K. Kamaraja Nadar vs Kunju Thevar And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 22 April, 1958

Coram: A.K. Sarkar, J.L. Kapur, Bhagwati

In this case, the Court noted that the two civil appeals presented a single legal question concerning how sections 82 and 117 of the Representation of the People Act 1951 should be interpreted, and therefore the matters could be settled together in one judgment. Regarding Civil Appeal No 763 of 1957, the appellant was the Chief Minister of Madras, who had been declared duly elected to the Madras State Legislative Assembly from the Sathur constituency in the election held on 4 March 1957. He obtained thirty‑six thousand four hundred valid votes, whereas his rival, identified as respondent No 2 in the petition, received thirty‑one thousand six hundred eighty‑three valid votes. Initially, seven candidates were duly nominated for the constituency, but four withdrew their candidatures by the final withdrawal date of 4 February 1957. Consequently, three candidates remained on the list of contesting candidates published by the Returning Officer under section 38 of the Act: the appellant, respondent No 2, and a third individual named Sundararaja Pillai. Pillai retired from the contest on 21 February 1957 pursuant to section 55A(2) of the Act, leaving only the appellant and respondent No 2 as the two remaining contestants for the seat. After the declaration of the appellant’s election, the first respondent, who was a registered elector in the Sathur constituency, filed election petition No 147 of 1957. The petition impleaded both the appellant and respondent No 2 as party respondents and sought a declaration that the appellant’s election be void and that respondent No 2 be declared duly elected. Because Pillai, who had retired on 21 February 1957, had not been impleaded as a party respondent, the Election Commission raised an objection on the ground of his non‑joinder. Accordingly, a notice dated 1 May 1957 was issued to the first respondent, requiring him to show cause why the petition should not be dismissed summarily for the failure to join a necessary party. On 10 May 1957, the Election Commission ordered that the Election Tribunal, after hearing the parties, should determine whether Pillai’s non‑joinder materially affected the prayer for respondent No 2’s election. The Commission also identified a defect in the deposit of one thousand rupees, noting that the treasury receipt lacked the proper and complete head of account and that the deposit had not been made in favour of the Secretary, Election Commission, as mandated by section 117 of the Act. The Commission left the decision on whether this defect was fatal or could be cured by a fresh deposit, and the question of costs, to the Tribunal for determination after hearing. The Election Commission admitted the petition, published a copy in the official gazette as required by section 86(1) of the Act, served the petition on the appellant, and referred the matter to the Election Tribunal for trial.

The Election Commission admitted the petition and, in accordance with section 86(1) of the Act, caused a copy of the petition to be published in the official gazette. The petition was also served on the appellant and subsequently referred to the Election Tribunal for trial. On 22 June 1957 the appellant moved the Election Tribunal by filing Inter‑Application No. 1 of 1957, seeking dismissal of the petition pursuant to section 90(3) of the Act on the ground that the respondent had failed to join Pillai, who had also been a contesting candidate, as a respondent. On the same day the appellant filed a second inter‑application, Inter‑Application No. 2 of 1957, likewise requesting dismissal of the petition on the basis that the treasury receipt forwarded by the first respondent to the Election Commission did not mention the proper and complete head of account, and that the deposit had not been made in the name of the Secretary, Election Commission, as mandated strictly by section 117 of the Act. The first respondent then filed Inter‑Application No. 3 of 1957 before the Tribunal, asking for an amendment of the petition by deleting paragraph 7A, which alleged that the second respondent would have obtained more votes had the first respondent not resorted to corrupt practices in the election, and also seeking to delete a portion of the prayer that requested the Court to declare the second respondent as a duly elected candidate. All of these applications were heard together and finally disposed of by the Election Tribunal on 5 July 1957. During the proceedings the first respondent led evidence relating to the treasury receipt. K. Nataraja Mudaliar, who was the head accountant in charge of the Madurai Taluk Sub‑Treasury, testified that the sub‑treasury clerk had filled in the head of the account in the chalan, that the Treasury Officer would subsequently make the necessary entries in the chittas and transfer the amounts to the appropriate heads of accounts, and that the amount in question was kept in the Election Revenue deposit and could not be released without an order of the Election Commission, being therefore at the disposal of the Election Commission. On cross‑examination before the Tribunal, he further affirmed that the sum of Rs 1,000 had been entered in the deposit register as a security deposit for the costs of the election petition, that the Election Commission was authorized to draw the money, and that any person duly authorized by the Election Commission could also draw the amount. The Election Tribunal issued a common order on 5 July 1957, dismissing Inter‑Application No. 1 of 1957 on the opinion that Pillai was …

