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PETITIONER: RAVINDRA NATH

       Vs.

RESPONDENT: RAGHBIR SINGH & ANR.

DATE OF JUDGMENT: 04/08/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. (CJ) RAMASWAMI, V. MITTER, G.K. HEGDE, K.S.

CITATION:  1968 AIR  300            1968 SCR  (1) 104  CITATOR INFO :  RF         1973 SC2077  (8)

ACT: Representation  of  the  People Act, 1951  ss.  97(1),  117, 118--Security  required to be deposited on giving notice  of recrimination   under   proviso  to  s.   97(1),   to   lead evidence--Whether  treasury receipt evidencing full  deposit to  be  produced at time of giving  notice--Effect  of  non- compliance.

HEADNOTE: By an election petition filed on May 10, 1966, the appellant challenged  the  election of the first  respondent  held  on March  28. 1966 to the Rajya Sabha by members of the  Punjab Vidhan  Sabha and sought a declaration that he  be  declared duly  elected  as a member of the Rajya Sabha  instead.   On July  1, 1966 the date fixed for the respondents  to  appear before  the  Tribunal  and answer the  claims  made  in  the petition, the respondent filed a written statement in  reply to the election petition and gave a notice under the proviso to  s. 97(1) of the Representation of the People Act,  1951, of  his  intention  to  give evidence  to  prove  that,  the election  of  the appellant would have been void if  he  had been  the returned candidate and if a  petition  challenging his election had been presented.  The notice under s. 917(1) was accompanied by the prescribed statement and  particulars and  a treasury receipt evidencing the deposit of Rs.  1,000 as security under s. 117 of the Act.  An objection was taken on  behalf  of  the appellant that the  amount  of  security deposited  by  the respondent was insufficient  in  that  he should have deposited Rs. 2,000 and consequently the  notice under  the proviso to s. 97(1) was invalid.  On  October  7, 1966, the date fixed for argument on the preliminary issues, the  respondent  deposited  a further sum of  Rs.  1,000  as security  and produced the relevant treasury receipt  before the  Tribunal,  but  the  Tribunal  upheld  the  appellant’s objection  on the view that as the production of  a  receipt showing the deposit of Rs. 2,000 as security along with  the notice  was  the  condition precedent to the  right  of  the

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respondent  under s. 97(1) to lead evidence in view  of  his failure to comply with this requirement, this right was lost to  him and the subsequent deposit of Rs. 1,000 by  him  did not  entitle  him to lead in evidence under s.  97(1).   The respondent  thereupon  filed a petition in  the  High  Court under Art. 227 of the Constitution challenging the  decision of  the  Tribunal and the High Court  allowed  the  petition holding that it is only in cases in which the provisions  of ss. 117 and 118 with regard to deposit of security were  not complied  with before the date fixed for recording  evidence under  s. 97(1) that the Tribunal could refuse to admit  the evidence,  and  where, as in the present  case,  the  entire amount of the security had been deposited before such  date, the Tribunal must admit the evidence. On appeal to this Court, HELD:Allowing the appeal: the Tribunal had rightly held that the respondent was required to produce with the notice under the  proviso  to  s. 97(1)  a  Government  Treasury  Receipt showing a deposit of Rs. 2,000 as security for costs of  the recrimination  and the High Court was in error  in  quashing this order. [110 F-G].                             105 The  notice of recrimination under s. 97 is in  substance  a counter  petition  calling in question the  claim  that  the other  candidate  has  been duly elected.   Looking  at  the object  and  scheme  of  S.  97  it  is  manifest  that  the provisions of ss. 117 and 118 be applied mutatis mutandis to a  proceeding under s. 97.  The recriminator must produce  a Government  Treasury Receipt showing that a deposit  of  Rs. 2,000  has  been  made  by him in  favour  of  the  Election Commissioner as cost of the recrimination.  As the notice of recrimination  cannot  be  sent by post, it  must  be  filed before  the Tribunal, and reading s.117  with  consequential adaptations for the purposes of the proviso to, S.97(1), it will appear that the Treasury Receipt showing the deposit of the security must be produced before the Tribunal  along, with the notice of recrimination.  If the recriminator fails to  give the requisite security under s. 117 at the time  of giving  the notice of recrimination, he loses the  right  to lead  evidence  under s.97 and the notice  of  recrimination stands virtually rejected. [18E-H; 109A-B.] N.R.  Shikshak v. R. P. Dikshit, 1965 [A.L.J]  25,  4142, disapproved. Kumaranand v. Brij Mohan, [1965] 1 S.C.R.  116, distinguished. There was no force in the contention that the proviso to  s. 97(1)  having  enacted that the forfeiture of the  right  to lead  evidence  would  be penalty for failure  to  give  the further  security  under S. 118, the legislature  could  not have   intended  that  the  rejection  of  the   notice   of recrimination  would  be  an  additional  penalty  for  this default,  An  order recording that the recriminator  has  no right to give evidence under s. 97 is tantamount to an order rejecting  the  notice  of recrimination  and  there  is  no substantial difference between the two. [110 D-F].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 520 of 1967. Appeal  from the judgment and order dated December 19,  1966 of  the Punjab and Haryana High Court in Civil Revision  No. 934 of 1966. Rajinder  Sachhar,  Mahinderjit  Singh  Sethi  and  Ravinder Narain, for the appellant. R.M. Haz arnavis, Rameshwar Nath and Mahinder Narain, for

