PARAS RAM Vs. AMAR NATH

JUDGEMENT

(1.) THESE are five appeals directed against an order of the Election Tribunal Jammu and Kashmir dated 17 -12 -1957, dismissing the election petitions of the petitioners. As all the five appeals involve a common point of law and fact, they will be disposed of by one order.

(2.) A preliminary objection has been raised by the respondents learned counsel that the present appeals do not lie. He has referred us to sub -s. 3 of S. 98 of the Representation of People Act in which it is laid down that "the Tribunal shall dismiss an election petition which does not fall within the provisions of Ss. 89, 90 or 125, notwithstanding that it has not been dismissed by the Election Commissioner under S. 93." He has further submitted that an order of dismissal under S. 106 of the Representation of People Act has been specifically made appealable, but an order of dismissal under S, 933 R. P. A. has nowhere been declared as appealable. Under S. 93 it is provided that "if the provisions of Ss. 89, 90 or 125 have not been complied with, the Election Commissioner shall dismiss the petition." But before doing so, the petitioner has to be given an opportunity of being heard. Reference to Ss. 93 and 983 would make it clear that both the Election Commissioner and the Election Tribunal have concurrent power to dismiss an election petition for reasons laid down in Ss. 89, 90 or 125. It is admitted on both, the sides that an order passed by the Election Commissioner under S. 93 s not appealable. But it is submitted by the appellants that an order under S. 983 is appealable. Under S. 123 of the Representation of People Act an appeal can taken to the High Court against such orders as have been made by an Election Tribunal under Ss. 106 or 107 of the Representation of People Act. Now under S. 106 it is laid down that at the conclusion of the trial of an election petition the Tribunal shall make an order dismissing an election edition or declaring the election of all or any of the returned candidates to be void.

(3.) NOW before an order under S. 106. R. P. A. can be appealed against, it has to be shown that the order was passed at the conclusion of the trial of an election petition, that is to say the whole election petition should have been heard and decided with the result mentioned above. But in the present case the election petitions have been dismissed at a very early stage, and that too on a preliminary point. It cannot be said that a decision on a preliminary point is tantamount to a decision "as the conclusion of the trial of an election petition." As such it appears that the intention of the legislate has not been to provide an appeal against an order dismissing an election petition under S. 98. The intention of the legislature can be gathered from this fact also that if such a petition is dismissed by the Election Commissioner - under S. 93, R. P. A, no appeal is provided. Under S. 983 the Tribunal has the same power as an Election Commissioner which it can exercise on the same ground as an Election Commissioner. Had the legislature the intention of making such orders appeal able, it would have provided in specific terms an appeal against an older passed by the election Tribunal under S. 983. This not having been done by the legislature, it would look indeed strange that an order of the Election Commissioner should be final and that the same order if passed by the Election Tribunal should be made appealable. Under these circumstances, we find that the preliminary objection should prevail. These appeals are, therefore, dismissed. Let a copy of this order be placed on all the files.