1. This is an application under Arts. 226 and 227 of the Constitution by Madan Mohan praying for the issue of a writ of certioran or other appropriate writ or order in connection with the decision of an election petition against the applicant by the Election Tribunal at Bikaner.
2. The facts, which have led to this application, are these:
3. General elections were held in Rajasthan in January 1952 for the Rajasthan Legislative Assembly. The applicant way a candidate in that election from the Parbatsar (assembly) constituency, and was declared elected after contest. On 9-6-1952, Bankatlal, opposite party, presented an election petition to the Election Commissioner against the election of the applicant. This petition was assigned by the Election Commission to the Tribunal at Bikaner, which consisted of Shri M.P. Asthana as Chairman, and Shri M.C. Bhandari and Shri Goverdhandas T. Gajria as members. Shri Badri Prasad, Kunwar Dalipsingh, Thakur Karansingh and Thakur Shiv Singri opposite parties in the present application were not made parties to the Election petition.
In October, 1952, the applicant objected before the Election Tribunal that as these four persons had not been made parties to the election petition, the petition was not according to law and must be dismissed. The Election. Tribunal, by its order dated 19-11-1952, however, refused to dismiss the petition and instead ordered that these four persons should be made parties to the election petition. This order was carried out and eventually the Tribunal gave judgment on 24-1-1953, declaring the election of the applicant void, and rejecting the further contention of the applicant that as these four persons had been made parties after the period of limitation, the petition should be dismissed as it was not filed within the time prescribed by law.
4. The contention of the applicant before us is that the Election Tribunal is a statutory Tribunal of very limited jurisdiction, and cannot give itself jurisdiction by a wrong decision on any point collateral to the merits of the case upon which its jurisdiction depends, and in as much as the Election Tribunal in this case gave itself jurisdiction by deciding certain collateral points wrongly, its order was without jurisdiction. These collateral points, which the Tribunal is said to have decided wrongly are said to be
'(I) that it assumed jurisdiction in the absence of an election petition presented in accordance with the provisions of Fart 7 of the Representation of the People Act (No. 43 of 1951),
(2) that it acted without jurisdiction in adding the duly nominated candidates as parties subsequent to the filing of the election petition in direct contravention of the mandatory provisions of Section 82 01 Act 43 or 1951,
(3) that it acted in disregard of the provisions of Sections 82, 83, 86, 90 and other relevant provisions of Act 43 of 1961 by applying the provisions of Order 1, Rules 9 and 10, Civil P. C.,
(4) that it acted without jurisdiction in impleading the duty nominated candidates long after the expiry of the proscribed time within which the ejection petition could have been presented in contravention of Section 81 of Act 43 of 1951, read with Rules 119 and 113 of the Representation of the People (Conduct of Elections and Ejection Petitions) Rules, 1951, and
(5) that it acted without jurisdiction in amending the said election petition by adding four pensons already mentioned above as parties, and thus exceeded the power given to it under the law.'
It was, therofore, prayed that the order of the Election Tribunal should be set aside as it was in excess of the jurisdiction conferred on it, and such other order as this court deems fit might be passed.
5. The application has been opposed by the Stats of Rajasthan and the Election Commission, as well as by Bankatlal opposite party, it is objected
(I) that this Court has no jurisdiction to entertain the petition in view of the provisions of Article 329 of the Constitution,
(2) that this Court has no jurisdiction to issue any writ to the Election Commission which is situate in New Delhi, and
(3) that the contentions raised on behalf of the petitioner that the Tribunal had no jurisdiction or exceeded its jurisdiction and the reasons given therefor are incorrect.
6. The first question, that arises for decision, is whether this Court is precluded from dealing with the application under Article 226 in view of the provisions of Article 329. The powers of this Court under Article 226 are very wide and it can issue, throughout the territories in relation to which it exercises jurisdiction, to any person or authority, including in appropriate cases any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certioran, for the enforcement of any of the rights conferred by Part 3 of the Constitution and for any other purpose.
Further Article 227 makes it clear that the High. Court has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, and the only courts or tribunals which are exempted from this superintendence are courts or tribunals constituted by or under any law relating to the Armed Forces. Unless, therefore, there is anything in Article 329 which derogates from these wide powers of this Court, it will have jurisdiction to quash the order of an Election Tribunal sitting in Bikaner which is within the territories in relation to which this Court exercises jurisdiction.
