# K. KAMARA.JA NADAR v. KUN JU TREV AH, AND OTHE1~S

- **Citation:** [1959] 1 S.C.R. 583
- **Court:** Supreme Court of India
- **Decided:** 1957-09-09
- **Case number:** Civil Appeals Nos. 763 and 764 of 1957
- **Bench:** Bhagwati, J. L. Kapur, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-kamara-ja-nadar-v-kun-ju-trev-ah-and-othe1-s-1529
- **Pages:** 28

## Headnote

Election Petition-Claim fvr seat-Candidate retiring from contest, whether a necessary party-vVithdrawal of claim for seat, if
cures defect of parties-Provisions relating to security deposit, if
mandatory-Representation of the People Act, I95I (43 of I95I),
SS. 82 and IIJ.
There were seven candidates duly nominated for election, and
four out of them withdrew their candidature by the due date.
The names of the remaining three were placecl on t11e list of contesting candidates prepared by the Returning Officer under s. 38
of the Representation of the People Act, 195r. Out of the three
candidates one Pillai retired from the contest under s. 55A(2) of
the Act leaving the appellant and the second respondent to contest the• election. After the appellant was declared duly elected
the first respondent, an elector in the constituency, filed an.
,
election petition praying that the election of the appellant be
declared void and further that the second respQndent be decl<JJ"ed
April 22.
584
SUPREME COURT REPORTS
[1959]
1958
duly elected.
The appellant and the second
respondent
were impleaded as parties to the petition but Pillai was not-.o
J(amaraja Nadar impleaded. The appellant applied to the Election Tribunal to
v.
dismiss the election petition under s. 90(3) on the grounds (i) that
J(itnju Thevar
Pillai was a contesting candidate and the failure to join him as a
.party amounted to a non-compliance with the provisions of s. 82
of the Act, and (ii) that the proper and complete head of account
had not been mentioned in ,the treasury receipt by which the
security deposit of Rs. r ,ooo had been made nor had the deposit
been made in favour of the Secretary, Election Commission as
laid down in s. rr7 of the Act.
The first respondent also applied
to the Tribunal for an amendment of the petition by deletion of
the claim for the seat. The Tribunal rejected the applications
for dismissal of the petition holding that Pillai was no longer a
contesting candidate and it \vas not necessary to join him as a
party to the petition, and that there was no defect in the treasury
receipt. It also allowed the amendment prayed tor :
Held, that the election petition was liable to be diimissed
under s. 90(3) for failure to implead Pillai as a party. A contesting candidate V.'hose name was included in the list prepared under.
s. 38 but who retired from the contest -under s. 55A(2) continued
to be a contesting candidate for the purposes of the Act and it
was incumbent upon the election petitioner under s. Sz to join
him as a party to the election petition where a claim for the seat
'vas made,
l''urther, the Tribunal had no power to grant an
an1endn1ent, whether by withdr<il.\val or abandonment of a part of
the clairr1 or otherwise, once an election petition had been presented to the Election Comn1ission clai1ning the further declaration for the seat. The defect of non-joinder could not be cured
by such amendment.
Htld, further, that there \vas sufficient compliance \vith the
provisions of s. 117 aud the election petition could not be dismissed on the ground of failure to comply therewith.
The words
"in favour of the Secretary to the Election Commission " used in
s. r 17 were directory and not mandatory in their character and
no literal compliance \vith the terms of s. 117 v"as necessary.
\Vhat \Vas of the essence of the provisions of s. 117 \vas that the
receipt should show or it should be proved by evidence led before
the Tribunal that the deposit was at the disposal of the Election
Commission to be utilised by it in the manner authorised by la\v
and was under-its control.and payable to the Election Commission or to. any other person duly authorised by it to receive the
same_.

## Text

_Characters 0–39,906 of 62,475. This is a partial read: ask again with offset=39906 for what follows._

S.C.R.
SUPREME COURT REPORTS
583
I11deed the course of conduct evidenced by these letters
1958
shows that Andiappa Pillai who holds the maximum
f
d
1 h
h
The Erin Estate,
number o indivi ua s ares as purported to act for
Ga/ah. Ceylon
the partnership and usually gave instructions in regard
v.
to the conduct and management of the firm's affairs. The Commissioner
On the record we sec no trace of any protest against,
of Income-Tax.
or disagreement with, this cor!duct of Andiappa Pillai.
