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Shri Biren Roy Vs. Shri Bejoyesh Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 83 of 1958
Judge
Reported inAIR1959Cal128
ActsRepresentation of the People Act, 1951 - Sections 85, 90(3), 117 and 118; ;Constitution of India - Article 226
AppellantShri Biren Roy
RespondentShri Bejoyesh Mukherjee and ors.
Appellant AdvocateS.K. Acharya and ;Manashnath Roy, Advs.
Respondent AdvocateG.P. Kar, ;D. Gupta and ;Birendra Nath Banerjee, Advs. for Respondents 2 and 3
DispositionAppeal dismissed
Cases ReferredKamaraja Nadar v. Kunju Thevar
Excerpt:
- .....under its control lay deposited and the secretary had another account in his own name limited to costs deposited under section 117, a difficulty of the kind hinted at by the chief election commissioner might arise and it might be difficult to apply the amount of the deposit for the payment of costs awarded against the petitioners of the election petition. it was, accordingly, suggested that whether or not such a practical difficulty would arise was a matter for evidence. in view of the decision of the supreme court, however, which is clear and categorical, the point must be held to have been laid at rest. the first objection of the appellant to the maintainability of the petition of respondent nos. 2 and 3 must, therefore, fail.12. mr. achaiya, who appears on behalf of the appellant,.....
Judgment:

P. Chakravartti, C.J.

1. This is an appeal from an order of Sinha, J., dated 11-2-1958 whereby the learned Judge discharged a Rule, issued by himself, on an application by the appellant under Article 226 of the Constitution of India.

2. The appellant was elected as a member of Parliament from the Calcutta South-West Constituency in the last General Election held in March, 1957. Soon after the election, an election petition was filed by two persons, named Kalipadi Banerjee and Anil Kumar Sadhukhan, who are respondents Nos. 2 and 3 before us and who challenged the appellant's election on the ground that the same had been secured by malpractices of various kinds. They prayed that the appellant's election as a member of Parliament from the Calcutta South-West Constituency might be declared void or, alternatively, that the whole election might be declared void.

3. The petition was opposed by the appellant on its merits as well as on a certain technical ground. It is only the latter which is material for the purposes of the present appeal. In paragraph 27 of his written statement he contended that the petition filed by the respondents Nos. 2 and 3 was liable to be dismissed in limine, inasmuch as the provisions of Section 117 of the Representation of People Act, 1951, had not been complied with by them. Although the objection was stated in the written statement in those general terms, the point actually canvassed before the Election Tribunal was that Section 117 had not been complied with and that it had been contravened, inasmuch as, instead of making a deposit of security for the costs of petition in favour of the Secretary to the Election Commission, the petitioners before the Tribunal had made the deposit in favour of the Election Commission itself.

4. I may note here that this defect in the deposit had been noticed by the Chief Election Commissioner at the stage when the petition was first filed before him. As to the effect of the irregularity he observed that it 'might make it difficult for the costs, if any, ordered against the petitioners to be realised out of the deposit.' He did not, however, decide for himself whether the irregularity was fatal and did not dismiss the petition under Section 85, as he might have done, if he was of opinion that the defect as to the deposit of security vitiated the petition altogether, but left the matter to be decided by the Election Tribunal. Tentatively, it would seem, he expressed the view that the defect might be fatal or it might be cured in some way or other, particularly by a fresh deposit made in a proper form.

5. The point was pressed strenuously before the Election Tribunal, but found no favour there. The Tribunal held that a defect had undoubtedly occurred, but the objection based on it was of so extremely technical a character that to give effect to it by dismissing the petition in limine would be to sacrifice substantial justice to a mere technicality. Accordingly, the Tribunal decided to proceed with the consideration of the petition on its merits.

6. The appellant then moved this Court under Article 226 of the Constitution of India and prayed for a writ in the nature of mandamus on the Election Tribunal, requiring it to dismiss in limine the election petition of respondents Nos. 2 and 3. A Rule, as I have already stated, was issued, but at its final hearing the learned Judge took the same view of the irregularity as the Tribunal had done. He held that although there had been no literal compliance with Section 117 of the Act, there had been substantial compliance and he quoted extensively from decided cases in support of the view that it could not be proper to let an unessential defect in form to defeat what was otherwise a good and proper petition. The learned Judge added that it' it had been shown to him that as a result of the deposit having been made in the name of the Election Commission itself instead of that of the Secretary to the Commission, it bad become useless for the purpose for which it was intended and that it would be difficult for the Commission to avail itself of it, if it wanted to apply it to the satisfaction of an award of costs against the petitioners, the position might have been different. In making that observation, the learned Judge appears to have proceeded on the view that it was for the appellant to show that the irregularity which had occurred was of so vital a character that the amount deposited could never be available to the Election Commission for the purposes mentioned in Section 117. No such effect of the irregularity having been proved before him and his own view being that although Section 117 had not been strictly complied with, it had been complied with in substance, he discharged the Rule which he had himself issued. Thereupon, the appellant preferred the present appeal.

