S.P. Mohapatra, J.
1. This miscellaneous appeal is by the appellant Jagannath Dalai under the provisions of the Representation of the People Act, 3.951 (hereinafter called the Act), against the order dated 25-9-1957 of Mr. P. K. Kaul, Sole Member, Election Tribunal, Bhubaneswar. The Appellant,as a matter of extra caution, has filed O. J. C. No. 175 of 1957 under Articles 226 and 227 of the Constitution, which arises out of the same order.
Both the matters were heard together and will be covered by this Judgment. The two matters were heard by a Bench of this Court, and as my learned brothers differed in their opinion on points of law appearing in the separate judgment of each of my learned brothers, the matter has been referred to me under Clause 28 of the Letters Patent as well as under Chapter III, Rule 5 and Chapter XIV, Rule 8 of the Orissa High Court Rules.
2. The facts have been exhaustively narrated in each of the judgments of my learned brothers and it would not servo any useful purpose to give the details of the facts in this judgment of mine. I would, however, give in brief the facts necessary for the purpose of appreciation of the points to be determined. The Berhampur constituency in the district of Ganjam is a double member constituency, the electors were required to elect two members to the Orissa State Legislative Assembly one of the members to represent the general seat and the other to represent the seat reserved for members 'of the scheduled castes.
The last election to this constituency was held in the months of January and February 1957. Respondent No. 2 Sri Lingaraj Panigrahi and Respondent No. 9 Sri Dandapani Das secured the largest number of votes and were duly elected from the general and reserved seats respectively to the Orissa State Legislative Assembly. The results were announced on 8-3-1957.
3. The appellant, an elector, challenged the election of the two successful candidates on grounds, such as, illegal and improper rejection of the nomination papers of respondents 1 and 10; corrupt practices as defined under Section 123 of the Act. He therefore prayed in the petition for declaring the election of the two successful candidates as void.
4. What arc more relevant for our purposes are as follows; An election petition under Section 81 of the Act as amended by the Second Amendment Act of 1956 (Central Act 27 of 1956) is to be filed within 45 days of the announcement of the result of the election. In this particular case the result of the election having been announced on 8-3-1957, the election petition was to be filed on or before 22-4-1957. The appellant, in the present case sent ten copies of his election petition by registered post on 20-4-57 addressed to the Secretary to the Election Commission, New Delhi, which reached the Secretary on 22-4-1957, that is, within time.
This packet of registered post did not, however, contain the Government Treasury receipt showing a deposit of Rs. 1000/- in favour of the Secretary to the Election Commission as security for Costs of the petition; but nevertheless on the same day, that is, on 20-4-1957 the appellant sent the treasury receipt, required under the law, by Air Mail (Express Delivery under certificate of posting) from the Railway Mail Service Post-Office at Cuttack.
The second packet contained three copies of the election petition also along with the treasury receipt and it reached the Election Commission only on 26-4-1957. The second packet which was sent by Air Mail (Express Delivery) was tendered to the appellant while he was at his home at Kududakhandi on 24th April; he refused to accept the packet as it was addressed to the Secretary to the Election Commission, New Delhi. The second packet was then transmitted to the proper addressee and, as I have mentioned above, it reached the Election Commission only on 26th April. The Election Commission without dismissing the petition referred it to the Election Tribunal before whom both parties may argue-the matter more fully so that the question may be determined more satisfactorily by the Tribunal.
The two packets were separately numbered as Election Petition Nos. 191 and 321 of 1957, which were ordered by the Commission to be taken up together. Mr. P.K. Kaul, a retired Judge of the Allahabad High Court, was appointed the sole member of the Tribunal under Section 86 of the Act and the place of trial was fixed to be at Bhubaneswar. The Election Tribunal issued notices on the parties concerned. At the commencement of the hearing on the date fixed a preliminary objection was raised on behalf of the contesting respondents that the election petition should be dismissed under Section 90(3) of the Act on account of the non-compliance of the requirements of Sections 81 and 117 of the Act as amended by the Amending Act of 1956.
