Skip to content


Sawan Ram and ors. Vs. Guman Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. Nos. 5, 6 and 7 of 1959
Judge
Reported inAIR1959HP25
ActsTerritorial Councils Act, 1956 - Sections 11, 12, 13 and 13(1); ;Territorial Councils Rules, 1957 - Rules 30 and 78; ;Representation of the People Act, 1951 - Section 81(1); ;Constitution of India - Articles 227 and 241
AppellantSawan Ram and ors.
RespondentGuman Singh and ors.
Appellant Advocate M.L. Kalia, Adv.
Respondent Advocate M.L. Aukta, Adv.
DispositionPetitions allowed
Cases Referred(vide Indira Debi v. Ganga Ram
Excerpt:
election - election petition - rule 78 of territorial council rules, 1957 - appellants were unsuccessful candidates at elections - challenged election of respondent on various grounds - respondent raised preliminary objection disputing competency of election petition - contended that election petition was time barred - preliminary objection upheld by district judge - appeal - election petition filed within 30 - facts revealed that sum was deposited by appellant in compliance of rule 78 and amount was available to secretary of election department - held, election petition wrongly dismissed by district judge. - .....were candidates at the election, but were declared unsuccessful subsequently, they filed election petitions under section 13 of the territorial councils act, 1956, challenging the election of the successful candidates, on various grounds. preliminary objections were raised by the successful candidates (who figure as respondents here) disputing the competency of the election petitions. the learned district judge of sirmur, who was trying the election petitions, upheld two of the preliminary objections, raised by the respondents and dismissed the petitions holding that: (a) the etection petitions were time-barred and (b) the petitioners failed to comply with the requirements of rule 78 of the territorial councils (election of members) rules, 1957, and, therefore, the petitions.....
Judgment:
ORDER

Ramabhadran, J.C.

1. These three petitions, purporting to be under Articles 226 and 227 of the Constitution, arise out of the elections, from Sirmur district to Himachal Pradesh Territorial Council, which took place in May/June, 1957. The petitioners were candidates at the election, but were declared unsuccessful Subsequently, they filed election petitions under Section 13 of the Territorial Councils Act, 1956, challenging the election of the successful candidates, on various grounds. Preliminary objections were raised by the successful candidates (who figure as respondents here) disputing the competency of the election petitions.

The learned District Judge of Sirmur, who was trying the election petitions, upheld two of the preliminary objections, raised by the respondents and dismissed the petitions holding that: (a) the etection petitions were time-barred and (b) the petitioners failed to comply with the requirements of Rule 78 of the Territorial Councils (Election of Members) Rules, 1957, and, therefore, the petitions were liable to dismissal under Rule 69 of the aforesaid Rules.

2. Hence, these petitions, which purport to be under Articles 226 and 227 of the Constitution.

3. Arguments of the learned counsel for the contesting parties were heard at considerable length on the 8th and 9th instant. In Civil Writ Petitions 6 and 7 of 1959, learned counsel for the petitioners confined his arguments to the findings of the District Judge on preliminary issues 2 arid 3 (Issues on the points of limitation and security deposit).

4. For reasons to be stated shortly, I have come to the conclusion that neither of the District Judge's findings can be supported.

5. I take up the point of limitation first. Learned counsel for the petitioners took me through the provisions of Ss. 10, 11, 12, 13, 16, and 20 of the Territorial Councils Act, 1956, as well as Rules 60, 61, 62 and 70 of the Territorial Councils Rules, 1957. My attention was also invited to the definition of a 'returned candidate' to be found in Rule 57(e) of the above Rules, whereby a 'returned candidate' means a 'candidate, who has been declared elected by the Returning Officer'.

6. Mr. Kalia contended--and in my opinion with considerable justification--that the Territorial (sic) Rules made thereunder are,more or less, a complete Code by themselves and their provisions should be given effect to without any reservation. He pointed out that while S. 10 of the Territorial! Councils Act deals with the election of members, S. 11 provides that the names of all persons elected or nominated to be members of the Territorial Council shall be published in the official Gazette by the Administrator. Section 12 further lays down that the term of office of a member of the Territorial Council shall be 5 years and that period would commence from the date of the notification of his election, or nomination under Section 11, i.e. in the official Gazette, Section 13 which deals with disputes as to elections, provides for filing of the election petitions in the Court of District Judge having jurisdiction in the area in which the constituency concerned is situated. Such petitions have to be instituted within 30 days from the date of the notification of the result of the election.

