THAMMANNA v. K. VEERA REDDY & ORS (2)

Citation: [1981] 1 S.C.R. 73

Court: Supreme Court of India

Bench: R.S. SARKARIA, P.S. KAILASAM

Case summary

this respondent had subsisting contracts with the Government of Andhra Pradesh and as such, he was under Section 9A of the Representation of the People Act....

Judgment text

r THAMMANNA v.. K. VEERA REDDY & ORS. July 23, 1980 [R. S. SARKARIA AND P. S. KAILASAM, JJ. ] "Person aggrieved"-Defeated candidate made a proforma party respondent in an election petition-He neither files a written statement nor participates actively in proceedings before the High Court-Whether he is an aggrieved person entitled to appeal against the Order of the High Court-Status of an election petitio,TU! r-Representation of the People Act, 1951, Sections 98, 99, 108 to 110, . 1l6A read with Section 87(1) of the Civil Procedure Code. One V. Krishna Reddy filed an election petition against Veera Reddy, respondent No. 1, a returned candidate in the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 on the ground that the returned D· candidate was disqualified to be chosen to fill the post under Section 9A of the Representation of People Act, 1951 inasmuch as he has subsisting contracts with the Government of Andhra Pradesh. The appellant, l'hammar.!

la was impleaded as original respondent No. 5 though he is not a necessary party. Be did not file any written statement. Neither did he lead any evidence nor did he cross-examirie the witnesses produced by respondent No. 1 and the election-petitioner. In fact, he did not even participate in the arguments before the High Court. In the appeal filed by Thammanna against the Judgment dated April 24, 1979 of the High Court of Andhra Pradesh dismissing the election petition filed by Krishna Reddy, a preliminary objection was raised as to whether the appellant had the locus standi to maintain the appeal. Dismissing the appeal, the Court, HELD : . (1) The appellant cannot, by any reckoning, be said to be a 'person aggrieved' by the decision of the High Court, dismissing the Election Pe~ition.

[84q (2) Before a person is entitled to maintain an appeal under Section 116C of the Representation of the People Act, 1951 which is analogous to Section 96(1) of the Civil Procedure Code, all the following three conditions must be satisfied : (I) that the subject-matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition. (2) that the person seeking to appeal has been a party in the election petition, and (3) that he is a "person aggrieved", that is a party who has been adversely affected by the determination. In the present case, these conditions, particularly Nos. (1) and (3) have not been fulfilled. [79B-D] (3) Just as the term "decree" in Section 96(1) of the Civil Procedure Code· .

A means an adjudication which "conclusively determines all or ;my of the matter 'in controversy in the suit", the expression "any final order"' as used in Section l 16C of the Representation of the People Act contemplates a conclusive· determination of af! or any of the matters in controversy in the election petition between the parties. [78F-G] (4) The appellant was not a necessary party to be impleaded as there. was . no allegations or claims in the election petition which would attract section 82 of the Representation of the People Act. In this case, the question of the Court joining him as a party respondent under Section 86(4} of the Act also did not arise, as he was impleaded before the High Court as respondent No. 5 though it was not obligatory for the Election-Petitioner to ·do so. Even so, respondent No. 5 did not join the controversy. He neither joined issue with the contesting respondent No.

1 nor did he do anything tangible to show that he had made a: common cause with the Election-Petitioner against respondent No. I. In fact, the only parties between whom the matters in controversy were ,at issue, were the Election-Petitioner and Respondent No. I. [79F-H] (5) Although the meaning of the expression "person aggrieved" may vary according to the context of the statute and the facts of the case, nevertheless, normally a 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something. [80A-B] Bar Council of Maharashtra v. M. V. Dabholkar, [1975] 2 S. C. C. 703 and J. N. Desai v. Roshan Kumar A. LR. 1976 S. C. 576 at p. 534 referred to.

(6) The principle that election petition is a representative action on behalf of the whole body of electors in the constituency has a very limited application to the extent it has been incorporated in Sections 109 to 116 of the Represen• tation of the People Act and its application cannot be extended to appeals . under the Act. Firstly, these provisions are to be found in Chapter IV, under the main caption: 'WITHDRAWAL AND ABATEMENT OF ELECTION PETITIONS'. Then, the provisions of these sections, also repeatedly refer to the withdrawal or abatement of 'election-petitions' and also to procedure in respect thereof before the 'High Court'. The provision relating to Appeals in Sections 116A, 116B and 116C, have been included separately, in Chapter 'IV-A', captioned "APPEALS".

