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PETITIONER:

JAGAN NATH

Vs.

RESPONDENT:

JASWANT SINGH AND OTHERS.

DATE OF JUDGMENT:

20/01/1954

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

HASAN, GHULAM

CITATION:

1954 AIR 210 1954 SCR 892

CITATOR INFO :

RF 1954 SC 411 (4)

R 1955 SC 610 (5)

R 1957 SC 444 (20)

R 1958 SC 687 (20)

R 1958 SC 698 (10)

R 1959 SC 93 (15)

R 1960 SC 444 (48)

R 1963 SC1417 (21)

E 1964 SC1545 (7)

R 1965 SC 628 (3)

RF 1969 SC1201 (33)

R 1976 SC 744 (26)

R 1982 SC 983 (7)

R 1983 SC 558 (12)

F 1983 SC1311 (7,16)

R 1984 SC 135 (8)

R 1985 SC 89 (25)

RF 1985 SC 150 (26)

R 1986 SC 103 (4)

F 1987 SC1577 (14)

ACT:

Representation of the People Act (XLIII of 1951), s. 82-

Election petition-Non-compliance with the provisions of s.

82 Proper party omitted from the list of respondents-Defect

whether fatal.

HEADNOTE:

Held, (i) that non-compliance with the provisions of s. 82

of the Representation of the People Act, 1951 (XLIII of

1951), and the omission of a proper party from the list of

respondents is not fatal and the tribunal is entitled to

deal with the matter in accordance with the rules of the

Code of Civil Procedure which have been made expressly

applicable;

(ii) that it is one of the rules of construction that a

provision similar to the one in s. 82 is not mandatory

unless noncompliance with it is made penal.

Order XXXIV, r. 1, of the Code of Civil Procedure, referred

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to.

General principles governing the decision of election peti-

tions discussed.

JUDGMENT:

CIVIL APPELLATe, JURISDICTION: Civil Appeal No.100 of 1953.

Appeal by special leave from the Judgment and Order, dated

the 27th November, 1952, the High Court of Judicature,

Punjab, Circuit Bench at Delhi, in Civil Writ No. 65-D of

1952 arising out of the

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Judgment and Order, dated the 11th November, 1952, of the

Election Tribunal at Delhi in Election Petition No. 10 of

1952.

N.C. Chatterjee (A. N. Sinha, with him) for the appellant.

S.P. Sinha (R. Patnaik, with him) for the respondent.

1954. January 20., The Judgment of the Court was delivered

by

MAHAJAN C. J.-This is an appeal by special leave against the

decision of the Delhi Election Tribunal, dated the 11th

November, 1952, in Election Petition No. 10 of 1952.

The appellant Jagan Nath was elected a member of the Delhi

State Legislative Assembly from Constituency No. 25

(Roshanara) of the Delhi State. The polling in this

constituency took place on the 14th January, 1952. On the

26th April, 1952, which was the last date under the law for

the presentation of an election petition, Jaswant Singh

(respondent No. 1) presented such a petition before the

Secretary of the Election Commission at New Delhi

challenging the election of the appellant and contesting the

order of the Returning Officer rejecting his nomination

paper. In the petition he impleaded as respondents, Brahma

Sarup, Ram Prashad Poddar and the appellant, Jagan Nath, but

he omitted to implead, as required by section 82 of the

Representation of the People Act, 1951, Baijnath, one of the

candidates, whose nomination had been accepted but who had

withdrawn his candidature subsequently.

On the 14th July, 1952, the Election Commissioner appointed

an Election Tribunal comprising respondents 5 to 7. This

appointment was published in the Gazette of India on the

26th July, 1952, and the election petition after due

publication was referred to the tribunal. On the 26th

August, 1952, which was the first date of hearing before the

tribunal, the appellant raised a preliminary objection that

the omission to implead Baijnath, a duly nominated candidate

as a respondent in the petition.- was fatal to its

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maintainability. The petitioner contended that Baijnath was

neither a necessary nor a proper party and that in any event

the non-joinder of a party. was not fatal to the petition in

view of the provisions of Order 1, rule 9, Civil Procedure

Code. In the alternative, it was claimed that if it was

considered that he was a necessary or proper party,

permission may be given to the petitioner to implead him.

