Thakur Sahdev Singh vs Election Tribunal and Others

S.M. Fazl Ali, J.—This is an application for issue of a writ of certiorari in order to quash an order dated 15-3-58 passed by the Election

Tribunal by which he has allowed Respondent No. 2 to be substituted in the place of the deceased Ram Lal who was the original Petitioner in the

case before the Tribunal.

The facts giving rise to the present application are as follows:

The Petitioner was duly elected candidate from Akhnoor-Chhamb Constituency to the Jammu and Kashmir Legislative Assembly and was elected

in the month of April, 1957 when the elections were conducted.

One Ram Lal who was also a contesting candidate during the said elections filed a petition before the Election Commissioner for setting aside

the election of the Petitioner and he further prayed that he may be declared to be duly elected. With these two prayers Ram Lal had filed the

petition before the Election Commissioner.

It appears that while the case was pending before the Tribunal Ram Lal died and opposite party No. 2, Thakra Singh, filed an application for

being substituted in place of Ram Lal. This application was resisted by the Petitioner on the ground that Thakra Singh could not be substituted in

law. The matter was referred to the Tribunal who by his order dated 15-3-1958 ordered the substitution of Respondent No. 2 in place of Ram Lal

and overruled the objections of the Petitioner. It is against this order that the Petitioner has come up to this Court.

Mr. Bhalgotra appearing for the Petitioner has contended that under the provisions of Section 121 of Jammu and Kashmir Representation of the

People Act, 1957 opposite party No. 2 could not be substituted. His contention is that the prayer of the original Petitioner for setting aside the

election and for being declared to be duly elected was one and indivisible and the opposite party could not prosecute the second relief as he was

not a contesting candidate and is, therefore, not entitled to be substituted.

Analysing closely the contention comes to this, that the person sought to be substituted must fulfil all the characteristics of the original Petitioner

not only with respect to the requirement of being a fit person to be a Petitioner but also with respect to the relief claimed by the original Petitioner.

Mr. Bhalgotra has relied on the words ""any person who might himself have been a Petitioner as used in Section 121 of the Act. Section 121 of the

Act reads as follows:

After a notice of the abatement of an election petition is published u/s 119 or Section 120, any person who might himself have been a Petitioner

may, within fourteen days of such publication, apply to be substituted as Petitioner and upon compliance with the conditions of Section 125 as to

security shall be entitled to be so substituted and to continue the proceedings upon such terms as,the Tribunal may think fit.

The learned Counsel submits that Section 121 is a mandatory provision of law and opposite party No. 2 could not be substituted unless he had

fulfilled the requirements of this section. His contention is that if opposite party No. 2 is allowed to be substituted it will entail amendment of the

original petition by deleting the. second relief prayed for by the original Petitioner Ram Lal deceased.

In my opinion this contention is based on a fallacious interpretation of Section 121 of the Act. All that the section says is that after the notice of

abatement is published any person who might him self have been a Petitioner may apply to be substituted. Thus the only condition imposed by the

statute is that the person sought to be substituted must be one who can be a Petitioner.

The word 'a' in Section 121 quoted above before the word 'Petitioner' is rather significant and indicates that it is not necessary that the person

sought to be substituted must fulfil all the requirements of the original Petitioner including the relief sought, because if the Legislature intended to

provide to the contrary it would have used the word 'the' or 'such' instead of the word 'a' before the word 'Petitioner'.

In order to find as to who can be 'a Petitioner as contemplated by Section 121 we have to go back to the provisions of Sections 88 and 89 of the

Act which read as follows:

No election shall be called in question except by an election petition presented in accordance with the provisions of this part.

(1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section

108 and Section 109 to the Election Commissioner by any candidate at such election or any elector within forty-five days from, but not earlier

than, the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election

are different, the later of those two dates.

Explanation. -- In this sub-section ""elector means a person who was entitled to vote at the election to which the election petition relates, whether

he has voted at such election or not.