In this case, the Election Tribunal observed that the first respondent was no longer a contesting candidate because he had retired from the contest on 21 February 1957. Regarding Inter‑Application (I.A.) No. 2 of 1957, the Tribunal held that there was no defect in the accounting of the deposit and further expressed the view that the omission of a reference to the deposit being made in favour of the Secretary of the Election Commission was immaterial, since the deposit was deemed to have been made in favour of the Election Commission itself and the funds were at the commission’s disposal. Accordingly, the Tribunal found that the requirements of section 117 of the Act had been satisfied and it dismissed the application. Inter‑Application No. 3 of 1957, which sought certain amendments to the petition, was allowed; the Tribunal concluded that the first respondent had not intended to include the portions that were to be deleted and that their inclusion resulted from an accidental mistake by his legal advisers. On 14 July 1957, the appellant filed two writ petitions in the Madras High Court: Writ Petition No. 531 of 1957 for a writ of certiorari and Writ Petition No. 532 of 1957 for a writ of prohibition, both seeking to set aside the common order issued by the Election Tribunal in I.A.s 1, 2 and 3 and to prevent the Tribunal from conducting any further inquiry into the matter. These two writ petitions were heard together with writ petitions Nos. 573 and 574 of 1957, and the High Court dismissed all of them by a single judgment delivered on 24 September 1957. The appellant subsequently obtained, under Article 133(1)(c) of the Constitution, a certificate from the High Court authorising an appeal to this Court against the decisions in Writ Petitions Nos. 531 and 532 of 1957, which gave rise to Civil Appeal No. 763 of 1957. Civil Appeal No. 764 of 1957 concerned only the application of section 82 of the Act. In that appeal, the appellant had been declared duly elected to the Madras State Legislative Assembly from the single‑member Salem (1) constituency on 8 March 1957, having received 24,920 valid votes compared with 24,713 valid votes obtained by his rival, the first respondent. Ten candidates had been duly nominated for the election; five withdrew their candidature on 5 February 1957, which was the statutory last date for withdrawal, and two retired before 23 February 1957. Consequently, only three candidates remained: the appellant, the first respondent and the second respondent. When the Returning Officer prepared and published the list of contesting candidates under section 38 of the Act, the list also included two additional candidates who had retired from the contest between 5 February and 23 February 1957. On

On 18 April 1957 the first respondent, who had been a defeated candidate in the election, instituted Election Petition No. 74 of 1957. The petition set out two separate prayers. The first prayer sought the setting aside of the appellant’s election. The second prayer asked that, under section 101 of the Act, the appellant be declared duly elected on the basis that the appellant would have obtained a majority of the valid votes if it were not for corrupt practices that were alleged to have been committed by the appellant and other persons. The petition did not name as parties the two individuals who had initially appeared on the Returning Officer’s list of contesting candidates but who later retired from the contest. Consequently, on 25 April 1957 the Election Commission issued a notice to the first respondent requiring him to show cause by 6 May 1957 why his petition should not be dismissed summarily for failing to join these two necessary parties. The first respondent submitted his explanation on 2 May 1957. The Election Commission, however, chose to refer the question of the alleged non‑joinder to the Election Tribunal that it had appointed. Subsequently, on 24 June 1957 the appellant filed an application before the Election Tribunal, identified as Interlocutory Application No. 103 of 1957, requesting that the Tribunal dismiss the election petition in accordance with section 90(3) of the Act. On 13 July 1957 the Election Tribunal delivered an order on the appellant’s application. The Tribunal held that the two individuals who had withdrawn from the contest no longer qualified as “contest­ing candidates” within the meaning of section 82 of the Act, and therefore concluded that the election petition, as it was framed, was maintainable.

Following the Tribunal’s order, the appellant instituted two separate writ proceedings in the High Court of Judicature at Madras. The first writ, Writ Petition No. 573 of 1957, sought a writ of certiorari to quash the Tribunal’s order, while the second writ, Writ Petition No. 574 of 1957, sought a writ of prohibition to prevent the Tribunal from continuing its inquiry into Election Petition No. 74 of 1957. Both writ petitions were listed for hearing on 24 September 1957 together with Writ Petitions Nos. 531 of 1957 and 532 of 1957, which had been mentioned earlier. By a common judgment dated the same day, the High Court dismissed both of the appellant’s writ petitions. The appellant then obtained a certificate under article 133(1)(c) of the Constitution, challenging the High Court’s decision, and this procedural step gave rise to Civil Appeal No. 764 of 1957, which is before this Court. In addition, the record notes Civil Appeal No. 48 of 1958, which concerns only section 117 of the Act. In that appeal the appellant had been declared duly elected to the House of the People from the Ranchi East reserved constituency on 15 March 1957, having received 39,025 votes as against 36,785 votes obtained by the second respondent. The second respondent subsequently filed Election Petition No. 341 of 1957 on 27 April 1957, seeking relief against the appellant’s election.

