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Shivaprasad Vs. Chandrika Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 141 of 1957
Judge
Reported inAIR1958MP226
ActsRepresentation of the People Act, 1951 - Sections 90(3), 116A and 117
AppellantShivaprasad
RespondentChandrika Prasad and ors.
Appellant AdvocateA.P. Sen, Adv.
Respondent AdvocateR.S. Dabir and ;R.P. Sinha, Advs.
DispositionAppeal allowed
Cases Referred and The State of Eihar v. M. Homi
Excerpt:
.....or the writer had failed to dot some is or cross some t's. the gist of the matter is that the election commission must know that the person seeking to set aside an election has furnished the necessary deposit fr ensuring the costs of the other side in the event of the petition being unsuccessful. all that we have to see is whether section 117 has been really and effectively complied with or not. this clearly shows that the deposit should be made in such a way that nobody could have access to that deposit without the order of the secretary to the election commission. when, instead of the secretary to the election commission, the election commission itself is introduced, we think that the petitioner has gone one better rather than one worse. it is said that the treasury may bring up a..........tribunal was passed. according to the tribunal, the deposit receipt, which has to be sent to the election commission, was not in accordance with the requirements of section 117 and therefore the petition was liable to be dismissed. the tribunal having dismissed the petition, the present appeal has been filed against its order.4. at the hearing, shri dabir for the answering respondent raised a preliminary objection that no appeal lies against an order passed in limine dismissing the election petition for non-compliance with the provisions of section 117. his contention is that the order which is made is not in the trial of the election petition but at the very threshold and therefore it is an order under section 90 (3) of the act and not an order contemplated under section 98.....
Judgment:

1. This appeal under section 116A of the Representation of the People Act, 1951 (hereinafter the Act) has been filed by one Shivprasad Chandpuria, whose election petition before the Tribunal failed under section 90 (3) of the Act.

2. The appellant Shivprasad Chandpuria was a candidate at the last elections for the Legislative Assembly from the Bargi (97) constituency. The election took place on the 9th March 1957, and respondent No. 1 Chandrika Prasad Tripathi was elected. There were two other candidates, who are shown as respondents Nos. 2 and 3.

3. As is required by section 117 of the Act, Shivprasad Chandpuria, who filed his election petition out of which this appeal arises, made a deposit of Rs. 1,000/- to cover the costs of the answering respondent. He did so in the Treasury at Jabalpur, and it is in connexion with, this deposit that the order of the Tribunal was passed. According to the Tribunal, the deposit receipt, which has to be sent to the Election Commission, was not in accordance with the requirements of section 117 and therefore the petition was liable to be dismissed. The Tribunal having dismissed the petition, the present appeal has been filed against its order.

4. At the hearing, Shri Dabir for the answering respondent raised a preliminary objection that no appeal lies against an order passed in limine dismissing the election petition for non-compliance with the provisions of section 117. His contention is that the order which is made is not in the trial of the election petition but at the very threshold and therefore it is an order under section 90 (3) of the Act and not an order contemplated under section 98 ibid.

According to him, an order to be appealable under section 116A has to be made within, section 98, because section 98 of the Act is mentioned in section 116A and not the third sub-section of section 90.

5. We held in Gulsher Ahmad v. Election Tribunal, Chhatarpur, Misc. Petn. No 189 or 1957, D/- 23-1-1958: (AIR 1958 Madh Pra 224) (A) that an order passed under section 90 (3) must also be deemed to be an order passed under section 98 and is thus appealable. We pointed out that certain consequences ensue upon the passing of an order under section 98 of the Act, viz. communication of the result to the Election Commission and the Speaker of Parliament or the Speaker of the Legislative Assembly, and the record has to be consigned with the District Judge of the district where the Election Tribunal sat.

We pointed out that in the relevant sections only section 98 is mentioned and that it was not to be expected that those sections were not to be applied to an order under section 90 3. We pointed out on the authority of a decision of their Lordships of the Supreme Court reported in Harish Chandra v. Triloki Singh, (S) AIR 1957 SC 444 (B), that the trial of an election petition commences when the election petition is made over to the Tribunal for trial.