7. Learned counsel for the petitioners submitted that the above provisions are free from ambiguity and, therefore, the learned District Judge should have had no difficulty in holding that the three election petitions were within time. Here are the relevant dates. Nahan Constituency 'Ishwar Chandra v. Hitendra Singh and another', Results declared on 29-5-57, notified in the Gazette 3-8-57 and election petition filed on 31-8-1957; Paonta Constituency 'Baldev Singh v. Kalyan Singh'; Results declared on 26-5-1957, notified in the Gazette on 3-8-1957 and election petition filed on 31-8-1957. Rainka Constituency 'Sawan Ram v. Guman Singh and others,' Results declared on 11-6-1957, notified in the Gazette on 3-8-1957 and election petition filed on 2-9-1957.

8. Mr. Kalia argued that in all the three cases, the election petitions were filed within 30 days of the Gazette notification and, accordingly, they were within time, having regard to the plain meaning of S. 13(1) of the Territorial Councils Act.

9. In my opinion, this argument must prevail. In Nalinakhya Bysack v. Shyam Sundar Haldar, AIR 1953 SC 148--which has been referred to by the District Judge--their Lordships pointed out that the Court must proceed on the footing that the Legislature intended what it has said. It is not competent to any Court to proceed upon any assumption that the Legislature has made a mistake. I find that the District Judge however has laboured hard to demonstrate that the expression 'date of notification of the result of the election' to be found in S. 13 of the Territorial Councils Act would not mean the date of notification in the official Gazette.

In this connection, he has pointed out that while in Ss. 3, 10, 11, 43, 44, 53 and 54 of the Territorial Councils Act provision has been mada for notifying certain matters in the official Gazette, S. 13 of the Act, merely refers to date of the notification of the result of the election, without expressly speaking of date of notification in the official Gazette. The heading of S. 11 however runs as follows:--'Notification of results of elections:' The District Judga has brushed this aside on the ground that marginal notes are not proper guides for interpreting a statute. He has further remarked that the expression 'notification' has not been defined in the General Clauses Act.

10. Mr. Kalia invited my attention to S. 2(36) of the Punjab General Clauses Act, 1898, whereby 'notification' means a notification published under proper authority in the official Gazette. The provisions of the Punjab General Clauses Act were made applicable to Himachal Pradesh by means of the Himachal Pradesh (Application of Laws) Order, 1948, vide notification No. 386-IB issued under the Extra-Provincial Jurisdiction Act, 1947, on 25-12-1948. It is, therefore, not correct to say that the definition has not been made applicable to this territory. Even if this definition be left out of consideration, the plain language of S. 13, read with Ss. 11 and 12 ot the Territorial Councils Act, leaves no room for doubt that the date of the notification referred to in S. 13(1) would be the date of notification of the result in the official Gazette under Section 11 and not the date of the declaration of the result by the Returning Officer, under Rule 60 of the Territorial Councils Rules.

11. I further find that the learned District Judge has made an attempt to equate or reconcile the provisions of the Territorial Councils Act with those of the Representation of the People Act. I am unable to accept the District Judge's opinion that the provisions of the two Acts were intended to be similar. Under S. 81(1) of the Representation of the People Act, the period of limitation for filing an election petition--challenging an election held under that Act--would be 45 days from the date of the election of the returned candidate. Under S. 67(A) of that Act, the expression 'date of election' would mean the date on which a candidate is declared by the Returning Officer to have been elected to a House of Parliament or to a Legislature of the State.

The scheme of the Territorial Council's Act, however, is different. As remarked earlier, where the Legislature has deemed it proper to draw up a different scheme for elections to the Territorial Councils, and the language of the statute is not ambiguous, there would be no justification to borrow from the provisions of the Representation of the People Act in order to ascertain whether a particular election petition filed under the Territorial Councils Act is within time or not. Mr. Kalia rightly pointed out that in the Territorial Councils Act and in the rules made thereunder, there is no provision corresponding to that contained in S. 67(A) of the Representation of the People Act.

In an earlier decision of this Court, reported in Som Krishnan v. Paras Ram, AIR 1958 Him Pra 26, II had occasion to compare the scheme under the Territorial Councils Act with that of the Representation of the People Act. In that connection, I pointed out that under the Territorial Councils Act, there was greater scope for the application of the procedure laid down in the Civil Procedure Code to the trial of election petitions than under the scheme of the Representation of the People Act.

