Om Prabha Jain Vs. Gian Chand & ANR
[1959] INSC 30 (1 April 1959)
SARKAR, A.K.
IMAM, SYED JAFFER SUBBARAO, K.
CITATION: 1959 AIR 837 1959 SCR Supl. (2) 516
CITATOR INFO :
R 1983 SC 558 (25)
ACT:
Election DisputeDeposit for security for
costs-Dismissal of Election Petition for non-compliance with rules
therefor--Appeal Maintainability-" Trial ", meaning ofRecitals in
deposit receipt -" On whose behalf ", meaning of-Representation of
the People Act, 1951 (51 of 1951), ss. 90(3), 98, 99, 116-A, 117.
HEADNOTE:
Section 117 of the Representation of the
People Act, 1951 provided: " The petitioner shall enclose with the
petition a Government Treasury receipt showing that a deposit of one thousand
rupees has been made by him...... in favour of the Secretary to the Election
Commission as security for the costs of the petition." The respondent, who
filed an election petition challenging the validity of the appellant's
election, deposited the amount as required under s. 117 of the Act. In the
deposit receipt, the words " Secretary to the Election Commission "
were put in as against the name of the person on whose behalf money was paid.
The appellant contended that the receipt in this form showed that the money had
been paid by the respondent acting for the 517 Secretary to the Election
Commission and not by him in favour of the latter, and that as the receipt was,
therefore, not in terms Of S. 117, the election petition should be dismissed.
The Tribunal accepted the appellant's contentions and dismissed the election
petition under the provisions of s. 90(3) of the Act.
Held, that the words " on whose behalf
" in the deposit receipt, in the context, must mean " in whose favour
" and that the receipt was in full compliance with s. 117 of the Act.
Held, further, that the order passed by the
Tribunal under the powers contained in s. 90(3) Of the Act dismissing the
election petition is an order under s. 98 and is appealable under s. 116A.
The word " trial " in s. 98 of the
Act means the entire proceeding before the Tribunal from the reference to it by
the Election Commission to the conclusion.
Harihar Singh v. Singh Ganga Prasad, A.I.R.
1958 Pat. 287, disapproved.
Harish Chandra Bajpai v. Triloki Singh,
[1957] S.C.R. 370, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 85 of 1959.
Appeal by special leave from the judgment and
order dated August 12, 1958, of the Punjab High Court in First Appeal Order No.
183 of 1957, arising out of the judgment and order dated November 8, 1957, of
Shri Harbaksh Singh, Member, Election Tribunal, Karnal, in Election Petition
No. 249 of 1957.
Purshottam Tricumdas, J. B. Dadachanji, S. N.
Andley and P. L. Vohra, for the appellant.
Ganpat Rai, for respondent No. 1.
Naunit Lal, for respondent No. 2.
1959. April 1. The Judgment of the Court was
delivered by SARKAR, J.-ID the 1957 General Elections the appellant was
declared elected to the Punjab Legislative Assembly. The respondent, Gian
Chand, filed an election petition for a declaration that the appellant's
election was void. The other respondent in this appeal, presumably another
unsuccessful candidate at the election, had been made a party to the petition
but he never appeared at any stage.
For brevity we will refer to the respondent
Gian Chand, as the respondent, 518 The Election Tribunal before whom the
petition came up for trial framed a number of issues and recorded evidence.
When the case was ready for argument, the appellant made an application to the
Tribunal for an order dismissing the petition under s. 90(3) of the
Representation of the People Act, 1951, which is later set out, on the ground
that s. 117 of that Act had not been complied with. Section 117 requires that
every election petition shall be accompanied by a Government Treasury receipt
showing that a deposit of Rs. 1,000 had been made by the petitioner in favour
of the Secretary to the Election Commission as security for the costs of the
petition. The appellant's contention was that the receipt enclosed with the
petition was not, for reasons which will be mentioned later, in terms of the
section. The respondent objected to the application being entertained because
of the delay in filing it and also on the ground that it could not be decided
without taking evidence. The Tribunal overruled the respondent's objections and
held on a scrutiny of the receipt alone that it was not in terms of s. 117, and
thereupon dismissed the election petition under the powers conferred by s. 90
(3) without deciding the other issues framed.
The respondent went up in appeal to the High
Court of Punjab. It was there contended on behalf of the appellant that no
appeal lay from an order dismissing an election petition for the reasons
mentioned in s. 96 (3) and that the order of the Tribunal was in any event
right. The High Court held that an appeal lay to it and that the order
dismissing the petition was wrong because the terms of s.
117 had been complied with. The present
appeal is against this order of the High Court.
