Bapana, J.
1. This is a petition under Articles 226 and 227 of the Constitution of India,
2. The petitioner Bawat Man Singh is a returned candidate to the Rajasthan Legislative-Assembly from Jamua Ram Garh constituency in the last General Election. Shri Roop Chand Sogani and Shri Mangilal opposite party Nos. 1 and 2 filed an election petition which is No. 227 of 39ii2 and is pending inquiry before the Election Tribunal, opposite party No. 6. Rawat Man Singh, Shri Govind Narain Jahalani, Shri Kanhiya Lal and Shri Amrit Lal who were candidates at the election were made respondents in that petition.
3. The petitioner challenges the validity of the constitution of the Election Tribunal on the following grounds :
1. The Chairman was appointed after the appointment of members.
2. On the resignation of the first Chairman Shri K.C. Gupta, the Tribunal was not re-constituted, but only a new Chairman was appointed.
3. The Tribunal was 'functus officio' during the period between the resignation of Shri K.C. Gupta Chairman and the appointment of Hon'ble Mr. Justice K.K. Sharma in his place.
4. The members of the Tribunal were appointed on different dates which was not contemplated' under the law.
5. Shri P.L. Shome, an Advocate of the Calcutta High Court could not be appointed as a member of the Tribunal functioning in Rajasthan.
6. The consent of the President of India had' not been obtained for the appointment of Hon'ble Mr. Justice K.K. Sharma as Chairman of the Tribunal.
4. It was further alleged that the Tribunal had no jurisdiction to continue the inquiry as-Shri Roop Chand Sogani and Shri Mangilal who filed the election petition had absented themselves on 16-2-1953 and 5-3-1953 and therewas no option with the Election Tribunal but to dismiss the petition for default.
5. It was further contended that the Tribunal had no jurisdiction to permit Amrit Lal respondent No. 4 in the election petition to prosecute the election petition. At an ealrier stage of the proceedings, the Election Tribunal had passed an order for proceedings to be taken against him ex parte and no sufficient cause had been shown by him for his previous absence.
6. It was urged that all these objections were preferred before the Tribunal, but the Tribunal did not accept these objections and as the question related to the validity of the constitution of the Tribunal and the jurisdiction to proceed, the petitioner had no other remedy but to approach this court under Articles 226 and 227 of the Constitution.
7. The petition was opposed by the Advocate-GeneraJ who appeared for the Tribunal and by Shri Amritlal who was allowed by the Tribunal to prosecute the election petition.
8. Section 86, Sub-section 1 of the Representation of the People Act provides for the appointment of an Election Tribunal and Sub-section 3 provides ior the constitution, of that Tribunal and it lays down that the Tribunal shall consist of a Chairman and two other members. Their qualifications are mentioned in Sub-section (2). It is nowhere laid down that the appointment of the members or the Chairman should be made simultaneously or that the appointment of the Chairman should be made first. Of course the Tribunal will not start functioning unless the Chairman and two other members have all been appointed except as allowed by Section 86(5). The second proviso to Sub-section 3 enables the appointment of a Chairman before that of the other members, but does not preclude the appointment of members if for any reason, the selection of the Chairman may be delayed. The contention that the constitution of the Tribunal was invalid owing to the non-appointment of the Chairman before the appointment of members has no force.
9. Sub-section 4 of Section 86 provides for the appointment of another member in place of a member previously appointed if the latter is unable to perform his function for any reason. The member in this sub-section includes a Chairman also for in Sub-section 3, the Tribunal is declared to consist of a Chairman and two other members. The words 'two other members' indicate that the Chairman is also one of the members constituting the Tribunal. The appointment of the Hon'ble Mr. Justice K.K. Sharma in place of Shri K.C. Gupta as Chairman of the Tribunal did not require any re-constitution of the Tribunal so as to make it necessary for the Tribunal to start afresh. The second ground urged ! for the invalidity of the Tribunal also fails.
10. It has not been pointed out that any function was performed by the Tribunal during the period between the resignation of Shri K.C. Gupta and the appointment of the Hon'ble Mr. Justice K.K. Sharma as Chairman of the Tribunal and the argument against the invalidity of the Tribunal has no force.
11. As mentioned above, there is no bar to the appointment of members and Chairman by different orders of different dates and the contention that the constitution of the Tribunal was invalid as members were appointed on different dates has no force.
