Rajagopala Ayyangar, J.
1. These two sets of Writ Petitions arise out of proceedings for the setting aside of the election and other reliefs prayed for in two Election Petitions. These petitions before us are by the returned candidates and they have been heard together because some of the points raised in them are common.
2. W.P. Nos. 531 and 532 of 1957 are respectively for the issue of writs of certiorari and prohibition by the candidate who was declared elected at the election held for the single member Sattur Constituency of the Madras Legislative Assembly in January-March, 1957. W.P. No. 531 of 1957 seeks the quashing of the order of the Election Tribunal which held the Election Petition before it to be in order and directed an amendment the details of which we shall refer to later, while W.P. No. 532 of 1957 seeks the issue of a direction injuncting the Tribunal from further proceedings with the petition on the ground that the Election Petition not being in order the Tribunal ought to have dismissed it in limine because according to the petitioner, it was beyond its jurisdiction to retain it on its file and to proceed with it. Similarly W.P. Nos. 573 and 574 of 1957 are by the candidate who was returned as duly elected to the single member Salem I Constituency of the Madras Legislative Assembly. W.P. No. 573 of 1957 seeks the issue of a writ of certiorari to quash the order of the Tribunal which held the petition questioning his election, to be in order. W.P. No. 574 of 1957 seeks the issue of a writ of prohibition directing the Tribunal not to proceed further with the Election Petition.
3. It would be convenient to consider first the points raised in W.P. Nos. 573 and 574 of 1957 because all the points raised in them are common to both the sets of petitions.
4. W.P. Nos. 573 and 574 of 1957.--There was a general election to the Madras Legislative Assembly from the single member Salem I Constituency in January-March, 1957. As many as 10 persons filed their nominations as candidates for this election. The date fixed for the scrutiny of the nomination papers was 1st February, 1957 and the Returning Officer after an examination of the several papers held all the 10 nominations to be in order. He accordingly prepared a list of validly nominated candidates as required by Section 36(8) of the Representation of the People Act, 1951, as amended in 1956(which we shall hereafter refer to as the Act) showing all these ten as candidates, whose nominations had been found valid, and affixed this list to his notice board. Under Section 37 of the Act any candidate might withdraw his candidature before three o'clock in the afternoon of the day fixed for such withdrawal (the date thus fixed in the case of the election in the present case being 4th February, 1957). Five of the candidates withdrew their nominations under this provision, with the result that five candidates still remained to contest the election. The poll had been fixed for being taken on 6th March, 1957. Under the procedure which prevailed before the amendments introduced by the Representation of the People (Second Amendment) Act (XXVII of 1956), all these five who had not withdrawn their nominations would have gone to the polls. A change was however introduced by Section 33 of the Amending Act XXVII of 1956 by which a new Section 55-A was introduced into the main Act under which a provision was made for candidates withdrawing from the contest and not going to the polls by a formal notice of retirement given not later than 1 o days prior to the date fixed for the polls. We shall have to deal with the effect of this provision in considerable detail later, but shall proceed with the narrative of what transpired subsequently and which has led to these Writ Petitions, before referring to the scope and effect of the provision for withdrawal. Out of the five candidates who remained after the withdrawals two retired before 23rd February, 1957, with the result that only three of the candidates who had been duly nominated went to the polls. The polling took place as stated before on 6th March, 1957. As a result of the counting of the votes recorded at the polls, the Returning Officer declared Sri Mariappan the petitioner before us as duly elected, he being taken to have-received 24,920 votes as compared with Sri Nedunchezhiyan the first Respondent before us who secured 24,713 votes, the third candidate Sri Samuel getting only 5,487 votes.
5. Section 81 of the Act enacts that an Election Petition calling in question any election may be presented within 45 days from the date of election of the returned candidate by inter alia any candidate at such election. Sri Nedunchezhiyan submitted a petition to the Election Tribunal as required by Section 81(2) of the Act within the time limited. The petition was also accompanied by the deposit of Rs. 1,000 as security for costs required by Section 117 of the Act. The petition was despatched by registered post on 15th April, 1957 and was received by the Election Commission on the next day. The parties impleaded as respondents to this petition were only two. It is not necessary to detail the charges made against the returned candidate or of the allegations on the basis of which the petitioner sought his relief but it is sufficient to say generally that the returned candidate was charged with having been guilty of corrupt practice. There were also allegations that there had been non-compliance with the provisions of the Act and the Rules made thereunder which materially affected the result of the election. But what is of importance having regard to the points raised in these Writ Petitions are the reliefs sought by the petitioner. This was contained in paragraph 22 of the petition and ran in these terms:
The petitioner therefore prays that: (a) the election of the first respondent (Sri Mariappan) be declared void ; and
(b) The petitioner be declared duly elected to the Legislative Assembly of Madras State from 'Salem I Constituency.
(d) and other reliefs.
This petition, which was received by the Election Commission, was numbered as Election Petition No. 74 of 1957 and was scrutinised by the Commission. It thereafter addressed a communication to the election-petitioner on 25th April, 1957 drawing his attention to the fact that the petition appeared to be not in order in that it did not comply with the requirements of Section 82 of the Act because it had omitted to implead the two candidates who had retired from the contest under the provisions of Section 55-A to which we have already referred. The Commission expressed its willingness to hear the election petitioner before any further orders were passed in the petition. The petitioner answered this by a communication, dated 2nd May, 1957, in which he elaborately argued the point as to whether these two candidates who had retired were necessary parties to the petition on the terms of Section 82 and sought to make out that they were not, and asserted that the petition as filed was in order. He however added in paragraph 6 a statement that the defect if any by reason of the non-joinder was curable by necessary amendments to the petition which could be effected after the petition was referred to the Tribunal. In the alternative the petitioner urged that the petition would be in order at least in regard to his prayer for setting aside the election of the returned candidate, even if not in relation to the prayer seeking a declaration that he had been duly elected, and that he would if necessary confine his relief to that contained in prayer (a) of paragraph 22. The Election Commission did not record any decision as to whether the petition was in order or not, but referred the petition to the Election Tribunal under Section 86 of the Act and the District , Judge of Vellore was appointed as the Tribunal to deal with the petition.
6. When the Election Tribunal took up the Election Petition on its file, Sri Mariappan the returned candidate (the first Respondent in the Election Petition) filed before it I.A. No. 103 of 1957 praying that the Election Petition might be dismissed under Section 90(3) of the Act on the ground that the petition was not in order and did not comply with the statutory requirements for the reason that the two candidates who had retired under the provisions of Section 55-A were not made respondents. The election petitioner filed a counter-affidavit and the Election Tribunal by its order, dated 13th July, 1957 dismissed the I.A. holding that the petition was in order. The legality and correctness of this order are challenged in W.P. No. 573 of 1957 which prays for the issue of a writ of certiorari to quash the order and W.P. No. 574 of 1957 seeks the issue of a writ of prohibition directing the Election Tribunal not to proceed further with the petition, the reason again being the same, namely, that the petition as it stands is incompetent and that the Tribunal has no jurisdiction to proceed with it.
7. Two points require consideration for the disposal of these petitions: (a) Did the Election Petition filed by the first Respondent comply with the provisions of the Act and in particular with Section 82 to whose terms we shall refer in an instant. If the answer to this were in favour of the first respondent no further question would arise for consideration, (b) If, on the other hand it was held that on a proper construction of the relevant provisions of the Act, the two retiring candidates should have been impleaded as parties, to the Election Petition and that the Election Petition was defective in not having done so, the question that would immediately arise would be the legal effect of this irregularity. The point that would then arise would be whether the Election Petition had necessarily to be dismissed or whether the Tribunal was vested with jurisdiction to permit an amendment of the petition so as to enable the electionpetitioner to rectify the defect and proceed further with the petition, either by impleading the omitted parties or by giving up the relief which necessitated their joinder. It would be seen from the above that the main question in controversy would be as to the proper construction of Section 82 of the Act. But before referring to it we shall only add this by way of introduction. Article 329 of the Constitution provides:
329 : Notwithstanding anything in this Constitution
(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 by the appropriate Legislature.
The ' law made ' in this regard is contained in the Representation of the People Act, 1951 as amended from time to time. Section 80 of the Act enacts:
80. Election petitions.--No election shall be called in question except by an Election Petition presented in accordance with the provisions of this part' (the relevant part being Part VI headed Disputes Regarding Elections ').
