K.L. Bapna, J.
1. At the last General Election for the membership of the Rajasthan Legislative Assembly from the Jaipur Johari Bazar Constituency No. 15, held on 25-2-1957, Shri Satish Chandra Agar-wal was declared a returned candidate on 9-3-1957. Mr. Shah Alim Uddin, one of the unsuccessful candidates, presented an election petition before the Election Commission on 20-4-1957, under Section 81 of the Representation of the People Act, 1951 (Act No. XLIII of 1951).
Besides the returned candidate, Mr. Satish Chanclra Agarwal, four other persons, Mr. Ghaffar Ali, Mr. Kewal Chand, Mr. Shyam Lal Verma and Mr. Arvind Kumar, who were contesting candidates, were made respondents. The prayer in the petition was that the election of respondent No. 1, Mr. Satish Chandra Agarwal, the returned candidate, be declared void, and further that the petitioner, Mr. Shah Alimuddin, who had secured the highest number of valid votes be declared to have been duly elected from the said constituency.
The Election Commission by letter of 1-5-1957, called upon the petitioner, Mr. Shah Alimuddin, to show cause why the election petition be not dismissed, because of the non-joinder of one Mr. Kanhaiyalal Saksena, who was said to be also a contesting candidate. The petitioner gave his explanation, and was personally heard, and the Election Commission passed an order on 10-5-1957, as follows:
'Heard the petitioner who appeared personally.
So far as the main prayer for declaring the election of the returned candidate to be void is concerned, the question of non-joinder of another contesting candidate, Shri Kanhiya Lal, does not arise at all. The same cannot, however, be said in regard to the other prayer by which the petitioner seeks that he himself should be declared as having been duly elected. Since a petition cannot be partly admitted and partly rejected by the Election Commission and since this election petition cannot be summarily rejected as a whole in any case, it is admitted.'
It was thereafter referred to the Election Tribunal constituted for the purpose for trial.
2. On notice being issued, respondent No. 1, Mr. Satish Chandra Agarwal, raised an objection that the application be dismissed under Section 90 (3) of the Representation of the People Act (hereinafter referred to as 'the Act') because of the non-joinder of Mr. Kanhaiyalai Saksena, who was a contesting candidate.
It was urged on behalf of Mr. Shah Alimud-din that Mr. Kanhaiya Lal Saksena was not a contesting candidate, because he had retired from the contest under Section 55A of the Act, and was on that account not a necessary party to the elec-tion petition. An application was also moved by Mr. Shah Alimuddin on 23-7-1957, by which he waited permission to amend his petition so as to delete the relief for declaration that he should be declared to have been duly elected.
A further application was moved that in case the leave was not granted to abandon the said relief, he may be permitted to join Mr. Kanhaiyalai Saksena as a respondent in the petition.
3. The learned Election Tribunal disallowed the two applications, and held the objection as to non-joinder of Mr. Kanhaiyalal Saksena in the election petition to be fatal to that petition. It accordingly dismissed the election petition on 27-8-1957.
4. Mr. Shah Alimuddin has filed this appeal, which is No. 70 of 1957. He also filed a writ petition No. 162 of 1957, in case it is held for any reason that the appeal is not maintainable.
5. The contention, on behalf of the appellant is--
1. that Mr. Kanhaiyalal Saksena was not a contesting candidate within the meaning of Section 82 of the Act, and was not, therefore, a necessary party;
2. that the Election Tribunal had committed error in not permitting the withdrawal of relief No. 2, namely that the appellant should be declared to have been duly elected;
3. that the tribunal had committed error in not permitting an amendment of the petition by joining Mr. Kanhaiyalal Saksena according to the prayer of the appellant; and
4. that in any case the Election Commission being of opinion that the first prayer in the election petition for declaring the election of Mr. Satish Ohandra Agarwal to be void being one which could be tried by the Election Tribunal, the Tribunal could not purport to supersede that order, and had committed error in dismissing the petition as a whole.