Shri pabir contended that that ruling was not in point and drew our attention to an earlier decision of their Lordships reported in Jagau Nath v. Jaswant Singh, AIR 1954 SO 210 (C). In that case their Lordships were considering the effect of section 62 of the Representation of the People Act, as it stood before the amendment, and their Lordships observed that since there was no penalty attached to the non-compliance with section 82, the result of that non-compliance could only be indicated by the Tribunal in its concluding order, which is passed at the end of the trial. Their Lordships observed that there was no power to decide that matter in limine and it is this which the learned counsel for the answering respondent has seized upon to show to us that orders made under the third sub-section of section 90 are passed at the threshold and not within the (rial.

6. Apart from the fact that in this case the trial had proceeded for some time and some other preliminary objections were tried and overruled, it is obvious that the ruling to consider is not the earlier one but the later one. In the later ruling their Lordships were considering the effect of Chapter III of the Act, and they were examining the meaning of the word 'trial' as used therein.

Their Lordships considered all the relevant sections of that Chapter and ruled finally that the word 'trial' included all stages of enquiry into the election petition, from the moment the Election Tribunal is appointed and handed over the election petition for trial. In our opinion, the earlier case was not in point, because it was only deciding an ancillary matter as to whether there could be an order dismissing the election petition in limine when there was no such power conferred by the Act.

The fact that now a power of dismissal for breach of certain sections of the Act has been specifically conferred in mandatory terms shows that the ruling which their Lordships gave on the earlier occasion cannot be read entirely in this context. On the other hand, the ruling in Harish Chandra's case (B). (supra) was definitely given to lay bare the meaning of the word 'trial' as used in Chapter III, and it is not open to us to give any other meaning to that word in view of the opinion delivered by their Lordships.

We must, therefore, hold that any order passed by the Election Tribunal after it has received the petition for trial is an order within the trial; and whether the trial is an abbreviated one or a prolonged one, the order must be taken to be concluding the trial and as such is at the conclusion of the trial.

7. Nothing that has been shown to us in this connexion has made us change the view we propounded in Gulsher Ahmad's case (A), (sup). Indeed, another Bench consisting of one of us (Chief Justice) end Tare J., received and heard an appeal in which such an objection was not even raised: See Moti Ahmad Jafari v. Virendra Singh, P. A. No. 1 of 1958, D/- 27-2-1958. (AIR 1958 Madh Pra 214) (D). We are, therefore, of the opinion that the decision in Gulsher Ahmad's case applies to the present appeal, which is therefore competent.

8. That brings us to the main dispute, and that is whether the petition was liable to be dismissed because the security deposit made by the election-petitioner was not in accordance with section 117 of the Act. It is to be noticed that section 117 has been framed only to safeguard the costs of the opposite party. For that purpose alone the security deposit has to be made, and the manner of making the security deposit has been stated in section 117.

The Tribunal correctly analysed the section and named some of the ingredients thereof. It held that the deposit was defective only in two respects out of five. According to the Tribunal, the requirements are:

(i) The treasury receipt (challan) must show, a deposit of Rs. 1,000/-.

(ii) It must also show that the deposit had been made by the petitioner.

(iii) It should further show that the said deposit was made either in a Government Treasury or in the Reserve Bank of India.

(iv) It should further show that the said deposit was made in favour of the Secretary to the Election Commission.

(v) it should finally show that the deposit was made as security for the costs of the petition.

9. The treasury receipt which was exhibited before the Election Tribunal shows the following facts: It shows that the deposit was made by the present appellant Shivprasad Chandpuria. It shows also that a deposit of Rs. 1,000/- was made by him. It further shows correctly, as is laid down at page 49 of the Handbook for Candidates issued by the Election Commission, that the deposit was made in 'Central (Civil) Section P, Deposits and Advances, Part II, Deposits not bearing interest'.

