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PETITIONER: JAGAN NATH

       Vs.

RESPONDENT: JASWANT SINGH AND OTHERS.

DATE OF JUDGMENT: 20/01/1954

BENCH: MAHAJAN, MEHAR CHAND (CJ) BENCH: MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN BOSE, VIVIAN HASAN, GHULAM

CITATION:  1954 AIR  210            1954 SCR  892  CITATOR INFO :  RF         1954 SC 411  (4)  R          1955 SC 610  (5)  R          1957 SC 444  (20)  R          1958 SC 687  (20)  R          1958 SC 698  (10)  R          1959 SC  93  (15)  R          1960 SC 444  (48)  R          1963 SC1417  (21)  E          1964 SC1545  (7)  R          1965 SC 628  (3)  RF         1969 SC1201  (33)  R          1976 SC 744  (26)  R          1982 SC 983  (7)  R          1983 SC 558  (12)  F          1983 SC1311  (7,16)  R          1984 SC 135  (8)  R          1985 SC  89  (25)  RF         1985 SC 150  (26)  R          1986 SC 103  (4)  F          1987 SC1577  (14)

ACT:  Representation  of  the People Act (XLIII of 1951),  s.  82-  Election  petition-Non-compliance with the provisions of  s.  82 Proper party omitted from the list of  respondents-Defect  whether fatal.

HEADNOTE: Held,  (i) that non-compliance with the provisions of s.  82 of  the  Representation of the People Act,  1951  (XLIII  of 1951),  and the omission of a proper party from the list  of respondents  is  not fatal and the tribunal is  entitled  to deal  with  the matter in accordance with the rules  of  the Code  of  Civil  Procedure which have  been  made  expressly applicable; (ii) that  it  is one of the rules of  construction  that  a provision  similar  to  the one in s. 82  is  not  mandatory unless noncompliance with it is made penal. Order XXXIV, r. 1, of the Code of Civil Procedure,  referred

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to. General principles governing the decision of election  peti- tions discussed.

JUDGMENT: CIVIL APPELLATe, JURISDICTION: Civil Appeal No.100 of 1953. Appeal  by special leave from the Judgment and Order,  dated the  27th  November,  1952, the High  Court  of  Judicature, Punjab,  Circuit Bench at Delhi, in Civil Writ No.  65-D  of 1952 arising out of the 893 Judgment  and Order, dated the 11th November, 1952,  of  the Election  Tribunal at Delhi in Election Petition No.  10  of 1952. N.C. Chatterjee (A.  N. Sinha, with him) for the appellant. S.P. Sinha (R.  Patnaik, with him) for the respondent. 1954.  January 20., The Judgment of the Court was  delivered by MAHAJAN C. J.-This is an appeal by special leave against the decision  of  the Delhi Election Tribunal,  dated  the  11th November, 1952, in Election Petition No. 10 of 1952. The  appellant Jagan Nath was elected a member of the  Delhi State   Legislative  Assembly  from  Constituency   No.   25 (Roshanara)  of  the  Delhi  State.   The  polling  in  this constituency  took place on the 14th January, 1952.  On  the 26th April, 1952, which was the last date under the law  for the  presentation  of an election  petition,  Jaswant  Singh (respondent  No.  1) presented such a  petition  before  the Secretary   of   the  Election  Commission  at   New   Delhi challenging the election of the appellant and contesting the order  of  the Returning Officer  rejecting  his  nomination paper.  In the petition he impleaded as respondents,  Brahma Sarup, Ram Prashad Poddar and the appellant, Jagan Nath, but he  omitted  to implead, as required by section  82  of  the Representation of the People Act, 1951, Baijnath, one of the candidates,  whose nomination had been accepted but who  had withdrawn his candidature subsequently. On the 14th July, 1952, the Election Commissioner  appointed an  Election  Tribunal comprising respondents 5 to  7.  This appointment  was  published in the Gazette of India  on  the 26th  July,  1952,  and  the  election  petition  after  due publication  was  referred  to the tribunal.   On  the  26th August, 1952, which was the first date of hearing before the tribunal, the appellant raised a preliminary objection  that the omission to implead Baijnath, a duly nominated candidate as a respondent in the petition.- was fatal to its 894 maintainability.  The petitioner contended that Baijnath was neither a necessary nor a proper party and that in any event the non-joinder of a party. was not fatal to the petition in view  of the provisions of Order 1, rule 9, Civil  Procedure Code.   In  the alternative, it was claimed that if  it  was considered  that  he  was  a  necessary  or  proper   party, permission may be given to the petitioner to implead him.  The tribunal decided the preliminary point in favour of the petitioner  and held that the non-joinder of Baijnath  as  a respondent  was not fatal to the petition.  On the  finding, however, that Baijnath was a proper party to be impleaded in the  case,  the  tribunal  directed  that  he  added  as   a respondent  in  the petition and notice of the  petition  be served on him.  In the view of the tribunal Baijnath was not a  necessary  party  in the sense that  in  his  absence  no effective decision could be given in the case and that being