7. Let us then look to Article 329 to find out if there is anything in that article which derogates from the wide powers conferred on this Court under Articles 226 and 227. Article 329 reads as follows : 'Notwithstanding anything in this Constitution,
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court;
(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 in such manner as may be provided for by or under any law made by the appropriate Legislature.'
We are concerned here with Clause (b), for Clause (a) has no application to the circumstances of the present case. Article 329 begins with the words 'notwithstanding anything in this Constitution', and as such the provisions of Article 329 wj>l override the provisions o other parts of this Constitution in matters about which Article 329(b) provides. Under Article 329(b), no election to either House or Parliament, or to either House of a Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.
The argument on behalf of the opposite party is that an election can only be challenged by an election petition, and as such this Court has got no power to issue a writ in matters connected with elections. It is enough to point out that the stage at which this writ petition was made to this Court is after the decision of the election petition by the Election Tribunal. The election in this case was called in question by an election petition which was decided by the tribunal appointed for that purpose. It cannot, therefore, be said that a writ under Article 226 with respect to the decision of the tribunal appointed to try an election petition is covered by the words of Article 329(b). A petition like the present one does not call in question an election. All that it calls in question is the decision of the tribunal with respect to an election petition which had called in question the election.
It is well settled that the power to issue a writ of certiorari can only be taken away by express aegative words (Vide Halsbury's Laws of England, Second Edition, Vol. 9, page 861, para. 1456). We do not find any such express negative words in Article 329(b).
It was urged that the declaration of the result by the returning officer was subject to the decision of an election petition, if any, and therefore the election continued right up to the decision of the Election Tribunal, and this Court, by questioning the decision of the Election Tribunal, was really calling in question the election. We feel that this is stretcning the meaning of the election too far.
In -- 'N.P. Ponnuswami v. Returning Officer, Namakhal Constituency', AIR 1952 SC 64 (A), the stage when an election began came up for consideration in, connection with the powers of the High Court to interfere with the decisions of the Returning Officers at the stage of nomination, and it was held that the word 'election' was used in a wide sense that is to say to connote the entire procedure to be gone through to return a candidate to the legislature. The question of the powers of the High Court under Articles 226 and 227 and of the Supreme Court under Article 136 to deal with decisions of Election Tribunals was, however, not decided in this case, as will be apparent from the following observations at page 71: 'It should be mentioned here that the question as to what the powers of the High Court under Articles 226 and 227 and of this Court under Article 136 of the Constitution may be, is one that will have to be decided on a proper occasion.' These observations were made with respect to decisions of tribunals relating to election petitions. It seems that from the very words of Article 329(b) the election must be deemed to be over with the declaration of the result by the Returning Officer, as it is difficult to conceive that an election can be called in question by an election petition before it is over.
This view is supported by the words of Sections 71, 74 and 76 of the Representation of the People Act (No. 43 of 1951). Section 71 prescribes that the Governor or the Rajpramukh shall notify date or dates on the recommendation of the Election Commission, before which the constituencies must elect members. This clearly suggests that the election must be over by the date notified. Section 74 provides that after the election held in pursuance of the notification issued under Section 71, and after the date or the last of the dates fixed for the completion of the said election, the names of the members elected shall be notified. This again shows that the election is over by the last date fixed under Section 71. Again Section 76 provides for return of election expenses within the prescribed time after every election, it is obvious therefore that the election is over after the candidate js returned, and it is only then that it can be called in question by aa election petition.
What the Election Tribunal does in deciding the election petition is all after the election, and if the decision of the Election Tribunal is challenged under Article 226 as beyond its jurisdiction or in excess of it, it cannot be said that the election is being called in question. What is really being called in question is the decision of the Election Tribunal. This is a very different matter from calling into question the election. In any case, we do not find any express negative words in Article 329(b) taking away our jurisdiction under Article 226 against decisions of Election Tribunals. We are, therefore, of opinion that it is open to the High Court to entertain an application under Article 226 from the decision of an Election Tribunal.
