# RA VINDRA NATH v. RAGHBIR SINGH & ANR

- **Citation:** [1968] 1 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 1967-08-04
- **Bench:** K. N. Wanchoo, R. S. Bachawat, V. Ramaswami, B G. K. Mitter, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ra-vindra-nath-v-raghbir-singh-anr-4084
- **Pages:** 7

## Headnote

Representation of the People Act, 1951 ss. 97(1), 117, 118,-Security required to be deposited on giving notice of recri!lllination under
proviso to s. 97 (1 ),
tq lead evidence-Whether treasury receipt evidencing full deposit to be produced at time of giving notice-Effect
of non-compliance.
0
By an election petition filed on May 10, 1966, the appellant challenged the election of the first respondent held on March 28. 1966 to
the Rajya Sabha by members of the Punjab Vidhan Sabha and
sought a declaration that he be declared duly elected as a member
of the Rajya Sabha instead. On July 1, 1966 the date fixed for the
respondents to appear before the Tribunal and answer the claims
made in the petition, the respondent filed a written statement in
reply to the election petition and gave a notl<:e under the proviso to D
s. 97(1) of the Representation of the People Act, 1951, of hlis intention
Ito give evidence to prove that the election of the appellant' would
have been void if he had been the resurned candidate and if a petition
challenging his electtion had been presented. The- notice under s. 97(1)
was accompanied by the prescribed statement and particulars and a
treasury reoeipt evidencing the deposit Qf Rs. 1,000 .as security under
s. 117 of the Act. An objecti<111 was taken on behalf of the appellant
that the amount of security deposited by the respondent was insuffi- I
cient in that he should have deposited Rs. 2.000 and consequently the
notice under. the proviso to s. 97(1) w•as invalid. On October 7, 1966,
the date fixed for argument on the preliminary issues, the respondent
deposited a further sum of Rs. 1,000 as securi11y and produced the
relevant treasury receipt before the Tr-ibunal, but the Tribunat up..
held the appellant's objection on the view that as the production of
a receipt showing the deposit of Rs. 2,000 as security along _with the' F
notice was the condition precedent to the right of the ·respondent
under s. 97(1) to lead evidence iln view of his fallllre to comply with
this requirement, this right was lost to him and the subsequent depo.
Sit of Rs. 1,000 by him did not entitle him to lead in evidence under
s. 97(1). The respondent thereupon filed a petition in the High Court
under Art. 227 of the Constitution chaltenging the decision of the
Tribunal and the High Court allowed the petition holding that it is
only in cases lin which the provis!bns of ss. 117 and 118 with regard G
to deposit of security were not complied with before the date fixed
for recording evidence under s. 97(1) that the Tribunal could refuse
to admit the evidence, and where, as in the present case, the entire
amount of the security had been deposited before such date, the Tri•
bunal must admit the evidence.
On appeal to th1is Court.
HELD: Allowing the appeal: the Tuibunal had rightly held that B
the respondent was required to produce with the notice under tile
proviso to s. 97(1) a Government Treasury Receipt showing a deposit
of Rs. 2,000 as security for costs of the recrimination and the High
Court was in error in quashing this order. ruo F-Gj.
RAVINDllA NA.TR ti, RA.GRBIR SINGR (Bachawai, J.)
IOii
A
The nodice of recrimination under s. 97 is in substance a counter petition calling in question the claim that the other candidate
has been duly elected. Looking at the object and scheme of s. 97 it
is manifest that the provisions of ss. 117 and 118 be applied mutatis
muta11dis to a proceeding under s. 97. The 1.1ecriminator must_produce
a Government Treasury Receipt showing that a deposit of Rs. 2,000
has been made by him dn favour of the Election Commissioner as
cost of the recrimination. As the notice of rect'iminat:On .cannot be
B sent by post, it must be filed before the Tribunal, and reading s.117
with consequential adaptau:cms for the· purposes of the proviso to
s. 97(1), it will appear that the 'l'reasury Receipt showing the deposit
of the security must be produced before the Tribunal along_ with the
notice of recrimination. If the r

## Text

104
RA VINDRA NATH
v.
RAGHBIR SINGH & ANR.
August 4, 1967
(K. N. WANCHOO, C. J., R. S. BACHAWAT, V. RAMASWAMI,
B
G. K. MITTER AND K. S. HEGDE, JJ.J
Representation of the People Act, 1951 ss. 97(1), 117, 118,-Security required to be deposited on giving notice of recri!lllination under
proviso to s. 97 (1 ),
tq lead evidence-Whether treasury receipt evidencing full deposit to be produced at time of giving notice-Effect
of non-compliance.