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respondent No. 1. The Judgment of the Court was delivered by Bachawat, J.-On March 28, 1966 the election of four  members to the Council of States (Rajya Sabha) by the members of the Punjab Legislative Assembly (Vidhan Sabha) was held, and  as a  result of the election, respondent No. 1,  Raghbir  Singh and  one  Narinder Singh were declared  elected.   Appellant Ravindra  Nath was one of the unsuccessful  candidates.   On May  10,  1966,  the appellant filed  an  election  petition asking for a declaration that the election of respondent No. 1 and Narinder Singh was void and for a further  declaration that  he be declared duly elected as a member of  the  Rajya Sabha  to  one of those seats.  On July 1,  1966,  the  date fixed  for the respondents to the petition to appear  before the  Tribunal  and answer the claims made in  the  petition, respondent  No. 1 filed a written statement in reply to  the election  petition  and  gave a  written  notice  under  the proviso to 106 s.97(1) of the Representation of the People Act, 1951 of his intention to give evidence to prove that the election of the appellant  would have been void if he had been the  returned candidate  and if a petition had been presented  calling  in question  his  election.   The  notice  under  s.97(1)   was accompanied by the prescribed statement and particulars  and a  treasury receipt evidencing the deposit of Rs.  1,000  as security under s. 117 of the Act.  An objection was taken on behalf  of  the  appellant  that  the  amount  of   security deposited   by  respondent  No.  1  was   insufficient   and consequently  the  notice under the proviso to  s.97(1)  was invalid.   On  this  objection,  the  Tribunal  raised   the following preliminary issue being issue No. 10: "Whether the notice under section 97 of the Representation of the  People Act,  1951, given and the recrimination statement  filed  on behalf  of  respondent  No. 1 are  invalid  because  of  the insufficiency, if any, of the security deposit made by  res- pondent No. 1 within the time allowed, if any?". It is now common case that under the law as it stood at  the relevant time respondent No. 1 was required to deposit a sum of  Rs. 2,000 as security under s.117 of the  Representation of the People Act, 1951.  On October 7, 1966, the date fixed for  argument  on the preliminary issues, respondent  No.  1 deposited  a  further  sum  of Rs.  1,000  as  security  and produced the relevant treasury receipt before the  Tribunal. By  its order dated October 11, 1966 the Tribunal held  that as  the production of a receipt showing the deposit  of  Rs. 2,000  as security along with the notice was  the  condition precedent to the right of respondent No. 1 under s.97(1)  to lead  evidence, this right was lost by his omission to  file with  the notice the treasury receipt showing a  deposit  of Rs. 2,000 and the subsequent deposit of Rs. 1,000 by him did not  entitle  him to lead any evidence  under  s.97(1).  The Tribunal answered the preliminary issue accordingly.  On  or about  October 24, 1966, respondent No. 1 filed in the  High Court  for the States of Punjab and Haryana at Chandigarh  a petition  under Art. 227 of the Constitution asking  for  an order  quashing  the order of the  Election  Tribunal  dated October  11, 1966 and a direction that respondent No.  1  be allowed to lead evidence under s.97(1). Several  preliminary objections to the maintainability of the petition under Art. 227  of the Constitution were raised before the High  Court, but  they  were subsequently abandoned and counsel  for  the appellant  agreed that the High Court should deal  with  the order  of  the Tribunal on the merits.  By its  order  dated December  19,  1966 the High Court held that it is  only  in