6. On behalf of the respondent a preliminary objection was raised that the appeal was not maintainable. On the other questions the order of the lower court was supported.
7. We take up the preliminary question first. The right of appeal is no doubt a creature of the statute. The right of appeal under the Act is provided under Section 116A(1) of the Act It says--
'An appeal shall He from every order made by a Tribunal under Section 98 or Section 99 to the HighCourt of the State in which the Tribunal is situated.'
Section 99 is not relevant for the purpose of this case, but Section 98 may be examined. It says:
'Decision of the Tribunal.--
At the conclusion of the trial of an election petition the Tribunal shall make an order--
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.'
8. The contention on behalf of the respondent is that the dismissal of the election petition in the present case was not done under Section 98 after trial of the election petition on merits, but under Section 90, Sub-section (3) of the Act. and. therefore, it was not an order under Section 98, which alone could be the subject of appeal under Section 116A of the Act.
9. Section 90 relates to the procedure before the Tribunal, according to the headnote of that section. Sub-section (1) of that section directs the applicability of the Code of Civil Procedure relating to the trial of suits subject to the provisions of the Act and the Rules made thereunder. There is a proviso, with which we are not concerned. Sub-section (2) declares that the provisions of the Indian Evidence Act, 1872, subject to the provisions of the Act, shall apply to the trial of an election petition. Sub-section (3) is 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 remaining sub-sections are not relevant for the present appeal. Section 90 directs how the trial is to proceed, and authorises the tribunal to pass certain orders in certain circumstances, but the decision would nevertheless be under Section 98 when the order purports to be the dismissal of the election petition, and thereby the trial is concluded. In our opinion the preliminary point has no force, and the order of the Tribunal dismissing the election petition is held to be appealable under Section 116A of the Act.
10. Now as to merits. The first and the most important question in the present appeal is whether a candidate who withdraws under Section 55A would still be a contesting candidate for the purpose of being joined as respondent under Section 82 of the Act, where the petitioner to an election petition not only wants a declaration that the election of the returned candidate is void, but also claims a further declaration that he himself or any other candidate be declared to have been duly elected.
11. According to the scheme of the Act, candidates have been described variously at various stages. In Section 32 any qualified person is permitted to be nominated as a 'candidate for election'. After nomination, the nomination paper is to be presented to the Returning Officer under Section 33, and deposit of a certain amount has to be made under Section 34.
Section 34 says that a candidate shall not be deemed to be duly nominated for election unless the requisite deposit is made. We have here, therefore, a 'duly nominated candidate'. After scrutiny under Section 36, the Returning Officer isdirected to prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid. Under Sub-section (8) of Section 36, we have therefore 'validly nominated candidates'.
After this, withdrawal of candidature is permitted by Section 37 within a certain period on the expiry whereof the Returning Officer is directed under Section 38 to prepare and publish a list of 'contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates, and who had not withdrawn their candidature within the prescribed period.' Here we have for the first time 'contesting candidates.'
Section 55A permits a contesting candidate, whose name appears in the list prepared under Section 38 to retire within a particular period, and the Returning Officer is directed on receipt of notice of retirement to cause a copy thereof to be affixed to his notice board and to publish the same in the prescribed manner. Sub-section (5) of Section 55A says that--
''Any person who has given a notice of retirement under Sub-section (2) shall thereafter be deemed not to be a contesting candidate for the purposes of Section 52.'
Sub-section (6) says--
'Where by reason of any retirement from the contest under this section, the number of remaining contesting candidates becomes equal to the number of seats to be filled, the returning officer shall forthwith declare all such candidates to be duly elected to fill those seats and countermand the poll.'
Sub-section (7) says--
'Where by reason of any retirement from contest at an election to which the provisions of Section 54 apply, the number of remaining contesting candidates qualified to be chosen to fill the reserved seats becomes equal to the number of such seats, the returning officer shall forthwith declare all those candidates to be duly elected to fill those seats and countermand the poll in so far as it relates to elections for filling those seats and the procedure laid down in Section 53 shall be followed for filling the remaining seat or seats, if any.'