Section 81 specified the grounds upon which and the manner in which an ElectionPetition is to be presented and the time within which this has to be done. Section 82 deals with the necessary parties to such a petition. This section as it stood prior to its amendment in 1956 ran:
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.
The last words of the section were due to the fact that under Section 81 an Election Petition could be presented not merely by a candidate at the election but also by any elector. Section 82 underwent a modification by the Second Amendment Act of 1956 and it is the section as amended that governs the proceedings before us. After the amendment the section now reads:
82. Parties to the petition.--A petitioner shall join as respondents to his petition
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates ; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
As the parties to be impleaded to a petition are under Section 82(a) now linked up with the reliefs sought in it, it is necessary to advert to the provision dealing with these reliefs which an Election Petition may pray for and this is Section 84. This section also underwent some changes in 1956 and it might be necessary to set out the section as it stood before referring to its present form.
Before Afteramendment. amendment.84. Relief that 84. Relief thatmay be claimed may be claimedby the petitioner. by the petitioner:A petitioner may A petitioner may,claim any one of in addition tothe following dec- claiming a declar-larations. ation that the elec-(a) that the el- tion of all or anyection of the re- of the returned can-turned candidate didate is void, claimis void ; a further declaration(b) that the ele- that he himself or anyction of the ret- other candidate has be-urned candidate en duly elected.is void and thathe himself or anyother candidatehas been dulyelected ;(c) that the el-ection is whollyvoid.
It will be noticed that relief (c) in Section 84 as it originally stood has now been deleted and that the two reliefs indicated by (a) and (b) of the then section, are those which might now be claimed and that though the language of the section is now slightly different it introduces no substantial change.
8. Section 85 of the Act enacts:
85. Procedure on receiving petition.--If the provisions of Section 91 or Section 82 or Section 117 have not been complied with, the Election Commission shall dismiss the petition:Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.
9. The only other provision to which it is necessary to refer at this stage is Section 90(3) which runs:
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.
10. The points that arise on these provisions may be briefly stated thus. The election petitioner sought the two reliefs open to him under Section 84, namely, a declaration that the election of the returned candidate was void and also a further and additional declaration that he himself had been duly elected. If the only relief prayed for in the Election Petition was a declaration that the election of the returned candidate was void, the only party who had to be joined as respondent to the Election Petition would be the returned candidates, subject to the addition of other candidates under Section 82(b) if charges of corrupt practice had been made against them. Where however an election petitioner claimed in addition, the further relief set out in the last portion of Section 84, namely a declaration that he himself was duly elected Section 82(a) requires the impleading of all 'the contesting candidates ' as respondents. Up to this stage there is no dispute, but the point in controversy is as to whether a candidate who has retired from the contest under Section 55-A is a contesting candidate' within Section 82(a). If a candidate who has retired is not held to be ' a contesting candidate ' the petition with which we are concerned was filed regularly and would have complied with the requirements of Sections 81, 82 and 117 and could be tried and disposed of by the Election Tribunal in accordance with law. If, on the other hand, the answer to it were in the affirmative, the Election Petition No. 74 of 1957 filed by the first Respondent before us would not have complied with the provisions of Section 82 and would have attracted the terms of Section 85 and Section 90(3) of the Act. Further questions would arise as to the duty and powers of the Tribunal in dealing with petitions irregularly constituted and as to whether the Tribunal was bound to dismiss them in limine or whether it had power to permit amendments so as to bring them into conformity with the provisions of the Act.
11. We shall therefore first address ourselves to the question as to whether a candidate who had retired under Section 55-A was ' a contesting candidate ' within Section 82(a). Before doing so however, it is necessary to advert to the position as it stood under the Act before the amendments effected in 1956.
12. Under Section 36 of the Act as it originally stood the Returning Officer was directed to endorse on each nomination paper his decision accepting or rejecting the same and in cases where the nomination paper was rejected, to record in writing, a brief statement of his reasons therefor. After this scrutiny, the candidates, whose names survived the scrutiny, were under Section 37 permitted towithdraw their candidature before the end of the third day after the date of the scrutiny. Section 38 as it originally stood in 1951 eancted:
The Returning Officer shall immediately after the expiry of the period within which candidatures may be withdrawn under Sub-section (1) of Section 37 prepare and publish a list of valid nominations in such manner as may be prescribed.
Section 82 as it then stood enacted :-We shall repeat the words we have already set out
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.
The question which was debated before the Election Tribunals and the Courts under Section 82 as it then stood was as to whether candidates who had withdrawn from the filed under Section 37(1) after their nomination papers had after scrutiny been found to be valid, were ' duly nominated candidates at the election ' who had to be impleaded so as to satisfy the requirements of Section 82. The Election Tribunals held divided views on this matter and there was also conflict of opinion betvveen the Bombay and the Allahabad High Courts on the one hand See Sitaram v. Yograj Singh : AIR1953Bom293 ; Sheo Kumar v. V.G. Oak : AIR1953All633 ; and the Patna High Court on the other, S.M. Umair v. R.C. Singh I.L.R. 32 Pat. 956 : A.I.R. 1954 Pat. 225. The view which found favour with the learned Judges of the Bombay and the Allahabad High Courts was that candidates who had withdrawn, could not be held to be ' duly nominated candidates at the election ' the emphasis being on the aspect that though they were duly nominated,--because at the scrutiny, their nomination papers were accepted,--they were not candidates at the election since they abstained from going to the polls. On the other hand, the learned Judges of the Patna High Court held that the words ' at the election ' could not be read as synonymous with ' at the polls ' and that as even the withdrawing candidates had participated in the nomination and upto the stage of scrutiny which were all stages in an election, they should be deemed to be ' candidates at the election ' and therefore were necessary parties to an election petition. The correctness of these two conflicting views was raised before the Supreme Court in Bhikoji Keshao Joshi v. Bijlal Nandlal Biyani : 2SCR428 . But the Supreme Court after noting the difference in the views and the reasons on which each was based decided the appeal before it on a different point leaving the question open.
13. The amendments effected in 1956 were possibly designed to end this controversy and to lay down without ambiguity the persons who had to be impleaded.. But it would be seen that though the difficulties caused by the use of the words ' at an election ' were overcome by dropping these words a new one was introduced by the use of the expression ' contesting candidates '. The first place where the expression ' contesting candidates ' occurs in the Act is in Section 38 as amended. In place of Section 38 which has been extracted earlier the section was amended to read:
38.--Publication of list of contesting candidates.--(1) Immediately after the expiry of the period within which candidatures may be withdrawn under Sub-section (1) of Section 37, the Returning Officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period.
(2) The said list shall contain the names in alphabetical order and the addresses of the contesting candidates as given in the nomination paper together with such other particulars as may be prescribed.
14. If there were nothing more in the Act than what was contained in Section 38, the expression ' contesting candidate ' occurring in Section 82 must necessarily be held to include every candidate whose name was included in the list prepared: under Section 38(1). But the matter is complicated by reason of the provision for withdrawal contained in Section 55-A which was introduced by Section 33 of Act XXVII of 1956. As the entire argument on both sides turned on the proper construction of the several provisions contained in Section 55-A we consider it necessary to set out the section in full before proceeding further.
55-A.--Retirement from contest at elections in Parliamentary and Assembly constituencies:
(1) The provisions of this section shall apply in relation to any election in a Parliamentary or Assembly constituency.
(2) A contesting candidate may retire from the contest by a notice in the prescribed form which shall be delivered to the Returning Officer between the hours of eleven o'clock in the forenoon and three o'clock in the afternoon of any day not later than ten days prior to the date or the first of the dates fixed for the poll under Clause (d) of Section 30 either by such candidate in person or by an agent authorised in this behalf in writing by such candidate.
(3) No person who has given a notice of retirement under Sub-section (2) shall be allowed to cancel the notice.
(4) The Returning Officer shall, upon receiving a notice of retirement under Sub-section (2), cause a copy thereof to be affixed to his notice board and also to be published in such manner as may be prescribed.
(5) 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.
(6) Where by reason of any retirement from the contest under the 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 posts and countermand the poll.
(7) Where by reason of any retirement from the 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 befollowed for filling the remaining seat or seats if any.
It will be seen that Sub-section (5) makes a reference to Section 52 which deals with the effect of the death of a candidate before the poll and to which we shall advert a little later.
15. The learned Judge of the Election Tribunal has held that a candidate who has retired from the contest under the provisions of Section 55-A (2) ceased to be a ' contesting candidate ' from the date of his retirement and that consequently he could not be held to be a ' contesting candidate ' within the meaning of Section 82(a) of the Act.