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a proper party, there was no obstacle to his being joined as a  respondent  even  after  the  expiry  of  the  period  of limitation prescribed for making the petition. The appellant being dissatisfied with this decision, made an application to the Punjab High Court under articles 226  and 227.of the Constitution of India for the issue of a writ  of certiorari quashing the order of the tribunal on the  ground that  it was without jurisdiction and for an order that  the election  petition  be  dismissed  as  there  was  no  valid petition  before  the  Election Tribunal  for  trial.   This petition  was  summarily rejected by the High Court  on  the 27th November, 1952.  On a petition presented to this  court under  article  136 of the Constitution, special  leave  was granted by this court. In this appeal it was contended before us that the  Election Tribunal  was not a court of general jurisdiction,  that  it was  established  by the Representation of the  People  Act, 1951, for the special purpose of trying election  petitions, that  its  jurisdiction was derived from  the  statute  upon certain  specified terms and conditions precedent  contained in  the  statute  itself  and that it  had  no  general  and inherent powers of an 895 existing  court  and  that  being  so,  if  the  terms   and conditions  precedent  prescribed by the  statute  were  not complied with, it had no jurisdiction to act.  According  to the  appellant, the scheme of the Act was that  no  election could  be called in question except by an election  petition presented  in accordance with the provisions of Part  VI  of the  Act (section 80), and it was suggested that unless  all the  requirements  of  sections  81, 82,  83  and  117  were complied with, an election could not be questioned and  that no  subsequent addition or amendment of the  petition  after the  expiry  of  the 14 days  prescribed  for  presenting  a petition was permissible.  It was further contended that the provisions  of  section 82 were explicit and  mandatory  and admitted  of  no exceptions and the petition  not  being  in accordance  with  the provisions of the law,  there  was  no valid  petition  which the tribunal could  proceed  to  try. Lastly, it was contended that the provisions of the Code  of Civil  Procedure were applicable to the trial  of  petitions but  could  not be of assistance in  determining  whether  a petition had been validly presented. The  general  rule  is  well  settled  that  the   statutory requirements  of election law must be strictly observed  and that  an election contest is not an action at law or a  suit in  equity but is a purely statutory proceeding  unknown  to the  common law and that the court possesses no  common  law power.  It is also well settled that it is a sound principle of  natural justice that the success of a candidate who  has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.  None of these  propositions however  have  any  application if the  special  law  itself confers  authority on a tribunal to proceed with a  petition in  accordance with certain procedure and when it  does  not state  the  consequences  of  non-compliance  with   certain procedural requirements laid down by it.  It is always to be borne  in  mind  that though the election  of  a  successful candidate  is not to be lightly interfered with, one of  the essentials  of that law is also to safeguard the  purity  of the election process and also 896 to  see that people do not get elected by flagrant  breaches of  that  law or by corrupt practices.  In cases  where  the