The first point that arises is whether an
appeal lay to the High Court. The Act provides by s. 116A that an appear shall
lie from every order made by an Election Tribunal under s. 98 or s. 99 to the
High Court of the State in which the Tribunal is situated. The appellant's
contention is that the order of the Tribunal dismissing the petition had not
been made under either of these sections. It is quite clear that the 519
Tribunal's order had not been made under s. 99. The point that arises is
whether the order had been made under s. 98.
If it had not been made under s. 98, an
appeal would clearly not lie. The appellant contends that it was not so made
but had been made under s. 90 (3). These two sections are set out below:
" Section 98.-Decision of the
Tribunal.-At the conclusion of the trial of an election petition the Tribunal
shall make an order(a) dismissing the election petition; or (b) declaring the
election of all or any of the returned candidates to be void ; or (c) declaring
the election of all or any of the returned candidates to be void and the
petitioner or any other candidate to have been duly elected;".
" Section-90--Procedure before the
Tribunal. (3) 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." Section 85 provides :" Section 85.-If the provisions of
section 81 or section 82 or section 117 have not been complied with, the
Election Commission shall dismiss the petition." It is first contended on
behalf of the appellant that the revisions of s. 85 and s. 90 (3) are
substantially the same and the fact that no appeal has been provided against
the order made by the Election Commission under s. 85 should be taken as
indicating that no appeal law against an order under s. 90 (3). We are unable
to agree with this view. It seems to us that whether an appeal lies against an
order of the Tribunal has to be decided by reference to s. 116A and not by
reference to the fact that a similar order by the Election Commission has not
been made appealable.
It is next said that an order under s. 8 is
by the terms of the section, an order made at the conclusion of the trial of an
election petition while an order dismissing a petition for any of the reasons
mentioned in 520 s. 90 (3) is an order made prior to the commencement of such
trial or at least prior to its conclusion. It is said that the word "
trial " in s. 98 means that stage of the trial where evidence is tendered
and arguments are addressed. Therefore, it is contended, an order dismissing a
petition under the powers contained in s.90(3) is not an order under s. 98 and
it is consequently not appealable.
We see no justification for this view. An
order made under the powers contained in s. 90(3) brings to an end the
proceedings arising out of a petition ; after it is made, nothing more remains
for the Election Tribunal to try or do in respect of that petition. Therefore,
it would appear that it is made at the conclusion of the proceedings before the
Tribunal. It follows that such an order is made at the conclusion of the trial
by the Tribunal for, as will be presently seen, the sole duty of the Tribunal
is to try the petition; the proceeding before it is the trial before it.
For the same reason it would be impossible to
say that the order was made before the commencement of the trial of the
petition by the Tribunal. That would be entirely against the whole scheme of
the Act which we now proceed to consider.
Chapter III of Part VI is beaded " Trial
of Election Petitions ". It consists of ss. 86 to 107 and covers the
entire ground from the moment an election petition comes to an Election
Tribunal till the final order of the Tribunal terminating the proceeding
arising out of the petition before it. The first section, s. 86, provides that
if the Election Commission does not think fit to dismiss under s.
85 the petition which has to be filed with it
in the first instance, it shall refer the petition " for trial " to
an Election Tribunal constituted by it for the purpose.
Therefore it would seem that the sole duty of
an Election Tribunal is to try an election petition referred to it. It is an ad
hoc body created under s. 86 for this purpose only.
When it passes an order which closes the
proceedings before it arising out of an election petition, it must be deemed to
have tried the petition and passed the order at the conclusion of such trial.
It would no less be so when it 521 decides a matter before it and there by
brings the proceedings to a close on one of the several issues raised and does
not decide the other issues. In such a case it has made the order after trial
of that issue for clearly it cannot make an order on -any issue without trying
it. It has therefore made the order at the conclusion of the trial held by it.
And for this purpose, it makes no difference that the issue tried is of the
nature usually called as preliminary issue or that the Tribunal does or does
not consider it necessary to try the remaining issues.
The same conclusion also follows from the
other provisions of the said Chapter III of the Act, some of which are
hereinafter mentioned. Section 86(4) gives the Election Commission the power to
fill a vacancy occurring in the office of a member of an Election Tribunal and
upon the vacancy being so filled up " the trial " of the petition
shall be continued by the Tribunal as if the person appointed in the vacancy
had been on the Tribunal from the beginning. Since it is conceivable that a vacancy
may occur in the office of a member of a Tribunal long before the final
hearing, that is to say the taking of the evidence and the commencement of the
arguments, this section by providing that upon the vacancy being filled "
the trial" of the petition shall be continued must be taken as
contemplating the proceeding prior to the final hearing also as trial.