16. The learned Advocate-General who appeared on behalf of the petitioner strongly criticised the reasoning of the Tribunal on the basis of which this interpretation was rested and we therefore consider it proper that we should re-examine the entire provisions in the light of the arguments addressed to us.
17. The steps in the argument of the learned Advocate-General were as follows : Section 38, though not in so many terms, constitutes in effect a definition of the expression 'contesting candidate'. The use therein of the words 'that is to say ' lends support to this construction, namely that by ' contesting candidate ' the Act meant every candidate whose name was included in the list of validly nominated candidates and who had not withdrawn his candidature within the time allowed by Section 37(1). The next question is whether the terms of Section 55-A which made provision for the retirement of a candidate effected any change by way of rendering a ' retired candidate ' a person other than ' a contesting candidate '. His answer was somewhat on these lines. Section 55-A (2) no doubt speaks of a ' contesting candidate ' retiring from the contest by notice in writing, and for the notice of retirement which is irrevocable, being published by affixture to the notice board and also in the Official Gazette, the latter being the result of a prescription under Sub-section (4). If Section 55-A contained no further provision, it might have been possible to hold that a person who was a ' contesting candidate ' at the stage of Section 38 ceased to occupy that character or to answer that description, when he retired, because of the use of the expression ' retiring from the contest' in Section 55-A (2). But that section does not stop there. It goes on to make a specific provision in Sub-section (5) where the statute not merely prescribes but also limits the effect of a retirement under Sub-section (2). Sub-section (5) runs:
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 purpose of Section 52.
The contention of the learned Advocate-General was that this provision had two-fold effect. (1) An implication that but for this specific provision a retiring candidate would be 'a contesting candidate' and (2) this implication being avoided for the purpose of Section 52 alone, in other words, in the absence of such a provision, even for Section 52 a retiring candidate would be a contesting candidate, and that this consequence was avoided by the specific provision in that behalf, and that except for this limited purpose, a retiring candidate was 'a contesting candidate'.
18. It would be seen that this argument involves two steps, which may not each be necessarily dependent on the other. The first is that but for Sub-section (5) a retiring candidate would have been comprehended within the expression of a '' contesting candidate ' in Section 52 and the second that by reason of the fiction involved in the expression ' deemed ' the statute conceived of a candidate, who had retired, as being still a ' contesting candidate ', notwithstanding his retirement from the contest, except for the purposes of Section 52.
19. We shall now proceed to consider the argument we have set out above in regard to both these aspects. The first is whether the absence of such a provision as is contained in Sub-section (5) would have made any difference to the scope and effect of Section 52. The Election Tribunal has in this connection held that in relation to Section 52, Sub-section (5) of Section 55-A should be deemed to have been enacted only ex abundanti cautela and that even without such a specific provision Section 52 would have been construed in the same manner.
20. Section 52 as it originally stood before its amendment in 1956 ran as follows:
Death of candidate before poll.--If a candidate who has been duly nominated under this 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 Officer shall, upon being satisfied of the fact of the death of the candidate, countermand the poll and report the fact to the Election Commission and also to the appropriate authority and all proceedings with reference to the election shall be commenced anew in all respects as if for a new election.
Provided that no further nomination shall be necessary in the case of a candidate whose nomination was valid at the time of the countermanding of the poll:Provided further that no person who has under Sub-section (1) of Section 37 given a notice of withdrawal of his candidature before the countermanding of the poll shall be ineligible for being nominated as a candidate for the election after such countermanding.
The section as amended runs:
52. Death of candidate before poll.--If a contesting candidate dies and a report of his death is received before the commencement of the poll, the Returning Officer....
shall, upon being satisfied of the fact of the death of the candidate, countermand the poll and 'report the fact to the Election Commission and also to the appropriate authority and all proceedings with reference to the election shall be commenced anew in all respects as if for a new election.
Provided 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.
Provided further that no person who has given a notice of withdrawal of his candidature under Sub-section (1) of Section 37 or notice of retirement from the contest under Sub-section (2) of section .'55-A before the countermanding of the poll shall be ineligible for being nominated as a candidate for the election after such countermanding.
We shall now proceed to examine the exact changes which Section 52 has undergone. (1) The opening words of the section : 'If a candidate who has been duly nominated under this Act dies after the date fixed for the scrutiny of nominations 'and a report of his death is received by the Returning Officer' are replaced by 'if a contesting candidate dies and a report of his death is received before the commencement of the poll the Returning Officer shall....'
(2) in the first proviso for the words 'in the case of a candidate whose nomination was valid ' are substituted the words ' in the case of a person who was; a contesting candidate '. (3) In the second proviso after the reference to the withdrawal under Section 37(1) the words ' or a notice of retirement from the contest under Sub-section (2) of Section 55-A ' have been added in the section as amended. It will be seen that the first two changes consist in the replacement of the expression ' candidate duly nominated' by 'contesting candidate ' the last one being the reference to the newly enacted Section 55-A (2).
21. We shall first consider what the effect would have been, if Section 55-A (5) were not there, on the meaning of the expression 'contesting candidate' in Section 52. We have already set out the terms of Section 55-A (2) where the words used are ' retire from the contest ' and we have already adverted to the fact,, that it was not seriously in dispute, that if Section 55-A (5) were not there, the effect of a retirement under Section 55-A (2) would have been to remove the person who retired from the contest from the category of ' contesting candidates '. If this were so, in the first paragraph of the present Section 52 the words 'contesting candidate ' would naturally be understood as meaning 'a contesting candidate who had not retired from contest under Section 55-A (2) '. There is no doubt that the two provisos to Section 52 appear to point to different constructions in their connotation of the expression ' contesting candidate '. The first proviso indicates that a contesting candidate need not file any fresh nomination. If the expression ' contesting candidates ' here, were read as excluding a retired candidate, there seems to be no necessity for the specific provision in the second proviso by which a persosn who had retired under Section 55-A (2) is made eligible to file a fresh nomination, implying thereby that the nomination he originally filed before his retirement would not suffice as a valid nomination for the fresh poll which might take place under the first paragraph of the section. This, however, appears to us not seriously to detract from the conclusion which we are inclined to draw, that even in the absence of Section 55-A (5) the expression ' contesting candidate ' used in Section 52 would mean a candidate who had not retired from the contest under Section 55-A (2).
22. The next point to be considered is as regards the second limb of the argument of the learned Advocate-General, that Section 55-A (5) by implication indicated that except for the purposes of Section 52, a retirement from the contest did not impair a candidate's status or affect his statutory description, as a 'contesting candidate'.
23. We have carefully considered the submissions made to us both by the learned Advocate-General in these petitions as well as Mr. Nambiar who argued the other Writ Petitions, Nos. 531 and 532 of 1957, and we are of the opinion that the Tribunal was right in the view that it took, namely that Section 55-A (5) had not the effect contended for on behalf of the petitioners before us. In arriving at this conclusion we have been greatly impressed by the terms of Section 55-A (2) which refers to ' the retirement from the contest ' and to the manner in which Sub-section (5) itself is worded. The Sub-section does not positively create or indicate afiction. It is expressed in the negative and states that a person who has retired shall not be deemed to be a contesting candidate though it might for the purpose of Section 52. No doubt the ' deeming ' is only for the purpose of Section 52. But from this last feature we find it not possible or reasonable to draw the inference that the section contains a positive provision that for all purposes other than that of Section 52 the person who has given a notice of retirement shall be or shall be deemed to be a 'contesting candidate '. In our judgment, if the counsel for the petitioner is not able to establish this last step, the argument must fail for lack of sufficient words; in the section to sustain such a contention.
24. We shall next proceed to consider whether apart from the argument based' on the ' deeming ' provision in Section 55-A (5) there is basis for the contention that under Section 82(a), a retired candidate is ' a contesting candidate ' within; Section 82(a). Section 82 occurs in Part VI of the Act, and the Part opens with Section 79 containing the definition of the terms used in that part and the twosucceeding ones. Among the terms here defined is the word ' candidate ' which is in these terms:
(b) ' candidate' means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.
