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PETITIONER: CHANDRIKA PRASAD TRIPATHI

       Vs.

RESPONDENT: SHRI SIV PRASAD CHANPURIA & OTHERS.

DATE OF JUDGMENT: 09/04/1959

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P. WANCHOO, K.N.

CITATION:  1959 AIR  827            1959 SCR  Supl. (2) 527  CITATOR INFO :  R          1983 SC 558  (25)

ACT: Election Petition--Security deposit-Dismissal of Petition by Election  Tribunal  for  defect in  deposit-Appeal  to  High Court,  if competent-Representation of the People Act,  1951 (43 Of 1951), ss. 90(3), 98, 116-A and 117.

HEADNOTE: Respondent  I  filed an election  petition  challenging  the election  of  the appellant.  The security  required  to  be deposited  under s. 117 Of the Representation of the  People Act, 1951, was made in the following terms: " Security deposits for Election Petition of Bargi  Assembly Constituency  No.  97,  Distt.   Jabalpur,  Madhya  Pradesh. Refundable by order of the Election Commission of India, New Delhi." Before the Election Tribunal the appellant made an  applica- tion  alleging  that  there  was  non-compliance  with   the provisions  s.  117 inasmuch as (i) the deposit was  not  in favour of the Secretary to the Election Commission, and (ii) the  amount was only refundable to the depositor  and  would not  be  payable  to  appellant in  case  the  petition  was dismissed   under  s.  90(3).   The  Tribunal   upheld   the objections  and  dismissed  the  petition  under  s.  00(3). Respondent  I preferred an appeal under s. 116-A of the  Act to  the High Court.  The High Court allowed the appeal,  set aside ,the order of the Tribunal and sent back the  petition for  trial.  The appellant contended that no appeal  lay  to the  High Court and that there was non-compliance  with  the provisions of s.117. Held,  that, an appeal lay to the High Court under s.  116-A of   the Act against the dismissal of the election  petition under S.  90(3)  by the Tribunal.  The order passed  by  the Tribunal  under  s.  90(3)  was  an  order  passed  at  the, conclusion of the trial of the petition and was in substance and  in law one under s. 98.  Once an election petition  was entrusted  to the Tribunal the trial started and  any  order passed  by  the Tribunal which concluded the  trial  was  an order at the conclusion of the trial. Harish  Chandra Bajpai v. Tirloki Singh, [1957] S.C.R.  370,

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referred to. Gulsher Ahmad v. Election Tribunal, A.I.R. 1958 Madh.   Pra. 224, approved.  Held,  further that, there had been substantial  compliance with  the provisions of s. 117 of the Act.  Section 117  was not   to  be  strictly  or  technically  construed   and   a substantial compliance with its requirements was sufficient. The security in this case 528 had  been  made  in  respect of  the  election  petition  in question  and it had been credited towards the  accounts  of the Election Commission.  The use of the words "  refundable "  would not prevent the Election Commission from making  an order of payment of the amount to the successful party. Kamraj  Naday  v.  Kunju Thevar,  A.I.R.  [1958]  S.C.  687, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 343 of 1958. Appeal  by special leave from the judgment and  order  dated March  8,  1958, of the Madhya Pradesh High Court  in  First Appeal  No.  141 of 1957, arising out of  the  judgment  and order  dated  December 5, 1957, of  the  Election  Tribunal, Jabalpur, in Election Petition Case No. I of 1957. G.   C. Mathur, for the appellant. P.   Rama Reddy and R., Mahalingier, for respondent No. 1. 1959.  April 9. The Judgment of the Court was delivered by GAJENDRAGADIKAR, J.-This appeal by special leave arises  out of  an election petition filed by respondent I (No.  320  of 1957) before the Election Commission, New Delhi, in which he prayed  that the appellant’s election to the Madhya  Pradesh Legislative  Assembly  from  Bargi  constituency  should  be declared  to be void and that it should be further  declared that  he  had  himself  been  duly  elected  from  the  said constituency.  The polling for the election in question  was taken on March 9, 1957, and the result was declared on March 12,  1957.   Of  the  three candidates  who  had  stood  for election,  the appellant secured 9308 votes,  respondent  1, 8019  votes  and  the third candidate,  respondent  2,  3210 votes. The  petition  filed by respondent I was  entrusted  to  the Election  Tribunal,  Jabalpur, for trial.   On  October  12, 1957,  the-appellant filed before the Election Tribunal,  an objection  under s. 90, sub-s. (3) of the Representation  of the People Act, 1951 (hereinafter called the Act),  alleging that respondent 1 had not complied with the provisions of s. 117 of the Act in regard to 529 the  making  of the deposit of the security  for  costs  and praying  that his election petition should be  dismissed  on that account under s. 90, sub-s. (3) of the Act.  Respondent I  disputed  these allegations and urged that there  was  no justification for dismissing his petition under s. 90,  sub- s. (3) of the Act. By  its  order  passed on December  5,  1957,  the  Election Tribunal  held that the provisions of s. 117 were  mandatory and that they had not been complied with by respondent 1. ID the  result  the  application filed  by  the  appellant  was allowed, his objection was upheld and the election  petition presented by respondent I was dismissed under s. 90,  sub-s. (3) of the Act. On  December 27, 1957, respondent I preferred an  appeal  in the  High  Court of Madhya Pradesh at Jabalpur  against  the