It also shows the major head as 'C' Other deposit accounts, Civil Deposits -- Revenue Deposits for Election Petition.' What was really the bone of contention between the parties was the description of the deposit, which is given in the deposit receipt and which reads as follows :

'Security deposit for election petition of Bargi Assembly Constituency No. 97 district Jabal-pur, Madhya Pradesh, Refundable by order of the Election Commission of India, New Delhi.'

10. The contention of the answering respondent which prevailed before the Election Tribunal was that this did not show a compliance with the strict requirements of section 117. According to the answering respondent, the deposit had to be made 'in favour of the Secretary to the Election Commission' and not in an account 'refundable by order of the Election Commission of India, New Delhi. There appear to be two matters which the answering respondent relies upon.

The first is that the deposit, if made in any name, is made in the name of the Election Commission and not in the name of its Secretary. The other is that the amount has not been deposited to be at the immediate disposal of the Election Commission, so that the costs as required by section 121 of the Act could be paid forthwith, in case the respondent had incurred such costs. It was also held by the Tribunal that the deposit in question was not shown to be for payment of costs of an election petition.

This last ground, we think, hardly arises, because it was clearly stated in the challan 'that the security deposit was in respect of the Bargi Assembly constituency (No. 97), and further that the deposit was for an election petition. The omission -of the word 'costs' has not much significance. In our opinion, the last requirement of section 117 was complied with. The question is whether requirement (iv), as analysed by the Election Tribunal, was complied with.

11. In P. A. No. 1 of 1958, D/- 27-2-1953: (AIR 1958 Madh Pra 214) (D). (sup.), a Division Bench consisting of one of us (Chief Justice) and Tare J., decided that though the election law is a special law and all its formalities have to be strictly complied with, there are cases in which the formalities can be said to be complied with even though there was some slight error which was capable of rectification. We quote a passage from that decision :

'The use of the word 'shall', combined with the penalty of dismissal which is laid down in sections 85 and 90 (3) of the Act, shows that the requirement has to be faithfully complied with. We must, however, draw a line where the requirements of the law are satisfied and where they are not, it cannot be gainsaid that a Government Treasury receipt cannot be impugned on the ground that it contained some spelling mistakes or the writer had failed to dot some is or cross some t's.

The gist of the matter is that the Election Commission must know that the person seeking to set aside an election has furnished the necessary deposit fr ensuring the costs of the other side in the event of the petition being unsuccessful.'

In our opinion, the test laid down in the earlier Division Bench case was correct, and we endorse It. All that we have to see is whether section 117 has been really and effectively complied with or not. No doubt, as wad pointed out by the other Division Bench, section 117 must be regarded as mandatory, because there is a penalty attached to it for non-compliance; vide sections 85 and 90 (3) of the Act. Still, as was pointed out in the earlier case, if there has been a real and effective compliance with the requirements of section 117, any slight inaccuracy which is capable of easy rectification should not matter.

12. In the present case, there is no doubt whatever that the petitioner, who was required to make the deposit of Rs. 1,000/-, had in fact done so. The deposit was made in a Government Treasury, and it was for the purposes of an election petition was filed being mentioned. What the petitioner, however, did was to make the deposits not in the name of the Secretary to the Election Commission but in the name of the Election Commission. This, in our opinion, does not make any difference.

The Secretary to the Election Commission, could act under the orders of the Election Commission. The costs are payable not by the Secretary to the Election Commission but by the Election Commission and the money being available to the Election Commission would be available for that purpose. We think that the omission to deposit the money in the name of the Secretary to the Election Commission was not fatal to the election petition so long as the money required by the other provisions of the law was available for the purpose for which the deposit was made.

13. This brings us to the last objection which was raised on behalf of the answering respondent, and which was also accepted by the Election Tribunal. It is that the money was not deposited in the name of the Election Commission but was only 'refundable by order of the Election, Commission'. It is stated that this only shows, as the Election Tribunal indeed did say, that the amount is refundable to the petitioner and will not be paid to the Election Commission.

In our opinion, though the wording shows that it is refundable by the order of the Election Commission, the amount must be taken to lie held at the order of the Election Commission. Indeed, the depositor cannot go to the Treasury and withdraw the amount without the order of the Election Commission. That is indeed all that the law or section 117 of the . Act expected of the Petitioner, though the formality of deposit in favour of the Secretary to the Election Commission was not followed.