Learned Counsel for the respondent faintly suggested--and this was one of the points which was implicit in his argument--that the expression ' contesting candidate ' in Section 82 should be read as a compound made up of two words ' contesting ' and 'candidate' the latter being understood as defined in Section 79(b). The argument was : 'Read the word 'candidate' as defined in. Section 79(b). Qualify and restrict it with reference to the expression 'contesting' and then you reach the position that 'a candidate' who contests is a contesting candidate'. So understood you have to find out whether the person in question did ' contest ' in the election or not, and ' election ' being understood in the sense of the poll, a ' contesting candidate ' within Section 82 would be one who was ' a candidate ' as defined in Section 79(b) and who continued the contest until the poll '. This is somewhat similar to the reasoning of the Tribunal by which it arrived at the conclusion, that a candidate who has retired ceased to be a contesting candidate within Section 82. The Tribunal stated that in the absence of a statutory definition it was ' the popular ' or ' the grammatical ' meaning that had to be attributed to the words ' contesting candidate ', and so understanding them, it held that a candidate, who did not continue the contest until the end of the poll would not popularly be understood as ' a contesting candidate ' and was not therefore ' a contesting candidate ' within Section 82. The learned Advocate-General disputed the correctness of this reasoning in a forceful argument, and in our opinion justifiably. The expression ' contesting candidate ' is not a popular one, having any definite meaning. We do not think that it will be permissible to split this expression into its two components and read the two as if the combination was used in Section 82(a) without reference to the expression as found elsewhere in the enactment.
25. The learned Advocate-General submitted a different approach as the proper one to be adopted for arriving at the meaning of these words. This was a variant of the one we have already referred to. This consisted in treating the expression as having been defined in Section 38(1) of the Act. Section 38(1) was, as we have already pointed out, the first place where the expressionoccurred and it was urged that the use of the expression ' that is to say ' was some if not a sure indication that Section 38(1) should be read as a provision defining the term. If this were a definition--and it is found that Section 82 uses the same expression--then the normal rule of construction would be to understand it as contained in the definition. This method of construction he admitted has however to be applied with reference to the provision in Section 55-A (2) which allowed a candidate to retire from the contest. If Section 55-A (2) stood alone it might have the effect of modifying the content of the expression ' contesting candidate ' in Section 38 so as to render a retiring candidate one who was not a contesting candidate. But the effect of Section 55-A (2) was not absolute or unconditional. It was controlled and its operation restricted by the provisions in Section 55-A (5), which in terms extended the effect of Section 55-A (2) only to Section 52. The result of this restriction on the operation of Section 55-A (2) would naturally and necessarily be that in other cases the definition in Section 38 would prevail.
26. We are unable to accept this argument either. In the first place we find some difficulty in treating Section 38(1) as in truth and effect a definition section. The scheme of the Act as disclosed by its provisions shows that definition clauses have been expressly introduced. Section 2 is in terms the interpretation section, and the definitions contained in it have effect ' throughout the Act, unless the context otherwise required '. The Act also contains other definitions which have application to particular Chapters or particular sections or Sub-sections. For instance Section 9 which occurs in Chapter III of Part II contains definitions whose effect is confined to that Chapter. We have already referred to Section 79 which contains a definition applicable to the use of expressions in Parts VI, VII and VIII. Section 123(5) contains an explanation defining the term ' vehicle ' for the purpose of that, Sub-section. There is a similar explanation of the expression ' agent ' occurring after Section 123(7), the scope of the definition however extending to the entire section and not to the Sub-section, as in the Explanation to Section 123(5). Similar provisions occur throughout the Act, and without being exhaustive we shall content ourselves by a reference to Section 168 which contains a definition applicable to that section only.
27. The learned Advocate-General however submitted that if Section 38 should be treated as defining the expression ' contesting candidate', there was no restriction of that definition to any particular Sub-section, section or Chapter as in the instances we have set out and that consequently the definition ought to be-read as applicable to and as connoting the meaning of the expression wherever it occurred in the Act, unless the context indicated anything to the contrary.
28. It would be seen from the various provisions of the enactment to which we have referred that whenever the framers of the Act considered that they were defining; an expression they said so in express terms and also made clear the scope and operation of the definition they introduced. If this were the basic scheme of the enactment, we find it difficult to treat Section 38 as including also a definition of the words ' contesting candidate '. On the other hand, the submission made on behalf of the respondents, that Section 38 had to be read as merely laying down the duties of a Returning Officer at the stage at which that section occurs and as setting out the contents of a list which he had then to prepare appears to us to be the more reasonable construction to adopt as to the scope of that section. Of course when the expression ' contesting candidate ' is used subsequently, it has to be read in conjunction with and as modified by the provision as to retirement newly introduced in Section 55-A by the amendment effected in 1956. So understood it would mean that if the provision in question where the expression ' contesting candidate ' occurs related to a point of time after the retirement it would exclude a retired candidate but if it related to a period anterior to that date, it would mean any candidate whose name was included in the list published under Section 38.
29. This leads us on to an examination of the several provisions in which the expression ' contesting candidate ' occurs in the Act as amended. The sections in which this expression occurs are Sections 46, 47, 52, 53, 54, 55-A, 78 and 82. We shall now scrutinise these sections with a view to see whether they lead to the inference that when the expression ' contesting candidate ' occurs it must necessarily be taken to include a candidate who has retired, in other words, whether on the scheme of the Act the name in the list of the persons shown as ' contesting candidates ' prepared under Section 38(1) is adhered to as the criterion for understanding the relevant expression.
30. Section 46 enables ' a contenting candidate or his election agent to appoint' in the prescribed manner ' agents ' and ' relief agents ' to act as ' polling agents '. Section 27 of the amending Act substituted the new Section 46 for the old Section 46 in the Act as enacted in 1951. Originally Section 46 opened with the words:
A candidate who has been duly nominated under this Act and who has not withdrawn his candidature in the manner and within the time specified in Sub-section (1) of Section 37.
This section has been replaced by one which runs:
46. Appointment of polling agents.--A contesting candidate or his election agent may appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under Section 25 or at the place fixed under Sub-section (1) of Section 29 for the poll.
Rule 13 of the Representation of the People (Conduct of Election and Election Petitions) Rules, 1956, contains the prescription referred to in Section 46. It runs:
13. Appointment of polling agents.--(:) The number of polling agents that may be appointed under Section 46 shall be one agent and two relief agents.
(2) Every such appointment shall be made in Form 10 and shall be made over to the polling agent for production at the polling station or the place fixed for the poll, as the case may be.
(3) No polling agent shall be admitted into the polling station or the place fixed for the poll unless he has delivered to the Presiding Officer the instrument of his appointment under Sub-rule (2) after duly completing and signing before the Presiding Officer the declaration contained therein.
Rule 13 by its terms or its text does not, it would be seen, throw any light on the question now under consideration, namely whether a polling agent could or could not be appointed by a person who had retired from the contest under Section 55-A (2). But some indication is gatherable as regards the intention of the rule-making authority by the exact place where this provision for the appointment of polling agents occurs among the rules. Rule 16 prescribes the form of the notice of retirement to be given by a candidate and the manner in which that notice has to be published in addition to its being notified on the notice board of the Returning Officer. The fact that the prescription as to the notice of retirement occurs after the rule relevant to the appointment of polling agents might be some indication that polling agents, might be appointed by candidates before their retirement.
31. The effect of the retirement of a candidate on the functions of a polling agent appointed by him is however to be found in Rule 22 which prescribes the persons, who were entitled to be admitted into a polling station. This Rule 22(1)(b) provides for the admission inter alia:
of every candidate, his election agent, and subject to the provisions of Sub-rule (3) of Rule 13, one polling agent of each candidate.
The expression ' candidate ' used in this rule is however to be read in conjunction with the definition in Rule 17 with which the chapter in which Rule 21 occurs, opens. A ' candidate ' is defined there as:
'candidate' means a contesting candidate who has not retired in accordance with the provisions of Section 55-A.
We might at this stage note in passing that under Rule 20 at each polling station a list of contesting candidates is required to be displayed and the contents of this list are specified in Rule 20(1)(b) in the following terms:
20(1)(b): a copy of the list of contesting candidates in Form 7-A (that is the list prepared under Section 38(1)) with suchcorrections, if any, as may be necessary by reason of any candidate or candidates having retired from the contest under Section 55-A.
Under Rule 21 ballot boxes are provided one for each candidate and 'candidate' here means by reason of the definition in Rule 17(b) 'a contesting candidate who has not retired'. If Rule 22 were read in conjunction with the definition in Rule 17(b) and the other provisions we have referred to above, a polling agent of a candidate who has retired would not be entitled to admission into a polling station. This would throw some light upon the question we are now considering and indicate that 'a contesting candidate', who could under the terms of Section 46 appoint a polling agent who could function as such, is confined to that candidate who had not retired. In the case of candidates who had retired, though Section 46 might not lay an embargo on their appointing such agents, the latter cannot function as such at the poll by reason of Rule 22.
