Ram Ratan Gupta v. N. Dandekar — 1964 DIGILAW 297 (ALL)

JUDGMENT S.N. Dwivedi, J. - The applicant was elected to Lok Sabha from 34 Gonda Parliamentary Constituency in the last general election. First respondent filed an election petition challenging his election. Election Tribunal has now set aside his election and has also declared the first respondent as duly elected. The order is evidently made under Section 98(c) of the Representation of People Act, 1951. 2. The order of the Election Tribunal is challenged by him in appeal. He has also applied for stay of operation of the Tribunal's order. Can we do so? is the question. 3. In misc. Application 3824 of 1964 in First Appeal No. 213 of 1964 a Division Bench (of which Takru, J. was a member) has already answered the question in the negative. The Bench has held that the Court has got no power to stay operation of an order under Section 98(c). And after hearing learned Advocate General for the applicant we are not satisfied that we can give a different reply. Indeed we fully agree with the decision of the Division Bench. 4. The Tribunal granted three reliefs to the respondent: 1. the election of the applicant was declared void and was set aside 2 the respondent was declared to have been duly elected to Lok Sabha; and 3. the respondent was awarded Rs. 3802.79 as costs from the applicant. The Tribunal also passed another order dismissing the applicant's recrimination under Section 97. 5. It may be observed that the principal reliefs are purely declaratory. The other two orders are ancillary to and consequential upon the principal reliefs. 6. A look in retrospect at the relevant provisions of the Representation of People Act, 1951 (hereinafter called the Act) is essential. 7. Section 84 provides that an election petitioner may claim a declaration that the election of the returned candidate is void and a further declaration that he himself or any other candidate has been duly elected. Tribunal is not empowered to suspend the declaration of the Returning Officer that a particular candidate is elected. Section 97 provides for a recrimination. Where a petitioner has claimed the second declaration in his petition, the returned candidate may file a recrimination and prove that the election of such candidate would have been void if he had been returned. If the recrimination succeeds, the second declaration would not be granted. Section 97 provides for a recrimination. Where a petitioner has claimed the second declaration in his petition, the returned candidate may file a recrimination and prove that the election of such candidate would have been void if he had been returned. If the recrimination succeeds, the second declaration would not be granted. Section 98 provides for relief which a Tribunal may grant. The Tribunal (1) may dismiss the petition or (2) may declare the election of the returned candidate to be void or (3) may declare the election of the returned candidate to be void and also declare the petitioner or any other candidate to have been duly elected. Under Section 99 the Tribunal may pass two further orders. It may name the person or persons who have been proved to have been guilty of any corrupt practise in the election. It may also award costs to the wining party. 8. Section 107, before its amendment in 1956, provided that every order of the Tribunal under Sections 98 and 99 shall take effect as soon as it is published in the appropriate Gazette. After 1956 amendment every such order becomes effective as soon as it is pronounced by the Tribunal. Section 116-A was introduced in the Act in 1956. It provides for an appeal to this Court from every order of the Tribunal under Sections 98 and 99. 9. Sub-Sections (2) and (4) of Section 116-A are very important. They materially read: (2) "The High Court shall, subject to the provisions of this Act, have the same powers, jurisdiction and authority, and follow the same procedure with respect to an appeal.....as if the appeal were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. ............. (4) Where an appeal has been preferred against an order made under clause (b) of Section 98 (of Section 99) the High Court may, on sufficient cause being shown, stay operation of the order appealed from and in such a case the order shall be deemed never to have taken effect under ......Section 107....." 10. The words within brackets in sub-Section (4) were inserted in 1958. 11. Section 122 provides for the execution of the order of the Tribunal and the Court for costs in the appropriate principal civil court of original jurisdiction in certain circumstances. 12. The words within brackets in sub-Section (4) were inserted in 1958. 11. Section 122 provides for the execution of the order of the Tribunal and the Court for costs in the appropriate principal civil court of original jurisdiction in certain circumstances. 12. Section 116-A(4) does not enable the Court to stay operation of an order under Section 98(c). Learned Advocate-General has advanced the arguments, and they are to be examined in the light of the foregoing provisions. 13. He has developed his first argument in this way; the Tribunal has in fact Passed three orders two under Section 98 and one under Section 99. The order for costs is under Section 99. The order declaring the applicant's election as void falls under clause (b) of Section 98; the order declaring the respondent as having been duly elected under clause (c) of Section 98. The Court can stay operation of the order declaring the applicant's election as void by virtue of the power under sub-Section (4) of Section 116-A. 14. The argument appears to be attractive but is fallacious. The order of the Tribunal other than the order for costs is in legal contemplation one under clause (c) of Section 98. It cannot be split up in the manner suggested by learned Advocate-General. Steam is distinct from water; so is an order under clause (c) different from an order under clause (b). 