Madras
Besides, it was never suggested during the course of G . d -dk
the enquiry before the Income-tax Officers that the a;en raga
ar J.
directions given by Andi11.ppa Pillai were not valid or
effective and had not been agreed upon by the remaining partners. That is why we think this technical point
raised by Mr. Kolah must fail.
The result is the appeal fails and must be dismissed
with costs .
•
Appeal disrnissed.
K. KAMARA.JA NADAR
v.
KUN JU TREV AH, AND OTHE1~S
(and connected appeals)
(BHAGWATI, J. L. KAPUR and A. K. SARKAR JJ.)
Election Petition-Claim fvr seat-Candidate retiring from contest, whether a necessary party-vVithdrawal of claim for seat, if
cures defect of parties-Provisions relating to security deposit, if
mandatory-Representation of the People Act, I95I (43 of I95I),
SS. 82 and IIJ.
There were seven candidates duly nominated for election, and
four out of them withdrew their candidature by the due date.
The names of the remaining three were placecl on t11e list of contesting candidates prepared by the Returning Officer under s. 38
of the Representation of the People Act, 195r. Out of the three
candidates one Pillai retired from the contest under s. 55A(2) of
the Act leaving the appellant and the second respondent to contest the• election. After the appellant was declared duly elected
the first respondent, an elector in the constituency, filed an.
,
election petition praying that the election of the appellant be
declared void and further that the second respQndent be decl<JJ"ed
April 22.
584
SUPREME COURT REPORTS
[1959]
1958
duly elected.
The appellant and the second
respondent
were impleaded as parties to the petition but Pillai was not-.o
J(amaraja Nadar impleaded. The appellant applied to the Election Tribunal to
v.
dismiss the election petition under s. 90(3) on the grounds (i) that
J(itnju Thevar
Pillai was a contesting candidate and the failure to join him as a
.party amounted to a non-compliance with the provisions of s. 82
of the Act, and (ii) that the proper and complete head of account
had not been mentioned in ,the treasury receipt by which the
security deposit of Rs. r ,ooo had been made nor had the deposit
been made in favour of the Secretary, Election Commission as
laid down in s. rr7 of the Act.
The first respondent also applied
to the Tribunal for an amendment of the petition by deletion of
the claim for the seat. The Tribunal rejected the applications
for dismissal of the petition holding that Pillai was no longer a
contesting candidate and it \vas not necessary to join him as a
party to the petition, and that there was no defect in the treasury
receipt. It also allowed the amendment prayed tor :
Held, that the election petition was liable to be diimissed
under s. 90(3) for failure to implead Pillai as a party. A contesting candidate V.'hose name was included in the list prepared under.
s. 38 but who retired from the contest -under s. 55A(2) continued
to be a contesting candidate for the purposes of the Act and it
was incumbent upon the election petitioner under s. Sz to join
him as a party to the election petition where a claim for the seat
'vas made,
l''urther, the Tribunal had no power to grant an
an1endn1ent, whether by withdr<il.\val or abandonment of a part of
the clairr1 or otherwise, once an election petition had been presented to the Election Comn1ission clai1ning the further declaration for the seat. The defect of non-joinder could not be cured
by such amendment.
Htld, further, that there \vas sufficient compliance \vith the
provisions of s. 117 aud the election petition could not be dismissed on the ground of failure to comply therewith.
The words
"in favour of the Secretary to the Election Commission " used in
s. r 17 were directory and not mandatory in their character and
no literal compliance \vith the terms of s. 117 v"as necessary.
\Vhat \Vas of the essence of the provisions of s. 117 \vas that the
receipt should show or it should be proved by evidence led before
the Tribunal that the deposit was at the disposal of the Election
Commission to be utilised by it in the manner authorised by la\v
and was under-its control.and payable to the Election Commission or to. any other person duly authorised by it to receive the
same_.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
763 and 764 of 1957 and 48 of 1958.
•
Appeal (No. 763) from the judgment and order dated
SC'Jptember 24, _ 1957, of the l\fadras High Court in
•
S.C.R..
SUPR.EME OOUR.T REPORTS
. 585
Writ Petitions Nos. 531 and 532of 1957. Appeal (No.
r95B
764) from the judgment and order dated September I<
.-.. -
Nd
24, 1957, of the Madras High Court in Writ Petitions
amaia~."
0 ar
Nos. 573 and 574 of 1957.
Appeal (No. 48) by special
I<u11ju Thevar
leave from the judgnient and order dated September
9, 1957, of the Patna High Court in M. J.C. No. 480
of 1957.
