Jagan Nath vs Jaswant Singh And Others
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 100 of 1953
Decision Date: 20 January, 1954
Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Ghulam Hasan
In this case the Court recorded that the matter concerned Jagan Nath versus Jaswant Singh and others and that the judgment was rendered on 20 January 1954 by the Supreme Court of India. The author of the judgment was Justice Mehar Chand Mahajan and the Bench that decided the case comprised Justice Mehar Chand Mahajan, Justice B.K. Mukherjea, Justice Vivian Bose and Justice Ghulam Hasan. The petitioner was identified as Jagan Nath and the respondents were Jaswant Singh together with other parties. The judgment was dated 20-01-1954 and the Bench was headed by Chief Justice Mehar Chand Mahajan, with the other judges listed as B.K. Mukherjea, Sudhi Ranjan Bose, Vivian Hasan and Ghulam Hasan. The reported citation of the decision is 1954 AIR 210 and 1954 SCR 892, and the judgment has been cited in numerous subsequent cases, including RF 1954 SC 411 (4), R 1955 SC 610 (5), R 1957 SC 444 (20), R 1958 SC 687 (20), R 1958 SC 698 (10), R 1959 SC 93 (15), R 1960 SC 444 (48), R 1963 SC 1417 (21), E 1964 SC 1545 (7), R 1965 SC 628 (3), RF 1969 SC 1201 (33), R 1976 SC 744 (26), R 1982 SC 983 (7), R 1983 SC 558 (12), F 1983 SC 1311 (7,16), R 1984 SC 135 (8), R 1985 SC 89 (25), RF 1985 SC 150 (26), R 1986 SC 103 (4), F 1987 SC 1577 (14). The statutory provision involved was section 82 of the Representation of the People Act (Forty-three of 1951), which deals with the requirement of naming a proper party as a respondent in an election petition.
The headnote of the judgment set out two principal holdings. First, the Court held that failure to comply with the provisions of section 82 of the Representation of the People Act, 1951, and the omission of a proper party from the list of respondents, did not render the petition fatal; the tribunal was empowered to proceed in accordance with the rules of the Code of Civil Procedure that had been expressly made applicable, specifically Order XXXIV, rule 1. Second, the Court explained that a rule of statutory construction dictates that a provision similar to that in section 82 is not mandatory unless the statute expressly makes non-compliance penal. The judgment further indicated that the general principles governing the decision of election petitions were discussed in the course of the reasoning.
The judgment was recorded as a civil appeal, identified as Civil Appeal No. 100 of 1953, filed by special leave against the judgment and order dated 27 November 1952 of the High Court of Judicature, Punjab, Circuit Bench at Delhi in Civil Writ No. 65-D of 1952. That order arose from the judgment and order dated 11 November 1952 of the Election Tribunal at Delhi in Election Petition No. 10 of 1952. The appellant was represented by counsel assisted by another advocate, while the respondent was represented by counsel also assisted by a colleague. The Court’s judgment was delivered by Chief Justice Mahajan, who noted that the appeal concerned the decision of the Delhi Election Tribunal dated 11 November 1952 in Election Petition No. 10 of 1952. The appellant, Jagan Nath, had been elected as a member of the Delhi State Legislative Assembly from Constituency 25 (Roshanara) of the Delhi State, with polling held on 14 January 1952. The last date prescribed by law for the presentation of an election petition was 26 April 1952, a fact that formed part of the factual background leading to the issues before the Court.