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cases  in which the provisions of ss.117 and 118 with regard to  security  of deposit were not complied with  before  the date  fixed  for recording evidence under s-97(1)  that  the Tribunal  could refuse to admit the evidence, and where,  as in  the present case, the entire amount of the security  had been deposited before the date fixed for recording evidence, the Tribunal must admit the evidence.  On this finding,  the High Court 107 allowed the petition under Art. 227 and quashed the order of the Election Tribunal dated October 11, 1966 in so faras it related to issue No. 10. From this order of the High  Court, the present appeal has been filed by certificate. The question in this appeal is what time limit, ifany, is prescribed for furnishing the security referred to in the proviso  to  s.97(1)  read  with  ss.117  and  118  of   the Representation  of the People Act, 1951 as it  stood  before its   amendment   by  the  Representation  of   the   People (Amendment) Act, 1966.  Section 97 is in these terms:               "97(1).   When  in  an  election  petition   a               declaration that any candidate other than  the               returned  candidate has been duly  elected  is               claimed,  the returned candidate or any  other               party  may  give evidence to  prove  that  the               election  of  such candidate would  have  been               void if he had been the returned candidate and               a  petition  had  been  presented  calling  in               question his election.               Provided  that the returned candidate or  such               other party as aforesaid shall not be entitled               to  give such evidence unless he  has,  within               fourteen days from the date of commencement of               the trial, given notice to the Tribunal of his               intention  to  do so and has  also  given  the               security and the further security referred  to               in sections 117 and 118 respectively.                (2) Every notice referred to in sub-section I               shall  be  accompanied by  the  statement  and               particulars required by section 83 in the case               of  an. election petition and shall be  signed               and verified in like manner." The  Explanation  to sub-s. (4) of s. 90 provided  that  for purposes  of  that sub-section and of s.97 the  trial  of  a petition  would be deemed to commence on the date fixed  for the respondents to appear before the Tribunal to answer  the claim or claims made in the petition.  Sections 117 and  118 read:               " 117.  The petitioner shall enclose with  the               petition a Government Treasury receipt showing               that a deposit of two thousand rupees has been               made by him either in a Government Treasury or               in the Reserve Bank of India in favour of  the               Election Commission as security for the  costs               of the petition.               118. During  the  course of the trial  of  an               election petition the Tribunal may at any time               call upon the petitioner to give such  further               security for costs as it may direct, and  may,               if he fails to do so, dismiss the petition." It  is  to be noticed that the words "within  fourteen  days from he date of commencement of the trial" in the proviso to s.97(1)  govern the giving of the notice and not the  giving of the security. 108 Moreover,  the  period  of fourteen days from  the  date  of

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commencement  of  the  trial cannot be the  time  limit  for giving the further security under s-118.  The amount of  the further  security  under s. 118 and the time for  giving  it must be fixed by the Tribunal before it can be given by  the recriminator.   He  may  be asked  to  furnish  the  further security  at any time during the course of the trial if  the original  security is found to be insufficient.  We have  to examine the provisions of ss.117 and 118 more closely to see if there is any time limit for the giving of security  under the proviso to s.97(1). The object of s.97 is to enable recrimination when a seat is claimed  for the petitioner filing the election petition  or any   other  candidate.   In  his  election   petition   the petitioner may claim a declaration that the election of  all or any of the returned candidates is void on one or more  of the  grounds  specified  in  sub-s. (1)  of  s.100  and  may additionally claim a further declaration that he himself  or any  other  candidate has been duly elected on  the  grounds specified  in s. 101. (see ss.81, 84, 98, 100 and 101).   It is only when the election petition claims a declaration that any  candidate  other than the returned candidate  has  been duly  elected that s.97 comes into play.  If the  respondent desires  to contest this claim by leading evidence to  prove that  the  election of the other candidate would  have  been void  if he had been the returned candidate and an  election petition   had  been  presented  calling  in  question   his election,  the  respondent  must give  a  formal  notice  of recrimination and satisfy the other conditions specified  in the proviso to s.97. The notice of recrimination is thus  in substance  a counter petition calling in question the  claim that  the  other candidate has been duly elected.   In  this background,  it  is  not  surprising  that  the  legislature provided that notice of recrimination must be accompanied by the  statement and particulars required by s.83 in the  case of  an  election petition and signed and  verified  in  like manner  and the recriminator must give the security and  the further  security for costs required, under ss. 117 and  118 in the case of an election petition. Looking at the object and scheme of s.97 it is manifest that the  provisions  of ss.117 and 118 must be  applied  mutatis mutandis  to a proceeding under s.97. The recriminator  must produce a government treasury receipt showing that a deposit of  Rs.  2,000 has been made by him either in  a  Government Treasury  or in the Reserve Bank of India in favour  of  the Election Commissioner as costs of the recrimination.  As the notice  of recrimination cannot be sent by post, it must  be filed   before   the  Tribunal,  and  reading   s.117   with consequential adaptations for the purposes of the proviso to s.97(1),  it will appear that the treasury  receipt  showing the  deposit  of the security must be  produced  before  the Tribunal along with the notice of recrimination.  It follows that the recriminator must give the security referred to  in s. 117 by producing the                             109 treasury receipt showing the deposit of the security at  the time  of  the  giving of the notice  under  the  proviso  to s.97(1). If  the  recriminator fails to give the  requisite  security under   s.117   at  the  time  of  giving  the   notice   of recrimination,  he  loses the right to lead  evidence  under s.97  and  the  notice  of  recrimination  stands  virtually rejected.   It  was  suggested that  as  under  s.90(3)  the Tribunal  could  not dismiss an election petition  for  non- compliance  with  the provisions of s.117,  the  legislature could  not  have intended that the notice  of  recrimination