M. C. Setalvad, Attorney-General for India, M. K.
Narnbiar and S. N. Andley, for the· appellant in C. A.
No. 763.
.
P. Ram Reddy, for the appellant in C. A. No. 764.
Purshottam Tric111ndas and S. P. Varma, for the
appellant in C. A. No. 48 and intervener in C. A. No.
763.
A.• V. Viswanatha Sastri, R. Ganapathy Iyer and G.
Gopalakrishnan, fm~ respondent No. 1 in C. A. No. 763.
R. Ganapathy Iyer and G. Gopalalcrishnan, for respondent No. I in C. A. No. 764.
R. Patnaik, for respondent No. 2 in C. A. No. 48.
JYI. C. Setalvad, Attorney,General for India, C. K.
Daphtary, Solicitor-General of India and J. B: Dadachanji, for Y. B. Chavan (Intervener in C. A. No. 'i63).
Y. Kumar, for K. P. Pawar (Intervener in C. A. No.
763).
R. Patnaik, for Ibrahim Ansari (Intervener in C.A.
No. 763).
1958.
April 22.
The Judgment of the Court was
delivered by
BHAGWA'fl J.-These Civil Appeals raise a common
Bliagwati J.
question of law, viz., the interpretation of SS. 82 and
117 of the Representation of the Peo~Jle Act, 1951,
(hereinafter referred to as " the Act") and can be disposed of by a common judgment.
.
Civil Appeal No. 763 of 1957: The appellant in
Civil Appeal No. 763 of 1957 is the Chief Minister of
Madi-as and was declared duly elected to the Madr~s
State Legislative Asse.r':nbly at an election held ·on
Mairch 4, 195?, from the ~athur Con~tituency ha¥ing
. .
586
SUPHEME COURT REPORTS
[1959]
i95B
got 36,400 valid votes an against 31,683 valid votes
J<amaraja Nadar secured by his rival, the respondent No. 2 in the petiv.
tion. There had been seven candidates duly nominatJ<unju Thcv"r ed for· election in that constituency out of whom 4 had
withdrawn their candidature by February 4, 1957,
/Jhagwai; f.
which was the last date for such withdrawal. Three
candidates were thus left in the field, the appellan.t,
the 2nd respondent and one Snndararaja Pillai and
their names were placed in the list of contesting candidates and published by the Retnrning Officer under
s. :38 of the Act.
Pillai retired from the contest on
February 21, 1957, under s. 55A(2) of the Act, thus
leaving the appellant and the 2nd respondent the only
two contestants for the seat.
After the appellant was declared duly elected, the
first respondent who was an elector in the said cohstituency filed an election petition, being Election Petition No. 147 of 1957, impleading the appe1lant and
the 2nd r·espondent as party respondents to that
petition and prayed that the election of the appellant
from Sathnr Constituency be declared void and further
tlrnt the 2nd respondent be decbred duly elected.
As Pillai who had retired from the contest on February 21, 1957, was not impleaded as a party respondent
to this petition an objection was raised by the Election
C'9mmission on the score of his non-joinder.
A notice
was issued to the 1st respondent on May 1, 1957,
calling upon him to show cause why the petition
should not be dismissed summarily f01~ non-joinder of
one of the necessary parties and on May 10, Hl57, the
Election Commission by its order stated th11t it would
be for the Election Tribnual to decide at tho Trial
after hearing the parties if the issue of the non-joindcr
of Pillai as a respondent necessarily affected the
pmyer seeking that the 2nd respondent Le declared
duly elected. The Election Commission also discovered
a defect in the deposit of Hs. 1,000 inasmuch as the
proper and complete head of account Imel not been
mentioned in the treasury receipt nor had the d~osit
Leen made in favour of the Soorebwv, Election Commission, as laid down in i;. 117 of the Act.
This
que~tion ~ls() wa5 kit to th9 ·Tribunal to decide after
..
r
r
I
S.C.R.
SUPREME COURT Rl~POHTS
587
hearing the parties, if the defect should be treated as
'9 58
fatal o.r one that could be cured by fresh deposit ~r. Kamaraja Nadar
otherwise so aa to secure the costs of the appellant if
v.
eventually awarded to him. The Election Commission
J\1111J11 Thevar
admitted the petition and a copy of the petition was
published in the official gazette as requir<;id under
Bhagwilli J.
s. 86(1) of the Act. It was also served on the appella0nt and the petition ·was referred to the Election Tribunal for trial.