In this matter, the first respondent, Jaswant Singh, filed an election petition before the Secretary of the Election Commission at New Delhi. He challenged the election of the appellant, Jagan Nath, and also contested the order of the Returning Officer that had rejected his own nomination paper. In the petition he named as respondents Brahma Sarup, Ram Prashad Poddar and the appellant Jagan Nath, but he failed to include Baijnath, a candidate whose nomination had initially been accepted and who later withdrew his candidature. The omission was significant because section 82 of the Representation of the People Act, 1951 required that such a candidate be impleaded. On 14 July 1952 the Election Commissioner appointed an Election Tribunal, which consisted of the persons later identified as respondents 5 to 7. The appointment was announced in the Gazette of India on 26 July 1952, and after the requisite publication the election petition was referred to the tribunal for consideration. The first hearing before the tribunal took place on 26 August 1952. At that hearing the appellant raised a preliminary objection, arguing that the failure to implead Baijnath was fatal to the maintainability of the petition. The petitioner responded that Baijnath was neither a necessary nor a proper party, and moreover that the non-joinder of a party could not be fatal in view of Order 1, rule 9 of the Civil Procedure Code. As an alternative, the petitioner suggested that if the tribunal deemed Baijnath to be a necessary or proper party, it could grant leave to implead him. The tribunal examined the preliminary objection and decided in favour of the petitioner, concluding that the omission of Baijnath as a respondent did not render the petition void. However, the tribunal also found that Baijnath was a proper party to be joined in the proceeding. Accordingly, it ordered that Baijnath be added as a respondent and that notice of the petition be served upon him. The tribunal explained that Baijnath was not a necessary party, meaning that a decision could be rendered in his absence, but as a proper party his joinder presented no obstacle, even though the prescribed period for presenting the petition had already elapsed.
Unsatisfied with the tribunal’s order, the appellant filed an application before the Punjab High Court under Articles 226 and 227 of the Constitution of India. He sought a writ of certiorari to set aside the tribunal’s order on the ground that the tribunal lacked jurisdiction, and he also requested that the election petition be dismissed on the basis that there was no valid petition before the tribunal for trial. The High Court dismissed the appellant’s application on 27 November 1952. Subsequently, a petition was presented to this Court under Article 136 of the Constitution, and special leave to appeal was granted. In the appeal, it was contended that the Election Tribunal was not a court of general jurisdiction but was established by the Representation of the People Act, 1951 solely for the purpose of trying election petitions. Its jurisdiction, the appellant argued, derived exclusively from the statute and was subject to the specific terms and conditions laid down therein. Consequently, the tribunal possessed no inherent powers of a regular court, and if the statutory prerequisites were not complied with, the tribunal would have no jurisdiction to act. The appellant further maintained that the scheme of the Act required that any election be challenged only by a petition filed in accordance with Part VI of the Act (section 80) and that all requirements of sections 81, 82, 83 and 117 had to be satisfied; otherwise the election could not be questioned. He asserted that any amendment or addition to the petition after the expiry of the fourteen-day period prescribed for filing a petition was impermissible, and that the provisions of section 82 were explicit, mandatory, and admitted no exception.
In this case, the Court observed that the Representation of the People Act, 1951, was enacted solely for the special purpose of trying election petitions, and that the Tribunal’s jurisdiction arose from that statute only upon compliance with the specific terms and conditions precedent set out in the Act. The Court noted that the Tribunal possessed no general or inherent powers of a regular court, and consequently, if the statutory prerequisites were not fulfilled, the Tribunal lacked authority to act. According to the appellant, the scheme of the Act required that no election could be challenged except by a petition filed in accordance with Part VI, particularly section 80, and that the petition had to satisfy all the requirements of sections 81, 82, 83 and 117. The appellant further contended that any addition or amendment to the petition after the expiry of the fourteen-day period prescribed for its presentation was impermissible. He argued that the provisions of section 82 were explicit, mandatory and admitted no exceptions; therefore, a petition that did not conform to the statutory requirements could not be considered a valid petition for the Tribunal to try. The appellant also submitted that while the Code of Civil Procedure governed the trial of the petitions, it could not be used to determine whether a petition had been validly presented. The Court reiterated the well-settled rule that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to the common law, and that the court possessed no common-law power in this context. It further emphasized the well-settled principle of natural justice that the success of a candidate who has won an election should not be lightly interfered with, and that any petition seeking such interference must strictly conform to the legal requirements. However, the Court explained that these propositions did not apply where the special law itself conferred authority on a Tribunal to proceed with a petition according to a specified procedure and did not stipulate the consequences of non-compliance with certain procedural requirements. The Court warned that, although the election of a successful candidate is not to be lightly disturbed, the law also aims to safeguard the purity of the electoral process and to prevent elections from being won through flagrant breaches or corrupt practices. The Court further observed that when the election law does not prescribe a consequence or penalty for non-compliance with particular procedural requirements, the Tribunal’s jurisdiction is not affected. Consequently, the Court found it necessary to set out the various provisions of the Act that were relevant to the matter before it.