8. The second point, which we have to consider, is whether it is not possible for us to interfere in this case, even though we may be able to entertain the application, because the Election Commission is situate in New Delhi, and we have no territorial jurisdiction there. Reliance in this connection is placed on -- 'Election Commission,. India v. Saka Venkata Rao', AIR 1953 SC 210 (B), in which it was held that the High Court of Madras could not issue any writ under Article 226 to the Election Commission having its offices permanently located at New Delhi. This case is a clear authority for the view that this Court cannot issue a writ, direction or order under. Article 226 to the Election Commission. It is, therefore, urged that as this Court cannot issue any writ, order or direction to the Election Commission at New Delhi, it cannot interfere with the decision of the Election Tribunal, which has been notified by the Election Commission, and according to which the Election Commission is holding a by-election.
The fact that this Court cannot issue any writ, direction or order to the Election Commission is no reason why it should not be able to interfere with the order of the Election Tribunal at Bikaner, if such interference is otherwise warranted. The Election Tribunal has unseated the applicant and has ordered a by-election which the Election Commission will hold in Parbatsar. A Returning Officer will in due course be appointed, who wilV proceed to hold the election. This returning offices will be located in Parbatsar within the territories over which this Court exercises jurisdiction. This officer, who will hold the by-election, will clearly be an authority within the territories in relation to which this Court exercises jurisdiction, and it will be open to this Court to issue any writ, direction or order to this officer. If for example this Court were to come to the conclusion that the Bikaner tribunal exceeded its jurisdiction, it can besides quashing the decision of the tribunal direct the returning officer who is within its jurisdiction, not to hold a by-election.
It was pointed out that the returning officer has not yet been appointed, and is not a party to this petition. As to that 'it is enough to say that, at the best, it may be said that the petition is premature, and the applicant should have waited till after the appointment of the returning officer. But that has nothing to do with the power of this Court to pass appropriate orders in such petitions where proper parties are before it. We cannot, therefore, accept the contention of the opposite party that this Court cannot do anything to the order of the Election Tribunal because it cannot pass an order, writ or direction against the Election Commission at New Delhi. We may, for example, point out that the Union Government is at Delhi, but its officers are working all over India and it has never been suggested that appropriate orders cannot be passed against such officers under Article 226 in proper cases, simply because the Union Government is situate in New Delhi.
It is submitted that we should not do indirectly what cannot be done directly. If the bye-election is to be held within the territories in relation to which this Court exercises jurisdiction by an officer who will be within these territories, this Court will directly in an appropriate case order that officer not to hold the bye-election. There is no question in such a case of this Court doing anything indirectly. We are, therefore, of opinion that merely because the Election Commission is situate in New Delhi, that does not take away our jurisdiction under Article 226 to question the order of an Election Tribunal which was situate within the territories in which this Court exercises jurisdiction.
9. We now come to consider the other points raised by the petitioner in support of his contention that the Election Tribunal exceeded its jurisdiction in adding the four persons already mentioned, and that the petition being defective, the tribunal had no jurisdiction to proceed with it.
The Election tribunals are constituted under S. 86(1) of the Representation of the People Act (No. 43 of 1951) which is as follows:
'If the petition is not dismissed under Section 85, the Election Commission shall appoint an Election Tribunal for the trial of the petition.'
Then there are provisions in the following sections about the personnel of the Tribunal, the place of trial, the attendance of Law Officers, the procedure before the tribunal, and the powers it shall exercise in the course of the trial. It is clear from the perusal of Section 86 and the sections following it that the jurisdiction of the tribunal depends upon the sending of the petition to the tribunal for trial. There is no cutting down of that jurisdiction by any other restriction on its powers.
Section 82 provides that a petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated. It is urged that this is a collateral fact, and a petition, to which all the candidates, who were duly nominated at the election, have not been joined is not a valid petition and the Tribunal has no jurisdiction to try it, and if it finds it defective and not in accordance with Section 82 it must dismiss it.
10. In this connection, reference may be made to the observations of Lord Esher in -- 'Reg. v. Income-tax Commissioners', (1888) 21 QB D 313 (C) which are as follows:
'When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body, it may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction, But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.'
These observations bring out the distinction between two kinds of tribunals, namely (1) those tribunals whose jurisdiction depends upon existence of certain facts, but which have not the power to decide these facts finally for themselves, and (2) those tribunals which have the fullest power to decide all matters for themselves. In the first case, if collateral facts, on which the jurisdiction depends, are decided wrongly, a writ of certiorari would lie, but not so in the second case. (11) In all cases, therefore, of tribunals like the present, it will have to be seen whether they fail within the first class of tribunals, or in the second, and this depends upon the law creating the tribunal. A similar question arose before the Supreme Court about the powers and jurisdiction of the Custodian General under the Administration of Evacuee Property Act.