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said  order (Appeal No. 141 of 1957).  In the High  Court  a preliminary  objection was urged on behalf of the  appellant that  the appeal preferred by respondent I  was  incompetent under s. 116A of the Act.  This objection was overruled  and the merits of the appeal were considered by the High  Court. On  the  merits the High Court held that  respondent  I  had substantially  complied with s. 117 and so the order  passed by  the Election Tribunal dismissing the  election  petition filed  by respondent I was set aside and the  said  petition was  sent  back  to the Election Tribunal  for  disposal  in accordance with law. On  February  22, 1958, the appellant applied  to  the  High Court  for a certificate of fitness but his application  was dismissed.    Thereupon  the  appellant  applied  for,   and obtained, special leave to appeal from this.  Court on April 14, 1958.  That is how this appeal has come to this Court. The first point which calls for our decision in this  appeal is  whether  the High Court was right in  holding  that  the appeal  preferred before it by respondent I  was  competent. The  appellant’s contention is that the impugned  order  was passed  under  s. 90, sub-s. (3) and no appeal  is  provided against such an order under s. 116A.  Section 116A  provides that  an  appeal  shall lie from every  order  made  by  the tribunal under s. 98 67 530 or  s.  99  to  the High Court of the  State  in  which  the tribunal  is  constituted.   We are  not  concerned  in  the present  appeal  with s. 99.  The case for respondent  I  is that  in  substance and in law the impugned  order  must  be deemed  to have been passed under s. 98.  That is  the  view which the High Court has taken and we are satisfied that the High Court is right. It  is true that in terms and in form the order  was  passed under  s. 90 sub-s. (3); and it is also true that the  right to  prefer  on appeal is a creature of the  statute  and  no appeal  can be held to be competent unless it is shown  that such  a  right flows from the relevant  statutory  provision itself,  In order to decide whether or not an  order  passed under  s.  90,  sub-s. (3) can be regarded  in  law  and  in substance  as  an  order passed under s.  98,  it  would  be relevant to consider the scope and effect of the  provisions of  the said two sections.  Section 98(a) provides  that  at the  conclusion  of the trial of an  election  petition  the tribunal  shall  make  an  order  dismissing  the   election petition.   There is no doubt that in the present  case  the Election Tribunal has dismissed the election, petition filed by respondent 1. But the appellant’s contention is that this dismissal  cannot be said to be under s. 98(a)  because  the order  dismissing  the petition has not been passed  at  the conclusion  of  the trial of the  election  petition.   This argument  is not well-founded.  Section 90, subs. (3)  under which the impugned order purports to have been passed occurs in  ch.   III  of  Pt.  VI which deals  with  the  trial  of election  petitions.   In other words., s.  90,  sub-s.  (3) confers  power  on  the tribunal  to  dismiss  the  election petition  after  the  trial of  the  election  petition  has commenced.   The scheme of ch.  III clearly  indicates  that once  an  election  petition  is  referred  to  an  Election Tribunal for trial under s. 86 the tribunal is possessed  of the  petition and all proceedings before it are  proceedings in  the trial of the said petition.  Section 85  shows  that for failure to comply with the provisions of ss. 819 82  and 117,  the  Election Commission is empowered to  dismiss  the election petition.  If the Election Commission exercises its jurisdiction and passes an order

