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1959 DIGILAW 212 (SC)

Budhi Nath Jha v. Manilal Jadav

1959-11-25

B.P.SINHA, J.C.SHAH, K.C.DAS GUPTA, K.SUBBA RAO, P.B.GAJENDRAGADKAR

body1959
JUDGMENT : B.P. Sinha, J. 1. The only question for determination in this appeal by leave of the High Court of Judicature at Patna under article 133(l)(a) of the Constitution of India is, whether the provisions of Section 117 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act"), had been substantially complied with by the appellant, when he filed his election petition numbered as Election Petition No. 365 of 1957, for setting aside the election of the respondent, challenging his election to the Bihar Legislative Assembly from Godda Constituency in the district of Santhal Parganas. The Election Tribunal, presided over by the District Judge of Santhal Parganas at Dumka, answered the question in the affirmative. The High Court, on being moved by the respondent under Articles 226 and 227 of the Constitution, held otherwise; and by its order dated 13th February, 1958, ordered that the election petition filed by the appellant "should be dismissed for non-compliance of the requirements of Section 117 of the Representation of the People Act". When we heard the appeal on 12th November, 1959, we announced that the appeal will be allowed and the order under appeal passed by the High Court set aside, and proceedings before the Election Tribunal were to continue. We also stated that our reasons for the decision will follow later. The following are our reasons for the decision already announced. 2. It is not necessary to state the facts of the case in detail. It is enough to state that the appellant, who was one of the candidates for election to the Bihar Legislative Assembly from the constituency aforesaid, filed the election petition against the respondent challenging his election on certain grounds. As was necessary under the law, the appellant had a deposit made of Rs. 1000 as security for costs. The chalan showing the deposit is in these terms: "Chalan of cash paid into the State Bank of India at Bhagalpur. To be filled by the remitter: By whom tendered (Name) Jai Kant Jha Name (or designation) and address of the person on whose behalf money is paid: Shri Budhi Nauth Jha, `Khairava' Village and PO Sonour PS, Godda district., Santhal Parganas. Full particulars of the remittance and the authority (if any) Deposit for election petition as security. Amount Rs. To be filled by the remitter: By whom tendered (Name) Jai Kant Jha Name (or designation) and address of the person on whose behalf money is paid: Shri Budhi Nauth Jha, `Khairava' Village and PO Sonour PS, Godda district., Santhal Parganas. Full particulars of the remittance and the authority (if any) Deposit for election petition as security. Amount Rs. 1000, Total 1000 To be filled by the Departmental Officer of the Treasury: Head of account Central (civil) Section P. Deposit not bearing interest (c) other deposits. Date Order of the Bank Correct receive and grant receipt. Signature and? (full designation of the officer ordering the money to be paid in). Received payment (in words) Treasurer Accountant Date Tresury Officer Attested Agent. Sd/- V.S. Rajagoplan. 17-7-57. Under-Secretary, Election Commission, India." 3. Thereupon, the Election Commissioner passed the following order on 16th May, 1957: `The Treasury chalan enclosed with the petition is defective inasmuch as it does not specifically mention that the amount has been deposited in favour of the Secretary, Election Commission. This may make it difficult for the costs, if any, ordered against the petitioner to be realised out of the deposit. It will be for the Tribunal to decide during trial after hearing the parties whether the defect in the deposit is fatal or may be cured, e.g. by a fresh deposit or otherwise so as to safeguard the respondents' right of costs if any awarded in their favour." 4. By his petition dated 27th August, 1957, the respondent put in a petition headed "under Section 90(3) of the Representation of the People Act, 1951," to the effect that requirements under Section 117 of the Act have not been fulfilled inasmuch as the deposit of the required security had not been made in favour of the Secretary to the Election Commission. This point was raised by way of a preliminary objection and it was prayed that the election petition be dismissed in limine, on that ground. A number of issues were framed on 21st September, 1957, the relevant issue being No. 1(a), is in these terms: "l. (a) Has there been deposit of security according to law? If not, is the election petition liable to be dismissed for the same?" 5. That preliminary issue was determined by the Election Tribunal against the respondent. A number of issues were framed on 21st September, 1957, the relevant issue being No. 1(a), is in these terms: "l. (a) Has there been deposit of security according to law? If not, is the election petition liable to be dismissed for the same?" 5. That preliminary issue was determined by the Election Tribunal against the respondent. The learned Judge, functioning as Election Tribunal, pointed out that an affidavit by the appellant had been filed before him stating that he had deposited the sum of Rs. 1000 by way of security for costs of the election petition and that he had intended that this deposit should have been made on his behalf in favour of the Secretary to the Election Commission, so that the amount may be available for payment of costs, if and when awarded, to the opposite party. The learned Judge, after reviewing a number of reported cases, came to the conclusion that the deposit of the money by way of security was mandatory and that the omission in the chalan evidencing the deposit of the fact it was made in favour of the Secretary to the Election Commission, was a mere irregularity which did not affect the substance of the matter and that, therefore, there