The Court examined the provisions of Part VI of the Act, which governs disputes concerning elections. Chapter I of this Part contains the definitions applicable to the subject matter. Chapter II consists of six sections that set out the procedural framework for election petitions. Section 80 states that an election may be called into question only by an election petition filed in accordance with the provisions of Part VI.
Section 81 provides that an election petition may be presented on any of the grounds specified in sub-sections (1) and (2) of sections 100 and 101. The petition may be filed by any candidate who contested the election or by any elector, using the prescribed form and within the prescribed time, but not earlier than the date on which the name or names of the returned candidate(s) were published under section 67. The section further explains that a petition is deemed to have been presented to the Election Commission when it is delivered either to the Secretary of the Commission or to any other officer appointed by the Commission for that purpose, either by the petitioner personally or by a person authorized in writing, or when it is sent by registered post and delivered to the Secretary or the appointed officer.
Section 82 requires that the petitioner join as respondents all candidates who were duly nominated at the election, except the petitioner himself if he was also a nominated candidate. Section 83 mandates that the petition contain a concise statement of the material facts on which the petitioner relies, and that it be signed by the petitioner and verified in the manner prescribed by the Code of Civil Procedure for verification of pleadings. The section also obliges the petitioner to attach a signed and verified list setting out full particulars of any corrupt or illegal practice alleged, including, as far as possible, the names of the parties alleged to have committed each practice and the date and place of each alleged act. Additionally, the section empowers the tribunal to obtain further particulars by permitting amendment of the petition.
Section 84 deals with the relief that a petitioner may claim, while section 85 provides that the Election Commission shall dismiss the petition if the requirements of sections 81, 83 or 117 are not satisfied, although the Commission may condone delay in filing the petition for sufficient cause. Chapter III of Part VI, which contains twenty-one sections, governs the trial of election petitions. Section 86 states that if the petition is not dismissed under section 85, the Election Commission shall appoint an election tribunal to conduct the trial, and further provisions are made for the constitution of the tribunal and the venue of the trial.
In this case, the Court observed that the law prescribed the constitution of an election tribunal and determined the venue for the trial. Section 90 of the Act directed the procedure to be followed by the tribunal. Sub-section (2) of that provision stated that, subject to the Act and any rules made thereunder, every election petition must be tried by the tribunal, as nearly as possible, according to the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Sub-section (4) further provided that, notwithstanding any provision in section 85, the tribunal was empowered to dismiss an election petition that failed to comply with the requirements of sections 81, 83 or 117.
The Court noted that both the Election Commission and the tribunal were expressly authorized to reject petitions that did not satisfy sections 81, 83 or 117. However, no similar power was granted to dismiss a petition in limine that did not meet the requirements of section 82. Accordingly, such a petition could be dismissed only at the conclusion of the trial on grounds sufficient under section 98. The Court emphasized that the statute contained specific safeguards to prevent frivolous or unsubstantiated allegations of corrupt practice. A petition had to be properly verified, and the allegations within it required a certain degree of definiteness and accuracy.
According to Part VI, the procedure of the tribunal was expressly governed by the Code of Civil Procedure. When a petition complied with sections 81, 83 or 117, the Election Commission was bound to refer the petition to an election tribunal. The tribunal, unless it concluded that the petition was not in accordance with those sections, was obligated to try the petition and decide it in accordance with the applicable law. Section 90(1) further allowed any other candidate, subject to the provisions of section 119, to be impleaded as a party in the case within a prescribed period. This provision demonstrated that the list of parties set out in section 82 was not final and that defects in that list could be remedied.
The Court also referred to sections 110, 115 and 116 of Chapter IV, which supported the view that parties could be added or substituted after the commencement of proceedings. Section 110 specified the procedure for the withdrawal of a petition, permitting any person who might have been a party to apply, within fourteen days of the publication of the withdrawal notice in the official gazette, to be substituted as petitioner in place of the withdrawing party. Section 115 allowed a similar substitution in the event of the death of the original petitioner. Section 116 provided that if a sole respondent died or gave notice of non-opposition and no other respondent was appearing, the tribunal would publish notice of that event in the official gazette; thereafter, any person who might have been a petitioner could, within fourteen days of such publication, apply to be substituted in place of the respondent, oppose the petition and continue the proceedings on terms that the tribunal deemed appropriate.