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election law does not prescribe the consequence, or does not lay down penalty for non-compliance with certain  procedural requirements  of that law, the jurisdiction of the  tribunal entrusted with the trial of the case is not affected. It  is  in  these circumstances necessary  to  set  out  the different  provisions  of  the Act relevant  to  the  matter canvassed before us. Part   VI  of  the  Act  deals  with   "Disputes   regarding Elections."  Chapter  I  of  this  Part  is  the  definition chapter.   Chapter 11 consists of six sections.  Section  80 provides  that  no election on shall be called  in  question except by an election petition presented in accordance  with the  provisions of this Part.  Section 81 provides  that  an election  petition calling in question any election  may  be presented  on one or more of the grounds specified  in  Sub- sections (1) and (2) of sections 100 and 101 to the Election Commission by any candidate at such election or any- elector in  such form and within such time but not earlier than  the date  of  publication of the name or names of  the  returned candidate  or candidates at such election under section  67, as  may  be prescribed; that an election petition  shall  be deemed to have been presented to the Election Commission_ "(a)  when  it  is  delivered  to  the  Secretary  to  the Commission  or to such other officer as may be appointed  by the Election Commission in this behalf- (i)  by the person making the petition, or (ii) by a person authorized in writing in this behalf by the person making the petition ; or (b)  when it is sent by registered post and is delivered  to the   Secretary  to  the  Commission  or  the   officer   so appointed." Section 82 provides as follows: "A petitioner shall join as respondents to his petition  all the candidates who were duly nominated at the election other than himself if he was so nominated." 897 Section 83 states that an election petition shall contain  a concise  statement  of  the  material  facts  on  which  the petitioner relies and shall be signed by the petitioner  and verified  in  the  manner laid down in  the  Code  of  Civil Procedure  for  the verification of pleadings.   It  further provides  that the petition shall be accompanied by  a  list signed  and  verified  in like  manner  setting  forth  full particulars  of  any corrupt or illegal practice  which  the petitioner  alleges,  including  as  full  a  statement   as possible  of  the  names  of the  parties  alleged  to  have committed such corrupt or illegal practice and the date  and place of the commission of each such practice.  Provision is also  made in the section empowering the tribunal to  obtain further  particulars by allowing an amendment.   Section  84 concerns  the  relief  which a  petitioner  may  claim,  and section  85 provides that if the provisions of sections  81, 83  or  117 are not complied with, the  Election  Commission shall  dismiss the petition.  Power is however given to  the Commission  to  condone  delay in making  the  petition  for sufficient cause. Chapter  III  of Part VI deals with the  trial  of  election petitions.  It consists of 21 sections.  Section 86 provides that if the petition is not dismissed under section 85,  the Election  Commission shall appoint an election tribunal  for the  trial  of the petition.  Provision, is  then  made  for constituting  the’  tribunal and the place where  the  trial should  take place.  Section 90 prescribes the procedure  to be followed by the tribunal.  Sub-section (2) of section  90 is in these terms :-

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"Subject to the provisions of this Act and of any rules made thereunder,  every election petition shall be tried  by  the tribunal,  as  nearly  as may be,  in  accordance  with  the procedure  applicable  under the Code  of  Civil  Procedure, 1908, to the trial of suits." Sub-section  (4)  provides  that  notwithstanding   anything contained  in  section  85,  the  tribunal  may  dismiss  an election petition which does not comply with the  provisions of sections 81, 83 or 117. It is significant that both the Election Commission and  the tribunal have been given powers in express 116 898 terms to dismiss an election petition which does not  comply with the requirements of sections 81, 83 or 117, but no such powers are given to dismiss a petition in limine which  does not  comply  with  the provisions of  section  82.   Such  a petition  can  only be dismissed at the  conclusion  of  the trial and on grounds sufficient to dismiss it (section  98). Specific   provisions   have  been  made  to   ensure   that allegations  of  corrupt practice etc. are  not  lightly  or frivolously  made  by providing that the petition  must  be. properly  verified  and the  allegations  contained  therein stated  with a certain amount of definiteness  and  accuracy and  it is an express provision of Part VI itself  that  the procedure  of the tribunal is to be governed by the Code  of Civil Procedure and where a petition complies with  sections 81, 83 or 117, the Commission is bound to refer the petition to  an election tribunal and the tribunal, unless it  is  of the  opinion  that the petition is not  in  accordance  with sections  81,  83 or 117, is bound to try it and  decide  it according to the provisions of law. Provision  has  been made in section 90 (1)  for  any  other candidate subject to the provisions of section 119, to  have himself impleaded as a party in the case within a prescribed period.  This provision indicates that the array of  parties as  provided by section 82 is not final and  conclusive  and that defects can be cured.  Provisions of sections 110,  115 and  116 of Chapter IV of this Part also support this  view. Section,110  provides the procedure for the withdrawal of  a petition.   It says that any person who might  himself  have been  a party may within 14 days of the publication  of  the notice  of  withdrawal in the official gazette apply  to  be substituted  as  a  petitioner in the  place  of  the  party withdrawing it.  Section 115 provides that such a person can be substituted as a petitioner on the death of the  original petitioner  while  section  116  provides  that  if  a  sole respondent  dies  or gives notice that he does not  wish  to oppose the petition or any of the respondents dies or  gives such  notice  and  there  is  no  other  respondent  who  is appearing in the petition, the tribunal shall 899 cause  notice of such event to be published in the  official gazette  and  thereupon  any person who might  have  been  a petitioner  may within 14 days of such publication apply  to be  substituted in the place of such respondent  and  oppose the   petition  and  shall  be  entitled  to  continue   the proceedings  on  such terms as the tribunal may  think  fit. These provisions suggest that if any proper party is omitted from  the lists of respondents, such a defect is  not  fatal and  the  tribunal  is entitled to deal with  it  under  the provisions of the Code of Civil Procedure, Order I, rules 9, 10 and 13. Baijnath  was a candidate who had withdrawn his  candidature and  had  not  contested the election.   By  reason  of  his