12. As to the invalidity of the Tribunal on the ground that Mr. P.L. Shome was not an Advocate of Rajasthan the point has been settledby two decisions of this Court, in the cases of -- 'Madan Mohan v. Bankatlal', AIR 1954 Raj 145 (A), & -- 'Sangramsingh v. Election Tribunal, Kotah', C. Writ Appln. No. 128 of 1953 (Raj) (B), in which it has been held that an advocate practising in the High Court of one State can be appointed as a member of the Election Tribunal which is to function in another State.
13. As to the last ground for the invalidity of the Tribunal, reliance is placed on the Rajasthan High Court Judges Salaries Order 1951 issued by the President of India in consultation with the Rajpramukh of Rajasthan on 27-2-1951. Clause 3 of that order lays down that there shall be paid to the Judges of the High Court for the State of Rajasthan in respect of the time spent on actual service, salary, at certain rates and 'Actual service' is denned in Clause 2 as including
'i. time spent by a Judge on duty as a Judge or in the performance of such other function as he may at the request of the President undertake to discharge,
ii. vacation, excluding any time during which the Judge is absent on leave, and
iii. joining time on transfer from a High Court to the Supreme Court or from one High Court to another.'
It was contended that the definition of 'actual service' indicated that the Judge can only spend his time on duty as a Judge or in the performance of such other function as the Judge may undertake to discharge at the request of the President. In the first place the provision for appointment of a Judge of the High Court as Chairman of a Tribunal in the Representation of the People Act carries with it the implication that the time spent by the Judge as Chairman of the Tribunal is time spent on duty as a Judge. Secondly, while it is true that in order that a Judge may be able to earn his salary, he has to spend his time on actual service as defined in the Salaries Order and the Accountant General may object if the Judge spends his time in the performance of certain duties not covered by the terms of that Order yet it would not invalidate the appointment of a Judge as a Chairman of the Tribunal which is permitted by Section 86 of the Representation of the People Act.
In the present case, however, the appointment of the Hon'ble Mr. Justice K.K. Sharma as Chairman of the Tribunal was made with the concurrence of the Government of India in the Ministry of Home Affairs and the Chief Justict of Rajasthan as is evident from the copies of communications in this behalf filed by the learned Advocate General.
14. It was argued that there was no mention of the approval of the President for the appointment of the Hon'ble Mr. Justice K.K. Sharma as Chairman of the Election Tribunal in the letter issued by the Home Ministry. The letter issued by the Secretary in the Ministry of Home Affairs could have perhaps been more explicit in this behalf, but as the President's wishes are only communicated through the Secretary to the Government in the Home Ministry there is no reason to think that in this case the President's wishes were otherwise. The last contention urged for invalidity of the constitution of the Tribunal has also therefore no force.
15. Learned counsel for the petitioner laid great stress on the second aspect of the case that the Tribunal had no jurisdiction to proceed further with the election petition in the absenceof the petitioners Shri Roop Chand Sogani and Shri Mangilal at more than one hearing and that in any case in allowing Shri Amritlal to prosecute the petition the Election Tribunal had exceeded its jurisdiction.
16. Under Section 90, Sub-section (2) of the Representation of the People Act, 1950 (43 of 1950), the Tribunal is directed to apply the provisions of Code of Civil Procedure, 1908 (Act 5 of 1908) as applicable to the trial of the suits, to the trial of the election petition and a long argument was addressed that the Tribunal had no option but to dismiss the petition for default of appearance of the petitioner to the election petition at any hearing under Order 9, Rule 8 of the Civil Procedure Code & that the provisions of Order 17, Rule 2 were only applicable if the adjournment had been made at the request of the parties.
It is not necessary to decide whether the provisions of Order 9 Rule 8 or of Order 17 Rule 2 apply in the case of default of appearance of petitionerat an adjourned hearing, for in our opinion a dismissal of an election petition for default of appearance by the petitioners to the election petition is not contemplated by the scheme of the Representation of the People Act and the Tribunal has been armed with ample powers to make a suitable arrangement for the prosecution of an election petition in case the petitioners for any reason decline to proceed with it. In the first place, Section 82 of the Act provides that the petitionershall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated. In the election petition, therefore, the parties arrayed on each side have not a common interest but all unsuccessful candidates whether as petitioners or respondents become as much interested in the success of the petition as the petitioner or petitioners themselves.
Under Section 89, the Tribunal can require the Advocate-General of the State in which the election has taken place or some person acting under his instructions to attend and to take such part as the Tribunal may direct. Under Section 92, the Tribunal has power to examine 'suo motu' any person whose evidence appears to be material and finally under Section 98, the Tribunal has to make an order-
(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected; or
(d) declaring the election to be wholly void.
The above provisions make it quite clear that the Election Tribunal has to record its decision as provided under Section 98 and cannot merely dismiss an election petition for default. In order that a decision on the merits may be made, the Tribunal is armed with powers to examine any person 'suo motu' and to direct the Advocate-General of the State to take part at the trial as the Tribunal may direct. This is further clear by reference to the provisions of Chapter IV.
A petitioner who has filed an election petition can withdraw his petition only by leave of the Election Commission before the appointment of the Election Tribunal. If any petition is desired to be withdrawn after the appointment of the Tribunal, leave of the Tribunal hat to be obtainedafter notice to the parties to the petition and to the public in general by publication of the application for withdrawal in the official gazette. Incase the application for withdrawal is granted, anotice of the withdrawal is to be published in the official gazette and any person who might himself have been a petitioner can within fourteen days of such publication apply to be substituted as petitioner in place of the party withdrawing and upon compliance of the conditions of Section 117, he is entitled to be substituted and to continue the proceedings.
Similar provisions exist in the case of abatement on the death of the petitioner. Even if the successful candidate does not wish to oppose any petition, any person who might have been a petitioner is entitled to become a respondent and oppose the petition. There is, therefore, no force in the argument of learned counsel that the Tribunal should have dismissed the petition for default of appearance of the petitioners during the course of trial.
17. As to the last point urged by learned counsel the proceedings before the Election Tribunal started on 10-10-1952. Shri Roop Chand petitioner was present on various dates till 17-12-1952, on which date also he and his lawyers were present. The other respondents except No. 1 were not present and an order for proceeding ex-parte against them was passed. The respondent No. 1 who was the successful candidate filed his written statement on 6-1-1953, and issues were framed. A preliminary objection challenging the validity of the constitution of the Tribunal was decided by the Tribunal on 21-1-1953 and the parties thereafter, filed a list of witnesses. Shri Roop Chand filed a list of 244 witnesses to be examined on his behalf and summonses were directed to be issued for the appearance of the witnesses on 16-2-1953, in respect of such of them as were desired to be summoned.
13. On the 16th February, Shri Roop Chand was not present and his lawyers Shri D.M. Bhandari and Shri B.S. Sharma stated that they had no instructions. It was then found that Shri Mangilal second petitioner had not been served with the notice of hearing and so the case was adjourned to 27th February, for notice to Shri Mangilal. On 27-2-1953, both Shri Mangilal and Shri Roop Chand were absent. Counsel for Shri Roop Chand said that he had received a certain letter from his client and he wanted time to ascertain from his client whether he wished to proceed with the case.
On the next date, which was 5-3-1953, an application scribed and signed by Shri Roop Chand was presented through an advocate Shri D.L. Bhargava to the effect that Shri Roop Chand did not desire that he should be represented by Shri D.M. Bhandari and Shri B.S. Sharma Advocates and by that document he withdrew the power of attorney executed in their favour. Under the power of attorney executed in favour of Shri D.L. Bhargava he was only given an authority to present that petition. This with drawal of authority amounted to withdrawal of the petition as Shri Roop Chand did not appear himself and did not make other arrangements for prosecuting the petition. On this date, however, Shri Amritlal who was respondent No. 4 in the petition made an application that Shri Roop Chand had colluded with respondent No. 1 and therefore did not wish to proceed with the trial: and as the respondent No. 4 was desirous of prosecuting the election petition, it was prayed that in the interest of justice he may be allowed to1 do so either as respondent or by transposition as petitioner and that the order for proceedings to be taken ex-parte against him be set aside. The Tribunal by an order of 31-3-1953, set asidethe order for proceedings to be taken ex-parte against Shri Amritlal and allowed him to take part in the proceedings and to prosecute the election petition. The Tribunal according to the provisions of the Representation of the People Act mentioned above was authorised to direct the Advocate General or any person acting under his instructions to prosecute an election petition in case no one else was prepared to prosecute it and, therefore, the Election Tribunal did not exceed their jurisdiction in allowing one of the respondents to prosecute the petition.
19. In the circumstances narrated above the conduct of Shri Roop Chand amounted to an attempt at withdrawal of the election petition end he did not seek leave of the Tribunal. The Tribunal was fully justified in allowing one of the respondents who wanted to prosecute the petition to do so. The contention that the petition should have been dismissed for default or that the Tribunal exceeded its jurisdiction in permitting respondent No. 4 to prosecute the petition has no force.
20. The petition fails and is dismissed. Thepetitioner will pay costs to the Advocate Generaland to Shri Amritlal opposite party No. 4 whichare assessed at Rs. 100/- for each of the opponents.