32. The next section to be considered is Section 47 the material part of which runs:
47. Appointment of counting agents.--A contesting candidate or his election agent may appoint in the prescribed manner one or more persons but not exceeding such number as may be prescribed, to be present as his counting agent or agents at the counting of votes and when any such appointment is made notice of the appointment shall be given in the prescribed manner to the Returning Officer.
The submission of the learned Advocate-General on the use of the expression ' contesting candidates ' in Section 46 as well as in this section was that they threw no light on the problem now under examination, as these two sections were facultative and not mandatory and that they merely empowered the contesting candidates to do particular acts, which it is their option to do or not, and that in cases where a candidate had retired, he would not exercise the option given in this section, because there was no need for him to do so. We however consider that this is not a proper approach to the question and that these provisions do throw some light on the mind of the draftsman who used the expression 'contesting candidates' in the various sections which we have referred to.
33. Taking Section 47, the prescription referred to in it is under Part II, Chapter III of the Rules. The persons who might be appointed as counting agents and the number of counting agents who could be so appointed are set out in Rule 54. That rule runs:
(1) The number of counting agents that a candidate may appoint under Section 47 shall.... not exceed twelve at the place or each of the places fixed for counting under Rule 53.
'Candidate' is for the purpose of this rule and the other rules occurring in Chapter III defined in Rule 52(b) as 'a contesting candidate' who has not retired in accordance with the provisions of Section 55-A. This is in the same terms as in Rule 17 to which we have adverted. The result therefore is that under the rules a candidate who may appoint a counting agent is one who falls within the definition in Rule 52(b). In other words, this excludes candidates who had retired under Section 55-A from the right to appoint a counting agent under Section 47. If, therefore, the terms of Section 4.7 and the prescription under the rules have to be reconciled, it should be held that the ' contesting candidates ' who could validly appoint counting agents within Section 47 do not include candidates who have retired tinder Section 55-A(2). In line with Rule 22 dealing with admission to polling stations we have Rule 55 dealing with admission to places fixed for counting, and the Returning Officer is permitted by this rule to exclude from the places so fixed all persons except inter alia every ' candidate ' and ' his agents '. Rule 55 (a) occurs in Chapter III, Part II and the expression 'candidate and his agents' has therefore to be understood in the light of the definition contained in Rule 52(b) which excludes the retiring candidate from the definition of candidates for the purpose of that chapter. We feel therefore justified in holding that the expression ' contesting candidate ' in Section 47 has to be understood as not including a retired candidate.
34. We have already discussed the terms of Section 52 and we shall therefore proceed to consider the meaning of that expression in Section 53. The material part of that section runs:
(1) If the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken.
(2) If the number of such candidates is 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.
(3) If the number of such candidates is less than the number of seats to be filled, the Returning Officer shall forthwith declare all such candidates to be elected....
In the context of the other provisions of the enactment, the stage when the provisions of the section could come into play is when the list of contesting candidates is published under Section 38. Under Section 30 the notification by the Election Commission regarding the holding of election has to specify the
* * * * *(d) the date or dates on which a poll shall, if necessary, be taken which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidatures;
The list of contesting candidates prepared under Section 38 contains the names of those candidates whose nomination papers have been accepted after scrutiny under Section 36 and who had not availed themselves of the option to withdraw their nominations under Section 37. If, at that stage, the number of contesting candidates is equal to or less than the number of seats to be filled, naturally no poll takes place, and it is only if the number of contesting candidates is more than the number of seats to be filled up, that there is necessity for a poll, and this is exactly the provision in Section 53. It might be that by reason of retirement the number of candidates who survive to contest, in the sense of going to the polls, are less than the number of seats to be filled. Parliament provided for this contingency by Section 55-A (6) which enacts:
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.
In our opinion Section 53 does not assist the learned Advocate-General in his construction as to the meaning of the expression ' contesting candidate.
35. Section 54 which is the next section in which the expression occurs does not need separate discussion, because its provisions are analogous to Section 53 and the contingencies provided for by Section 55-A (6) in the cases to which Section 53 applies are governed by Section 55-A (7) in relation to the constituencies dealt with by Section 54 and the two provisions are exactly parallel.
36. We have discussed the effect of the several Sub-sections of Section 55-A in full and we shall therefore pass on to Section 78 which requires ' every contesting candidate at an election ' to lodge his account of election expenses with the Returning Officer within the period named in the section. There was considerable argument before us as to the import of the expression ' contesting candidate ' in the section. Section 78 is preceded by Section 77 which requires every candidate at an election to keep accounts of the expenses incurred by him in the election. The words ' candidate at an election ' are wider than ' contesting candidate at an election'. It was submitted to us that Parliament would not have intended that a person who had retired from the contest under Section 55-A (2) was not bound to lodge his return of election expenses and that this section was an indication that the person who 'had retired was a ' contesting candidate '. We are loathe to decide the proper construction of these words in Section 78 when the question is not directly before us. One thing is clear, that the expression is susceptible of either construction contended for by the two sides and it cannot be asserted that on the mere language used, the words must mean to include a candidate who had retired. When the question really requires a decision, the Court would have to take into account not merely the expression ' contesting candidate' but also the further words which follow it, namely 'at an election ' in the light of the views propounded on the meaning of these words, which occurred in Section 82 as it originally stood by the Bombay and the Allahabad High Courts on the one hand and the Patna High Court on the other and also on the implications arising out of the nature of the obligation imposed on candidates under the provision. Further that Rule 132 dealing with the notices to be given by a Returning Officer of the lodging of accounts of election expenses uses the word ' candidate ' as if that were synonymous with a contesting candidate at an election might also have to be taken into account. But as we said earlier that question is not before us and we shall therefore content ourselves by saying that Section 78 as yet furnishes no conclusive indication to determine the problem which we are now investigating.
37. We have next to consider the meaning to be attributed to the expression ' contesting candidate ' in Section 82. The choice, it would be seen, is between the names to be found in the list prepared by the Returning Officer under Section 38(1) and that list as corrected with reference to candidates retiring under Section 55-A (2) as referred to in Rule 20(1)(b). We are of the opinion that it is the corrected list of the ' contesting candidates ' referred to in the rule quoted above that is indicated by the expression ' contesting candidate ' in Section 82. In the first place Section 82 occurs at a stage long after the retirement and after the poll. As we have already seen the general scheme of the enactment read in the light of the rules appears to be to use the expression ' contesting candidate ' as meaning those in the list under Section 38(1) upto the stage of the withdrawal and as exclusive of the retired candidates from and after the stage of retirement. Nor is there any reason why Parliament should have intended to insist upon the impleading of candidates who had retired as parties to an election petition. After all one has to remember that ' retirement ' is in effect, a delayed withdrawal of nomination, and it is difficult to discern any reason why persons who had formally abandoned the contest should be made parties to the petition. Of course, if the words of the provision were clear and pointed to the necessity for such impleading, it would not be for the Court to examine whether there was reason behind the provision or not. But if the words used are, to put it at the highest, ambiguous, it appears to us to be a sound rule of construction to examine whether any purpose could be said to be served by the impleading of such parties, before accepting the contention that the failure to implead them, rendered the petition defective as not being in compliance with the provisions of Section 82 and thereby rendering it liable to be rejected under Section 85 or Section 90(3). We have recorded earlier that despite the absence of a statutory definition, the expression ' contesting candidate ' cannot be given a ' popular meaning.' We have also examined the scope of the explanation of that expression in Section 38. If it has to be viewed as a term of Article in the sense that the ordinary dictionary meaning will not always apply, the phrase ' contesting candidate ' will have to be construed with reference to the context in which the Act uses that expression, principally with reference to the stage to which the section in question applies. The stage for which Section 82 provides precludes, in our opinion the inclusion of a candidate who has retired from the contest within the scope of the expression ' contesting candidate ' as it occurs in it. Applying these tests we have arrived at the conclusion that a person who had withdrawn from the contest under Section 55-A (2) is not a ' contesting candidate ' within Section 82.
38. In this view it becomes unnecessary to consider the argument addressed to-us by the learned Advocate-General as to the duty of the Tribunal, if the petition were defective in that it did not comply with the terms of Section 82. We express. no opinion on the question whether the amendments effected to Section 85 and the language now employed in Section 90(3) effect any change in the law from .what it stood prior to Act XXVII of 1956.