5. The Tribunal was pleased to frame a preliminary issue to the following effect:
'Does the petition not comply with the provisions of Sections 81 and 117 of the Representation of the People Act and is therefore liable to be dismissed?' Accordingly he heard both parties and allowed them to adduce evidence; and by his order dated 25-9-57 he dismissed the election petition of the appellant under Section 90(3) on the aforesaid preliminary issue. It is to be mentioned here that the appellant Jagannath Dalai made allegations in his petition that delay in delivery of the second packet by Air Mail was due to the machination of respondent No. 2 who took advantage of his position as the Home Minister of the Orissa State.
This part of the appellant's case was rejected on evidence by the Tribunal and the finding of the Tribunal has been accepted by both of my learned brothers. On the aforesaid facts the following points were raised and argued before the Bench consisting of my learned Brothers Das and Barman, JJ.
(i) Whether the present appeal is maintainable?
(ii) Assuming that it is maintainable, whether the Election Tribunal was right in deciding the entertainability of the election petition under Section 90(3) of the R.P. Act, 1951 (as amended by the Act of 1956) as a preliminary issue without going into the merits of the alleged grounds of the election petition?
(iii) Whether the election petition complied with the provisions of S. 81 or Section 117 of the Representation of the People Act?
(iv) Whether the Election Tribunal was right in dismissing the election petition under Section 90(3) of the Act by reason of non-compliance with any of the provisions of Section 81 and 117 of the Act?
(v) Whether the petitioner-appellant is entitled to any relief in his writ application under Articles 226 and 227 of the Constitution?
My learned brothers have agreed in respect of all the points except Points (iii) and (iv). Both of them have found that the appeal is maintainable; and the Election Tribunal was right in deciding the preliminary issue in the first instance without going into the grounds of election petition.
They have also agreed that the writ petition under Articles 226 & 227 is to be dismissed. I respectfully agree with the view of my learned brothers is respect of the above Points (i), (ii) and (v). But they have differed on points (iii) and iv). My learned brother Das, J. in allowing the appeal has found that there has been compliance of the provisions of Section 81 of the Act, taken by itself, and there has been a substantial compliance of the Drovisions of Section 117 of the Act on the ground that the petitioner had in fact deposited the requisite money in time and had also sent the packet on the 20th April and he could do all that was required of him and when the money was available to the Election Commission there hasbeen a substantial compliance. My learned brother Barman, J., however, has taken a different view that there has been no compliance of the provisions of either of the sections and therefore he has dismissed the appeal.
6. As I have already indicated above, the admitted facts are that on 20th April the petitioner-appellant had sent by registered post addressed to the Secretary to the Election Commission ten copies of his election petition; the registered packet did not contain Government treasury receipt for Rs. 1000/-; he however, sent by another packet on the same day, that is, on 20th April, containing three copies of the election petition and the treasury receipt by Air Mail (Express Delivery under certificate of posting).
The manifest facts are that the first packet by registered post reached the Election Commission on 22-4-1957 that is within time and the second packet reached only 4 days after the time had expired that is on 26-4-1957. There is no doubt that in fact the deposit of Rs. 1000/- as required under law was made on the 20th April. In the above circumstances, therefore, the simple question which requires determination is whether there has been substantial compliance with the provisions of the Act so as to make the petition entertainable by the Election Tribunal or that the Election Tribunal was justified in dismissing the election petition on account of non-compliance of the requisite provisions of the Act.
7. Before discussing the point it is worth while to refer to a few relevant sections of the Act. The relevant part is Part VI. Section 79 is the definition section. Section 80 lays down that no election shall be called in question except by an election petition presented under the provisions of this Part, It is clear from this section that the presentation must be in accordance with the provisions of this Part, that is, Part VI and not merely in accordance with the provisions of the Section dealing with presentation of petition.