(2) An election petition shall be deemed to have been presented to the Election Commissioner-

(a) when it is delivered to the Election Commissioner or to such other officer as may be appointed by the Election Commissioner in this behalf-

(i) by the person making the petition, or

(ii) by a person authorised in writing in this behalf by the person making the petition, or

(b) when it is sent by registered post and is delivered to the Election Commissioner or the officer so appointed.

Section 89 gives the requirements of a person who can file a petition for setting aside an election. It order to apply for setting aside an election, the

only qualification that has been put by the statute is that the Petitioner must be an elector or a candidate. The word 'elector' has been defined in the

explanation as a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

It is, therefore, clear from a perusal of Section 89 and the explanation to this section that a Petitioner is a person who is a voter. It is not disputed in

this case that opposite party No. 2 was a voter and therefore an elector within the meaning of the explanation to Section 89 of the Act. Thus

opposite party No. 2 was undoubtedly a Petitioner within the meaning of Section 121 and could have been legally substituted in this case. Once

the opposite party No. 2 fulfills this requirement, in my opinion, there is no bar to his being substituted under the provisions of Section 121 of the

Act.

It has further been contended by the learned Counsel for the Petitioner that Section 90(a) of the Act postulates that where the Petitioner, in

addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself has

been duly elected, he must make all the contesting candidates parties. It is contended that as Ram Lal's prayer came within the purview of Section

90, Clause (a), opposite party No. 2 could not be substituted in his place because he could not claim this relief under the provision of law.

But the simple answer to this contention is that the relief for being declared to be duly elected is only an additional relief which may be claim ed by

a Petitioner. This is absolutely clear from a perusal of Section 92 of the Act which runs as under:

A Petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration

that he himself or any other candidate has been duly elected.

It is open to the Tribunal to refuse to grant this additional relief and hence it cannot be said that merely because Ram Lal had claimed this additional

relief and opposite party No. 2 could not claim this additional relief, therefore, opposite party No. 2 could not be substituted.

Moreover, it seems to me that substitution can be ordered only of those rights which survive. In other words, there can be certain rights, for

instance, personal rights, which are actio personalis which die with the person and which do not survive. As the right of Ram Lal to be duly elected

was a personal right and did not survive, there can be no question of substitution of such a right.

Such a right cannot be substituted even under the provisions of the Code of Civil Procedure. I am supported in my view by the following

observations of a Division Bench decision of the Patna High Court in the case of Ramsarup Das and Others Vs. Rameshwar Das and Others, :

If the Plaintiff is suing to establish his right to a certain property in his own rights and not by virtue of his office, certainly the cause of action for the

suit will survive, and his legal representative can continue the suit on the death of the original Plaintiff, either during the pendency of the suit or of the

appeal. But where the Plaintiff's suit is primarily to establish his personal right to an office which would entitle him to possession of the property in

question, on his death, either during the pendency of the suit or during the pendency of the appeal, the right to sue would not survive, and the suit

will, therefore, abate.

There can be no question that the Jammu and Kashmir Representation of the People Act had envisaged a. contingency where substitution can

be made and specific section, namely, Section 121 has been enacted for that purpose. It is manifesto that a statute cannot contemplate substitution

of a light which was not capable of being substituted namely a personal right.

It would be, in my opinion, in consonance with the rule of harmonious construction to hold that under the Act substitution is allowed only of those

rights which are capable of being substituted. Mr. Bhalgotra however submitted that there was no room for the application of the CPC in matters

of substitution. In my opinion this contention cannot be accepted, because Section 93(1), which runs as follows:

Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be in

accordance with., the procedure applicable under the CPC Sambat 1977 (Act X of 1977) to the trial of suits:

Provided that the Tribunal shall have the discretion to refuse for reasons to be recorded in writing to examine any witness or witnesses if it is of the

opinion that their evidence is not material for the decision of the petition or that the party tendering such witness, or witnesses is doing so on

frivolous grounds or with a view to delay the proceedings

applies the provisions of the CPC to the procedure before the Tribunal as far as practicable. In a case which came before the Supreme Court and

is reported in Harish Chandra Bajpai Vs. Triloki Singh, , their Lordships of the Supreme Court have pointed out that it is only where there is a

direct conflict with the rules of the CPC and, the rules of a special statute that the special statute would prevail, otherwise the rules of the CPC

would apply. In this connection I would cite the following observation of their Lordships of the Supreme Court in that case:

The last contention is based on the provisions in Section 90(2) that the procedure prescribed in the CPC is to apply subject to the provisions of the

Act and the rules. It is argued that Section 83(3) is a special provision relating to amendments, and that it must be construed as excluding Order 6,

Rule 17. The result according to the Appellants, is that if an amendment could not be ordered u/s 83(3), it could not be ordered under Order 6,

Rule 17.

This contention appears to us to be wholly untenable. The true scope of the limitation enacted in Section 90(2) on the application of the procedure

under the CPC is that when the same subject-matter is covered both by a provision of the Act or the rule and also of the Code of Civil Procedure,

and there is conflict between them, the former is to prevail over the latter.

The limitation cannot operate, when the subject-matter of the two provisions is not the same. Section 83(3) relates only to amendment of

particulars, and when the amendment sought is one of the particulars, that section will apply to the exclusion of any rule of the CPC which might

conflict with it, though it does not appear that there is any such rule. But where the amendment relates not to particulars but to other matters, that is

a field not occupied by Section 83(3) and Order 6 Rule 17, will apply.

The fallacy in the argument of the Appellant lies in the assumption that Section 83(3) is a comprehensive enactment on the whole subject of

amendment, which it clearly is not. In this view there is no scope for the application of the maxim expressio unius exclusio alterius, on which the

Appellants rely.

In the present case I do not find any conflict between the provisions of the CPC regarding substitution and those that are found in the present Act

and there is no reason why the provisions of the CPC should be excluded in this case as held by the Supreme Court.

Ch. Inder Dass, learned Counsel for the Respondent has contended that there is no error in the order of the Tribunal and that opposite party

No. 2 was rightly substituted. For the reasons I have already given above I am in complete agreement with the contention of the learned Counsel

for the opposite party.

Lastly, it was contended by Mr. Bhalgotra that as there were three other Respondents who were contesting candidates and would have

fulfilled the requirements of being a Petitioner in as much as they could also have sought for the additional relief of being declared to be duly

elected. Opposite party No. 2 could not be substituted as long as they were on the record. I am, however, unable to accept this contention

because they never made an application for being substituted in place of Ram Lal and the Court cannot force them to be substituted if they do not

want to be so substituted.

The Tribunal has pointed out in its order that the question of amendment of the petition does not arise as the substituted person can be granted

only that relief to which he is found entitled. I am in complete agreement with these observations of Tribunal and there is ample power given to the

Tribunal under the Act in not granting a relief which is not proved or not pressed.

Mr. Bhalgotra relied upon an unreported judgment of the Allahabad High Court in the case of Shri Sita Ram Khemka v. Sri Jawaharlal Nehru

(C), for the proposition that the provisions of Section 90 of the Representation of the People Act which apply to India are mandatory. I have

perused this decision and. I find that it is not at all applicable to the facts of the present case.

The case before the Allahabad High Court was not a case relating to substitution, but was one in which the question was whether certain

unsuccessful candidates were necessary parties to the petition. That question, however, has got nothing to do with the present case, because it is

not alleged by any of the parties before me that any necessary party has been left out. It is, therefore not necessary to consider the case cited

before me.

Mr. Bhalgotra further cited before me two judgments of Election Tribunals which are also completely besides the point and are not worth

consideration.

(sic) all the contention (sic) by fail and I do not find any (sic) in (sic) judgment of the Tribunal. the application (sic) dismissed with costs assessed at

(sic) hundred rupees (Rs. 100).