# I959 Sardar Sarup Singh v. State of Punjab

- **Citation:** [1959] Supp. 2 S.C.R. 516
- **Court:** Supreme Court of India
- **Decided:** 1958-08-12
- **Case number:** Civil Appeal No. 85 of 1959
- **Bench:** Jafer Imam, A. K. Sarkar, K. SuBBA RAO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i959-sardar-sarup-singh-v-state-of-punjab-1696
- **Pages:** 11

## Headnote

Election Dispute-Deposit for security for costs-Dismissal of
Election Petition for non-compliance with rules therefor-AppealMaintainability-" Trial··. meaning of-Recitals in deposit receipt
-"On whose behalf", meaning of-Representation of the People
Act, r95r (5r of r9sr), ss. 90(3), 98, 99, rr6-A, rr7.
Section II7 of the Representation of the People Act, r95r,
provided: "The petitioner shall enclose with the petition a
Government Treasury receipt showing that a deposit of one
thousand rupees has been made by him ...... in favour of the
Secretary to the Election Commission as security for the costs
of the petition."
The respondent, who filed an election petition challenging
the validity of the appellant's election, deposited the amount as
required under s. II7 of the Act.
In the deposit receipt, the
\.VOrds "Secretary to the Election Commission " were put in as
against the name of the person on whose behalf money was paid.
The appellant contended that the receipt in this form showed
that the money had been paid by the respondent acting for the
(2) S.C.R. SUPREME COURT REPORTS
517
Secretary to the Election Commission and not by him in favour
of the latter, and that as the receipt was, therefore, not in terms
of s. rr7, the election petition should be dismissed. The Tribunal accepted the appellant's contentions and dismissed the election petition under the provisions of s. 90(3) of the Act.
Held, that the words "on whose behalf" in the deposit
receipt, in the context, must mean "in whose favour" and that
the receipt was in full compliance with s. n7 of the Act.
Held, further, that the order passed by the Tribunal under
the powers contained in s. 90(3) of the Act dismissing the
election petition is an order under s. 98 and is appealable under
s. n6A.
The word "trial" in s. 98 of the Act mearts the entire proceeding before the Tribunal from the reference to it by the Election Commission to the conclusion.
Harihar Singh v. Singh Ganga Prasad, A.I1R. 1958 Pat. 287,
disapproved.
Harish Chandra Bajpai v. Triloki Singh, .[1957] S.C.R. 370,
relied on.

## Text

I959
Sardar
Sarup Singh
v.
State of Punjab
S. J(. Das j.
1959
April I.
516
SUP HEME COUB,T REPORTS [1959] Supp.
contention that non-Sikhs can in any way influence the
Board. We do not agree that Sikh Sarpanches and
N aya Pradhans are in the service of Government or that
their inclusion as members of the electorate violates the
right of the Sikhs under Art. 26 (b) of the Constitution.
It may not be quite irrelevant to point out here that
the twelve members of the Interim Gurdwara Board,
Patiala, plus thirty .five elected Sikhs from the Pepsu
area will be a minority as against 132 elected members and twenty-five co-opted members of the Board.
For the reasons given above, we hold that the
petitioners have failed to make out a case of violation
of their fundamental right. Accordingly, the petition
fails and is dismissed with costs.
Petition dismissed.
OM
Pl~ABHA JAIN
v.
GIAN CHAND & ANOTHER
(JAFER IMAM, A. K. SARKAR and K. SuBBA RAO, JJ.)
Election Dispute-Deposit for security for costs-Dismissal of
Election Petition for non-compliance with rules therefor-AppealMaintainability-" Trial··. meaning of-Recitals in deposit receipt
-"On whose behalf", meaning of-Representation of the People
Act, r95r (5r of r9sr), ss. 90(3), 98, 99, rr6-A, rr7.
Section II7 of the Representation of the People Act, r95r,
provided: "The petitioner shall enclose with the petition a
Government Treasury receipt showing that a deposit of one
thousand rupees has been made by him ...... in favour of the
Secretary to the Election Commission as security for the costs
of the petition."
