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Moolchand and anr. Vs. Maharaj Kumar Jai Singh - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberElection Appeal No. 97 of 1962
Judge
Reported inAIR1963Raj219
ActsRepresentation of the People Act, 1951 - Sections 80 to 82 and 90(3); General Clauses Act - Sections 13; Constitution of India - Article 329
AppellantMoolchand and anr.
RespondentMaharaj Kumar Jai Singh
Appellant Advocate M.B.L. Bhargava, Adv.; Guman Mal Lodha, Adv.
Respondent Advocate G.L. Agarwal, Adv.
DispositionAppeal allowed
Cases ReferredIn Krishnamurthy Sastri v. Ramamurthi
Excerpt:
- - this position cannot be better stressed than by the observations of their lordships of the supreme court in jagan nath v. a specific procedure having been laid down in section 81(2) of the act, the question involved in the present case may not be directly covered by the code of civil procedure, but it would not be impertinent to refer to certain provisions thereof in order to give a reasonable interpretation to clause (a) (i). 13. now, it is well settled that according to the code of civil procedure, if there are more than one plaintiff in a suit, one of them may present a plaint or an application signed by all of them. ' we might make it clear that the provisions of order 33 are not applicable for the purpose of interpreting section 81(2) of the act, but we have referred to them.....dave, j. 1. this is an appeal by two electors moolchand and nandkishore under section 116a of the representation of the people act, 1951 (which will hereinafter be referred as 'the act') against the order of the section tribunal (single member), jaipur, dated the 15th september, 1962, dismissing their election petition under section 90(3) of the act. 2. it is common ground between the parties that the appellants moolchand and nandkishore were electors for the malpura constituency of the rajasthan legislative assembly. respondent maharaj kumar jaisingh was one of the candidates for election to the rajasthan legislative assembly from the said constituency during the election which was held in february 1962, and he was declared elected. the appellants challenged the validity of the.....
Judgment:

Dave, J.

1. This is an appeal by two electors Moolchand and Nandkishore under Section 116A of the Representation of the People Act, 1951 (which will hereinafter be referred as 'the Act') against the order of the Section Tribunal (Single Member), Jaipur, dated the 15th September, 1962, dismissing their election petition under Section 90(3) of the Act.

2. It is common ground between the parties that the appellants Moolchand and Nandkishore were electors for the Malpura Constituency of the Rajasthan Legislative Assembly. Respondent Maharaj Kumar Jaisingh was one of the candidates for election to the Rajasthan Legislative Assembly from the said constituency during the election which was held In February 1962, and he was declared elected. The appellants challenged the validity of the respondent's election by an election petition which came for hearing before the said Tribunal. Shri C.L. Agarwal appearing as a counsel on behalf of the respondent raised a preliminary objection to the effect that the presentation of the election petition before the Section Commission was not valid inasmuch as the said petition was presented only by Nandkishore in person and not by both the petitioners. It was also urged by him that the petitioners had committed an infringement of the mandatory provisions of Section 81(3) of the Act, because the copy of the election petition, which was served on the respondent, was attested only by Nandkishore and not by Nandkishore and Moolchand. Both these objections found favour with the Tribunal and hence the election petition was dismissed with costs.

3. Learned counsel for the appellants has strenuously urged that the interpretation made by the Tribunal of Section 81(2)(a) and 81(3) of the Act is erroneous and, therefore, it is prayed that its order should be set aside.

4. Learned counsel for the respondent has, on the contrary, tried to support the correctness of the Tribunal's order.

5. Since the decision of the questions involved in this appeal turns upon the interpretation of Sections 81(2)(a) and 81(3) of the Act, it will be proper to reproduce Section 81, which runs as follows:

'81. (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 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,

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 to the Commission or to such other officer as may be appointed by the Election Commission in this behalf -

(i) by the person making the petition; or

(ii) by a person authorised 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.