Section 81 deals with presentation of petitions, and recites as follows:
'Presentation of Petitions (1). An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the Election Commission by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidates, or if there are more than one returned candidate at the election and the dates of their election are different, the latter of those two dates.
Explanation; In this sub-section, 'Elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
(2) An election petition shall be deemed to have been presented to the Election Commission-
(a) when it is delivered to the Secretary of the Commission or to such other officer as may be appointed by the Election Commission in this behalf--
(i) by the person mating the petition, or
(ii) by a person authorized in writing in this behalf by the person making the petition; or
(b) when it is sent by registered post and is delivered to the Secretary to the Commission or the officer so appointed.'
The presentation must be within 45 days from the date of election of the returned candidates and as it is made clear in Sub-section (2) that the election petition shall be deemed to have been presented when it is delivered to the Secretary to the Commission by the person making the petition, or by a person authorized in writing in this behalf for making the petition, or when it is sent by registeredpost and is delivered to the Secretary to the Commission or the officer so appointed.
The mere sending by registered post does not make it sufficient presentation unless it is delivered to the Secretary to the Commission or the officer so appointed. It will be pertinent to refer here to the provisions of Section 117 of the Act. It is indeed in Chapter V but in the same Part, that is, Part VI, the provisions of which have got to be compliedwith as provided for in Section 80 quoted above. Section 117 runs thus:
'The petitioner shall enclose with the petition a Government Treasury receipt showing that a depositof 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.' It is to be noted, the words used here are 'the petitioner shall enclose with the petition a Government Treasury receipt......'. Sections 81 and 117 readtogether lead me to observe that the presentation of the petition as contemplated under Section 81 is not complete unless it is accompanied with a Government Treasury receipt showing deposit of Rs. 1000/-. The next relevant section is 90 which empowers the Tribunal to dismiss for non-compliance of the said provisions. The relevant provisions are contained in Sub-section (3) of Section 90 running as follows:'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.' The sub-section appears to be mandatory and the Election Tribunal has no discretion to entertain the petition in spite of the provisions of the said section. Section 85 gives the same power of dismissal to the Election Commission. But as I have mentionedabove, the Election Commission chose not to dismiss but to refer the matter to the Tribunal who can dispose of the matter in a much more satisfactory way after hearing the parties and taking evidence if necessary. But it is clear from the provisions of Section 90(3) that in spite of the fact that the petition was not dismissed by the Election Commission the Tribunal is bound to dismiss it if he finds that there has been no compliance with the provisions of the sections mentioned above, that is, Section 81, 82 or 117 of the Act.
8. I should also quote the provisions of Article 329 of the Constitution which run thus:
'Notwithstanding anything in this Constitution (a) the validity of any law.....'
(The provisions relevant for our purpose arecontained in Clause (b))
'(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and insuch manner as may be provided for by or under any law made by the appropriate Legislature.'
It is to be mentioned at the outset, there is no direct case of any High Court or the Supreme Court on this point, that is to say, in no case reported till now an election petition filed under Section 81 of the Act was not accompanied by a treasury receipt of Rs. 1000/-as contemplated under Section 117 of the Act and in no case the receipt reached the Election Commissiononly after the expiry of the period of limitation, that is 45 clays, provided for in Section 81.
But I can get sufficient guidance for the purpose of deciding the present point from very clear observations made by their Lordships of the Supreme Court in the case reported in (1958) SCJ 680: (AIR 1958 SC 687) (A), Kamaraja Nadar v. Kunju Thevar.The two cases, involving similar points, heard by their Lordships, were one from Madras and the other from Bihar. The Madras case is Kamaraja Nadar v. Kanju Thevar (Civil App. Nos. 763 and 764 of 1957 (SG)) and the Bihar case is M. R. Masani v. Member, Election Tribunal, Ranchi (Civil App. No. 48 of 1958) (SC).
