judgement:
Civil Appeal No. 2922 of 1981.
Appeal by Special leave from the Judgment and Order dated the 23rd June, 1981 of the Karnataka High Court in Misc.
Petition No. 1 of 1981 in Election Petition No. 76 of 1978.
Petitioner in person.
P.R. Mridul, H.R. Bhardwaj, N. Nettar, G.S. Narayana, S.N. Bhatt and Hemant Sharma for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave is directed against the order dated June 23, 1981 passed by the Karnataka High Court in Miscellaneous No. 1/81 arising out of Election Petition No. 76 of 1978.
On November 5, 1978, polling took place for electing a member to the Lok Sabha from No. 20 Chikmaglur Constituency and the result of the election was declared on November 8, 1978.
Respondent No. 2 was declared elected.
In all 28 candidates had participated in the election.
One of the contenders for the seat filed Election Petition No. 76 of 1978 before the Karnataka High Court on December 20, 1978 impleading the returned candidate as all other contesting candidates and three outsiders asking for setting aside the election of respondent 2 under section 100(1)(b) of the Representation of the People Act, 1951 ( 'Act ' for short), declaring Shri Virendra Patil, respondent 5 of the election petition, as the duly elected candidate from the constituency and for an order declaring respondents 2, 3 and 4 of the election petition to have been guilty of corrupt practices within the meaning of section 123 of the Act.
In view of the reliefs claimed it became necessary to implead all the contesting candidates as required under section 82 of the Act.
On March 26, 1979, respondent 29 of the election petition filed his written statement as also a petition of recrimination within the meaning of section 97 of the Act as against respondent 5 whom the election petitioner wanted to be declared as the duly elected candidate.
On October 4, 1979 the present appellant who was respondent 19 in the election petition filed his written statement.
The election petitioner who is respondent 1 in the appeal applied to the Court for deleting the 692 prayer in regard to the declaration of Shri Virendra Patil as the returned candidate.
On November 16, 1979, the court allowed the application and prayer (c) of the election petition under which the declaration of Shri Virendra Patil as the returned candidate was asked for was deleted.
The order of the High Court shows that there was no opposition to the request for deletion.
On November 23, 1979, a memorandum was filed for the deletion of respondents 5 to 31.
On July 23, 1980, on his own prayer respondent 2 of the election petition was deleted.
Simultaneously the names of the two other outsiders to the election petition being respondents 3 and 4 of the election petition were also deleted.
Respondent 29 filed a memorandum on August 1, 1980 for withdrawal of the prayer for recrimination as against Shri Virendra Patil.
This was a necessary sequel of the deletion of prayer (c) of the election petition.
On September 12, 1980 the High Court directed that names of respondents 5 to 31 excepting respondents 13 and 19 to the election petition would stand dropped.
Thus, in all three respondents were left in the election petition being original respondents 1, 13 and 19.
On September 30, 1980 the Court directed withdrawal of the recrimination petition as against Shri Virendra Patil by allowing the memorandum dated August 1, 1980.
The present appellant had objected to the request for withdrawal of the recriminatory petition.
Separate orders, viz., the order dated November 16, 1979 allowing deletion of prayer (c) of the election petition, the order dated September 12, 1980 deleting all the respondents excepting respondents 1, 13 and 19 of the election petition from the record, and the order dated September 30, 1980, permitting withdrawal of the recrimination petition, were all allowed to become final in the absence of any challenge.
On November 23, 1980 written statement was filed on behalf of original respondent 1 and issues were settled on January 5, 1981.
The Court indicated a trial schedule by requiring the documents to be filed on February 16, 1981 and recording of evidence was also directed to begin from the date and the trial was to proceed day to day.
On February 16, 1981, the election petitioner wanted adjournment.
The High Court was justified in giving only one adjournment as a last chance and fixing the trial on March 9, 1981, in view of the statutory mandate that an election petition shall be disposed of as far as practicable within six months from the date of presentation of the election petition as required by section 86 (7) of the Act.
On March 9, 1981, the election petitioner again asked for adjournment.
The High Court declined the prayer for adjournment and said: "On 693 the previous occasion, i.e. February 16, 1981, it was posted for commencement of evidence but neither the petitioner nor his witnesses were present.
However, at the request of the petitioners counsel the matter was adjourned to today as a last chance.
The list of witnesses and list of documents were also at the request of the petitioner 's counsel permitted to be filed before February 2, 1981 with notice to respondents.
This has not been done.
However, when the matter was called today the petitioner is absent; none of his witnesses is also present.
Shri K. Channabasappa, learned counsel for petitioner wanted to file the list of documents and witnesses today in Court and stated that the matter may be adjourned for trial to some other date.
In view of the circumstances that petitioner is absent in spite of the fact that this is the second date fixed for trial of the petition, I have no option except to dismiss this petition for non prosecution.
This election petition is accordingly dismissed.
There are three contesting respondents in this election petition viz., R 1, R 13 and R 19 Respondent 1 and R 13 are represented by Shri G. V. Shanta Raju, and Sri Vyas Rao respectively.
R 19 who appears in person is however absent. " On the same day respondent 19 to the election petition made an application praying for "recall of the order dated 9th March 1981 with reference to Election Petition No. 76 of 1978, and this respondent No. 19 may please be permitted to prosecute this election petition, and to submit his evidence, and this respondent may please be permitted to be substituted and to continue the proceedings of this election petition".
Respondent 19 amended this application and asked for restoration of the election petition.
The original respondent 1 filed objection to the request for restoration contending that the application for restoration was not maintainable and that respondent 19 had no locus standi to ask for restoration of the case.
There was no provision for transposition when an election petition was dismissed and, therefore, respondent 19 who could have filed an independent election petition within the time admissible under the Act could not ask for transposition.
On June 23, 1981, the High Court rejected the application after negativing the stand of respondent 19 that an election petition could not be dismissed for default and that a case of abandonment should be treated at par with abatement and withdrawal of the election petition.
On September 14, 1981, a petition for special leave was filed and upon leave being granted, this appeal by respondent 19 has come before us for final hearing.
694 At the hearing the appellant appeared in person.
Respondent 1 who was the election petitioner and respondent 3 who was respondent 13 before the High Court did not appear.
Thus the appellant has been heard in person and respondent 2 has been heard through counsel.
The appellant contended: (1) the earlier orders passed by the High Court, namely, the order dated November 16, 1979 by which prayer (c) was allowed to be deleted and the order dated September 30, 1980 by which respondent 29 was allowed to withdraw his prayer for recrimination as against original respondent 5, are in the nature of partial withdrawal of the election petition and the statutory provision for withdrawal having not been followed, it must be held that the orders are a nullity and no party would be entitled to rely on them.
The appellant is, therefore, free to contend that these orders must be ignored and the High Court should be called upon to comply with the statutory provision relating to withdrawal of election petition before such permission can be granted; (2) an election petition once filed does not mean a contest only between the parties thereto but continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition of the respondent but is liable to be continued by any person who might have been a petitioner.
Therefore, an election petition cannot be dismissed for default and when the appellant who was himself entitled to file an election petition applied for permission to continue the case, the High Court should have given him the opportunity to continue the election petition; (3) the view taken by this Court in some cases that except in cases of withdrawal and abatement, the special provisions contained in the Act for notifying to the constituency so that any other person may apply for being allowed to continue the election petition, are not applicable.