39. The result is that the decision of the Tribunal that the election petition was. in compliance with the provisions of Section 82 of the Representation of the People Act is correct and these petitions fail and are dismissed. There will be no order as to costs.
40. W.P. Nos. 531 and 532 of 1957 :-These two petitions, which are for the issue of writs of certiorari or prohibition in the alternative, arise out of an election petition in relation to an election to the Madras Legislative Assembly from the Sattur Constituency in the district of Ramanathapuram. This is a single member Constituency and 29th January, 1957, was fixed under Section 30(a) of the Representation of the People Act for the filing of nominations. Seven candidates duly filed their nominations. The date fixed for scrutiny under Section 30(b) was 1st February, 1957 and the Returning Officer found all the nominations to be in order. 4th February, 1957, was fixed under Section 30(c) as the last date for the withdrawal of the candidates. Four of the candidates withdrew before the dates specified with the result that there were only three remaining and the names of these three were published by the Returning Officer under Section 38(1). These threewere (1) the petitioner before us, (2) one Sri Jayarama Reddiar and (3) Sri Sundararaja Pillai. Sri Sundararaja Pillai withdrew from the contest by notice duly given and published under Section 55-A (2) with the result that the candidates who went to the polls were the present petitioner and Sri Jayarama Reddiar. The poll was on 4th March, 1957 and at it the petitioner secured 36,400 votes and Sri Jayarama Reddiar 31,683 votes. The Returning Officer thereupon declared the present petitioner as duly elected to the Madras State Assembly.
41. Within the time limited by Section 81, an elector in this constituency Kunju Thevar presented a petition to the Election Commission calling in question the election of the present petitioner. This was numbered as Election Petition No. 147 of 1957 by the Election Commission. The petition was forwarded on 18thApril, 1957 and reached the Commission on 20th April, 1957. In compliance with Section 117 of the Act, Kunju Thevar paid a sum of Rs. 1,000 as security for costs-into the Sub-Treasury at Madurai and enclosed a chalan receipt along with the petition.
42. It might be convenient at this stage to refer to the two irregularities in the frame of the election petition and its presentation which was the subject of argument before us. In the petition as presented to the Election Commission Kunju Thevar had prayed for two reliefs which are thus set out in the concluding paragraph of the petition:
It is therefore prayed that this Honourable Court may be pleased to declare the election of the first respondent (Petitioner here) from the Sattur Constituency as void and further it also prayed that this Honourable Court may be pleased to declare the second respondent (Jayarama Reddiar) as a duly elected candidate in the election with the costs of petitioner and render justice.
The parties impleaded as respondents to this petition were only two, namely the present petitioner and Sri Jayarama Reddiar. Sundaraja Pillai the candidate who withdrew from the contest was not impleaded as a party, This was one item of irregularity,--a non-compliance with the provisions of Section 82(a) as regards the impleading of parties. The other irregularity related to the authority to whose credit the amount of Rs. 1,000 was deposited into the Sub-Treasury at Madurai. Section 117 of the Act enacts:
117. Deposit of Security.--The petitioner shall enclose with the petition a Government Treasury' receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition.
Kunju Thevar made the deposit in the Sub-Treasury of the sum of Rs. 1,000 named in the section as security for the costs of the election petition but in the column relating to the particular head of account towards which the deposit was made, it was not stated that it was in favour of the Secretary to the Election Commission but generally as security for costs of election petition.
43. When the petition was received in this form by the Election Commission, it required Kunju Thevar to show cause why the petition should not be rejected for the reason that a necessary party, namely, Sundararaja Pillai had not been impleaded as a party to the petition. Kunju Thevar replied by a memorandum asserting that his petition as filed was in order. As we shall be adverting to the terms of this memorandum a little later, we are not setting out its contents here. The Election Commission after noting the defect as regards the absence of the name of the Secretary in the receipt enclosed with the election petition, decided not to dismiss the petition under Section 85 for reason, which it is not necessary, to canvass, and referred the petition for enquiry to the Election Tribunal under Section 86, leaving it open to the respondent to raise these points before the Tribunal.
44. After the petition was received by the Tribunal the petitioner before us filed I.A. Nos. 1 and 2 6f 1957 on 22nd June, 1957. I.A. No. 1 of 1957 sought the dismissal of the Election Petition No. 147 of 1957 on the ground that the failure to implead Sundararaja Pillai as a respondent was fatal to the petition and that the Tribunal was bound to dismiss it under Section 90(3) of the Act. I.A. No. 2 of 1957 contained a similar prayer for the dismissal of the election petition for the reason that the deposit receipt for Rs. 1,000 which accompanied the election petition was not in due compliance with Section 117, in that, it was not a receipt in favour of the Secretary to the Election Commission. Kunju Thevar filed counter-affidavits to both these petitions and also himself filed I.A. No. 3 of 1957 by which he prayed for the deletion of paragraph 7(a) of the petition which ran : 'The 2nd respondent (Jayarama Reddiar) would have obtained more votes if the 1st respondent had not resorted to such corrupt practices in the said election'' on the basis of which the further additional relief claiming the seat was founded as also the additional relief in the prayer which ran ' and further it is also prayed that this Honourable Court may be pleased to declare the second respondent as duly elected candidate in the election'. This application was opposed on several grounds by the present petitioner to some of which we would have to advert a little later. The Tribunal heard all those three applications together and while it allowed I.A. No. 3 of 1957 which prayed for the amendment of the election petition dismissed the other two applications by the present petitioner seeking the dismissal of the election petition. It is the legality of these orders that is challenged in the two petitions now before us.
45. The Election Tribunal held on a construction of the relevant provisions that a candidate who had retired from the contest was not a 'contesting candidate' within the meaning of Section 82(a) of the Act. We have already discussed this question in our judgment in W.P. Nos. 573 and 574 of 1957 and we are of the opinion that the Tribunal was correct in the conclusion that it reached. It would follow from this that the application I.A. No. 1 of 1957 was rightly dismissed.
46. I.A. No. 2 of 1957 was dimissed by the Tribunal on the ground that what Kunju Thevar did was a substantial compliance with the requirements of Section 117. It examined the Head Accountant of the Taluk Sub-Treasury, Madurai (Sri Nataraja Pillai) as a witness. This witness explained that the head of the account was indicated in the receipt as 'election R.D.', that is 'a revenue deposit', which was entered in the last column of the receipt. The witness also stated that the column as to the head of account was generally filled up by the clerk at the treasury and that the description in that column that the amount was paid as security for costs of election petition was a sufficient description to classify it as a revenue deposit on election account. On the basis of this evidence the Tribunal held that as the purpose of the security was that the amount must be made available to the Election Commission for payment of costs ordered against the petitioner and as the present amount was in fact available to the Election Commission, the omission of the words 'Secretary to the Election Commission ' was not of any importance and that their absence did not render the deposit one not in compliance with the terms of Section 117.
47. We have already set out the terms of Section 117 and the question for our consideration is whether the Tribunal was in error in holding that there had been a compliance with Section 117.
48. Mr. Nambiar learned Counsel who appeared for the petitioner strongly urged that the terms of Section 85 and Section 90(3) afforded a clear indication that the requirements of Section 117 were mandatory. His further argument was that, when once a provision was mandatory it had to be literally complied with, and that there was no question of the Court having power to treat a substantial performance as a compliance with it. In this connection he stressed the fact that Section 117 required and insisted on four matters: (1) The sum deposited should be Rs. 1,000. The deposit of a lesser sum, he urged, even though it fell short of the named amount by a trifle would not be any compliance with Section 117, and that where there was such a deficit it could not be made up after the period for the filing of an election petition under Section 81 had elapsed. (2) The deposit must be in a Government Treasury or Reserve Bank. This condition also was essential, and if the deposit, for instance, was made in a banking institution other than the Reserve Bank, the petitioner could not claim to have complied with the provisions of the section and cannot be permitted to say when the defect was pointed out, that he would have the amount transferred to the Reserve Bank. (3) The receipt must show the deposit in favour of the Secretary to the Election Commission and the head of account should be as security for costs of the petition. He said that though the second part of it was satisfied by the receipt in the present case, it was not in favour of the Secretary to the Commission and therefore was not in compliance with the statute. (4) It was not sufficient if the receipt was obtained by the petitioner and he kept with himself; it must be enclosed with the petition and must reach the Commission within the time specified in Section 81. Learned Counsel urged that there was no distinction between these four requirements, and that a non-compliance in respect of any one in the sense of there not being a literal compliance with it, was fatal to the maintainability of the petition.