In -- 'Ebrahim Aboobakar v. Custodian General of Evacuee Property, New Delhi', AIR 1962 SC 319 (D), the learned Judges, after referring to Section 24 of the Administration of Evacuee Property' Act of 1950, by which the Custodian General was constituted as an appellate tribunal, made these observations at page 322:
'Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such, exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, bat by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties.
Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has 'locus standi' to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within class 2 of the classification of the Master of the Rolls.' It was, therefore, held that where the tribunal is constituted in words of the widest amplitude, and the legislature has not limited its jurisdiction by providing that such exercise will depend on the existence of any particular state of facts, the tribunal had full power to decide all questions of fact and law, whether preliminary or otherwise, and if it goes wrong in such decision, no writ of certiorari will lie against it.
12. Section 86 of the Representation of the People Act, 1951, which provides for the appointment of an Election Tribunal has nowhere laid down that its jurisdiction will depend upon a certain state of facts, except that the election petition shall be sent to it for trial by the Election Commission. Once that fact is established and it is undoubtedly so in this case, the Election Tribunal has full jurisdiction to decide all questions of fact and law and comes in the second class of tribunals prescribed by Lord Esher M. R., and no writ of certiorari will lie from its decision even if it be wrong in law, except where it offends against principles of natural justice, or is clearly in excess of its jurisdiction, or there is an error of law apparent on the record.
13. A perusal of various sections in Chapter 6 of the Representation of the People Act (No. 43 of 1951) shows that there is no other fact to be established before the Election Tribunal gets jurisdiction, except that the election petition should be sent to it for trial. Section 81 provides for the presentation of petitions to the Election Commission. Section 82 prescribes who shall be joined as respondents to the petition. Section 83 provides for contents of the petition, and Section 84 for the relief that may be claimed by the petitioner.
Then comes Section 85 which says that if the provisions of Section 81, Section be or Section 117 (which relates to deposit of security) are not complied with., the Election Commission shall dismiss the petition. There is no provision in Section 85 that if provisions of Section 82 are not complied with, the Election Commission shall dismiss the petition. It is, therefore, possible for the Election Commission to appoint an Election Tribunal for the trial of an election petition which may be defective so far as Section 82 is concerned.
14. Section 30 provides for the procedure before the Tribunal, and Sub-section (2) say that every petition shall be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure. Section 90, Sub-section (4) says that 'notwithstanding anything contained in Section 85, the Tribunal may aisrmss an election petition which does not comply with the provisions of Section 81, Section 83 or Section 117,'
Then there is Section 92 which gives certain powers to the tribunal, which are vested in a court under the Code of Civil Procedure.
It has been urged that Section 92 cuts down the powers granted under Section 90(2). We find, however, that Section 92 gives, what may be called certain minimum powers, to the Tribunal, and is not subject to the rules made under the Act. Section 90, Sub-section (2), on the other hand, gives all the powers, which may be necessary for the trial of petitions, and which are to be found in the Code of Civil Procedure, to the tribunal; but this is subject to the provisions of the Act and the rules made thereunder. Section 93 thus provides for the minimum of powers which the tribunal must have if it is to function at all, while Section 90, Sub-section (2) gives it further powers which a court has under me Civil Procedure, but which may be cut down by the rules made under the Act.
15. It is no one's case that the powers given by Section 90, Sub-section (2) have been cut down by any rules, and therefore the powers that a civil court possesses can under Section 90, Sub-section (2) be exercised by the tribunal subject to the provisions of the Act. One such power which a civil court possesses under the Civil Procedure Code is to add parties. It is well settled that parties are of two kinds, namely (1) necessary parties, (2) proper parties. Necessary parties are those parties without whom the trial cannot proceed and if such parties are not made parties within the time limited by law, the suit must fail unless the law allows the time to be extended. Proper parties are such parties whose presence it is desirable to have in the course of a trial; but whose presence is not absolutely essential. If it is possible to give such relief as the nature of the suit admits without the presence of what are proper parties, the court can do so.