Apart from these contentions which we propose to examine, it is also necessary to consider whether the appellant, not being the election petitioner, could ask for the restoration within the ambit of Order IX, Rule 9 of the Code of Civil Procedure ( 'Code ' for short).
This Court has consistently taken the view that elections and election pisputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity.
As 695 early as 1952 when the first election under the Constitution took place, a Constitution Bench of this Court in N.P. Ponnuswami vs Returning Officer, Namakkal Constituency & Ors., (1) observed: "The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it." while dealing with an appeal in an election dispute arising out of the first series of elections under the Constitution, Mahajan, C.J., speaking for a Constitution Bench of this Court stated in Jagan Nath vs Jaswant Singh & Ors.(2): "The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power.
It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.
" In Charan Lal Sahu vs Nandkishore Bhatt & Ors.,(3) this Court observed: "The right conferred being a statutory right, the terms of that statute had to be complied with.
There is no question of any common law right to challenge an election, Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes.
If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity.
This Court has held that the right to 696 vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.
" In N.P. Ponnuswami 's case it was pointed out that strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
In Jyoti Basu & Ors.
vs Debi Ghosal & Ors.,(1) this Court said: "A right to elect, fundamental though it is to democracy.
is, anomalously enough, neither a fundamental right nor a Common Law Right.
It is pure and simple, a statutory right.
So is the right to be elected.
So is the right to dispute an election.
Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation.
An election petition is not an action at Common Law, nor in equity.
It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies.
It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it.
Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.
A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down.
In the trial of election disputes, Court is put in a straight jacket Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act." 697 That view has been endorsed in Arun Kumar Bose vs Mohd. Furkan Ansari & Ors.,(1) where two of us were parties to the decision.
The legal position is, therefore, well settled that election disputes are strictly statutory proceedings.
Chapter VI in Part III of the Act makes provision for the trial of election petitions.
Sub section (1) of section 87 provides: Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits.
" The same section makes provision for application of the Indian Evidence Act to trial of election petitions, subject to the provisions of the Act.
Keeping in view the detailed provisions in the Act for the trial of election petitions, a three Judge Bench in Inamati Mallappa Basappa vs Desai Basavaraj Ayyappa & Ors.
,(2) indicated: "The effect of all these provisions (which previously were included in certain other sections of the Act) really is to constitute a self contained Code governing the trial of election petitions.
" We have already found that an election petition is a strict statutory proceeding.
An appeal lies to this Court under section 116A of the Act both on questions of law and/or fact from every order made by the High Court under sections 98 and 99 of the Act.
No other order is open to appeal under the statute.
When the application of the appellant to restore the election petition was rejected, an application under article 136 of the Constitution for grant of special leave was made.
In that the petitioner clearly prayed for leave against the order dated June 23, 1981.
Leave has, therefore, been granted to him to appeal against the order of the High Court made on that day.
The earlier orders dated November 16, 1979, September 12, 1980, and September 30, 1980, are not open to challenge in this appeal and Mr. Mridul for the respondent has rightly contended that these orders 698 have become final and cannot be assailed at this stage unless they can be shown to be nullity.
The appellant has taken the stand that an election dispute is not one between two sets of parties who are before the Court, but it is a dispute concerning the entire constituency.
That is the pronounced view of this Court.
In Inamati Mallappa Basappa 's case this Court observed: "Once this process has been set in motion (an election petition has been filed (by the petitioner he has released certain forces which even he himself would not be able to recall and he would be bound to pursue the petition to its logical end. ." This observation goes to show that an election petition once filed does not remain a contest only between the parties thereto but becomes a dispute in which the whole constituency is interested.
The Act makes provisions to meet certain eventualities in the course of the trial in Chapter IV of Part VI.
Two situations which have been covered by the statute are withdrawal and abatement of election petitions.
Sections 109 and 110 deal with withdrawal of election petitions, and sections 112 and 116 deal with the eventuality of death and non substitution leading to abatement.
Section 109 provides: "109.
Withdrawal of election petitions (1) An election petition may be withdrawn only by leave of the High Court; (2) where an application for withdrawal is made under sub section (1), notice there of fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official Gazette.
" Section 110 reads thus: "110.
Procedure for withdrawal of election petition (1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the petitioners; 699 (2) No application for withdrawal shall be granted if in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed; (3) If the application is granted (a) X X X (b) the High Court shall direct that the notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly; (c) a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.
The question of abatement does not arise in this case.
It is, therefore, sufficient to state without extracting the provisions of sections 112 and 116 of the Act, that even in the case of death and non substitution, the Court is required to publish the notice in the official gazette.
Two questions become relevant at this stage: firstly, it has to be decided whether the earlier orders allowing prayer (c) to be deleted and the relief of recrimination to be omitted amounted to withdrawal of the election petition within the meaning of sections 109 and 100 of the Act; and secondly, whether on that account the orders are a nullity.
Prayer (c) in the election petition was concerned with the declaration of respondent 5, Shri Virendra Patil as duly elected from the constituency in question.
This relief was asked to be deleted.
No objection was raised to its deletion and in due course the Court allowed this prayer to be omitted.
In opposition to the claim made in this prayer recrimination was filed by one of the respondents in the election petition.
But once prayer (c) was dropped, the relief 700 of recrimination could no more stand.
Consequently on the prayer of the recriminator that relief was also allowed to be omitted.
In view of the contention of the appellant, it is necessary to decide whether omission of prayer (c) comes within the ambit of section 109 of the Act.
Sub section (1) of section 109 provides that an election petition can be withdrawn only by leave of the High Court.
Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition.
There would be several instances where not withstanding the deletion of one relief, the election petition as such would continue to be alive.
In the cases which were cited before us referring to the applicability of Order XXIII, rule 1 of the Code, this aspect was examined with reference to withdrawal of the election petition.
We do not think that if one of the reliefs claimed in the election petition is asked to be omitted, it would come within the provisions of sub section
(1) of section 109 of the Act.
There is no reason why, if even after omission of a particular relief the election petition survives and is available to be tried in accordance with law, that omission or deletion should be treated as withdrawal of the election petition.
There may be cases where while asking for one definite relief as the main one in a lis several other reliefs are prayed for and after the pleadings are closed instances are not rare when untenable and unnecessary reliefs are asked to be omitted.
Amendment to omit such a relief does not amount to a prayer for withdrawal of the lis itself.
In this case the main relief of the election petitioner was setting aside of the election of respondent 2.
Along with it he had also claimed the relief that the original respondent 5 be declared to be duly elected.
Apart from the fact that no objection was raised when the prayer for deletion was made, the appellant did not challenge the order of the Court deleting the other parties and omitting the relief of recrimination and indeed he could not do so, since to the present appeal the other respondents are not parties and in their absence the validity of the Court 's order of deletion of the prayer for declaring respondent 5 as duly elected and the consequent deletion of the prayer for recrimination as also the omission of the other parties from the category of respondent to the election petition could not be allowed to be agitated as that would be contrary to rules of natural justice and likely to prejudice those parties without affording a reasonable opportunity to them of being heard.
Moreover, it may be noticed that special leave was obtained only against the subsequent order of June 23, 1981, and no challenge at all was raised against these previous orders.
It is, therefore, clear that the earlier orders 701 of the Court could not possibly be regarded as a nullity and the appellant is precluded from challenging those orders in this appeal.