The respondent, who filed an election petition challenging
the validity of the appellant's election, deposited the amount as
required under s. II7 of the Act.
In the deposit receipt, the
\.VOrds "Secretary to the Election Commission " were put in as
against the name of the person on whose behalf money was paid.
The appellant contended that the receipt in this form showed
that the money had been paid by the respondent acting for the
(2) S.C.R. SUPREME COURT REPORTS
517
Secretary to the Election Commission and not by him in favour
of the latter, and that as the receipt was, therefore, not in terms
of s. rr7, the election petition should be dismissed. The Tribunal accepted the appellant's contentions and dismissed the election petition under the provisions of s. 90(3) of the Act.
Held, that the words "on whose behalf" in the deposit
receipt, in the context, must mean "in whose favour" and that
the receipt was in full compliance with s. n7 of the Act.
Held, further, that the order passed by the Tribunal under
the powers contained in s. 90(3) of the Act dismissing the
election petition is an order under s. 98 and is appealable under
s. n6A.
The word "trial" in s. 98 of the Act mearts the entire proceeding before the Tribunal from the reference to it by the Election Commission to the conclusion.
Harihar Singh v. Singh Ganga Prasad, A.I1R. 1958 Pat. 287,
disapproved.
Harish Chandra Bajpai v. Triloki Singh, .[1957] S.C.R. 370,
relied on.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
85 of 1959.
Appeal by special leave from the judgment and
order dated August 12, 1958, of the P~njab High Court
in First Appeal Order No. 183 of 1957, arising out of
the judgment and order dated November 8, 1957, of
Shri Harbaksh Singh, Member, Election Tribunal,
Karnal, in Election Petition No. 249 of 1957.
Purshottam Tricumdas, J. B. Dadachanji, S. N.
Andley and P. L. Vohra, for the appellant.
Ganpat Raf,, for respondent No. 1.
Naunit Lal, for respondent No. 2.
1959.
April 1.
The Judgment of the Court was
delivered by
SARKAR, J.-In the 1957 General Elections the
appellant was declared elected to the Punjab Legislative Assembly. The respondent, Gian Chand, filed an
election petition for a declaration that the appellant's
election was void.
The other respondent in this
appeal, presumably another unsuccessful candidate at
the election, had been made a party to the petition
but he never appeared at any stage. For brevity we
will refer to the respondent Gian Chand, as the respondent..
·
I959
Om Prabha ] ain
v.
Gian Chand
Sarkar ].
518 SUPREME COURT REPORTS [1959] Supp.
19;9
The Election Tribunal before whom the petition
Om Prabha Jain came _up for trial framed a number of issues and recordv.
ed evidence. When the case was ready for argument,
Gia" Chand
the appellant made an application to the Tribunal for
an order dismissing the petition under s. 90(3) of the
Sa.kar J.
Representation of the People Act, 1951, which is later
set out, on the ground that s. 117 of that Act had not
been complied with. Section 117 requires that every
election petition shall be accompanied by a Government Treasury receipt showing that a deposit of
Rs. 1,000 had been made by the petitioner in favour
of the Secretary to the Election Commission as security for the costs of the petition. The appellant's contention was that the receipt enclosed with the petition
was not, for reasons which will be mentioned later, in
terms of·the section. The respondent objected to the
application being entertained because of the delay in
filing it and also on the ground that it could not be
decided without taking evidence. The Tribunal overruled the respondent's objections am! held on a scrutiny of the receipt alone that it was not in terms of
s. 117, and thereupon dismissed the election petition
under the powers conferred by s. 90 (3) without deciding the other issues framed.
The respondent went up in appeal to the High
Court of Punjab. It was there contended on behalf of
the appellant that no appeal lay from an order dismissing an election petition for the reasons mentioned
ins. 90 (3) and that the order of the Tribunal was in
any event right. The High Court held that an appeal
lay to it and that the order dismissing the petition
was wrong because the terms of s. 117 had been complied with. The present appeal is against this order
of the High Court.