12. To sum up, therefore, I am clearly of the opinion that the expression 'date of notification of the result of election' to be found in S. 13(1) of the Territorial Councils Act would be the date of such notification by publication in the official Gazette by the Administrator, as required by S. 11. In all the three cases now--before this Court--the Gazette notification was issued on 3-8-1957. The three election petitions were filed within 30 days thereof and, therefore, would be clearly within time.

13. That brings us to the question as to whether the petitioners had complied with the requirements of Rule 78 of the Territorial Councils Rules, whereby they were required to enclose with the election petition a Government treasury receipt showing that a deposit of Rs. 250/- had been made by them, in favour of the Secretary to the Administrator in the appropriate department as security for costs of the petition.

The petitions admittedly were accompanied by challans (receipts) for Rs. 250/-, each. The District Judge has, however, held that the entries in the second and third columns of these challans were defective and, therefore, the requirements of Rule 78 had not been satisfied. It is true that in column No. 2) (name and address of the person on whose behalf money is paid), the entry runs thus: 'Secretary to the Administrator, Himachal Pradesh, in the Election Department'. Strictly speaking, column No. 2 should be filled in only when the deposit is made, not by the petitioner personally, but by some agent or other person acting in his behalf. Column No. 3 (full particulars of the remittance and of the authority, if any) contains the following entry: 'Security for the cost of the election petition of Shri Baldev Singh/Sawan Ram/Ishwar Chandra for Paonta/Rainka/Nahan Territorial Council constituency'.

In column No. 4, the amount of Rs. 250/- has been entered, while column No. 5 (Head of account) contains the entry 'Central Civil Section P--Deposits and advances Part II Revenue Deposits (Deposits for election petitions).' Even though column No. 2 had not been correctly filled in, I should have thought that the challans left no room for doubt that the petitioners had deposited a sum of Rs. 250/- each by way of security for costs, as required by Rule 78 and the same was available to the Secretary Election Department. The learned District Judge took a contrary view, basing his opinion largely, upon the ruling contained in Harihar Singh v. Ganga Prasad, AIR 1958 Pat 287. Mr. Kalia for the petitioners invited my attention to K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687, wherein their Lordships were pleased to indicate that:

'The words 'in favour of the Secretary to the Election Commission' used in Section 117 are directory and not mandatory in their character. What is of the essence of the provision contained in S. 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along 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, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else. If, therefore, it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the challan 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 realize 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 S. 117'.

My attention was also invited to Beli Ram v. Election Tribunal, AIR 1958 J and K 54, Bhuvanesh Bhushan Sharma v. Election Tribunal, Farrukhabad, AIR 1958 All 587 and Gian Chand Puran Chand v. Smt. Om Prabha Jain, AIR 1959 Punj 66. In the Kashmir case, a Division Bench of that High Court while dealing with a similar provision in the Jammu and Kashmir Representation of the People Act, pointed out that:

'The word 'show' has got a distinct and different connotation from the word 'state' and its scope is wider. This word being used in S. 125, it is not necessary that the receipt by itself should state the various particulars. But all that is necessary is that it should be seen either on a plain reading of the receipt or from a consideration of the surrounding circumstances that the particulars mentioned in S. 125 have been complied with. It is obvious, therefore, that the Legislature did not intend a literal compliance of S. 125 and that is why it has used the word 'show' and not the word 'state'.'

14. Similarly in the Allahabad case, a Division Bench of that High Court remarked that:

'Under S. 117 of the Representation of the People Act, the person filing the election petition has to enclose with the petition a Government treasury receipt showing that a deposit of Rs. 1,000/- 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 costs of the petition.'

'It is to be noticed that the word used in S. 117 is 'showing' and not 'stating'. The use of the word 'show' indicates that the contents of the receipt should be such that any one who looks at the receipt can arrive at the conclusion that the deposit had been made in favour of the Secretary to the Election Commission. Consequently the language of S. 117 cannot be held to require that the receipt enclosed with the petition must have the words 'in favour of the Secretary to the Election Commission', recorded on it. The entry on the receipt of the number of the account or a sufficient description of the account would be quite sufficient to show that the amount has been so deposited and that it is entirely at the disposal of the Secretary to the Election Commission, so that the deposit in the bank is a deposit in his favour'.