In the election petition, the second respondent asked that the election to the House of the People be declared void and that he be declared duly elected from the same constituency. All the candidates who had contested the election were joined as party respondents to the petition. The second respondent attached to the petition a Government Treasury receipt that showed a deposit of one thousand rupees made by him in the State Bank of India, Ranchi Branch, as security for the costs of the petition. The receipt, however, did not contain the words “in favour of the Secretary to the Election Commission”; it only stated “security for the costs of the Election Petition, Ranchi East Parliamentary Constituency.” On 14 May 1957, the Election Commission ordered that the petition be admitted, but it deferred the question of whether the defect in the deposit was fatal or could be cured—such as by making a fresh deposit—to the Election Tribunal so that the appellant’s right to costs, if any, could be protected. On 31 July 1957, the appellant filed a petition before the Election Tribunal under section 90(3) of the Act, contending that the omission of the words “in favour of the Secretary to the Election Commission” from the Chalan was fatal and that the election petition should therefore be dismissed. He also prayed that this preliminary petition be heard and disposed of before any further hearing of the main election petition. The preliminary objection was heard on 26 and 27 August 1957, and the Tribunal, by an order dated 31 August 1957, expressed the view that the issue was not free from doubt. Being an ad hoc body, the Tribunal held that it was essential to decide the whole case rather than deal with it piecemeal, because there was no simple mechanism for remand if its view were not accepted by a higher authority. Consequently, the Tribunal declined to rule on the preliminary objection at that stage and ordered that the trial of the election petition proceed. Subsequently, on 6 September 1957, the appellant filed a writ petition under article 226 of the Constitution in the Patna High Court (M.J.C. No 480 of 1957), seeking a writ of certiorari to quash the Tribunal’s order and a writ of prohibition to halt the Tribunal’s proceedings. The High Court dismissed the petition on 9 September 1957, observing that the matter could be resolved during the hearing of the election petition itself. The appellant then obtained special leave to appeal from this Court on 16 December 1957 under article 136 of the Constitution, bringing Civil Appeal No 48 of 1958 before the Supreme Court. The appeal concerned the interpretation of two provisions of the Act.

The Court indicated that the statutory provisions which required interpretation were Section 82 and Section 117 of the Representation of the People Act. Section 82 dealt with the parties to be joined in an election petition and read as follows: “Parties to the petition: A petitioner shall join as respondents to his petition – (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.” Section 117 required the petitioner to furnish a security deposit and provided that “Deposit of Security: The petitioner shall enclose 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 in favour of the Secretary to the Election Commission as security for the costs of the petition.” The principal issue for determination, the Court observed, was the precise meaning of the expression “contesting candidate” appearing in Section 82 and whether a person whose name appeared in the list of contesting candidates published by the Returning Officer under Section 38 but who subsequently retired from the contest pursuant to Section 55A(2) fell within that expression.

To analyse the question, the Court surveyed the overall scheme of Part V of the Act, which regulated the conduct of elections. Under Section 30, once the notification calling for a member or members to be elected was issued, the Election Commission was required to fix five dates: (1) the last date for making nominations, (2) the date for scrutiny of nominations, (3) the last date for withdrawal of candidatures, (4) the date or dates on which a poll, if necessary, should be taken, and (5) the date before which the election had to be completed. A person could become a candidate for election only by being validly nominated. After nominations were received, the Returning Officer conducted a scrutiny on the appointed day, recorded his decisions to accept or reject each nomination, and then prepared a list of validly nominated candidates, which he affixed to his notice board. Any of those candidates could withdraw his candidature on or before the prescribed withdrawal deadline, and upon receipt of a withdrawal notice the Returning Officer was obligated to display the withdrawal in a conspicuous place in his office. Section 38 then required the Returning Officer, immediately after the withdrawal period expired, to prepare and publish a list of “contesting candidates,” meaning those persons who remained on the list of validly nominated candidates and had not withdrawn their candidature within the allowed period. This procedural context was presented to aid the Court in interpreting whether a candidate who retired under Section 55A(2) continued to be regarded as a “contesting candidate” for the purposes of Section 82.

Section 52 of the Act deals with the situation where a candidate who is contesting an election dies before the poll begins. The provision states that if a candidate dies and a report of the death reaches the returning officer before the poll starts, the returning officer, after being satisfied that the death has indeed occurred, must nullify or countermand the poll. Once the poll is countermanded, the entire electoral process is to be restarted as if a fresh election were being held, with all procedural steps taken anew. The section contains two important provisos. The first proviso provides that a person who was already a contesting candidate at the moment the poll is countermanded does not need to file a fresh nomination in order to stand again. The second proviso makes clear that any person who, prior to the countermanding of the poll, has filed a notice of withdrawal of candidature under section 37(1) or a notice of retirement from the contest under section 55A(2) is barred from being nominated as a candidate for the re‑held election. Sections 53 and 54 lay down the procedure to be followed in both contested and uncontested elections. Where the number of contesting candidates exceeds the number of seats available, a poll must be conducted. Where the number of contesting candidates is exactly equal to the number of seats, the returning officer must immediately declare each of those candidates duly elected to fill the seats. Where the number of contesting candidates is fewer than the number of seats, the returning officer must immediately declare those candidates elected and the Election Commission is then required to call upon the constituency to elect additional person(s) to fill the remaining vacancy or vacancies. Section 55A governs the retirement of a candidate from a contest in parliamentary and assembly constituencies and sets out the consequences of such retirement. Under subsection 55A(2), a contesting candidate may retire by delivering a notice in the prescribed form in the manner specified by the statute. Upon receipt of such a notice, the returning officer must affix a copy of the notice on his notice board and also arrange for its publication in the manner prescribed. Sub‑section 5 creates a legal fiction whereby any person who has given a notice of retirement under subsection 2 is thereafter deemed not to be a contesting candidate for the purposes of section 52. Sub‑sections 6 and 7 then provide the effect of such retirement on the conduct of the poll. Before any retirement occurs, the list of contesting candidates prepared by the returning officer under section 38 is used to decide whether a poll is required. Although sections 53 and 54 address all possible scenarios, if the number of contesting candidates exceeds the number of seats, a poll must be held; however, if one or more of those candidates retire before the poll commences, the remaining field may be reduced to a number of candidates that is equal to the number of seats available.