Under s. 88 an Election Tribunal may in its
discretion sit " for any part of the trial at any place in the State in
which the election had taken place. Here again the entire proceeding before the
Tribunal from the reference to it by the Election Commission till the
conclusion is being considered as the trial. Again under s. 89 the Election
Commission may at any stage withdraw a petition pending before a Tribunal and
transfer it " for trial to another Tribunal " and " that
Tribunal shall proceed with the trial from the stage at which it was withdrawn
" from the first Tribunal. So here too the entire proceeding from the
first reference to an Election Tribunal is being spoken of as the trial. Hence
the contention of the 66 522 learned counsel for the appellant that the trial
mentioned in s. 98 is the stage in the proceedings in which evidence is taken
and arguments are heard, is unfounded. That word in the other sections in this
part of the Act clearly means the entire proceeding before a Tribunal from the
reference to it by the Election Commission to the conclusion. We find no reason
to give it a restricted meaning in s. 98.
Again, suppose in a case no evidence was
necessary but the petition was dismissed after hearing arguments only. That
would clearly be an order under s. 98. It would have been passed at the
conclusion of the trial. How is that case different from one in which on
arguments having been heard, the petition is dismissed under the powers
contained in s. 90(3) ? Obviously here also the order was made -at the
conclusion of the trial. An order passed by the Tribunal under the powers
contained in s. 90(3) bringing the proceeding to a close is, therefore, in our
view an order made under s. 98.
The learned counsel for the appellant
referred us to Harish Chandra Bajpai v. Triloki Singh (1) in support of his
contention that the order of the Tribunal with which we are concerned in this
case was not made at the conclusion of the trial. We are unable to find
anything. in that case to help him. There this Court was dealing with s. 90(2)
of the Act in which the word trial' occurred. This Court observed that the word
trial' standing by itself may be susceptible of two meanings, that is, as
referring to the final hearing of the petition consisting of examination of
witnesses, filing documents and addressing arguments, and also as referring to
the entire proceedings before the Tribunal from the time that the petition is
transferred to it under s. 86 of the Act until the pronouncement of the award.
It held that the word I trial' in the section meant the entire proceeding
before the Tribunal. This case therefore does not show that the word I trial'
in s. 98 meant only the final hearing. On the contrary it shows that in s.
90(2) which is one of the sections in the Chapter of the Act with which we are
concerned, (I) [1957] S.C.R. 370, 523 the word 'trial' has been understood by
this Court as referring to the entire Proceeding. That, as we have said
earlier, is really a good reason for thinking that in s. 98 the word 'trial has
the same wider meaning and not the narrow meaning of which, the -word standing
by itself may be capable.
It also seems to us that s. 90(3) which purports
to deal with the " procedure before the Tribunal " only states the
power of the Tribunal and s. 98 provides for the orders to be made by it in
exercise of that power. This view receives support from ss. 103, 106 and s. 107
of the Act. Under s.
103, the Tribunal after it has made an order
under s. 98 has to send a copy of it to the Election Commission and the records
of the case to the District Judge of the place where it had been sitting. Under
s. 106, after receipt of the order of the Tribunal the Election Commission
shall forward copies of the order to the appropriate authority and to the
Speaker or Chairman of the House the election to which was being questioned by
the petition. Section 107 provides that every order made under s. 98 or s. 99
shall take effect as soon as it is pronounced by the Tribunal. Now if the
contention of the appellant is right and an order dismissing a petition under
the powers contained under s. 90(3) of the Act is not an order under s. 98,
such an order need not be sent either to the Election Commission or to the
Speaker or the Chairman of the House concerned, neither would there be any
provision in the Act stating when the order is to have effect, nor again any
provision enabling the Election Tribunal, which is an ad hoc body, to dispose
of the records of the case before it. There is no reason why the Act should
provide that a dismissal of an election petition on the merits as it has been
called, shall be dealt with by the Act in one way while a dismissal on a
preliminary point shall be dealt with differently when the practical result of
both kinds of dismissal is the same. We are unable to think that the Act could
have intended such a curious result.
Therefore again, it seems to us that an order
in exercise of the powers given by s. 90(3) is made under s. 98.
We were also referred to K. Kamaraja Nadar v.
Kunju 524 Thevar (1) and the connected cases. There an objection under s. 90(3)
to an election petition similar to that which the appellant took in this case,
was described as a preliminary objection and it was said that if it was not
decided first the result would be a full-fledged trial of the election petition
involving examination of witnesses.
