Gian Chand Puran Chand Vs. Smt. Om Prabha JaIn and anr. - Court Judgment

Indar Dev Dua, J.

1. This appeal has been preferred by Gian Chand against the decision of the Election Tribunal, Kar-nal, dated 8th November, 1957 by which his petition challenging the election of Shrimati Om Prabha Tain respondent to the Punjab Legislative Assembly from Kaithal Constituency had been dismissed on the ground that the election petition, did not comply with the mandatory provisions of Section 117 of the Representation of the People Act, 1951.

2. The above election petition challenging the election of Shrimati Om Prabha Jain was filed on the 24th of April, 1957. On the 14th of October, 1957 when the case is said to have become ripe for arguments, an application on behalf of the respondent was filed alleging that Gian Chand Petitioner had not complied with the provisions of Section 117 of the Representation of the People Act, 1951 inasmuch as security, for Rs. 1,000/- deposit ed by him was not security for costs of the petition.

It was prayed that the election petition be dismissed forthwith under Section 90(3) of the Representation of the People Act. On the following day reply to this petition was filed stating that the petitioner had closed his evidence and that if at all,the point was allowed to be raised, it would require evidence for proper enquiry.

The Tribunal, however, on the 8th of Novem-ber, 1957 dismissed the petition as stated above,holding that no other evidence except the depositreceipt itself could under the law be adduced andthat the receipt did not show that the provisions ofSection 117 of the Representation of People Act hadbeen complied with. Against this decision thepresent appeal has been preferred. ;

3. Mr. Harbans Singh Doabia counsel for the respondent has raised a preliminary objection con-tending that the present appeal is not competent as the impugned order does not fall under Section 98 of the Representation of the People Act, 1951. He submits that Section 116A of. the said Act provides an appeal only from orders) passed by a Tribunal under Section 98 or Section 99. Section 98 reads as follows : --

'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 thereturned candidates) to be void; or '

(c) declaring the election of (all or any of the returned candidate) to be void and' the petitioner or any other candidate to have been duly elected.'

Section 99, however, need not be reproduced asadmittedly it does not arise for consideration in thepresent case. The argument of the learned counselis, that dismissal of a petition under Section 90(3) isnot an order passed 'at the conclusion of the trialof an election petition' but is an order passed before the actual trial begins.

It is submitted that the Election Commission under Section 85 of the Act could have dismissed the election petition for non-compliance with the provi,-sions of Section 117. Similarly if the Tribunal dismisses the election petition on this ground, such dismissal cannot be considered to be covered by Section 98 in as much as a petition need not be tried for giving effect to a preliminary objection based on non-compliance with the provisions of Section 117.

Though in the present case the objection with respect to non-compliance with the provisions of Section 117 of the Act was taken on 14th October, 1957, the date fixed for final arguments on the petition the decision of the Tribunal giving effect to this objection must nevertheless, according to Mr. Doabia be considered to be a decision given befora the conclusion of the trial. In support of his submission he has placed reliance on Harihar Singh v. Singh Ganga Prasad, a Division Bench decision of the Patna High Court reported as AIR 195S Pat 287.

This decision certainly supports the counsel butfor reasons to be stated hereafter I would, with theutmost respect to the learned Judges, disagree withthe view expressed by them. Mr. Doabia has alsorelied on certain observations of the Supreme Courtin Jagan Nath V. Jaswant Singh, AIR 1954 SC 210.Reliance has particularly been placed on the obser-vations at page 214 of the report where it is ob-served--

'In that case the question arose whether the petition was duly verified and whether it was ac-companied by all the necessary lists required by Section 83(2). An elaborate inquiry had to be conduct-ed to determine the point whether the petition was typed on blank paper signed by the petitioner or whether it was- signed by him or some person autho-rised on his behalf after it had been typed. It is thus clear that it is no valid explanation to say that Section 82 was omitted from the provisions of Section 85 simply on the ground that the Election Commission was absolved From the duty of making elaborated inquiries at the stage when it had to say whether the provisions of Sections 81, 83 and 117 had been complied with. From the circumstance that Section 82 does not find a place in the provisions of Section 85 the conclusion follows that the directions contained in Section 82 were not considered to be of such a character as to involve the dismissal of a petition in limine' and that the matter was such as could be dealt with by the Tribunal under the provisions of the Code of Civil Procedure specifically made applicable to the trial of election petitions'.