In this case the Court noted that when the number of remaining contesting candidates was the same as the number of seats to be filled, subsections 6 and 7 required the returning officer to immediately declare all those candidates duly elected and to cancel the poll. The Court then described Part VI of the Act, which governs disputes concerning elections. Section 80 was explained to provide that no election could be questioned except by means of an election petition filed in accordance with the provisions of that part. Under Section 81, an election petition challenging any election could be presented on one or more grounds specified in Section 100(1) and Section 101 to the Election Commission by any candidate at the election or by any elector within forty‑five days after, but not earlier than, the date on which the returned candidate was elected. Section 82 set out who must be joined as parties to such a petition. The petition‑er could simply seek a declaration that the election of all or any of the returned candidates was void; if he pursued that relief, he was required to join as respondents all of the returned candidates and any other candidate against whom the petition alleged corrupt practices. If, however, the petition‑er also sought a further declaration that he himself or another candidate had been duly elected, then every contesting candidate other than the petition‑er, together with any other candidate alleged to have committed corrupt practices, had to be joined as respondents. Section 84 dealt with the reliefs that the petition‑er could claim, stating that in addition to a declaration of voidness of the election of any returned candidate, the petition‑er could also ask for a declaration that he or another candidate had been duly elected. The Court emphasized that this provision formed the basis of the rules in Section 82(a) concerning necessary parties. Section 85 directed the Election Commission to dismiss a petition that failed to comply with Sections 81, 82 or 117, but it required that the petition‑er be given an opportunity to be heard before dismissal. Section 90 prescribed the procedure for the Election Tribunal, and subsection 90(3) required the Tribunal to dismiss any petition that did not meet the requirements of Sections 81, 82 or 117, even if the Commission had not dismissed it under Section 85. Section 117 related to the deposit of security by the petition‑er for the costs of the petition, a requirement already explained earlier. The Court concluded that the election procedure had been drafted with meticulous detail, covering every step from the issuance of the notification calling a constituency to elect members up to the publication of the election results.

Article 329(b) of the Constitution states that an election to either House of Parliament or to any House of the State Legislature may be questioned only by filing an election petition before the authority specified, and only in the manner prescribed by a law enacted by the appropriate legislature. Part VI of the Representation of the People Act, 1951 contains the statutory provisions that govern disputes arising out of elections. Section 98 of that Act enumerates the possible orders that an Election Tribunal may pass after the trial of an election petition. The Tribunal may (a) dismiss the petition; (b) declare the election of one or more returned candidates to be void; or (c) declare the election of one or more returned candidates to be void and award the seat to the petitioner or to any other candidate who is shown to have been duly elected. In addition, section 99 authorises the Tribunal to make an order where the petition alleges a corrupt practice. Under that section the Tribunal must record (i) a finding on whether any corrupt practice was proved to have been committed by, or with the consent of, any candidate or his agent, together with a description of the nature of the corrupt practice, and (ii) the names of all persons, if any, who were proved at trial to have participated in the corrupt practice and the specific nature of that practice.

The Court observed that these statutory provisions demonstrate that an election contest is not an action at law, nor a suit in equity, but a purely statutory proceeding that does not fall within the domain of common law, and consequently the courts possess no common‑law power to intervene except as provided by the Act. The Court further emphasized that, while the election of a successful candidate should not be interfered with lightly, the law also aims to protect the purity of the electoral process and to prevent candidates from being elected through flagrant breaches of the law or through corrupt practices. This principle was reiterated by Mahajan C.J. in Jagan Nath v. Jaswant Singh ([1954] S.C.R. 892, 895). In a similar vein, the observations in A. Sreenivasan v. Election Tribunal, Madras ([1955] 11 E.L.R. 278, 293) were quoted, stating that an election petition does not involve only the rival candidates; the public at large also has a substantial interest in the matter, not merely because an election is news‑worthy but because an election is a fundamental component of the democratic process. Citizens are justified in demanding that all elections be conducted fairly and freely, without being vitiated by corrupt or illegal practices, a concern that distinguishes election petitions from ordinary civil actions, where only the directly involved parties have an interest.

