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PETITIONER: OM PRABHA JAIN

       Vs.

RESPONDENT: GIAN CHAND & ANOTHER

DATE OF JUDGMENT: 01/04/1959

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. IMAM, SYED JAFFER SUBBARAO, K.

CITATION:  1959 AIR  837            1959 SCR  Supl. (2) 516  CITATOR INFO :  R          1983 SC 558  (25)

ACT: Election  Dispute- Deposit for security for  costs-Dismissal of   Election   Petition  for  non-compliance   with   rules therefor--Appeal  Maintainability-"  Trial  ",  meaning  of- Recitals  in deposit receipt -" On whose behalf  ",  meaning of-Representation of the People Act, 1951 (51 of 1951),  ss. 90(3), 98, 99, 116-A, 117.

HEADNOTE: Section  117 of the Representation of the People  Act,  1951 provided: " The petitioner shall enclose with the petition a Government  Treasury receipt showing that a deposit  of  one thousand rupees has been made by him...... in favour of  the Secretary  to  the Election Commission as security  for  the costs of the petition." The  respondent, who filed an election petition  challenging the  validity  of the appellant’s  election,  deposited  the amount as required under s. 117 of the Act.  In the  deposit receipt, the words " Secretary to the Election Commission  " were  put  in  as against the name of the  person  on  whose behalf  money  was paid.  The appellant contended  that  the receipt in this form showed that the money had been paid  by the respondent acting for the 517 Secretary  to  the  Election Commission and not  by  him  in favour  of  the  latter,  and  that  as  the  receipt   was, therefore,  not  in terms Of S. 117, the  election  petition should be dismissed.  The Tribunal accepted the  appellant’s contentions  and dismissed the election petition  under  the provisions of s. 90(3) of the Act. Held,  that  the words " on whose behalf "  in  the  deposit receipt,  in the context, must mean " in whose favour "  and that  the receipt was in full compliance with s. 117 of  the Act. Held,  further, that the order passed by the Tribunal  under the  powers contained in s. 90(3) Of the Act dismissing  the election petition is an order under s. 98 and is  appealable under s. 116A. The word " trial " in s. 98 of the Act means the entire pro-

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ceeding before the Tribunal from the reference to it by  the Election Commission to the conclusion. Harihar  Singh v. Singh Ganga Prasad, A.I.R. 1958 Pat.  287, disapproved. Harish  Chandra Bajpai v. Triloki Singh, [1957] S.C.R.  370, relied on.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  85  of 1959. Appeal  by special leave from the judgment and  order  dated August  12, 1958, of the Punjab High Court in  First  Appeal Order No. 183 of 1957, arising out of the judgment and order dated  November  8, 1957, of Shri  Harbaksh  Singh,  Member, Election  Tribunal, Karnal, in Election Petition No. 249  of 1957. Purshottam Tricumdas, J. B. Dadachanji, S. N. Andley and  P. L. Vohra, for the appellant. Ganpat Rai, for respondent No. 1. Naunit Lal, for respondent No. 2. 1959.  April 1. The Judgment of the Court was delivered by SARKAR,  J.-ID the 1957 General Elections the appellant  was declared  elected to the Punjab Legislative  Assembly.   The respondent,  Gian  Chand, filed an election petition  for  a declaration  that  the appellant’s election was  void.   The other   respondent  in  this  appeal,   presumably   another unsuccessful  candidate  at the election, had  been  made  a party  to the petition but he never appeared at  any  stage. For  brevity we will refer to the respondent Gian Chand,  as the respondent, 518 The  Election Tribunal before whom the petition came up  for trial framed a number of issues and recorded evidence.  When the  case  was  ready for argument, the  appellant  made  an application  to  the Tribunal for an  order  dismissing  the petition under s. 90(3) of the Representation of the  People Act, 1951, which is later set out, on the ground that s. 117 of  that  Act  had  not been  complied  with.   Section  117 requires  that every election petition shall be  accompanied by  a Government Treasury receipt showing that a deposit  of Rs.  1,000 had been made by the petitioner infavour  of  the Secretary  to  the Election Commission as security  for  the costs of the petition.  The appellant’s contention was  that the receipt enclosed with the petition was not, for  reasons which will be mentioned later, in terms of the section.  The respondent  objected  to the application  being  entertained because  of  the delay in filing it and also on  the  ground that  it could not be decided without taking evidence.   The Tribunal overruled the respondent’s objections and held on a scrutiny of the receipt alone that it was not in terms of s. 117, and thereupon dismissed the election petition under the powers  conferred  by s. 90 (3) without deciding  the  other issues framed. The  respondent  went  up in appeal to  the  High  Court  of Punjab.   It was there contended on behalf of the  appellant that  no  appeal lay from an order  dismissing  an  election petition for the reasons mentioned in s. 96 (3) and that the order  of  the Tribunal was in any event  right.   The  High Court  held  that  an appeal lay to it and  that  the  order dismissing  the petition was wrong because the terms  of  s. 117  had been complied with.  The present appeal is  against this order of the High Court. The first point that arises is whether an appeal lay to  the