7. In the course of the argument before us, the learned Counsel for the appellant wanted to add another breach of Section 117 to the breach of which he had complained before the Election Tribunal and thereafter before Sinha, J. The deposit in the present case was made, as such deposits are usually made, by a chalan in a form which appears to have been prescribed by Treasury Rule No. 92. The standard form contains six columns, of which the first four are to be filed in by the remitter and the last two by the Departmental Officer or the Treasury. The only column material for the purpose of this appeal is the third and the heading of that column is: 'Full particulars of the remittance and of authority (if any).' The entry made in the third column in the present case read as follows:

'In favour of Election Commission, New Delhi being the amount regarding Election Petition.'

The fourth column is for the amount deposited and the entry there was 'Rs. 1000,' which indeed is the amount mentioned in Section 117 of the Act.

8. Section 117 requires that an election petition must be accompanied by a Government Treasury receipt and that receipt must show that (i) a deposit of a sum of Rs. 1,000/- has been made by the petitioner either in a Government Treasury or in the Reserve Bank of India, (ii) that it has been made in favour of the Secretary to the Election Commission and (iii) that it has been made as security for the costs of the petition. From the entry made in the third column of the chalan in the present case which I have already read, it has been seen that the receipt did not show that the deposit had been made in favour of the Secretary to the Election Commission, but showed, on the other hand, that it had been made in favour of the Election Commission itself. An objection based on this irregularity was taken by the appellant from the beginning. The entry, however, was defective in another respect as well in that it did not show that the deposit was being made 'as security for the cost of the petition', but it described the deposit as 'the amount regarding Election Petition.' Before us it was sought to be contended on behalf of the appellant that here was a second non-compliance with Section 117 for which the election petition was equally liable to be dismissed in limine. The learned Counsel for the appellant frankly stated that the idea of taking the second point had been suggested to him by a decision of this Court in the case of Sudhansu Sekhar v. Narendra Nath, : AIR1958Cal322 (A) and a decision of the Patna High Court in Harihar Singh v. Ganga Pd. Singh : AIR1958Pat287 (B) which had come to his notice since the memorandum of appeal had been filed.

9. After the hearing had made some progress, Mr. Kar, appearing on behalf of respondents Nos. 2 and 3, brought to our notice a newspaper report of a decision of the Supreme Court in certain appeals from Madras and elsewhere where the effect of non-compliance with Section 117 of the Representation of People Act appeared to have been considered. If the question had been decided by the Supreme Court, there could be no point in our trying to decide it according to our own understanding of the law. Mr. Kar accordingly prayed that further hearing of the appeal might be adjourned for three weeks in order to enable his clients to obtain a certified copy of the decision of the Supreme Court. We acceded to the prayer and adjourned the hearing of the appeal till to-day.

10. A certified copy of a judgment of the Supreme Court, by which three appeals, namely, Kamaraja Nadar v. Kunju Thevar, Civil Appeals Nos. 763 and 764 of 1957 and 48 of 1958: ( : [1959]1SCR583 )(C) were disposed of on the 22nd of April last, has been produced before us today. It appears from the judgment that the first of the points raised on behalf of the appellant in the present case and the only point canvassed on his behalf before the Election Tribunal and the learned Judge below; stands concluded against him by the decision of the Supreme Court. The Court considered the effect of a technical non-compliance with Section 117 of the Act in Appeal No. 763 of 1957: ( : [1959]1SCR583 ) (C). The actual defect in the deposit made in that case was that the receipt merely stated that the sum of Rs. 1,000/- had been deposited as 'security for the costs of the Election Petition, Ran-chi East Parliamentary Constituency,' but did not state that it had been made in favour of the Secretary to the Election Commission or, as it would appear, in favour of anybody at all. The Supreme Court had, therefore, to consider whether the provision in Section 117 that the deposit should be made in favour of the Secretary to the Election Commission and that the relevant receipt should show that it had been so made, was mandatory in character. By way of pointing out that insistence on a literal compliance with the provisions of Section 117 would lead to absurdities, the Supreme Court took as an illustration a hypothetical case where a deposit had been made in favour of the Election Commission itself instead of in favour of the Secretary to the Commission.

'Could it be contended', the Court asked, 'that in spite of such a deposit having been made, the said Government Treasury Receipt was not in conformity with the requirements of Section 117 and the petitioner could be said not to have complied with the requirements of that section so as to involve a dismissal of his petition under Section 85 or Section 90(3)?' It is enough to say that such a contention has only got to be stated in order to be negatived. It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of Section 117 and would involve a dismissal of the petition under Section 85 or Section 90(3). The above illustration is sufficient to demostrate that the words 'in favour of the Secretary to the Election Commission used in Section 117 are directory and not mandatory in their character.'