The Court observed that an election petition differs fundamentally from a ordinary civil suit because it is not confined to the interests of two opposing parties. In the Tipperary Case, Morris J. explained that the petition should not be treated as a mere cause between individuals. He rejected the argument that a petition could not be filed against a deceased person by pointing out that a petition is not a suit between two persons; rather, it is a proceeding in which the entire constituency is the principal party having an interest. This view underscored the public character of election disputes and the collective stake of voters in ensuring the integrity of the electoral process.

The Court then outlined the procedural steps that commence the electoral process. The process began with a formal notification calling upon a constituency to elect a member or members. Candidates filed their nomination papers by the appointed deadline, after which the returning officer scrutinised the documents and prepared a list of candidates who were validly nominated. Once this list was published, the electorate became aware of all candidates who were eligible to stand for election. Frequently, a political party might nominate more candidates than it ordinarily would in order to avoid the risk that some of its nominees could be disqualified by the returning officer, which could leave the party without any valid candidates. If the returning officer accepted the additional nominations, the party could then face the problem of its vote base being split among several of its own candidates at the poll. To prevent such a predicament, the law provides a mechanism for the withdrawal of candidatures by those who have been validly nominated. A candidate, after seeing the published list, could reassess his or her electoral prospects and decide to withdraw, perhaps to preserve the security deposit or for other reasons. The statute therefore grants a locus poenitentiae, allowing a candidate to withdraw within the prescribed time, and requires the returning officer to display any notice of withdrawal conspicuously in his office. After the withdrawal deadline passes, the identity of the candidates who remain validly nominated and have not withdrawn becomes certain. Those remaining are described in section 38 as “contest​ing candidates,” meaning they were on the original list of valid nominations and did not withdraw within the allowed period. Consequently, the returning officer prepared a list of contesting candidates immediately after the withdrawal period closed.

The returning officer prepared and published a list of the contesting candidates. This list was arranged in alphabetical order and it included each candidate’s name, the address that had been given in the nomination paper, and any other particulars that were prescribed by law. Schedule 7 A to the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, sets out the method for preparing the list and, among other things, it records the hours during which a poll will be taken, the date or dates of the poll, the deadline by which postal ballot papers must reach the returning officer (normally 5 p.m. on a specified date), as well as the place and date of the declaration and the signature of the returning officer. This information is required only where a poll is to be held. Sections 53 and 54 of the Act deal with the different situations that arise depending on the relationship between the number of contesting candidates and the number of seats to be filled. When the number of contesting candidates exceeds the number of seats, a poll must be conducted. Conversely, when the number of contesting candidates is equal to or less than the number of seats, the list of contesting candidates does not need to contain the poll‑related particulars, and the returning officer immediately declares all such candidates duly elected to fill the available seats. In that latter circumstance the Election Commission may still have to order a separate election to fill any remaining vacancy, but the original election process, which began with the issuance of the notification, is considered concluded. Only when the number of contesting candidates is greater than the number of seats does the poll become necessary and the election process continue. After preparation, the list of contesting candidates was affixed in a conspicuous place in the returning officer’s office, a copy was given to each candidate or his agent, and the list was also published in the official gazette. This procedure informs both the candidates and the entire constituency about who the contesting candidates are and who will proceed to the poll. Under section 38, the term “contest­ing candidates” refers to those individuals who were named in the list of validly nominated candidates and who did not withdraw their candidatures within the prescribed period; such candidates are normally expected to contest the poll.

In this case, the Court explained that if any candidate who had been listed as a contesting candidate dies and the notice of his death reaches the returning officer before the poll begins, the returning officer, after being satisfied that the death has indeed occurred, must cancel the poll. He must also inform the Election Commission and the appropriate authority of the cancellation. The cancellation of the poll terminates the whole election process, so that all proceedings relating to that election have to start again as if a fresh election were being held, including the whole nomination process for candidates. The Court further noted that when a candidate was already a contesting candidate at the moment the poll was cancelled, no new nomination is required for him because his original nomination remains valid. However, the Court recognized that a candidate might have previously given a notice of withdrawal of his candidature under section 37, thereby retiring from the contest. Such a withdrawal could have been made in favour of the deceased candidate because the withdrawing candidate believed his own chances of being elected were poor compared with those of the deceased, or for any other reason. The death of the former candidate creates a new situation: the candidate who had withdrawn may reassess his prospects and decide that he now wishes to contest the election again. In that circumstance, the Court held that the withdrawn candidate is entitled to be nominated afresh after the poll has been cancelled, and that section 52 expressly provides that a person in such a position is eligible to be nominated for the new election.