When proceed next to examine whether the election petition could be dismissed in the absence of the election petitioner and whether the appellant could apply for its restoration though he himself was not the election petitioner, The basis of the appellant 's contention that the election petition cannot be dismissed for the absence of the election petitioner is that once an election petition is filed, it concerns the entire constituency.
Purity of the electoral process in a democracy, it is contended, is of paramount importance and an election petition cannot be permitted to be dismissed for default inasmuch as that would lead to situations brought about by manipulation, undue influence, fraud or winning over of the election petitioner.
The 2nd respondent 's counsel has not disputed before us and rightly in our view that purity of the electoral process is paramount in a democracy and an election petition should not be permitted to be abandoned by undue influence or pressure over the election petitioner.
It may be pointed out that there was no allegation of undue influence or pressure over the election petitioner to justify his conduct in this case.
It is relevant to mention that the 2nd respondent who was the elected candidate was expelled from the Lok Sabha in December 1978, and in August 1979, the Lok Sabha to which respondent 2 had been elected was dissolved.
It was after these supervening events that in October 1979 the request to delete prayer (c) was made and the other orders followed.
This explanation given by respondent 2 's counsel to justify the conduct of the election petitioner is a relevant feature.
There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default.
The appellant contended that default of appearance or non prosecution of the election petition must be treated as on par with withdrawal or abatement and therefor, through there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in sections 110 or 116 of the Act should be made applicable.
We see no justification to accept such a contention.
Non prosecution or abandonment is certainly not withdrawal.
Withdrawal is a positive and voluntary act while non prosecution or abandonment may not necessarily be an act of volition.
It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute.
In the case of withdrawal steps are envisaged to be taken 702 before the Court in accordance with the prescribed procedure.
In the case of non prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders.
We have already indicated that the Act is a self contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy.
In fact, the terms of section 87 of the Act clearly prescribe that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition.
In many cases it has been held that an election petition can be dismissed for default.
A full Bench of the Punjab High Court in Jugal Kishore vs Dr Baldev Prakash.
had occasion to consider this question when Grover, J. delivering the judgment of the Court spoke thus: "It has been repeatedly said that an election petition once filed is not a contest only between the parties thereto but continues for the benefit of the whole constituency.
It is for that purpose that in the Representation of the People Act, 1951, provisions have been made in sections 109 and 110 relating to withdrawal of an election petition and sections 112 and 116 relating to abatement of such a petition the effect of which is that the petition cannot come to an end by the withdrawal there of by the death of the petitioner or by the death or withdrawal of opposition by the respondent, but is liable in such cases to be continued by any person who might have been a petitioner.
There is nothing in the entire Act providing or indicating that a similar procedure is to be followed in the event of a petitioner failing to prosecute the petition.
such failure can be due to various causes.
The petitioner can, by force of circumstances, be genuinely rendered helpless to prosecute the petition.
For instance, he may find that his financial condition has suddenly worsened and that he can no longer afford the expenses of litigation.
He may even, owing to exigencies of business or vocation or 703 profession, have to go to such a distant place from the seat of the High Court where the election petition is being tried that he may find it impossible to prosecute the petition in a proper manner.
There would be two courses open to him and that will depend entirely on his volition.
He can either file an application for withdrawal of the petition disclosing the circumstances which have brought about such a situation in which case there would be no difficulty in following the procedure laid down in sections 109 and 110 of the Act, or he may choose to simply absent himself from the Court or cease to give any instructions to the counsel engaged by him or fail to deposit the process fee and the diet money for witnesses or take the necessary steps for summoning the witnesses in which case the Court will have no option but to dismiss the election petition under the provisions of the Code of Civil Procedure which would be applicable to the election petitions in the absence of any express provisions in the Act.
The dismissal will have to be under the provisions contained in Order 9 or Order 17 of the Code.
It is quite clear that there is no distinct provision in the Act laying down any particular or special procedure which is to be followed when the petitioner chooses to commit default either in appearance or in production of evidence or generally in prosecuting the petition.
The provisions of the Code of Civil Procedure would, therefore, be applicable under section 87 of the Act.
I am further of the opinion that any argument which could be pressed and was adopted for saying that the inherent powers of the Court could not be exercised in such circumstances would be of no avail now as the High Court is a Court of Record and possesses all the inherent powers of a Court while trying election petitions.
" It is relevant to note the observations of Hidayatullah, CJ in Sunderlal Mannalal vs Nandramdas Dwarkadas & Ors. where he indicated: "Now the Act does not give any power of dismissal.
But it is axiomatic that no Court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain 704 present.
The dismissal, therefore, is an inherent power which every tribunal possesses. ." Similar view has been expressed by another Full Bench of the Allahabad High Court in Duryodhan vs Sitaram & Ors.
A four Judge Bench of this Court in Rajendra Kumari Bajpai vs Ram Adhar Yadav & Ors.
referred to the Punjab case.
Fazal Ali, J. speaking on behalf of the Court quoted a portion of the judgment of Grover, J. which we have cited above and said: "We fully approve of the line of reasoning adopted by the High Court in that case.
" It, therefore, follows that the Code is applicable in disposing of an election petition when the election petitioner does not appear or take steps to prosecute the election petition.
Dismissal of an election petition for default of appearance of the petitioner under the provisions of either Order IX or Order XVII of the Code would, therefore, be valid and would not be open to challenge on the ground that these provisions providing for dismissal of the election petition for default do not apply.
The appellant was not the election petitioner.
Order IX, rule 9 of the Code (and not rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition.
That can be invoked in an appropriate case by the election petitioner only and not by a respondent.
By its own language, rule 9 provides that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit but he may apply for an order to set the dismissal aside.
Under this rule, therefore, an application for restoration can be made only by the petitioner.
Since it is a provision for restoration, it is logical that the provision should be applicable only when the party on account of whose default in appearance the petition was dismissed makes an application to revive the petition to its former stage prior to dismissal.
In the instant case the election petitioner and not respondent 19 who is in appeal before us, could have asked for the relief of restoration.
The appellant contended that the statutory scheme authorises an elector at whose instance an election petition could have been filed to get substituted in the event 705 of withdrawal or abatement and applying that analogy, he urged that a petition for restoration would also lie at the instance of a respondent.
The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations.
Specific provisions have been made in the Act to deal with the two situations withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition has been permitted to substitute himself in the election petition and to pursue the same in accordance with law.
These provisions cannot be extended to an application under order IX, rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.
The fallacy in the logic advanced by the appellant in this behalf is manifest when we refer to a suit for partition.
In a suit for partition the position of the plaintiff and that of the defendant is interchangeable.
So long as the suit is pending a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can also ask for being transposed as a defendant.
The possibility of transposition during the pendency of the suit would not permit a defendant to apply for restoration of a suit for partition which is dismissed for default and the right to apply for transposition would certainly come to an end when the suit is no more alive.
In our opinion the respondent 's position in an election petition would not be higher than that.
We therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.
This Court in Dhoom Singh vs Prakash Chandra Sethi & Ors., held: "The legislature in its wisdom has chosen to make special provisions for the continuance of the election petition only in case of its withdrawal or abatement.
It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original 706 election petitioner or otherwise.
It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent.
It may be a case of casus omissus.
It is a well known rule of construction of statutes that "A statute, even more than a contract, must be construed, ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air".