The question raised in these appeals was regarding interpretation of Sections 82 and 117 of the Act as stood amended by Central Act 27 of 1956. We are not concerned with the provisions of Section 82, but are solely concerned with the interpretation of Section 117. There in the Madras Case the Election Commission discovered a detect in the deposit of Rs. 1000/- inasmuch as the proper and complete head of account had not been mentioned in the treasury receipt, nor the deposit had been made in favour of the Secretary to the Election Commission as laid down in Section 117 of the Act.
There also the Election Commission did not dismiss the petition on the ground of non-compliance with the provisoins of Section 117 but left the matter to be decided by the Tribunal. The Tribunal found, there was sufficient compliance with the provisions of Section 117 and the finding was affirmed by the High Court and the Supreme Court. In the Bihar case the petitioner, challenging the election, enclosed with the election petition a Government Treasury receipt showing a deposit of Rs. 1000/- by him in the State Bank of India, Ranchi Branch, as security for the costs of the petition which did not mention that it had been made 'in favour of the Secretary to the Election Commission.' He had merely written in the Chalan the words 'security for the costs of the Election Petition, Ranchi East Parliamentary Constituency',
The Election Commission did not dismiss thepetition but referred the matter to be dealt with y the Election Tribunal. The Election Tribunal and the High Court were of the opinion that there was no compliance with the requirements of Section 117 of the Act. But their Lordships of the Supreme Court reversed the decision. It is to be mentioned here, in the Madras Case, evidence was led by the petitioner and it was found that the amount of Rs. 1000/- was kept in the Election Revenue deposit and could not be disposed of without the Election Commission's order and that the money was at the disposal of the Election Commission.
9. The pertinent question that arose for determination of their Lordships is whether the words 'in favour of the Secretary to the Election Commission' appearing in Section 117 of the Act were mandatory or directory. Their Lordships gave the extreme example that if a deposit was made in the name of or in favour of the Election Commission and that the money was available to the Election Commission it would be absurd to think that the provisions of Section 117 have not been complied with.
In the instant case, however, the position is different that the treasury receipt did not accompany the petition under Section 81 at all and neither did it reach the Election Commission before the expiry of the period of limitation. But as I have indicated above, there are certain observations in this judgment of the Supreme Court which serve as clear guidance for the purpose of deciding even the present case. While discussing the provisions of Part VI of the Act at page 687 of the Report (SCJ): (at p. 692 of AIR) their Lordships observed:
'It is clear from the above that the procedure for elections has been thought out with meticulous detail and all the steps from the issue of the notification calling upon a constituency to elect a member or members up to the publication of the results of elections are laid down therein.'
Their Lordships further remarked:
'These provisions go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Courts possess no common law power.'
In very clear terms Bhagwati J., who delivered the leading judgment, observed:
'Section 90(3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose',
that is to say, on the ground of non-compliance of the provisions of sections mentioned in Section 90(3). The most pertinent lines for our purpose are as follows: (after giving the extreme illustration, Bhagwati J. observed:)
'The above illustration is sufficient to demonstrate that the words 'in favour of the Secretary to the Election Commission' used in Section 117 are directory and not mandatory in their character. What is the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else.'
It is clear from these observations that the essence of the provision is that the petitioner should furnish security for the costs of the petition and that the treasury receipt should also accompany the election petition. In a case where the treasury receipt did not accompany the election petition or did not reach the Commission before the period of limitation had expired, it can never be suggested for a moment that the words used in Section 117 'the petitioner shall enclose with the petition a Government treasury receipt showing that a deposit of a sum of Rs. 1000/-has been made him' are directory.