4. The above observations of their Lordships of the Supreme Court do not, in my opinion support the preliminary objection raised by the learned counsel.

5. The counsel for the appellant has, on the other hand, drawn our attention to a decision of the Madhya Fradesh High Court in Hari Vishnu Kamath v. Election Tribunal, Jabalpur, AIR 1958 MP 168 and also to a later judgment of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 SC 444. Their Lordships of the Supreme Court have observed, in the last cited case, that

'the word 'trial' may be understood in a limited sense, as meaning the final hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. It may also connote the entire proceedings before the Tribunal from the time that the petition is transferred to it under Section 86 of the Act until the pronouncement of the award. While the word 'trial' standing by itself is susceptible of both the narrow and the wider senses indicated above, the question is, what meaning attaches to it in Section 90(2), and to decide that, 'one must have regard to the context and the setting of the enactment. Now, the provisions of the Act leave one in no doubt as to in what sense the word is used in Section 90(2) which is headed 'Trial of election petition'.

Section 86(4) provides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another member, and thereupon the trial is to be continued. This provision must apply to retirement or relinquishment by a member, even before the hearing commences, and the expression during the course of the trial' must, therefore, include the stages prior to the hearing'. 'Relying on these observations the counsel contends that the expression 'at the conclusion of the trial' as used in Section 98 of the Act should he given a wider meaning and should be interpreted to include the order in question which has both in law and in fact actually concluded the trial.

6. After giving my anxious thought to' the points raised, I am of the view that the observations of the Supreme Court in (S) AIR 1957 SC ,444, do support the appellant's contention the the 'order appealed against must be held to have been passed at the conclusion of the trial. In consequence I am also constrained, with due respect to the learned judges to doubt the correctness of the decision of the Patna High Court in AIR 1938 Pat 287.

Following (S) AIR 1957 SO 444, therefore, I would overrule the preliminary objection and hold that the impugned order has been passed (both in fact and in law 'at the conclusion of the trial of the election petition' and it clearly falls within the purview of Section 98 of Act XLIII of 1951 with the result that the present appeal must be held to be competent.

7. Coming to the merits of the case, it appears to me that the learned Election Tribunal was wholly wrong in holding that the provisions of Section 117 of the Representation of the people Act, 1951 were not complied with and in dismissing the election petition on this ground. The Government treasury receipt enclosed with the petition clearly shows that Gian Chand petitioner had deposited Rs. 1000/-011 account of the ejection petition and the amount was deposited on behalf of the Secretary to the Election Commission, Delhi, which clearly means that it was deposited in his favour,

The head of the account in which it was deposited is also clearly given in the receipt. It is nobody's case that this deposit of Rs. 1,000/- has been made by Gian Chand petitioner-appellant for any other purpose or in any other account. The learned Election Tribunal seems to have taken a wholly unreasonable view of the receipt when it observes that although the amount of Rs. 1,000/-tendcrcd by Gian Chand petitioner has been deposited in favour of the Secretary to the Election Commission it is nowhere stated in the receipt that the amount is deposited in favour of the said Secretary; it may be observed that the law nowhere requires that it should be so stated in the receipt.

I think that the entry in the receipt reasonably construed is capable of only one meaning, namely that the amount has been deposited in favour of the Secretary to the Election Commission. The Election Tribunal has then observed that there is nothing on the file to show that this deposit was made as a security for the costs of the petition. It may at this stage be mentioned that the Tribunal had itself ruled that no other evidence could be permitted to be adduced and that the receipt itself must show that the requirements of Section 117 of the Act had been complied with.'