A second consequent of this rule is that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" (see Craies on Statute Law).
It seems plain that the High Court is enjoined to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Act.
In the true cases of non compliance with the said provisions of law a question of intervention by another person may not arise.
But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under section 86 (1).
Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate.
It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter.
If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose.
" The ratio of this decision as also the observations in Basappa 's case, the appellant contends, are wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded.
We do not think the appellant 's contention can be accepted The earlier 707 decisions of this Court do not in any way militate against the view taken in Dhoom Singh 's case (supra) and the observations made in Basappa 's case (supra).
Those decisions were not concerned with the question as to whether an election petition can be dismissed for default.
The concensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code would be applicable.
About eight years back this Court had occasion to point out that if the intention of the legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act.
We find that even earlier in Shcodhan Singh vs Mohan Lal Gautam, this Court had stated: "From the above provisions it is seen that in an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other.
Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner.
The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds." (underlining is ours) We must assume that the legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made.
The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation.
At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law.
We may recall the observation of Lord Denning in Seaford Estates vs Asher; 708 "A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
" All the three contentions advanced on behalf of the appellant fail.
We have already taken the view that at the instance of the appellant the application for restoration was not maintainable.
Therefore, the appeal cannot be allowed and we cannot direct restoration of the election petition.
Accordingly the appeal fails and is dismissed and the order of the High Court is confirmed.
We leave the parties to bear their respective costs.
N.V.K. Appeal dismissed.

summary/full:
Respondent No. 2 who was one of 28 candidates participating in an election to a Lok Subha seat was declared elected.
One of the contenders, (Respondent No. 1) filed an Election Petition for setting aside the election of Respondent No. 2, under section 100 (1) (b) of the Representation of the People Act, 1951, and declaring Respondent No. 5 of the Election Petition as the duly elected candidate, and also for an order declaring Respondent Nos. 2, 3 and 4 as been quilty of corrupt practices under sections 123.
The returned candidate as also all other contesting candidates and 3 outsiders were impleaded as 688 respondents.
Respondent No. 29 of the Election Petition filed his written statement as also a petition of recrimination under section 97 against Respondent No. 5.
Respondent No. 19 in the Election Petition (Appellant in the appeal) filed his written statement.
The Election Petitioner (Respondent No. 1 in the appeal) applied to the court for deleting prayer (c) in the election petition regarding the declaration of Respondent No. 5 as the returned candidate, and the court allowed the deletion.
Later Respondent No. 29 filed a memorandum for withdrawal of the prayer of recrimination against Respondent No. 5.
After the court allowed withdrawal of the recrimination petition the appellant objected to the request.
Written statement was filed on behalf of Respondent No. 1, issues were settled, documents directed to be filed and the case adjourned for trial.
The election petitioner wanted an adjournment on the date the case was posted for trial.
The court gave a last chance and fixed the trial peremptorily having regard to the statutory mandate under section 86 (7) requiring an election petition to be disposed of within 6 months from the date of presentation.
On the date when the case was fixed for trial the election petitioner neither filed his list of witnesses nor list of documents and prayed for an adjournment.
The court refused the adjournment and dismissed the Election Petition.
On the same day, Respondent No. 19 made an application praying for recall of the order of dismissal and also for permission to prosecute the election petition, submit his evidence, and that he may be substituted to continue the proceedings of the Election Petition.
The original Respondent No. 1 objected and contended that the application was not maintainable and that Respondent No. 19 had no locus standi to ask for restoration.
It was further contended that there was no provision for transposition when an election petition was dismissed and Respondent No. 19 who could have filed an independent Election petition within the time admissible under the Act, and not having done so, could not ask for transposition.
The High Court rejected the application.
In the appeal to this Court it was contended on behalf of the appellant that: (1) the earlier order of the High Court by which prayer (c) was allowed to be deleted and the order by which Respondent No. 29 was allowed to withdraw his prayer for recrimination as against original Respondent No. 5 were in the nature of partial withdrawal of the election petition and the statutory provision for withdrawal having not been followed, the order was a nullity and no party would be entitled to rely on them; (2) an election petition once filed does not mean a contest only between the parties there to but continues for the benefit of the whole constituency and cannot come to an end merely by withdrawn by the petitioner or by his death or by the death or withdrawal of opposition of the respondent, but is liable to be continued by any person who might have been a petitioner.
An election petition cannot be dismissed for default and when the appellant applied for permission to continue the case, the High Court should have given the opportunity to continue the election petition; and (3) that the view taken in some cases by this Court that except in cases of withdrawal and abatement, the special provision contained in the Act for 689 notifying to the constituency so that any other person may apply for being allowed to continue the election petition, are not applicable.
Dismissing the appeal: ^ HELD: 1 (i) An election petition is liable to be dismissed for default in situations covered by Order IX or Order XVII of the Code of Civil Procedure and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.
[705 E F] In the instant case, at the instance of the appellant the application for restoration was not maintainable.
[708 B] (ii) Elections and election disputes are a matter of special nature and though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity.
Election disputes are strictly statutory proceedings.
[694 H, 697 A] N.P. Ponnususami vs Returning Officer Nanmakkal Constituency & Ors.[1952] S.C.R. 218; Jagan Nath vs Jaswant Singh & Ors. ; at 895; Charan Lal Sahu vs Nand kishore Bhatt & Ors. ; at 296; Jyoti Basu & Ors vs Debi Ghosal & Ors ; at 326 327; Arun Kumar Bose vs Mohl.
Furkan Ansari & Ors. ; referred to.
(iii) An election petition once filed does not remain a contest only between the parties there to but becomes a dispute in which the whole constituency is interested.
The Representation of People Act makes provisions to meet certain eventualities in the course of trial of election petitions in Chapter IV of Part VI.
Two situations which have been covered by the statute are withdrawal and abatement of election petitions.
Sections 109 and 110 deal with withdrawal of election petitions, and Sections 112 and 116 deal with the eventuality of death and non substitution leading to abatement.
Even in the case of death and non substitution, the Court is required to publish a notice, in the official gazette.
[693 C 698 E, 699 F] (iv) Sub section (1 of section 109 provides that an election petition can be withdrawn only by leave of the High Court.
Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition.
[700 B] In the instant case, prayer (c) in the election petition was concerned with the declaration of Respondent No. 5 as duly elected from the constituency.
This relief was asked to be deleted.
No objection was raised to its deletion and in due course the Court allowed this prayer to be omitted.
In opposition to the claim made in this prayer, recrimination was filed by one of the respondents in the election petition.
But once prayer (c) was dropped, the relief of recrimination could no more stand.
[799 G 700 A] 690 2(i) Non prosecution or abandonment is certainly not withdrawal Withdrawal is a positive and voluntary act while non prosecution or abandonment may not necessarily be an act of volition.
It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute.
In the case of withdrawal steps are envisaged to be taken before the Court in accordance with the prescribed procedure.
In the case of non prosecution or abandonment, the election petitioner does not appear before the court and obtain any orders.
[701 H 702 A] (ii) The Act is a self contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy.
The terms of sec.
87 clearly prescribe that if there by no provision in the Act to the contrary, the provisions of the Code of Civil Procedure would apply and that would include Order IX Rule 8, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition.
[702 B] (iii) Dismissal of an election petition for default of appearance of the petitioner under the provisions of Order IX or Order XVII of the Code would be valid and would not be open to challenge on the ground that these provisions do not apply.
