TMI Blog1958 (4) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant, the 2nd respondent and one Sundararaja Pillai and their names were placed in the list of contesting candidates and published by the Returning Officer under section 38 of the Act. Pillai retired from the contest on February 21, 1957, under section 55A(2) of the Act, thus leaving the appellant and the 2nd respondent the only two contestants for the seat. 3. After the appellant was declared duly elected, the first respondent who was an elector in the said constituency filed an election petition, being election Petition No. 147 of 1957, impleading the appellant and the 2nd respondent as party respondents to that petition and prayed that the election of the appellant from Sathur Constituency be declared void and further that the 2nd respondent be declared duly elected. 4. As Pillai who had retired from the contest on February 21, 1957, was not impleaded as a party respondent to this petition an objection was raised by the Election Commission on the score of his non-joinder. A notice was issued to the 1st respondent on May 1, 1957, calling upon him to show cause why the petition should not be dismissed summarily for non-joinder of one of the necessary parties and on May 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up for hearing and final disposal before the Election Tribunal on July 5, 1957. 6. Evidence was led by the first respondent in connection with the treasury receipt and K. Nataraja Mudaliar, head Accountant in-charge of the Madurai Taluk Sub-Treasury, gave evidence to the effect that the Sub-Treasury, clerk had filled up the head of the account in the Chalan, that the Treasury Officer would make necessary entries in the Chittas and carry forward the amounts to the respective heads of accounts, that the amount was kept in the Election Revenue deposit and could not be disposed of without the Election Commission's order and that the money was at the disposal of the Election Commission. On cross-examination by the Election Tribunal he further stated that the amount of ₹ 1,000 was entered in the deposit register as security deposit for costs of Election Petition, that the Election Commission could draw the money and any one authorized by the Election Commission could also draw the same. 7. The Election Tribunal passed a common order on July 5, 1957. It dismissed I.A. No. 1 of 1957 being of the opinion that the said Pillai was no longer a contesting candidate after his ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tired before February 23, 1957. Thus only three candidates were left, viz., the appellant, the 1st respondent and the 2nd respondent in the appeal. When the list of contesting candidates was prepared and published by the Returning Officer under section 38 of the Act there were on that list besides these, two more candidates who had retired from the contest between February 5, 1957, and February 23, 1957. On April 18, 1957, the first respondent who was a defeated candidate filed an Election Petition, being Election Petition No. 74 of 1957, containing two prayers :- (1) that the election of the appellant be set aside and (2) that he be declared duly elected under section 101 of the Act inasmuch as he would have obtained the majority of the valid votes but for the corrupt practices committed by the appellant and others. The two candidates who had been included by the Returning Officer in the list of contesting candidates but had subsequently retired from the contest were not made party respondents to this petition and on April 25, 1957, a notice was issued by the Election Commission to the first respondent calling upon him to show cause by May 6, 1957, as to why his petition should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a deposit of ₹ 1,000 by him in the State Bank of India, Ranchi Branch, as security for the costs of the petition which did not mention that it had been made in favour of the Secretary to the Election Commission . He had merely written in the Chalan the words security for the costs of the Election Petition, Ranchi East Parliamentary Constituency . On May 14, 1957, the Election Commission made an order admitting the petition but on the question whether the defect in the deposit was fatal or may be cured, e.g., by a fresh deposit or otherwise so as to safeguard the appellants' right to costs, if any, awarded in his favour, it reserved the same for decision by the Election Tribunal. On July 31, 1957, the appellant filed a petition before the Election Tribunal under section 90(3) of the Act urging that the omission of the words in favour of the Secretary to the Election Commission from the Chalan was fatal and that the petition be dismissed. He also urged that this petition should be heard and disposed of before any further hearing of the Election Petition took place. The preliminary objection was accordingly heard on August 26 and 27, 1957, and by its order dated Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontesting candidate in section 82 and whether a candidate whose name was included in the list of contesting candidates published by the Returning Officer under section 38 but who retired from the contest under section 55A(2) is included in that expression. 18. It will be helpful in this context to survey the scheme of the Act in regard to the conduct of elections, contained in Part V of the Act. Under section 30 as soon as the notification calling upon a constituency to elect a member or members is issued, the Election Commission is to appoint, (1) the last date for making nominations, (2) the date for the scrutiny of nominations, (3) the last date for the withdrawal of candidatures, (4) the date or dates on which a poll shall, if necessary, be taken, and (5) the date before which the election is to be completed. A candidate for Election has to be validly nominated to start with and after such nominations are made the Returning Officer is to hold a scrutiny of nominations on the appointed day. Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded by the Returning Officer, he is to prepare a list of val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof. Under section 55A(2) a contesting candidate may retire from the contest by a notice in the prescribed form delivered in the manner therein specified and the returning officer upon receiving such notice of retirement is to cause a copy thereof to be affixed to his notice board and also to be published in the manner prescribed. Sub-section 5 enacts a legal fiction. It states that any person who has given a notice of retirement under sub-section 2 shall thereafter be deemed not to be a contesting candidate for the purposes of section 52. Sub-sections 6 and 7 provide for the consequences of such retirement on the poll. Before such retirement the list of contesting candidates prepared by the returning officer under section 38 is to determine whether there should be a poll or not. Sections 53 and 54 of the Act provide for all possibilities but if by reason of the number of contesting candidates being more than the number of seats to be filled a poll has to be taken and one or more of such contesting candidates retire before the commencement of the poll leaving in the field only such number of candidates as is equal to the number of seats to be filled, sub-sections 6 and 7 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 117, notwithstanding that it has not been dismissed by the Election Commission under section 85. Section 117 refers to the deposit of security by the petitioner for the costs of the petition, and has already been set out above. 20. It is clear from the above that the procedure for elections has been thought out with meticulous detail and all the steps from the issue of the notification calling upon a constituency to elect a member or members up to the publication of the results of elections are laid down therein. 21. Article 329(b) of the Constitution provides that no election to either House of Parliament or to the Houses or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature, and Part VI of the Act enacts provisions for disputes regarding elections. The orders which can be passed by the Election Tribunal at the conclusion of the Trial of an election petition are set out in section 98 of the Act, viz., (a) dismissing the election petition; or (b) declaring the election of all or any of the returned ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be lodged seeking to set aside the return of a deceased person. I consider this is a fallacious analogy, because a petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested. 26. The process of election starts from the issue of a notification calling upon a constituency to elect a member or members. The nomination papers filed by the appointed date are scrutinized by the returning officer and a list of validly nominated candidates is prepared. When such a list is prepared a stage is reached when the whole constituency knows who are the validly nominated candidates standing for the election. It very often happens that a particular party in order to avoid the possibility of the nomination papers of its members being rejected by the returning officer and finding itself in a difficulty if no validly nominated candidate or candidates of its own persuasion are left in the field nominates more candidates than what it would otherwise put up for the election; if the nomination papers of these candidates put forward by it are accepted by the returning officer it would find itself in a predicament where the votes w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seats to be filled, then and then only a poll has to be taken. If, however, the number of such candidates is equal to the number of seats to be filled or is less than the number of seats to be filled, the list of contesting candidates need not mention the above particulars as regards the poll being taken and the postal ballot papers reaching the returning officer at the time or on the days therein specified. The returning officer then forthwith declares all such contesting candidates duly elected to fill those seats. The Election Commission no doubt in the latter event has to call upon the constituency to elect a person or persons to fill the remaining seat or seats; but that is a separate election. The process of election which has started with the issue of notification calling upon the constituency to elect a member or members, comes to an end. It is only in those cases where the number of contesting candidates is more than the number of seats to be filled that the poll becomes necessary and the process to election continues. The list of contesting candidates prepared by the returning officer is affixed in same conspicuous place in his office and a copy thereof is supplied to eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply also to a contesting candidate who has given notice of his retirement from the contest under section 55A(2). Such a person might have retired from the contest on a re-appraisement of his prospects at the election as compared with those of the deceased contesting candidate. When death removed that contesting candidate from the field, a person who had given notice of retirement from the contest as aforesaid may as well re-consider his position and feel that as compared with the other surviving candidates he would have fair prospects of success at the election and if an election is held after the countermanding of the poll by the returning officer, he might just as well put forward his candidature and it is provided that in that event he shall not be ineligible for being nominated as a candidate for election after such countermanding; and there is perfectly good reason for the same, because otherwise, withdrawal or retirement might possibly be considered a disqualification or refusal to seek election. 