(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned In the petition and one more copy for the use of the Election Commission, and every such copy shall be attested By the petitioner under his own signature to be a true copy of the petition.'

Before we proceed to examine the arguments which have been put forward by learned counsel for both the parties, it may be observed that both of them have not been able to lay their hands on any authority having a direct bearing on the questions involved in this appeal. Briefly put the substance of the arguments of the appellants' learned counsel is that Sub-sections (2) and (3) of Section 81 of the Act should be reasonably interpreted bearing in mind the scheme of the whole section, while it is urged by learned counsel for the respondent that in view of the provisions of Section 90 (3) of the Act read with Article 329(b) of the Constitution of India, the relevant provisions of Section 81 of the Act should be strictly construed and howsoever harsh the provision of the law may appear, no equitable consideration should be allowed to prevail.

6. It may be conceded at once that we entirely agree with the observation of the learned Tribunal and the argument of the respondent's learned counsel to the extent that the election petition challenging the election of a successful candidate, who is returned by the majority of the electorate, must strictly conform to the requirements of the law. An election contest is a purely statutory proceeding unknown to the Common Law and, therefore, equitable considerations in such matters have no place. Article 329(b) of the Constitution lays down that no election to either House of Parliament or the House or either House of the Legislature of a State shall be called in question except by an election petition. It further enjoins that an election petition should be presented to such authority and in such manner as may be provided for by or under any law made by the appropriate-legislature. Thus, although this article does not by itself refer to a particular authority or to a particular mode. It certainly requires that three conditions must be fulfiled, the first being that there should be an election petition, the second it should be presented to the appropriate authority and the third that it should be presented in the manner provided by law made by the appropriate legislature. Section 80 of the Act further provides that no election shall be called in question except by an election petition presented in accordance with the provisions of part 6 in which the said section appears. This position cannot be better stressed than by the observations of their Lordships of the Supreme Court in Jagan Nath v. Jaswantsingh, 9 Ele L R 231 : (AIR 1954 SC 210), but, at the same time the following observations of their Lordships made in the same case should also be kept in view :

'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.'

One should also bear In mind the remark of their Lordships of the Supreme Court in Pratapsingh v. Shri Krishna Gupta, (S) AIR 1956 S C 140, to the effect that the tendency of the Courts towards technicality Is to be deprecated; it Is the substance that counts and must take precedence over mere form. It would not be out of place to point out at this stage that before the amendment of Section 90(3) of the Act by Act No. 40 of 1961, it was provided in Sub-section (3) of Section 90 that the Tribunal shall dismiss an electionpetition which does not comply with the provisions of Section 81 or 82 or 117 notwithstanding that it has not been dismissed by the Election Commission under Section 85. Thus the non-compliance of the provisions of Section 117 was to be visited with the same penalty and rigour as the non-compliance of the provisions of Section 81or 32.

In Kamaraja Nadar v. Kunju Thevar, 14 Ele. LR 270 ; (AIR 1358 SC 687) the treasury receipt filed with an election petition showed that a deposit was made by the petitioner in the Government sub-treasury as security for the costs of the election petition, but it did not expressly show that it was made in favour of the secretary, Election Commission. The evidence of the head accountant of the treasury in which the money was deposited showed that the amount was kept in the election revenue deposit, that it was at the disposal of the Election Commission, that the Election Commission or anyone authorised by the Election Commission in that behalf could draw the amount and that no one else could withdraw it without such authority. It was held that there was sufficient compliance with the provisions of Section 117 of the Act. It was observed that 'no such literal compliance with terms of Section 117 are necessary as has been contended by learned counsel for the appellants before us'.