When a respondent dies or gives a notice of non-opposition and there is no other respondent appearing in the petition, the tribunal is required to publish a notice of that event in the official gazette. After such publication, any person who might have been a petitioner may, within fourteen days, apply to be substituted in place of the deceased or non-opposing respondent. That substituted person may then oppose the petition and was entitled to continue the proceedings on such terms as the tribunal deemed appropriate. The provisions therefore indicate that the omission of a proper party from the list of respondents does not constitute a fatal defect. The tribunal may correct such an omission under the Code of Civil Procedure, Order I, Rules 9, 10 and 13. In the present matter, Baijnath had been a candidate who withdrew his candidature and did not contest the election. Considering his withdrawal and the specific grounds on which the petition was based, no prejudice was likely to arise to Respondent No I, because the principal ground of the petition concerned the alleged wrongful rejection of the petitioner's nomination paper. Baijnath made no claim that he had acquired any substantive rights because the petitioner had failed to implead him within the prescribed period, and consequently there was no question of depriving him of any such rights. The tribunal therefore correctly disallowed the preliminary objection raised on this basis.
Mr Chatterjee, counsel for the appellant, urged the tribunal to consider several decisions of election tribunals constituted under the Representation of the People Act, 1951, in support of his contention. A careful review of those decisions revealed that the tribunals had not reached a uniform view; conflicting opinions existed on whether non-compliance with section 82 was fatal to a petition. The tribunal deemed it unnecessary to analyse every decision in detail. It stated that it fully agreed with those decisions that held non-compliance with section 82 to be non-fatal and that the matter must be decided according to the rules of the Code of Civil Procedure, which were expressly made applicable. Mr Chatterjee particularly emphasised the decision of the Lucknow Election Tribunal, presided over by Shri N. S. Lokur, in Election Petition No. 287 of 1952, as reported in the Gazette of India dated 20 December 1951, Part 11, Section 3, page 1034. In that case, two persons who had been duly nominated but subsequently withdrew their candidatures were not impleaded as respondents, contrary to the requirement of section 82 of the Representation of the People Act, 1951. The Lucknow tribunal held that such non-joinder was fatal to the petition, asserting that the language of the Act was peremptory and mandatory, thereby obligating the petitioner to join as respondents all candidates who had been duly nominated.
The Court noted that the law left no alternative to the requirement of joining all duly nominated candidates as respondents and that failure to do so would ordinarily result in the petition’s dismissal. It observed that counsel had relied on several decisions of Election Tribunals decided under the election rules applicable under the Government of India Act, 1935, as well as on the decision of the Election Tribunal of Quilon in the case of Sri Ramchandra Nair v. Sri Ramehandra Das, reproduced at page 2396e of the Gazette of India Extraordinary, Part I, Section 1, dated 11 November 1952. Those authorities had held that unless the requirements of Rules 81, 82 and 83 were complied with, an election could not be questioned. Regarding the omission of Section 82 from the provisions of Section 85, the Court explained that the Election Commission could readily verify compliance with Sections 81, 83 and 117, but could not at the same stage determine whether the candidates who had been duly nominated had all been joined. Accordingly, the burden of that inquiry was placed on the tribunal, not on the Commission, and that was the reason given for the exclusion of Section 82 from Section 85.
The Court rejected both reasons offered by the tribunal. It held that the language of Section 82 was comparable to that of Order XXXIV, Rule I of the Code of Civil Procedure, which requires that all persons having an interest in a mortgage or in the right of redemption be joined as parties to any suit relating to the mortgage. The Court pointed out the well-settled view that such a provision is merely directory; non-joinder does not constitute a fatal defect and a decree may be granted against the parties actually on record unless the omitted party is essential, meaning that without that party no relief could be granted at all to the parties present. The Court therefore found no justification for treating the word “shall” in Section 82 as imposing a mandatory requirement different from the use of “shall” in Order XXXIV, Rule I of the CPC. It reiterated the rule of construction that a provision of this kind is not mandatory unless non-compliance is expressly penalised.
Turning to the dictum of the Lucknow Tribunal, which had asserted that no inquiry was required for non-compliance with Sections 81, 83 and 117, but that an inquiry would be necessary to determine whether particular individuals were nominated candidates, the Court held that this view could not withstand scrutiny. The Court explained that questions such as whether a petition was signed by the person purporting to sign it, whether an agent signing the petition was duly authorised, and whether the petition had been verified correctly are matters that necessarily require inquiry. Determining the identities of the nominated candidates is a factual issue that can be readily resolved by consulting the Returning Officer. Consequently, the Court concluded that the reasoning of the tribunal for omitting Section 82 from Section 85 on the ground that the Election Commission was relieved of the duty to conduct elaborate inquiries was unsound.