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531 dismissing  any election petition, it may be said  that  the election  petition  never reached the stage of trial  ;  but once  the petition has passed the scrutiny of  the  Election Commission  under  s. 85 and it has been  referred.  to  the Election  Tribunal for trial, any, further action  taken  by the  parties or any order passed by the tribunal  under  the said  petition would constitute a part of the trial  of  the said   petition.   This  question  has   been   incidentally considered by this Court in Harish Chandra Bajpai v. Triloki Singh (1) while it was dealing with s. 90, sub-s. (2) of the Act; and it has been held that " the provisions of ch.   III read  as  a whole clearly show that I the trial is  used  as meaning the entire proceedings before the tribunal from  the time the petition is transferred to it under s. 86 until the pronouncement  of  the award ". Therefore, there can  be  no doubt  that the order passed under s. 90, sub-s. (3)  is  an order  passed  at the conclusion of the trial.  It  is  true that it is an order on a preliminary point of law raised  by the  appellant; but even so the decision of the  preliminary issue is undoubtedly a part of the trial of the petition and it  cannot  be  said  that  the  order  passed  on  such   a preliminary  point is not an order passed at the  conclusion of the trial when it, in fact, concludes the trial. Section  90,  sub-s. (3) provides that  the  tribunal  shall dismiss an election petition which does not comply with  the provisions of ss. 81, 82 or 117 notwithstanding that it  has not  been dismissed by the Election Commission under s.  85. It would thus be clear that an objection raised against  the competence  of the election petition on the ground that  the provisions of the aforesaid sections have not been  complied with  can be considered by the Election Commission suo  motu under s. 85 and if it is upheld the election petition can be dismissed  without any further enquiry; but if the  Election Commission  does not dismiss the petition under s. 85,  then the  same  objection  can  be  raised  before  the  Election Tribunal  by the respondent to the election petition  ;  and when  it  is  so  raised  it  assumes  the  character  of  a preliminary objection and (1)  [1957] S.C.R. 370,387. 532 is  dealt with by the Election Tribunal as  any  preliminary objection  would  be dealt with by a civil court  under  the Code  of  Civil  Procedure.  That being  so,  a  preliminary objection has been tried and the decision on the preliminary objection  being  in favour of the respondent  the  election petition  is  dismissed.  Though the order of  dismissal  in form  may be under s. 90, subs. (3), it is in substance  and in law an order of dismissal passed at the conclusion of the trial  and  must be deemed to be an order  under  s.  98(a). That  is  the view which the Madhya Pradesh High  Court  has taken  in Gulshar Ahmed v. Election Tribunal(1) and  it  was this  decision which was followed by the High Court  in  the present   proceedings.   In  our  opinion,  therefore,   the contention raised by the appellant that the appeal preferred by respondent I- before the High Court was incompetent  must be rejected. The  question  of construing s. 90 can  be  considered  from another point of view.  It provides for the procedure before the tribunal and lays down that it is open to     the tribunal to dismiss an election petition under s. 90, sub-s. (3); but this being a procedural provision is     would  not be  unreasonable  to  hold  that,  when  the  actual   order dismissing the petition is passed, it would be referable  to the  provisions  of  s. 98(a).  The  same  conclusion  would

