised it assumes the character of apreliminary objection andis dealt with by the Election tribunal as any preliminaryobjection would be dealt with by a civil court under theCode of Civil Procedure. That being so, a preliminaryobjection has been tried and the decision on the preliminaryobjection being in favour of the respondent the electionpetition is dismissed. Though the order of dismissal inform may be under s. 90, subs. (3), it is in substance andin law an order of dismissal passed at the conclusion of thetrial and must be deemed to be an order under s. 98(a).That is the view which the Madhya Pradesh High court hastaken in Gulshar Ahmed v. Election tribunal(1) and it wasthis decision which was followed by the High court in thepresent proceedings. In our opinion, therefore, thecontention raised by the appellant that the appeal preferredby respondent I- before the High court was incompetent mustbe rejected. ;