was a substantial compliance with the mandatory provisions of Section 117 of the Act. 6. The respondent moved the High Court of Judicature at Patna under Articles 226 and 227 of the Constitution against the order aforesaid of the Election Tribunal. In the preliminary objection raised on behalf of the respondent, the only ground of attack against the deposit of security money was that the deposit had not been made in favour of the Secretary to the Election Commission. But, in the High Court an additional ground was taken that the security deposit did not specify that it was in respect of the election petition in question, A Division Bench of the High Court (V. Ramaswami, C.J., and U.K. Chaudhary, J.), who heard the petition under Articles 226 and 227 of the Constitution, set aside the order of the Election Tribunal in exercise of their authority under Article 227 of the Constitution and ordered that the election petition filed by the appellant "should be dismissed for non-compliance of the requirements of Section 117 of the Representation of the People Act". The High Court, in coming to this conclusion, only followed two previous decisions of that Court in Sardar Harihar Singh v. Singh Ganga Prasad (First Appeal No. 319 of 1957 decided on January 8, 1958; 13 ELR 478) and Anirudha Singh v. Chief Election Commissioner (Miscellaneous Judicial Case No. 523 of 1957 decided on the same date). The appellant moved the High Court for a certificate under Article 133 (1)(a) of the Constitution, which was granted. That is how the matter has been brought to this Court. 7. The question for determination in this case is no more res integra, because this very question arising in similar circumstances came before this Court in the reported decision in Kamaraja Nadar v. Kunju Thevar, (1959) SCR 583 : 14 ELR 270. In that decision, three appeals have been dealt with together. The interpretation of Section 117 of the Act arose in Civil Appeal No. 48 of 1958, the relevant facts of which have been set out at pp. 590-91 of the report. In that case also, the deposit made in the State of Bank of India at Ranchi, by way of security for costs of the petition, did not mention the words " in favour of the Secretary to the Election Commission". The Court considered the question whether the omission of these words was fatal to the maintainability of the election petition. After considering the relevant words of Section 117 of the Act, this Court held that the omission of the words aforesaid was not fatal and that those words were not mandatory but only directory in character. It was further laid down in that case that the essence of the provisions of Section 117 of the Act is that the petitioner should furnish security for costs of the petition and should enclose with the petition a Government Treasury receipt showing the deposit of Rs. 1000, which may be utilised by the Election Commission for payment of costs to the successful party, if so directed. 1000, which may be utilised by the Election Commission for payment of costs to the successful party, if so directed. This Court also indicated that, if it could be shown by evidence led before the Election Tribunal that the chalan evidencing the deposit of the security money, enclosed with the election petition, could be utilised for the purpose for which it was made viz, costs of the successful party, and was at the disposal of the Election Commission, there will be substantial compliance with the requirements of Section 117 of the Act. It was also held that literal compliance with the terms of Section 117 of the Act was not intended and that substantial compliance was enough. The same question was dealt with by another Bench of this Court in the case of Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria, 21 ELR 172. In that case, the security deposit of Rs. 1000 had been made, but not, in terms, in the name of the Secretary to the Election Commission; instead, the deposit was made "refundable by order of the Election Commission of India, New Delhi". This Court held that the objection based on the peculiar wording of the deposit was "purely technical". Relying upon the decision in Kamaraja Nadar casel this Court held that Section 117 of the Act should not be strictly or technically construed and that substantial compliance with its requirements should be treated as sufficient in the eye of law. In view of the decisions aforesaid of this Court, it is difficult, if not impossible, to contend that, in the instant case, the provisions of Section 117 of the Act had not been substantially complied with. That disposes of the first objection raised as to the validity of the security deposit. 8. It remains to consider the second objection, which had not been raised before the Election Tribunal, but which had been added when the matter was before the High Court. The additional ground was that the security deposit did not, in terms, recite that the deposit was in respect of the election petition in question. It is manifest that the security deposit, as evidenced by the chalan which accompanied the election petition, must necessarily be read as "security for the costs of the petition" of which it formed a part. That this ground was an after thought is clear. It is manifest that the security deposit, as evidenced by the chalan which accompanied the election petition, must necessarily be read as "security for the costs of the petition" of which it formed a part. That this ground was an after thought is clear. It is equally clear that there is no substance in this objection either. It is not surprising, therefore, that the respondent did not enter appearance to contest this appeal. 9. In the result, the appeal is allowed, the order of the High Court set aside, and the Election Tribunal directed to hear and determine the controversy without any avoidable delay. As there is no appearance on behalf of the respondent, there will be no order as to costs in this Court.