[704 D] Jugal Kishore vs Dr. Baldev Parkash.
AIR 1968 Punjab & Haryana 152 at 158 159; Duryodhan vs Sitaram & Ors.
AIR 1970 All.
1. approved.
Sunderlal Mannalal vs Nandramdas Dwarkadas & Ors.
A.I.R. 1958 M.P. 260 Rajendra Kumari Bajpai vs Ram Adhar Yadav & Ors at 260; referred to.
(iv) Order IX, Rule 9 (and not Rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition, and it can be invoked in an appropriate case by the election petitioner only and not by a respondent.
[704 E] In the instant case the election petitioner and not the appellant could have asked for the relief of restoration.
[704 G] 3.
The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code would be applicable.
The Court had occasion to point out that the Legislature had not thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election petitioner or otherwise.
The legislature could have removed the lacuna by amending the Act, particularly when many amendments have been made.
The fact that has been done leaves an impression that the Court had not misread the situation.
It is not for the Court to fill up any lacuna in the legislation.
[707 B C; F G] Dhoom Singh vs Prakash Chandra Sethi & Ors. ; at 599; Sheodhan Singh vs Monan Lal Gautam.[1969] 3 S.C.R 416 at 421. referred to. 691


judgement:
ivil Appeal No. 11991 of 1983.
From the Judgment and Order dated the 27th April, 1983 of the High Court of Bombay in Writ Petition No.392 of 1982.
AND Civil Appeal No.1810/81.
From the Judgment and Order dated the 8th July, 1981 of the High Court of Bombay in Writ Petition No.1484 of 1981.
V.M. Tarkunde, Mrs. M. Karanjawala and R. Karanjawala, for the appellant in C.A.No. 11991/83.
M.N. Phadke, C.K. Ratnaparkhi and A.N. Sawant for the respondents in C.A.No. 11991/83.
P.R. Mridul, P.N. Parekh and P. Mishra for the respondent No. 1 R.P. Bhatt, K. Rajendra Choudhary and K.S. Choudhary, for the appellant in C.A. No.1810/81.
770 Dr. N.M. Ghatate, S.V. Deshpande, V.B. Joshi and M.N. Shroff for the respondents in C.A. No. 1810/81.
The Judgment of the Court was delivered by DESAI, J.
Construction of Sec.
73B of the Maharashtra Cooperative Societies Act, 1960 ( 'Act ' for short) figures in these two appeals arising from the two decisions rendered by the Bombay High Court, covering the same point and reaching the same conclusion, but the latter one does not take note of the earlier decision.
Re: S.L.P. (Civil) No. 773283: The Nasik Merchants Co operative Bank Ltd., the first respondent, is a co operative Bank deemed to be registered under the Act and is governed by the Act.
It was registered on June 11, 1959.
It is a specified society within the meaning of the expression in Sec.
73G(1)(vii) of the Act.
Accordingly the election of the members of the Committee and the election of the office bearers by the Committee of the first respondent would be subject to the provisions of Chapter XI A and has to be conducted in the manner prescribed in the Chapter.
The Committee in which management of the first respondent vests, is designated as Board of Directors.
The term of the members of the Board of Directors is five years.
The election to the Board of Directors for the period 1981 82 to 1985 86 became due.
As required by Sec.
144 C, the Collector having jurisdiction in the matter notified the programme of election on October 29, 1981.
At the relevant time, the strength of the Board of Directors was 15 in number.
14 Directors were to be elected by members and one was to be nominated by the Central Co operative Bank.
It is not disputed but in fact conceded that the election programme notified by the Collector did not specify that the two seats on the Board of Directors of the first respondent would be reserved seats; one for the members belonging to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members who have been granted loans from the society of an amount not exceeding Rs. 200 during the year immediately preceding as required by Sec.
73B of the Act.
Poll was held on December 14, 1981 and the counting of votes took place on December 14, 1981 and the result was declared on December 17, 1981.
Respondents 3 to 16 were declared elected.
Thereupon the present petitioner, a member of the first respondent Bank and belonging to the Joshi community which is recognised as a Scheduled Tribe moved an election petition under Sec. 144 before the Additional Commissioner, Nasik, calling in question the election of respondents 3 to 16 to the Board of 771 Directors of the firs respondent Bank inter alia on the ground that the whole of the election programme is vitiated on account of its non compliance with the mandatory statutory provision enacted in Sec.
73B which prescribes reservation of seats; one in favour of Scheduled Castes or Scheduled Tribes and another in favour of weaker section from the members who had borrowed loans not exceeding Rs. 200 in the year preceding the year of election ( 'reservation for weaker section ' for short).
There were other grounds on which the election of respondents 3 to 16 was called in question but they are no more relevant and need not clutter the record here.
The Additional Commissioner as per his judgment and order dated February 8, 1982 held that despite the failure of the first respondent Bank to amend bye law 41 (correct bye law appears to be 40) even after repeated reminders by the District Deputy Registrar, the mandate of Sec.
73B will have precedence overt he unamended bye law 40 and as the election process was set in motion in contravention of the mandatory provision contained in Sec.
73B and the relevant rules, the result of the election has been materially affected and accordingly declared the election of respondents Nos. 3 to 16 as void and ineffective and directed the Collector, Nasik to hold the election de novo.
Respondents Nos. 3 to 7 and 9, 10 and 12 and 14 to 16 filed Writ Petition No. 392 of 1982 in the High Court of Judicature at Bombay under article 227 of the Constitution for a writ of certiorari.
A Division Bench of the Bombay High Court granted the writ and made the rule absolute holding that it is not imperative that the reserved seats must be filled in only by election and the mandate of Sec.
73B would be adequately complied with if reserved seats are filled in by co option and therefore, there is no error in conducting the election.
Accordingly, the order of the Additional Collector was quashed and set aside and the election petition was dismissed.
When the petition for special leave to appeal came up before this Court, a direction was given that the matter will be disposed of at the stage of granting special leave as if it is an appeal.
Hence this appeal by special leave.
C.A. No. 1810/81: The Parbhani District Central Co operative bank Ltd., the second respondent is a co operative bank deemed to be registered under the Act.
It is a specified society within the meaning of the expression in Sec.
73G. The term of members of the Board of Directors expired.
Accordingly, the Collector of Parbhani, the first respondent notified programme of election commencing from March 30, 1981 and 772 ending with the counting of votes and declaration of result on April 24, 1981.
The election was held and the result was announced and respondents No. 3 to 12 were declared elected.
Thereafter the meeting of the elected members of the Board of Directors is to be convened to elect the office bearers.
At that stage, the two appellants filed Writ Petition No. 1484 of 1981 in the Bombay High Court questioning the validity of the election of the respondents 3 to 12 inter alia on the ground that the election was held in violation of Sec.
73B of the Act.
A Division Bench of the Bombay High Court held that there was some confusion between the procedure for election prescribed in the rules and the bye laws and the one prescribed in Sec.
73B and therefore, the Collector did not take steps to hold election to the reserved seats.
The Court further held that the first petitioner did not take any objection until the whole election process was completed and at a later stage approached the Court to 'throttle down ' the election of the office bearers and that this might indicate a waiver of the right on the part of the petitioner and also it amounts to acquiescence and therefore, no interference is called for at the instance of the petitioner.