29. This brings us to the provisions as to retirement from contest under section 55A. A candidate might not have withdrawn his candidature within the period prescribed and his na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the fact of the death of the candidate would have to countermand the poll and report the fact to the Election Commission and also to the appropriate authority. Provision is therefore made in section 55A(5) that any person who has given a notice of retirement under section 55A(2) is deemed not to be a contesting candidate for the purposes of section 52. This is a deeming provision and creates a legal fiction. The effect of such a legal fiction however is that a position which otherwise would not obtain is deemed to obtain under those circumstances. Unless a contesting candidate who had thus retired from the contest continued to be a contesting candidate for the purposes of election and the effect of the death of such contesting candidate was as contemplated in section 52, it would not have been found necessary to enact section 55A(5). It is because such a contesting candidate who retires from the contest under section 55A(2) continues to be a contesting candidate for the purposes of election that it has been considered necessary to provide for the consequence of his death and to exclude such a candidate from the category of contesting candidates within the meaning of the term as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawn their candidature within the period prescribed. Such contesting candidates will have to be joined as respondents to such petition irrespective of the fact that one or more of them had retired from the contest under section 55A(2). If the provisions of section 82 which prescribes who shall be joined as respondents to the petition are not complied with, the Election Commission is enjoined under section 85 of the Act to dismiss the petition and similar are the consequences of non-compliance with the provisions of section 117 relating to deposit of security of costs. If the Election Commission however does not do so and accepts the petition, it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the respondents and then refer the petition to an election tribunal for trial. Section 90(3) similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85. Section 90(3) is mandatory and the Election Tribunal is bound to dismiss such a petition if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts by the person in whose favour the costs have been awarded and yet, even though the deposit may have been made by a petitioner in favour of the Election Commission and a Government Treasury receipt evidencing the same be enclosed along with his petition the provisions of section 117 of the Act can be said not to have been complied with merely because the deposit was made in favour of the Election Commission and not in favour of the Secretary to the Election Commission. The relationship between the Election Commission on the one hand and the Secretary to the Election Commission on the other need not be scrutinized for the purposes of negativing this contention. It is enough to say that such a contention has only got to be stated in order to be negatived. 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 not be sufficient compliance with the provisions of section 117 and would involve a dismissal of the petition under section 85 or section 90(3). The above illustration is sufficient to demonstrate that the words in favour of the Secretary to the election commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retired from the contest under section 55A(2) before the commencement of the poll was included in the expression contesting candidate used in section 82 and was by reason of the first respondent claiming a further declaration that the second respondent had been duly elected, a necessary party to the petition. Inasmuch as he was not joined as a respondent, the petition was liable to be dismissed under section 90(3) of the Act. 38. This defect could not be cured by any amendment of the petition seeking to delete the claim for such further declaration and the Election Tribunal was clearly in error in allowing such amendment on the grounds disclosed in I.A. No. 3 of 1957 or otherwise. 39. In regard to the deposit of security, however, the position was quite different. According to the evidence given by K. Nataraja Mudaliar, head accountant in charge of the Madurai Taluk Sub-Treasury, the amount was kept in the Election Revenue deposit and the monies were at the disposal of the Election Commission; also that the Election Commission or anyone authorised by the Election Commission in that behalf could draw the said monies and no one else could withdraw the same without such autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance with the provisions of that section as a preliminary objection and determine whether the second respondent had complied with the provisions of section 117 and if not to dismiss his petition. The Election Tribunal, however, did not decide this preliminary objection but ordered that the trial of the petition do proceed. The High Court before whom the Writ Petition M.J.C. No. 480 of 1957 was filed also came to the same conclusion as it thought that the matter could be decided at the time of hearing itself and dismissed the application. 44. We are of opinion that both the Election Tribunal and the High Court were wrong in the view they took. If the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the 2nd respondent in support of the numerous allegations of corrupt practices attributed by him to the appellant, his agents or others working on his behalf; examination of a large number of witnesses by or on behalf of the appellant controverting the allegations made against him; examination of witnesses in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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