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High  Court.   The Act provides by s. 116A  that  an  appear shall  lie  from every order made by  an  Election  Tribunal under s. 98 or s. 99 to the High Court of the State in which the  Tribunal  is situated.  The appellant’s  contention  is that  the order of the Tribunal dismissing the petition  had not  been made under either of these sections.  It is  quite clear that the 519 Tribunal’s  order had not been made under s. 99.  The  point that arises is whether the order had been made under s.  98. If it had not been made under s. 98, an appeal would clearly not lie.  The appellant contends that it was not so made but had been made under s.   90 (3).  These two sections are set out below: " Section 98.-Decision of the Tribunal.-At the conclusion of the trial of an election petition the Tribunal shall make an order- (a)  dismissing the election petition; or (b)  declaring  the election of all or any of  the  returned candidates to be void ; or (c)  declaring  the election of all or any of  the  returned candidates  to  be  void and the  petitioner  or  any  other candidate to have been duly elected;". " Section-90--Procedure before the Tribunal. - (3)  The Tribunal shall dismiss an election  petition  which does  not comply with the provisions of section 81,  section 82  or  section  117 notwithstanding that it  has  not  been dismissed by the Election Commission under section 85." Section 85 provides :- " Section 85.-If the provisions of section 81 or section  82 or  section  117 have not been complied with,  the  Election Commission shall dismiss the petition." It  is first contended on behalf of the appellant  that  the revisions of s. 85 and s. 90 (3) are substantially the  same and  the fact that no appeal has been provided  against  the order made by the Election Commission under s. 85 should  be taken  as  indicating that no appeal law  against  an  order under s. 90 (3).  We are unable to agree with this view.  It seems to us that whether an appeal lies against an order  of the  Tribunal has to be decided by reference to s. 116A  and not  by  reference to the fact that a similar order  by  the Election Commission has not been made appealable. It is next said that an order under s. 8 is by the terms  of the section, an order made at the conclusion of the trial of an  election petition while an order dismissing  a  petition for any of the reasons mentioned in 520 s.   90  (3) is an order made prior to the  commencement  of such trial or at least prior to its conclusion.  It is  said that  the  word " trial " in s. 98 means that stage  of  the trial   where  evidence  is  tendered  and   arguments   are addressed.  Therefore, it is contended, an order  dismissing a  petition under the powers contained in s.90(3) is not  an order under s. 98 and it is consequently not appealable. We see no justification for this view.  An order made  under the  powers  contained  in s. 90(3) brings  to  an  end  the proceedings  arising out of a petition ; after it  is  made, nothing more remains for the Election Tribunal to try or  do in  respect  of that petition.  Therefore, it  would  appear that it is made at the conclusion of the proceedings  before the Tribunal.  It follows that such an order is made at  the conclusion  of  the trial by the Tribunal for,  as  will  be presently seen, the sole duty of the Tribunal is to try  the petition;  the proceeding before it is the trial before  it. For  the same reason it would be impossible to say that  the