Again, in Chandrika Prasad Tripathi v. Shiv prasad Chanpuria, AIR 1959 SC 827 the security was deposited with the condition 'refundable by the order of the Election Commission of India' and on that basis, it was urged that there was no strict compliance of the provisions of Section 117. An argument was raised to the effect that the only power which the Election Commission could exercise, was to refund the amount to the respondent and it would not be competent to direct the amount to be paid to the appellant even if the election petition filed by the respondent was dismissed. Their Lordships repelled this argument and again approved the view taken in K. Kamaraja Nadar's case, 14 Ele. LR 270 : (AIR 1958 SC 687) and held that Section 117 should not be strictly or technically construed and that wherever it is shown that there has been a substantial compliance with its requirements, the tribunal should not dismiss the election petition under Section 90, Sub-section (3) on technical grounds. It transpires from the observations of their Lordships that while the provisions of the law relating to election petitions should be strictly construed, the tendency to be hyper-technical annihilating the real substance of the law, is also to be deprecated, if there is substantial compliance with the requirements of law. It cannot be gainsaid that the literal construction of a statute is one of the most elementary rules of construction and it is the duty of the Court to expound the law as it stands and not to modify, alter or qualify its language. If the words of the statute are in themselvesprecise and unambiguous, no more is necessary than to expound those words in their natural ordinary sense. BUT if there is any ambiguity, then one should keep in view another sound and salutary principle of interpretation pointed out by Maxwell in his book on Interpretation of Statutes in the very opening sentence viz. that 'a statute is the will of the legislature and the fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded 'according to the intent of them that made it'. It other words, the correct interpretation of a statute is to bring out the intention which is conveyed either expressly or impliedly by the language used by the legislature.

7. We may now proceed to examine in this light asto what is the true scope and meaning of Section 81(2)(a)(i), it may be pointed out that Section 81(1) requires that an election petition calling in question any election, should fulfil the following four essential requisites:- (1) It should be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 of the Act (2) It should be presented to the Election Commission; (3) It should be presented by any candidate at such election or any elector and (4) it should be presented within the time given therein. Then follows Sub-section (2) which provides that an election petition shall be deemed to have been presented to the Election Commission, if the conditions mentioned in Sub-section (2) (a) and (b) are fulfilled. The words 'shall be deemed to have been presented' appearing in the opening part of Sub-section (2) are very significant. These words appear to have been knowingly and purposely introduced by the Legislature in order to avoid the technical objections which could have otherwise been made regarding the presentation of the election petition to the Election Commission under Sub-section (1). In other words, if Section 81 were to be interpreted rigorously and If the deeming clause were not inserted in Sub-section (2), then it would have meant that the election petition could not be taken to have been properly presented before the election Commission, even though it were handed over to the secretary, Election Commission. The Election Commission could not, however, be accessible or available to alt the petitioners at all times.

Moreover, Section 81(1) also prescribed the period within which election petition must be presented, the legislature, therefore, had to make it clear as to what would be takers to be the date of presentation of the election petition. Clause (a) of Section 81(2) was, therefore, provided to lay down that an election petition should be deemed to have been presented to the Election Commission when it is delivered by persons mentioned in Sub-clauses (i) and (ii) thereof, to the Secretary to the Commission, or to such other officer as may be appointed by the Election Commission in this behalf. Similarly, clause (b) was enacted to provide facility to the petitioner, in the matter of presentation of an election petition and it was laid down that the election petition would be deemed to have been presented to the Election Commission when it is sent by registered post and is delivered to the secretary to the Commission or the officer so appointed. Thus Clause (a) contemplates the delivery of the election petition to the Secretary or the officer concerned in person and Clause (b) relates to the delivery of the election petition by post. Clause (a) (i) of Sub-section (2) would come into play when the election petition is presented by the person making the petition and Clause (b) (ii) when the election petition is presented by a person authorised in writing in this behalf by the person making the petition.

8. The learned Tribunal Is of the view that the use of the article 'the' before the word 'person' in Clause (a) (i) is of special importance. It has been observed that according to Section 13(2) of the General Clauses Act, 1897 words in the singular include the plural and vice versa, that in the present case, two electors had jointly filed their application and, therefore, 'the person' making the petition in this case were both Moolchand and Nandkishore and not Nandkishore alone and thus the presentation by one was invalid in law.