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would stand rejected for failure to give the security  under s.117.  This argument overlooks the fact that under s.85  it is  the  duty  of the Election  Commission  to  dismiss  the election  petition for noncompliance with the provisions  of s.117. Likewise, reading s.118 with the proviso to s.97(1) it  will appear   that  during  the  course  of  the  trial  of   the recrimination  the  Tribunal may at any time call  upon  the recriminator  to give such further security for costs as  it may direct and may, if he fails to do so, reject the  notice of recrimination given under the proviso to s.97(1). It  was suggested  that the proviso to s.97(1) having  enacted  that the  forfeiture of the right to lead evidence would  be  the penalty  for  failure  to give the  further  security  under s.118,  the  legislature could not have  intended  that  the rejection  of  the  notice  of  recrimination  would  be  an additional  penalty  for this default.  This  suggestion  is based  on fallacious assumptions.  The only right  conferred on the recriminator satisfying the conditions of the proviso to  s.97(1) is the right to lead evidence that the  election of  the other candidate would have been void if he had  been the returned candidate.  If the recriminator fails to fulfil the conditions of the proviso, he loses this right, and  the Tribunal is entitled to record an order to this effect.   An order  recording that the recriminator has no right to  give evidence under s-97 is tantamount to an order rejecting  the notice  of  recrimination.   There is  thus  no  substantial difference between the penalty prescribed by the proviso  to s-97(1) and the penalty prescribed by s.118 for the  default in giving the further security. The High Court held that the recriminator loses his right to lead  evidence under s.97 for failure to give security  only in  cases in which the provisions of ss.117 and 118 are  not complied with before the date fixed for recording  evidence. In  N. R. Shikshak v. R. P. Dikshit(1), a Full Bench of  the Allahabad  High  Court also held that since,  no  period  is fixed within which the security is to be given, the security may  be  given  at any time before  the  recriminator  gives evidence.  We are unable to agree with this decision on  his point  or with the judgment under appeal.  We  have  already seen  that the time for giving the initial security for  the recrimination is fixed on a combined reading of the  proviso to s.97(1) and (1)[1965] A.L.J. 25, 41-42. 110 S.117 and the initial security must be given at. the time of giving  the notice of recrimination.   Other  considerations also  show  that the date fixed for recording  the  evidence cannot be the date within which the security referred to  in ss. 117 and 118 is to be given under the proviso to s-97(1). The  recrimination starts on the giving of the notice  under the  proviso.   Though  the  taking  of  the   recriminatory evidence  may be postponed, preliminary directions for  dis- covery,  inspection and other matters are given long  before the evidence is taken.  It is, therefore, desirable that the initial security referred to in s. 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding.  Moreover, the date fixed  for recording  the evidence cannot be the time limit for  giving further security under s. 118.  The Tribunal may demand  the further  security under s. 118 at any time in course of  the trial of the recrimination even after the evidence has  been partly taken. The  High Court thought that the decision in  Kumaranand  v. Brij  Mohan(1)  lends  support to its  conclusion  that  the

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Tribunal  could not refuse to admit the evidence under  s.97 if  the security under s.117 is given before the date  fixed for  recording  the evidence.  That decision turned  on  the construction of s.119-A and is not relevant on the questions under  consideration in this appeal.  As s. I 19-A  did  not expressly  provide  the penalty for failure to  furnish  the security  for costs of an appeal at the time of  filing  the memorandum  of appeal, the failure to furnish  the  security did  not  automatically result in dismissal of  the  appeal, and,  it was for the High Court to decide having  regard  to the circumstances of each case whether it should decline  to proceed with the hearing of the appeal.  But the proviso  to s.97(1)  expressly provides that the recriminator shall  not be entitled to give evidence unless inter alia he gives  the security referred to in s. 117. The Tribunal rightly held that the respondent No. 1 was  re- quired  to produce with the notice under the proviso  to  s- 97(1) a government treasury receipt showing a deposit of Rs. 2,000 as security for costs of the recrimination.  The  High Court was in error in quashing this order. In  the  result,  the  appeal is  allowed  with  costs,  the judgment and order of the High Court are set aside, and  the ’petition under Art. 227 of the Constitution is dismissed. Appeal allowed R.K.P.S. (1) [1965] 1 S.C.R. 116. 111