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order  was made before the commencement of the trial of  the petition  by the Tribunal.  That would be  entirely  against the  whole  scheme  of  the Act  which  we  now  proceed  to consider. Chapter  III  of  Part  VI is beaded  "  Trial  of  Election Petitions  ".  It consists of ss. 86 to 107 and  covers  the entire ground from the moment an election petition comes  to an  Election Tribunal till the final order of  the  Tribunal terminating  the  proceeding  arising out  of  the  petition before  it.  The first section, s. 86, provides that if  the Election  Commission does not think fit to dismiss under  s. 85  the petition which has to be filed with it in the  first instance,  it shall refer the petition " for trial "  to  an Election  Tribunal  constituted  by  it  for  the   purpose. Therefore  it would seem that the sole duty of  an  Election Tribunal is to try an election petition referred to it.   It is an ad hoc body created under s. 86 for this purpose only. When it passes an order which closes the proceedings  before it arising out of an election petition, it must be deemed to have tried the petition and passed the order at the  conclu- sion of such trial.  It would no less be so when it 521 decides  a  matter  before  it  and  there  by  brings   the proceedings  to a close on one of the several issues  raised and does not decide the other issues.  In such a case it has made  the  order after trial of that issue  for  clearly  it cannot  make an order on -any issue without trying  it.   It has therefore made the order at the conclusion of the  trial held  by it.  And for this purpose, it makes  no  difference that  the  issue tried is of the nature  usually  called  as preliminary  issue  or that the Tribunal does  or  does  not consider it necessary to try the remaining issues. The  same conclusion also follows from the other  provisions of  the  said  Chapter III of the Act,  some  of  which  are hereinafter  mentioned.   Section 86(4) gives  the  Election Commission  the  power to fill a vacancy  occurring  in  the office  of  a member of an Election Tribunal  and  upon  the vacancy  being  so filled up " the trial " of  the  petition shall  be  continued  by  the  Tribunal  as  if  the  person appointed  in the vacancy had been on the Tribunal from  the beginning.  Since it is conceivable that a vacancy may occur in  the  office of a member of a Tribunal  long  before  the final hearing, that is to say the taking of the evidence and the commencement of the arguments, this section by providing that  upon  the  vacancy being filled " the  trial"  of  the petition  shall be continued must be taken as  contemplating the  proceeding  prior to the final hearing also  as  trial. Under s. 88 an Election Tribunal may in its discretion sit " for any part of the trial at any place in the State in which the  election  had  taken  place.   Here  again  the  entire proceeding  before the Tribunal from the reference to it  by the  Election  Commission  till  the  conclusion  is   being considered  as  the trial.  Again under s. 89  the  Election Commission  may  at any stage withdraw  a  petition  pending before  a  Tribunal and transfer it " for trial  to  another Tribunal " and " that Tribunal shall proceed with the  trial from  the stage at which it was withdrawn " from  the  first Tribunal.  So here too the entire proceeding from the  first reference  - to an Election Tribunal is being spoken  of  as the trial.  Hence the contention of the 66 522 learned  counsel for the appellant that the trial  mentioned in  s. 98 is the stage in the proceedings in which  evidence is  taken and arguments are heard, is unfounded.  That  word