9. We have given very anxious consideration to this argument, but, with great respect, we find it difficult to agree with this view. It is true that Section 13 of the General Clauses Act, 1897, provides that in all Central Actsand Regulations, unless there is anything repugnant in the subject or context, words in the singular shall include the plural and vice versa and, therefore, the word 'person' which has been used in the singular, would also include the plural, i.e. persons. According to this provision, both Nandkishore and Moolchand would be covered by the term 'person' but the question is whether it would not apply to them individually. It cannot be denied that in a proper context, words used in the singular would include the plural, but, at the same time, they would not exclude the singular. It cannot be gainsaid that if Nandkishore alone had filed the election petition he would have been the person making the petition within the meaning of Clause (a) (1) and in that case, no exception could be taken to the presentation of the petition by him alone.

The question arises whether his position became worse because Moolchand also joined with him in making the petition. It was open to Moolchand to make a separate application, but instead of doing so, he joined with Nandkishore since that was permissible under the law. The provisions of Sections 110 and 112 show that the law contemplates joint application by more than one person and since the validity of the application is not. challenged on that basis, we need not dilate on that point. In our opinion, simply because Moolchand joined with Nandkishore in filing the petition, Nandkishore did not cease to be the person making the petition. When Nandkishore and Moolchand combined together in making the petition, they did not jointly constitute a different person just as they would have done if they had formed a partnership. Clause (a) (i) was drafted for a petitioner in singular person and article 'the' was used therein to particularise the person making the petition. Grammatically 'the' person making the 'petition' would indicate only one person and no more. According to the rules of grammar, it would be incorrect to use the words 'the person' in the sense of 'persons'. It is only because of the special provision in the General Clauses Act that a word used in the singular may be interpreted in its plural sense in a proper context. It is obvious that Section 13 of the General Clauses Act transgresses the rules of grammar, but it had to be provided, because if strict rules of grammar were to be adopted in this sense, a lot of difficulty would have arisen on account of the repetition of number of persons and genders at every step.

10. Learned counsel for the respondent has not been able to satisfy us if it was in the contemplation of the legislature that where several persons jointly make an election petition, all of them should be present at the time of its presentation. On the contrary, we are Inclined to think that the scheme of clauses (a) and (b) points out the intention of the legislature in a different direction. It is clear from the language of clause (b) that it is not absolutely necessary for a person or persons making an election petition to appear before the Election Commission for presenting the election petition. Under clause (b), it is open to the petitioner or petitioners to send the election petition by registered post. It does not enjoin the petitioner that he should himself go to the post office for despatching the registered letter or packet. Similarly, under clause (a) (ii), a person authorised in writing in that behalf, by the person making the petition, may deliver the election petition to the Secretary or the officer concerned. Thus under clause (a) (ii) and clause (b) it is not at all necessary for a petitioner to deliver the election petition personally to the Election Commission. Clause (a) (i) provides that the petitioner may deliver the election petition personally also. We do not see anything in this clause to show that if one or more persons join with him in filing that application, he loses his right to present the application unless the others also accompany him for that purpose. In our opinion, it is not proper to use Section 13 of the General Clauses Act for the interpretation of certain words and then to construe those words in strict grammatical sense so as to give them a meaning different from the one intended by the legislature.

11. It may be observed here that in strict grammatical sense, the word 'when' is an adverb which modifies the verb appearing in the same sentence and generally denotes the period of time. Its meaning according to Black's Law Dictionary, 4th Edn., is 'at what time', 'at the time that' or 'at which time', it may, therefore, be argued that the word 'when' was used in the beginning of clauses (a) and (b) only to denote the point of time at which the election petition should be deemed to have been presented in order to compute the time prescribed in Section 81(1). But, as pointed out in the same dictionary it is very frequently used in law in the sense of 'if. In our opinion, this word seems to have been used in clauses (a) and (b) in the sense of it and when so as to denote both the mode and time of presentation. In short, we are of opinion that it would not be proper to lay undue stress on article 'the'.