15. The order under clause (c) is qualitatively a new kind of order. And sub-Section (4) of Section 116-A does not govern an order under clause (c). 16. The next argument has been put forward in the following manner; sub-Section (4) of Section 116-A is not exhaustive of the Court's power to stay operation of an order of the Tribunal. Sub-Section (2) of Section 116-A preserves to the Court its power of staying operation of the order under rule 5 of order XLI and Section 151 of the Code of Civil Procedure. 17. The argument cannot succeed for two reasons. Firstly, the order of the Tribunal under clause (c) of Section 98 is purely declaratory. The order became effective as soon as it was pronounced. It does not require execution. Neither rule 5 of order XLI nor Section 151 would enable the Court to suspend a declaratory order. 17. The argument cannot succeed for two reasons. Firstly, the order of the Tribunal under clause (c) of Section 98 is purely declaratory. The order became effective as soon as it was pronounced. It does not require execution. Neither rule 5 of order XLI nor Section 151 would enable the Court to suspend a declaratory order. Learned Advocate-General has submitted that even in the case of a declaratory order the Court may stay operation of the consequences flowing from it. The only consequences flowing from the impugned order would be the taking of the prescribed oath by the respondent before the President and thereafter acting as a member of a Lok Sabha. It would look rather presumptuous on the Court's part to enjoin the respondent from exercising and performing his constitutional privileges and obligations as a member of Parliament. And that too under Section 151. Furthermore, the Court should not do indirectly what it is not permitted to do directly. 18. It has also been suggested that if the argument of the order taking immediate effect from the time of its pronouncement by the Tribunal is pushed to its logical extreme, the Court cannot stay operation of the order for costs under Section 99. That order also operates as soon as it is pronounced. But Sections 121(1) and 122 themselves make it clear that the order for costs is not self-executing. It requires to be executed. It could accordingly be stayed under rule 5 of order XLI before 1958 and after 1958 it may be stayed under Section 116-A(4). 19. Secondly, sub-Section (4) of Section 116-A is exhaustive of the Court's power to stay operation of the orders of the Tribunal. The addition of the words `or Section 99' in the sub-section in 1958 strongly supports this inference. Before 1958 an order for costs under Section 99 could perhaps be stayed under rule 5 of Order XLI or Section 151. But now the Court has to depend on sub-Section (4) of Section 116-A for staying operation of the order for costs. Parliament has in tended to confine the Court's power to sub-Section (4) and to exclude the application of rule 5 of Order XLI and Section 151. 20. But now the Court has to depend on sub-Section (4) of Section 116-A for staying operation of the order for costs. Parliament has in tended to confine the Court's power to sub-Section (4) and to exclude the application of rule 5 of Order XLI and Section 151. 20. It is said that sub-Section (4) grants a special power of stay to the Court while its general power to stay is preserved by Sub-Section (2) of Section 116-A. If in some case the Court is inclined to suspend the order of the Tribunal from its very birth, it may make an order of stay under sub-Section (4); if, however, for some reason it is inclined to suspend the Tribunal's order from the time of its own order of stay,it may make an order to stay, it may make an order of stay under rule 5 of order XLI or Section 151. 21. The argument overlooks the expression `subject to the provisions of this Act' in sub-Section (2). Any general Power conferred on the court by sub-sec(2) is made subject to the provisions of sub-Section (4). Consequently as regards stay the latter provision overrides the earlier provisions. The Court has accordingly only one power of stay under sub-Section (4) and on other power. 22. The practical reason for enacting sub-Section (4) also refutes the argument. As already dismissed the Court could not stay operation of a declaratory order under rule 5 of Order XLI and Section 151. Parliament therefore enacted Section 116-A(4) in 1956 to enable the Court to suspend operation of a declaratory order under Section 98(b). For some reason or the other Parliament with-held from the Court the power to stay operation of an order under Section 98(c). It is not necessary to probe into those reasons. Parliament might well have chosen to observe the rule that mandamus does not issue to restore a person to an office already filed up or might have refrained from abridging privileges of a member of legislature. It is not in favour of the interim interference with a declaration that a candidate has been duly elected, be the declaration by the Returning Officer or by the Tribunal. 23. In the end it is suggested that our interpretation of sub-Section (4) would create great hardship in a case where the order under Section 98(c) is manifestly erroneous. It is not in favour of the interim interference with a declaration that a candidate has been duly elected, be the declaration by the Returning Officer or by the Tribunal. 23. In the end it is suggested that our interpretation of sub-Section (4) would create great hardship in a case where the order under Section 98(c) is manifestly erroneous. But consideration of hardship are germane to the construction of an equivocal enactment. We see no equivocation in sub-Section (4). 24. The case Brajo Gopal Das v. Kalipada A.I.R. 1960 Cal. 92 cited by the applicant is distinguishable from the present case. There the Tribunal had granted a declaration under Section 98(b), and the High Court affirmed the order in appeal. For three weeks the Court suspended the operation of its own order. 25. In the result the application is rejected with costs.