The Court also observed that co option being an alternative to election to the reserved seats, the mandate of Sec.
73B would be satisfied if the Board of Directors co opts two members to provide representation to the two reserved seats.
Approaching the matter from this angle, the writ petition was dismissed.
Hence this appeal by special leave.
The out come of these two appeals depends upon the construction to be put on Sec.
73B which must subserve the underlying intendment of that provision.
73B reads as under: "On the committee of such society or class of societies as the State Government may, by general or special order, direct, two seats shall be reserved, one for the members who belong to the Scheduled Castes or Scheduled tribes and one for the weaker section of the members who have been granted loans from the society of an amount not exceeding Rs. 200 during the year immediately preceding.
If no such persons are elected or appointed, the committee shall co opt the required number of members on the committee from amongst the persons entitled to such representation.
" 773 Section 73 provides that the management of every society shall vest in a committee, constituted in accordance with the Act, the rules and the bye laws.
73B mandates that two seats shall be reserved on the committee of such society or class of societies as the State Government may, by general or special order, direct, ( 'Specified society ' for short) one for the members who belong to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members who have been granted loans from the society of an amount not exceeding Rs. 200 during the year immediately preceding.
73B further provides that if no such persons are elected or appointed, the committee shall co opt the required number of members on the committee from amongst the persons entitled to such representation.
We may now note the rival contentions.
Appellants assert that the reservation in favour of the Scheduled Castes and Scheduled Tribes and weaker section of the members on the committee of the society manifests a statutory attempt giving effect to the provisions of the Constitution especially the one contained in Arts 43 and 46 and has to be given effect as if carrying out the constitutional mandate enshrined in articles 15 and 16 of the Constitution.
Proceeding along this line, it was submitted that a democratic polity swears by setting up democratic institutions election, neither by appointment nor co option.
It was submitted that the Legislature has clearly indicated its preference in favour of election failing which alone the reserved seats may be filled in by appointment or co option.
They have called in aid the chronology of methodology set out in Sec.
73B. wherein it is stated that 'if no such persons are elected or appointed, ' the committee shall co opt the required number of members on the committee from amongst the persons entitled to such representation. ' Appellants assert that Sec.
73B proceeded to make a statutory reservation of two seats and declared its preference in favour of filling in the reserved seats by election and that is indicated by the expression; 'if no such persons are elected or appointed, ' the committee then in order not to defeat legislative intention of giving representation to the class in whose favour reservation is made, shall co opt the required number of members on the committee.
The appellants say that co option can be availed of as the last resort and cannot be used to supplant election to defeat the legislative mandate according priority to election or appointment.
They say that co option can only be resorted to, to effectuate the purpose underlying Sec.
73B if and only if an attempt having been made at first providing an 774 opportunity to fill in reserved seats by election, failing which appointment and thereafter co option, which cannot be equated with election or appointment so that anyone mode may be adopted for filling in the reserved seats at the whim or caprice or sweet will either of the statutory authority or the committee of members.
The respondents excluding the statutory authority on the other hand contend that the object underlying Sec.
73B is to provide for giving an opportunity to persons belonging to the class in whose favour reservation is made such as members of the Scheduled Casts/Scheduled Tribes or the weaker section of the members of the Society to be on the committee.
The primary importance is of filling in reserved seats and not the methodology because the legislature was aware that a class of persons in whose favour reservation is made may not be available for election and therefore, provision for appointment as also for co option has been simultaneously made in Sec.
73B. The respondents assert that the filling in of the reserved seats is a sine qua non to carry out the mandate of Sec.
73B and not the mode or method by which the reserved seats are filled.
The rival contentions clearly bring to the fore the question of construction of Sec.
73B. The Act was enacted in 1960 and it repealed the Bombay Co operative Societies Act, provides for the vesting of the management of every society in a committee to be constituted in accordance with the Act, the rules and the bye laws.
At the commencement of the Act, there was no provision for reservation of seats in favour of the members of the Scheduled Castes and the Scheduled Tribes and the weaker section of the members.
73B making reservation obligatory was introduced in the Act by Amending Act 27 of 1969.
Why was this specific amendment made ? The working of the Act must have disclosed a sorry state of affairs that even though the cooperative movement was expanding by leaps and bounds, the members of Scheduled Castes and Schedule Tribes or the weaker section of the members of the society were not represented in the committee and had no opportunity to participate in the decision making process, laying down broad policies and management of the society.
article 43 of the Constitution set the goal that the State shall endeavour to promote cottage industries on an individual or co operative basis in rural areas.
In our onward march of economic 775 independence, India was destined to be a co operative commonwealth.
Since independence, co operative movement proliferated in all directions, its activities were diversified, more especially in the rural areas; Every activity of a person devoted to agriculture in the rural area is considerably influenced by the co operative movement, such as seed distribution, credit, disposal of agricultural produce etc.
The members of the Scheduled Castes and Scheduled Tribes predominantly in rural areas did not remain unaffected by the gigantic stride that the co operative movement took.
They were directly and substantially affected by it.
In order to avoid that those who are affected by the movement in their vital day to day existence enjoy a second class status by being denied the opportunity to be represented in the management council, and decision making bodies, a provision like Sec.
73B was introduced to ensure representation of such persons who in the absence of reservation may find it difficult to be elected to the committee in which the entire power of management vests.
Absence of representation coupled with subjection to the dictates of the society would be antithesis of democratic process reducing such persons to serfdom.
A co operative society is to be governed by a committee elected by democratic process.
This democratic process must permeate in filling in reserved seats otherwise the committee would not enjoy a representative character.
One can draw light from the provisions contained in Part XVI of the Constitution and especially articles 330 and 332 which provide for reservation of seats in the House of People and in the Legislative Assembly of every State for the Scheduled Castes and the Scheduled Tribes.
The felt necessities of the time and the historical perspective of class domination led to the constitutional guarantee of reservation so that India can truly be a Sovereign Socialist Secular Democratic Republic.
A republic is made up of men and institutions.
That is why democratic institutions have to be set up by providing for election and to make the democratic institutions truly representative, reservation of seats for those who on account, of their backwardness, exploitation and unjust treatment both social and economic cannot obtain representation because of the class domination.
This is the genesis of reservation.
Therefore, any provision making for reservation must receive such construction as would advance the purpose and intendment underlying the provision making reservation and not thwart it.
"In the past a method of construction was used to extend a remedial statute called proceeding upon the equity of the statute.
In Hay vs Lord Provost of Perth Lord Westbury observed that the mode of 776 construction known as the equity of the statute ' was 'very common with regard to our earlier statutes, and very consistent with the principle and manner according to which Acts of Parliament were at that time framed. ' Undoubtedly, now a days this mode of construction has fallen into disuse: Even though the expression 'the equity of the statute ' has fallen into disuse, it is still in vogue in somewhat similar form in that if it is manifest that the principles of justice require something to be done which is not expressly provided for in an Act of Parliament, a court of justice will take into consideration the spirit and meaning of the Act apart from the words.
In this context, one can recall the words of Jessel M.R. in Re Bethlem Hospital, that 'the equity of the statute ' may as well mean, such a thing as construing an Act according to its intent, though not according to its words.
Alternatively, one can bring in Hydon 's test more often noticed by this Court that in order to arrive at true intendment of a statute, the Court should pose to itself the questions; (1) what was the situation prior to the provision under construction, (2) what mischief or defect was noticed before introducing the provision, (3) whether it was remedial and (4) the reason for the remedy.