We may also point out that the words of section 117 are not 'deposit in the name of the Secretary to the Election Commission but only 'in favour of. This clearly shows that the deposit should be made in such a way that nobody could have access to that deposit without the order of the Secretary to the Election Commission. When, instead of the Secretary to the Election Commission, the Election Commission itself is introduced, we think that the petitioner has gone one better rather than one worse.

He had, in fact, placed the amount at the disposal of the only person who had authority under section 121 to apply the amount. We do not think that the word 'refundable' makes any difference. The refund may be to the petitioner if he succeeded or it may be refundable on the order of the Election Commission to whomsoever it designated for the purpose. It is said that the Treasury may bring up a contest, or the petitioner himself in case of failure might raise an objection.

On the other side, the petitioner pointed out that section 121 allowed him to pay the costs even without utilising the security deposit, jn which case the amount could be refunded to him. We think that the real requirements of the law have been fulfilled, though a trivial error is visible, as was the case in F. A. No. 1 of 1953, D/- 27-2-1958: (AIR 1958 Madh Pra 214) (D), (sup.). It is significant that the Election Commission did not make use of this defect to exercise the powers conferred on it by section 85.

Here again, we must pay that the Election. Commission acted correctly, because even if the election law has to be followed strictly, what is required is a real and effective compliance with the mandatory provisions of section 117 of the Act. The rule of real and effective compliance with the law should not toe held to be vitiated by a slight inaccuracy, either irrelevant or capable of rectification.

14. It was contended by Shri Dabir, on the strength of certain cases of their Lordships of the Supreme Court decided in Rameshwar Bhartia V. The Stats of Asssam, AIR 1952 SC 405 (E), and The State of Eihar v. M. Homi, 1955-2 SCR 78: ( (S) AIR 1955 SC 478) (F), that in cases where bonds are taken as security, the bonds have been strictly construed and so this election deposit receipt must also be strictly construed. We think that the analogy does not hold. In most of those cases, the security bond was sought to be enforced against a surety, who, as is described in law, is a favoured debtor', a surety can only be bound according to the strict terms of the bond into which he enters. Here, all that is needed is that the Election Commission should be in possession of a certain sum of money which should be available to it for payment of costs to the successful party. This, in our opinion, was completely achieved by the deposit which, was made by the petitioner.

He had placed the money necessary for the purpose in a Government Treasury for the purpose of the election petition to the order of the Election Commission, Even though it was not a literal compliance of section 117 as is insisted upon by the answering respondent, it was an effective and real compliance with the requirements of the law.

15. In the earlier case, the Division Bench pointed out that section 117 is mandatory and must be faithfully followed. But it was held that the section is followed where there is a real and effective compliance with the Provisions of that section. So long as there is a real and effective compliance with the requirements of that section, we think that the penalty envisaged by the third sub-section of section 90 cannot be imposed.

In the Present case, the Tribunal has found out two technical defects, one of which does not exist and the other is so highly technical as to render the filing of an election petition purely a game of chance. We do not think that with all its mandatoriness, section 117, and particularly the third sub-section of section 90, was intended to be administered. Indeed, section 117 may on a process of reasoning be considered to be mandatory, but Sub-section (3) of section 90, though it speaks in terms as if it is mandatory, may not apply where there is a very slight defect which is capable of rectification.

The other Bench pointed out in the earlier case that the law does not take into account trifles, and here the trifling difference between the 'Secretary' and the 'Election Commission' could not be taken note of by the Election Tribunal. Similarly, we think that the Election Tribunal was in error in thinking that the money was not available to the Election Commission. Indeed, it was available to it and was only refundable under its order.

16. For these reasons and for the reasons already stated in the earlier Division Bench case, which we have approved, we think that this appeal ought to succeed. The appeal is allowed with costs. Counsel's fee nil, as no certificate has been filed. The election petition shall now be heard and disposed of as early as possible.


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