BARU RAM Vs. PIASANNI

JUDGEMENT

(1.) This appeal by special leave has been filed against the decision of the Punjab High Court confirming the order passed by the Election Tribunal by which the appellant's election has been declared to be void. The appellant Shri Baru Ram was elected to the Punjab Legislative Assembly from the Rajaund constituency in the Karnal District, Initially seventeen candidates had filed their nomination papers in this constituency. Out of these candidates, thirteen withdrew and the nomination paper filed by Jai Bhagawan was rejected by the returning officer. That left three candidates in the field. They were the appellant Baru Ram, Mrs. Prasanni and Harkesh, respondents 1 and 2 respectively. The polling took place on March 14, 1957, and the result was declared the next day. Since the appellant had secured the largest number of votes he was declared duly elected. Soon thereafter Mrs. Prasanni, respondent 1, filed an election petition in which she alleged that the appellant had committed several corrupt practices and claimed a declaration that his election was void. The appellant denied all the allegations made by respondent 1. The election tribunal first framed six preliminary issues and after they were decided, it raised twenty-nine issues on the merits. The tribunal was not satisfied with the evidence adduced by respondent 1 to prove her allegations in respect of the corrupt practices committed by the appellant and so it recorded findings against respondent 1 on all the issues in regard to the said corrupt practices. Respondent 1 had also challenged the validity of the appellant's election on the ground that the returning officer had improperly rejected the nomination paper of Jai Bhagawan. This point was upheld by the election tribunal with the result that the appellant's election was declared to be void.

(2.) The appellant then preferred an appeal to the Punjab High Court. He urged before the High Court that the election tribunal was in error in coming to the conclusion that the nomination paper of Jai Bhagawan had been improperly rejected. This contention was accepted by the High Court and the finding of the tribunal on the point was reversed. Respondent 1 sought to support the order of the election tribunal on the ground that the tribunal was not justified in holding that the appellant was not guilty of a corrupt practice under S. 123(7) (c). This argument was also accepted by the High Court and it was held that the appellant was in fact guilty of the said alleged corrupt practice. In the result, though the appellant succeeded in effectively challenging the only finding recorded by the tribunal against him, his appeal was not allowed because another finding which was made by the tribunal in favour of the appellant was also reversed by the High Court. That is why the order passed by the tribunal declaring the appellant's election to be void was confirmed though on a different ground. It is this order which is challenged before us by Mr. Aggarwala on behalf of the appellant and both the points decided by the High Court are raised before us by the parties.

(3.) At the hearing of the appeal Mr. Doabia raised a preliminary objection. He contends that the present appeal has been preferred beyond time and should be rejected on that ground alone. The judgment under appeal was delivered on May 13, 1958, and the petition for leave to appeal under Art. 136 of the Constitution has been filed in this Court on September 2, 1958. It is common ground that the appellant had applied for leave to the Punjab High Court on June 9, 1958, and his application was dismissed on August 22, 1958. If the time occupied by the appellant's application for leave is taken into account, his appeal would be in time; on the other hand, if the said period is not taken into account, his application would be beyond time. Mr. Doabia argues that the proceedings taken on an election petition are not civil proceedings and so an application for leave under Art. 133 of the Constitution was incompetent; the time taken in the disposal of the said application cannot therefore be taken into account in computing the period of limitation. On the other hand, Mr. Aggarwal urges that S. l16-A(2) of the Representation of the People Act (43 of 1951) (hereinafter called the Act) specifically provides that the High Court, in hearing an appeal presented to it shall have the same powers, jurisdiction and authority and follow the same procedure with respect to the said appeal as if it were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. The result of this provision is to assimilate the election proceedings coming before the High Court in appeal to civil proceedings as contemplated by Art. 133 of the Constitution and so, according to him, it was not only open to the appellant but it was obligatory on him to make an application for leave to the Punjab High Court under the said article. That is why the time occupied by the said proceedings in the Punjab High Court must be excluded in deciding the question of limitation. We do not propose to deal with the merits of these contentions. It is not seriously disputed by Mr. Doabia that parties aggrieved by orders passed by High Courts in appeals under S. l16-A of the Act generally apply for leave under Art. 133 and in fact such applications are entertained and considered on the merits by them. It is true that Mr. Doabia's argument is that this practice is erroneous and that Art. 133 has no application to the appellate decision of the High Court under S. l16A of the Act. Assuming that Mr. Doabia is right it is clear that the appellant has merely followed the general practice in this matter when he applied for leave to the Punjab High Court; his application was entertained, considered on the merits and rejected by the High Court. Under these circumstances we think that even if we were to hold that Art. 133 has no application, we would unhesitatingly have excused the delay made in the presentation of the appeal; and so we do not think we can throw out the appeal in limine on the ground of limitation. If necessary we would excuse the delay alleged to have been made in presenting this appeal.