Applying this test, the same result would follow inasmuch as looking to the position and the plight of Scheduled Castes and Scheduled Tribes and the weaker section of the members of a society, though they would be subject to the dictate of the society they had no voice in the managerial councils and that to raise the stature and status of such persons so as to bring them on the footing of equality with other segments of the society, reservation was provided in the absence of which those in whose favour reservation was made could not get elected to the decision making bodies.
While ascertaining the true canon of construction applicable to Sec.
73B, these aspects must stare into our face.
Before going in search of any external aids of construction, let us look at the language employed by the Legislature because no canon of construction can be said to be more firmly established than this that the Legislature uses appropriate language to manifest its intention.
No controversy was raised with regard to the power of Legislature to prescribe reservation of seats in the committee in which the management of the society vests.
The use of the expression 'shall ' in Sec.
73B clearly mandates obligation to reserve.
777 The next question is how the reserved seats are to be filled in ? The section itself clearly manifests legislative intention when it says that 'if no such persons are elected or appointed, ' the reserved seats may be filled in by co option.
Therefore, the pride of place is accorded to election of persons eligible to fill in reserved seats.
Let there be no mistake that there is no reserved constituency which may divide the society or the electorate.
The constituency is the general constituency.
Only the seats are reserved.
This would imply that the general body of members will elect persons eligible to fill in reserved seats.
When statute requires a certain thing to be done in a certain manner, it can be done in that manner alone unless a contrary indication is to be found in the statute.
If the Legislature uses expression 'if no such persons are elected ' it indubitably suggests that primarily the reserved seats are to be filled in by election.
Failing the election, one can resort to appointment or co option.
The chronology of the methodology by which seats are to be filled in as set out in Sec.
73B clearly manifests the legislative intention.
The first and the foremost pride of place is accorded to election.
It ought to be so because a representative institution ordinarily must be democratically elected.
The section therefore, speaks 'if no such persons are elected ' which would mean the authorities charged with a duty to hold election must proceed to arrange for holding the election.
If election is held giving out information that there are reserved seats and no candidate is forthcoming to contest for the reserved seats, the Legislature in its wisdom provided that the seats shall not remain vacant but can be filled in by two subsidiary methods such as appointment or co option which cannot be put on par or equated with election which is a universally recognised method by which representative institutions are set up.
Therefore, the language and the chronology of the methodology of filling in reserved seats employed in Sec.
73B provide a clue to its correct construction and there should be no doubt that opportunity must be provided for filling in seats by election.
It is the failure of the election machinery to fill in the seats which would enable the concerned authority to fill in the seats by appointment or co option.
The condition precedent to filling in reserved seats by appointment or co option is holding of the election and failure to elect such persons would permit resort to other methods of filling in the reserved seats.
It was submitted that the object underlying Sec.
73B can as well be fulfilled by co opting two persons eligible to fill in reserved seats.
778 The more vociferous submission was that such construction should be put on a statutory provision which accords with the main thrust of the section and not with peripheral requirements which would appear to be directory.
It was urged that the fundamental requirement of Sec.
73B is to provide representation to specified classes therein mentioned and that must be held to be mandatory and not the method by which the representation is ensured.
Further it was said that there is illuminating inter evidence in Sec.
73B itself which shows that the method of filling in seats is directory and therefore three alternative modes by which reserved seats could be filled in were provided in the provision itself.
Proceeding along this line, it was said that co option can equally ensure representation to the qualified persons to fill in the reserved seats, and that therefore, the Court should not upset the entire election process on this account.
If this approach is ever accepted, it would strike a death knell of the democratic principle of giving the constituency the right to elect its representatives and it would be usurped by a coterie of certain elected persons.
From enjoying a direct representation, the constituency would move backwards and the process of regress would be that instead of direct election by the constituency which is the statutory right granted by Sec.
73B, the right to select would be usurped by the Board of Directors who would decide who should be co opted to fill in the reserved seats.
Such a retrograde movement is undemocratic.
The struggle to get direct representation cannot be thwarted in this manner.
This becomes manifest from the fact that the power to co opt the members to fill in reserved seats is conferred on the members of the committee i.e. on the Board of Directors.
To tersely put the issue in focus, the method of co option denudes the power of the constituency to elect members and is usurped by a small body like the Board of Directors.
The outcome is not difficult to gauge.
The committee will co opt members who would be their puppets, totally ignoring whom the constituency i.e. the general body of members would have elected.
If it is the effect of co option, it could never be equated with election much less accorded precedence over election by the general body of the members that is the constituency.
Therefore the submission that method of filling in reserved seats is directory and therefore any one of the three modes can be adopted to comply with the mandatory part of Sec.
73B viz. filling in reserved seats, does not commend to us.
Mr. Phadke, learned counsel who appeared for the respondents in one of the appeals urged that the emphasis is on filling in reserved 779 seats and not the mode or method by which the seats are filled in.
In this connection, he drew our attention to the unamended bye law No. 40 of the bye laws framed by Nasik Merchants Co operative Bank Ltd., the first respondent in the first matter.
After referring to the unamended bye laws, it was urged that there was no provision for electing members to the reserved seats.
He further urged that Sec.
72 requires that the election to the committee has to be held according to the Act, the rules and the bye laws.
Reference was also made to the procedure for counting for votes set out in rule 61 of the Maharashtra Specified Co operative Societies Election to Committees Rules, 1971 ( 'Rules ' for short), which provide that the Returning Officer shall after the counting of votes declare the candidate to whom the highest number of valid votes has been given, as having been elected.
It was pointed out that bye law No. 40 was amended as late as February 13, 1983, which was much later than the date of the impugned election.
The amended bye law did make provision for election to reserved seats.
The High Court has also noticed amendment of Rule 61 by Maharashtra Specified Co operative Societies Elections to Committee (Amendment) Rules, 1979.
He further drew our attention to the circular dated Ist February, 1979, issued by the District Deputy Registrar of Co operative Societies at Nasik in which he pointed out that the committee should co opt required number of members on the committee from amongst the persons entitled to representation on the reserved seats.
The specified societies were also requested to amend the bye laws as early as possible.
He also drew our attention to a letter dated June 4, 1979 addressed to the Nasik Merchant Co operative Society Bank Ltd, by the District Deputy Registrar, Nasik pointing out therein that if the bye law is not amended the reserved seats should be filled in by co option and that the compliance should be reported before March 31, 1979.
He again requested the Bank to amend the bye laws to bring them in conformity with the requirements of Sec.
73B. Relying on the unamended bye law, rule 61 and the aforementioned two documents, it was submitted that the Government itself did not consider election to be the only mode or method of filling in the reserved seats and persistently requested the Bank to co opt necessary number of members to fill in the reserved seats, and therefore, it is not proper to invalidate the whole process of election.
We remain unconvinced.
73B provides a legislative mandate.
Rule 61 has a status of subsidiary legislation or delegated legislation.
Bye law of a co 780 operative society can at best have the status of an Article of Association of a company governed by the and as held by this Court in Co operative Central Bank Ltd. and others vs Additional Industrial Tribunal, Andhra Pradesh and Others the bye laws of a co operative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law.
They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law.
Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the bye law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye law has to be ignored.
