S.S. Dulat, J. - (1.) BY two separate orders made on the same day by the Election Tribunal at Amritsar, two election petitions were dismissed on the ground that in each of them there had been failure to implead a necessary party as required by section 82 of the Representation of the People Act, 1951, and further that in each of them there had been failure to comply with the provision of section 117 of the same Act. Two writ petitions (Civil Writs Nos. 783 and 784 of 1958) have been filed to obtain a writ to quash the order of the Election Tribunal in each case. A preliminary objection taken against both the writ petitions is that in each of these cases the order made by the Election Tribunal was appealable under section 116A of the Representation of the People Act, and, no appeal having been filed within time, no relief can be granted under article 226 of the Constitution. It is admitted that, if an appeal did lie against the order of the Election Tribunal, the preliminary objection must prevail.
(2.) MR . Bhagirath Dass for the petitioners contends that the order of the Election Tribunal was in these cases made neither under section 98 nor section 99 of the Act, but that it was an order made under section 90, sub -section (3), and consequently no appeal lay under section 116A. The last mentioned section of the Act is in these words - 116A. An appeal shall lie from every order made by a Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal is situated. Section 98 says: 98. At the conclusion of the trial of an election petition the Tribunal shall make an order - (a) dismissing the election petition; or (b) declaring the election of all for or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
(3.) THE order in each of these cases is an order dismissing the election petition and would thus clearly fall within the terms of section 98. It is, however, contended that it is not section 98 of the Act but section 90, sub -section (3), which authorises the Tribunal to make such an order, for sub -section (3) of section 90 says - 90. (3) The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85.;