Appeal No 343 of 1958
Appeal by special leave from the judgment and order dated March 8 1958 of the Madhya Pradesh High Court in First Appeal No 141 of 1957 arising out of the judgment and order dated December 5 1957 of the Election Tribunal Jabalpur in Election Petition Case No I of 1957
G C Mathur for the appellant
P Rama Reddy and R Mahalingier for respondent No 1 1959
April 9
The Judgment of the Court was delivered by GAJENDRAGADIKAR J
This appeal by special leave arises out of an election petition filed by respondent I No 320 of 1957 before the Election Commission New Delhi in which he prayed that the appellant s election to the Madhya Pradesh Legislative Assembly from Bargi constituency should be declared to be void and that it should be further declared that he had himself been duly elected from the said constituency
The polling for the election in question was taken on March 9 1957 and the result was declared on March 12 1957
Of the three candidates who had stood for election the appellant secured 9308 votes respondent 1 8019 votes and the third candidate respondent 2 3210 votes
The petition filed by respondent I was entrusted to the Election Tribunal Jabalpur for trial
On October 12 1957 the appellant filed before the Election Tribunal an objection under section 90 sub section
3 of the Representation of the People Act 1951 hereinafter called the Act alleging that respondent 1 had not complied with the provisions of section 117 of the Act in regard to 529 the making of the deposit of the security for costs and praying that his election petition should be dismissed on that account under section 90 sub section
3 of the Act
Respondent I disputed these allegations and urged that there was no justification for dismissing his petition under section 90 sub section 3 of the Act
By its order passed on December 5 1957 the Election Tribunal held that the provisions of section 117 were mandatory and that they had not been complied with by respondent 1
ID the result the application filed by the appellant was allowed his objection was upheld and the election petition presented by respondent I was dismissed under section 90 sub section
3 of the Act
On December 27 1957 respondent I preferred an appeal in the High Court of Madhya Pradesh at Jabalpur against the said order Appeal No 141 of 1957
In the High Court a preliminary objection was urged on behalf of the appellant that the appeal preferred by respondent I was incompetent under section 116A of the Act
This objection was overruled and the merits of the appeal were considered by the High Court
On the merits the High Court held that respondent I had substantially complied with section 117 and so the order passed by the Election Tribunal dismissing the election petition filed by respondent I was set aside and the said petition was sent back to the Election Tribunal for disposal in accordance with law
On February 22 1958 the appellant applied to the High Court for a certificate of fitness but his application was dismissed
Thereupon the appellant applied for and obtained special leave to appeal from this
Court on April 14 1958
That is how this appeal has come to this Court
The first point which calls for our decision in this appeal is whether the High Court was right in holding that the appeal preferred before it by respondent I was competent
The appellant s contention is that the impugned order was passed under section 90 sub section
3 and no appeal is provided against such an order under section 116A
Section 116A provides that an appeal shall lie from every order made by the tribunal under section 98 67 530 or section 99 to the High Court of the State in which the tribunal is constituted
We are not concerned in the present appeal with section 99
The case for respondent I is that in substance and in law the impugned order must be deemed to have been passed under section 98
That is the view which the High Court has taken and we are satisfied that the High Court is right
It is true that in terms and in form the order was passed under section 90 sub section
3 and it is also true that the right to prefer on appeal is a creature of the statute and no appeal can be held to be competent unless it is shown that such a right flows from the relevant statutory provision itself In order to decide whether or not an order passed under section 90 sub section
3 can be regarded in law and in substance as an order passed under section 98 it would be relevant to consider the scope and effect of the provisions of the said two sections
Section 98a provides that at the conclusion of the trial of an election petition the tribunal shall make an order dismissing the election petition
There is no doubt that in the present case the Election Tribunal has dismissed the election petition filed by respondent 1
But the appellant s contention is that this dismissal cannot be said to be under section 98a because the order dismissing the petition has not been passed at the conclusion of the trial of the election petition
This argument is not well founded
Section 90 subs
3 under which the impugned order purports to have been passed occurs in ch
III of Pt
VI which deals with the trial of election petitions
In other words section 90 sub section
3 confers power on the tribunal to dismiss the election petition after the trial of the election petition has commenced
The scheme of ch
III clearly indicates that once an election petition is referred to an Election Tribunal for trial under section 86 the tribunal is possessed of the petition and all proceedings before it are proceedings in the trial of the said petition
Section 85 shows that for failure to comply with the provisions of sections 819 82 and 117 the Election Commission is empowered to dismiss the election petition
If the Election Commission exercises its jurisdiction and passes an order 531 dismissing any election petition it may be said that the election petition never reached the stage of trial  but once the petition has passed the scrutiny of the Election Commission under section 85 and it has been referred
