Om Prabha Jain vs Gian Chand and Another

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 85 of 1959

Decision Date: 1 April, 1959

Coram: A.K. Sarkar, Syed Jaffer Imam

In this case the Court recorded that the matter concerned Om Prabha Jain versus Gian Chand and another, with the judgment delivered on 1 April 1959 by a bench of Justice A K Sarkar and Justice Syed Jaffer Imam. The petition was filed by Om Prabha Jain and the respondents were Gian Chand and another individual. The reported citations include 1959 AIR 837, 1959 SCR Suppl. (2) 516 and, for later reference, R 1983 SC 558 (25). The issues involved the provisions of the Representation of the People Act, 1951, particularly the requirement of a deposit as security for costs, the dismissal of an election petition for non-compliance with procedural rules, and the maintainability of an appeal against such dismissal. The headnote explained that Section 117 of the Act obliges a petitioner to enclose a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him in favour of the Secretary to the Election Commission as security for the petition’s costs. In the facts before the Tribunal, the respondent who had filed an election petition challenging the validity of the appellant’s election complied with Section 117 by making the required deposit. However, the deposit receipt listed the “Secretary to the Election Commission” in the column opposite the name of the person on whose behalf the money was paid. The appellant argued that this wording indicated that the money had been paid by the respondent acting for the Secretary, rather than being paid by the appellant in favour of the Secretary, and therefore the receipt did not satisfy the terms of Section 117, warranting dismissal of the election petition. The Tribunal accepted the appellant’s contention and dismissed the petition under Section 90(3) of the Act. The Court held that the phrase “on whose behalf” in the receipt, in the context of the statute, must be interpreted to mean “in whose favour,” and consequently the receipt was fully compliant with Section 117. The Court further held that the order made by the Tribunal under the powers conferred by Section 90(3) constituted an order under Section 98 and was therefore appealable under Section 116A. The term “trial” in Section 98 was explained to refer to the entire proceeding before the Tribunal, from the moment the Election Commission referred the petition to the Tribunal until the conclusion of the matter. The Court disapproved the earlier decision in Harihar Singh v. Singh Ganga Prasad, A.I.R. 1958 Pat. 287, and relied upon Harish Chandra Bajpai v. Triloki Singh, [1957] S.C.R. 370. The judgment was delivered under the civil appellate jurisdiction in Civil Appeal No. 85 of 1959, by special leave from the Punjab High Court’s judgment and order dated 12 August 1958 in First Appeal Order No. 183 of 1957, which arose from the judgment and order dated 8 November 1957 of Shri Harbaksh Singh, Member of the Election Tribunal, Karnal, in Election Petition No. 249 of 1957.

Purshottam Tricumdas, J. B. Dadachanji, S. N. Andley and P. L. Vohra appeared as counsel for the appellant; Ganpat Rai appeared as counsel for respondent No. 1; and Naunit Lal appeared as counsel for respondent No. 2. The judgment was delivered by Justice SARKAR on April 1, 1959. The court noted that in the 1957 General Elections the appellant had been declared elected to the Punjab Legislative Assembly. Respondent Gian Chand filed an election petition seeking a declaration that the appellant’s election was void. A second respondent, who was presumably another unsuccessful candidate, had been made a party to the petition but never appeared at any stage; for brevity the court referred to Gian Chand simply as “the respondent.” The Election Tribunal before which the petition was tried framed several issues and recorded evidence. When the case was ready for argument, the appellant moved before the Tribunal for an order dismissing the petition under section 90(3) of the Representation of the People Act, 1951, on the ground that section 117 of that Act had not been complied with. Section 117 requires that every election petition be accompanied by a Government Treasury receipt showing that a deposit of Rs 1,000 had been made by the petitioner in favour of the Secretary to the Election Commission as security for the petition costs. The appellant contended that the receipt enclosed with the petition was not, for reasons to be explained later, in accordance with the provision. The respondent objected to the application on the basis of the delay in filing and argued that the matter could not be decided without taking evidence. The Tribunal overruled the respondent’s objections, examined the receipt alone, found that it was not in compliance with section 117, and consequently dismissed the election petition under the powers conferred by section 90(3) without addressing the other framed issues. The respondent appealed this decision to the High Court of Punjab. Before the High Court, counsel for the appellant argued that no appeal could lie from an order dismissing an election petition on the grounds mentioned in section 96(3) and that the Tribunal’s order was correct. The High Court held that an appeal was maintainable, and that the Tribunal’s dismissal was erroneous because the requirements of section 117 had in fact been satisfied. The present appeal challenges the High Court’s order. The first question raised is whether an appeal lay to the High Court. Section 116A of the Act provides that an appeal shall lie from every order made by an Election Tribunal under sections 98 or 99 to the High Court of the State in which the Tribunal is situated. The appellant contended that the Tribunal’s order dismissing the petition had not been made under either of those sections. The court observed that it was clear the order had not been made under section 99, and the issue was whether it had been made under section 98. If the order was not made under section 98, then no appeal would lie. The appellant maintained that the order was made under section 90(3) rather than under section 98.

