B.P. MAURYA Vs. ELECTION TRIBUNAL AND ORS.

JUDGEMENT

(1.) The petitioner Sri B. P. Maurya and the respondents Nos. 2 to 6 were candidates in the last general elections from the Parliamentary Constituency 77 district Aligarh. The petitioner Sri B. P. Maurya was declared elected, whereupon the respondent No. 2 Sri Shiv Kumar filed an election petition before the Election Commission. An election tribunal was appointed to try this election petition. First Sri S. P. Roy, who was the then District Judge, and thereafter the present incumbent of that office Sri Bir Singh was appointed as Presiding Officer of this tribunal. The recording of the evidence for the parties on 15-7-1963, and continued from day-to-day. On July 24, 1963, neither the petitioner Sri Shiv Kumar nor his counsel were present. The tribunal at 2.25 p.m. passed an order dismissing the petition in default without mentioning the provision under which he acted. An application purporting to be under Order IX, Rule 9, read with Sec. 151, C.P.C., was made the same day soon after the order of dismissal for default was passed. Notice of that application was issued to Sri B.R. Dhawan, the learned counsel for Sri B. P. Maurya, only and not to Sarvsri Jagan Nath, Jarrar Haider, Nahar Singh and Basant Rao, though they were arrayed as respondents in the election petition. The next day (25-7-1963) Sri B. R. Dhavan the learned counsel for Sri B. P. Maurya, made an application praying that the application made by Sri Shiv Kumar under Order IX, Rule 9 read with Sec. 151, C.P.C. be dismissed. The same day the tribunal passed an order setting aside the dismissal order dated 24-7-1963 on payment of Rs. 25/- as costs. It is against this order that the present writ petition has been filed.

(2.) We have heard Sarvsri Ambika Prasad and K. L. Grover for the petitioner Sri B.P. Maurya and Sri Varshni for the respondent No. 2 Sri Shiv Kumar. On behalf of the petitioner the following two submissions have been made:-

(3.) It is well settled that the Representation of the People Act is a self-contained Code which deals with all the matters relating to elections: See Inamati Mallappa Basappa Vs. Desai Basauaraj Ayyappa, A.I.R. 1958 S.C. 698. The submission on behalf of the petitioner is that the tribunal is not a regular and permanent court functioning intermittently but an ad hoc tribunal appointed only to decide the particular election petition and once it had put an end to the petition by dismissing it even for default it had completed the function for which it was appointed and automatically ceased to exist thereafter, with the result that it could pass no further orders or continue the proceedings. Sec. 90 of the Representation of the People Act provides the procedure for trial before the tribunal. The relevant portion of that Sec. reads as under:-