[81E-G, 83G-H, 84A] Secondly, Section 116C, enjoins upon the Supreme Court to hear and '' determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court. No doubt this is, "subject to the provisions of the Act and the rules if any, made thereunder": But this clanse only means that the provisions of the Code and the Rules of the Court in hearing an appeal to this Court will apply except to the extent their application has been excluded expressly or by nec(:ssary implication by any provision of. the Act. There is no provision i? Chapte: IV-A _of the Act analogous to Sections 109 to 116 of the Act, which cmiails, restricts or fett;rs an appellants' right to withdraw an appeal. Nor is there any such provision in the Code or the Rules of this C? ~rt which d. oes so. If the intention of the Legislature was that the prov1S1on of Sectwns 109 to 116 which apply to the withdrawal of election p. eti:ion, . shou~d . also go~e.

m the withdrawal of appeals, there was no difficulty m msertmg s1m1lar orov1S1ons in Section 116C or elsewhere in Chapter IV-A. [81G-H, 82A-C] IBAMMANNA v. K. VEERA REDDY (Kailasam, J. ) 75 Bijayananda Patnaik v. Satrughna Sahu, [1964] 2 S. C. R. 538 at p. 545, followed. I C1v1L APPELLATE JURISDICTION : Civil Appeal No. 1950 of 1979 A- From the Judgment and Order dated 24-4-1979 of the Andhra Pra· desh High Court in Electio~ Petition No. 8(78. Govindan Nair and A. Subba-Rao for the Appellant. · P. P. Rao, T. Ramachandran, K. Ramkumar and Venkataramani for the Respondent. The Judgment of the Court was delivered by KA1LASAM, J. This appeal by Shri Thammanna is directed against a judgment, dated April 24, 1979 of the High Court of Andhra Pradesh, whereby the election petition filed by Shri V. Krishna Reddy. . >respondent 7 herein, against the returned candidate, Shri K. Veera Reddy (Respondent 1 herein) was di'smissed.

The material facts are these: In the elections held for the Andhra Pradesh Legislative Assembly in February, 1978 respondents 1 to 4, 6, 7 and the appellant filed their nominations for Amarchinta Assembly Constituency: Polling took place on February 25, 1978 and Shri K. Veera Reddy, respondent I, was declared elected on February 27, 1978. He secured 34727 votes, while his nearest rival. respondent 2, got 29,419 votes. The appellant obtained 822 votes only. Shri V. _ Krishna Reddy, (Respondent 7 herein), being a voter for · 198 Amarchinta Assembly Constituency in Mahabubnagar District filed aa election petition in the High Court to get the election of the first respondent declared void on the ground that on the date of filing the nomination paper as we! ( as on the date of the election. this respondent had subsisting contracts with the Government of Andhra Pradesh and as such, he was under Section 9A of the Representation of the People Act.

1950 (hereinafter referred to as the Act) disqualified to be chosen to fill the seat. All the candidates who had filed their nominatioris, were joined in the election petition as respondents. The appellant was imp~eaded as original respondent 5. The election petition was contested by respondent L (K. Veera Reddy) only. The appellant (i. e. original Respondent 5) did not file any written statement. He did not lead any evidence, nor did he cross-examine the witnesses produced by respondent 1 or the Election-Petitioner. He did not participate even in the arguments. A preliminary objection has been raised by the learned counsel for respondenrt I. It i1s submitted that Shri Thammanna is not competent to maintain this appeal, because he does not fulfil the character 6-646 S. C, IndiaI80 ' ' [1981] 1 S. C. R. of a "person aggrieved" by· the judgment of the High Court. It is ~n:1phasi~ed that it was not necessary for the election-petitioner to JO!