Tbe first point that arises is whether an appeal Jay
to the High Court. The Act provides by s. 116A that
an appeal shall lie from every order made by an Election Tribunal under s. 98 or s. 99 to the High Court of
the State in which the Tribunal is situated. The
appellant's contention is that the order of the Tribunal dismissing the petition had not been made under
either of these sections. lt is quite clear that the
(2) S.C.R.
SUPREME COURT REPORTS
519
Tribunal's order had not been made under s. 99.
The
point that arises is whether the order had been made
under s. 98. If it had not been made under s. 98, an
appeal would clearly not lie.
The appellant contends
that it was not so made but had been made under
s. 90 (3).
These two sections are set out below :
"Section 98.-Decision of the Tribunal.-At the
conclusion of the trial of an election petition the
Tribunal shall make an order-
( a) dismissing the election petition ; or
(b) declaring the election of all or any of the
returned candidates to be void ; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any
other candidate to have been duly elected;".
"Section 90.-Procedure before the Tribunal.-
(3) The Tribunal shall dismiss an election petition
which does not comply with the provisions of section
81, section 82 or section 117 notwithstanding that it
has not been dismissed by the Election Commission
under section 85."
Section 85 provides :-
"Section 85.-If the prov1s10ns of section 81 or
section 82 or section 117 have not been complied with,
the Election Commission shall dismiss the petition."
It is first contended on behalf of the appellant that
the provisions of s. 85 and s. 90 (3) are substantially
the same and the fact that no appeal has been provided against the order made by the Election Commission
under s. 85 should be taken as indicating that no
appeal lay against an order under s. 90 (3).
We are
unable to agree with this view. It seems to us that
whether a;n appeal lies against an order of the Tribunal has to be decided by reference to s. 116A and not
by reference to the fact that a similar order by the
Election Commission has not been made appealable.
It is next said that an order under s. 98 is by the
terms of the section, an order made at the conclusion
of the trial of an election petition while an order dismissing a petition for any of the reasons mentioned in
I959
Om Prabha Jain
v.
Gian Chand
Sarkar].
Om Prabha Jain
v.
Gian Chand
Sarkar j.
520
SUPREME COURT REl'OR'.l.'S [1959] Supp.
s. 90 (3) is an order made prior to the commencement
of such trial or at least prior to its conclusion. It is
said that the word "trial" in s. 98 means that stage
of the trial where evidence is tendered and arguments
are addressed. Therefore, it is contended, an order
dismissing a petition under the powers contained in
s. 90(3) is not an order under s. 98 and it is. consequently
not appealable.
vVe see no justification for this view. An order made
under the powers contained in s. 90(3) brings to an
end the proceedings arising out of a petition; after it
is made, nothing more remains for the Election Tribunal to try or do in respect of that petition. Therefore,
it would appear that it is made at the conclusion of
the proceedings before the Tribunal. It follows that
such an order is made at the conclusion of the trial by
the Tribunal for, as will be presently seen, the sole
duty of the Tribunal is to try the petition; the proceeding before it is the trial before it. For the same reason
it would be impossible to say that the order was made
before the commencement of the trial of the r1etition
by the Tribunal. That would be entirely against the
whole scheme of the Act which we now proceed to
consider.
Chapter III of Part VI is headed "Trial of Election
Petitions". It consists of ss. 86 to 107 and covers the
entire ground from the moment an election petition
comes to an Election Tribunal till the final order of
the Tribunal terminating the proceeding arising out of
the petition before it.
The first section, s. 86, provides that if the Election Commission does not think
fit to dismiss under s. 85 the petition which has to be
filed with it in the first instance, it shall refer the petition "for trial" to an Election Tribunal constituted
by it for the purpose. Therefore it would seem that
the sole duty of an Election Tribunal is to try an election petition referred to it. It is an ad hoc body created under s. 86 for this purpose only.