In order to determine the names of nominated candidates, the fact could be ascertained simply by consulting the Returning Officer. The Court observed that the tribunal’s reasoning on this point was unsound, a conclusion that was illustrated by reference to another case cited by counsel and decided by the same tribunal under the presidency of Shri N. S. Lokur. In that earlier case the issue was whether the petition had been properly verified and whether it was accompanied by all the lists required by section 83(2). The tribunal conducted an elaborate inquiry to decide whether the petition had been typed on plain paper and signed by the petitioner himself, or whether it had been signed by the petitioner or by an authorised agent after the typing was completed. From this examination it became clear that it could not be accepted as a valid explanation to claim that section 82 was omitted from the provisions of section 85 merely because the Election Commission was relieved of the duty to make such detailed inquiries at the stage when it was required to determine compliance with sections 81, 83 and 117. The omission of section 82 from section 85 led the Court to conclude that the directions contained in section 82 were not viewed as being of a nature that would compel the dismissal of a petition at the outset; rather, the matter could be handled by the tribunal under the provisions of the Code of Civil Procedure that are specifically made applicable to the trial of election petitions.
The Bombay Tribunal, presided over by Shri B. D. Nandkarni, adopted a contrary position in Election Petition No. 72 of 1952, reported on page 286 of the Gazette of India Extraordinary dated 5 February 1953. The question in that case was whether Shri T. C. Patil was a necessary party and whether the failure to implead him rendered the entire petition defective. The tribunal held that such a defect was not fatal. By contrast, in Petition No. 113 of 1952 decided on 28 July 1953, the majority of the Bombay Tribunal reached the opposite conclusion. The majority opinion was that the mandatory nature of section 82 itself implied that non-compliance with its provisions would inevitably lead to dismissal of the petition, making a separate provision for dismissal unnecessary and superfluous. The Court noted that these observations conflicted with the scheme of the Act as envisaged by section 85. Moreover, sections 81, 83 and 117 are also mandatory, yet section 85 expressly provides that the Election Commission shall dismiss the petition if it does not conform to the provisions of those sections, a power mirrored in section 90(4). The dissenting member of the tribunal offered cogent and sound reasons for his view, arguing against the majority’s position.
In this matter the Court observed that the failure to join a duly nominated candidate who had subsequently withdrawn was not necessarily a fatal defect to the election petition. By contrast, in Election Petition No. 83 of 1952, the Election Tribunal presided over by Shri B. C. Vakil held that such a defect was fatal to the petition. The Court also referred to a Division Bench of the Bombay High Court in Special Civil Appeal No. 2017 of 1952, decided on 19 December 1952, which allowed even a defective verification to be amended. While the Court noted that it was not required to give a final opinion on matters that are specifically covered by sections 81, 83 and 117 and dealt with by section 85 of the Act, it rejected the proposition that, despite the provisions of section 85, a failure to comply strictly with the provisions of section 82 would have the same consequences as those prescribed in section 85. The Court held that the question of whether the parties to the petition have been properly impleaded is for the tribunal and not for the Election Commission. The various provisions of the Act demonstrate that an election petition does not automatically abate or fail because of the death of the petitioner or any respondent, nor because any of them cease to take an interest in the trial once the petition has been referred to the tribunal. Moreover, any person who is capable of being a petitioner may continue the petition despite the death of the original petitioner or respondents, and the original parties’ failure to prosecute does not terminate the proceeding. These provisions were enacted to ensure that the democratic electoral process is not undermined by collusion among parties to the petition or by their deaths, and to prevent the inquiry from being shut down. Accordingly, the Court concluded that the provisions relating to the impleading of parties are not per se fatal and may be cured. The tribunal is therefore empowered to determine such matters as they arise in accordance with the Code of Civil Procedure. For these reasons, the Court affirmed that the decisions of the Election Tribunal and the Bombay High Court in the present case were correct, dismissed the appeal with costs, and ordered that the appeal be dismissed. The appellant was represented by an agent identified as N. H. Hingorani, and the respondent was represented by an agent identified as K. L. Mehta.