Case Note & Summary
This case involved an election dispute appealed to the Supreme Court against the dismissal of election petitions by the High Court of Judicature at Bombay, Nagpur Bench. The appellant Ashok and another had filed election petitions challenging the election of the respondent Rajendra Bhausaheb Mulak. The election was closely contested, with a winning margin of just four votes. The petitioners alleged that at a particular polling station, 14 votes were improperly received due to irregularities in verification of voters' identities. The election petitions sought to have those votes excluded, which could alter the election result. However, the High Court dismissed both petitions at the threshold, applying Order VII Rule 11 of the Code of Civil Procedure, 1908. The High Court held that although the petitions established the improper reception of votes, they failed to plead a crucial material fact: that the 14 votes were cast in favour of the returned candidate, or at least not in favour of the defeated candidate. The High Court reasoned that without an averment linking the improper votes to the returned candidate's tally, it could not be said that the election result was materially affected in so far as it concerned that candidate, as required under Section 100(1)(d) of the Representation of the People Act, 1951. The High Court further observed that the omission could not be cured by amendment since the limitation for filing the election petition had expired. Aggrieved by the dismissal, the petitioners approached the Supreme Court by way of special leave petitions under Article 136 of the Constitution. When the matters came up for hearing before a division bench comprising Justices T.S. Thakur and Gyan Sudha Misra, the respondent raised a preliminary objection regarding maintainability. It was argued that the High Court's order was appealable under Section 116A of the Representation of the People Act, 1951, which provides for an appeal to the Supreme Court against orders passed under Sections 98 or 99. The respondent contended that in light of the availability of a statutory appeal, the special leave petitions were not maintainable and ought to be dismissed. Reliance was placed on the decision in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar. The bench then examined the scope of Section 116A and the nature of the order under challenge. The judges observed that Section 116A is limited to orders made at the conclusion of the trial of an election petition under Section 98. Since the High Court dismissed the petitions summarily under Order VII Rule 11 CPC and not after a full trial, a question arose whether such an order qualifies as one under Section 98 and thus attracts the appellate remedy under Section 116A. The judges also noted the legal fiction created by the explanation to Section 86(1) of the Act, which treats a dismissal under Section 86 as an order under Section 98. The bench expressed differing views on the maintainability issue. Additionally, the judges had conflicting opinions on the substantive question of whether the election petitioners were required to plead specifically that the improperly received votes were cast in favour of the returned candidate. Owing to these conflicting views, the two-judge bench referred the matter to the Hon'ble Chief Justice for constitution of a three-judge bench to resolve the conflict. Consequently, the appeals remained pending and no final determination on the merits or maintainability was made by this order.
Headnote
A) Election Law - Improper Reception of Votes - Material Effect on Result - Representation of the People Act, 1951, Section 100(1)(d)(iii),(iv) - The High Court dismissed election petitions for failure to plead that the 14 improperly received votes were cast in favour of the returned candidate. The Supreme Court noted conflicting views on whether such averment is essential to disclose cause of action, and referred the matter to a larger bench. (Paras 1-2) B) Practice and Procedure - Special Leave Petition - Maintainability When Alternative Appeal Exists - Constitution of India, Article 136; Representation of the People Act, 1951, Section 116A - Respondent raised preliminary objection that an appeal under Section 116A being available, SLP under Article 136 is not maintainable. The Court considered whether the order dismissing petition under Order VII Rule 11 CPC is an order under Section 98, making it appealable under Section 116A. Conflicting views led to reference. (Paras 2-4) C) Interpretation of Statutes - Order under Section 98 - Scope of Section 116A - Representation of the People Act, 1951, Sections 98, 86, 116A - The Court examined the nature of the High Court's order dismissing election petition summarily, and whether such order falls within Section 98. The legal fiction under Section 86(1) treating dismissal under Section 86 as under Section 98 was discussed. The question was referred to larger bench. (Para 4)
Issue of Consideration
Whether an election petition must plead that improperly received votes were cast in favour of the returned candidate to show material effect on election result? Whether a special leave petition under Article 136 is maintainable when an appeal under Section 116A of the Representation of the People Act, 1951 is available?
Final Decision
The Supreme Court referred the matter to a three Judge Bench to resolve the conflict of views between the two judges on the maintainability of the special leave petitions and the proper pleading requirement in election petitions.
Law Points
- Legal points not extracted
