Chandrika Prasad Tripathi Vs. Shri Siv
Prasad Chanpuria & Ors  INSC 32 (9 April 1959)
SINHA, BHUVNESHWAR P.
CITATION: 1959 AIR 827 1959 SCR Supl. (2) 527
CITATOR INFO :
R 1983 SC 558 (25)
Election Petition--Security deposit-Dismissal
of Petition by Election Tribunal for defect in deposit-Appeal to High Court, if
competent-Representation of the People Act, 1951 (43 Of 1951), ss. 90(3), 98,
116-A and 117.
Respondent I filed an election petition
challenging the election of the appellant. The security required to be
deposited under s. 117 Of the Representation of the People Act, 1951, was made
in the following terms:
" Security deposits for Election
Petition of Bargi Assembly Constituency No. 97, Distt. Jabalpur, Madhya
Refundable by order of the Election
Commission of India, New Delhi." Before the Election Tribunal the
appellant made an application alleging that there was non-compliance with the
provisions s. 117 inasmuch as (i) the deposit was not in favour of the
Secretary to the Election Commission, and (ii) the amount was only refundable
to the depositor and would not be payable to appellant in case the petition was
dismissed under s. 90(3). The Tribunal upheld the objections and dismissed the
petition under s. 00(3).
Respondent I preferred an appeal under s.
116-A of the Act to the High Court. The High Court allowed the appeal, set
aside ,the order of the Tribunal and sent back the petition for trial. The
appellant contended that no appeal lay to the High Court and that there was
non-compliance with the provisions of s.117.
Held, that, an appeal lay to the High Court
under s. 116-A of the Act against the dismissal of the election petition under
S. 90(3) by the Tribunal. The order passed by the Tribunal under s. 90(3) was
an order passed at the, conclusion of the trial of the petition and was in
substance and in law one under s. 98. Once an election petition was entrusted
to the Tribunal the trial started and any order passed by the Tribunal which
concluded the trial was an order at the conclusion of the trial.
Harish Chandra Bajpai v. Tirloki Singh,
 S.C.R. 370, referred to.
Gulsher Ahmad v. Election Tribunal, A.I.R.
1958 Madhya Pradesh.
Held, further that, there had been
substantial compliance with the provisions of s. 117 of the Act. Section 117
was not to be strictly or technically construed and a substantial compliance
with its requirements was sufficient.
The security in this case 528 had been made
in respect of the election petition in question and it had been credited
towards the accounts of the Election Commission. The use of the words "
refundable " would not prevent the Election Commission from making an
order of payment of the amount to the successful party.
Kamraj Naday v. Kunju Thevar, A.I.R. 
S.C. 687, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 343 of 1958.
Appeal by special leave from the judgment and
order dated March 8, 1958, of the Madhya Pradesh High Court in First Appeal No.
141 of 1957, arising out of the judgment and order dated December 5, 1957, of
the Election Tribunal, Jabalpur, in Election Petition Case No. I of 1957.
G. C. Mathur, for the appellant.
P. Rama Reddy and R., Mahalingier, for
respondent No. 1.
1959. April 9. The Judgment of the Court was
delivered by GAJENDRAGADIKAR, J.-This appeal by special leave arises out of an
election petition filed by respondent I (No. 320 of 1957) before the Election
Commission, New Delhi, in which he prayed that the appellant's election to the
Madhya Pradesh Legislative Assembly from Bargi constituency should be declared
to be void and that it should be further declared that he had himself been duly
elected from the said constituency. The polling for the election in question
was taken on March 9, 1957, and the result was declared on March 12, 1957. Of
the three candidates who had stood for election, the appellant secured 9308
votes, respondent 1, 8019 votes and the third candidate, respondent 2, 3210
The petition filed by respondent I was
entrusted to the Election Tribunal, Jabalpur, for trial. On October 12, 1957,
the-appellant filed before the Election Tribunal, an objection under s. 90,
sub-s. (3) of the Representation of the People Act, 1951 (hereinafter called
the Act), alleging that respondent 1 had not complied with the provisions of s.
117 of the Act in regard to 529 the making of the deposit of the security for
costs and praying that his election petition should be dismissed on that account
under s. 90, sub-s. (3) of the Act. Respondent I disputed these allegations and
urged that there was no justification for dismissing his petition under s. 90,
subs. (3) of the Act.
By its order passed on December 5, 1957, the
Election Tribunal held that the provisions of s. 117 were mandatory and that
they had not been complied with by respondent 1. ID the result the application
filed by the appellant was allowed, his objection was upheld and the election
petition presented by respondent I was dismissed under s. 90, sub-s. (3) of the
On December 27, 1957, respondent I preferred
an appeal in the High Court of Madhya Pradesh at Jabalpur against the said
order (Appeal No. 141 of 1957). In the High Court a preliminary objection was
urged on behalf of the appellant that the appeal preferred by respondent I was
incompetent under s. 116A of the Act. This objection was overruled and the
merits of the appeal were considered by the High Court.