Il Shn Thammanna as a respondent because no relief was claimed _.. +. I against him; that he was impleaded as respondent 5 only as a matter of fonp. that he did not participate in the proceedings before the High Court; nor joined issue with Respondent 1. lt is pointed out that according to the judgment of the High Court, the contest w -·· cation for withdrawa~ is granted, the petitioner shall be ordered to pay the whole or part of the costs incurred by the respondent. It further requires that notice of withdrawal shall be published in the OfficiaI Gazette. Clause (c) of Sub-section (3} is material. It provides . th~t any person who might himself have' been a petitioner, may w1th1n (1) [1975] 2 s. c. c. 703. (2) A. l. R. 1976 S. C. 576 at p. 584. THAMMANNA v. K. VEERA REDDY (Kaila. mm, J.

) SI • fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and on compliance with the conditions as to security, shall be entitled to be substituted and continue the pra'ceedings upon such terms as the High Court may deem fit. Section 111 provides for report of the withdrawa1 by the High Court to the Election Commiss! ion. Section 112(1) provides for abatement of election-petition on death of the sole petitioner. Sub-section (2) requires the fact of abatement to be published. Sub-section. (3) entitles any person who might himself have been a petitioner to apply and be substituted in place of the deceased to continue the proceeding upon such terms as the High Court may think fit. Section 116 makes a similar provision on the death of a respondent. As pointed out in Bijayananda Patnaik v.

Satrughna Sahu(l), the principle behind these proviisions is that "an election-petition is not a matter in which the only persons interested are· candidates who strove against each o. ther at the elections. The public of the constituency also is substantially interested in it, as an election is an essential part of the democratic process. That is why provision is made in election law circumscribing the right of the parties thereto to withdraw. Another reason for such provision is that the citizen's at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices. That is why provision is made for substituting any elector who might have filed the petition in order to preserve the purity of elections.

" But it is equally clear from the ·language, setting and scheme of the provision in Sections 109 to 116, that they do not, either, in terms, or, in principle, apply to appeals1 or the procedure to be followed at the appellate stage before the Supreme Court. Firstly, these provisions ·are to be found in Chapter IV, under the main caption: 'WITHDRAWAL AND ABATEMENT OF ELECTION PETITIONS'. Then, the provisions of these sections, also, repeatedly refer to the withdrawal or abatement of 'electionpetitions' and also to procedune ;IJ, respect thereof before the 'High Court'. The provision relating to Appeals in Sections 116A, 116B and 116C, have been included separately, in "Chapter 'IV-A', captioned "APPEALS". Secondly, Section 116C, as already noticed, enjoins upon the S~preme Court to hear and determine every appeal under this Act in accordance with the provisions of the Code of Civil Procedure and the Rules of the Court.

No doubt, this is, "subject to the provisions of the Act the rules if any, made thereunder". But this clause (1) [1964] 2 S. C. R. 538 at p. 545. 82 [1981] 1 S. C. R. only means that the provisions of the Code and the Rules; of the Court in hearing an appeal to this> Court will apply except to the extent their application has been excluded expressly or by necessary implication by any provision of the Act. There is no provision in Chapter IV-A of the Act, analogous to Sections 109 to 116 of the Act which curtails restricts or fettersi an appellant's right to withdraw . a~1 app~al. No; is there any such provision in the Code or . the Rules. of this Court which does so. If the intention of the Legislature was that the provision of Sections 109 to 116 which apply to the withdrawal of electionpetitions should also govern the withdrawal of appeals, there was no difficulty in inserting similar provisions in Section ll6C or elsewhere in Chapter IV-A.

In this view we are fortified by the decision of this Court in Bijaym:anda Patnaik's case (ibid). In that case the provisions of Sections 116-A, 109 to 116 of the Act, as they stood before the Amendment of 1966, came up for consideration. The facts were that one S filed an election-petition against the appellant B who had been declared elected to the State Legislative Assembly. On the appellant, B's application, the Tribunal dismissed the petition under Section 90(3), for non,compliance with the provisions of Section 82 of the Act. S went in appeal under Section 116-A to the High Court. Subsequently, S applied for withdrawal of the appeal but the High Court refused to permit withdrawal, holding that it had to be guided by the principles of Sections 109 and 110 of the Act in considering the application for withdrawal. In appeal by special leave, this Court held that S had an absolute right to withdraw the appeal and the High Court was bound to grant him permission to do so.