When it passes
an order which closes the proceedings before it arising
out of an election petition, it must be deemed to have
tried the petition and passed the order at the conclusion of such trial. It would no less be so when it
(2) S.C.R.
SUPREME COURT REPORTS
521
decides a matter before it and thereby brings the
proceedings to a close on one of the several issues
raised and does not decide the other issues. In such a
case it has made the order after trial of that issue for
clearly it cannot make an order on any issue without
trying it. It has therefore· made the order at the
conclusion of the trial held by it.
And for this purpose, it makes no difference that the issue tried is of
the nature usually called as preliminary issue or that
the Tribunal does or does not consider it necessary to
try the remaining issues.
The same conclusion also follows from the other
provisions of the said Chapter III of the Act, some of
which are hereinafter mentioned. Section 86(4) gives
the Election Commission the power to fill a vacancy
occurring in the office of a member of an Election
Tribunal and upon the vacancy being so filled up
" the trial " of the petition shall be continued by the
Tribunal as if the. person appointed in the vacancy
had been on the Tribunal from the beginning. Since
it is conceivable that a vacancy may occur in the
office of a member of a Tribunal long before the final
hearing, that is to say the taking of the evidence and
the commencement of the arguments, this section by
providing that upon the vacancy being filled "the
trial" of the petition .,hall be continued must _be taken
as contemplating the proceeding prior to the final
hearing also as trial. Under s. 88 an Election Tribunal may in its discretion sit "for any part of the trial "
at any place in the State in which the election had
taken place. Here again the entire proceeding before
the Tribunal from the reference to it by the Election
Commission till the conclusion is being considered as
the trial. Again under s. 89 the Election Commission
may at any stage withdraw a petition pending before
a Tribunal and transfer it "for trial to another Tribunal" and "that Tribunal shall proceed with the trial
from the stage at which it was withdrawn" from the
first Tribunal. So here too the entire proceeding from
the first reference to an Election Tribunal is being
spoken of as the trial. Hence the contention of the
66
I959
Om Prabha Jain
v.
Gian Chand
Sarkar .f.
,
522
SUPREME COURT REPORTS [1959] Supp. -
'959
·]earned counsel for the appellant that the trial men-
-
_ tioned in s. 98 is the stage in the proceedings in which
Om Prabha Jain evidence is taken and arguments ·are heard, is unv.
Gian Chand
founded. That word in the other sections in this part
of the Act clearly means the entire proceeding before
Sarkar J.
a Tribunal from the reference to it by the Election
Commission to the conclusion. We find no reason to
give it a restricted meaning in s, 98.
Again, suppose in a case no evidence was 'necessary
but the petition was dismissed after hearing arguments
only. That would clearly be an order under s. 98. It
would have been passed at the conclusion of the trial.
How is that case different from one in which on arguments having been heard, the petition is dismissed
under the powers contained in s. 90(3) ? Obviously
here also the order was made at the conclusion of the
trial. An order passed by the Tribunal under the
powers contained in s. 90(3) bringing the proceeding to
a close is, therefore, in our view an order made under
s. 98.
The learned counsel for the appellant referred us to
Harish Chandra Bajpai v. Triloki Singh(') in support
of his contention that the order of the Tribunal with
which we are concerned in this case was not made at
the conclusion of the" trial. We are unable to find
anything in that case to help hiJn.