On this ground the Tribunal had refused to give any opportunity to the appellant (though he had expressly asked for it) to adduce evidence for disproving the belated objection raised by the respondent in taking this view he learned Tribunal has in my opinion clearly gone wrong. The Supreme Court has in a recent unreporled judgment expressly ruled that it can be shown by evidence laid 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 realise the said sum of rupees one thousand for payment of the costs to the successful party. (See K. Kamaraja Nadar v. Kanja Thevar, C. A. No. 763 of 1957, Mariappam v. V.R. Nedunchezhiyam, C. A. No. 764 of 1957, and M.R. Masani v. Member, Election Tribunal, Ranchi, C. A, No. 48 of 1958, heard together and decided by one judgment on 22nd April, 1958 : (AIR 1958 SC 687).

In this view of the matter I am also doubtful if in the circumstances of the present case the learned Tribunal was at all justified in permitting the respondent to raise the objection with respect to non-compliance of the provisions of Section 117 of the Act on the date of final arguments, after the arties had closed their respective cases. It has in this connection to be borne in mind that public interest demands that election disputes deserve to be determined with despatch.

8. But be that, as it may, I am also inclined to hold that the receipt produced in the present ease fully complies with the essential provisions of Section 117; and literal compliance with the terms of this section is not called for. The Supreme Court has, in the above mentioned unreported judgment, further observed as follows : --

'What is of the essence of the provision contained in Section 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 Commissioner or to any person duly authorised by it to receive the same'.

Their Lordships have also observed at another place in the same judgment that 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, And this, in my opinion, the receipt in question clearly shows.

In the first column of the receipt Gian Chand Appellant) has been shown as the person paying the amount; in the second column the Secretary of the Election Commission, Delhi, is shown to be the person on whose behalf the amount is paid; in the third column it is shown that the remittance has been made in connection with the election petition; the fourth column shows Rs. 1000/- as the amount of deposit and the fifth column shows the head of account to be deposit for election petition.

It may at this stage he stated that it was not suggested by the respondent's counsel at the Bar that this deposit was made under any other provision except Section 117 of the Representation of the People Act; his only contention being that the receipt did not specifically state that the amount had been deposited as security for costs.

Thus reading together the entries in the receipt, and in the circumstances of the case, I have not the least hesitation in holding that the receipt clearly shows that the amount of Rs. 1,000/- was deposited by way of security for the costs of the petition. In view of what I have stated above and in view of the observations of their Lordships of the Supreme Court quoted above, I am of the opinion that the receipt in question clearly complies with the essential terms of Section 117 of the Representation of the People Act and the Tribunal had taken a highly technical view and was wrong in holding to the contrary.

9. It has often been stressed that it is in the interest of justice not to throw out election petitions on hyper-technical grounds and in the trial of election petitions where the purity of elections is questioned the most searching enquiry should be instituted; and the Tribunal trying the petitions should afford every possible facility, in its power, to ensure such enquiry.

I am not unmindful of the undesirability of lightly setting aside elections on inadequate, flimsy or frivolous grounds; at the same time it is, in my opinion, of the utmost importance for the healthy growth of parliamentary system of Government and of true democracy that the purity of the election process should be jealously safeguarded and people should in no case be allowed to get elected by flagrant breaches of the law of elections and by corrupt practices- Enquiry into allegations of corrupt practice therefore, should not be shut out or throttled by dismissing election petitions on un-substantial or highly technical grounds.

10. Holding as I do that the receipt in question does show, as required by Section 117 of the Representation of the People Act, that the deposit of Rs. 1,000/- had been made by the petitioner in the Government treasury in favour or the Secretary to the Election Commission and that, the amount was available as security for the costs of the petition, I would allow the appeal, set aside the order of the Election Tribunal dated the 8th November, 1957 and send the case back for disposal according to law in the light of the observations made above. The appellant will have his costs in this Court. The records of the case may be sent to the Tribunal without avoidable delay so that the election petition may be proceeded with expeditiously.

D. Falshaw, J.

11. I agree.