to the Election Tribunal for trial any further action taken by the parties or any order passed by the tribunal under the said petition would constitute a part of the trial of the said petition
This question has been incidentally considered by this Court in Harish Chandra Bajpai vs Triloki Singh 1 while it was dealing with section 90 sub section
2 of the Act and it has been held that  the provisions of ch
III read as a whole clearly show that I the trial is used as meaning the entire proceedings before the tribunal from the time the petition is transferred to it under section 86 until the pronouncement of the award 
Therefore there can be no doubt that the order passed under section 90 sub section
3 is an order passed at the conclusion of the trial
It is true that it is an order on a preliminary point of law raised by the appellant but even so the decision of the preliminary issue is undoubtedly a part of the trial of the petition and it cannot be said that the order passed on such a preliminary point is not an order passed at the conclusion of the trial when it in fact concludes the trial
Section 90 sub section
3 provides that the tribunal shall dismiss an election petition which does not comply with the provisions of sections 81 82 or 117 notwithstanding that it has not been dismissed by the Election Commission under section 85
It would thus be clear that an objection raised against the competence of the election petition on the ground that the provisions of the aforesaid sections have not been complied with can be considered by the Election Commission suo motu under section 85 and if it is upheld the election petition can be dismissed without any further enquiry but if the Election Commission does not dismiss the petition under section 85 then the same objection can be raised before the Election Tribunal by the respondent to the election petition  and when it is so raised it assumes the character of a preliminary objection and 1  387
532 is dealt with by the Election Tribunal as any preliminary objection would be dealt with by a civil court under the Code of Civil Procedure
That being so a preliminary objection has been tried and the decision on the preliminary objection being in favour of the respondent the election petition is dismissed
Though the order of dismissal in form may be under section 90 subs
3 it is in substance and in law an order of dismissal passed at the conclusion of the trial and must be deemed to be an order under section 98a
That is the view which the Madhya Pradesh High Court has taken in Gulshar Ahmed vs Election Tribunal1 and it was this decision which was followed by the High Court in the present proceedings
In our opinion therefore the contention raised by the appellant that the appeal preferred by respondent I before the High Court was incompetent must be rejected
The question of construing section 90 can be considered from another point of view
It provides for the procedure before the tribunal and lays down that it is open to the tribunal to dismiss an election petition under section 90 sub section
3 but this being a procedural provision is would not be unreasonable to hold that when the actual order dismissing the petition is passed it would be referable to the provisions of section 98a
The same conclusion would follow if we consider the provisions of sections 103 106 and 107
It cannot be suggested that the order passed by the tribunal dismissing the election petition for noncompliance of section 117 is not required to be communicated to the Election Commission under section 103 or transmitted by the Election Commission to the appropriate authority under section 106
Similarly it cannot be said that such an order would not take effect as soon as it is pronounced by the tribunal under section 107
It would thus be noticed that though the provisions of these sections are obviously applicable to an order dismissing the election petition on the ground of non compliance of section 117 in terms the said sections refer to orders passed under section 98 or section 99
Therefore we think it would be reasonable to hold that where the tribunal dismisses an election petition by virtue of the provi 1 AIR 1958 Madh
Pra 224
533 sions contained in section 90 sub section
3 the order of dismissal must be deemed to have been made under section 98
Similarly section 991 b which empowers the tribunal to fix the total amount of costs payable and to specify the person by and to whom that shall be paid in terms refers to cases where an order is made under section 98
It cannot be suggested that where an order of dismissal is passed under section 90 sub section
3 the tribunal cannot make an appropriate order of costs
This provision also indicates that the order passed under section 90 sub section
3 is in law and in substance an order passed under section 98a
It is true that in cases where such ail order is passed section 991a would not come into operation but that can hardly affect the position that an order  under section 90 sub section
3 is nevertheless an order under section 98
We would like to add that by Act 58 of 1958 an explanation has been added to section 90 sub section
3 which clarifies the legislative intention on this point
This explanation provides that an order of the tribunal dismissing an election petition under this sub section shall be deemed to be an order made under cl
a of section 98
After the enactment of this explanation there can be no doubt that ail order passed under section 90 sub section
3 would be appealable under section 116 A of the Act
That takes us to the second point raised by the appellant that the High Court was in error in holding that respondent I bad complied with the provisions of section 117 of the Act
Section 117 provides that the petitioner shall enclose with the petition a Government Treasury Receipt showing that a deposit of Rs 1000has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for costs of the petition
In the present case respondent 1 has deposited the requisite security but it is urged that the security has not been deposited as required by section 117