On June 22, 1957, the appellant filed I. A. No. 1 of
19;57 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 dismis:>al 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 Secretarv, Election Commission, as clearly and strictly requir°0d under s. 117 of the
Act. The first respondent filed before the Election
Tribunal I. A. No. 3 of lf)57 asking for an amendment
of the petition by deleting paragraph 7 A :-" the
second respondent would have obtained more votes if
the first respondent had nqt 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 July 5, 1957.
Evidence was led by the first respondei1t in connection with the treasury receipt and K. Nataraj~t
lHudaliar, head Accountant in-cfaargo of the Madurai
Taluk Sub-Treasury, gave evidence to the effect that
the 3ub-Treasury clerk had filled up the hrad of the
account in the Chalan, that the Treasury Officer woulcl
make necessary entries in the Chittas and carry for •
•
•
5SS
SUPREME COURT REPORTS
[1959]
r958
ward the amounts to the respective heads of accounts
'
,
that the amount was kept in the Election Revenue
Kama,.~~ Nadar deposit and could not be disposed of without the ElecI<«nju Thevur tion Commission's order and· that the monev was at
the disposal of the Election Commission. On crossBhaewari J.
examination by 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 Petitfon, that the Election Commission could draw
the money and any one authorized by the Election
Commission could also draw the same.
The Election Tribnnal passed a common order on
July 5, 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 ]'ebruary 21, 1957. As regards I. A. No. 2 of Ul57,
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 ad vise rs.
On July 14, 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
0 Writ Petition No. 532 of 1957 for the
issue of a writ of Prohibition for quashing the common order passed by the Election Tribunal in I. A.
Nos. 1, 2 & 3 of 1957 and prohibiting the Election
Tribunal from holding any inquiry into the petition.
T·hese writ petitions came up for hearing before the
High Court along with two other writ petitions being
.
.
.
•
r
'
S.C.R.
SUPREME COURT REPORTS
589
writ petitions Nos. 573of1957 and 574 of 1957 (hereinr95S
after referred to) and were all dismissed by it by a I<
-.- ,, d
.
.
.
d
S
b
957
amara;a .n a ar
common Judgment dehvere on eptem er 24, 1
.
v.
The appellant thereafter applied for and obtained
Kunju Thevar
from the High Court a certificate under Art. 133 (1) (c)
of the Constitution to appeal to this Court against the
Bhagwati J.
decision in 'Vrit Petitions Nos. 531of1957 and 532 of
1957 and hence Civil"Appeal No. 763of1957.
Civil Appeal. No. 764 of 1957.
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 M~mber Salem (1) constituency on
March 8, 1957, having obtained 24,\:120 valid votes as
against 24,713 valid votes obtairied by his rival the
first r~spondent. There were 10 candidates who had
been duly nominated for election; but 5 of them withdrew their candidature on February 5, 1957, which
was the last date for such withdrawal and two retired
before February 23, 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 February 5,
1957, and :February 23, 1957. On April 18, 1~57, 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 betin 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 April 25, 1957, a notice was issued by the Election
Commission to the first respondent calling upon him to
'75
•
590
SUPREME COURT REPORTS
[19'59]
I958
show cause by May 6, 1957, as to why his petition
-
should not be dismissed summarily for such nonKamaraja Nadar • • ·d
f
f h
•
A
1
iom er o two o t e necessary parties.
n exp anaKunjuv.Th,var tion was rendered by the first respondent on May 2,
1957, but the Election Commission appears to have
Bhagwati J.
referred the decision of this question to the Election
Tribunal appointed by it and on June 24, 1957, the
appellant filed before the Election Tribunal an appl!\cation 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 July 13, 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. •
.The appellant thereupon filed two writ petitions
being Writ Petitions Nos. 573 of1957 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 September 24, 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.