The Court then applied the same principle to a candidate who had given notice of retirement from the contest under section 55A(2). Such a retirement could have been made after the candidate re‑evaluated his chances of success in comparison with the now‑deceased contesting candidate. When the death removes the deceased candidate from the field, the retiring candidate may likewise reconsider his position, conclude that his chances of success against the remaining candidates are reasonable, and decide to put forward his candidature in the fresh election that will be held after the poll is cancelled. The Court clarified that the law expressly provides that the retiring candidate will not be disqualified from being nominated after the countermanding, because otherwise a withdrawal or retirement could be treated as a disqualification or as a refusal to seek election. Finally, the Court turned to the provisions concerning retirement from contest under section 55A. It observed that a candidate might not have withdrawn his candidature within the prescribed period, and nevertheless his name could have been included in the list of contesting candidates published by the returning officer.

Under section 38, a person who had been duly declared a contesting candidate was entitled to appear at the poll. Nevertheless, during the election campaign such a candidate could discover that his chances of victory were very slim and that, if he voted, he might have to forfeit his security deposit. The judgment noted that a variety of personal motives might influence the candidate, but it was unnecessary to examine those motives because the law permitted the candidate to withdraw his candidature and retire from the contest. Section 55A therefore created a specific right of repentance, allowing a candidate to retire by giving notice in the prescribed form to the returning officer not later than ten days before the date fixed for the poll. Once a candidate gave such a retirement notice, he chose not to go to the poll, and the election rules required the correction of the list of contesting candidates so that no elector would waste a vote on a person who was no longer standing. The returning officer was obliged to affix a copy of the retirement notice on the notice board at the polling station, to supply a copy to each of the remaining contesting candidates or to their agents, and to have the notice published in the official gazette. The court explained that the retirement of one or more candidates could reduce the number of remaining contesting candidates to exactly the number of seats to be filled. In that situation, sections 55A(6) and (7) operated in conjunction with sections 53 and 54, directing the returning officer to immediately declare the remaining candidates duly elected and to countermand the poll. A fresh election would be required only if, after such a declaration, any seat or seats still remained to be filled. The judgment further observed that if, despite the retirements, a poll still had to be conducted under section 53(1), the election process would continue, raising the question of what would happen if a candidate who had already retired died before the poll began.

The court clarified that, absent any special provision, section 52 would apply, requiring the returning officer, upon being satisfied of the death, to countermand the poll and to report the occurrence to the Election Commission and to the appropriate authority. To address this possibility, section 55A(5) was enacted. That provision stipulated that any person who had given a retirement notice under section 55A(2) was to be deemed not to be a contesting candidate for the purposes of section 52. The court described this as a deeming provision that created a legal fiction. The effect of that legal fiction was to treat the retired candidate as if he were not a contesting candidate at all, thereby removing the necessity to apply the provisions of section 52 to his death.

In this case the Court observed that the effect of section 55A (5) is to create a legal fiction whereby a circumstance that would not otherwise exist is treated as if it did. The provision was enacted because, without it, a candidate who had retired under section 55A (2) would cease to be a “contest­ing candidate” for the purposes of the election, and the consequences of his death would fall within the ordinary rules of section 52. Since the retiring candidate continues to be regarded as a contest­ing candidate for the purposes of the Act, it became necessary to prescribe a rule dealing with the eventuality of his death and to remove him from the class of contest­ing candidates defined in section 38. Section 38 describes a contest­ing candidate as a person whose name appears in the list of validly nominated candidates, who has not withdrawn his candidature within the prescribed period, and whose name has been included in the list of candidates prepared and published by the returning officer in the manner prescribed. Accordingly, a candidate whose name was placed on the list under section 38 but who later retires under section 55A (2) remains, in the eyes of the law, a contest­ing candidate even though his retirement makes it unnecessary for voters to cast a ballot for him. The Court therefore concluded that such a retiree retains the status of a contest­ing candidate for the purposes of the Act, despite the fact that his retirement obviates the need for votes in his favour at the poll. When the Court turned to Part VI of the Act, which governs disputes concerning elections, it noted that section 79 does not define the term “contest­ing candidate”, although it does define “candidate” and “returned candidate”. An election petition challenging any election may be presented by any candidate in that election or by any elector, on any of the grounds specified in sections 100(i) and 101, to the Election Commission. If the petitioner also seeks a declaration that he or another candidate has been duly elected, the petitioner must join as respondents all the other contest­ing candidates, except the petitioner himself, and any other candidate against whom the petition alleges corrupt practices. The phrase “other than the petitioner” is intended to exclude the petitioner when the petitioner is a contest­ing candidate who was defeated at the poll; it does not apply where the petition is filed by an elector. An elector who files such a petition must therefore join as respondents every contest­ing candidate whose name was included in the list of contest­ing candidates prepared and published by the returning officer.