0
By an election petition filed on May 10, 1966, the appellant challenged the election of the first respondent held on March 28. 1966 to
the Rajya Sabha by members of the Punjab Vidhan Sabha and
sought a declaration that he be declared duly elected as a member
of the Rajya Sabha instead. On July 1, 1966 the date fixed for the
respondents to appear before the Tribunal and answer the claims
made in the petition, the respondent filed a written statement in
reply to the election petition and gave a notl<:e under the proviso to D
s. 97(1) of the Representation of the People Act, 1951, of hlis intention
Ito give evidence to prove that the election of the appellant' would
have been void if he had been the resurned candidate and if a petition
challenging his electtion had been presented. The- notice under s. 97(1)
was accompanied by the prescribed statement and particulars and a
treasury reoeipt evidencing the deposit Qf Rs. 1,000 .as security under
s. 117 of the Act. An objecti<111 was taken on behalf of the appellant
that the amount of security deposited by the respondent was insuffi- I
cient in that he should have deposited Rs. 2.000 and consequently the
notice under. the proviso to s. 97(1) w•as invalid. On October 7, 1966,
the date fixed for argument on the preliminary issues, the respondent
deposited a further sum of Rs. 1,000 as securi11y and produced the
relevant treasury receipt before the Tr-ibunal, but the Tribunat up..
held the appellant's objection on the view that as the production of
a receipt showing the deposit of Rs. 2,000 as security along _with the' F
notice was the condition precedent to the right of the ·respondent
under s. 97(1) to lead evidence iln view of his fallllre to comply with
this requirement, this right was lost to him and the subsequent depo.
Sit of Rs. 1,000 by him did not entitle him to lead in evidence under
s. 97(1). The respondent thereupon filed a petition in the High Court
under Art. 227 of the Constitution chaltenging the decision of the
Tribunal and the High Court allowed the petition holding that it is
only in cases lin which the provis!bns of ss. 117 and 118 with regard G
to deposit of security were not complied with before the date fixed
for recording evidence under s. 97(1) that the Tribunal could refuse
to admit the evidence, and where, as in the present case, the entire
amount of the security had been deposited before such date, the Tri•
bunal must admit the evidence.
On appeal to th1is Court.
HELD: Allowing the appeal: the Tuibunal had rightly held that B
the respondent was required to produce with the notice under tile
proviso to s. 97(1) a Government Treasury Receipt showing a deposit
of Rs. 2,000 as security for costs of the recrimination and the High
Court was in error in quashing this order. ruo F-Gj.
RAVINDllA NA.TR ti, RA.GRBIR SINGR (Bachawai, J.)
IOii
A
The nodice of recrimination under s. 97 is in substance a counter petition calling in question the claim that the other candidate
has been duly elected. Looking at the object and scheme of s. 97 it
is manifest that the provisions of ss. 117 and 118 be applied mutatis
muta11dis to a proceeding under s. 97. The 1.1ecriminator must_produce
a Government Treasury Receipt showing that a deposit of Rs. 2,000
has been made by him dn favour of the Election Commissioner as
cost of the recrimination. As the notice of rect'iminat:On .cannot be
B sent by post, it must be filed before the Tribunal, and reading s.117
with consequential adaptau:cms for the· purposes of the proviso to
s. 97(1), it will appear that the 'l'reasury Receipt showing the deposit
of the security must be produced before the Tribunal along_ with the
notice of recrimination. If the recriminator fails to give the requisite security under s. 117 at the time of giving the n.otice Qf recrimination, he, loses the right to lead evidence under s.97 and the notice
of recrimination stands virtually .rejected. [108E-H: 109A-Bl.
C
N. R. Shiksh.ak v. R. P. Dikshit, 1965 f A.L.Jl 25, 41-42. disapproved. Kumaranand v. Brii Mohan, fl9651 1 S.C.R. 116, distinguished.
There was no force in the contention that the proviso to s. 97(1)
having enacted that the forfeiture of the right to lead evidence would
be penalty for failure to give the further security under s. 118, the
legislature could not have intended that the rejection of the notice
of recrimination would be an additional penalty for this default. An
D order recording that the recriminator has no right to give evidence
under s. 97 is tantamount to an order rejecting the notice of recrimination and there is no substantial d>ilference between the two.
fl!OD-F].