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 March 15, 1957, .having
secured 39,025 votes as against the 2nd respondent
who secured only 36,785 votes. On April 27, 1957, the
2nd respondent filed an election petition being Election
Petition No .. 341 of 1957 against the appellant praying
•
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f
SUPREME· COURT REPORTS
591
that; his election tm the H0use of the. People be declarIg58
ed void and that . the 2nd respondent oo declared to K
-.- "' d
ha V·e beewduly elected from : the said constituency.
amara~~ ' a ar
Alt the contesting candidates were made party responI<unju. Thevar.
dents to .that-petition; but it. appears .that the 2nd
responcilent ·encfosed with the petition a government
Bhagwati J.
treasury receipt showing a deposit of Rs.' 1,000. by him
in.the StaterBank 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 w<:>rds "'security for the costs of the Election Retition, .Ranchi East Parliamentary· Constituency". On May 14, 1957, the Election C(j)mmission
made an order :admittingi the. petition but on the. question whether the defect :in the deposit was fataLor.
may Se cured, e.·.g., byia fresh deposit or otherwise so
as· to safeguard: the appellants' right to costs, if any,
awardediin his favour, it reserved. the same for decision
by the Election .Tribunal. On July :31, 1957, the
appellant filed.:a:petition before the Election .Tribunal
ulilder s. 90(3) of the. Act , urgin'g, that the omission.of
the words " in favour of the, Seeretar.y to the Election
Commission " from the' Chalan was.fatal..and that the
petition be. dismissed. He also· urged that this petition
sh(j)uld be heard ·.and . disposed of before·any ,further
hearing of the Election Petition ·took place. :The:
preliminary objection was accordingly heard on August
26 and .27, 1957,.and by its ;(j)rder datetl .August 31,
1957 ~·the ,Election Tribunal.e.xpressed:_the ·opinion that
the matter was ;U(}t.free from dcmbt. andrth.e .Election
Tribunal being an Ad Hoc body, it was essential that.
it.should de.cide the case. as a·w110le.•and not· piecemeal,
inasmuchJas there·was-no.easy provision for :remand
ifjts view was not accepted by 1 the appellate authority.
']he EleGtion Tribunal therefore ·did no\ considar it
proper to give its decision· on the. preliminary objectfrm
atithat stage and1ordered'.that the trial of the :Election
Petition do proceed. ·
· ·
·
· ·
Theo appellant .thereafter;on. September 6, 1957, filed
a writ 1petition1under .'Ai't. 226 Of ,tlie· Constitution in.
theJHigh Court:of J.udicature at Patna.being lVI. J. 0 •
•
592
SUPREME COURT REPORTS
[1959]
I95B
No. 480 of 1957 asking for a writ of certiorari to quash
the order of the Election Tribunal and also a writ of
Kamaraja NadaY Prohibition to stop the continuance of the proceedings
Kunjuv.Thevar before the Election Tribunal. This petition was dis-
.
missed by the High Court on September 9, 1957, as
Bhagwati J.
the High Court thought that the matter could be
decided at the time of the hearing of the Election Petition itself.
The appellant thereafter a pp lied for and
obtained on December 16, 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.
The two sections of the Act which fall to be construed by us are :
Section 82.
" Parties to the petition: A petitioner
shall join as respondents to his petition :-
(a) where the petitioner, in addition to claimfog a
declaration that the election of all or any of the
returned candidates is void, claims a further declaration that he himself or any other candidate has been
duly elected, all the contesting candidates other than
the petitioner, and where no such further declaration is
claimed, all the returned candidates ; and
(b) any other candidate against whom allegations
of any corrupt practice are made in the ,petition."
Section 117. " Deposit of Security: The petitioner
shall 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 main question for our determination is what is
the exact connotation of the expression " contesting _
candidate " in s. 82 and whether a candidate whose
name was included in the list of contesting candidates
published by the Returning Officer under s. 38 but who
retired form the contest under s. 55A(2) is included in
that expression.
.
It .will be helpful in this context to survey the seheme
of the Act in regard to the conduct of elections,
contained in Part V of the Act. Under s. 30 a_s soon
• •
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SUPREME COURT REPORTS
593
as the notification calling upon a constituency to elect
r95B
a member or members is issued, the Elec'tion Commis-
-
sion is to appoint, (1) the last date for making nomiKamara~~ Nadar
nations, (2) the date for the scrutiny of nominations,
Kunju Tllevar
(3) the last date for the withdrawal of candidatures,
(4) the date or dates on which a poll shall, if necessary,
Bhagwati J.
be taken, and (5) the date before which the election is
to•be completed. A candidate for electiop. has to be
validly nominated to start with and after. such nominations are made the Returning Officer is to hold a
scrutiny of nominations
on the appointed day.
Immediately after all the nomination papers have been
scrutinized and decisions accepting or rejecting the
same have been recorded by the Returning Officer, he
' is to prepare a list of validly nominated candidates and
affix jt to his notice board. Any of these candidates
may, however, withdraw his candidature on or before
the last date for the withdrawal of candidatures and
the Returning Officer is enjoined on receiving a notice
ofwithdrawal to cause the same to be affixed in some
conspicuous place in his office.