There this Court
was dealing with s. 90(2) of the Act in which the word
'trial ' occurred. This Court observed that the word
'trial ' standing b:y itself may be susceptible of two
meanings, that is, as referring to the final hearing of
the petition consisting of examfoation of witnesses, filing documents and addressing arguments, and also as
referring to the entire proceedings before the Tribunal
from the time that the petition is transferred to it
under s. 86 of the Act until the pronouncement of the
award. It held that the word 'trial' in the section
meant the entire proceeding before the Tribunal. This
case therefore does not show that the word 'trial' in
s. 98 meant only the final hearing. On the contrary
it shows that in s. 90(2) which is one of the sections in
the Chapter of the Act with which we are concerned,
(1) [1957) S.C.R. 370, •
(2) S.C.R. SUPREME COURT REPORTS
523
the word 'trial' has been understood by this Court as
r959
referring to the entire proceeding. That, as we have
-
said earlier, is really a good reason for thinking that Om Prabha Jain
in s. 98 the word 'trial ' has the same wider meaning
Gian vChand
and not the narrow meaning of which, the word standing by itself may be capable.
Sarkar J.
It also seems to us that s. 90(3) which purports to
deal with the " procedure before the Tribunal " only
states the power of the Tribunal and s. 98 provides for
the orders to be made by it in exercise of that power.
This view receives support from ss. 103, 106 ands. 107
of the Act.
Under s. 103, the Tribunal after it has
made an order under s. 98 has to send a copy of it to
the Election Commission and the records of the case
to the District Judge of the place where it had, been
sitting. Under s. 106, after receipt of the order of the
Tribunal the Election Commission shall forward copies
of the order to the appropriate authority and to the
Speaker or Chairman of the House the election to
which was being questioned by the petition. Section
107 provides that every order made under s. 98 or
s. 99 shall take effect as soon as it is pronounced by
the Tribunal. Now if the contention of the appellant
is right and an order dismissing a petition under the
powers contained under s. 90(3) of the Act is not an
order under s. 98, such an order need not be sent either
to the Election Commission or to the Speaker or the
Chairman of the House concerned, neither would there
be any provision in the Act stating when the order is
to have effect, nor again any provision enabling the
Election Tribunal, which is·an ad hoc body, to dispose
of the records of the case before it. There is no reason
why the Act should provide that a dismissal of an
election petition on the merits as it has been called,
shall be dealt with by the Act in one way while a dis- ·
missal on a preliminary point shall be dealt with
differently when the practical result of both kinds of
dismissal is the same. We are unable to think that
the Act could have intended such a curious result.
Therefore again, it seems to us that an order in exercise of the powers given by s. 90(3) is made under s. 98.
We were also referred to K. Kamaraja N adar v. K unju
1959
01n Prabha j ain
v.
Gian Chand
Sarkar j.
524
SUPREME COURT REPORTS [1959] Supp.
Thevar (1) and the connected cases. There an objection
under s. 90(3) to an election petition similar to that
which the appellant took in this case, was described as
a preliminary objection and it was said that if it was
not decided first the result would be a full-fledged trial
of the election petition involving examination of witnesses. It was therefore directed that the preliminary
point should be decided first as that might save costs
and harassment to the parties by making it possible to
avoid the trial of the other issues.
We are unable to
hold that this judgment supports the view that an
order made under the powers given by s. 90(3) is not
an order made at the conclusion of the trial; the direction to decide what has been called the preliminary
objection, first does not lead to that conclusion. The
Court was not concerned with any question as to when
an order under the powers given by s. 90(3) could be
made. It W!1S indicating a procedure best suited to
the interests of the parties on the facts of that case
and not laying down any rule of law.
The last argument advanced was based on s. 99.
That 'section says that at the time of making an order
under s. 98 the Tribunal shall also, where the petition
contains a charge of a corrupt practice having been
committed, make an order recording a finding whether
or not such corrupt practice had been committed. It
is said that if all orders of the Tribunal dismissing an
election petition were held to be orders under s. 98,
then, where a petition contained a charge of a corrupt
practice and it was dismissed under the powers contained in s. 90(3) the Tribunal had further to make a
finding as to whether the commission of a corrupt
practice had or had not been proved. It is contended
that such a position would be senseless for it would
prevent the Tribunal from ever disposing o{ an election petition summarily on a preliminary ground.