In this connection, the obse:rvations made by Wanchoo, J. Qas he then was), spea~ing for the Court, at page ~47 of the Report, are apposite and may \>e extracted : "When sub-section (2) says that the powers, jurisdiction and authority of the High Court is subject to the provisions. ~f t~e Act, it means that the provision must be an expre~;s provision m the Act or such as arises by necessary implication from an express provision......... There is however, no expr~ss provision. in Chap. IV-A dealing with appeals, which deals with the questrnn of withdrawal of appeals under that Chapter. Nor do we think that ss. 109 and 110 necessarily imply that an appeal also cannot be withdrawn as a matter of right, unless the procedure laid down in those sections is followed. One reason for this view may at once be stated. The losing party is not bound to file an appeal and if he does not, nobody else has the right to do so. The IBAMMANNA v. K. VEERA REDDY (Kailasam, J.

) 8 3 •<Jbject apparently is that the election-petition filed should, if any . voter so desires, be heard and decided. The sections 'dealing with :substitution on death of the petitioner lead to that view : see ss. 112-115. There is no such provision for appeals. It seems to us that if Parliament intended that the provisions of ss. 109 and 110 -which deal with withdrawal of election-petiti'o~s before a tribwn:al shall also apply to withdrawal of appeals before the High Court under Chap. IV-A an express provision could have been easily :made to that effect in s. 116-A by adding a suitable provision in the section that the provisions of ss. 109 and 110 would apply ·to withdrawal of appeals before the High Court as they apply to withdrawal of election-petitions before the tribunal. In the ab· sence of such a provision in Chap. IV-A, we do not think that the "High Court was right in importing the principles of ss. 109 and 110 in the matter of withdrawar of appeals before the High Court.

'So far therefore as the question of withdrawal of appeals before ·the High Court under; Chapter IV-A is concerned, it seems to :us that the High Court has the same powers, jurisdiction and authority in the matter of withdrawal as it would h~. ve in the I :matter of withdrawal of an appeal from an original decree passed 'by a civil court within the local limits of its civil appellate juris- ·diction without any limitation on such powers because of ss. 109 and 110. The High Court thus has the same powers, jurisdiction and authority and has to follow the same procedure in the matter of withdrawal of appeals under s. 116-A as in the matter of an appeal from an original decrt:e before it, and there is no warrant for importing any limitation in the matter on the analogy of ss. 109 and 110 of the Act, which expressly deal only with election-petitions and not with appeals under s. 116-A. " On the above reasoning, it was further.

held that the provisions qegatding withdrawal applicable to ordinary Civil Appeals before the 'High Court are applicable, also, to appeals under Section 116-A. "Under Order XXIII, Rule 1(1) of the code of Civil Procedure, an ;ap~llant has the right to withdraw ·his appeal unc. onditionally, and if he is to make such application, the High Court has (o grant it. If an appellant, who is an aggrieved person under Section 116-C ,of the Act, has got a right to withdraw or abandon his appeal uncon- <litiooally, a flortiori, he has every right not to file an appeal against the dismissal of his Election-Petition, much less has any other/respondent ·who never joined the contest in the Election-Petition, a right to ·file an appeal if the aggrieved party does not do so.

In other words, rthe principle that an Election-Petition is a representative action on 1behalf of the whole body of electors in the cQnstituency, has a very limited applic~tion to the extent it has been incorporated in Sections 109 to . 116 of the Act, and its application cannot be extended to appeals under the Act In the instant case, the appellant or any other elector did not make any application or complaint at the trial of the Election-Petition in the High Court, that the election-petitioner has abandoned the prosecution of the petition or withdrawn from it and that the applicant be substituted for the election-petitioner to continue the proceeding under Section 110(3) (c) of the Act. It will bear repetition that the appellant took no interest, whatever, in the controversy in the Election Petition which was confined only to the electibn-petitioner and respondent l.

Conditions 1 and 3, the satisfaction of which is necessary to give locus staudi to a person to file an appeal under Secitiollli 116·C. have. not been fulfilled in the instant case. The appellant cannot. by any reckoning, be said to be a 'person aggrieved' by the decision of the High Court, dismissing the Election-petition. We, therefore, allow this preliminary objection and. on that ground dis. miss this appeal with costs. · • S. R. Appeal dismissed.