16. The question then resolves itself into this whether these four persons, who were added by the tribunal at a late stage, were necessary parties or proper parties to the election petition. If they were necessary parties and if they could not under the law be added after the period of limitation, the Tribunal would be clearly exceeding its jurisdiction in adding them thereafter, and this Court would issue a writ of certiorari even though the law constituting the tribunal is in the widest terms, for it is well settled that where a tribunal has exceeded its jurisdiction, a writ of certiorari would lie.
Reference in this connection may be made to -- 'AIR 1952 SC 319 (D)' where the following observations were made at page 322 with respect to the limits within which a writ of certiorari can issue:
'It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown, before such a writ is issued, that the authority, which passed the order, acted without jurisdiction, or in excess of it, or in violation of the principles of natural justice.'
17. We have, therefore, to see whether these four persons were necessary parties to the election petition in view of the provisions of Section 82. That section provides that all candidates, who were duly nominated at the election, shall be made respondents to the petition. The question immediately arises as to who are candidates duly nominated at the election. The phrase duly nominated candidates have not been defined anywhere in the Act.
In the' rules framed under the Act the phrase 'validly nominated candidate' has been defined as meaning a candidate who has been duly nominated, and has not withdrawn his candidature in the manner and within the time specified in Sub-section (1) of Section 37, or in that sub-section read with Sub-section (4) of Section 39, as the case may be (vide Rule 2(1)(f) ). It may, however, be noted that the phrase 'duly nominated candidate' does not appear anywhere in the Act, and has been coined for the purpose of the rules.
The phrase 'duly nominated' appears in various other sections also. In Section 52 there is a provision that if a candidate, who has been duly nominated under the Act, dies after the date fixed for the scrutiny of nominations and a report of his death is received by the Returning Officer before the commencement of the poll, the Returning Officr shall, upon being satisfied of the fact of the death of the candidate, countermand the poll and report the fact to the Election Commission. Under this section, a question may arise whether a candidate, who was nominated but who withdrew within the time prescribed, can be said to be duly nominated, and whether the poll would have to be countermanded on account of the death of such a candidate. We doubt if the intention was that the poll should not be held, because a candidate who withdrew within the time prescribed, died later on.
In this view, the phrase 'duly nominated candidate' will not include a candidate who withdrew, at any rate, for the purposes of Section 52. In Section 54(6) it is said that references to candidates in that section shall be construed as references to candidates who were duly nominated and who have not withdrawn their candidature in the manner and within the time specified in Sub-section (1) of Section 37. In this sub-section, it seems that the phrase 'duly nominated' has a wider connotation and may include persons who were nominated but later withdrew within time. It is remarkable, however, that, in these two sections, the words are 'duly nominated', and not 'duly nominated at the election' which we find in Section 82, and in the proviso to Section 158(4).
The addition of the words 'at the election' in section 82 must have some meaning, and it seems to us that these words were added in order to make it clear that only those candidates, who went to the poll, were intended to be necessary parties by Section 82. This conclusion is supported by a perusal of Section 158 which provides for return or forfeiture of deposits. Sub-section (1) of Section 158 provides for the return of deposit where a candidate withdraws his candidature, or where the nomination of a candidate is rejected, or where a candidate dies before the commencement of the poll. But, under the proviso to Sub-section (4), where a candidate is duly nominated at a general election in more than one constituency, not more than one of the deposits made by him shall be returned, and the remainder shall be forfeited.
Considering that Section 158(1) provides for return. ol: deposits, witnout any exception, to those who have withdrawn their candidature, or whose nomination paper has been rejected, or who die before the commencement of the poll, it is obvious that the words duly nominated at a general election' in the proviso can only mean those candidates who did not withdraw within the time allowed and actually contested the poll. The significance, therefore, of adding the words 'at an election' after the words 'duly nominated' seems to be to confine these words to mean only those candidates who appear in the list of valid nominations under Section 38. The meaning, therefore, to be attached to the words 'all the candidates who were duly nominated at the election' is all candidates who appear in the list published under Section 38.
We were referred to the view taken by various Election Commissions in this connection. It is enough to say that different Election Commissions have taken different views as to the meaning and effect of Section 82. We may, however, refer to two cases decided by the High Courts in India, which support the view that we have taken. These are - 'Shri Sheo Kumar Pandey v. V.G. Oak', AIR. 1953 All 633 (E) and -- 'Sitaram Hirachand y, Yograjsing Shankarsing', AIR 1953 Bom 293 (F).