This is how the security deposit has been made 534 Under Amount
By whom On what account
rupees in brought
words
Rs A P Shiv Prasad Security deposits for Rs One 1000 0 0
Chanpuria
Election Petition of Thous Bargi Assembly Con and and stituency No 97 one D i s t t Jabalpur only
Madhya Pr ad es h Refundable by order of the Election Commission of India New Delhi
Total  1000 0 0
The argument is that the security has not been deposited in the name of the Secretary to the Election Commission as required by section 117 and it is deposited with the condition that it is refundable by the order of the Election Commission of India
In other words the only power which the Election Commission of India can exercise in respect of the security is to refund the amount to respondent I  and it would not be competent to the Commission to direct the amount to be paid to the appellant even if the election petition filed by respondent I is dismissed with costs
In our opinion this objection is purely technical
It has recently been held by this Court in Kamaraj Nadar V Kunju Thevar 1 that s117 should not be strictly or technically construed and that wherever it is shown that there has been a substantial compliance with its requirements the tribunal should not dismiss the election petition under section 90 sub section 3 on technical grounds
Indeed it is clear that the receipt with which this Court was concerned in the case of Kamaraj Nadar 1 was perhaps slightly more defective than the receipt in the present case
The argument based on the use of the word  refundable  ignores the fact that the security in terms has been made in respect of the election petition in question and it has been duly credited as towards the account of the Election Commission
Therefore there can be no doubt that if an 1 AIR 1958 SC 687
535 occasion arises for the Election Commission to make an order about the payment of this amount to the successful party the use of the word refundable will cause no difficulty whatever
We hold that the security has been made by respondent
1 as required by section 117 of the Act and would be at the disposal of the Election Commission in the present proceedings
We would like to add that even section 117 has been subsequently amended by Act 58 of 1958 and the reference to the Secretary has been deleted
The result is the appeal fails and must be dismissed with costs
Appeal dismissed


Summary:
The respondent company was a dealer in matchwood called sawar  and his place of business was situate in Chanda in the erstwhile Central Provinces
Pursuant to an agreement between the respondent and a match factory the former loaded diverse quantities of  sawar  logs on railway wagons and despatched the same by rail from Chanda and other railway stations in the Central Provinces to Ambernath a town in the erstwhile Province of Bombay
Under cl 4 Of the agreement the goods to be supplied under the contract shall be despatched by the contractor from certain railway stations within the Central Provinces while cl 2 reserved the right of the consignee to examine the goods on arrival at
Ambernath and to reject the same if they were found in the opinion of the factory manager not to conform with the specifications
Clause 6 provided that the goods shall be measured under the supervision of the factory s repre sentative the decision of the factory manager at Ambernath being binding on the contractor and by cl 7 the prices of the goods shall be  F OR Ambernath 
The course of dealings between the parties was that on arrival of the logs at Ambernath the logs were inspected and measured by the factory manager and the prices calculated at the agreed rates were paid to the respondent s agent at Bombay
The question was as to when and where the property in the logs passed from the respondent to the consignee and whether the respondent was liable to pay sales tax under the provisions of the Central Provinces and Berar Sales Tax Act 1947
At the date when the agreement was entered into the logs were unascertained goods
There was also no evidence that at that date the particular logs delivered thereunder were in the Central Provinces in the shape of logs at all
The sales tax department levied the tax on the respondent on the grounds inter alia that 1 the property in the logs passed from the respondent to the factory consignee under section 23 Of the Indian  when the logs were loaded in the wagons at railway stations within the Central Provinces and the railway 703 receipts taken in the name of the factory were forwarded to the latter and that 2 in any case as the logs were in the Central Provinces at the date when the contract for sale was made the transfer in them must be deemed to have taken place there under Explanation II to section 2g Of the Central Provinces and Berar Sales Tax Act 1947
Held  1 that on a proper construction of the contract as a whole the intention of the parties was that the respondent would send the logs by rail from the different stations in the Central Provinces to Ambernath where the factory manager would inspect measure and accept the same if in his opinion they were of the description and quality agreed upon
Conse quently as the respondent sent the logs and left it to the factory to appropriate to the contract such of them as they accepted as of contract quality and description the property in the logs did not pass to the buyer by the mere delivery to the railway for carriage but passed only at Ambernath when the logs were appropriated by the factory with the assent of the seller within the meaning of section 23 of the Indian 
2 that Explanation II to section 2g of the Central Provinces because under the Explanation the goods in respect of which the contract of sale is made must at the date of the contract be in existence in the Central Provinces that is to say that the goods must at the date of the contract be there in the form in which they are agreed to be sold and there was no evidence in the present case for this