The tribunal decided the preliminary point in favour of the

petitioner and held that the non-joinder of Baijnath as a

respondent was not fatal to the petition. On the finding,

however, that Baijnath was a proper party to be impleaded in

the case, the tribunal directed that he added as a

respondent in the petition and notice of the petition be

served on him. In the view of the tribunal Baijnath was not

a necessary party in the sense that in his absence no

effective decision could be given in the case and that being

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a proper party, there was no obstacle to his being joined as

a respondent even after the expiry of the period of

limitation prescribed for making the petition.

The appellant being dissatisfied with this decision, made an

application to the Punjab High Court under articles 226 and

227.of the Constitution of India for the issue of a writ of

certiorari quashing the order of the tribunal on the ground

that it was without jurisdiction and for an order that the

election petition be dismissed as there was no valid

petition before the Election Tribunal for trial. This

petition was summarily rejected by the High Court on the

27th November, 1952. On a petition presented to this court

under article 136 of the Constitution, special leave was

granted by this court.

In this appeal it was contended before us that the Election

Tribunal was not a court of general jurisdiction, that it

was established by the Representation of the People Act,

1951, for the special purpose of trying election petitions,

that its jurisdiction was derived from the statute upon

certain specified terms and conditions precedent contained

in the statute itself and that it had no general and

inherent powers of an

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existing court and that being so, if the terms and

conditions precedent prescribed by the statute were not

complied with, it had no jurisdiction to act. According to

the appellant, the scheme of the Act was that no election

could be called in question except by an election petition

presented in accordance with the provisions of Part VI of

the Act (section 80), and it was suggested that unless all

the requirements of sections 81, 82, 83 and 117 were

complied with, an election could not be questioned and that

no subsequent addition or amendment of the petition after

the expiry of the 14 days prescribed for presenting a

petition was permissible. It was further contended that the

provisions of section 82 were explicit and mandatory and

admitted of no exceptions and the petition not being in

accordance with the provisions of the law, there was no

valid petition which the tribunal could proceed to try.

Lastly, it was contended that the provisions of the Code of

Civil Procedure were applicable to the trial of petitions

but could not be of assistance in determining whether a

petition had been validly presented.

The general rule is well settled that the statutory

requirements of election law must be strictly observed and

that an election contest is not an action at law or a suit

in equity but is a purely statutory proceeding unknown to

the common law and that the court possesses no common law

power. It is also well settled that it is a sound principle

of natural justice that the success of a candidate who has

won at an election should not be lightly interfered with and

any petition seeking such interference must strictly conform

to the requirements of the law. None of these propositions

however have any application if the special law itself

confers authority on a tribunal to proceed with a petition

in accordance with certain procedure and when it does not

state the consequences of non-compliance with certain

procedural requirements laid down by it. It is always to be

borne in mind that though the election of a successful

candidate is not to be lightly interfered with, one of the

essentials of that law is also to safeguard the purity of

the election process and also

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to see that people do not get elected by flagrant breaches

of that law or by corrupt practices. In cases where the

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election law does not prescribe the consequence, or does not

lay down penalty for non-compliance with certain procedural

requirements of that law, the jurisdiction of the tribunal

entrusted with the trial of the case is not affected.

It is in these circumstances necessary to set out the

different provisions of the Act relevant to the matter

canvassed before us.

Part VI of the Act deals with "Disputes regarding

Elections." Chapter I of this Part is the definition

chapter. Chapter 11 consists of six sections. Section 80

provides that no election on shall be called in question

except by an election petition presented in accordance with

the provisions of this Part. Section 81 provides that an

election petition calling in question any election may be

presented on one or more of the grounds specified in Sub-

sections (1) and (2) of sections 100 and 101 to the Election

Commission by any candidate at such election or any- elector

in such form and within such time but not earlier than the

date of publication of the name or names of the returned

candidate or candidates at such election under section 67,

as may be prescribed; that an election petition shall be

deemed to have been presented to the Election Commission_

"(a) when it is delivered to the Secretary to the

Commission or to such other officer as may be appointed by

the Election Commission in this behalf-

(i) by the person making the petition, or

(ii) by a person authorized in writing in this behalf

by the person making the petition ; or

(b) when it is sent by registered post and is delivered to

the Secretary to the Commission or the officer so

appointed."