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follow  if  we consider the provisions of ss. 103,  106  and 107.   It cannot be suggested that the order passed  by  the tribunal dismissing the election petition for  noncompliance of s. 117 is not required to be communicated to the Election Commission  under  s.  103 or transmitted  by  the  Election Commission  to  the  appropriate  authority  under  s.  106. Similarly  it  cannot be said that such an order  would  not take  effect  as soon as it is pronounced  by  the  tribunal under  s.  107.  It would thus be noticed  that  though  the provisions of these sections are obviously applicable to  an order dismissing the election petition on the ground of non- compliance  of s. 117, in terms the said sections  refer  to orders passed under s. 98 or s. 99.  Therefore, we think  it would  be  reasonable  to  hold  that,  where  the  tribunal dismisses an election petition by virtue of the provi- (1)  A.I.R. 1958 Madh.  Pra, 224. 533 sions contained in s. 90, sub-s. (3), the order of dismissal must be deemed to have been made under s. 98.  Similarly  s. 99(1)  (b)  which  empowers the tribunal to  fix  the  total amount of costs payable and to specify the person by and  to whom  that shall be paid in terms refers to cases  where  an order  is  made under s. 98.  It cannot be  suggested  that, where  an order of dismissal is passed under s.  90,  sub-s. (3),  the  tribunal  cannot, make an  appropriate  order  of costs.  This provision also indicates that-the order  passed under s. 90, sub-s. (3) is in law and in substance an  order passed under s.     98(a).   It is true that in cases  where such  ail  order is passed s. 99(1)(a) would not  come  into operation,  but that can hardly affect the position that  an order’  under  s. 90, sub-s. (3) is  nevertheless  an  order under s. 98. We  would like to add that by Act 58 of 1958 an  explanation has  been  added to s. 90, sub-s. (3)  which  clarifies  the legislative  intention  on  this  point.   This  explanation provides  that  an  order  of  the  tribunal  dismissing  an election petition under this sub-section shall be deemed  to be  an  order  made  under cl. (a)  of  s.  98.   After  the enactment of this explanation there can be no doubt that ail order passed under s.    90, sub-s. (3) would be  appealable under s. 116 A of the    Act. That  takes us to the second point raised by  the  appellant that the High Court was in error in holding that  respondent I  bad  complied with the provisions of s. 117 of  the  Act. Section 117 provides that the petitioner shall enclose  with the  petition a Government Treasury Receipt showing  that  a deposit  of  Rs.  1,000/has been made by  him  either  in  a Government  Treasury  or  in the Reserve Bank  of  India  in favour  of  the  Secretary to  the  Election  Commission  as security  for costs of the petition.  In the  present  case, respondent 1 has deposited the requisite security, but it is urged  that the security has not been deposited as  required by s. 117.  This is how the security deposit has been made 534                                   Under Amount. By whom On what account. rupees in brought.                                words.     Rs. A. P. Shiv Prasad     Security deposits for    Rs. One 1,000-0-0. Chanpuria.      Election Petition of     Thous-          Bargi Assembly Con- and and          stituency  No. 97 one          D i s t t., Jabalpur, only.          Madhya Pr ad es h.          Refundable  by  order          of  the  Election Commission

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        of India, New Delhi.                                   Total ... 1000-0-0. The argument is that the security has not been deposited  in the  name  of the Secretary to the  Election  Commission  as required  by s. 117 and it is deposited with  the  condition that  it  is  refundable  by  the  order  of  the   Election Commission  of India.  In other words, the only power  which the Election Commission of India can exercise in respect  of the  security is to refund the amount to respondent I ;  and it  would not be competent to the Commission to  direct  the amount  to  be paid to the appellant even  if  the  election petition filed by respondent I is dismissed with costs.   In our  opinion, this objection is purely, technical.   It  has recently  been held by this Court in Kamaraj Nadar V.  Kunju Thevar (1) that s.117 should not be strictly or  technically construed and that wherever it is shown that there has  been a substantial compliance with its requirements the  tribunal should not dismiss the ’election petition under s. 90,  sub- s.  (3) on technical grounds.  Indeed it is clear  that  the receipt  with which this Court was concerned in the case  of Kamaraj Nadar (1), was perhaps slightly more defective  than the receipt in the present case.  The argument based on  the use  of  the word " refundable " ignores the fact  that  the security  in terms has been made in respect of the  election petition  in  question  and it has  been  duly  credited  as towards the account of the Election Commission.   Therefore, there can be no doubt that if an (1)  A.I.R. 1958 S.C. 687. 535 occasion arises for the Election Commission to make an order about the payment of this amount to the successful party the use  of  the  word "refundable"  will  cause  no  difficulty whatever.   We  hold  that the security has  been  made  by, respondent. 1 as required by S. 117 of the Act and would  be at  the disposal of the Election Commission in  the  present proceedings. We would like to add that even s. 117 has been  subsequently amended by Act 58 of 1958 and the reference to the Secretary has been deleted. The  result is the appeal fails and must be  dismissed  with costs. Appeal dismissed.