OVIL APPELLATE JURISDICTION: Civil Appeal No. 520 of
1967.
E
Appeal from the judgment and order dated December 19,
1966 of the Punjab and Haryana High Court in Civil Revision
No. 934 of 1966.
Rajinder Sachhar, Mahinderjit Singh Sethi and Ravinder
Narain, for the appellant.
r
R. M. Hazarnavis. Rameshwar Nath and Mahinder Narain,
for respondent No. I.
The Judgment of the Court was delivered by
Badiawat, J .-On March 28, 1966 the election of four members to the Council of States (Rajya Sabha) by the members of
the Punjab Legislative Assembly (Vidhan Sabha) was held, and
G as a result of the election, respondent No. I, Raghbir Singh and
one Narinder Singh were declared elected. Appellant Ravindra
Nath was one of the unsuccessful candidates. On May 10, 1966;
the appellant filed an election petition asking for_ a declaration
that the election of respondent No. 1 and Narinder Singh was
void and for a further declaration that he be declared duly elected as a member of the Ra jya Sabha to one of those seats. On
B July I, 1966. the date fixed for the respondents to the petition
to appear before the Tribunal and answer the claims made in the
petition, respondent'No. I filed a written statement in reply to the
election petition and gave a wi;ltten notice under the proviso to
108
IVQiMlS COURT REPORTS
(1968) 1 s.c.a.
s.97(1) of die Rep.c:~eniation of the People Act, 1951 of his in- A
tention to give evidence to prove that the election of the appellant
would have been void if he had been the returned candidate and
if a petition had been presented calling in question his election.
The notice under s.970) was accompanied by the prescribed statement and particulars and a treasury receipt evidencing the deposit of Rs. 1,000 as security under s.117 of the Act. An objection B
was taken on behalf of the appellant that the amount of security
deposited by respondent No. I was insufficient and consequently
the notice under the proviso to s.97(1) was invalid. On this objection, the Tribunal raised the following preliminary issue being
issue No. I 0:
"Whether the nO'lice under section 97 of the Representation of the People Act, 1951, given and the recrimination
statement filed on behalf of respondent No. I are invalid because C
of the insufficiency, if any, of the security deposit made by respondent No. 1 within the time allowed, if any?"
It is now common case that under the law as it stood at the
relevant time respondent No. I was required to deposit a sum of
Rs. 2,000 as security under s.117 of the Representation of D
the People Act, 1951. On October 7, 1966, the date fixed for
argument on the preliminary issues, respondent No. 1 deposited a
further sum of Rs. 1,000 as security and produced the relevant
treasury receipt before the Tribunal. By its order dated October
11, I 966 the Tribunal held that as the production of a receipt
showing the deposit of Rs. 2,000 as security along with the notice . E
was the condition precedent to the right of respondent No. I
under s.97(1) to lead evidence. this right was lost by his omission
to file with the notice the treasury receipt showing a deposit of
Rs. 2.000 and the subsequent deposit of Rs. 1,000 'by him did not
entitle him to lead any evidence under s.97(1). The Tribunal
answered the preliminary issue accordingly. On or about October
24, 1966, respondent No. I filed in the High Court for the States I'
of Punjab and Haryana at Chandigarh a petition under Art. 227
of the Constitution asking for an order quashing the order of the
Election Tribunal dated October 11, 1966 and a direction that
respondent No. l be allowed to lead evidence under s.97(1). Several
preliminary objections to the maintainability of the petition under
Art. 227 of the Constitution were raised before the High Court, G
but they were subsequently abandoned and counsel for the appellant agreed that the High Ccurt should deal with the order of the
Tribunal on the merits. By its order dated December 19, 1965
the High Court held that it is only in cases in which the provisioru.
of ss.ll7 and 118 with regard to security of deposit were not
complied with before the date fixed for recording evidence under
s.97(1) that the Tribunal could refuse to admit the evidence, and R
where, as in the present case, the entire amount of the security had
been deposited before the date fixed for re<!ording evidence, tht
Tribunal must admit the evidence. On this finding, the High Cour
llAVINDRA NATH v. llAGRBlll S!NGB (Bacllawat, J.)
107
A allowed the petition under Art. 227 and quashed the order of .the
Stction Tribunal dated October II, 1966 in so far as it related
tO issue No. 10. From this order of the High Court, the present
appeal has been filed by certificate.