It was observed that the Tribunal’s order had not been issued under section 99. The next question considered was whether the order had been made under section 98. The Court noted that if the order had not been made under section 98, then an appeal would obviously not be permissible. The appellant argued that the order was not made under section 98 but rather under section 90(3). For reference, the relevant provisions were set out. Section 98 provides that at the conclusion of the trial of an election petition the Tribunal shall make an order either dismissing the election petition, declaring the election of all or any of the returned candidates to be void, or declaring the election of all or any of the returned candidates to be void and holding that the petitioner or any other candidate has been duly elected. Section 90 deals with the procedure before the Tribunal and, in sub-section (3), directs the Tribunal to dismiss an election petition that does not comply with the provisions of sections 81, 82 or 117, even when such a petition has not been dismissed by the Election Commission under section 85. Section 85 itself states that if the provisions of sections 81, 82 or 117 have not been complied with, the Election Commission shall dismiss the petition.

The appellant initially contended that the revisions of section 85 and section 90(3) were substantially the same and that the absence of a right of appeal against an order made by the Election Commission under section 85 should be taken to indicate that no appeal lies against an order under section 90(3). The Court could not accept this argument. It held that the question of whether an appeal lies against an order of the Tribunal must be decided by reference to section 116A, and not by reference to the fact that a similar order by the Election Commission is not appealable. The appellant further submitted that an order under section 8, by its terms, is made at the conclusion of the trial of an election petition, whereas an order dismissing a petition under the grounds mentioned in section 90(3) is made prior to the commencement of such trial, or at least before its conclusion. The appellant argued that the word “trial” in section 98 refers only to the stage where evidence is tendered and arguments are addressed, and therefore an order dismissing a petition under section 90(3) is not an order under section 98 and consequently is not appealable. The Court found no justification for this view. It explained that an order made under the powers contained in section 90(3) terminates the proceedings arising out of the petition; once such an order is issued, there remains nothing for the Tribunal to try or do with respect to that petition. Accordingly, the Court concluded that the order under section 90(3) is, in effect, made at the conclusion of the Tribunal’s trial of the petition.