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absence  or presence having regard to the grounds  on  which the petition was based no prejudice was likely to result  to the  respondent No. I because the main ground on  which  the petition  was  based was that  the  petitioner’s  nomination paper  had  been wrongly rejected.  Baijnath did  not  claim that he had acquired any substantive rights by reason of the failure  of the petitioner to implied him within the  period prescribed and there is no question of depriving him of  any such   rights.   In  our  opinion,  the   tribunal   rightly disallowed the preliminary objection. Mr. Chatterjee, the learned counsel for the appellant,  drew our  attention to certain decisions given by  the  different election  tribunals constituted under the Representation  of the  People Act, 1951, in support of his contention.   On  a careful  perusal  of the different decisions  given  by  the various  election  tribunals  it appears that  there  is  no uniformity   of   opinion  between  them  on   this   point. Conflicting opinions have been expressed by these tribunals. It is unnecessary to discuss all these decisions in  detail. It  will  be  sufficient  to say.  that  we  are  in  entire agreement  with  those decisions which have held  that  non- compliance with the provisions of section 82 is not fatal to the petition.  The matter has to be determined in accordance with the rules of the Code of Civil Procedure which have  Is been made expressly applicable. Mr. Chatterjee laid emphasis on the decision of the Election Tribunal, Lucknow, presided over by 900 Shri  N.  S.,  Lokur in Election Petition No.  287  of  1952 published in the Gazette of India dated 20th December, 1951, Part 11, Section 3, page 1034.  In that case two persons who had been duly nominated as candidates but who had  withdrawn their  candidature  were  not impleaded  as  respondents  as required  by section 82 of the Representation of the  People Act, 1951 It was held that the non-joinder was fatal ,to the petition.   It  was  said that the wording  of  the  Act  is peremptory  and mandatory and it makes it incumbent  on  the petitioner  to  join  as  respondents  all  candidates  duly nominated  and it gives him no option and the failure to  do so involves rejection of the petition.  Reliance was  placed on  certain decisions of Election Tribunals given under  the election  rules in force under the Government of India  Act, 1935, and the decision of another Election Tribunal, Quilon, in  Sri Ramchandra Nair v. Sri Ramehandra Das reproduced  At page 2396e, Gazette of India Extraordinary, Part I,  Section 1,  dated  the  llth of November, 1952.  It  was  said  that unless  all  the  requirements of rules 81, 82  and  83  are complied with the election cannot be questioned.  As regards the  omission of section 82 from the provisions  of  section 85, it was observed that the Election Commission can at once discover  whether the provisions of sections 81, 83 and  117 are  complied  with but the same cannot be  said  about  the requirements of section 82 and that the Election, Commission will  have to hold an inquiry as to who were the  candidates duly  nominated before determining whether all of  them  had been  joined  or not, that this burden of  inquiry  was  not thrown   on  the  Commission  but  it  was  left   for   the determination of the tribunal, and hence it was that section 82 was not included in section 85. Both  the  reasons  given by the  tribunal  cannot,  in  our opinion, be sustained.  The provisions of section 82 are  in terms  similar to the provisions of Order XXXIV, rule  I  of the  Code of Civil Procedure.  Therein it is  provided  that all  persons  having  an interest  either  in  the  mortgage security  or in the right of redemption shall be  joined  as

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parties to any suit relating to the 901 mortgage.   There is ample authority for the view that  this is merely a directory provision and non-joinder of any party is  not a fatal defect and a decree can be passed so far  as the  parties  actually on record are  concerned  unless  the party omitted is a necessary party in the sense that in  his absence  no  relief could be given at all  even  as  regards parties  actually on record.  There is no valid  reason  for treating  the  word  "shall"  in  section  82  in  a  manner different  from the same word used in Order XXXIV,  rule  1, Civil   Procedure  Code.   It  is  one  of  the   rules   of construction  that  a provision like this is  not  mandatory unless non-compliance with it is made penal.  As regards the dictum  of the Lucknow Tribunal that no inquiry is  required to be made in the case of non-compliance with the provisions of  sections  81, 83 and 117 but that an  inquiry  would  be necessary   to  determine  whether  certain   parties   were nominated candidates or not, in our opinion it cannot  stand scrutiny.  Whether a petition has been presented by a person who  has purported to sign it or by someone else or  whether an  agent who has signed the petition is a  duly  authorized agent or not are its much matters of inquiry as the question of determination of the names of nominated candidates.  This fact can be easily determined by reference to the  Returning Officer.   That this reasoning of the tribunal is not  sound is fully demonstrated by a reference to the next case  cited by  the  learned counsel and decided by  the  same  tribunal presided  over  by  Shri  N. S. Lokur.   In  that  case  the question  arose whether the petition was duly  verified  and whether  it  was  accompanied by  all  the  necessary  lists required by section 83 (2).  An elaborate inquiry had to  be conducted  to’ determine the point whether the petition  was typed on blank paper signed by the petitioner or whether  it was  signed by him or some person authorized on  his  behalf after  it  had been typed.  It is thus clear that it  is  no valid  explanation to say that section 82 was  omitted  from the  provisions of section 85 simply on the ground that  the Election  Commission  was absolved from the duty  of  making elaborate inquiries at the stage when it had to say  whether the provisions of sections 81, 83 and 902 117  had  been complied with.  From  the  circumstance  that section  82  does  not find a place  in  the  provisions  of section  85  the  conclusion  follows  that  the  directions contained in section 82 were not considered to be of such  a character  as  to  involve the dismissal of  a  petition  in limine  and that the matter was such as could be dealt  with by  the tribunal under the provisions of the Code  of  Civil Procedure  specifically  made  applicable to  the  trial  of election petitions. The  Bombay Tribunal, presided over by Shri B. D.  Nandkarni has  taken  a contrary view in Election Petition No.  72  of 1952,  page 286, Gazette of India Extraordinary,  dated  the 5th February, 1953.  The issue in this case was whether Shri T.  C.  Patil,  was a necessary party and  -whether  by  the omission  to  implead him the whole petition was  bad.   The tribunal held that the defect was not fatal. In  another case, Petition No. 113 of 1952, decided on  28th July,  1953,  the majority of the Bombay  Tribunal,  decided otherwise.  The view of the majority was that the  mandatory nature  of  the  provisions of section  82  itself  contains within  it the -consequence of dismissal for  non-compliance with  its  provisions  and  a  separate  provision  for  the dismissal  of  the  petition  for  non-compliance  with  its

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provisions  was  not  necessary  and  it  would  have   been superfluous.   These observations run counter to the  scheme of  the  Act  itself  as  envisaged  by  section  85.    The provisions of sections 81, 83 and 117 are also mandatory and still  in section 85 it is provided in specific  terms  that the Election Commission shall dismiss the petition if it  is not  in  accordance with the provisions of  those  sections. The,  tribunal is given a similar power by section  90  (4). The  member of the tribunal who dissented from the  majority view  gave  cogent and sound reasons for holding  that  non- joinder of a duly nominated candidate who has withdrawn  was not necessarily fatal to the petition. In Election Petition No. 83 of 1952 decided by the  Election Tribunal  presided  over by Shri B. C. Vakil,  the  tribunal took  the  view that such a defect was  fatal.   A  Division Bench of the Bombay High Court in Special 903 Civil  Appeal  No.  2017 of 1952, decided  on  the  19th  of December, 1952, allowed even a defective verification to  be amended.   It is not necessary to express any final  opinion on  matters specifically covered by sections 81, 83 and  117 and dealt with by section 85 of the Act but at the same time it is not possible to accept the view ’that in spite of  the provisions of section 85 failure to comply strictly with the provisions  of section 82 has, the same consequences as  are contained  in section 85.  In our opinion the  determination of  the  question whether the parties to the  petition  have been  properly  impleaded is a matter not for  the  Election Commission but for the tribunal.  Various provisions of  the Act  referred to above show that the election petition  does not necessarily abate or fail by reason of the death of  the petitioner or any of the respondents or by their ceasing  to take  any  interest in the trial of the petition  once  that petition  has been referred to the tribunal.  On  the  other hand, any person who could be a petitioner can continue  the petition  in spite of the death of either the petitioner  or the respondents to the petition and on the original  parties failing to prosecute it.  These provisions have been made to ensure  that  the election process on which  the  democratic system  of Government is based is not abused or  misused  by any candidate and that inquiry is not shut out by  collusion between  persons  made parties to the petition or  by  their respective   deaths.   It  is  therefore  clear   that   the provisions of the law relating to the impleading of  parties are  not necessarily fatal and can be cured.  It is for  the tribunal  to determine the matter as and when it  arises  in accordance  with  the  provisions  of  the  Code  of   Civil Procedure. For  the reasons given above we are of the opinion that  the decisions of the tribunal and of the High Court in this case were right.  We accordingly dismiss the appeal with costs.      Appeal dismissed. Agent for the appellant: N. H. Hingorani. Agent for respondent No. K. L. Mehta. 904