In the judgment, it was explained that the manner prescribed by section 38 required that all candidates who appeared on the list of validly nominated candidates and who had not withdrawn their candidature within the time limit set by the statute must be joined as respondents to an election petition. This requirement applied even if any of those candidates had later retired from the contest under the provisions of section 55A(2). The court noted that section 82 prescribed the persons who had to be joined as respondents, and that failure to comply with those provisions mandated, under section 85, that the Election Commission dismiss the petition. The same consequence of dismissal followed for non‑compliance with section 117, which dealt with the deposit of security for costs. The court further observed that, should the Election Commission nevertheless accept a petition without dismissing it on those grounds, it was obliged to publish a copy of the petition in the official gazette, to serve a copy by post on each respondent, and to refer the matter to an election tribunal for trial. Moreover, section 90(3) imposed a mandatory duty on the election tribunal to dismiss any election petition that did not meet the requirements of section 82 or section 117, even if the Election Commission had not dismissed the petition under section 85. The tribunal was required to do so upon any application made for that purpose. Turning to section 117, the judgment clarified that this provision concerned the deposit of security for the costs of the petition. When a petitioner filed an election petition under section 81, he was required to enclose a Government Treasury receipt evidencing a deposit of one thousand rupees. The receipt had to show that the deposit was actually made either in a Government Treasury or in the Reserve Bank of India, that the deposit was made in favour of the Secretary to the Election Commission, and that the deposit was furnished as security for the costs of the petition. These three conditions were described as essential elements of compliance with section 117. The court then posed the question of whether the phrase “in favour of the Secretary to the Election Commission” was a mandatory requirement, such that a deposit made in a Treasury or the Reserve Bank of India but not expressly in the Secretary’s favour would be deemed invalid and ineffective. It illustrated the issue by imagining a situation where the petitioner deposited the amount in a Treasury or the Reserve Bank of India in favour of the Election Commission itself and obtained a receipt, and asked whether such a receipt would fail to satisfy the statutory requirements, thereby constituting non‑compliance with section 117 and attracting dismissal of the petition under section 85 or section 90(3).

In the hypothetical scenario, the petitioner deposited the required amount of one thousand rupees in the Reserve Bank of India with the label that the deposit was in favour of the Election Commission itself and subsequently obtained a Government Treasury receipt for that deposit. The Court considered whether, despite the deposit having been made, the receipt could be said to fall short of the specifications of section 117, thereby rendering the petitioner non‑compliant with that section and exposing the petition to dismissal under either section 85 or section 90(3). The Court explained that this extreme illustration was advanced solely to demonstrate how far a literal interpretation of the language in section 117 might be stretched. It pointed out that the petition must be filed before the Election Commission, that the security for the petition’s costs must be given to the Commission, and that section 121 requires a written application to the Commission for payment of costs by the person in whose favour the costs have been awarded. Yet, even if the petitioner deposits the money in the name of the Election Commission and encloses a Government Treasury receipt evidencing that deposit, the provisions of section 117 could be claimed to be unmet merely because the deposit was made to the Commission and not expressly to the Secretary of the Election Commission. The Court held that it was unnecessary to scrutinise the relationship between the Election Commission and its Secretary for the purpose of rejecting such a claim. It was sufficient merely to acknowledge that the contention could be dismissed. The Court further observed that it would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would fail to satisfy the requirements of section 117 and would consequently trigger dismissal of the petition under the cited sections.

The illustration therefore demonstrated that the phrase “in favour of the Secretary to the Election Commission” appearing in section 117 is directory rather than mandatory. The essential requirement articulated by the provision is that the petitioner must furnish security for the petition’s costs and must attach a Government Treasury receipt showing that a deposit of one thousand rupees has been made either in a Government Treasury or in the Reserve Bank of India. Such a deposit, according to the Court, is placed at the disposal of the Election Commission, which may utilise it in accordance with the authority granted by law. The amount remains under the Commission’s control and becomes payable upon a proper application made in that behalf to the Commission or to any person duly authorised by the Commission to receive the funds, whether that person is the Secretary to the Election Commission or another authorized individual.

In the Court’s view, when the petitioner presents before the Election Tribunal a Government Treasury receipt or a chalan that was enclosed with the petition, and the evidence demonstrates that the Election Commission could, on a necessary application, obtain the one‑thousand‑rupee amount to defray the costs of the successful party, such circumstances fulfill the statutory requirement set out in section 117. The Court therefore held that strict literal compliance with the language of section 117 was not required, contrary to the appellant’s contention. Regarding the possibility of amending a petition by deleting the statements and prayer that sought a declaration that either the petitioner or any other candidate had been duly elected, the Court referred to its earlier decision in Basappa v. Ayyappa (see page 611, post) which was to be delivered in Civil Appeal No. 76 of 1958. That decision explained at length that an Election Tribunal does not possess the authority to permit such an amendment, whether by withdrawal, abandonment of part of the claim, or any other method, once the election petition has been filed with the Election Commission seeking an additional declaration. Consequently, the Tribunal cannot alter the petition to cure a defect arising from the non‑joinder of necessary respondents by merely removing the contested claim.