It is quite clear that once the receipt is attached to the petition and that, in fact, the required deposit has been made, which is available to the Election Commission, any defect in filling up the treasury chalan or non-mention of the name of the Secretary to the Election Commission therein is not material and such non-compliance is in respect of some detail and not in respect of the essence of the section. It is significant to note, in the passage in the judgment of their Lordships of the Supreme Court that I have quoted above where they have clearly laid down what is the essence of Section 117, the details like 'in favour of the Secretary to the Election Commission etc.' do not find any mention, that is to say, such details are merely directory, but what they call as essence is mandatory.
As I have already mentioned Sections 80, 81 and 117 of the Act must be read together and when read together they lead to the only conclusion that the election petition is not complete unless the Government Treasury receipt is accompanying the petition. I may observe in this connexion that if really the second packet sent by Air Mail containing the treasury receipt had reached the Commission before the expiry of the period of limitation, the position would have been different and the petition might not have been thrown off as barred by limitation or for non-compliance of the provisions of Section 117.
I am not inclined to attach very great importance to the words 'by registered post' if the Com-mission had accepted, before the expiry of the periodof limitation, the second packet containing the receipt It may amount to substantial compliance. In the instant case, however, the question is not whether there has been a 'substantial compliance' of the provisions of Section 117 as distinguished from 'literal compliance'. In my opinion even there has been no compliance at all of the provisions of Section 117 as the treasury receipt did not accompany the petition under Section 81.
The provisions cannot be construed so liberally as to indicate that mere deposit of the the money as required under Section 117 is sufficient compliance. It, would be, in my view, doing a good deal of violence to the essence of the provisions of the section. 1 fully appreciate the argument advanced by Mr. Misra, appearing for the appellant, that this sort of interpretation would amount to a good deal of hardship to the appellant in the present case; but I can answer to this contention by only quoting the telling words of their Lordships of the Privy Council reported in Nagendra Nath v. Suresh Chandra, AIR 1932 PC 165 (B). The passage appears at page 167:
'The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such, provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.'
I would also refer to a previous decision of their Lordships of the Supreme Court reported in Jagan Nath v. Jaswant Singh AIR 1954 SC 210 (C) Mahajan, C. J. observed:
'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.'
After categorically pronouncing this position of the principle, his Lordship further observed :
'None of this proposition, however, has any application if the special law itself confers authority on tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequence of non-compliance with certain procedural requirements laid down by it. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. Incases where the election law does not prescribe the consequence or does not lay down a penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected.'
In that case indeed there was no compliance of the provisions of Section 82 of the Old Act of 1951 and there was no penal provision for non-compliance of the said requirements under Section 82. Therefore their Lordships ultimately were of the view that the petition should not be dismissed. But in the new Amendment (Central Act 27 of 1956) the provisions of Section 82 have been made mandatory and penalties for non-compliance of the provisions have been included in Section 90 (3) so as to make it compulsory for the Tribunal to dismiss an election petition on account of such non-compliance.
But that apart, the guiding principle is contained in the first part as I have quoted above. In my view, therefore, the election petition under Section 81 presented by the appellant was fundamentally detective on account of non-compliance with the provisions of Section 117 of the Representation of the People Act, 1951 as it stands amended by Central Act 27 of 1956. The defect is fatal and the Tribunal had the only option to dismiss the election petition on the preliminary issue as Section 90 (3) gives no option to the Tribunal to deal with the matter in any other manner. This answers the points of difference arising in the judgments of my learned brothers as formulated in Clauses (iii) and (iv) of the points arising in the case.
10. The appeal, in my view therefore, is dismissed with costs. The O.J.C., has been dismissed by the orders of the Bench of my learned brothers and I am also of the view that the O.J.C. should be dismissed. The hearing fee is assessed at Rs. 250/- (two hundred and fifty).
Mohapatra, Das and Barman, JJ.
11. In view of the majority decision the Miscellaneous Appeal No. 184 of 1957 is dismissed withcosts. Hearing fee is assessed at Rs. 250/- (rupeestwo hundred and fifty). As decided by all the JudgesO. J. C. No. 175 of 1957 is dismissed.