Section 82 provides as follows:

"A petitioner shall join as respondents to his petition all

the candidates who were duly nominated at the election other

than himself if he was so nominated."

897

Section 83 states that an election petition shall contain a

concise statement of the material facts on which the

petitioner relies and shall be signed by the petitioner and

verified in the manner laid down in the Code of Civil

Procedure for the verification of pleadings. It further

provides that the petition shall be accompanied by a list

signed and verified in like manner setting forth full

particulars of any corrupt or illegal practice which the

petitioner alleges, including as full a statement as

possible of the names of the parties alleged to have

committed such corrupt or illegal practice and the date and

place of the commission of each such practice. Provision is

also made in the section empowering the tribunal to obtain

further particulars by allowing an amendment. Section 84

concerns the relief which a petitioner may claim, and

section 85 provides that if the provisions of sections 81,

83 or 117 are not complied with, the Election Commission

shall dismiss the petition. Power is however given to the

Commission to condone delay in making the petition for

sufficient cause.

Chapter III of Part VI deals with the trial of election

petitions. It consists of 21 sections. Section 86 provides

that if the petition is not dismissed under section 85, the

Election Commission shall appoint an election tribunal for

the trial of the petition. Provision, is then made for

constituting the' tribunal and the place where the trial

should take place. Section 90 prescribes the procedure to

be followed by the tribunal. Sub-section (2) of section 90

is in these terms :-

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"Subject to the provisions of this Act and of any rules made

thereunder, every election petition shall be tried by the

tribunal, as nearly as may be, in accordance with the

procedure applicable under the Code of Civil Procedure,

1908, to the trial of suits."

Sub-section (4) provides that notwithstanding anything

contained in section 85, the tribunal may dismiss an

election petition which does not comply with the provisions

of sections 81, 83 or 117.

It is significant that both the Election Commission and the

tribunal have been given powers in express

116

898

terms to dismiss an election petition which does not comply

with the requirements of sections 81, 83 or 117, but no such

powers are given to dismiss a petition in limine which does

not comply with the provisions of section 82. Such a

petition can only be dismissed at the conclusion of the

trial and on grounds sufficient to dismiss it (section 98).

Specific provisions have been made to ensure that

allegations of corrupt practice etc. are not lightly or

frivolously made by providing that the petition must be.

properly verified and the allegations contained therein

stated with a certain amount of definiteness and accuracy

and it is an express provision of Part VI itself that the

procedure of the tribunal is to be governed by the Code of

Civil Procedure and where a petition complies with sections

81, 83 or 117, the Commission is bound to refer the petition

to an election tribunal and the tribunal, unless it is of

the opinion that the petition is not in accordance with

sections 81, 83 or 117, is bound to try it and decide it

according to the provisions of law.

Provision has been made in section 90 (1) for any other

candidate subject to the provisions of section 119, to have

himself impleaded as a party in the case within a prescribed

period. This provision indicates that the array of parties

as provided by section 82 is not final and conclusive and

that defects can be cured. Provisions of sections 110, 115

and 116 of Chapter IV of this Part also support this view.

Section,110 provides the procedure for the withdrawal of a

petition. It says that any person who might himself have

been a party may within 14 days of the publication of the

notice of withdrawal in the official gazette apply to be

substituted as a petitioner in the place of the party

withdrawing it. Section 115 provides that such a person can

be substituted as a petitioner on the death of the original

petitioner while section 116 provides that if a sole

respondent dies or gives notice that he does not wish to

oppose the petition or any of the respondents dies or gives

such notice and there is no other respondent who is

appearing in the petition, the tribunal shall

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cause notice of such event to be published in the official

gazette and thereupon any person who might have been a

petitioner may within 14 days of such publication apply to

be substituted in the place of such respondent and oppose

the petition and shall be entitled to continue the

proceedings on such terms as the tribunal may think fit.

These provisions suggest that if any proper party is omitted

from the lists of respondents, such a defect is not fatal

and the tribunal is entitled to deal with it under the

provisions of the Code of Civil Procedure, Order I, rules 9,

10 and 13.