In this view of Section 82, necessary parties to an election petition are all such candidates who were duly nominated and did not withdraw. The four persons, who were added by the Election Tribunal, were not, in our opinion, candidates who were duly nominated at the election. It appears that the nomination paper of one of them Shri Badri Prasad was rejected, while Kunwar Daleepsingh, Thakur Karansingh, and Thakur Sheosingh withdrew their nominations within the time prescribed, and did not actually contest the election. They cannot, therefore, be called candidates who were duly nominated at the election. They are therefore not necessary parties under the terms of Section 82, though in a particular case they may become necessary parties in view of the relief claimed, as where the petitioner wants a declaration that he has been duly elected.
As Bankatlal, who filed the election petition, did not claim that he should be declared elected (and he could not do so because he did not stand for election at all), these persons, who withdrew their, nominations, can only be proper parties in this case. It, therefore, the Election Tribunal made them parties to the petition, even, after the time prescribed for the presentation of the election petition, it cannot be said that the tribunal acted in excess of its jurisdiction, for it could have given the relief which it gave in the absence of these persons also.
18. A further consideration of the provisions in Part 6 of the Representation of the People Act, 1951, will also show that non-compliance with S- 82 strictly does not go to the root of the matter, even if it were to be held that all the candidates, who were duly nominated, include candidates whose nominations were valid, but who withdrew within the time limit. We have already referred to Section 85, and there is no provision in that section for the Election Commission to dismiss a petition because it did not comply with Section 82. The argument that the Election Commission would not know who were the duly nominated candidates at a particular election is not of much force because if the intention was to give the same powers to the Election Commission with reference to non-compliance of Section 82, it would have been easy to provide for such information being communicated to the Election Commission by the rules.
Further, Section 90, Sub-section (4) makes it clear that even though the Election Commission is bound to dismiss a petition for certain defects, the Tribunal is not bound to dismiss it for those defects, if the petition has by oversight been sent to the Tribunal for trial. Under Section 90(2) the tribunal may have such of the defects removed as it is permitted by the Representation of the People Act to do. So far as the defects under Section 82 are concerned, a penalty of dismissal is not provided, and the tribunal has, in our opinion, powers of a civil court Which it may exorcise under Section 90, Sub-section (2) subject to the provisions of the Representation of the People Act, 1951, and of any Rules made thereunder.
If the party left out is a necessary party in the sense that without his presence the relief cannot be granted, and if such party cannot be added after the period prescribed under the Representation of the People Act, the Tribunal will refuse to add him and will have to dismiss the petition, for it will be against principles of natural justice to grant relief against a party whose presence is necessary but who is not present before the Tribunal. But if the party is not a necessary but only a proper party, and the relief prayed for can be granted in his absence also, the Tribunal by adding' such a party even beyond the period of limitation is not acting beyond jurisdiction and is merely exercising powers conferred on it under Section 90, Sub-section (2).
19. We are, therefore, of opinion (1) that the Election Tribunal had the jurisdiction to decide all questions under Section 82, and its decision cannot be questioned by a writ in this Court as it was not opposed to principles of natural justice, or in clear excess1 of its jurisdiction and there is no error of law apparent on the record, and (2) that, in any case, the decision of the Election Tribunal is correct
20. The last point, that has been urged, is that the Election Tribunal was invalidly constituted, and as such had no jurisdiction to decide the petition at all. The argument is that two of the members of the Tribunal, namely shri M.P. Asthana and Shri Goverdhandas T. Gajria were not in the list of persons sent by this High Court to the Election Commission under Section 86(2)(a) and (b). Therefore these persons could not be appointed as chairman and member of the Election Tribunal constituted to try an election petition relating to an election in this State. Reliance in this connection is placed on Sections 86(2) and 86(3) of the Act.
Under Section 86(2), two lists are prepared
(a) of persons who are or have been district Judges in the State, and who are in the opinion of the High Court fit to be appointed as members of the Election Tribunal, and
(b) of advocates of that High Court who have been in practice for a period of not less than ten years and who are in the opinion of the High Court fit to be appointed as such members.
