G.P. Bhutt, J.
1. This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the Act), by an unsuccessful candidate who filed an election petition challenging the election of respondent No. 1 to the State Legislative Assembly from the Sitamau Assembly Constituency in the last general election held on 1-3-1957.
2. The appellant and the four respondents were the contesting candidates at the election. Some of the candidates whose nomination papers were accepted withdrew their nomination on the appointed day, namely, 4-2-1957, and accordingly no ballot boxes were kept for them in the polling stations. One of them was Ram Ratan, who, according to the appellant, submitted his notice of withdrawal to the Returning Officer after 3 P. M.
The case of the appellant was that acceptance of his notice of withdrawal after 3 P. M. was against the provisions of the Act and materially affected the result of the election. He also alleged commission of certain corrupt practices by respondent No. 1 or his agents, or by other persons with his consent, on the basis of which he prayed for a declaration that the election of the returned candidate was void and that he (appellant) was duly elected.
3. Respondent No. 1 denied that Ram Ratan presented his notice of withdrawal after 3 P. M., and. submitted that even if he had done so, he should be deemed to have duly retired from the contest, if not to have withdrawn from it. Alternatively, he pleaded that Ram Ratan was a necessary party and as he-was not impleaded as a respondent, the election petition was liable to be dismissed. He further alleged that the petition was also liable to be dismissed as it was not accompanied by a valid receipt of the security deposit. The allegations of the corrupt practices were denied by him.
4. The Tribunal dismissed the election petition in limine on the two preliminary findings, namely, that (i) Ram Ratan was a necessary party and (ii) the receipt of the security deposit was not valid. These findings are contested by the appellant. A preliminary objection has been taken on behalf of respondent No. 1 to the maintainability of the appeal under Section 116A of the Act.
5. Section 82 of the Act requires the petitioner to join as respondents in his petition, all the con-testing candidates other than himself, where, in addition to claiming a declaration that the election of all or any of the returned candidates is void, he claims a further declaration that he himself or any other candidate has been duly elected. The case of respondent No. 1 was that the joinder of Ram Ratan as a respondent was necessary under this section. Section 117 deals with deposit of security.
It provides that the petitioner shall enclose with the petition a Government Treasury receipt showing that the deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, in favour of the Secretary to the Election Commission as security for the costs of the petition. The appellant enclosed with his petition a Government Treasury receipt showing a deposit of Rs. 1000/- made by him in the Government Treasury.
In the receipt, the money was shown as 'deposit for election petition in favour of the Secretary, Election Commission. The contention of respondent No. 1 was that since the deposit was not shown to be made as 'security for the costs of the petition', Section 117 was not properly complied with. Both these contentions were upheld by the Tribunal and accordingly the petition was dismissed under Sub-section (3) of Section 90 of the Act.
6. Besides the power of dismissal of the election petition provided in Section 90(3), the Tribunal has been given power to dismiss it at the conclusion of the trial under Section 98 of the Act. The Tribunal has also been given power to make other orders under Section 99.
Section 116A which deals with appeals against orders of election Tribunals refers only to the orders made under Section 98 or Section 99, and not to those under Section 90 (3). The preliminary objection made on behalf of respondent No. 1 to the maintainability of the appeal is based on the ground that since an order under Section 90(3) is not in terms included in Section 116A, no appeal can lie from it.
This question expressly arose in Gulsher Ahmad v. Election Tribunal,' Chhatarpur 1958 MPLJ 150: (AIR 1958 Madh Pra 224) in which, one of us (Chief Justice) and Choudhuri J. held that Section 90(3)is only a provision which gives power and enjoinsa rule of decision, but the order made under it is referable to Section 98. In that view, it was held that an appeal was competent even from an order made under Section 90(3). As at present advised, we see no reason to depart from that view. The preliminary objection has, therefore, no force.
7. We shall now deal with two preliminary points on which the Tribunal dismissed the election petition. The first relates to the non-joinder of Ram Ratan as a respondent. He would be a necessary party under Section 82 of the Act, if he is deemed to be a contesting candidate. The contention of the learned counsel for the appellant is that the term 'contesting candidates' includes only those candidates who have been entered in the list of contesting candidates under Section 38(1). That section is in these terms:
'Immediately after the expiry of the period within which candidatures may be withdrawn under Sub-section (1) of Section 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period'.
This section itself, defines 'contesting candidates' as candidates who are included in the list of validly nominated candidates and who have not withdrawn their candidature within the period before which candidatures could be withdrawn under Sub-section (1) of Section 37. The date referred to in Section 37 is the date which is fixed by the Election Commission under Clause (c) of Section 30, which in this case was 4-2-1957.
That was the date on which Ram Ratan had presented his notice of withdrawal to the Returning Officer Section 37 provides further that the notice of withdrawal should be filed on the date fixed under Clause (e) of Section 30, before 3 o' clock in the afternoon. Therefore, if, as was contended by the appellant, Ram Ratan had not presented his notice of withdrawal before 3 P. M., he would be a contesting candidate within the meaning of Section 38, and, therefore, of Section 82.
8. It was, however, contended that until it was determined on enquiry that Ram Ratan had presented his notice of withdrawal after 3 P. M., he cannot properly be held to be a contesting candidate. However, the question whether a person is a necessary party must be determined on the allegations made by the petitioner in his election petition. On those allegations already Ram Ratan was a necessary party under Section 82.
He was also a necessary party because the petitioner wanted a decision in relation to his notice of withdrawal. This could not properly be determined in his absence, for in case the finding was that he did not validly withdraw from the contest and consequently was a contesting candidate, he stood in danger of forfeiting his deposit made under Section 34: see Section 158(2) of the Act. The Tribunal was, therefore, right in holding that he was a necessary party.
9. As regards the validity of the receipt of the security deposit, it has been held in Muti Ahmad v. Virendra Singh 1958 MPLJ 289: (AIR 1958 Madh Pra 214) and Shivaprasad v. Chandrika Prasad 1958 MPLJ 292: (AIR 1958 Madh Pra 226) that what the law requires is that there should be a real and effective compliance with the provisions of Section 117 of the Act. If, therefore, the defect is of a formal or technical character, it would not entail dismissal of the election petition under Section 90(3).
10. The only defect in the receipt in question was that it did not expressly mention that the amountwas deposited 'as security for the costs of the petition'. Since the receipt was enclosed with the election petition and made the amount of deposit available to the Secretary to the Election Commission in connection with the election petition, it necessarily implied that the deposit was made under Section 117 as security for the costs of the petition.
The reference, in this connection, by the Tribunal to deposit which is required to be made under Section 34, is not apposite, for that section does not require the receipt to be enclosed with the election petition. We are, therefore, of opinion that the Tribunal erred in holding that the receipt was of such a defective character as justified dismissal of the election petition under Section 90(3). However, since the Tribunal rightly rejected the petition on the ground of non-joinder of Ram Ratan, who was a necessary party under Section 82, this point is not material.
11. The result is that the appeal fails and is dismissed with costs. Hearing fee Rs. 100/- which shall be paid out of the security deposit and the balance thereof shall be returned to the appellant.