Paras Ram and Others vs Amar Nath and Others

These are five appeals directed against an order of the Election Tribunal Jammu and Kashmir dated 17-12-1957, dismissing the election

petitions of the Petitioners. As all the five appeals involve a common point of law and fact, they will be disposed of by one order.

A preliminary objection has been raised by the Respondents' learned Counsel that the present appeals do not lie. He has referred us to Sub-

section (3) of Section 98 of the Representation of People Act in which it is laid down that ""the Tribunal shall dismiss an election petition which does

not fall within the provisions of Sections 89, 90 or 125, notwithstanding that it has not been dismissed by the Election Commissioner under. Section

93."" He has further submitted that an order of dismissal u/s 106 of the Representation of People Act has been specifically made appealable, but an

order of dismissal u/s 93(3), R.P.A. has nowhere been declared as appealable.

Under Section 93 it is provided that ""if the provisions of Sections 89, 90 or 125 have not been complied with, the Election Commissioner shall

dismiss the petition."" But before doing so, the Petitioner has to be given an opportunity of being heard. Reference to Sections 93 and 98(3) would

make it clear that both the Election Commissioner and the Election Tribunal have concurrent power to dismiss an election petition for reasons laid

down in Sections 89, 90 or 125. It is admitted on both the sides that an order passed by the Election Commissioner u/s 93 is not appealable.

But it is submitted by the Appellants that an order u/s 98(3) is appealable. u/s 123 of the Representation of People Act an appeal can be taken to

the High Court against such orders as have been made by an Election Tribunal u/s 106 or 107 of the Representation of People Act. Now u/s 106

it is laid down that at the conclusion of the trial of an election petition the Tribunal shall make an order dismissing an election petition or declaring

the election of all or any of the returned candidates to be void.

Now before an order u/s 106, R.P.A. cap be appealed against, it has to be shown that the order was passed at the conclusion of the trial of an

election petition, that is to say, the whole election petition should have been heard and decided with the result mentioned above. But in the present

case the election petitions have been dismissed at a very early stage, and that too on a preliminary point. It cannot be said that a decision on a

preliminary point is tantamount to a decision ""as the conclusion of the trial of an election petition."" As ""such it appears that the intention of the

legislature, has not been, to provide an appeal against an order dismissing an election petition u/s 98. The intention of the legislature can be

gathered from this fact also that if such a petition is dismissed by the Election Commissioner, u/s 93, R.P.A. no appeal is provided.

Under Section 98(3) the Tribunal has the same power as an Election Commissioner which it can exercise on the same ground as an Election

Commissioner. Had the legislature the intention of making such orders appealable, it would have provided in specific terms an appeal against an

order passed by the Election Tribunal u/s 98(3). This not having been done by the legislature, it would look indeed strange that an order of the

Election Commissioner should be final and that the same order if passed by the Election Tribunal should be made appealable. Under these

circumstances, we find that the preliminary objection should prevail. These appeals are, therefore, dismissed. Let a copy of this order be placed on

all the files.