Case Note & Summary
The dispute arose from an election petition challenging the election of the appellant to the Madhya Pradesh Legislative Assembly from Bargi constituency. Respondent 1 filed the election petition before the Election Commission, New Delhi, seeking declaration that the appellant's election was void and that respondent 1 was duly elected. The petition was entrusted to the Election Tribunal, Jabalpur. The appellant, as returned candidate, raised a preliminary objection under Section 90(3) of the Representation of the People Act, 1951, alleging non-compliance with Section 117 regarding the security deposit for costs. The deposit was made in terms: "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." The appellant contended that the deposit was not in favour of the Secretary to the Election Commission and was only refundable to the depositor, not payable to the appellant if the petition was dismissed. The Election Tribunal upheld the objections and dismissed the election petition under Section 90(3) on December 5, 1957. Respondent 1 appealed to the High Court under Section 116A. The High Court held that the appeal was competent because the order under Section 90(3) was in substance an order under Section 98, and that there was substantial compliance with Section 117. The High Court set aside the dismissal and remanded the petition for trial. The appellant then obtained special leave to appeal to the Supreme Court. Two legal issues were before the Supreme Court: first, whether an appeal lay to the High Court under Section 116A against an order of the Election Tribunal under Section 90(3); second, whether there was non-compliance with Section 117 requiring dismissal. The appellant argued that Section 116A provides appeal only against orders under Sections 98 and 99, and the impugned order was in form under Section 90(3), so no appeal lay. He also argued that the security deposit did not comply with Section 117 because it was not in favour of the Secretary to the Election Commission and was worded as refundable only to the depositor. Respondent 1 contended that the order was in substance and law an order under Section 98 and hence appealable, and that there was substantial compliance with Section 117 because the deposit was made in respect of the election petition and credited to the Election Commission accounts. The Supreme Court examined the scheme of Chapter III of Part VI of the Act. It held that once an election petition is referred to the Election Tribunal under Section 86, all proceedings before the tribunal constitute the trial. An order passed under Section 90(3) dismissing the petition, even if on a preliminary objection, is an order passed at the conclusion of the trial because it concludes the trial. Therefore, in substance and law, it is an order under Section 98(a). The Court relied on Harish Chandra Bajpai v. Triloki Singh for the proposition that trial means entire proceedings before the tribunal from reference until pronouncement. It also approved Gulsher Ahmad v. Election Tribunal. Regarding Section 117, the Court held that the provision should not be strictly or technically construed; substantial compliance is sufficient. The security deposit was made in respect of the election petition and credited to the Election Commission. The word 'refundable' did not prevent the Election Commission from ordering payment to the successful party, as held in Kamraj Naday v. Kunju Thevar. Accordingly, the Supreme Court dismissed the appeal, upheld the High Court's order, and confirmed that the election petition was to be tried on merits.
Headnote
A) Election Law - Appealability - Order under Section 90(3) dismissed at conclusion of trial is deemed order under Section 98(a) and appealable under Section 116A - Representation of the People Act, 1951, Sections 90(3), 98(a), 116A - The Election Tribunal dismissed an election petition for alleged non-compliance with Section 117 after a preliminary objection. The Supreme Court held that trial encompasses entire proceedings before the tribunal from reference under Section 86 until pronouncement, and an order under Section 90(3) concluding the trial is in substance an order under Section 98(a), hence appealable under Section 116A. Held that appeal was competent. B) Election Law - Security Deposit - Substantial compliance with Section 117 sufficient; deposit made in respect of election petition and credited to Election Commission accounts satisfies requirement - Representation of the People Act, 1951, Section 117 - The security deposit was made in the name of the election petition and refundable by order of the Election Commission, not in favour of Secretary to Election Commission. The Court held Section 117 is not to be strictly or technically construed; substantial compliance suffices, and use of refundable word does not prevent payment to successful party. Applied Kamraj Naday v. Kunju Thevar. Held that there was substantial compliance.
Issue of Consideration
Whether an appeal lay to the High Court under Section 116A of the Representation of the People Act, 1951 against an order of the Election Tribunal dismissing an election petition under Section 90(3) for non-compliance with Section 117; whether there was non-compliance with Section 117 regarding the security deposit for costs
Final Decision
The Supreme Court dismissed the appeal, upheld the High Court's order, and held that the appeal to the High Court was competent under Section 116A because the order of dismissal under Section 90(3) was in substance an order under Section 98. It further held that there was substantial compliance with Section 117 regarding the security deposit. The election petition was remanded to the Election Tribunal for disposal in accordance with law.
Law Points
- Legal points not extracted
- Order under Section 90(3) dismissing election petition at conclusion of trial is in substance an order under Section 98(a) and appealable under Section 116A
- trial encompasses entire proceedings before tribunal from reference under Section 86 until pronouncement
- Section 117 requires only substantial compliance
- not strict technical compliance
- security deposit made in respect of election petition and credited to Election Commission accounts satisfies Section 117 even if not in name of Secretary and even if worded refundable
