Chandrika Prasad Tripathi vs Shri Siv Prasad Chanpuria and Others

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 343 of 1958

Decision Date: 9 April 1959

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, K.N. Wanchoo

In the matter titled Chandrika Prasad Tripathi versus Shri Siv Prasad Chanpuria and others, the Supreme Court of India delivered its judgment on 9 April 1959. The judgment was authored by Justice P. B. Gajendragadkar and was pronounced by a bench comprising Justices P. B. Gajendragadkar, Bhuvneshwar P. Sinha and K. N. Wanchoo. The case is reported as 1959 AIR 827 and 1959 SCR Suppl. (2) 527, with a later citation in R 1983 SC 558 (25). The petition was filed by Chandrika Prasad Tripathi against Shri Siv Prasad Chanpuria and others under the Representation of the People Act, 1951, specifically invoking sections 90(3), 98, 116-A and 117, which relate to election petitions, the requirement of a security deposit, and the procedure for appeals against dismissal of a petition.

Respondent I had filed an election petition seeking to set aside the election of the appellant from the Bargi Assembly Constituency (No. 97) in the Jabalpur district of Madhya Pradesh. The security deposit required by section 117 of the Act was made in the form of a note stating: “Security deposits for Election Petition of Bargi Assembly Constituency No. 97, Distt. Jabalpur, Madhya Pradesh. Refundable by order of the Election Commission of India, New Delhi.” Before the Election Tribunal the appellant raised an application contending that the deposit was defective because the deposit was not made in favour of the Secretary to the Election Commission and because the wording limited the refund to the depositor, thereby precluding payment to the appellant if the petition were dismissed under section 90(3). The Election Tribunal accepted these objections and dismissed the petition under section 90(3). Respondent I then appealed the Tribunal’s decision to the High Court under section 116-A of the Act. The High Court allowed the appeal, set aside the Tribunal’s order and remitted the petition for trial. The appellant argued that no appeal was permissible to the High Court and maintained that the deposit did not comply with section 117.

The Supreme Court held that an appeal to the High Court under section 116-A was indeed available against the dismissal of an election petition under section 90(3). It explained that the order issued by the Tribunal under section 90(3) was effectively an order passed at the conclusion of the trial and, in substance and law, corresponded to an order under section 98. The Court observed that once an election petition is transferred to the Tribunal, the trial commences, and any order that terminates the trial is an order at the conclusion of the trial. In reaching this conclusion, the Court referred to the decisions in Harish Chandra Bajpai v. Tirloki Singh ([1957] SCR 370) and Gulsher Ahmad v. Election Tribunal (AIR 1958 Madh. Pra. 224), the latter being approved. Further, the Court found that substantial compliance with the requirements of section 117 had been achieved. It emphasized that section 117 should not be interpreted in a strictly technical manner; rather, substantial compliance with its provisions sufficed. The security deposit in the present case had been made in respect of the election petition and had been credited to the accounts of the Election Commission, thereby satisfying the statutory requirement.

In this matter, the Court observed that the presence of the term “refundable” in the security did not stop the Election Commission from issuing an order directing payment of the amount to the party whose election was upheld, as established in the precedent of Kamraj Naday v. Kunju Thevar, A.I.R. [1958] S.C. 687. The case before the Court was a civil appeal, numbered 343 of 1958, which had been taken on special leave from a judgment and order dated 8 March 1958 of the Madhya Pradesh High Court in First Appeal No. 141 of 1957. That earlier judgment arose from a decision dated 5 December 1957 of the Election Tribunal at Jabalpur in Election Petition Case No. I of 1957. The appellant was represented by counsel, while the respondents were represented by their own counsel. The appeal concerned an election petition filed by respondent I, identified as No. 320 of 1957, before the Election Commission in New Delhi. In that petition, respondent I sought a declaration that the appellant’s election to the Madhya Pradesh Legislative Assembly from the Bargi constituency was void and further requested that his own election from the same constituency be declared valid. The poll for the contested election had been held on 9 March 1957 and the result announced on 12 March 1957. Three candidates had contested; the appellant obtained 9,308 votes, respondent I received 8,019 votes, and the third candidate, respondent II, secured 3,210 votes. The petition of respondent I was referred to the Election Tribunal at Jabalpur for trial. On 12 October 1957, the appellant filed an objection with the Tribunal under section 90, sub-section (3) of the Representation of the People Act, 1951, asserting that respondent I had failed to comply with the provisions of section 117 of the Act concerning the deposit of a security for costs, and consequently prayed that the petition be dismissed on that ground. Respondent I contested this claim and argued that there was no basis for dismissal under the cited provision. The Tribunal, by its order dated 5 December 1957, held that the requirements of section 117 were mandatory and that respondent I had not satisfied them. Accordingly, the Tribunal allowed the appellant’s application, upheld the objection, and dismissed respondent I’s election petition pursuant to section 90, sub-section (3). Dissatisfied, respondent I appealed to the High Court of Madhya Pradesh at Jabalpur on 27 December 1957 (Appeal No. 141 of 1957). In the High Court, the appellant raised a preliminary objection, contending that the appeal was incompetent under section 116A of the Act. The High Court rejected that objection and proceeded to consider the merits, ultimately finding that respondent I had substantially complied with section 117, setting aside the Tribunal’s dismissal and remanding the petition for further disposal in accordance with law.