It was therefore directed that the
preliminary point should be decided first as that might save costs and
harassment to the parties by making it possible to avoid the trial of the other
issues. We are unable to hold that this judgment supports the view that an
order made under the powers given by s. 90(3) is not an order made at the
conclusion of the trial; the direction to decide what has been called the
preliminary objection, first does not lead to that conclusion. The Court was
not concerned with any question as to when an order under the powers given by
s. 90(3) could be made. It was indicating a procedure best suited to the
interests of the parties on the facts of that case and not laying down any rule
of law.
The last argument advanced was based on s.
99. That section says that at the time of making an order under s. 98 the Tribunal
shall also, where the petition contains a charge of a corrupt practice having
been committed, make an order recording a finding whether or not such corrupt
practice had been committed. It is said that if all orders of the Tribunal
dismissing an election petition were held to be orders under s. 989 then,,
where a petition contained a charge of a corrupt practice and it was dismissed
under the powers contained in s. 90(3) the Tribunal had further to make a
finding as to whether the commission of a corrupt practice had or had not been
proved. It is contended that such a position would be senseless for it would
prevent the Tribunal from ever disposing of an election petition summarily on a
preliminary ground. Therefore it is said that all orders dismissing an election
petition are not orders under s. 98 and that supports the view that an order
under s. 90(3) is not an order under s. 98. We are not impressed by this
argument. If the proper construction of s. 99 is that an election petition
cannot be dismissed on a preliminary (1) [1959] S.C.R. 583.
525 point raised under s. 90(3) where it
contains charges of corrupt practices having been committed, as the learned
counsel for the appellant contends, that construction must have effect however
senseless it may appear. Suppose an election is sought to be avoided on the
grounds, that the returned candidate was not qualified or that one of the
nomination papers had been improperly rejected and also on the ground of
corrupt practices having been committed by the returned candidate, all of which
are good grounds for setting aside an election under s. 100 of the Act. In such
a case too, if the construction put upon s. 99 by the learned counsel for the
appellant is right, the Tribunal cannot allow the petition on any one of the
first two grounds, which it could have done after a very summary trial, but
must proceed to decide the charges of corrupt practice alleged. This can be
said to be equally senseless as where having dismissed a petition for
non-compliance with s. 117 the Tribunal is made to record a finding on the
corrupt practices alleged. On the other hand, if it is not senseless in the one
case it is not senseless in the other.
We do not therefore find much force in the
argument based on an interpretation of s. 99 supposed to produce senseless
results.
All this cannot, in any event, supply a
reason for holding that an order which terminates the proceedings arising
before an Election Tribunal is not an order passed at the conclusion of the
trial when it was made for the reasons mentioned in s. 90(3). We have earlier
stated that the only duty of the Tribunal is to try and decide an election
petition and the order on the preliminary point may dispose of that petition.
We may also point out that under s. 99 (1) (b), the Tribunal at the time of
making an order under s. 98 has also to make an order awarding costs and fixing
the amount thereof. If an order authorised by s. 90(3) is not an order under s.
98 then, when dismissing a petition under s. 90(3) the Tribunal would appear to
have no jurisdiction to make an order for costs. That can hardly have been
intended.
We therefore think that an order dismissing a
petition for the reasons mentioned in s. 90(3) is an order 526 under s. 98 and
is appealable under s. 116A. In our opinion, the case of Harihar Singh v. Singh
Ganga Prasad (1) which took the contrary view, was wrongly decided.
As to the merits of the appeal, we find no
difficulty.
Under s. 117 of the Act the Treasury receipt
has to show a deposit of Rs. 1,000 in favour of the Secretary to the Election
Commission. There is no dispute that the respondent deposited the required
amount and enclosed a deposit receipt with his petition. The deposit receipt
filed by the respondent contained the following statements on which the
appellant's contention is based;
1. By whom tendered Gian Chand
2. Name of the person on Secretary to whose
behalf money the Election is paid Commission.
The contention is that the receipt in this
form showed that the money had been paid by the respondent acting for the
Secretary to the Election Commission and not by him in favour of the latter. We
are wholly unable to read the deposit receipt in that way. The second of the
two entries reproduced above is intended to indicate the person in whose favour
the money has been paid; 'on whose behalf' here clearly indicates in whose
favour or for whose benefit. The form of the receipt contains no other heading
for indicating the person in whose favour the money was paid and of course it
was paid in favour of somebody. That makes it perfectly clear that the words
'on whose behalf' mean in whose favour.
It would be absurd to think that the
respondent had paid the money into Treasury as security for the costs of the
election petition acting as the agent of the Secretary, Election Commission,
which would be the position if we were to accept the appellants contention.
We feel Do doubt that the receipt was in full
compliance with s. 117 of the Act.
In the result we dismiss this appeal with
costs.
Appeal dismissed.
(1) A.I.R. 1958 Pat. 287.
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