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