On the merits the High Court held that
respondent I had substantially complied with s. 117 and so the order passed by
the Election Tribunal dismissing the election petition filed by respondent I
was set aside and the said petition was sent back to the Election Tribunal for
disposal in accordance with law.
On February 22, 1958, the appellant applied
to the High Court for a certificate of fitness but his application was
dismissed. Thereupon the appellant applied for, and obtained, special leave to
appeal from this. Court on April 14, 1958. That is how this appeal has come to
The first point which calls for our decision
in this appeal is whether the High Court was right in holding that the appeal
preferred before it by respondent I was competent.
The appellant's contention is that the
impugned order was passed under s. 90, sub-s. (3) and no appeal is provided
against such an order under s. 116A. Section 116A provides that an appeal shall
lie from every order made by the tribunal under s. 98 67 530 or s. 99 to the
High Court of the State in which the tribunal is constituted. We are not
concerned in the present appeal with s. 99. The case for respondent I is that
in substance and in law the impugned order must be deemed to have been passed
under s. 98. That is the view which the High Court has taken and we are
satisfied that the High Court is right.
It is true that in terms and in form the
order was passed under s. 90 sub-s. (3); and it is also true that the right to
prefer on appeal is a creature of the statute and no appeal can be held to be
competent unless it is shown that such a right flows from the relevant
statutory provision itself, In order to decide whether or not an order passed
under s. 90, sub-s. (3) can be regarded in law and in substance as an order
passed under s. 98, it would be relevant to consider the scope and effect of
the provisions of the said two sections. Section 98(a) provides that at the
conclusion of the trial of an election petition the tribunal shall make an
order dismissing the election petition. There is no doubt that in the present
case the Election Tribunal has dismissed the election, petition filed by
respondent 1. But the appellant's contention is that this dismissal cannot be
said to be under s. 98(a) because the order dismissing the petition has not
been passed at the conclusion of the trial of the election petition. This
argument is not well-founded. Section 90, subs. (3) under which the impugned
order purports to have been passed occurs in ch. III of Pt. VI which deals with
the trial of election petitions. In other words., s. 90, sub-s. (3) confers
power on the tribunal to dismiss the election petition after the trial of the
election petition has commenced. The scheme of ch. III clearly indicates that
once an election petition is referred to an Election Tribunal for trial under
s. 86 the tribunal is possessed of the petition and all proceedings before it
are proceedings in the trial of the said petition. Section 85 shows that for
failure to comply with the provisions of ss. 819 82 and 117, the Election
Commission is empowered to dismiss the election petition. If the Election
Commission exercises its jurisdiction and passes an order 531 dismissing any
election petition, it may be said that the election petition never reached the
stage of trial ; but once the petition has passed the scrutiny of the Election
Commission under s. 85 and it has been referred. to the Election Tribunal for
trial, any, further action taken by the parties or any order passed by the
tribunal under the said petition would constitute a part of the trial of the
said petition. This question has been incidentally considered by this Court in
Harish Chandra Bajpai v. Triloki Singh (1) while it was dealing with s. 90,
sub-s. (2) of the Act; and it has been held that " the provisions of ch.
III read as a whole clearly show that I the trial is used as meaning the entire
proceedings before the tribunal from the time the petition is transferred to it
under s. 86 until the pronouncement of the award ". Therefore, there can
be no doubt that the order passed under s. 90, sub-s. (3) is an order passed at
the conclusion of the trial. It is true that it is an order on a preliminary
point of law raised by the appellant; but even so the decision of the
preliminary issue is undoubtedly a part of the trial of the petition and it
cannot be said that the order passed on such a preliminary point is not an
order passed at the conclusion of the trial when it, in fact, concludes the
Section 90, sub-s. (3) provides that the
tribunal shall dismiss an election petition which does not comply with the
provisions of ss. 81, 82 or 117 notwithstanding that it has not been dismissed
by the Election Commission under s. 85.
It would thus be clear that an objection
raised against the competence of the election petition on the ground that the
provisions of the aforesaid sections have not been complied with can be
considered by the Election Commission suo motu under s. 85 and if it is upheld
the election petition can be dismissed without any further enquiry; but if the
Election Commission does not dismiss the petition under s. 85, then the same
objection can be raised before the Election Tribunal by the respondent to the
election petition ; and when it is so raised it assumes the character of a
preliminary objection and (1)  S.C.R. 370,387.
532 is dealt with by the Election Tribunal as
any preliminary objection would be dealt with by a civil court under the Code
of Civil Procedure. That being so, a preliminary objection has been tried and
the decision on the preliminary objection being in favour of the respondent the
election petition is dismissed. Though the order of dismissal in form may be
under s. 90, subs. (3), it is in substance and in law an order of dismissal
passed at the conclusion of the trial and must be deemed to be an order under
That is the view which the Madhya Pradesh
High Court has taken in Gulshar Ahmed v. Election Tribunal(1) and it was this
decision which was followed by the High Court in the present proceedings. In
our opinion, therefore, the contention raised by the appellant that the appeal
preferred by respondent before the High Court was incompetent must be rejected.
The question of construing s. 90 can be
considered from another point of view. It provides for the procedure before the
tribunal and lays down that it is open to the tribunal to dismiss an election
petition under s. 90, sub-s.
(3); but this being a procedural provision is
would not be unreasonable to hold that, when the actual order dismissing the
petition is passed, it would be referable to the provisions of s. 98(a). The
same conclusion would follow if we consider the provisions of ss. 103, 106 and
107. It cannot be suggested that the order passed by the tribunal dismissing
the election petition for noncompliance of s. 117 is not required to be
communicated to the Election Commission under s. 103 or transmitted by the
Election Commission to the appropriate authority under s. 106.
Similarly it cannot be said that such an
order would not take effect as soon as it is pronounced by the tribunal under
s. 107. It would thus be noticed that though the provisions of these sections
are obviously applicable to an order dismissing the election petition on the
ground of noncompliance of s. 117, in terms the said sections refer to orders
passed under s. 98 or s. 99. Therefore, we think it would be reasonable to hold
that, where the tribunal dismisses an election petition by virtue of the provisions
(1) A.I.R. 1958 Madh. Pra, 224.
533 contained in s. 90, sub-s. (3), the order
of dismissal must be deemed to have been made under s. 98. Similarly s. 99(1)
(b) which empowers the tribunal to fix the total amount of costs payable and to
specify the person by and to whom that shall be paid in terms refers to cases
where an order is made under s. 98. It cannot be suggested that, where an order
of dismissal is passed under s. 90, sub-s.
(3), the tribunal cannot, make an appropriate
order of costs. This provision also indicates that-the order passed under s.
90, sub-s. (3) is in law and in substance an order passed under s. 98(a). It is
true that in cases where such ail order is passed s. 99(1)(a) would not come
into operation, but that can hardly affect the position that an order' under s.
90, sub-s. (3) is nevertheless an order under s. 98.
We would like to add that by Act 58 of 1958
an explanation has been added to s. 90, sub-s. (3) which clarifies the
legislative intention on this point. This explanation provides that an order of
the tribunal dismissing an election petition under this sub-section shall be
deemed to be an order made under cl. (a) of s. 98. After the enactment of this
explanation there can be no doubt that ail order passed under s. 90, sub-s. (3)
would be appealable under s. 116 A of the Act.
That takes us to the second point raised by the
appellant that the High Court was in error in holding that respondent I bad
complied with the provisions of s. 117 of the Act.
Section 117 provides that the petitioner
shall 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. In the present case, respondent 1 has
deposited the requisite security, but it is urged that the security has not
been deposited as required by s. 117. This is how the security deposit has been
made 534 Under Amount.
By whom On what account. rupees in brought.
words. Rs. A. P. Shiv Prasad Security deposits for Rs. One 1,000-0-0.
Chanpuria. Election Petition of Thous Bargi
Assembly Constituency and No. 97 one D i s t t., Jabalpur, only.
Refundable by order of the Election
Commission of India, New Delhi.
Total ... 1000-0-0.
The argument is that the security has not
been deposited in the name of the Secretary to the Election Commission as
required by s. 117 and it is deposited with the condition that it is refundable
by the order of the Election Commission of India. In other words, the only power
which the Election Commission of India can exercise in respect of the security
is to refund the amount to respondent I ; and it would not be competent to the
Commission to direct the amount to be paid to the appellant even if the
election petition filed by respondent I is dismissed with costs. In our
opinion, this objection is purely, technical. It has recently been held by this
Court in Kamaraj Nadar V. Kunju Thevar (1) that s.117 should not be strictly or
technically construed and that wherever it is shown that there has been a
substantial compliance with its requirements the tribunal should not dismiss
the 'election petition under s. 90, subs. (3) on technical grounds. Indeed it
is clear that the receipt with which this Court was concerned in the case of
Kamaraj Nadar (1), was perhaps slightly more defective than the receipt in the
present case. The argument based on the use of the word " refundable
" ignores the fact that the security in terms has been made in respect of
the election petition in question and it has been duly credited as towards the
account of the Election Commission. Therefore, there can be no doubt that if an
(1) A.I.R. 1958 S.C. 687.
535 occasion arises for the Election
Commission to make an order about the payment of this amount to the successful
party the use of the word "refundable" will cause no difficulty
whatever. We hold that the security has been made by, respondent. 1 as required
by S. 117 of the Act and would be at the disposal of the Election Commission in
the present proceedings.
We would like to add that even s. 117 has
been subsequently amended by Act 58 of 1958 and the reference to the Secretary
has been deleted.
The result is the appeal fails and must be
dismissed with costs.