49. In this connection it was pressed upon us that the requirement that the receipt should be in favour of the Secretary to the Election Commission was not inconsequential, and that the statute had made provision in those exact terms, in particular cases, while other language had been used for different situations. Thus it was pointed out that under Sections 118 and 119 on the one hand as contrasted with Sections 117 and 119-A on the other, the person in whose favour the deposit was to be made was not indicated though the duty to make the deposit arose out of an order of the Tribunal. It was therefore urged that when under Sections 117 and 119-A the deposit Was required to be in the name of the Secretary, this should be held to be a mandatory statutory requirement, the non-compliance with which entitled the dismissal of the petition under Sections 85 and 90(3). Our attention was drawn to Moorhouse v.Linney Thorpe v. Linne v. (1885) L.R. 15 Q.B.D. 273 and Scott v. Uxbridge andRickmansworth Railway Company (1866) L.R. 1 C.P. 596, as authorities for the position that non-compliance with the provisions of the Statute was, unless expressly provided otherwise, fatal in election law. We do not consider these authorities of any relevance for the decision of the present question and therefore desist from examining their facts or the principles on which they rest. Learned Counsel also relied on a decision of the House of Lords in Thomas v. Kelly (1888) L.R. 13 A.C. 506, particularly on a passage in the speech of Lord Mac Naughton at pages 519-520. The House was then dealing with the validity of a bill of sale which had departed from the form prescribed therefor by Section 9 of the Bills of Sale Amendment Act, 1882. This amending Act enacted:
A bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void, unless made in accordance with the form in the schedule to this Act annexed.
The document before the Court was not exactly in that form. The question which was debated in the passage relied on was the degree of departure which would render it not ' in accordance with the form'. Lord MacNaughton said:
This section seems to me to deal with form and form only. So purely is it, I venture to think, a question of form that I should be inclined to doubt whether a bill of sale would not be void which omitted the proviso referring to Section 7 though I cannot see that the omission would alter the legal effect of the document in the slightest degree or mislead anybody.. The words of the Act are ' in accordance with the form' not 'in the form'. But then comes the question, when is an instrument which purports to be a bill of sale not in accordance with the statutory form Possibly when it departs from the statutory form in anything which is not merely a matter of verbal difference. Certainly I should say when it departs from the statutory form in anything which is a characteristic of that form.
Mr. Nambiar urged that in the present case the reference to the Secretary to the Election Commission was within the words quoted above 'characteristic of the form ' and that the omission of that name from the receipt was a non-compliance with the terms of Section 117, drawing to the petition the penalty of dismissal provided for in Section 85 and Section 90(3) of the Act.
50. We are wholly unable to accept the contention, that the informality complained of, renders the deposit one, not in accordance with the terms of Section 117. Even the strict compliance with the terms of the section which is all that the mandatory nature of the provision would call for would not justify the construction urged by learned Counsel for the petitioner. Take for instance the case of the amount of deposit. Section 117 requires that this sum should be Rs. 1,000. A deposit of a lesser sum would certainly not be a compliance with this provision. But suppose the petitioner deposited a sum in excess of Rs. 1,000, say Rs. 1,500. Could it be said that this was a non-compliance with the terms of Section 117 which required a petitioner to deposit Rs. 1,000? A literal construction of the section might mean that it required a deposit of Rs. 1,000, neither more nor less, and that a deposit in excess suffered from the same infirmity of departure from form, as the deposit of a lesser sum. We are satisfied that strict compliance of the section does not require the sort of literal compliance which the above instance illustrates. Similarly learned Counsel cannot contend that clerical errors in the receipt, say errors com-mitted in spelling, would render the receipt one not in conformity with the section. In our opinion the purpose which the deposit is intended to fulfil is a legitimate matter which can and ought to be taken into account in approaching the problem as to whether there has been a compliance with Section 117 or not. This purpose is to be found in Section 121, where if payment of costs is ordered by the Tribunal, the amount in deposit is made available by the Election Commission to satisfy such order. Approached from this aspect the question we put to ourselves is, was the amount deposited in such form that it is available to the Commission for the payment of costs to the successful party in case an order to that effect was passed by the Tribunal. In the present case it was not in dispute that notwithstanding the absence of the name of the Secretary to the Commission in the receipt, the amount, having regard to the other entries in the receipt, was treated as a credit to the Election Commission and was available to the respondent in the election petition which Kunju Thevar had filed. In these circumstances we hold that the Tribunal was right in holding that the terms of Section 117 were complied with and in dismissing the application No. 2 of 1957.
51. The next point raised by learned Counsel for the petitioner was as regards the order of the Tribunal allowing the amendments prayed for by I.A. No. 3 of 1957. Four grounds were urged against the propriety or legality of this order: (1) The ground upon which the amendment was allowed was that paragraph 7 (a) and the prayer seeking the further relief, that Jarayama Reddiar should be declared, elected,had been included in the petition by mistake, without the knowledge of Kunju Thevar. Learned Counsel urged that there was no material on which this finding as to mistake could rest. (2) The Tribunal had no jurisdiction to amend the petition or permit the petition to be amended, because the election petition itself was one not in accordance with law as complying with the statutory requirements of Section 82 and Section 117 of the Act and that the power to amend extended only to petitions which were in proper form conforming to the requirements of the Act. (3) The Tribunal had no jurisdiction to grant the amendment because by the date of the application for amendment the time within which an election petition could be filed under Section 81 of the Act had long passed. (4) An amendment by which the prayer for further relief was given up was tantamount to the withdrawal of a portion of the petition which attracted the provisions of Sections 108 to 111 of the Act, and that the Tribunal erred in permitting this withdrawal without observing the statutory procedure there prescribed.
52. The first of the grounds of complaint which we have set out above arises out of the basis upon which the Tribunal has passed its order allowing the amendment. This is stated in paragraph 18 of the order in these terms:
It is very satisfactory to note that the senior and junior counsel for the petitioner confessed their mistake in the matter and the learned Counsel for the 1st respondent very fairly did not question the truth of their version as to the circumstances under which paragraph 7-A and the latter part of the prayer happened to find a place in the petition. In this view, these portions should be regarded as not intended to form part of the petition and not having really existed at any time, and so regarding it, the petition is merely one with a prayer for a declaration that the election of the 1st respondent as a candidate is void and if that is so, no question of defect of parties under Section 82 at all arises. I believe the version of the accidental mistake pleaded on behalf of the petitioner and hold that the petitioner never meant to include in the petition either paragraph 7-A or the relief for a declaration that the and respondent was duly elected.
Learned Counsel for the petitioner subjected this paragraph to very severe criticism on the ground that the case of accidental mistake mentioned in the paragraph was never even alleged by Kunju Thevar. In our opinion this criticism is fully justified. The petition presented to the Election Tribunal contains paragraph 7(a) in manuscript and the relief portion seeking the further declaration regarding the election of Jayarama Reddiar is in type. The petition bears the signature in English of Kunju Thevar in two places both at the end of the petition and in the affirmation paragraph. In the affirmation itself it is not stated that the contents of the petition were translated to Kunju Thevar and on the other hand it proceeds on the basis that Kunju Thevar was acquainted with English and had signed and verified knowing its contents. The Election Commission issued a notice to Kunju Thevar asking him to show cause why the petition should not be dismissed for non-compliance with Section 82 in that Sundararaja Pillai was not impleaded to the petition under which a further declaration as regards Jayarama Reddiar had been sought. On receipt of this communication a memo, was filed on his behalf explaining why the petition was in order. In its paragraph 3 he stated:
As the interval is too short between 8th May, 1957 (when Kunju Thevar received a communication from the Election Commission) and 10th May, 1957 (on which he was asked to show cause) to allow engagement of counsel for showing cause the petitioner is obliged to send this explanation by registered post under Section 82 of the Representation of the People Act. The petitioner will have to implead all the contesting candidates only if the petitioner wants a declaration that he himself or any other candidate has been duly elected.
4. When no such further declaration is claimed only the returned candidates are necessary parties to the election.
5. It is submitted that under Section 82 candidates who have either withdrawn their nomination or retired from the contest under Section 55-A are not necessary parties to an election petition.
We have already adverted to the fact that the Election Commission referred the petition to the Tribunal giving an opportunity to the respondent to raise these points by way of preliminary objection.