Therefore it is said that all orders dismissing an election petition are not orders under s. 98 and that supports the view that an order under s. 90(3) is not an
order under s. 98. \Ve are not impressed by this argument. If the proper construction of s. 99 is that an
election petition cannot be dismissed on a· preliminary
(r) [1959] S.C.R. 583.
(2) S.C.R. SUPREME COURT REPORTS
525
I959
point raised under s. 90(3) where it contains charges
of corrupt practices having been committed, as the om Prabha Jain
learned counsel for the appellant contends, that conv.
~truction must have effect however senseless it may
Gian Chand
appear. Suppose an election is sought to be avoided
on the grounds, that the returned. -candidate was not
qualified or that one of the nomination papers had
been improperly rejected and also on the ground of
corrupt practices having been committed by the returned candidate, all of which are good grounds for
setting aside an election under s. 100 of the Act. In '
such a case too, if the construction put upon s. 99 by
the learned counsel for the appellant is right, the Tribunal cannot allow the petition on any one of the first
two grounds, which it could have done after a very
summary trial, but must proceed to decide the charges
of corrupt practice alleged. This can be said to be
eqnally senseless as where having dismissed a petition for non-compliance with s. 117 the Tribunal is
made to record a finding on the corrupt practices
alleged. On the other hand, if it is not senseless in
the one case it is not senseless in the other. 'Ve do
not therefore find much force in the argument based
on an interpretation of s. 99 supposed to produce
senseless results.
All this cannot, in any event, supply a reason for
holding that an order which terminates the proceedings arising before an Election Tribunal is not an
.order passed at the conclusion of the trial when it was
made for the reasons mentioned ins. 90(3).
·we have
earlier stated that the only duty of the Tribunal is to
try and decide an election petition and the order on
the preliminary point may dispose of that petition. We
may also point out that under s. 99 (1) (b), the Tribunal at the time of making an order under s. 98 has
also to make an order a warding costs and fixing the
amount thereof. If an order authorised by s. 90(3) is
not an order under s. 98 then, when dismissing a petition under s. 90(3) the Tribunal would appear to have
no jurisdiction to make an order for costs.
Th~t can
hardly have been intended.
We therefore think that an order dismissing a petition for the reasons mentioned in s. 90(3) is an order
Sarkar ].
526
SUPREME COURT REPORTS [1959] Supp.
r959
under s. 98 and is appealable under s. 116A. In our
om Prabha Jain opinion, the ~ase of Harihar Singh v. Singh Ganga
v.
Prasad (1) which took the contrary view, was wrongly
Gian Chand
decided.
As to the merits of the appeal, we find no difficulty.
Sarkar J.
Under s. 117 of the Act the Treasury receipt has to
show a deposit of Rs. 1,000 in favour of the Secretary
to the Election Commission. 'J'here is no dispute that
the respondent deposited the required amount and
enclosed a deposit" receipt with his petition. The
'deposit receipt filed by the respondent contained the
following statements on which· the appellant's contention is based :-
I.
By whom tenderedGian Chand
2.
Name of the person on
Secretary to
whose behalf money
the Efoction
is paidCommission.
The contention is that the receipt in th.is form showed
that the money had been paid by the respondent acting for the Secretary to the Election Commission and
not by him in favour of the latter. We are wholly
unable to read the deposit receipt in that way.
The
second of the two entries reproduced above is intended
to indicate the person in whose favour the money has
been paid; 'on whose behalf' here clearly i.ndicates
in whose favour or for whose benefit. The form of
the receipt contains no other heading for indicating
the person in whose favour the money was paid and
of course it was paid in favour of somebody. That
makes it perfectly clear that the words ' on whose
behalf' mean in whose favour. It would be absurd to
think that the respondent had paid the money into
Treasury as security for the costs of the election
petition acting as the agent of the Secretary, Election Commission, which would be the position if we
were to accept the appellant's contention.
We feel no doubt that the receipt was in full compliance with s. 117 of the Act.
In the result we dismiss this appeal with costs.
•
Appeal dismissed.
(•) A.LR. 1958 Pat. 287.