In this case, the Court observed that an order issued by the Election Tribunal was made at the conclusion of the trial before the Tribunal because the Tribunal’s exclusive duty was to try the petition, and the proceeding before it constituted the trial itself. Accordingly, it was impossible to characterize such an order as having been made before the commencement of the trial, since doing so would contradict the overall scheme of the Act. The Court then examined Chapter III of Part VI, titled “Trial of Election Petitions,” which comprises sections 86 to 107 and governs the entire process from the moment an election petition is referred to an Election Tribunal until the Tribunal issues its final order terminating the proceedings arising from that petition. Section 86 provides that if the Election Commission does not deem it appropriate to dismiss the petition under section 85, it must refer the petition “for trial” to an Election Tribunal that it has constituted for that purpose. This language indicates that the sole function of an Election Tribunal is to try the election petition referred to it, and the Tribunal is created as an ad hoc body under section 86 solely for that purpose. Consequently, when the Tribunal passes an order that closes the proceedings arising from an election petition, that order must be regarded as being made after the Tribunal has tried the petition and at the conclusion of such trial. The same principle applies when the Tribunal decides a particular issue and thereby brings the proceedings to an end on that issue while leaving other issues undecided; the Tribunal could not issue an order on any issue without first trying that issue, so the order is also deemed to be made at the conclusion of the trial of that issue. For this analysis, it makes no difference whether the issue tried is a preliminary issue or whether the Tribunal chooses to try remaining issues. The Court noted that the same conclusion is supported by other provisions of Chapter III discussed later. For example, section 86(4) empowers the Election Commission to fill any vacancy that occurs among members of an Election Tribunal, and upon such a vacancy being filled, the “trial” of the petition is to continue as if the newly appointed member had been present from the beginning. The provision anticipates that a vacancy may arise long before the final hearing, that is, before evidence is taken, and yet it treats the continuation of the trial as part of the same ongoing proceeding.

In view of the language of section 86(4), which states that when a vacancy in an Election Tribunal is filled the “trial” of the petition shall continue, the term “trial” must be understood to include the proceedings that occur before the final hearing, that is, the entire process leading up to the conclusion of the case. Section 88 further reinforces this view by allowing an Election Tribunal, at its discretion, to sit “for any part of the trial” at any place in the State where the election was held; this again treats the whole proceeding from the time the Tribunal is referred the petition until its final determination as the trial. Likewise, section 89 empowers the Election Commission to withdraw a petition from one Tribunal and transfer it “for trial to another Tribunal,” with the latter Tribunal required to continue the trial from the stage at which it was withdrawn. Thus, in each of these provisions the word “trial” clearly denotes the whole course of proceedings before the Tribunal, from the initial reference by the Election Commission to the final order. Consequently, the argument presented by counsel for the appellant that the “trial” mentioned in section 98 refers only to the stage at which evidence is taken and arguments are heard is without merit. The term in section 98, like the same word in the other sections of the same chapter, must be read as encompassing the complete proceeding before the Tribunal. The Court also considered a hypothetical situation in which no evidence is required and the petition is disposed of after the arguments alone. An order passed in such circumstances would still be an order made “at the conclusion of the trial” under section 98, just as an order issued after a hearing in which arguments have been heard and the petition is dismissed under the power conferred by section 90(3) would also be an order made at the conclusion of the trial. Therefore, any order that terminates the proceedings, whether based on section 90(3) or otherwise, falls within the scope of section 98. Counsel for the appellant relied on the decision in Harish Chandra Bajpai v. Triloki Singh (1) to support the view that the order in the present case was not made at the conclusion of the trial. The Court, however, found no assistance in that case for the appellant’s position. In Harish Chandra Bajpai, the Court was interpreting section 90(2), where the word “trial” also appeared. The Court observed that “trial” could have two meanings: one referring narrowly to the final hearing involving examination of witnesses, documents and arguments, and another referring to the entire proceedings before the Tribunal from the time the petition is transferred under section 86 until the pronouncement of the award. The Court concluded that, in that context, the broader meaning applied. This precedent therefore does not support a narrow construction of “trial” in section 98; on the contrary, it demonstrates that the larger interpretation is preferred across the related provisions.

The Court examined the meaning of the term “trial” as used in the statutory provisions. It observed that, in the earlier decision, the Court had held that the word “trial” in the relevant section referred to the entire proceeding before the Tribunal, not merely the final hearing. Consequently, that earlier case could not be said to demonstrate that the word “trial” in section 98 was limited to the concluding hearing. On the contrary, the Court noted that section 90(2)—which is one of the sections in the chapter of the Act currently under consideration—had been interpreted by this Court, as reported in (I) [1957] S.C.R. 370, to mean the whole proceeding. That interpretation, as previously explained, provides a strong reason to think that the word “trial” in section 98 should also be given the same broader meaning rather than a narrow, literal sense. The Court further found that section 90(3), which ostensibly deals with the “procedure before the Tribunal,” merely confers a power on the Tribunal, while section 98 delineates the orders that may be made by the Tribunal in the exercise of that power. This view is reinforced by sections 103, 106 and 107 of the Act. Under section 103, once the Tribunal has issued an order under section 98 it must forward a copy of that order to the Election Commission and send the case records to the District Judge of the location where the Tribunal sat. Section 106 requires the Election Commission, after receiving the Tribunal’s order, to forward copies of the order to the appropriate authority and to the Speaker or Chairman of the House whose election is being questioned by the petition. Section 107 provides that any order made under section 98 or section 99 takes effect immediately upon its pronouncement by the Tribunal. The Court then considered the appellant’s contention that an order dismissing a petition under the powers of section 90(3) is not an order under section 98. If that contention were correct, such an order would not have to be sent to the Election Commission or to the Speaker or Chairman, there would be no statutory provision specifying when the order becomes effective, and there would be no mechanism for the ad hoc Election Tribunal to dispose of the case records. The Court found no justification for the Act to treat a dismissal of an election petition on its merits differently from a dismissal on a preliminary point, when both result in the same practical outcome. The Court could not conceive that the legislature intended such an anomalous result. Accordingly, the Court concluded that an order issued under the powers conferred by section 90(3) is indeed made under section 98. The Court also noted reference to the case of K. Kamaraja Nadar v. Kunju Thevar (1) in support of this reasoning.

The Court referred to earlier decisions in which an objection under section 90(3) to an election petition, similar to the objection raised by the appellant, was characterised as a preliminary objection. In those cases the Court explained that if the preliminary objection were not resolved first, the matter would proceed to a full trial of the election petition, requiring the examination of witnesses. Consequently, the Court directed that the preliminary point should be decided before any trial on the remaining issues, noting that such an approach could save costs and protect the parties from unnecessary harassment by potentially avoiding a full trial of the other questions.

The Court expressly rejected the proposition that the cited judgment demonstrated that an order made under the powers conferred by section 90(3) is not an order made at the conclusion of the trial. The direction to decide the so-called preliminary objection first does not, in the Court’s view, change the nature of the order. The Court further observed that it was not addressing the moment at which an order under section 90(3) may be issued. Rather, the earlier decision was merely recommending a procedural step that appeared to serve the interests of the parties in that particular case, and it did not intend to lay down any general rule of law.

The final submission of the appellant relied on section 99. That provision provides that at the time an order is made under section 98, the Tribunal must also, where the petition alleges a corrupt practice, record a finding on whether such a corrupt practice was proven. The appellant argued that if every order of the Tribunal dismissing an election petition were treated as an order under section 98, then a petition that contains an allegation of corrupt practice and is dismissed on a preliminary ground under section 90(3) would still require the Tribunal to make a finding on the corrupt practice. The appellant contended that this requirement would be absurd because it would preclude the Tribunal from disposing of any petition summarily on a preliminary ground. Accordingly, the appellant suggested that not all dismissal orders are orders under section 98, and that this supports the view that an order under section 90(3) is not an order under section 98.

The Court was not persuaded by this argument. It held that if the correct construction of section 99 is that a petition cannot be dismissed on a preliminary objection under section 90(3) when it also contains allegations of corrupt practices, then that construction must be applied even if it appears unreasonable. For example, an election could be challenged on the basis that the returned candidate was not qualified or that a nomination paper was improperly rejected, as well as on the ground of corrupt practices, each of which is a valid ground for setting aside an election under section 100. The Court therefore declined to accept the appellant’s interpretation of section 99 as leading to a sensible result.