In this case the High Court found that the respondent had substantially complied with the requirements of section 117, and consequently it set aside the order of the Election Tribunal that had dismissed the respondent’s election petition, directing that the petition be returned to the Tribunal for disposal in accordance with law. On 22 February 1958 the appellant applied to the High Court for a certificate of fitness, but that application was rejected. The appellant then sought and obtained special leave to appeal from this Court on 14 April 1958, and that appeal is the matter now before the Supreme Court. The first question for determination is whether the High Court was correct in holding that the appeal filed by the respondent was competent. The appellant argues that the order that was challenged was issued under section 90, sub-section (3) of the Act, and that no appeal lies against an order made under that provision because section 116A, which governs appeals, provides that an appeal may be taken only from orders made by the Tribunal under section 98 or section 99. The Court notes that section 116A expressly limits appeals to orders made under section 98 or section 99 and that the present appeal does not involve section 99. The respondent contended that, in substance and in law, the order in question should be treated as having been made under section 98, a view that the High Court adopted and which this Court accepts as correct. The Court acknowledges that the order was formally issued under section 90, sub-section (3), but emphasizes that the right to appeal must be founded on the statutory provision that confers such a right; an appeal cannot be deemed competent unless it can be shown to arise from the relevant provision. To decide whether an order issued under section 90, sub-section (3) can be regarded, for legal purposes, as an order issued under section 98, it is necessary to examine the scope and effect of the two sections. Section 98(a) provides that, at the conclusion of the trial of an election petition, the Tribunal shall pass an order dismissing the petition. In the present matter the Tribunal indeed dismissed the petition filed by the respondent. The appellant’s contention is that this dismissal cannot be said to fall under section 98(a) because the dismissing order was not passed at the conclusion of the trial. The Court finds that argument unconvincing. Section 90, sub-section (3) lies in Chapter III of Part VI, which deals with the trial of election petitions, and therefore confers on the Tribunal the power to dismiss an election petition after the trial has commenced. The scheme of Chapter III clearly indicates that once an election petition is referred to a Tribunal for trial, any action taken by the Tribunal, including a dismissal under section 90, sub-section (3), forms part of the trial process.

In this case the Court explained that once an election petition is referred to an Election Tribunal for trial under section 86, the Tribunal becomes the custodian of the petition and every proceeding before it is considered to be part of the trial of that petition. The Court observed that section 85 authorises the Election Commission to dismiss an election petition when the petition fails to comply with the requirements of sections 81, 82 and 117. Accordingly, if the Election Commission exercises its jurisdiction and issues an order dismissing a petition, that petition can be said never to have reached the trial stage. However, after the petition has passed the scrutiny of the Election Commission under section 85 and has been referred to the Election Tribunal for trial, any subsequent action taken by the parties or any order passed by the Tribunal in respect of the petition constitutes a part of the trial of that petition.

The Court then referred to the decision in Harish Chandra Bajpai v. Triloki Singh, which dealt with section 90, sub-section 2 of the Act, and reiterated that the provisions of Chapter III, taken as a whole, define “trial” as the entire series of proceedings before the Tribunal from the moment the petition is transferred to it under section 86 until the award is pronounced. Consequently, the Court held that an order issued under section 90, sub-section 3 is unquestionably an order made at the conclusion of the trial. Although such an order may arise on a preliminary point of law raised by the appellant, the Court stressed that the decision on that preliminary issue forms an integral part of the trial and therefore the order, even though it deals with a preliminary matter, is still an order passed at the end of the trial because it brings the trial to a close.

Section 90, sub-section 3 provides that the Tribunal shall dismiss an election petition that does not comply with the provisions of sections 81, 82 or 117, even if the Election Commission has not already dismissed the petition under section 85. The Court clarified that an objection to the competence of an election petition on the ground of non-compliance with those sections may be considered by the Election Commission on its own motion under section 85; if the Commission upholds the objection, the petition can be dismissed without further enquiry. If, however, the Commission does not dismiss the petition under section 85, the same objection may be raised before the Election Tribunal by the respondent to the petition. When raised before the Tribunal, the objection assumes the character of a preliminary objection and, as the Court noted, is dealt with by the Tribunal in the same manner that a civil court would handle a preliminary objection under the Code of Civil Procedure (1) [1957] S.C.R. 370, 387.