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in the other sections in this part of the Act clearly  means the  entire proceeding before a Tribunal from the  reference to it by the Election Commission to the conclusion.  We find no reason to give it a restricted meaning in s. 98. Again,  suppose in a case no evidence was necessary but  the petition  was dismissed after hearing arguments only.   That would  clearly be an order under s. 98.  It would have  been passed  at  the conclusion of the trial.  How is  that  case different from one in which on arguments having been  heard, the  petition is dismissed under the powers contained in  s. 90(3)  ?  Obviously  here also the order was  made  -at  the conclusion  of the trial.  An order passed by  the  Tribunal under  the  powers  contained  in  s.  90(3)  bringing   the proceeding  to a close is, therefore, in our view  an  order made under s. 98. The learned counsel for the appellant referred us to  Harish Chandra  Bajpai  v.  Triloki Singh (1)  in  support  of  his contention that the order of the Tribunal with which we  are concerned in this case was not made at the conclusion of the trial.  We are unable to find anything. in that case to help him.  There this Court was dealing with s. 90(2) of the  Act in which the word trial’ occurred.  This Court observed that the word trial’ standing by itself may be susceptible of two meanings, that is, as referring to the final hearing of  the petition  consisting  of examination  of  witnesses,  filing documents and addressing arguments, and also as referring to the  entire  proceedings before the Tribunal from  the  time that  the petition is transferred to it under s. 86  of  the Act until the pronouncement of the award.  It held that  the word  I  trial’ in the section meant the  entire  proceeding before the Tribunal.  This case therefore does not show that the word I trial’ in s. 98 meant only the final hearing.  On the  contrary it shows that in s. 90(2) which is one of  the sections  in  the  Chapter  of the Act  with  which  we  are concerned, (I)  [1957] S.C.R. 370, 523 the  word  ’trial’  has been understood  by  this  Court  as referring  to the entire Proceeding.  That, as we have  said earlier, is really a good reason for thinking that in s.  98 the  word  ’trial  has the same wider meaning  and  not  the narrow meaning of which, the -word standing by itself may be capable. It  also  seems to us that s. 90(3) which purports  to  deal with  the " procedure before the Tribunal " only states  the power  of the Tribunal and s. 98 provides for the orders  to be made by it in exercise of that power.  This view receives support  from ss. 103, 106 and s. 107 of the Act.  Under  s. 103, the Tribunal after it has made an order under s. 98 has to  send  a copy of it to the Election  Commission  and  the records of the case to the District Judge of the place where it  had  been sitting.  Under s. 106, after receipt  of  the order of the Tribunal the Election Commission shall  forward copies of the order to the appropriate authority and to  the Speaker  or Chairman of the House the election to which  was being questioned by the petition.  Section 107 provides that every  order made under s. 98 or s. 99 shall take effect  as soon  as  it  is pronounced by the  Tribunal.   Now  if  the contention of the appellant is right and an order dismissing a petition under the powers contained under s. 90(3) of  the Act  is not an order under s. 98, such an order need not  be sent either to the Election Commission or to the Speaker  or the Chairman of the House concerned, neither would there  be any  provision in the Act stating when the order is to  have effect,  nor  again  any  provision  enabling  the  Election

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Tribunal, which is an ad hoc body, to dispose of the records of  the  case  before it.  There is no reason  why  the  Act should  provide that a dismissal of an election petition  on the merits as it has been called, shall be dealt with by the Act  in  one way while a dismissal on  a  preliminary  point shall be dealt with differently when the practical result of both kinds of dismissal is the same.  We are unable to think that  the  Act could have intended such  a  curious  result. Therefore again, it seems to us that an order in exercise of the powers given by s. 90(3) is made under s. 98. We were also referred to K. Kamaraja Nadar v. Kunju 524 Thevar  (1)  and the connected cases.   There  an  objection under s. 90(3) to an election petition similar to that which the  appellant  took  in  this  case,  was  described  as  a preliminary  objection  and it was said that if it  was  not decided  first the result would be a full-fledged  trial  of the  election petition involving examination  of  witnesses. It was therefore directed that the preliminary point  should be decided first as that might save costs and harassment  to the parties by making it possible to avoid the trial of  the other  issues.   We are unable to hold  that  this  judgment supports the view that an order made under the powers  given by  s. 90(3) is not an order made at the conclusion  of  the trial;  the  direction to decide what has  been  called  the preliminary   objection,  first  does  not  lead   to   that conclusion.   The Court was not concerned with any  question as to when an order under the powers given by s. 90(3) could be  made.  It was indicating a procedure best suited to  the interests  of the parties on the facts of that case and  not laying down any rule of law. The last argument advanced was based on s. 99.  That section says  that  at the time of making an order under s.  98  the Tribunal shall also, where the petition contains a charge of a  corrupt  practice having been committed,  make  an  order recording a finding whether or not such corrupt practice had been  committed.   It  is said that if  all  orders  of  the Tribunal  dismissing  an election petition were held  to  be orders  under  s. 989 then,, where a  petition  contained  a charge of a corrupt practice and it was dismissed under  the powers  contained  in s. 90(3) the Tribunal had  further  to make  a  finding as to whether the commission of  a  corrupt practice  had or had not been proved.  It is contended  that such a position would be senseless for it would prevent  the Tribunal  from  ever  disposing  of  an  election   petition summarily  on  a preliminary ground.  Therefore it  is  said that  all  orders dismissing an election  petition  are  not orders under s. 98 and that supports the view that an  order under  s.  90(3) is not an order under s. 98.   We  are  not impressed  by this argument.  If the proper construction  of s. 99 is that an election petition cannot be dismissed on  a preliminary (1)  [1959] S.C.R. 583. 525 point  raised  under s. 90(3) where it contains  charges  of corrupt  practices  having been committed,  as  the  learned counsel  for the appellant contends, that construction  must have  effect  however senseless it may appear.   Suppose  an election  is sought to be avoided on the grounds,  that  the returned  candidate  was not qualified or that  one  of  the nomination  papers had been improperly rejected and also  on the ground of corrupt practices having been committed by the returned  candidate,  all  of which  are  good  grounds  for setting aside an election under s. 100 of the Act.  In  such a  case  too,  if the construction put upon  s.  99  by  the