Section 38 provides
that immediately after the expiry of the period within
which. candidatures may be withdrawn as aforesaid the
returning officer is to prepare and publish a list of
contesting· candidates, that is to say, candidates who
were included in the list of validly nominated candidates and who have not withdrawn their candidatures
within the said period. Section 52 provides for the
consequences of death of a candidate before the poll
and .says that if a contesting candidate dies and a
report of his death is received before the commencement of the poll, the returning officer upon being satisfied of the fact of the death is to countermand the poll
and thereupon all proce~dings with reference to the .
. election are to commence anew in all resp~cts as if for
a new election. There are however two provisos to this
section: (1) that no further nomination is' necessary in
the case of a person who was a contesting candidate at
the time of the countermanding of the poll and (2) that
no pe~on who has given a notice of withdrawal of his
candidature under s. 37(1) or a notice of retirement·
from the contest under s. 55A(2) before the counter-
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SUPREME COURT REPORTS
[1959)
I958
mantling of the poll is ,ineligible for being nominated as
-
a candidate for the election aner such countermand1<u.,araja Nadar ·
S
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53
d
4
"b
h
d
· v.
mg.
ect1ons
an
5
prescn e t e proce ure
Kunju Thovar in contested and uncontested elections. If the number
of contesting candidates is more than the number of
!lhagwati J.
seats to be filled a poll is to be taken ; if the number
of such candidates is equal to the number of seats to be
filled, the, returning officer is to forthwith declare itll
such candidates to be duly elected to fill these seats
and if the number of such candidates is less than the
number of seats to be filled, the returning officer is to
forthwith declare all such candidates to be elected and
the Election Commission is to call upon the constituency to elect a person or persons to fill the remaining
seat or seats. Section 55A provides for retirement
from contest at elections in Parliamentary and Assembly constituencies, and the consequences thereof.
Under s. 55A(2) a contesting candidate may retire from
the contest by a notice in the prescribed form deliv<')red
in the manner therein specified and the returning
officer upon receiving . such notice of retirement is to
cause a copy thereof to be affixed to his notice board
and also to be published in the manner prescribed.
Sub-section 5 enacts a legal fiction. It states that
any person who has given a notice of retirement under
sub-s. 2 shall thereafter be deemed not to be a contesting candidate for the purposes of s. 52. Sub-sections 6
and 7 provide for ·the consequences of such retirement
on the poll. Before .such retirement the list of contesting candidates prepared by the returning officer under
s. 38 is to determine whether there should be a poll or
not.
Sections 53 and 54 of the Act . provide for all
possibilities b.ut. if by.reason of the number of contesting
candidates being more than.the number of seats to be
filled. a poll has to be taken. and one or more of such
contesting candidates retire before the commencement
of the poll leaving in the field only such number of
candidates as is equal to the number of seats to. be
filled, sub-ss. 6 and .7 provide that the returning officer
is to forthwith declare all the -remaining con1'esting
·candidates to be duly elected to. fill those seats and
douritermand the, poll.
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59'5
Their follows· Part VI . which deals with disputes
z958
regarding elections. SectiNa: 80 provides that no elec-
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.
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_ b
1. .
/(arnara1a
a ar
t10n is to be called m question except
y an e ect10n
v.
petition presented in accordance with the provisions of Kunju Thevar
this part; Under s. 81 an election rpetition calling in
question any election may be presented on one or more
Bltagwati J.