11. It need hardly be pointed out that the above observation of the Supreme Court completely disposes of the first point taken on behalf of the appellant. It will be seen that what the Supreme Court took as a hypothetical case for the purpose of illustrating the absurdity of insisting on a literal compliance with Section 117 of the Act is the actual case before us. Before the decision of the Supreme Court was available, it had been suggested in the course of the argument before us that a deposit in favour of the Election Commission, instead in favour of the Secretary to the Commission, might not be without embarrassing consequences and if, for example, the Election Commission had one or several accounts held in its own name where the general funds under its control lay deposited and the Secretary had another account in his own name limited to costs deposited under Section 117, a difficulty of the kind hinted at by the Chief Election Commissioner might arise and it might be difficult to apply the amount of the deposit for the payment of costs awarded against the petitioners of the election petition. It was, accordingly, suggested that whether or not such a practical difficulty would arise was a matter for evidence. In view of the decision of the Supreme Court, however, which is clear and categorical, the point must be held to have been laid at rest. The first objection of the appellant to the maintainability of the petition of respondent Nos. 2 and 3 must, therefore, fail.

12. Mr. Achaiya, who appears on behalf of the appellant, referred us to certain other observations contained in the judgment of the Supreme Court. I shall read them at once. 'If, therefore,' observed the Court, 'it can be shown by evidence led before the Election Tribunal that the Government Treasury Receipt or chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party, it would be sufficient compliance with the requirements of Section 117.' Mr. Acharya contended that the real decision of the Supreme Court, as shown by the passage I have just read, was that where there had been a non-compliance with the provisions of Section 117, it would be a matter of evidence as to whether such non-compliance would make the amount of the deposit unavailable for the purpose mentioned in Section 117 and that only if the evidence showed that it would not make the deposit unavailable, could it be held that the non-compliance was immaterial. It appears to me that the particular observations, on which Mr. Acharya relied, had no reference to a case of non-compliance with Section 117 in the form that the deposit instead of being made in favour of the Secretary to the Election Commission was made in favour of the Election Commission itself. They have reference clearly to the particular irregularity in the case before the Supreme Court which was that while the deposit was described as deposit of security for costs of the election petition, the receipt did not show it to have been made in favour of the Secretary to the Election Commission or in favour of anybody else. What the Supreme Court obviously meant was whether, in those circumstances, the deposit could or would be available for the payment of costs awarded against the petitioners of the election petition, if such costs came to be awarded, was a matter of evidence. It appears that evidence had actually been given in the case before the Election Tribunal and it had been proved by the Head Accountant in charge of the Sub-Treasury, where the deposit had been made, that the amount had in fact been entered in the Deposit Register as security deposit for the costs of the election petition and that the Election Commission would be able to draw the money or authorise anyone it chose to draw it. It was apparently because of that evidence the Supreme Court did not consider it necessary to remand the case, but held that the objection based on the non-compliance with Section 117 of the Act must fail. To my mind, the Supreme Court did not hold that where the defect was that the deposit, instead of being made in favour of the Secretary to the Election Commission was made in favour of the Commission itself, the effect of such defect also would be a matter of evidence.

13. It may, however, be contended that, in any event, the effect of the other defect in the present case, namely, the description of the deposit as 'the amount regarding Election Petition' instead of 'security for the cost of the petition' could not be held to be immaterial, unless it was proved by evidence that despite the defect in the description, the money would be available to the Election Commission for being applied to the payment of the costs awarded in favour of the appellant, if necessary. I do not think that there is much merit in that contention, because it does not appear that, except a provision for the deposit of further security as contained in Section 118 of the Act, there is any other provision outside Section 117 which requires the petitioner in an election petition to make any deposit in connection with the petition filed by him. If, in those circumstances, a deposit of Rs. 1,000/- is made, which is the amount mentioned in Section 117 of the Act, it is made in favour of the Election Commission and then it is described as 'the amount regarding election petition,' it does not seem possible that anyone will be misled into thinking that the deposit might be something other than a security for the costs of the respondent to the election petition. But I need not enlarge further on this aspect of the case. In any event, the question is to be decided by evidence. If the appellant had taken this point before the Election Tribunal, the respondents Nos. 2 and 3 might have called evidence to prove that in spite of the misdescription or inadequate description in the receipt, the amount deposited would find place among the deposits of security as the costs of the respondents' election petition and it would be available to the Election Commission for disposal under Section 121, if it became necessary to make any order under that section. The appellant, however, did not take that point before the Election Tribunal, nor did he take it before the learned Judge below, nor was it taken among the grounds of appeal. In those circumstances and particularly in an appeal from an adverse order made on an application for a writ of mandamus, I consider it wholly impossible to entertain the point at the present stage. As I have said, in my view, there is apparently no merit in the contention, but, in any event, the appellant is not entitled to a consideration of the new point involving an investigation into facts at the present stage of the proceedings.

14. For the reasons given above, this appeal fails and is dismissed with costs to respondents Nos. 2 and 3, the hearing-fee being assessed at five gold mohurs.

15. Let the original records of the Election Tribunal be returned to the Tribunal with the least possible delay.

S.C. Lahiri, J.

16. I agree.


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