The Court then examined Civil Appeal No. 763 of 1957 in light of the foregoing observations. It noted that Sundararaja Pillai, whose name appeared in the list of contesting candidates prepared and published by the returning officer under section 38, had retired from the contest under section 55A(2) before polling began. Nevertheless, because that list was used in section 82, and because the first respondent was demanding a further declaration that the second respondent had been duly elected, Sundararaja Pillai was a necessary party to the petition. Since he had not been joined as a respondent, the petition was liable to dismissal under section 90(3) of the Act. The Court held that this defect could not be remedied by any amendment that sought to delete the claim for the further declaration, and it determined that the Election Tribunal erred in allowing such an amendment on the basis of IA No. 3 of 1957 or any other ground. In contrast, the issue of the security deposit was resolved differently. The Court accepted the testimony of K. Nataraja Mudaliar, the head accountant of the Madurai Taluk Sub‑Treasury, who affirmed that the amount was kept in the Election Revenue deposit, that the monies were at the disposal of the Election Commission, and that only the Commission or a person authorized by it could draw the funds. On the basis of this evidence, the Court concluded that the requirements of section 117 had been satisfied.

In view of the earlier finding that the deposit was held by the Election Commission in accordance with section 117, the Court concluded that the petition could not be dismissed on the ground of non‑compliance with that provision. Accordingly, having examined the failure to comply with the requirements of section 82, the Court allowed Civil Appeal No 763 of 1957. It set aside the High Court’s dismissal orders in Writ Petitions Nos 531 of 1957 and 532 of 1957, vacated the Election Tribunal’s order dated 5 July 1957, and dismissed Election Petition No 147 of 1957, ordering that the costs be awarded against the appellant. Since the appellant’s argument concerning section 117 was not successful, the Court directed that each party bear its own costs both in this appeal and in the proceedings before the High Court. The Court then turned to Civil Appeal No 764 of 1957, which presented a similar situation. In that appeal the first respondent had failed to join as parties the two candidates whose names the returning officer had initially listed but who had withdrawn before polling began. Those candidates were necessary parties because the first respondent sought a declaration under section 101 that he himself be declared duly elected. Consequently, Election Petition No 74 of 1957 was liable to be dismissed for non‑joinder of necessary parties under section 90(3). The Court therefore allowed the appeal, set aside the High Court’s orders in Writ Petitions Nos 573 and 574 of 1957, vacated the Election Tribunal’s order of 13 July 1957, and dismissed Election Petition No 74 of 1957, directing that the first respondent pay the appellant’s costs throughout.

With respect to Civil Appeal No 48 of 1958, the Court noted a difficulty: the record did not contain any document showing the exact terms of the deposit made by the second respondent under section 117. The chalan reproduced on page 45 of the record was a cyclostyled copy that omitted essential particulars and therefore failed to illuminate the issue. The appellant had apparently applied to the Election Tribunal to raise a preliminary objection, arguing that the second respondent had not complied with section 117 and that the petition should be dismissed if the objection were upheld. The Election Tribunal, however, declined to rule on that preliminary objection and instead ordered that the petition’s trial should proceed. Likewise, the High Court, hearing Writ Petition M.J.C. No 480 of 1957, reached the same conclusion, holding that the matter could be decided at the time of the hearing. The Court therefore found that both the Tribunal and the High Court had erred in refusing to entertain the preliminary objection, as a proper determination of compliance with section 117 was necessary before the petition could be tried on its merits.

In this case, the Court observed that both the Election Tribunal and the High Court had taken an erroneous view by refusing to hear the preliminary objection raised by the appellant. The Court explained that if the preliminary objection concerning the alleged non‑compliance with section 117 were not examined and a decision on it were not rendered, the Election Petition would have to proceed as a full trial. Such a trial would require the examination of a large number of witnesses on behalf of the second respondent to support the many allegations of corrupt practices that the respondent attributed to the appellant, his agents, or persons acting for him. It would also require the appellant to produce a sizable list of witnesses to dispute those allegations, as well as witnesses to back any recrimination filed by the appellant against the second respondent. Moreover, the appellant would have to travel repeatedly from distant locations such as Delhi and Bombay to Ranchi, incurring heavy expenses, loss of time, and diversion from his public duties, including his responsibilities as a member of the House of the People. The Court emphasized that this would amount to unnecessary harassment and expense for the appellant, which could have been avoided had the preliminary objection been decided at the initial stage by the Election Tribunal.

Consequently, the Court held that the orders issued by the High Court in M.J.C. No. 480 of 1957 and by the Election Tribunal in Election Petition No. 341 of 1957 were erroneous and should be set aside. The Court directed that the Election Tribunal must now consider the preliminary objection concerning the alleged failure of the second respondent to comply with the provisions of section 117, applying the observations made by this Court and deciding the matter in accordance with the law. The parties were granted liberty to present any further evidence before the Election Tribunal as may be required. Regarding costs, the Court stated that the costs incurred by both parties in the present proceedings, as well as those incurred in the lower courts, shall form part of the costs of the Election Petition and will be dealt with by the Election Tribunal in accordance with the outcome of its decision on the preliminary objection. Finally, the Court allowed the appeals and ordered that Appeal No. 48 of 1958 be remanded for further consideration by the Election Tribunal.