12. It may be next pointed out that Section 90 of the Act provides that subject to the provisions of the Act and the rules made thereunder, every election petition should be tried by the Tribunal as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. This shows that the procedure laid down by the Code of Civil Procedure is to be adopted by the Tribunal as nearly as may be possible, unless a different provision appears in the Act or rules. A specific procedure having been laid down in Section 81(2) of the Act, the question involved in the present case may not be directly covered by the Code of Civil Procedure, but it would not be impertinent to refer to certain provisions thereof in order to give a reasonable interpretation to clause (a) (i).

13. Now, it is well settled that according to the Code of Civil Procedure, if there are more than one plaintiff in a suit, one of them may present a plaint or an application signed by all of them. Learned counsel for the respondent has not been able to point out any authority which might have held that any suit or application, other than the pauper application, cannot be presented by one of the plaintiffs or one of the petitioners, if there are more than one plaintiff or petitioner. At the same time, we have not been referred to any provision whereby a plaint may be presented by registered post. It has to be presented either by the party in person or by his agent or pleader. The provisions of clause (b) of Section 81(2) of the Act are thus more liberal than those of the Code of Civil Procedure in the sense that a person making the election petition is permitted to send it by registered post or with any person authorised in writing in that behalf. He need not send it with a recognised agent within the meaning of Order 3, Rule 1 of the Code of Civil Procedure.

14. The provisions of Order 33, Rule 3, Civil Procedure Code, which relate to pauper application are much more: stringent. It is laid down in the said rule that an application for leave to sue in forma pauperis should be presented to the Court by the applicant personally, unless he is exempted from appearing in Court, in which case the application may be presented by an authorised agent who can answer all material questions relevant to the application and who may be examined in the same manner as the partyrepresented by him might have been examined, had such party attended in person. It is obvious that this provision is far more rigorous than Section 81(2) of the Act. in the Code of Civil Procedure, this provision was made in order to enable the Court to find out by examination of the applicant and by putting to him some searching questions, if there is any substance in his pauper application. The Election Commission, under the law, is however not required to examine the person making the petition. We have already pointed out above that it is enough for the petitioner to send the application by registered post and he need not deliver the application in person. We have referred to Order 33, Rule 3, Civil Procedure Code, to show that even in a case covered by that rule, it was held in Shamimuddin v. Amir Hussain, 4 Ind Cas 777 (Oudh), that where only one out of several petitioners presents the application in person, the application should be rejected only as regards those petitioners who do not join him in presenting it in person. The application of the person who presented it before the Court was not dismissed. In Krishnamurthy Sastri v. Ramamurthi, AIR 1957 Andh Pra 654, a learned Judge of the Andhra Pradesh High Court went a little further and held as follows:

'As stated in the rule (Order 33, Rule 3) itself, it is to enable the Court to examine the petitioner, apparently with a view to satisfy itself prima facie that the applicant is a real pauper and that the application is not liable to rejection on any of the grounds mentioned in Rule 5. The rule does not apply in the case of persons who are exempt from appearance in Court. Thus it is a procedural requirement with a specific purpose and if that purpose had been already fulfilled (as it was in this case), non-compliance with it should not be regarded as a basic infirmity affecting the jurisdiction of the Court. It is not a meaningless but nevertheless indispensable formality which can be used as a formidable technical weapon in the hands of the opposite party.'

We might make it clear that the provisions of Order 33 are not applicable for the purpose of interpreting Section 81(2) of the Act, but we have referred to them just to show that even in a case under Order 33, Rule 3 where the provisions of law are more stringent, the view like the one which has been taken by the learned Tribunal in the present case, was not adopted. In the present case, Moolchand was petitioner No. 1 and Nandkishore was petitioner No. 2. When the petition was presented by Nandkishore in person, it could not be dismissed qua him.