The statutory provision has precedence and must be complied with.
Further the opinion of the Deputy Registrar as expressed in his circular dated February 1, 1979 and his letter dated June 4, 1979 has no relevance because his lake of knowledge or misunderstanding of law as expressed in his opinion has no relevance.
The High Court relying upon the aforementioned two documents observed as under: "There is no inconsistency between Section 73B and the bye laws because even the Government has construed Section 73B in such manner that even though the bye laws are not amended and reserved seats remain unfilled by election the same can be filled up by co option.
" With respect, we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a Government Officer can afford reliable basis or even guidance in the matter of construction of a legislative measure.
It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant.
Nor can the Court abdicate in favour of such opinion.
The provision contained in Chapter XI A applies to election to the committees of specified societies categorised in Sec.
73B. Sec.
144 C requires the Collector to draw an election programme and arrange for conducting the election or under his control by the Returning Officer according to the programme.
Now the election 781 programme has to be published.
The programme therefore, must in order to comply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose favour reservation has been made, so as to give notice to persons eligible for contesting election to reserved seats.
This becomes manifestly clear from the form prescribed for filling in the nomination paper being Form No. 2 appended to the rules.
In the case of reserved seats a further declaration has to be made in the nomination form that the candidate belongs to Scheduled Castes or Scheduled Tribes or Vimukta Jati or the weaker section candidate.
And this declaration has to be signed by the candidate himself.
Now therefore, the Collector, a statutory authority charged with a duty to hold election according to the Act, must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is made.
This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination.
There is not even a whisper in the election programme whether any of the seats were reserved.
The omission is glaring and fatal.
As pointed out earlier, election has to be held to form the committee.
73 requires the Collector to hold election in accordance with the Act including Sec.
73B. The failure to hold election in accordance with the Act including Sec.
73B would vitiate the whole election programme from commencement till the end.
It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme.
One can safely conclude that the election is held in violation of Sec.
73B. Therefore, in our opinion, the High Court was in error in upholding the election, which is ex facie illegal, invalid and contrary to law.
Accordingly both these appeals succeed Civil Appeal arising from S.L.P. No. 7732/83 is allowed and the decision of the High Court is quashed and set aside and the one rendered by the Additional Commissioner is restored.
Civil Appeal No. 1810/81 is allowed and the judgment and order of the High Court are set aside.
A writ be issued quashing and setting aside the election of respondents 3 to 12 to the Board of Directors of the Parbhani District Co operative Bank Ltd. 782 The concerned statutory authority in both the cases should proceed to hold the election afresh as early as possible and should complete the process within a period of 3 months from today.
In the meantime, the status quo as on today should continue.
There will be no orders as to costs of hearing in this Court.
H.S.K. Appeals allowed.

dataset_name: IN-Abs

summary/full:
On expiry of the term of the committee known as Board of Directors of a specified society under the Maharashtra Cooperative Societies Act, 1960 the Collector notified the election programme without specifying that the two seats on the committee would be reserved seats; one for the members belonging to the Scheduled Castes or Scheduled Tribes and one for the weaker section of the members of the society.
Pursuant to that election programme the poll was held and the result was declared.
The said election was challenged by a member of the society belonging to Scheduled Tribe on the ground that the whole of the election programme is vitiated on account of its non compliance with the mandatory statutory provision enacted in sec.
73B which prescribed reservation of seats; one in favour of Scheduled Castes or Scheduled Tribes and another in favour of weaker section from the members of the society.
The Additional Commissioner who heard the election petition declared the election of the elected members as void and ineffective.
On a writ petition filed by some of the elected members the High Court held that it was not imperative that the reserved seats must be filled in only by election and the mandate of sec.
73B would be adequately complied with if reserved seats are filled in by co option and there was no error in conducting the election.
In these appeals the appellants submitted that sec.
73B proceeded to make a statutory reservation of two seats and declared its preference in favour of filling in the reserved seats by 768 election failing which alone the reserved seats were to be filled in by appointment or co option.
The respondent submitted that the filling of the reserved seats was a sine qua non; the method of filling reserved seats was directory and therefore any of the three modes could be adopted.
Allowing the appeals, ^ HELD: The election in question is ex facie illegal, invalid and contrary to law.
[781 F] Section 73 of the Act requires the Collector to hold election in accordance with the Act including sec.
73B. The failure to hold election in accordance with the Act including sec.73B would vitiate the whole election programme from commencement till the end.
It would all the more be so because the failure to hold election according to the provisions of the Act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme.
Therefore, the Collector must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is made.
This will be notice to the members eligible for contesting election to reserved seats so that they may fill in their nomination.
In the instant case there is not even a whisper in the election programme whether any of the seats were reserved.
The omission is glaring and fatal.
Therefore, it can be safely concluded that the election is held in violation of sec.
73B. [781 D F] Any provision making for reservation must receive such construction as would advance the purpose and intendment underlying the provision making reservation and not thwart it.
In the past a method of construction was used to extend a remedial statute called proceeding upon 'the equity of the statute '.
Now a days even though that method of construction has fallen into disuse, it is still in vogue in somewhat similar from in that if it is manifest that the principles of justice require something to be done which is not expressly provided for in an Act of Parliament, a court of justice will take into consideration the spirit and meaning of the Act apart from the words.
[775 G H; 776 B] Hay vs Lord Provost of Perth, [1863] 3 Macq.
H.L. (S.C.) 535 at 544; Re Bethlem Hospital [1875] L.R. 19 Eq.
457 and Craies Statute Law, Seventh Edition P. 101 103 referred to.
No canon of construction can be said to be more firmly established than this that the legislature uses appropriate language to manifest its intention.
In the instant case, the use of the expression 'shall ' in sec.
73B clearly mandates obligation to reserve.
The section itself clearly manifests legislative intention when it says that 'if no such persons are elected or appointed, ' the reserved seats may be filled in by co option.
The language and the chronology of the methodology of filling in reserved seats employed in sec.
73B provide a clue to its correct construction and there should be no doubt that opportunity must be provided for filling in seats by election.
It is the failure of the election machinery to fill in the seats by election which would enable the concerned authority to fill in seats by appointment or co option.
[776 G H; 777 A B] 769 The bye laws of a cooperative society framed in pursuance of the provision of the relevant Act cannot be held to be law or to have the force of law.
They are neither statutory in character nor they have statutory flavour so as to be raised to the status of law.
If there is any conflict between a statute and the subordinate legislation, the statute prevails over subordinate legislation and the bye law if not in conformity with the statute in order to give effect to the statutory provision the rule or bye law has to be ignored.
The statutory provision has precedence and must be complied with.
[780 B C] In the instant case sec.
73B provides a legislative mandate.
Rule 61 has a status of subsidiary legislation or delegated legislation.
[779 H] Co operative Central Bank Ltd. and Ors.
vs Additional Industrial Tribunal, Andhra Pradesh and Ors.
[1970] 1 S.C.R. 205 referred to.
A view of law or a legal provision expressed by a Government Officer cannot afford reliable basis or even guidance in the matter of construction of a legislative measure.
It is the function of the Court to construe legislative measures and in reaching the correct meaning of a statutory provision, opinion of executive branch is hardly relevant.
Nor can the Court abdicate in favour of such opinion.
In the instant case the opinion of the Deputy Registrar as expressed in his letter and circular has no relevance.
[780 F G; D]