Baijnath was a candidate who had withdrawn his candidature

and had not contested the election. By reason of his

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absence or presence having regard to the grounds on which

the petition was based no prejudice was likely to result to

the respondent No. I because the main ground on which the

petition was based was that the petitioner's nomination

paper had been wrongly rejected. Baijnath did not claim

that he had acquired any substantive rights by reason of the

failure of the petitioner to implied him within the period

prescribed and there is no question of depriving him of any

such rights. In our opinion, the tribunal rightly

disallowed the preliminary objection.

Mr. Chatterjee, the learned counsel for the appellant, drew

our attention to certain decisions given by the different

election tribunals constituted under the Representation of

the People Act, 1951, in support of his contention. On a

careful perusal of the different decisions given by the

various election tribunals it appears that there is no

uniformity of opinion between them on this point.

Conflicting opinions have been expressed by these tribunals.

It is unnecessary to discuss all these decisions in detail.

It will be sufficient to say. that we are in entire

agreement with those decisions which have held that non-

compliance with the provisions of section 82 is not fatal to

the petition. The matter has to be determined in accordance

with the rules of the Code of Civil Procedure which have Is

been made expressly applicable.

Mr. Chatterjee laid emphasis on the decision of the Election

Tribunal, Lucknow, presided over by

900

Shri N. S., Lokur in Election Petition No. 287 of 1952

published in the Gazette of India dated 20th December, 1951,

Part 11, Section 3, page 1034. In that case two persons who

had been duly nominated as candidates but who had withdrawn

their candidature were not impleaded as respondents as

required by section 82 of the Representation of the People

Act, 1951 It was held that the non-joinder was fatal ,to the

petition. It was said that the wording of the Act is

peremptory and mandatory and it makes it incumbent on the

petitioner to join as respondents all candidates duly

nominated and it gives him no option and the failure to do

so involves rejection of the petition. Reliance was placed

on certain decisions of Election Tribunals given under the

election rules in force under the Government of India Act,

1935, and the decision of another Election Tribunal, Quilon,

in Sri Ramchandra Nair v. Sri Ramehandra Das reproduced At

page 2396e, Gazette of India Extraordinary, Part I, Section

1, dated the llth of November, 1952. It was said that

unless all the requirements of rules 81, 82 and 83 are

complied with the election cannot be questioned. As regards

the omission of section 82 from the provisions of section

85, it was observed that the Election Commission can at once

discover whether the provisions of sections 81, 83 and 117

are complied with but the same cannot be said about the

requirements of section 82 and that the Election, Commission

will have to hold an inquiry as to who were the candidates

duly nominated before determining whether all of them had

been joined or not, that this burden of inquiry was not

thrown on the Commission but it was left for the

determination of the tribunal, and hence it was that section

82 was not included in section 85.

Both the reasons given by the tribunal cannot, in our

opinion, be sustained. The provisions of section 82 are in

terms similar to the provisions of Order XXXIV, rule I of

the Code of Civil Procedure. Therein it is provided that

all persons having an interest either in the mortgage

security or in the right of redemption shall be joined as

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parties to any suit relating to the