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learned  counsel  for the appellant is right,  the  Tribunal cannot  allow  the  petition on any one  of  the  first  two grounds,  which  it  could have done after  a  very  summary trial,  but  must proceed to decide the charges  of  corrupt practice alleged.  This can be said to be equally  senseless as where having dismissed a petition for non-compliance with s.  117  the  Tribunal is made to record a  finding  on  the corrupt practices alleged.  On the other hand, if it is  not senseless in the one case it is not senseless in the  other. We do not therefore find much force in the argument based on an  interpretation  of s. 99 supposed to  produce  senseless results. All  this cannot, in any event, supply a reason for  holding that  an  order  which terminates  the  proceedings  arising before  an Election Tribunal is not an order passed  at  the conclusion  of  the trial when it was made for  the  reasons mentioned in s. 90(3).  We have earlier stated that the only duty  of  the  Tribunal is to try  and  decide  an  election petition and the order on the preliminary point may  dispose of  that petition.  We may also point out that under  s.  99 (1)  (b), the Tribunal at the time of making an order  under s.  98 has also to make an order awarding costs  and  fixing the  amount thereof.  If an order authorised by s. 90(3)  is not  an order under s. 98 then, when dismissing  a  petition under  s.  90(3)  the  Tribunal  would  appear  to  have  no jurisdiction  to make an order for costs.  That  can  hardly have been intended. We  therefore think that an order dismissing a petition  for the reasons mentioned in s. 90(3) is an order 526 under  s.  98  and  is appealable under  s.  116A.   In  our opinion, the case of Harihar Singh v. Singh Ganga Prasad (1) which took the contrary view, was wrongly decided. As  to  the  merits of the appeal, we  find  no  difficulty. Under  s. 117 of the Act the Treasury receipt has to show  a deposit  of  Rs.  1,000 in favour of the  Secretary  to  the Election   Commission.   There  is  no  dispute   that   the respondent  deposited  the required amount  and  enclosed  a deposit  receipt  with his petition.   The  deposit  receipt filed  by the respondent contained the following  statements on which the appellant’s contention is based;-     1.    By whom tendered-        Gian Chand     2.     Name of the person onSecretary to     whose behalf money     the Election    is paid-                 Commission. The contention is that the receipt in this form showed  that the  money  had been paid by the respondent acting  for  the Secretary  to  the  Election Commission and not  by  him  in favour  of  the latter.  We are wholly unable  to  read  the deposit receipt in that way.  The second of the two  entries reproduced above is intended to indicate the person in whose favour  the  money  has been paid; ’on  whose  behalf’  here clearly indicates in whose favour or for whose benefit.  The form of the receipt contains no other heading for indicating the person in whose favour the money was paid and of  course it was paid in favour of somebody.  That makes it  perfectly clear that the words ’on whose behalf’ mean in whose favour. It would be absurd to think that the respondent had paid the money  into  Treasury  as  security for  the  costs  of  the election  petition  acting as the agent  of  the  Secretary, Election Commission, which would be the position if we  were to accept the appellants contention. We  feel  Do doubt that the receipt was in  full  compliance with s. 117 of the Act. In the result we dismiss this appeal with costs.

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Appeal dismissed. (1)  A.I.R. 1958 Pat. 287. 527