In the situation described, if the construction of section 99 advanced by the counsel for the appellant is accepted, the Election Tribunal would be prevented from allowing the petition on either of the first two grounds even though those grounds could be disposed of after a very brief trial; instead, the Tribunal would have to proceed to adjudicate the allegations of corrupt practice. This result would be as unreasonable as requiring the Tribunal, after dismissing a petition for failure to comply with section 117, to record a finding on the alleged corrupt practices. Conversely, if the result is not unreasonable in one of these situations, it cannot be deemed unreasonable in the other. Accordingly, the argument that an interpretation of section 99 must be rejected because it would produce absurd consequences does not carry much persuasive force. Moreover, this reasoning does not provide a basis for concluding that an order terminating the proceedings before an Election Tribunal is anything other than an order issued at the conclusion of the trial when it is made pursuant to the reasons specified in section 90(3). The earlier observation that the Tribunal’s sole duty is to try and decide an election petition remains correct, and a decision on a preliminary point may itself dispose of the petition. It is also noteworthy that subsection (1)(b) of section 99 requires the Tribunal, at the time it makes an order under section 98, to award costs and to determine the amount of those costs. If an order authorized by section 90(3) were not considered an order under section 98, the Tribunal would appear to lack jurisdiction to award costs when dismissing a petition under section 90(3), a result that could not have been intended. Therefore, the Tribunal’s dismissal of a petition for the reasons listed in section 90(3) must be treated as an order under section 98 and is therefore appealable under section 116A. In the Court’s opinion, the decision in Harihar Singh v. Singh Ganga Prasad, which took the opposite view, was wrongly decided.

Regarding the merits of the present appeal, section 117 of the Act requires that the Treasury receipt demonstrate a deposit of one thousand rupees in favour of the Secretary to the Election Commission. There is no dispute that the respondent made the required deposit and enclosed a receipt with his petition. The receipt submitted by the respondent contained two statements on which the appellant based its contention: (1) “By whom tendered – Gian Chand”; and (2) “Name of the person on Secretary to whose behalf money the Election is paid – Commission.” The appellant argued that the wording of the receipt indicated that the money had been paid by the respondent acting as an agent for the Secretary to the Election Commission, rather than being paid by the respondent in favour of the Secretary. The Court was unable to interpret the receipt in that manner. The second entry is intended to name the person in whose favour the money was paid; the phrase “on whose behalf” therefore means “in whose favour.” The receipt form contains no separate heading that would identify an agent, and it is clear that the words refer to the beneficiary of the payment. It would be absurd to assume that the respondent had deposited the money into the Treasury as security for the costs of the election petition while acting as an agent of the Secretary, a position that would support the appellant’s argument. The Court is therefore confident that the receipt complied fully with the requirements of section 117. Consequently, the appeal was dismissed with costs, and the appeal was dismissed.

In this case, the Court explained that the phrase “on whose behalf” clearly signified in whose favour or for whose benefit the amount was paid. The receipt used in the proceedings did not contain any other heading that could indicate the person in whose favour the money was to be paid, and it was evident that the sum had to be paid in favour of some individual or office. Consequently, the Court held that the words “on whose behalf” unambiguously meant in whose favour the payment was intended. The Court further observed that it would be unreasonable to assume that the respondent had deposited the money into the Treasury merely as security for the costs of the election petition while acting as an agent of the Secretary of the Election Commission, a view that would arise only if the appellant’s contention were accepted. The Court expressed doubt as to whether the receipt complied fully with section 117 of the Act. Accordingly, the Court dismissed the appeal, ordered costs against the appellant, and recorded the dismissal of the appeal. (1) A.I.R. 1958 Pat. 287.