901

mortgage. There is ample authority for the view that this

is merely a directory provision and non-joinder of any party

is not a fatal defect and a decree can be passed so far as

the parties actually on record are concerned unless the

party omitted is a necessary party in the sense that in his

absence no relief could be given at all even as regards

parties actually on record. There is no valid reason for

treating the word "shall" in section 82 in a manner

different from the same word used in Order XXXIV, rule 1,

Civil Procedure Code. It is one of the rules of

construction that a provision like this is not mandatory

unless non-compliance with it is made penal. As regards the

dictum of the Lucknow Tribunal that no inquiry is required

to be made in the case of non-compliance with the provisions

of sections 81, 83 and 117 but that an inquiry would be

necessary to determine whether certain parties were

nominated candidates or not, in our opinion it cannot stand

scrutiny. Whether a petition has been presented by a person

who has purported to sign it or by someone else or whether

an agent who has signed the petition is a duly authorized

agent or not are its much matters of inquiry as the question

of determination of the names of nominated candidates. This

fact can be easily determined by reference to the Returning

Officer. That this reasoning of the tribunal is not sound

is fully demonstrated by a reference to the next case cited

by the learned counsel and decided by the same tribunal

presided over by Shri N. S. Lokur. In that case the

question arose whether the petition was duly verified and

whether it was accompanied by all the necessary lists

required by section 83 (2). An elaborate inquiry had to be

conducted to' determine the point whether the petition was

typed on blank paper signed by the petitioner or whether it

was signed by him or some person authorized on his behalf

after it had been typed. It is thus clear that it is no

valid explanation to say that section 82 was omitted from

the provisions of section 85 simply on the ground that the

Election Commission was absolved from the duty of making

elaborate inquiries at the stage when it had to say whether

the provisions of sections 81, 83 and

902

117 had been complied with. From the circumstance that

section 82 does not find a place in the provisions of

section 85 the conclusion follows that the directions

contained in section 82 were not considered to be of such a

character as to involve the dismissal of a petition in

limine and that the matter was such as could be dealt with

by the tribunal under the provisions of the Code of Civil

Procedure specifically made applicable to the trial of

election petitions.

The Bombay Tribunal, presided over by Shri B. D. Nandkarni

has taken a contrary view in Election Petition No. 72 of

1952, page 286, Gazette of India Extraordinary, dated the

5th February, 1953. The issue in this case was whether Shri

T. C. Patil, was a necessary party and -whether by the

omission to implead him the whole petition was bad. The

tribunal held that the defect was not fatal.

In another case, Petition No. 113 of 1952, decided on 28th

July, 1953, the majority of the Bombay Tribunal, decided

otherwise. The view of the majority was that the mandatory

nature of the provisions of section 82 itself contains

within it the -consequence of dismissal for non-compliance

with its provisions and a separate provision for the

dismissal of the petition for non-compliance with its

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provisions was not necessary and it would have been

superfluous. These observations run counter to the scheme

of the Act itself as envisaged by section 85. The

provisions of sections 81, 83 and 117 are also mandatory and

still in section 85 it is provided in specific terms that

the Election Commission shall dismiss the petition if it is

not in accordance with the provisions of those sections.

The, tribunal is given a similar power by section 90 (4).

The member of the tribunal who dissented from the majority

view gave cogent and sound reasons for holding that non-

joinder of a duly nominated candidate who has withdrawn was

not necessarily fatal to the petition.

In Election Petition No. 83 of 1952 decided by the Election

Tribunal presided over by Shri B. C. Vakil, the tribunal

took the view that such a defect was fatal. A Division

Bench of the Bombay High Court in Special

903

Civil Appeal No. 2017 of 1952, decided on the 19th of

December, 1952, allowed even a defective verification to be

amended. It is not necessary to express any final opinion

on matters specifically covered by sections 81, 83 and 117

and dealt with by section 85 of the Act but at the same time

it is not possible to accept the view 'that in spite of the

provisions of section 85 failure to comply strictly with the

provisions of section 82 has, the same consequences as are

contained in section 85. In our opinion the determination

of the question whether the parties to the petition have

been properly impleaded is a matter not for the Election

Commission but for the tribunal. Various provisions of the

Act referred to above show that the election petition does

not necessarily abate or fail by reason of the death of the

petitioner or any of the respondents or by their ceasing to

take any interest in the trial of the petition once that

petition has been referred to the tribunal. On the other

hand, any person who could be a petitioner can continue the

petition in spite of the death of either the petitioner or

the respondents to the petition and on the original parties

failing to prosecute it. These provisions have been made to

ensure that the election process on which the democratic

system of Government is based is not abused or misused by

any candidate and that inquiry is not shut out by collusion

between persons made parties to the petition or by their

respective deaths. It is therefore clear that the

provisions of the law relating to the impleading of parties

are not necessarily fatal and can be cured. It is for the

tribunal to determine the matter as and when it arises in

accordance with the provisions of the Code of Civil

Procedure.

For the reasons given above we are of the opinion that the

decisions of the tribunal and of the High Court in this case

were right. We accordingly dismiss the appeal with costs.

Appeal dismissed.

Agent for the appellant: N. H. Hingorani.

Agent for respondent No. K. L. Mehta.

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