1958 (4) TMI 117 - SC - Companies Law

Summary

Issues Involved:
1. Interpretation of "contesting candidate" under Section 82 of the Representation of the People Act, 1951.
2. Compliance with the deposit requirements under Section 117 of the Representation of the People Act, 1951.
3. Amendment of the election petition to cure defects of non-joinder of necessary parties.

Detailed Analysis:

1. Interpretation of "Contesting Candidate" under Section 82:
The primary issue in these appeals was the interpretation of the term "contesting candidate" as used in Section 82 of the Representation of the People Act, 1951. The court examined whether a candidate whose name was included in the list of contesting candidates but who retired from the contest under Section 55A(2) should still be considered a "contesting candidate."

The court analyzed the scheme of the Act, noting that the process of election starts from the issue of a notification calling upon a constituency to elect a member. Candidates are nominated, and a list of validly nominated candidates is prepared. Candidates may withdraw their candidature within a specified period, and those who remain are listed as contesting candidates under Section 38. The court emphasized that a candidate who retires under Section 55A(2) continues to be a contesting candidate for the purposes of the Act, even though they do not go to the poll.

The court concluded that a candidate who retired from the contest under Section 55A(2) is included in the expression "contesting candidate" used in Section 82. Therefore, such candidates must be joined as respondents if the petitioner claims a further declaration that another candidate has been duly elected. The failure to join such candidates as respondents renders the petition liable to dismissal under Section 90(3).

2. Compliance with Deposit Requirements under Section 117:
The second issue was whether the deposit requirements under Section 117 were mandatory and whether non-compliance would lead to the dismissal of the petition. Section 117 requires the petitioner to enclose a Government Treasury receipt showing a deposit of Rs. 1,000 made in favor of the Secretary to the Election Commission as security for the costs of the petition.

The court held that the words "in favor of the Secretary to the Election Commission" are directory, not mandatory. What is essential is that the deposit should be at the disposal of the Election Commission and under its control. The court stated that if the evidence shows that the deposit is indeed at the disposal of the Election Commission, there is sufficient compliance with Section 117.

In Civil Appeal No. 763 of 1957, the court found that the deposit was made in the Election Revenue deposit and was at the disposal of the Election Commission. Therefore, there was sufficient compliance with Section 117, and the petition could not be dismissed for non-compliance with this section.

3. Amendment of the Election Petition to Cure Defects of Non-joinder:
The third issue was whether the Election Tribunal has the power to allow amendments to the petition to cure defects of non-joinder of necessary parties. The court referred to its judgment in another case, stating that the Election Tribunal has no power to grant such amendments once the election petition has been presented claiming a further declaration.

In Civil Appeal No. 763 of 1957, the court held that the Election Tribunal erred in allowing the amendment to delete the claim for a further declaration to cure the defect of non-joinder. The petition was liable to be dismissed under Section 90(3) for non-compliance with Section 82.

Judgments Delivered:
1. Civil Appeal No. 763 of 1957: The appeal was allowed. The orders of dismissal made by the High Court on the writ petitions were set aside, and the orders passed by the Election Tribunal were vacated. The Election Petition No. 147 of 1957 was dismissed with costs, with each party bearing their own costs in the High Court and Supreme Court.

2. Civil Appeal No. 764 of 1957: The appeal was allowed. The orders passed by the High Court were set aside, the orders of the Election Tribunal were vacated, and Election Petition No. 74 of 1957 was dismissed. The first respondent was ordered to pay the appellant's costs throughout.

3. Civil Appeal No. 48 of 1958: The appeal was remanded. The Election Tribunal was directed to decide the preliminary objection regarding non-compliance with Section 117 in light of the observations made. The parties were allowed to lead further evidence before the Election Tribunal. The costs of both parties were to be dealt with by the Election Tribunal and would abide by the result of its decision on the preliminary objection.