15. We have next to consider if it could be dismissed qua Moolchand. We have already pointed out that it was not strictly necessary for Moolchand to accompany Nandkishore. If he had just given in writing on a separate paper that he had authorised Nandkishore to present it on his behalf, the case would have been covered by clause (a) (ii) or if both of them had sent it by registered post, it would have been covered by clause (b). The question arises whether in a case where there are more than one petitioner, is it necessary that the formality of clause (a) (ii) must be strictly observed. Looking to the scheme of the whole of Sub-section (2) we are of opinion that in such a case, each one of the petitioners has an implied authority to present the petition on behalf of all of them. This authority is inherent and evident by the fact that the petition is signed by them all.

16. The position, which then emerges, in our opinion, on reasonable interpretation of Section 81(2) of the Act, is as follows:

17. If the election petition is filed by one petitioner alone, he may either present it in person or get it presented by a person who is authorised by him in writing in thisbehalf, or he may send it only by registered post. Evenwhere several persons jointly file the application, it is opento them to despatch it by registered post and if they thinkthat it should be delivered in person, then one or more ofthem may present it in person and if none of them wantsto go, it may be presented by a person who is authorisedin writing in this behalf. We do not find anything in thescheme of this sub-section showing that where there areseveral petitioners, all of them must be personally presentat the time of the presentation of the election petition, incase the presentation is made under clause (a) (i). If theliteral interpretation, which learned counsel for the respondent has suggested, is adopted and if it is carried to itslogical conclusion, then it may lead to a very undesirable andeven absurd position, as would appear from what we arepointing out presently. Clause (a) (i), as noted above, deals,with physical delivery of the application to the Secretaryto the Commission or the officer concerned by the personmaking the petition. Now, if there are ten or more petitioners and if the application is delivered by only one ofthem, an objection may be raised, according to the literalinterpretation, that it ought to have been delivered by allof them holding the application together in a body. Thiskind of delivery would be ritualistic, ridiculous and at timeseven impossible, if the number of the petitioners is a largeone. Similarly, clause (b) requires that the registered postshould be delivered to the Secretary to the Commission orthe officer so appointed. Now, again if a literal interpretation is invoked, it may be contended in some cases that thepresentation was invalid, because the registered letter wasdelivered to the peon or clerk of the Secretary and not tothe Secretary himself. Thus, looking to the scheme of the-whole Sub-section (2), we are of opinion that in a case whereseveral persons make a Joint petition, a presentation by oneor more of them under clause (a) (i) would be a valid presentation on behalf of himself and others and the electionpetition should not be dismissed simply because ail of themwere not present when the application was presented.

18. Now, coming to Sub-section (3) it may be pointed out that it was inserted by Act No. 40 of 1961. It is obvious that this provision was made in order to cast a duty upon the petitioner to present as many copies of the election petition as there are respondents mentioned in the petition and one more copy for the use of the Election Commission. It was also provided that every such copy should be attested by the petitioner under his own signature to be a true copy of the petition. In a case where the application is presented by only petitioner, there can be no two opinions on the point that it must be attested under his own signature as a true copy of the petition. The question, however, arises whether in a case where there are several petitioners is it necessary that the copies should be attested by all of them. It may be observed that the main purpose of the attestation is to ensure that the copy is a true copy of the original and no more. If one of the several petitioners attests the copies, it is, in our opinion, a substantial compliance of the provisions of Sub-section (3), because attestation by other petitioners would not advance the case any further. Learned counsel for the respondent has not been able to give any reasonable indication to show if it was in the contemplation of the legislature that the copies must be attested by all the petitioners however large their number may be. As pointed out above, this provision was meant only to ensure the correctness of the copy and not to serve as a kind of ritual.

19. We, therefore, allow the appeal and set aside the order of the learned Tribunal. The case may be sent backto the Tribunal for proceeding further in the matter according to law. The appellants will receive costs in this Court.


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