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Biren Ray Vs. Bejayes Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2294 of 1957
Judge
Reported inAIR1958Cal320,62CWN240
ActsRepresentation of People Act, 1951 - Sections 85, 90(3) and 117
AppellantBiren Ray
RespondentBejayes Mukherjee and ors.
Appellant AdvocateS.K. Acharyya and ;Manash Nath Roy, Advs.
Respondent AdvocateJ. Majumdar and ;Somendra Chandra Bose, Advs. (for No. 1) and ;A. Mitra, ;B.N. Banerjee and ;D. Gupta, Advs. (for Nos. 2 and 3)
Cases ReferredDattatreya Moreshwar Pangarkar v. State of Bombay
Excerpt:
- .....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. what the respondents nos. 2 and 3 did was to make the application, but to make the security deposit m the reserve bank of india in the name of the election commission. there is nothing before me to show that the security was refused or that it has been returned to the said respondents or that the election commission cannot deal with it. section 85 of the said act lays down that if the provisions of section 81 or section 82 or section 117 have not been complied with, the election commission shall dismiss the petition. in this particular case the election commission did not dismiss the petition but left it for the tribunal to.....
Judgment:

Sinha, J.

1. The petitioner was elected as a member of Parliament from the Calcutta South-West Constituency in the last General Election held in March 1957. On the 3rd May, 1957 an Election Petition was filed by two persons, namely, Kalipada Banerjee and Anil Kumar Sadhukhan, challenging the election of the petitioner. They are respondents Nos. 2 and 3 in this application. In the election petition, the said respondents prayed that the election of the petitioner in the last General Election as a member of parliament from the said Constituency be declared void and alternatively, for a declaration that the whole election was void. Section 117 of the Representation of the People Act, 1951, (Act 43 of 1951) lays down that the petitioner in anelection petition 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. What the respondents Nos. 2 and 3 did was to make the application, but to make the security deposit m the Reserve Bank of India in the name of the Election Commission. There is nothing before me to show that the security was refused or that it has been returned to the said respondents or that the Election Commission cannot deal with it. Section 85 of the said Act lays down that if the provisions of Section 81 or Section 82 or Section 117 have not been complied with, the Election Commission shall dismiss the petition. In this particular case the Election Commission did not dismiss the petition but left it for the Tribunal to decide whether it should be dismissed. Section 90(3) provides that the Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 32 or Section 117, notwithstanding that it has not been dismissed by the Election Commission under Section 85.

2. The petitioner took an objection before the Tribunal which had been constituted to try the election petition (being the respondent No. 1 in this application), to the effect that the election petition should be dismissed in limine because the provisions of Section 117 of the said Act had not been complied with. The respondent No. 1 has held that there has been a substantial compliance with the provision of Section 117 of the Act and has dismissed the application. The petitioner has now come up to this Court and the Rule was issued on the 28th August, 1957 calling upon the respondents to show cause why a Writ in the nature of Mandamus should not issue directing the opposite party No. 1 to dismiss in limine the election petition of the opposite parties NOS. 2 and 3 and for other reliefs.

3. Mr. Acharyya appearing on behalf of the petitioner has argued as follows. He has drawn my attention to the Supreme Court decision in Jagan Nath v. Jaswant Singh, : [1954]1SCR892 . Mahajan, C.J., said there as follows:

'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers an authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it.'

4. Mr. Acharyya argues that the law requires that security deposit should be made in the name of the Secretary to the Election Commission and the law further lays down that if them is a violation of Section 117, then the application must be dismissed. The result therefore is that if I am of the opinion that Section 117 has been violated, then the election petition must be dismissed. The short point therefore is has it been violated? It is true that the Section lays down that the money should be deposited in the Reserve Bank in the name of the Secretary to the Election Commission. But it is also known that the Secretary is only an agent or an officer of the Election Commission and the security is intended to be dealt with by the Election Commission and not the secretary personaally. In my opinion, the Tribunal came to the right conclusion that the provision of law in this respect has been substantially complied with. In the Supreme Court decision, Vice-Chancellor, Utkal University v. S.K. Ghosh, : [1954]1SCR883 Bose J. said as follows :

'The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law, we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution.'

5. The learned Standing Counsel has also drawn my attention to an English case which can be usefully cited, viz., Katherine Yale v. The King, (1721) 2 ER 910 (C). The statute 33 Hen. 8. c. 39, lays down that all obligations and specialities made to the King or his heirs and successors shall be made payable by using certain latin words specified therein, but a bond was taken to the King, his heirs and successors, without using those latin words. It was held to be good and the use of the latin words set out in the statute were held to be only directory. Reference has also been made to the Supreme Court decision in Dattatreya Moreshwar Pangarkar v. State of Bombay, : 1952CriLJ955 , In that case, what was construed was Article 166(1) of the Constitution. It was held that the said provision only prescribed the mode in which an action of the Government of a State is to be performed. Whether a rigid compliance with a form is essential to the validity of an Act or not depends upon the intention of the Legislature. In that case, it was held that, under Article 166(1) the requirements of law that an act should be expressed to be done in the name of the Governor, was directory and not mandatory. In the present case, the intention of the Legislature was doubtlessly to secure the costs of the contesting parties and It has been laid down that a deposit of one thousand rupees had to be made in favour of the Secretary to the Election Commission. The Secretary to the Election Commission is its principal officer and the object was that the security should be available to the Election Commission. If. of course, as a result of depositing the security in the name of the Secretary to the Election commission, it could be proved that the security became useless or that difficulties arose sc that the Election Commission could not deal with the security, then that would be a different matter altogether. But the mere fact that instead of depositing in the name of the agent, it was deposited in the name of the principal, seems to me to be a purely technical point which should not invalidate either the deposit or the Election petition. In ray opinion, on the facts and circumstances of this case, there has been a substantial compliance with the provisions of Section 117.

6. Mr. Acharya has drawn my attention to what is called the Bhopal case, that is to say a case decided by the Election Tribunal in Bhopal, where it was held that a security deposit In the name of the Chief Electoral Officer atBhopal was bad. As I have pointed out, the idea was to make the security available to the Election Commission, and while a payment to its principal officer may be good, a payment in favour of any and every officer of the Election Commission would not be sufficient and would not constitute a substantial compliance with the law. Mr. Mitra has pointed to a Baroda case where a different view has been taken, in my opinion, it is unnecessary to deal with the Bhopal case at all. The question as to whether there has been a substantial compliance with the provisions of the Act would depend on the facts of each case. I do not say that what the law has laid down should not be complied with. But if by accident or an error of judgment, it has not been carried out strictly but has been carried out in substance, then it must be taken to have been fully complied with. It is on this principle that I hold that there has been a substantial compliance with the provisions of Section 117 and the Tribunal was right in rejecting the application made to it to dismiss the Election Petition in limine.

7. The result, therefore, is that this application fails. The Rule is discharged. Interim order, if any, is vacated. There will be no order as to costs.

8. Let the records be sent down as earlyas possible.


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