Case: K. Kamaraja Nadar Vs. Kunju Thevar &amp; Others

2. Civil Appeal No. 763 of 1957: The appellant in Civil Appeal No. 763 of 1957 is the Chief Minister of Madras and was declared duly elected to the Madras State Legislative Assembly at an election held on 4th March 1957, from the Sathur Constituency having got 36,400 valid votes as against 31, 683 valid votes secured by his rival, the respondent No. 2 in the petition. There had been seven candidates duly nominated for election in that constituency out of whom 4 had withdrawn their candidature by 4th February 1957, which was the last date for such withdrawal. Three candidates were thus left in the field, the Appellant, the 2nd respondent and one Sundaraju Pillai and their names were placed in the list of contesting candidates and published by the Returning Officer under S. 38 of the Act. Pillai retired from the contest on 21st, February 1957, under S. 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 21st February 1957, was not impleaded as a party respondent to this petition an objection was raised by the Election Commission on the score of hisA notice was issued to the 1st respondent on 1st May 1957, calling upon him to show cause why the petition should not be dismissed summarily forof one of the necessary parties and on 10th May 1957, the Election Commission by its order stated that it would be for the Election Tribunal to decide at the trial after hearing the parties if the issue of theof Pillai as a respondent necessarily affected the prayer seeking that the 2nd respondent be declared duly elected. The Election Commission also discovered a defect in the deposit of Rs. 1,000 inasmuch as the proper and complete head of account had not been mentioned in the treasury receipt nor had the deposit been made in favour of the Secretary, Election Commission as laid down in S. 117 of the Act. This question also was left to the Tribunal to decide after hearing the parties, if the defect should be treated as fatal or one that could be cured by fresh deposit or otherwise so as to secure the costs of the appellant if eventually awarded to him. The Election Commission admitted the petition and a copy of the petition was published in the official gazette as required under S. 86(1) of the Act. It was also served on the appellant and the petition was referred to the Election Tribunal for trial.5. On 22nd June, 1957, the appellant filed I. A. No. 1 of 1957 before the Election Tribunal asking for a dismissal of the petition as required by S. 90 (3) of the Act on the ground that the respondent had failed to join Pillai, who was also a contesting candidate, as a respondent. On the same day the appellant filed another application being I. A. No. 2 of 1957, before the Election Tribunal similarly asking for the dismissal of the petition inasmuch as the proper and complete head of account had not been mentioned in the treasury receipt which the 1st respondent had sent to the Election Commission and the deposit also had not been made in the name of the Secretary, Election Commission, as clearly and strictly required under S. 117 of the Act. The first respondent filed before the Election Tribunal I. A. No. 3 of 1957 asking for an amendment of the petition by deleting paragraph 7A:"the second respondent would have obtained more votes if the first respondent had not resorted to such corrupt practices in the said election" and also a portion of the prayer which asked for the following relief:"and further it is also prayed that this Honourable Court may be pleased to declare the second respondent as a duly elected candidate in the election." All these applications came up for hearing and final disposal before the Election Tribunal on 5th July 1957.6. Evidence was led by the first respondent in connection with the treasury receipt and K. Nataraja Mudaliar, head Accountantof the Madurai Talukgave evidence to the effect that theclerk 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 Commissions order and that the money was at the disposal of the Election Commission. Onby the Election Tribunal he further stated that the amount of Rs. 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 5th July 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 retirement from the contest on 21st February 1957. As regards I. A. No. 2 of 1957, it held that there was no defect in the matter of the head of accounts and was further of opinion that the non mention of the fact that the deposit was made in favour of the Secretary, Election Commission was immaterial in that it was made and taken to have been made in favour of the Election Commission at whose disposal the fund was placed. There was therefore sufficient compliance with the requirements of S. 117 of the Act and it accordingly dismissed the application. I. A. No. 3 of 1957 which asked for certain amendments of the petition was allowed, the Election Tribunal having come to the conclusion that the first respondent never meant to include the portions sought to be deleted in the petition the same having been so included by reason of an accidental mistake by his legal advisers.8. On 14th July 1957, the appellant filed two Writ Petitions in the High Court of Judicature at Madras; Writ Petition No. 531 of 1957 for the issue of a writ of Certiorari and Writ Petition No. 532 of 1957 for the issued of a writ of Prohibition for quashing the common order passed by the Election Tribunal in I. A. Nos. 1, 2 and 3 of 1957 and prohibiting the Election Tribunal from holding any inquiry into the petition. These writ petitions came up for hearing before the High Court along with two other writ petitions being writ petitions Nos. 573 of 1957 and 574 of 1957 (hereinafter referred to) and were all dismissed by it by a common judgment delivered on 24th September 1957.9. The appellant thereafter applied for and obtained from the High Court a certificate under Art. 133 (i) (c) of the Constitution to appeal to this Court against the decision in Writ Petitions Nos. 531 of 1957 and 532 of 1957 and hence Civil Appeal No. 763 of 1957.Civil Appeal No. 764 of 1957 :10. Civil Appeal No. 764 of 1957 is concerned only with S. 82 of the Act and the appellant therein was declared duly elected to the Madras State Legislative Assembly from the Single Member Salem (1) constituency on 8th March 1957, having obtained 24,920 valid votes as against 24,713 valid votes obtained by his rival the first respondent. There were 10 candidates who had been duly nominated for election; but 5 of them withdrew their candidature on 5th February 1957, which was the last date for such withdrawal and two retired before 23rd February 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 S. 38 of the Act there were on that list besides these, two more candidates who had retired from the contest between 5th February 1957, and 23rd February 1957. On 18th April 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 S. 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 25th April 1957, a notice was issued by the Election Commission to the first respondent calling upon him to show cause by 6th May 1957, as to why his petition should not be dismissed summarily for suchof two of the necessary parties. An explanation was rendered by the first respondent on date the 2nd May 1957, but the Election Commission appears to have referred the decision of this question to the Election Tribunal appointed by it and on 24th June 1957, the appellant filed before the Election Tribunal an application being I. A. No. 103 of 1957 asking the Tribunal to dismiss the said petition as required by S. 90 (3) of the Act. The Election Tribunal passed an order on this application on 13th July 1957 holding that the said two candidates had ceased to be contesting candidates within the meaning of that term as used in S. 82 of the Act on their retirement from the contest and that the petition as framed was maintainable.11. The appellant thereupon filed two writ petitions being Writ Petitions Nos. 573 of 1957 and 574 of 1957 in the High Court of Judicature at Madras, one for a writ of certiorari and the other for a writ of Prohibition asking respectively that the said order of the Election Tribunal be quashed and the Tribunal be prohibited from proceeding with the enquiry in the Election Petition No. 74 of 1957. These two writ petitions came up for hearing before the High Court on 24th September 1957, along with Writ Petitions Nos. 531 of 1957 and 532 of 1957 aforementioned and by a common judgment bearing the said date the High Court dismissed the same . The appellant was granted a certificate under Art. 133 (1) (c) of the Constitution against this decision and that is how Civil Appeal No. 764 of 1957 has come before us.Civil Appeal No. 48 of 1958 :12. The appellant in Civil Appeal No. 48 of 1958 is only concerned with S. 117 of the Act. He was declared duly elected to the House of the People from Ranchi East reserved constituency on 15th March 1957, having secured 39,025 votes as against the 2nd Respondent who secured only 36,785 votes. On 27th April 1957, the 2nd respondent filed an election petition being Election Petition No. 341 of 1957 against the appellant praying that his election to the House of the People be declared void and that the 2nd respondent be declared to have been duly elected from the said constituency. All the contesting candidates were made pary respondents to that petition; but it appears that the 2nd respondent enclosed with the petition a government treasury receipt showing a deposit of Rupees 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 14th May 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 31st July 1957 the appellant filed a petition before the Election Tribunal under S. 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 26th and 27th August 1957, and by its order dated 31st August, 1957, the Election Tribunal expressed the opinion that the matter was not free from doubt and the Election Tribunal being an Ad Hoc body, it was essential that it should decide the case as a whole and not piecemeal, inasmuch as there was no easy provision for remand if its view was not accepted by the appellate authority. The Election Tribunal therefore did not consider it proper to give its decision on the preliminary objection at that stage and ordered that the trial of the Election Petition do proceed.13. The appellant thereafter on 6th September 1957, filed a writ petition under Art. 226 of the Constitution in the High Court of Judicature at Patna being M. J. C. No. 480 of 1957 asking for a writ of certiorari to quash the order of the Election Tribunal and also a writ of Prohibition to stop the continuance of the proceedings before the Election Tribunal. This petition was dismissed by the High Court on 9th September 1957, as the High Court thought that the matter could be decided at the time of the hearing of the Election Petition itself. The appellant thereafter applied for and obtained on 16th December 1957, from this Court special leave to appeal under Art. 136 of the Constitution against the said order of the High Court and that is how Civil Appeal No. 48 of 1958 is before us.