12. The argument on behalf of learned counsel for the respondent is that the language used in these sub-sections can lead to no other inference than that in spite of withdrawal under Sub-section (2) his status continues to be that of a contesting candidate, and that is why it has been, laid down in Sub-section (5) that he will not be deemed to be a contesting candidate for purposes of Section 52.
The contention is that although he continues to be a contesting candidate otherwise, he is not deemed to be so for the purpose of a particular section of the Act. With reference to subsection (6) the contention is that the candidates who go to the poll are described as remaining contesting candidates, which raises an inference that the person who retires is also to be considered to be a contesting candidate, but he does not remain in the field any longer. The same contention is raised with reference to Sub-section (7).
13. On behalf of the appellant attention is drawn to the two provisos to Section 52. In the first proviso it is said that no further nomination shall be necessary in the case of a person who was a contesting candidate at the time of the countermanding of the poll. The second proviso says that--
'No person who has given a notice of withdrawal of his candidature under Sub-section (1) of Section 37 or a notice of retirement from the contest under Sub-section (2) of Section 55A before the countermanding of the poll shall be ineligible for being nominated as a candidate for the election after such countermanding.'
The argument is that a contesting candidate is not required to be renominated under the first proviso, while under the second proviso the person who retires is permitted to be re-nominated. The contention is that the second proviso clearly treats a retired candidate to be not a eon-testing candidate, and, therefore, the provision of Sub-section (5) of Section 55A may have been made by way of abundant caution.
13a. It may be that to avoid all misconception in the interpretation of the main Section 52, Subsection (5) may have been inserted in Section 55A, although apparently if a contesting candidate retires under Section 55A his death would not obviously require countermanding of the poll. Similarly the language in Sub-sections (6) and (7) does not give rise necessarily to the inference sought to be drawn by the respondent.
14. Then we come to Sections 77 and 78 of the Act. Sections 77 and 78 in our opinion furnish a clue to the question in dispute. Section 77 directs every candidate at an election to keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between certain dates, and in a prescribed manner and within certain limits.
Section 78 lays down that every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodge with the returning officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under Section 77.
15. An argument was put forward that the contesting candidate in Section 82 should be only the candidate at an election, which argument was further augmented that only those candidates who had gone to the poll could be said to be the contesting candidates at an election. This argument is not sound, if we beep Sections 77 and 78 in view. The words 'contesting candidate at an election' do not necessarily mean only those candidates who had gone to the polls.
Under Section 77 every candidate who has stood for the election at any stage is directed to keep accounts, while the candidates who have contested upto any stage are required to file the account of their expenditure. Therefore, the words 'contesting candidate at an election' do not mean only those candidates who go to the polls, leaving out those who contested upto a certain stage and then retired from the contest before the poll.
The language used in Section 82 is that ''all the contesting candidates other than the petitioner' have to be made parties in case a declaration is claimed by the petitioner that he himself or any other candidate should be declared to have been duly elected. In our opinion 'all the contesting candidates'' would include not only the candidates who had gone to the poll, but also those who had contested upto a certain stage, after their names were included in the list of contest-Ing candidates under Section 38 of the Act.
After the preparation of the list of contesting candidates under Section 38, the said contesting candidates can take ail steps for contesting the election provided by the Act, and are permitted to 'carry on the contest until for various reasons the contesting candidates or any of them may think fit to retire from the contest and going to the poll.
Having contested the election for some time, they would be contesting candidates, and the use of the words 'all the contesting candidates' in Section 82 indicate that all such persons, whose names are included in the list of contesting candidates under Section 38 are necessary parties where the relief sought is not only that the election of the returned candidate is void, but also that the petitioner or any other candidate should be declared to be duly elected.
16. It was contended by the appellant that the candidates who retire from the contest under Section 55A have no interest in the election after their retirement, and, therefore, there is no point in insisting on their being joined as parties, and the Legislature could not have intended that they should be so joined.
17. Section 97 of the Act permits recrimination by the returned candidate or any other party to the election petition where a declaration is sought that any candidate other than the returned candidate should be declared to be duly elected. This right being limited to the persons who are parties to the application, it became necessary to provide who should be made parties, and who should be the persons who may be permitted to exercise that right.
That right was limited to be exercised by the persons who were the contesting candidates and by adding the word 'all' to the contesting candidates, even those candidates who had contested for a while were given that right by reading Section 82 with Section 97 of the Act, and it may be that this is a sound policy of the Legislature because the claim is not only that the election of the returned candidate be declared void, but also that the petitioner or any other person may be declared to be duly elected.
18. The appellant relied on Rule 20 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, which provided for the correction of the list of the contesting candidates. That provision is for the guidance of the Polling Officer, and cannot change the status of the candidates created by the provisions of the Act.
19. In our opinion, therefore, Mr. Kanhaiya-lal Saksena was a contesting candidate, and should have been made a parly in view of the second portion of the relief that Mr. Shah Ali-muddin should be declared to have been duly elected.
20. It was next contended by the appellant that he should have been permitted to withdraw a part of the relief so as to limit the relief claimed to a declaration that the election of Mr. Satish Chandra Agarwal be declared to be void. It was urged that Section 90, Sub-section (1), made the provisions of the Code of Civil Procedure applicable, and the plaintiff could always withdraw or abandon a part of his relief.
This argument has no substance, for there is special provision for withdrawal under Part VI, Chapter IV of the Act. The withdrawal by a petitioner is not governed by the provisions ofthe Code of Civil Procedure. There are special provisions in the Act in respect of withdrawal, and a discretion is vested in the Tribunal in that behalf.
21. It was next contended that permission should have been given to the appellant to add Mr. Kanhaiyalal Saksena as a party by the Tribunal, The omission to implead Mr. Kanhaiya- Jal Saksena entailed the consequences under Section 90 (3) and if an application were to be treated as having been made when the amendment is to be allowed, it contravenes the provision of Section 81, which prescribes a particular period for presentation of the petitions.
The Tribunal was, therefore, right in reject- ing the prayer for withdrawal of a part of the relief as also for permission to amend the petition by adding Mr. Kanhaiyalal Saksena as a party.
22. It was finally argued by the appellant that the Election Commission having expressed an opinion that the two reliefs could be separated, and while the non-joinder affected only one of the reliefs, the other relief could be tried by the Tribunal, it was urged that the Tribunal in not proceeding to decide the question of the invalidity of the election of Mr. satish Chandra Agarwal went beyond its jurisdiction.
Reliance was placed on Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411 (A). In that case the provisions under consideration of the Supreme Court were different, and the Election Tribunal was not authorised to review the order of the Commission in exercise of the powers conferred by the proviso to Section 85 of the Act as it then stood. Under the amended Act, the power conferred on the Election Commission under Section 85 can be exercised at the first stage.
The language of Sub-section (3) of Section 90 makes it clear that the Tribunal can also exercise that Dower of dismissing a petition in case the petition is not dismissed by the Election Commission under Section 85. The order passed by the Tribunal is, in accordance with the provisions of the Act.
It may be stated that when once an application has been framed with a prayer not only that the election of the returned candidate is void, but claiming a further declaration that the applicant or any other candidate should be declared to be duly elected, the choice as to the frame of the election petition is made, and if it is not according to the provisions of the Act, a certain penalty is attracted to this petition.
The petitioner does not appear to be entitled to break up the reliefs so as to avoid the effect of the non-compliance with the provisions.
23. As a result, we are of opinion that the lower court was right in dismissing the petition, and this appeal fails and is dismissed with costs.