15. In the Punjab case, dissenting from the view expressed in AIR 1958 Pat 287, a Division Bench of the Punjab High Court held that:

'What is of the essence of the provision contained in S. 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along 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, is at the disposal of the Election Commission to be utilized by it in the manner authorised by law and is under its control and payable, on a proper application being made in that behalf, to the Election Commission or to any person duly authorised by it to receive the same. A literal compliance with the terms of Section 117 is not at all necessary. Besides, the language of Section 117 does not say that the receipt should in so many words 'state' that the amount has been deposited as security for costs of the petition; it is enough if on reading together all the entries in the receipt it is made reasonably clear that the deposit is by way of security for costs of the petition.'

It can be shown by evidence led before the Election Tribunal that the Government treasury receipt or challan which was obtained by the petitioner and enclosed by him along with the election petition was such that the Election Commission could, on a necessary application in that behalf, be in a position to realize the said sum of rupees one thousand for payment of the costs to the successful party'.

16. Rulya Ram v. Multan Singh, AIR 1959 Punj 121, cited by learned counsel for the contesting respondents, if anything, helps the petitioners. There, following AIR 1958 SC 687, a Division Bench of the Punjab High Court observed that:

'The law does not require that every word of Section 117 must appear on or be repeated verbatim in the receipt. The receipt is required to 'show' that the amount of Rs. 1,000/- was deposited as security for costs of the petition, which means that the contents of receipt should be such that anyone who looks at it could arrive at the conclusion that the deposit had been made for the purpose mentioned in the Section. Where; therefore, the purpose for which the deposit was made is sufficiently clear and anyone who looks at the receipt can have no doubtthat the deposit was made as security for the costs of the petition referred to in the receipt, it cannot be said that the receipt is in any way defective.'

17. In Civil Writ Petition No. 7 of 1959, the petitioner, Shri Ishwar Chandra, filed in this Court a 'Deposit repayment order and voucher Ex. C-l' submitted by him in September, 1958, to the Treasury Officer, Nahan, seeking a refund of the sum of Rs. 250/- deposited by him as security under Rule 78. Exhibit C-2 is the order thereupon of the Treasury Officer, Nahan, dated 2-9-1958. That order says that refund could be granted only on receipt of orders from the Secretary to the Administrator in the Election Department in whose favour the deposit had been made. Shri Ishwar Chandra made a statement on oath in this connection to this Court on the 8th instant. He was also cross-examined by the other side.

18. It is thus abundantly clear that although column No. 2 of the challans was not properly filled in, nobody--neither the petitioners nor the Treasury Officer--had any doubt that the sum deposited was otherwise than (Sic) by way of security for costs and the amount was available to the Secretary to the Election Department and could not be withdrawn without his orders. I have, therefore, no hesitation in holding that the requirements of Rule 78 had been complied with.

19. In view of what has been said above, I must hold that the election petitions were wrongly dismissed by the District Judge on the preliminary objections raised by the respondents as to limitation and security deposit.

20. As was pointed out in Waryam Singh v. Amarnath, AIR 1954 SC 215, Article 227 of the Constitution, read with Article 241, confers on this Court powers of superintendence over all tribunals functioning within the territory of Himachal Pradesh. In Hari Vishnu Kamath v. Ahmad Ishaq, (S) AIR. 1955 SC 233, it was further held that Election Tribunals are subject to the superintendence of the High Court under Article 227. The superintendence is both judicial as well as administrative.

21. It is, therefore, obvious that this Court is competent to reverse the findings of the District Judge on both the points referred to in this judgment and direct a further inquiry into the election petitions according to law. Mr. Aukta contended that there has been undue delay in filing these petitions under Article 227 and, consequently, no relief should be granted. Reliance was placed on Pulin Behari v. Byomkesh Mitra, AIR 1953 Cal 40, where a delay of 2 1/2 months in making a petition under Article 227 was considered excessive. Mr. Kalia, on the other hand, pointed out that this Court has already held (vide Indira Debi v. Ganga Ram, AIR 1953 Him-Pra 60) that petitions under Article 227 would be subject to the 90-day rule. I see no reason to revise that view. I find that these petitions have been made within 90 days of the District Judge's order, after excluding the time spent in obtaining copies of his order. This objection, therefore, must be overruled.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //