# ·r ht V ict-Chanrellor, Utkal Clniversity and Others v. S. K. Ghosh and Others

- **Citation:** [1954] 1 S.C.R. 892
- **Court:** Supreme Court of India
- **Decided:** 1952-11-27
- **Case number:** Civil Appeal No. 100 of 1953
- **Bench:** Mehr Chand Mahajan. C.J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-ht-v-ict-chanrellor-utkal-clniversity-and-others-v-s-k-ghosh-and-others-280
- **Pages:** 12

## Headnote

MUKHERJEA,
S. R. DAs,
VIVIAN
BosE and GHULAM
HASAN. JJ.j
Representation
of the People Act (XL/II of 1951), s. 82Election petition-Non-compliance with the provisions
of s. 82Proper party omitted frorn the list of respondents-Defect u1hcther
fatal.
Held, (i) that non-con1pliance with the provisions
of s. 82
of the Representation of the
People Ac_t,
1951
(XLIII of 1951),
and the omission of a proper party from the list of respondents is
not fatal and the tribunal is entitled to deal \Vith
the tnatter in
accordance with the rules of the Code of Civil Procedure which
have been ma<le expressly applicable;
.
(ii) that it is one of
the rules of
construction that a provision similar to the
one in s. 82 is not mandatory unless
noncompliance \Vith it is made penal.
Order XXXIV, r. l, of the Code of Civil Procedure, referred
to.
General
principles
governing the
decision of election petitions discussed.
C1v1L APPELLATE
JuRISDICTJON :
Civil
Appeal No.
100 of 1953.
Appeal by
special leave from the Judgment and
Order, dated the 27th November, 1952, of the High
Court of Judicature, Punjab,
Circuit
Bench at Delhi
in Civil
Writ
No. 65-D of 1952 arising out of the
,
S.C.R.
SUPREME COURT REPORTS
893
Judgment and Order, <lated the 11th November, 1952,
of the Election Tribunal at Delhi in. Election Petition
No. 10 of 1952.
N. C. Chatterjee (A. N. Sinha, with him) for the
appellant.
S. P. Sinha (R .. Patnaik, with
him) for
the
respondent.
1954.
January 20.
The Judgment of the Court
was delivered by
MAHAJAN C. J .-This is an appeal by special leave
against the decision of
the Delhi Election Tribunal,
dated
the 11th November, 1952,
in Election Petition
No. 10 of 1952.
The appellant Jagan Nath was elected a member of
the Delhi State Legislative Assembly from Constituency
No. 25 (Roshanara) of the Delhi State.
The polling in
this constitueQcy
took
place
on
the
14th
January,
1952.
On the 26th April, 1952, which was the last
date under the law for the presentation of an election
petition,
Jaswant
Singh (respondent No. 1) presented
such a petition before the Secretary of the Election
Commission at New Delhi challenging the election, of
the appellant and contesting the order of the Returning Officer rejecting his nomination
paper.
In the
petition he impleaded as respondents, Brahma Sarup,
Ram Prashad Poddar and the appellant, Jagan Nath,
but he omitted
to implead, as required by section 82 ·
of the Representation of the People Act, 1951, Baijnath,
-0ne
of the candidates,
whose nomination
had been
accepted
but
who
had withdrawn
his candidature
.subsequently.
On the 14th July, 1952, the Election Commissioner
appointed an Election Tribunal comprising
respondents 5 to 7.
This appointment was published in the
Gazette of India on the 26th
July, 1952, and the
election petition after due publication
was referred to
the tribunal.
On the 26th
August, 1952, which was
the
first
date of hearing before the tribunal, the
<1 ppellant
raised
a preliminary
objection
that the
omission to implead Baijnath, a duly nominated candidate as a respondent in the petition was fatal to its
1954
Jagan Nath
v.
Jaswant Singh
, and Others.
1954
Jagan Nath
v.
Jaswant Singh
and Others.
.\fahajan C. J.
894
SUPREME COURT REPORTS
[1954]
maintainability.
The petitioner contended that
Baij.
nath was neither a necessary nor
a proper party and
that in any event the non-joinder of a party was not
fatal
to
the petition
in view of the provisions of
Order I, rule 9, Civil Procedure Code. In the alternative, it was claimed that if it was considered that he
was a necessary or a proper party, permission may be
given to the petitioner to implead him.
The tribunal decided the preliminary point in favour
of the petitioner
and
held that the non-joinder of
Baiinath as a respondent was not fatal to the petition.
On the finding, however, that Bai1nath was a proper
party to be impleaded in the case, the tribunal directed
that he be added as a respondent in the petition and
notice of the petition be served on him.

## Text

1954
·r ht V ict-Chanrellor, Utkal
Clniversity
and Others.
v.
S. K. Ghosh
and Others.
Bose].
1954
_7anuary 20.
892
SUPREME COURT REPORTS
[1954]
held in April, 1951, shall be deemed
passed that examination and shall not
appear again in Anatomy."
to have duly
be required to
The appeal is allowed. The High Court's order is set
aside
and the petition for mandamus filed before it is
dismissed, but without
costs.
There will be no order
about costs in this "court either.
Appeal allowed.
Agent for the appellants: Raiinder Narain.
Agent for the respondents Nos. 1-8, 10-16, 18-23
and 25-34: S. P. Varma.
JAGANNATH
v.
JASW ANT SINGH AND OTHERS.
[MEHR
CHAND
MAHAJAN. C.J.,
MUKHERJEA,
S. R. DAs,
VIVIAN
BosE and GHULAM
HASAN. JJ.j
Representation
of the People Act (XL/II of 1951), s. 82Election petition-Non-compliance with the provisions
of s. 82Proper party omitted frorn the list of respondents-Defect u1hcther
fatal.
Held, (i) that non-con1pliance with the provisions
of s. 82
of the Representation of the
People Ac_t,
1951
(XLIII of 1951),
and the omission of a proper party from the list of respondents is
not fatal and the tribunal is entitled to deal \Vith
the tnatter in
accordance with the rules of the Code of Civil Procedure which
have been ma<le expressly applicable;
.
(ii) that it is one of
the rules of
construction that a provision similar to the
one in s. 82 is not mandatory unless
noncompliance \Vith it is made penal.
Order XXXIV, r. l, of the Code of Civil Procedure, referred
to.
General
principles
governing the
decision of election petitions discussed.
C1v1L APPELLATE
JuRISDICTJON :
Civil
Appeal No.
100 of 1953.
Appeal by
special leave from the Judgment and
Order, dated the 27th November, 1952, of the High
Court of Judicature, Punjab,
Circuit
Bench at Delhi
in Civil
Writ
No. 65-D of 1952 arising out of the
,
S.C.R.
SUPREME COURT REPORTS
893
Judgment and Order, <lated the 11th November, 1952,
of the Election Tribunal at Delhi in. Election Petition
No. 10 of 1952.
N. C. Chatterjee (A. N. Sinha, with him) for the
appellant.
S. P. Sinha (R .. Patnaik, with
him) for
the
respondent.
1954.
January 20.
The Judgment of the Court
was delivered by
MAHAJAN C. J .-This is an appeal by special leave
against the decision of
the Delhi Election Tribunal,
dated
the 11th November, 1952,
in Election Petition
No. 10 of 1952.
The appellant Jagan Nath was elected a member of
the Delhi State Legislative Assembly from Constituency
No. 25 (Roshanara) of the Delhi State.
The polling in
this constitueQcy
took
place
on
the
14th
January,
1952.
On the 26th April, 1952, which was the last
date under the law for the presentation of an election
petition,
Jaswant
Singh (respondent No. 1) presented
such a petition before the Secretary of the Election
Commission at New Delhi challenging the election, of
the appellant and contesting the order of the Returning Officer rejecting his nomination
paper.
In the
petition he impleaded as respondents, Brahma Sarup,
Ram Prashad Poddar and the appellant, Jagan Nath,
but he omitted
to implead, as required by section 82 ·
of the Representation of the People Act, 1951, Baijnath,
-0ne
of the candidates,
whose nomination
had been
accepted
but
who
had withdrawn
his candidature
.subsequently.
On the 14th July, 1952, the Election Commissioner
appointed an Election Tribunal comprising
respondents 5 to 7.
This appointment was published in the
Gazette of India on the 26th
July, 1952, and the
election petition after due publication
was referred to
the tribunal.
On the 26th
August, 1952, which was
the
first
date of hearing before the tribunal, the
<1 ppellant
raised
a preliminary
objection
that the
omission to implead Baijnath, a duly nominated candidate as a respondent in the petition was fatal to its
1954
Jagan Nath
v.
Jaswant Singh
, and Others.
1954
Jagan Nath
v.
Jaswant Singh
and Others.
.\fahajan C. J.
894
SUPREME COURT REPORTS
[1954]
maintainability.
The petitioner contended that
Baij.
nath was neither a necessary nor
a proper party and
that in any event the non-joinder of a party was not
fatal
to
the petition
in view of the provisions of
Order I, rule 9, Civil Procedure Code. In the alternative, it was claimed that if it was considered that he
was a necessary or a proper party, permission may be
given to the petitioner to implead him.
The tribunal decided the preliminary point in favour
of the petitioner
and
held that the non-joinder of
Baiinath as a respondent was not fatal to the petition.
On the finding, however, that Bai1nath was a proper
party to be impleaded in the case, the tribunal directed
that he be added as a respondent in the petition and
notice of the petition be served on him. In the view
of the tribu'1al Baijnath was
not a necessary party in
the sense that in his absence no effective decisicn could
be given in the case and that being a proper party,
there was no obstacle to his being joined as a respondent even after the expiry of the period
of
limitation
prescribed for making the petition.
The appellant being dissatisfied with this decision,
made an application
to the Punjab High Court under
articles 226 and 227 of the Constitution
of India for the
issue of a writ of certiorari quashing the order of the tribunal on the ground that it was without jurisdiction and
for an order that the election petition be dismissed as
there was no valid petition before the Election Tribunal
for trial.
This petition was summarily rejected by the
High Court on the 27th
November, 1952. On a petition
presented
to
this
court under article 136 of
the Constitution, special leave was granted
by this
court.
In this appeal it was contended before us that the
Election Tribunal was not a court of general jurisdiction, that it was established by
the Representation of
the People Act, 1951, for the special purpose of trying
election
petitions, that
its jurisdiction was derived
from the statute
upon
certain specified terms and
conditions precedent contained in the statute itself and
that it had no general and inherent powers of an
S.C.R.
SUPREME COURT REPORTS
895
ex1stmg court and that being so, if the terms and
conditions precedent prescribed
by the statute were
not
complied
with, it had
no jurisdiction
to act.
According to the appellant, the scheme of the Act was
that no election could be called in question except by
an election petition presented in accordance with the
provisions of Part VI of the Act (section 80), and it was
suj?gested that unless all the requirements of sections 81,
82, 83 and 117 were complied with, an election could
not
be questioned
and that no subsequent addition or
amendment of the petition after the
expiry of the
14
days
prescribed for presenting a petition was
permissible.
It was
further contended that the provisions of section 82 were explicit and mandatory and
admitted of no exceptions and the petition n.ot being
in accordance with the provisions of the law, there was
no valid petition
which the tribunal could proceed
to try.
Lastly,
it was contended that the provisions
of the Code of Civil Procedure were applicable to the
tiial of petitions
but could not be of assistance in
determining
whether
a petition had been
validly
presented
The general rule is well settled . that the statutory
requirements of election law must be. strictly observed
and 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. It is also well settled
that it is a sound princiole of natural justice that the
success of a candidate who has won
at an election
should not be lightly interfered with
and any petition
seeking such interference must strictly conform to the
requirements of the law.
None of these propositions
however have any application if the special law itself
confers authority on a tribunal to proceed with a petition in accordance with certai11 procedure and when it
does
not state the consequences of
non-compliance
with certain procedural reqmrements laid down by it.
It is always to oe borne in mind that though the election
of a successful candidate. is
not to be lightly interfered
with, one of the essentials of that law is also to safeguard the purity of the election
process and
als<>
6-96 S.C. lndia/59.
1953
Jagan-Nath
y.
Jaswant Sinti
and Otht1s.
.Mahajat1 C,],
1954
Jagan Nath
v.
Jaswanl Singh
and Others.
Mahajan C. J.
896
SUPREME COURT REPORTS
[1954]
to see
that people do not get elected by flagrant
breaches of that law or by corrupt practices.
In
cases where the
election
law
does
not
prescribe
the
consequence or does
not lay down penalty for
non-compliance with certain procedural requirements
of that law, the jurisdiction of the tribunal entrusted
with the trial of the case is not affected.
It is in these circumstances necessary to set out the
different provisions
of the
Act relevant to the matter
canvassed before us.
Part VI of the Act deals with "Disputes regarding
Elections."
Chapter
I
of this Part is the definition
chapter.
Chapter II consists of six sections. Section 80
provides that no election shall be called in question
except
by an election petition presented in accordance
with the provisions of this Part.
Section 81
provides
that an election petition calling in question any election may be presented on one or more of the grounds
specified in sub-sections (1) and (2) of sections 100 and
101
to the Election Commission by any candidate at
such election or any elector in such form and within
such time but not earlier than the date of publication
of the name or names of the returned candidate or
candidates
at such election under section 67, as may be
prescribed;
that an election petition shall be deemed
to have been presented
to the Election Commission-
"(a) when it is delivered
to the
Secretary to the
Commission or to such other officer as may be appointed by the Election Commission in this behalf-
( i) by the person making the petition, or
(ii) by a person authorized in writing in this behalf
by the person making the petition; or
(b) when it is sent by registered post and
1s
delivered to the Secretary to the Commission or the
officer so appointed."
Section 82 provides as follows:-
"A petitioner shall join as respondent to his
petition
all the
candidates
who were
duly nominated
at
the
election
other than
himself
if
he was so
nominated."
S.C.R.
SUPREME COURT REPORTS
897
Section 83 states that an election petition shall contain
a concise statement
of the material facts
on
which the
petitioner
relies and shall be signed by the
petitioner and verified in the manner laid down in the
Code of Civil Procedure for the verification of pleadings.
It further provides that
the petition shall be
accompanied
by
a list
signed
and
verified in like
manner setting forth full
particulars of any
corrupt
or illegal practice which the petitioner alleges, including as full a statement as possible of the names of the
parties alleged
to
have committed
such corrupt or
illegal practice and the date and place of the commission of. each such practice.
Provision is also made in
the section empowering the tribunal to obtain further
particul.ars by allowmg an amendment.
Section 84
concerns the relief which a petitioner may claim, and
section 85 provides that if the provisions of sections
81, 83 or 117 are not complied with, the Election Commission shall dismiss the petition.
Power is however
given to the Commission to condone delay in making
the petition for sufficient cause.
Chapter III of Part VI deals with the trial of election petitions.
It consists of 21 sections.
Section 86
provides
that if the petition
is not dismissed under
section
85, the Election Commission shall appoint an
election tribunal for the trial of the petition.
Provision is then made for constituting
the tribunal and
the place where the trial should take place.
Section
90 prescribes the
procedure to be followed
by
the
tribunal.
Sub-section
(2) of section 90 is in these
terms:-
"Subject to the provisions of this Act and of any
rules made
thereunder, every
election petition shall
be tried
by
the tribunal, as nearly as may be, in
accordance
with
the procedure
applicable
under the
Code of Civil Procedure, 1908, to the trial of suits."
Sub-s.ection ( 4) provides that notwithstanding anything
contained
in
section
85,
the
tribunal
may
dismiss an election petition which does not comply
with the provisions of sections 81, 83 or 117.
It is significant that both the Election Commission
and the tribunal have been given powers in express
1954
Jagan Nath
v.
Jaswant Singh
and Others.
Mahajan C. J.
1954
Jagan Nath
v.
Jaswant Singh
and Others.
Mahajan C. J.
898
SUPREME COURT REPORTS
[1954]
terms to dismiss an election petition which does not
comply
with the requirements of sections
81,
83 or
117, but no such powers are given to dismiss a petition in limine which does not comply with
the
provisions of section 82.
Such a petition
can
only
be dismissed
at
the conclusion· of the trial and on
grounds
sufficient to dismiss it
(section 98).
Specific
provisions have been made to ensure that allegations
of corrupt practice etc. are
not lightly
or frivolously
made by providing that the petition must be properly
verified and the allegations contained therein stated
with a certain amount of definiteness
and
accuracy
and
1t 1s an express prov1S1on of Part VI itself that the
procedure of the tribunal is
to
be governed by the
Code of Civil Procedure and where a petition complies
with sections 81, 83 or 117, the· Commission is bound
to refer the petition to an election tribunal and the
tribunal,
unless it is of the opinion that the petition
is
not
in accordance with sections 81, 83 or 117, is
bound to try it and decide it according to the provisions of law.
Provision has been made in section 90( 1) for any
other candidate st!biect to
the provisions of section
119, to have himself impleaded as a party in the case
within a prescribed period. This provision indicates
that the array of parties as provided by section 82 is
not final and conclusive and that defects can be cured.
Provisions of sections 110, 115 and 116 of Chapter IV
of
this
Part also support this view. Section 110 provides the procedure for the withdrawal of a petition.
It says that any person who might himself have been a
party ·may within 14 days of the publication
of the
notice of withdrawal
in
the official gazette apply to
be substituted as a petitioner
in the place of the party
withdrawing it.
Section 115 provides that such a person
can be substituted as a petitioner ori the death of the
original petitioner
while section 116 provides that if a
sole respondent dies or gives notice that he does not wish
to oppose the petition or any of the respondents dies
or gives such notice and there is no other respondent
who is appearing in the petition, the tribunal shall
$.C.R.
SUPREME COURT REPORTS
899
cause notice of such event
to be published
in
the
official
gazette and thereupon any person who might
have been a petitioner may within 14 days of such
publication apply to be substituted in the place of such
respondent
and
oppose the petition
and shall be
entitled to continue
the proceedings
on such terms as
the tribunal
may think fit.
These provisions suggest
that ii any proper party is omitted
from the lists of
respondents, such a defect is not fatal and the tribunal
is entitled to deal with it under the provisions of the
Code of Civil Procedure, Order I, rules 9, 10 and 13.
Baijnath was a candidate who had withdrawn his
candidature and had not contestea the election.· By
reason of his absence or presence having regard to the
grounds on which the petition was based no prejudice
was likely
to result to the respondent No. 1 because
the main ground on which the petition was based was
that
the petitionar's
nomination
paper had
been
wrongly rejected.
Baijnath did not ciaim that he had
acquired any ·substantive rights
by
reason of the
failure of
the petitioner to implead him within the
period prescribed and there is no question of depriving
him of any such rights.
In our opinion, the tribunal
rightly disallowed the preliminary objection.
Mr. Chatterjee, the learned counsel for the appellant, drew our attention to certain decisions given by
the different election tribunals constituted under the
Representation of the People
Act, 1951, in support of
his contention.
On a careful perusal of the different
decisions given
by the various · election tribunals it
appears
that there is no uniformity of opinion between
them on this point.
Conflicting opinions have been
expressed by these tribunals. It is unnecessary to discuss all these decisions in detail.
It will be sufficient
to say that we are in entire agreement with those
decisions which have
held that non-compliance with
the provisions of section 82 is not fatal to the petition.
The matter has to be determined in · accordance with
the rules of the
Code of Civil Procedure which have
been made expressly applicable.
' · Mr. Chatterjee laid emphasis on the decision of the
Election
Tribunal.
Lucknow,
presided
over · by
1954
Jagan .Nath
v.
Jaswant Singh
and Others.
MahajanC.J.
1954
Jagan .Nath
v.
Jaswant Singh
and Others.
Mahajan C. J.
YOO
SUPREME COURT REPORTS
[19541
Shri N. S. Lokur in Election Petition No. 287 of 1952
published in the Gazette of India dated 20th December, 1951, Part II, Section 3, page 1034.
In that case
two persons who had been duly nominated as candidates
but
who had withdrawn their
candidature
were
not impleaded
as
respondents as required by
section 82 of the Representation of the People Act,
1951.
It was held
that
the non-joinder was fatal
to the petition.
It was said
that the
wording of
the Act is peremptory and mandatory and it makes
it incumbent on the petitioner to join as respondents
all candidates duly nominated and it gives him no
option and the failure
to
do
so involves
rejection
of the
pet1t10n.
Reliance was
placed
on certain
decisions
of Election
Tribunals given under the election rules
in force
under the Government of India
Act, 1935, and the decision of another Election Tribunal, Quilon, ,in Sri Ramchandra Nair. v. Sri Ramchandra
Das reproduced at page
2396e,
Gazette
of India
Extraordinary,
Part I, Section l,
dated the 11th of
November, 1952.
It was said
that unless
all
the
requirements of rules 81, 82 and 83 are complied with
the election cannot be questioned.
As regards the
omission of section 82 from the provisions of sec•. ion 85,
it was observed that the Election Commission
~an at
once discover whether the provisions of sections 81, 83
and 117 are complied with but the same cannot be
said about the requirements of section 82 and that the
Election Commission will have to hold an inquiry as
to who were
the candidates
duly nominated before
determining
whether all of them had been joined or
not, that this burden of inquiry was not thrown on the
Commission but it was left for the determination of
the tribunal, and hence it was that section 82 was not
included in section 85.
Both the reasons
given oy the tribunal cannot, . in
our opinion, be sustained.
The provisions of section 82
are in terms similar to the provisions of Order XX XIV,
rule 1 of the Code of Civil Procedure.
Therein it is
provided that all persons having an interest either in
the
mortgage security or in the right of redemption
shall be joined as parries to any suit relating . to the
S.C.R.
SUPREME COURT REPORTS
901
mortgage.
There is ample authority for the view that
this is merely a directory provision and non-joinder of
any party is not a fatal defect and a decree can be
passed so far as the parties actually on record are
concerned unless the party omitted is a necessary party
in the sense that in his absence no relief could be
given at all even as regards parties actually on record.
There is no valid reason for treating the word "shall"
in section 82 in a manner different from the same word
used in Order XXXIV, rule 1, Civil Procedure Code.
It is one of the rules of construction that a provision
like this is not mandatory unless non-compliance with
it is made penal.
As regards the dictum of the Lucknow Tribunal that no inquiry is required to be made
in the case of non-compliance with the provisions of
sections 81, 83 and 117 but that an inquiry would be
necessary
to determine whether certain parties
were
nominated c"ndidates or not, in our opinion it cannot
stand scrutiny.
Whether a petition has been presented
by a person who has purported to sign it or by someone
else or whether an agent who
has signed the petition is a duly authorized agent or not are as much
matters of inquiry as the question of determination of
the names of nominated candidates.
This fact can be
easily
determined
by
reference
to the
Returning
Officer.
That
this
reasoning
of
the tribunal is not
sound is fully demonstrated by a reference to the next
case cited by the learned counsel
and decided by the
same tribunal presided over by Shri N. S. Lokur.
In
that case the question arose whether the petition was
July verified and whether it was accompanied by all
the necessary lists required by sec~ion 83 (2).
An elaborate inquiry had to be conducted to determine the
point whether the petition was typed on blank paper
signed by the petitioner or whether it was signed by
him or some person authorized on his behalf after it
had been typed.
It is thus clear that it is no valid
explanation to say that section 82 was omitted from
the provisions of section 85 simply· on the ground that
the Election
Commission was absolved . from the duty
of making elaborate inquiries at the stage when it had
. to say whether the provisions of sections 81,
83 and
1954
Jaga,. Natk
•·
Jaswant Singh
and Others.
Mahajan C. J.
· 1954
Jagan Nath
v.
Jaswant Singh
and Others.
'Mahajhn C. J.
902
SUPREME COURT REPORTS
[1954]
117 had been complied with. From the circumstance
that section 82 does not find a place in the provisions
of section 85 the conclusion follows that the directions
contained in section 82 were not considered to be of
such a character
as to involve the dismissal of a petition in limine and that the matter was such as
could
be dealt with by the tribunal under the provisions of
the Code of Civil Procedure specifically
made applicable to the trial of election petitions.
The Bombay . Tribunal,
presided
over
by Shri
B. D. Nandkarni has taken a contrary view in Election
Petition
No. 72 of 1952, page 286, Gazette of India
Extraordinary,
dated
the 5th February,
1953.
The
issue in this case was whether Shri T. C. Patil, was a
necessary
party
and
whether
by
the omission to
implead him the whole petition was bad. The tribunal
· held that the defect was not fatal.
In another case, Petition No. 113 of 1952, decided
on 28th July,
1953, the
majority of
the
Bombay
Tribunal, decided otherwise. The view of the majority
was
that the mandatory nature of the provisions of
section
82 itself contains within it the consequence of
dismissal
for non-compliance with its provisions and a
separate provision for the dismissal of the petition for
non-compliance with its provisions was not necessary
and it would have been superfluous.
These observations run counter to the scheme of the Act itself as
envisaged by section 85.
The provisions of section< 81,
83 and 117 are also mandatory and still in section 85
it is provided in specific terms that the Election Commission shall dismiss the petition if it is not in accordance
with
the provisions
of those
sections.
The
tribunal is given a similar power by section 90( 4).
The
member of the tribunal
who dissented
from
the
majority view gave cogent and sound reasons for
holding that non-joinder of a duly nominated candidate
who has withdrawn was not necessarily fatal to the
petition.
In Election Petition No. 83 of 1952, decided by the
Election Tribunal presided over by Shri B. C. Vakil, the
tribunal took the view that such a defect was fatal.
A Division Bench of the Bombay High Court in Special
S.C.R.
SUPREME COURT REPORTS
903
Civil Appeal No. 2017 of 1952; decided' on the 19th of
December, 1952, allowed even a defective verification
to be amended.
It is not necessary
to
express any
final
opinion on matters specifically covered
by
sections 81, 83 and 117 and dealt with by section 85
of
the Act but at .the same time it is not possible to
accept the view
that
in spite of the provisions of
, section 85 failure to comply strictly
with . the provisions
of section 82 has the same consequences as are
contained in section 85.
In our opinion the determination
of
the question
whether the parties to
the
petition have been properly impleaded is a matter not
for
the
Election
Commission but for the tribunal.
.Various provisions of
the Act referred to above · show
that the election petition qoes not necessarily abate or
fail by reason of the death of the petitioner or any of
the respondents or hy their ceasing to take any interest
in the trial of the petition once that petition has been
referred
to the tribunal.
On
the other hand, any
person who could be a petitioner can
continue the
petition in spite of the death of either the petitioner or
the respondents to the petition and on the original
parties failing to prosecute it.
These provisions have'
been made to ensure that the election process on which
the democratic system of Government is based is not
abused or misused by any candidate and that inquiry
is
not shut
out by collusion between persons made
parties to
the petition or by their respective deaths.
It is therefore clear that the provisions of the
law
relating to th!' impleading of parties are not necessarily
fatal and can be cured.
It ·is for the tribunal to determine the matter as
and when it arises in accordance
with
the provisions of the Code of Civil Procedure.
For the reasons given above we are of the opinion
that the decisions
of the tribunal and of the High
Court in this case were right. We accordingly dismiss
the appeal with costs.
Appeal dismissed.
Agent for the appellant:· N. H. Hingorani.
Agent for respondent No. 1: K. L. Mehta.
1954
Ja_idh Nath
v.
Jaswant Singh
and Others.
Mahajan C. J.