53. The next stage was of course the filing of the application I.A. No. 3 of 1957. In the affidavit in support of this application there is not a whisper that the paragraph 7 (a) and the prayer portion had crept into the petition without Kunju Thevar's knowledge. What, however, was asserted was that the senior counsel who had been entrusted with the task of drafting the petition had included neither the allegations in paragraph 7 (a), nor the second part of the prayer, but that they were inserted by the junior counsel when the manuscript draft was got typed. Paragraph 7 (a) it might be mentioned which is in manuscript is in the handwriting of the junior counsel. We consider it important to set out the exact words used in this affidavit because they show that it was never the case of Kunju Thevar that he had committed any mistake or that he had no knowledge of the existence of this paragraph at the time he signed it. In this affidavit paragraphs 3 and 4 relate to the legal contentions that a candidate who had retired was not a contesting candidate who had to be impleaded under Section 82. Then it goes on:
6. In the draft prepared by the senior counsel paragraph 7 (a) did not appear. The prayer paragraph also had not been written up.
7. The draft in the handwriting of my senior counsel is herewith produced.
8. My senior counsel has left Madurai to attend a marriage at Kumbakonam on the 17th. I came to Madurai on the 18th with the particulars required.
9. The junior counsel owing to mistake has added paragraph 7 (a) and the second part of the prayer.
10. In the body of the petition as originally drafted by the senior counsel there was no allegation which called for a declaration to the effect that S. Jayarama Reddiar should be declared duly elected and consequently senior counsel never expected that a prayer would be added which was not warranted by the allegations as originally drafted.
11. Thus it will be clear that paragraph 7 (a) and the second part of the prayer was due to a mistake. It was the senior councel's recollection of his own draft that was responsible for the memo sent to the Secretary, Election Commission.
No oral evidence was led by Kunju Thevar and therefore the only materials before the Tribunal in relation to this matter were the manuscript draft in the handwriting of the senior counsel, the memo, submitted to the Election Commission and the affidavit in support of I.A. No. 3 of 1957. The Tribunal in its order has referred to statements made at the Bar by learned Counsel who appeared for Kunju Thevar and to the fact that they admitted that they had committed some mistake. The mistake which they obviously could have owned was only in relation to what they did, namely, the senior counsel not having included the portions whose deletion was sought in the petition and the junior counsel that he added them himself without appreciating the terms of Section 82. The Tribunal further referred to the concession made by counsel for the respondent in not contradicting the mistakes owned by counsel for the petitioner. The concession of counsel for the respondent referred to by the Tribunal, could not have extended to anything more than that he did not dispute that the senior counsel was not responsible for paragraph 7 (a) or the additional prayer. In the order of the Tribunal the mistake admitted by counsel for Kunju Thevar and the concession made by learned Counsel for the respondent are stated somewhat in broad terms as if these could support the finding that Kunju Thevar had not in truth subscribed to paragraph 7 (a) or the additional prayer. In view of the ambiguity in the manner in which this concession is referred to by the Tribunal an affidavit has been filed before us on behalf of the petitioner enclosing as part of it a letter from the learned Advocate-General who appeared for the petitioner before the Tribunal to Mr. Nambiar setting out the matters that transpired before the Tribunal in relation to 'the mistake'. In this letter the learned Advocate-General confirms what we have already stated as to the nature andcontents of the statement by counsel for Kunju Thevar. The contents of this letter of the Advocates-General has not been contraverted by any affidavit or even by a statement from the Bar from the other side and we are fully satisfied that it represents correctly the statements made before the Tribunal. In the light of this, we are clearly of the opinion that there was no basis for the statement by the Tribunal, which reads as if Counsel for Kunju Thevar had asserted that the latter was not aware of the inclusion of paragraph 7 (a) and of the additional prayer in the petition and had signed it in ignorance and that counsel for the returned candidate did not challenge that assertion.
54. In this connection some point was sought to be made before us by learned Counsel for the respondent out of paragraph 4 of the memo. sent to the Commission in answer to its notice under proviso to Section 35. Learned Counsel suggested that the paragraph showed that Kunju Thevar might not have been aware that a further declaration had been asked for in the petition filed. We are wholly unable to accept this submission. Even in paragraph 11 in the affidavit in support of I.A. No. 3 of 1957, paragraph 4 is referred to as indicative of the recollection of the senior counsel and not that Kunju Thevar was not aware of the precise contents of this petition when it was despached. But this apart, it seems to us that in the context in which this paragraph appears it was intended to convey quite a different meaning. Paragraph 4 has to be read in conjunction with paragraph 3 and the point raised in this earlier paragraph was that the further relief referred to in Section 82 was confined to those cases where a petitioner in an election petition claimed a seat for himself and not to a case like the present where the seat was claimed not on behalf of the petitioner but for a third party. It would thus be seen that there was no foundation for the finding of the Tribunal that paragraph 7 (a) and the additional prayer in the election petition were included in it by mistake without the knowledge of the election petitioner. The fact that the senior counsel had not drafted paragraph 7 (a) and was not aware of his junior counsel having included that paragraph and the relief based thereon, which is all the material the Tribunal had before it, could never lead to the finding that junior counsel had no authority to include paragraph 7 (a) and the further relief claiming the seat, and of course not to the other finding that Kunju Thevar was not aware of the contents of the petition which he filed before the Tribunal. In our judgment the entire reasoning and finding of the Tribunal in paragraph 18 of its order are erroneous and the allowance of the application I.A. No. 3, on this ground was wholly unwarranted.
55. The second and third grounds urged by learned Counsel proceed on the basis-that the petition as filed, with paragraph 7 (a) and the additional prayer, was defective for non-compliance with the provisions of Section 82(a). We have held that a candidate who had retired from contest under Section 55-A (2) is not a contesting candidate within Section 82(a). and from this it follows that the petition as filed was in order. Considerable argument was addressed to us whether an election petition which failed to conform to the requirements of Section 82(a) could be amended and whether the Tribunal could have jurisdiction to permit such amendments. In view however of our conclusion that the petition was not defective, we refrain from examining these contentions. Grounds 2 and 3 urged in attack of the validity of the order allowing I.A. No. 3 of 1957 must be repelled.
56. If the petition were in order it is not contested that a petitioner might amend it and this brings us to the last ground urged regarding the non-compliance with the provisions of Sections 108 to III of the Act. Some authority was cited before us for the position that an amendment of a petition whereby a prayer for the further relief was given up, amounted to a withdrawal of the petition in part, attracting the safeguards provided by Sections 108 to III. In view however of the considerations to which we shall immediately refer, we do not think it profitable or necessary to canvass the correctness of this argument. Mr. Nambiar told us that he had raised the objection about the non-compliance with Sections 108 to III merely as an argument for showing that the amendment ought not to have been allowed, and that he was not desirous that Kunju Thevar should follow the procedure prescribed by Sections 108 to 111 if we were of the opinion that an amendment was permissible. In the circumstances in which the amendment was applied for, it is clear that there was no question of any bargain between the parties. This apart, taking into account all the circumstances of the case it appears to us that no purpose would be served by following the procedure prescribed by the provisions in Section 108, etc. At the date of the petition for amendment no charge of recrimination against Jayarama Reddiar had been made and no such recrimination could take place because it was barred by limitation under the proviso to Section 97(1). It is these circumstances which we have taken into account in holding that it is not necessary to interfere with the order of the Tribunal on the ground that the procedure prescribed by Sections 108 to 111 had not been followed assuming that the giving up of a further relief amounts to a withdrawal in part of the petition.
57. The next question to be considered is whether it is necessary to interfere with the order of the Tribunal allowing the petitioner to delete paragraph 7(a) and the last portion of the prayer. If the petition was in order and we have held that it was so--Kunju Thevar could have the petition amended and the Tribunal would have jurisdiction to permit such amendment. In I.A. No. 3 of 1957 Kunju Thevar did pray for the deletion of these portions of the petition and that prayer has been granted by the Tribunal. We do not see therefore any reason to interfere with the order of the Tribunal allowing this petition for amendment though, as we have stated earlier, the ground upon which this order was based is erroneous.
58. Before concluding it is necessary to refer to a preliminary objection raised by Mr. Kuppuswami Ayyar, learned Counsel for the respondent. He urged that the orders sought to be quashed were of an interlocutory nature and that in view of the provision for an appeal from a final order on the Election Petition under Section 116-A, this Court could not interfere with interlocutory orders under Article 226. We do not see much substance in this contention but in view of our decision on the merits, we do not consider it necessary to discuss this point in any detail and so refrain from doing so.
59. The result is that these petitions fail and stand dismissed. The rules issued will be discharged. There will however be no order as to costs.