The question in this appeal is what time limit, if any, is prescribed for furnishing the security referred to in the proviso to
B s.97()) read with ss.117 and 118 of the Representation of the
People Act, 1951 as it stood before its amendment by. the R~
presentation of the People (Amendment) Act, 1966. Section 97 1s
in these terms :
"97()). When in an election petition a declaration
that any candidate other than the returned candidate
· C
has been duly elected is claimed, the returned candidate
or any other party may give evidence to prove that the
election of such candidate would have been void if he had
been the returned candidate·. and a petition had been presented calling in question his election.
I•
Provided that the returned candidate or such other
D
party as aforesaid· shall not be entitled to give such evidence unless he has, .within fourteen days from the date
of commencement of the trial. given notice to the
Tribunal of his intention to do so and has also given the
security and the further security referred to in sections
117 and 118 resiiectively.
E
·(2) Every notice refeqed to in sub-section I shall be
accompanied by the statement and particulars required
by section 83 in the case of an election, petition and shall
be signed and verified in like manner."
The Explanation ·to sub-s. {4) of s. 90 provided that for purposes of
that sub-section and of s.97 the trial of a petition would be "deemed
F to commence on the date fixed for the respondents to appear bef?CC the ~ribunal to answer the claim or claims made in the petition. Scchons 117 and 118 read :
G
•
"117. The petitioner shall enclose with the petition
a Government Treasury receipt showing that a deposit of
two thousand rupees has been made by him either in a
Government Treasμry or in the Reserve Bank of India
in favour of the Election Commission as security for the
costs of the petition.
118. During the . course of the trial of an election
petition the Tribunal may at any time call upon the petitioner to give such further security for costs as it may
direct, and may; if be fails to do so, dismiss the petition."
It is to be noticed that the words "within fourteen days from
the date of commencement of the trial" in the proviso to s.97{1)
govern the giving of the notice and not the giving of the security.
108
SUPBUJ: COURT REPORTS
(1968) I 8.C.1'.
Moreover, the period of fourteen days from the date of commence- A
ment of the trial cannot be the time limit for giving the further
security under s.118. The amount of the further security under
s.118 and the time for giving it must be fixed by the Tribunal
before it can be given by the recriminator. He inay be asked to
furnish the further security at any time during the course of the
trial if the original security is found to be insufficient. We have B
to examine the provisions of ss.117 and 118 more closely to see
if there is any time limit for the giving of security under the proviso to s.97()).
The object of s.97 is to enable recrimination when a seat is
claimed for the petitioner filing the election petition or any other
candidate. In his election petition the petitioner may claim a c
declaration that the election of all or any of the returned candidates is void on one or more of the grounds specified in sub-s. (I)
of s.100 and may additionally claim a further declaration that he
himself or any other candidate has been duly elected on the
grounds specified ins. IOI. (see ss.81, 84, 98, 100 and 101). It is only
when the election petition claims a declaration that any candi- D
date other than the returned candidate has been duly elected that
s.97 comes into play. If the respondent desires to contest this claim
by leading evidence to prove that the election of the other candidate would have been void if he had been the returned candidate
and an election petition had been presented calling in question hjs
election, the respondent must give a formal notice of recrimination
and satisfy the other conditions specified in the proviso to s.97. I
The notice of recrimination is thus in substance a counter petition
calling in question the claim that the other candidate has been
duly elected. In this background, it is not surprising that the
legislature provided that notice of recrimination must ht
accompanied by the statement and particulars required by s.83
in th,e case of an election petition and signed and verified in like r
manner and the recriminator must give the security and the further
security for costs required· under ss.117 and ll8 in the case of an
election petition.
Loo1cing at the object and scheme of s.97 it is manifest that
the provisions of ss.117 and 118 must be applied mutatis mutandis
to a proceeding under s.97. The recriminator must produce a a
government treasury receipt showing that a deposit of Rs. 2,000
has been made by him either in a Government Treasury or in the
Reserve Bank of India in favour of the Election Commissioner as
costs of the recrimination. As the notice of recrimination cannot
be sent by post, it must be filed. before the Tribunal, and reading
s.117 with consequential adaptations for the purposes of the
proviso to s.97(1), it will appear that the treasury receipt showing B
the deposit of the security must be produced be(ore the Tribunal
along with the notice of recrimination. It folfows that the recriminator must give the security referred to in s. 117 by producing the
RAViliDRA NA'i'li v. llAGHBiII SINGH (Bachawal, j,)
100
A treasury receipt showing the deposit of tl_le security at the time
of the giving of the notice under the proviso to s.97(1).
If the recriminator fails to give the requisite security under
s.117 at the time of giving the notice of recrimination, he loses
the right to lead evidence under s.97 and the notice of recrimination stands virtually rejected. It was suggested that as under s.90(3)
B the Tribunal could not dismiss an election petition for noncompliance with the provisions of s.117, the legislature could not
have intended that the notice of recrimination would stand rejected for failure to give the security under s.117. This argument
;,verlooks the fact that under s.85 it is the duty of the Election
Commission to dismiss the election petition for non-compliance
C with the provisions of s.117.
Likewise, reading s.118 with the proviso to s.97(1) it will
appear that during the course of the .trial of the recrimination the
Tribunal may at any time call upon the recriminator to give such
further security for cosis as it may direct and may, if he fails to
do so. reject the notice of recrimination given under the proviso
to s.97(1). It was suggested that the proviso to s.97(1) having enD acted that the forfeiture of the right to lead evidence would be
the penalty for failure to give the further security under s.118, the
legislature could not have intended that the rejection of the notice
of recrimination would be an additional penalty for this default.
This suggestion is based on fallacious assumptions. The only
right conferred on the recriminator satisfying the conditions of the
E proviso to s.97(1) is the right to lead evidence that the election of
the other candidate would have been void if he had been the returned candidate. If the recriminator fails to fulfil the conditions
of the proviso, he loses this right, and the Tribunal is entitled to
record an order to this effect. An order recording that the recriminator has no right to give evidence under s.97 is tantamount to an
F order rejecting the notice of recrimination. There is thus no substantial differeqce between the penalty prescribed by the proviso
to s.97(1) and the penalty prescribed by s.118 for the default in
giving the further security.
The High Court held that the recriminator loses his right to
lead evidence under s.97 for failure to give security only in cases
G in which the provisions of ss.117 and 118 are not complied with
before the date fixed for recording evidence. In N. R. Slrikshak
v. R. P. Dikslrit('), a Full Bench of the Allahabad High Court also
held that since no period is fixed within which the security is to, be
given, the security μiay be given at any time before the recriminator gives evidence. We are unable to agree with this decision on
H this point or with the judgment under appeal. We have already·
seen that the time for giving the initial security for the recrimination is fixed on a combined reading of the proviso to s.97(1) and
(') (IU65] A.L.J. 25, 41-42.
110
SUPRBllE COURT REl'ORTS
{1968) 1 s.c.L
s.117 and the initial security must be given at the time of giving A
the notice of recrimination. Other considerations also show that
the date fixed for recording the evidence cannot be the date within
which the security referred to in ss. 117 and ll8 is to be given
under the proviso to s.97(1). The recrimination starts on the giving
of the notice under the proviso. Though the taking of the recriminatory evidence may be postponed, preliminary directions for dis- B
covery, inspection and other matters are given long before the
evidence is taken. It is, therefore, desirable that the initial security
referred to in s.117 should be given along .wi.th the notice of recrimination at the very commencement of the' recrimination proceeding.
Moreover, the date fixed for recording the evidence cannot be
the time limit for giving further security under s.118. The Tribunal
may demand the further security under s.J 18 at any time in course C
of the trial of the recrimination even after the evidence has been
partly taken;
The High Court thought lhat the decision in Kumaranand v.
Brij Mohan(') lends support to its conclusion that the Tribunal
could. not refu.se to admit the evidence under s.97 if the security D
under s.117 is given before the date fixed for recording the evl·
dence. That decison turned on the construction of s.119-A and
is not relevant on the questions under consideration in this appeal.
As s.119-A did not expressly provide the penalty for failure to
furnish the security for costs of an appeal at the time of filing the
memorandum of appeal, the failure to furnish the security did not
automatically result in dismissal of the appeal, and it was for the E
High Court to decide having regard to the circumstances of each
case whether it should decline to proceed with the hearing of the
appeal. But the proviso to s.97(1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he
gives the security referred to in s.117.
The Tribunal rightly held that the respondent No. 1 was required to produce with the notice under the proviso to s.97(1) a
government treasury receipt showing a deposit of Rs. 2,000 as
security for costs of the recrimination. The High Court was in
error in .quashing this order.
r
In the result, the appeal is allowed with costs, the judgment G
and order of the High Court are set aside, and the petition under
Art. 227 of the Constitution is dismissed.
Appen1 allowed
R.K.P.S.
fffi965J 1 s.c.n. Tia.-·-