of the grounds specified in :s. 100(1) 'and s. 101 to the
Election Commission by any candidate at such election
or ·any elector within forty-five days from, but not
earlier than, the date of election·of 1th'e returned candidate. Section 82 prescribes who are the necessary
parties t© such petition. The petitioner may merely
claim a declaration that the election of all or
any of the returned candidates· is void. If he
does so he must join as respondents to his petition all
the. returned candidates and any other candidate
against whom allegations of any corrupt practice are
made in the petition. If, however, in addition to
claiming· such a declaration the petitioner claims a
further declaration that he himself or any other candidate has been duly elected, an .the contesting candidates other than the petitioner; and· any other candidate against whom allegations of corrupt practices
are made in the petition must be joined as respondents
to that petition. Section 84 provides for the reliefs
that may be claimed by the petitioner. It states that in
addition to claiming a declaration that the election of
all or any· of the returned candidates is void, the petitioner•may daim a further declaration that he himself
or any other candidate has been duly elected. This is
really the foundation of the provisions contained in
s. 82(a) of the Act which prescribes who are the necessary parties to such a petition. Section 85 enjoins the
Election Commission to dismiss the petitioh if the provisions of s. 81 or s. 82 or s. 117 have HC4t been complied with provided, however, that the petition is not to
be dismissed without giving the petitioner an opportunity of being heard. Section 90 prescribes the procedure to be followed by the Election Tribunal and
s. 9()(3) enjoins. the Tribunal . to dismiss an election
petition which does not comply with the provisions 6f
ss. 81, 82- or .117, notwithstanding that it has not been
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S-CPREME COURT REPORTS
[1059]
x958
dismissed by the Election Commission under s. 85.
h.
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Section 117 refers to the deposit of security by the
amam~~
a "' petitioner for the costs of the petition, and has already
/{unju Theuar been set out above.
It is clear from the above that the procedure for
Bhagw.i; J.
elections has been thought out with meticulous detail
and all the steps from the issue ·of the notification
calling upon a constituency to elect a member or
members up to the publication of the results of elections are laid down therein.
Article 329(b) of the·Constitution provid~s that no
election to either House of Parliament or to the Houses·
or either House of the Legislature of a State shall be
called in question except by an election petition presented to such 11,uthority and in such manner as may
be provided for by or under 11,ny faw made bY. the
appropriate Legislature, and Part VI of the Act enacts
provisions for disputes regarding elections. The orders
which can be passed by the Election Tribunal at the
conclusion of the Trial of an election petition are set
out in section 98 of the Act, viz., (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. Under s. 99
power is also given to the Election Tribunal to make
an order, where any charge is m11,de in the petition of
any corrupt practice having been committed at the
election, reaording (i) a finding whether any corrupt
practice has or has not been proved to have been committed by, or with the consent of, any candidate or his
agent at the election, and the nature of that corrupt
practice ; and (ii) the names of all persons, if any, who
have been pro
0ved at the trial to have been guilty of
m1y corrupt practice and the nature of that practice.
These provisions· go to show that " an election contest is not' an action at law ·or a suit in equity but is a
purely statutory proceeding unknown to the common
law and that the court possesses no common• law
power .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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, It is always to be borne in mind that though the
I958
election of successful candidate is not to be lightly K
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interfered with, one of the essentials of that law is als'o
amara;a Nadar
v.
to safeguard the purity of the election process and also
J(unju Thev.ar
to see that the people do not get elected by flagrant
breaches of that law or by corrupt practices." (Per
Bhagwati J.
Mahajan C. J. in Jagan Nath v. Jaswant Singh (1)).
To the ·same effect are the observations in A. Sreenivasan v. Election Tribunal, Madras('):
"An election petition is not a matter in which the
only persons interested. are candidates who strove
against each other at the elections.
The public also
are substantially interested in it and this is not merely
in the sense that an election has.news value.
An election is an essential part of the democratic process. The
cit,izent at large have an interest in seeing and they
are justified in insisting that all elections are fair and
free arid not vitiated by corrupt or illegal practices.
In a civil action the only persons who are interested
are the i1idividuals arrayed as plaintiffs or defendants
but that is not so in an election petition."
In the Tipperary Case (3) Morris J. expressed himself as follows :
" It was strongly urged that a petition isl a mere
cause in this Court, and that as an ordinarf cause
could not be instituted against a dead person, by
analogy a petition could not be lodged seeking to set
aside the return of a deceased person.
I consider this
is a fallacious analogy, because a petition i:s not a suit
between two persons, but is a proceeding in which the
constituency itself is the principal party interested."
The process of election starts from the issue of a
notification calling upon a constituency to· elect a
member or members. The nomination papers filed by
. the appointed date are scrutinized by the returning
officer and a list of validly nominated candidates is
prepared. When. such a list is prepared a stage is
reached when the whole constituency knows who are
the · valwly nominated candidates standing for tire
(1) [1954] S.C.R. 892, 895.
(2) (1955) II E.L.R. 278, 29J.·
(3) (1875) 3 O'M. & H. 19, 25.