Such lists are obtained by the Election Commission from High Courts in India except the High Court of Jammu and Kashmir.
Sub-section (3) says that the Tribunal shall consist of
(a) a chairman who shall be either a person who as or has oeen a judge of a High Court, or a person selected by the Election Commission from the list maintained by it under Clause (a) of Sub-section (2); and
(b) two other members of whom one shall be selected by the Election Commission from the list maintained under Clause (a) of Sub-section (2) and the other shall be selected by it from the list maintained under Clause (b) of that sub-section.
21. It is urged that in order to constitute a tribunal to try an election petition relating to an. election in Rajasthan, the Chairman and the members should all have been from the two lists sent to the Election Commission by the High Court in this State, and that inasmuch as the Chairman and one member in the present case were appointed from lists sent by some other High Courts, the Tribunal was not validly constituted. We have not been able to understand how it can be said that Sub-section (3) to Section 86 makes it incumbent on the Election Commission to appoint a Chairman and members for trying an election petition in a particular state from the lists supplied to it by the High Court of that State. The words in the Slate' in Sub-section 2(a), or the words 'that High Court in Sub-section 2(b) do not mean that the appointments under Sub-section (3) have to be made from the lists submitted by the High Court of the State in which the election took place. Those words have been used because of the opening, words of Sub-section (2) which say that the Election. Commission shall obtain from the High Court of each State'.
Now the High Court of each State can only send a list of district Judges 'in the State', and of advocates on its rolls. It cannot send a list of district judges of some other State, or a list of advocates of some other High Court. These words, therefore, on which emphasis is being laid, have been used merely to make it clear that the High. Court concerned has to send a list of district, judges. from its own State, and a list of advocates from its own rolls and from nowhere else. These words do not control the discretion of the Election Commission to appoint a tribunal from lists submitted to it by any High Court in India.
22. Emphasis is also laid on the words 'the list' appearing in Section 86(3)(a) and (b). It is urged that the use of the words 'the list' means that the chairman and the members have to be from. the lists suoplied by High Court of the particular State in which the election was held. We are of opinion that the use of the definite article 'the' before the word 'list' in Section 86(3)(a) & (b) does not mean that the Election Commission must appoint the chairman and members from the list received from the High Court of the State in which the election was held. The definite article was used in Section 86(3) because the two lists had already been particularised in Section 86(2)(a) and (b).
It may also be pointed out that, under Section 13 of the General Clauses Act, unless there is anything repugnant in the subject or context, words in the singular include the plural and vice versa. Section 86(2)(a) & (b) uses the word 'list' in the singular; but, m view of Section 13 of the General Clauses Act the singular includes the plural, and there is nothing repugnant in the context of this section to show that the words 'the list' mentioned in Section 86(3)(a) and (b) do not mean all the lists maintained under Sections 86(2)(a) and 86(2)(b). It is pointed out that the word 'lists' in plural appears in Section 86(2) where it is provided that the Election Commission shall maintain the lists by matins such alterations therein as the High Court may, from time to time, direct. The plural has been used there, in our opinion, to cover the two kinds of lists mentioned in Sections 86(2)(a) and 86(2)(b). We see no reason, therefore, to hold that Section 86(3)(a) and (b) bears the interpretation which the applicant wants to put on it.
23. A perusal of the proviso to Sub-section (3) would further support the view we have taken. That proviso is thus:
'Provided that where the petition for the trial of which a Tribunal is to be appointed is in respect of an election to the Legislative Assembly or the Legislative Council of a State, no person who belongs to the judicial service of another State shall be selected for appointment as a member of the Tribunal except with the consent of the Government of the other State.' This proviso clearly envisages that persons in list (a) who are in the service of one state can be appointed to a tribunal in respect of an election in another State, provided that the Election Commission takes the consent of the first State in which the intended member serves. It is not contended that Mr. M.P. Asthana and Mr. Goverdhandas T. Gajria are not in the lists sent to the Election Commission by the other High Courts in India. The fact that they are not in the lists sent by this Court would not, therefore, make them ineligible for appointment to an Election Tribunal with respect to an election held in this -State. There is, therefore, no force in this contention, and we reject it.
24. The application for writ is hereby rejected with two separate sets of costs (1) to the Election Commission and the State of Rajasthan, and (2) to Shri Bankatlal. The stay order is withdrawn.