In this case the Court observed that the preliminary objection had been fully tried, and because the decision on that objection was in favour of the respondent, the election petition was dismissed. Although the formal order of dismissal was issued under section 90, subsection (3), the Court held that, in substance and under the law, the order functioned as a dismissal at the close of the trial and therefore had to be regarded as an order made under section 98(a). The Madhya Pradesh High Court had expressed the same view in Gulshar Ahmed v. Election Tribunal (1), and the present High Court had relied on that decision. Consequently, the Court rejected the appellant’s claim that the appeal filed by Respondent I before the High Court was incompetent.

The Court then examined the construction of section 90 from a different angle. Section 90 outlines the procedure before the tribunal and permits the tribunal to dismiss an election petition under subsection (3). Because this provision is procedural, the Court found it reasonable to conclude that when the tribunal actually issues the dismissal order, that order falls within the ambit of section 98(a). The same reasoning applies when the provisions of sections 103, 106 and 107 are considered. The Court ruled that it could not be suggested that a dismissal order issued for non-compliance with section 117 could be exempted from the requirement to be communicated to the Election Commission under section 103, nor from the duty of the Election Commission to forward the order to the appropriate authority under section 106. Likewise, the Court held that the order would take effect immediately upon being pronounced by the tribunal under section 107.

By noting that sections 103, 106 and 107 are intended to apply to orders passed under sections 98 or 99, the Court concluded that a dismissal order issued under section 90, subsection (3), must be deemed to have been made under section 98. Section 99(1)(b) empowers the tribunal to determine the total costs payable and to designate the person to receive those costs, and it refers to cases where an order is made under section 98. Therefore, the Court found no basis to claim that a tribunal, after dismissing a petition under section 90, subsection (3), could not also make an appropriate costs order. This provision confirms that the dismissal order under section 90, subsection (3) is, in law and in substance, an order under section 98(a). The Court acknowledged that this reasoning applies wherever such an order is passed.

Section 99(1)(a) would not be triggered, yet that circumstance does not alter the legal conclusion that an order issued under section 90, sub-section (3) remains, in substance, an order made under section 98. The Court noted that Act 58 of 1958 introduced an explanatory provision to section 90, sub-section (3) which expressly clarifies the legislative intention. According to that explanation, any order of the tribunal dismissing an election petition pursuant to the said sub-section shall be deemed to be an order made under clause (a) of section 98. Consequently, after the amendment incorporated by Act 58 of 1958, there can be no doubt that every order passed under section 90, sub-section (3) is appealable under section 116A of the Act. The discussion then turned to the second contention raised by the appellant, namely that the High Court erred in finding that respondent I had complied with the requirements of section 117 of the Act. Section 117 mandates that the petitioner attach to the petition a Government Treasury Receipt evidencing a deposit of Rs 1,000 either in a Government Treasury or in the Reserve Bank of India, the deposit being made in favour of the Secretary to the Election Commission as security for the costs of the petition. In the present matter respondent I did make the required security deposit, but it was argued that the deposit was not made in the manner prescribed by section 117. The receipt showed a security deposit of Rs 1,000 made by A. P. Shiv Prasad on behalf of respondent I, identified as “Security deposit for Rs 1,000--- Chanpuria, Election Petition of the Bargi Assembly Constituency No. 97, Jabalpur, Madhya Pradesh, refundable by order of the Election Commission of India, New Delhi.” The contention was that the security had not been deposited in the name of the Secretary to the Election Commission as required, and that the designation “refundable” meant that only the Election Commission could return the amount to respondent I, lacking authority to direct payment of the sum to the appellant even if the election petition were dismissed with costs. The Court regarded this objection as purely technical. It referred to the recent decision of this Court in Kamaraj Nadar v. Kunju Thevar, where it was held that section 117 should not be interpreted in a strictly technical manner; where substantial compliance with its stipulations is demonstrated, the tribunal must not dismiss an election petition under section 90, sub-section (3) on the basis of technical deficiencies. The Court further observed that the receipt examined in Kamaraj Nadar was, if anything, slightly more defective than the receipt in the present case, underscoring that the presence of the word “refundable” does not defeat the validity of the security deposit made under section 117.

In this case the Court observed that the receipt presented by the petitioner was in fact less defective than the receipt that had been examined in the earlier case. The Court rejected the contention that the term “refundable” rendered the security ineffective, noting that the security had been provided specifically for the election petition that was before the Commission. The Court further observed that the amount had already been credited to the account of the Election Commission. Consequently the Court stated that there was no uncertainty regarding the effect of the word “refundable” if the Commission were required to order payment of the security to the party who ultimately succeeded. The Court further held that such a word would not create any obstacle to the Commission’s authority to make the payment. The Court further held that the security had been furnished by respondent I in conformity with section 117 of the Representation of the People Act. The Court added that the sum therefore remained available to the Election Commission for disposition in the present proceedings. The judgment also pointed out that section 117 had subsequently been amended by Act 58 of 1958, which removed the reference to the Secretary. However, the Court noted that this amendment did not affect the validity of the security that had already been lodged. On the basis of these findings the Court concluded that the appeal could not succeed, ordered the appeal to be dismissed and directed that costs be awarded against the appellant. The order of dismissal with costs was thereby entered.