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[1959)
r95S
election. It very often happens that a particular party
in order to a void the possibility of the nomination
Ka1naraja /\1adar
v.
papers of its members being rejected by the returning
Kimju Theva, officer and finding itself in a difficulty if no validly
nominated candidate or candidates of its own persuaBhagwah J.
sion are left in the field nominates m·ore candidates
than what it would othenvise put up for the electi<;m;
if the nomination papers of these candidates put forward by it are accepted by the returning officer it
would find itself in a predicament where the votes
which it may canvass in its favour may be divided
between the candidates sponsored by it when the poll
is taken. In order to avoid such a situation a provision
is made for: the withdrawal of candidatures by the
validly ·nominated candidates. A candidate who has
been validly nominated nrny also, after the list-of the
validly nominated candidates is published, re-assess his
prospects at the election and may think it worth his
while to withdraw his candidature and retire from the
field.
He may do it sometimes to save his deposit.
from being forfeited or from v;i,rious other motives
which it is unnecessary to discuss; but a locus poenitenti;i,e is given to him to withdraw ':iis candidature
within thf) time prescribed for the same and if such
notice of withdrawal is given by any candidate, the
returning officer is to cause such notice to be affixed in
some conspicuous place in his office.
After this date
has passed it is definitely known,who are the candidates validly nominated as such and who wish to contest the election. These candidates who survive the
date of the withdrawal of candidatures are descril;>ed in
s. 38 as contesting candidates, that is to say, candidates
who were included in the list of validly nominated candidates and who have not withdrawn their candidatures withil'l the said period.
A list of the contesting
candidates is immediately thereafter prepared ;i,nd
publishe'd by the returning officer. That list contains
the names of the contesting candidates in alphabetical
order and the ;i,ddresses of the contE;sting candic!ates as
. given in the nomination papers together with such
other. particulars as may be prescribed. Form 7 A in
~ooedule ~o tho Representation of the People (Conduct
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599
of Eleptions and Election Petitions) Rules, 1956, indi-
.
r958
catesihow the list of contesting candidates is prepared ~·
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by the returning officer and it mentions among other l\amara;a Nadar
things : " The poll will be taken between the ho.urs of
v.
J{u,njn Thevar
............ and ............ on .... ' ....... (date or dates). Postal
ballot papers must reach the undersigned before 5 p.m.
Bhagwati J.
on ........ ; ... (date). Place ............ Date ............ Returning Officer." This is of cqurse the normal procedure
when a poll has to be taken.· Sections 53 and 54,
however, work out the various situations which may
develop having regard to the number of contesting
candidates in relation to the number of seats to be
filled.
If the number of contesting candidates is more
than the number of seats to be filled, then and then
only a poll has to be taken. If, however, the number of
such. candidates is equal to the number of seats to be
filled or is less than the number of seats to be filled,
the list of contesting candidates need not mention the
above particulars as regards the poll being taken and
the postal ballot papers reaching the returning officer
at the time or on the days therein specified. The
returning officer then forth with declares all such contesting candidates duly elected to fill those seat:;.
The
Election Commission no doubt in the latter event has
to call upon the constituency to elect a person or
persons to fill the remaining seat or seats; but that is
a separate election. 1'he process of election which has
started with the issue of notification calling upon the
constituency to elect a member or members, comes to
an end. It is only}in those cases where the number of
contesting candidates is more than the number of seats
to be filled that the poll becomes necessary and the
process of election continues. 1'he list of contesting
candidates prepared by the returning officer is affixed
in some conspicuous place in his offic~ and a copy
thereof is supplied to each one of the contesting candidates .or his agent and the list of contesting candidates
is also published by the returning officer in the official
gazette. This procedure really .declares not only to
the contesting candidates but also to the whole ·constituency, who are the contesting candidates at tht:i
election and who will go to the poll.
These contesting
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SUPREME COURT REPORTS
[1959]
r958
candidates within the phraseology which has been used
-
a in s. 38 are candidates who were included in the list of
Kamara~~ Na ar validly nominated candidates and who have not withKunju Thevar drawn their candidatures within the period prescribed
for such withdrawal. These are the contesting candiBhagwati J.
dates within the meaning of that term as used in the
Act aud they are normally expected to go to the
•
poll.
·
If any of such candidates dies and the report of his
death is received before the commencement of the poll,
the returning officer upon being satisfied of the death
of such candidate is bound to countermand the poll
and report the fact to the Election Commission and
also to the appropriate authority. The process of
· election here again comes to an end and proceedings
with reference to the election are to commence .anew
in all respects as if for a new election including the
nominations of candidates for such election.