Reasoning:
29. When we come to the provisions of Part VI of the Act relating to disputes regarding elections, we find that there is no definition given in S. 79 of the expression "contesting candidate", though there are definitions of "candidate" and "returned candidate" to be found therein.An election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in Ss. 100(i) and 101 to the Election Commission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. where the petitioner claims such further declaration, he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition. The words "other than the petitioner are meant to exclude the petitioner when he happens to be one of the contesting candidates who has been defeated at the polls and would not apply where the petition is filed for instance by an elector. An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the returning officer in the manner prescribed under S. 38,that is to say,candidates who were included in the list of validly nominated candidates and who had not withdrawn 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 S.(2). If the provisions of S. 82 which prescribes who shall be joined as respondents to the petition are not complied with, the Election Commission is enjoined under S. 85 of the Act to dismiss the petition and similar are the consequences ofwith the provisions of S. 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 S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85. Section 90 (3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose.30. Turning now to S. 117, we find that it is a provision relating to the deposit of security for the costs of the petition. When a petitioner presents an election petition to the Election Commission under S. 81 he is to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has 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 the costs of the petition. The Government Treasury receipt must show that such deposit has been actually made by him either in a Government Treasury or in the Reserve Bank of India; it must also show that it has been so made in favour of the Secretary to the Election Commission and it must further show that it has been made as security for the costs of the petition. These are the three requirements of the section which have to be fulfilled.If, therefore it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of S. 117. No such literal compliance with the terms of S. 117 is at all necessary as is contended for on behalf of the appellant before us.Considering Civil Appeal No. 763 of 1957 in the light of the observations made above, we find that Sundaraju Pillai whose name was included in the list of contesting candidates prepared and published by the returning officer under S. 38 but who retired from the contest under S. 55A(2) before the commencement of the poll was included in the expression "contesting candidate" used in S. 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 S. 90 (3) of the Act.35. 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.36. 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 chargeof the Madurai TalukSub 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 authority. If that was so, there was sufficient compliance with the requirements of S. 117 and there could be no question of dismissing the petition forwith the provisions of that section.37. Having regard therefore to the conclusion reached above in regard to thewith the provisions of S. 82, Civil Appeal No. 763 of 1957 will be allowed, the orders of dismissal made by the High Court on the writ petitions Nos. 531 of 1957 and 532 of 1957 will be set aside, the orders passed by the Election Tribunal dated 5th July 1957, will be vacated and the Election Petition No. 147 of 1957 will be dismissed with costs. As the appellant has failed in his contention in regard to the provisions of S. 117, we feel that the proper order for costs should be that each party do bear and pay his own costs here as well as in the High Court38. Civil Appeal No. 764 of 1957 also shares a similar fate. The first respondent therein did not join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of contesting candidates but who had subsequently retired from the contest before the commencement of the poll. They were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under S. 101. The Election Petition No. 74 of 1957 filed by him was thus liable to be dismissed forof necessary parties under S. 90 (3) of the Act.So far as Civil Appeal No. 48 of 1958 in concerned, the difficulty which faces the appellant is that we have nothing on the record of the appeal to show what were the exact terms of the deposit made by the second respondent under S. 117 . The copy of the chalan which is cyclostyled at page 45 of the record is deficient in material particulars and does not throw any light on the question. The appellant no doubt made an application to the Election Tribunal to try his objection as regards thewith the provisions of that section as a preliminary objection and determine whether the second respondent had complied with the provisions of S. 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.41.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 support of the recrimination submitted by the appellant against the 2nd respondent; and a large number of visits by the appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of activity including those in the House of the People. It would mean unnecessary harassment and expenses for the appellant which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal .