# SHRI CHANDRIKA PRASAD TRIPATHI v. SHRI SIV PRASAD CHANPURIA & OTHERS

- **Citation:** [1959] Supp. 2 S.C.R. 527
- **Court:** Supreme Court of India
- **Decided:** 1958-03-08
- **Case number:** Civil Appeal No. 343 of 1958
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. W Anchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-chandrika-prasad-tripathi-v-shri-siv-prasad-chanpuria-others-1697
- **Pages:** 9

## Headnote

Election Petition-Security deposit-Dismissal bf petition by
Election Tribunal for defect in deposit-Appeal to Hir,h Court, if
competent-Representation of the People Act, I95I (43 of I95I),
ss. 90(3), 98, II6-A and IIJ.
Respondent I filed an election petition challenging the
election of the appellant. The security required to be deposited
under s. n7 of the Representation of the People Act, 1951, was
made in the following terms :
"Security deposits for Election Petition of Bargi Assembly
Constituency No. 97, Distt. Jabalpur, Madhya Pradesh. Refundable by order of the Election Commission of India, New Delhi."
Before the Election Tribunal the appellant made an application alleging that there was non-compliance with the provisions
s. n7 inasmuch as (i) the deposit was not in favour of the Secretary to the Election Commission, and (ii) the amount was only
refundable to the depositor and would not be payable to appellant
in case the petition was dismissed under s. 90(3).
The Tribunal
upheld the objections and dismissed the petition under s. 90(3).
R~spondent l preferred an appeal under s. n6-A of the Act to
the High Court. The High Court allowed the appeal, set aside
the order of the Tribunal and sent back the petition for trial.
The appellant contended that no appeal lay to the High Court
and that there was non-compliance with the provisions of
s. n7.
Held, that, an appeal lay to the High Court under s. n6-A
of the Act against the dismissal of the election petition under
s. 90(3) by the Tribunal. The order passed by the TribuBal
under s. 90(3) was an order passed at the, conclusion of the trial
of the petition and was in substance and in law one under s. 98.
Once an election petition was entrusted to the Tribunal the trial
started and any order passed by the Tribunal which concluded
the trial was an order at the conclusiop of the trial.
Harish Chandra Bajpai .v. Tirloki Singh, [r957] S.C.R. 370,
referred to.
Gulsher Ahmad v. Election Tribunal, A.LR. r958 Madh.
Pra. 224, approved.
·
Held, further that, there had been substantial compliance
with the provisions of s. n7 of the Act. Section n7 was not tp
be strictly or technically construed and a substantial compliance
with its requirements was sufficient. The security in this case
r959
April 9.
528
SUPREME COURT REPORTS [1959] Supp.
x959
had been made in respect of the election petition in question and
it had been credited towards the accounts of the Election ComShri Chandrika mission. The use of the words "refundab]e" would not prevent
I)rasad Tripatlii the Election Commission from making an order of payment' of the
v.
amount to the successful party.
Shri Siv Prnsad
Kamraj Nadar v. Kitnju Thevar, A.LR. [1958] S.C. 687,
Chanpuria
applied.
& Othus

## Text

(2) S.C.R.
SUPREME COURT REPORTS
527
SHRI CHANDRIKA PRASAD TRIPATHI
v.
SHRI SIV PRASAD CHANPURIA & OTHERS.
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. W ANCHOO, J J.)
Election Petition-Security deposit-Dismissal bf petition by
Election Tribunal for defect in deposit-Appeal to Hir,h Court, if
competent-Representation of the People Act, I95I (43 of I95I),
ss. 90(3), 98, II6-A and IIJ.
Respondent I filed an election petition challenging the
election of the appellant. The security required to be deposited
under s. n7 of the Representation of the People Act, 1951, was
made in the following terms :
"Security deposits for Election Petition of Bargi Assembly
Constituency No. 97, Distt. Jabalpur, Madhya Pradesh. Refundable by order of the Election Commission of India, New Delhi."
Before the Election Tribunal the appellant made an application alleging that there was non-compliance with the provisions
s. n7 inasmuch as (i) the deposit was not in favour of the Secretary to the Election Commission, and (ii) the amount was only
refundable to the depositor and would not be payable to appellant
in case the petition was dismissed under s. 90(3).
The Tribunal
upheld the objections and dismissed the petition under s. 90(3).
R~spondent l preferred an appeal under s. n6-A of the Act to
the High Court. The High Court allowed the appeal, set aside
the order of the Tribunal and sent back the petition for trial.
The appellant contended that no appeal lay to the High Court
and that there was non-compliance with the provisions of
s. n7.
Held, that, an appeal lay to the High Court under s. n6-A
of the Act against the dismissal of the election petition under
s. 90(3) by the Tribunal. The order passed by the TribuBal
under s. 90(3) was an order passed at the, conclusion of the trial
of the petition and was in substance and in law one under s. 98.
Once an election petition was entrusted to the Tribunal the trial
started and any order passed by the Tribunal which concluded
the trial was an order at the conclusiop of the trial.
Harish Chandra Bajpai .v. Tirloki Singh, [r957] S.C.R. 370,
referred to.
Gulsher Ahmad v. Election Tribunal, A.LR. r958 Madh.
Pra. 224, approved.
·
Held, further that, there had been substantial compliance
with the provisions of s. n7 of the Act. Section n7 was not tp
be strictly or technically construed and a substantial compliance
with its requirements was sufficient. The security in this case
r959
April 9.
528
SUPREME COURT REPORTS [1959] Supp.
x959
had been made in respect of the election petition in question and
it had been credited towards the accounts of the Election ComShri Chandrika mission. The use of the words "refundab]e" would not prevent
I)rasad Tripatlii the Election Commission from making an order of payment' of the
v.
amount to the successful party.
Shri Siv Prnsad
Kamraj Nadar v. Kitnju Thevar, A.LR. [1958] S.C. 687,
Chanpuria
applied.
& Othus
CIVIL
APPELLATE JURISDICTION:
Civil Appeal
No. 343 of 1958.
Appeal by special leave from the judgment and
order dated March 8, 1958, of the Madhya Pradesh
High Court in First Appeal No. 141 of 1957, arising
out of the judgment and order dated December 5,
1957, of the Election Tribunal, Jabalpur, in Election
Petition Case No. 1 of 1957.
G. O .. Mathur, for the appellant.
P. Rama Reddy and R. Mahali'f!gier, for respondent
No. 1.
1959. April 9.
The Judgment of the Court was
delivered by
Gajendr.agadkar ].
GAJENDRAGADKAR, J.-This appeal by special leave
arises out of an election petition filed by respondent 1
(No. 320 of 1957) before the Election Commission, Ne:w
Delhi, in which he pra.yed that the appellant's election
to the Madhya Pradesh Legislative Assembly from
Bargi constituency should_be declared to be void and
that it should be further declared that he had himself
been duly elected from the said constituency. The
polling for the election in question was taken on
March 9, 1957, and the result was declared on March
12, 1957. Of the three candidates who had stood for
election, the appellant secured 9308 votes, respondent
1, 8019 votes and the third ca.ndidate, respondent 2,
3210 votes.
The petition filed by respondent 1 was entrusted to
the Election Tribunal, J abalpur, for trial. On October
12, 1957, the appellant filed before the Election Tribunal, an objection under s. 90, sub-s. (3) of the Representation of the people Act, 1951 (hereinafter called
tbe Act), alleging that ~espondent 1 had not complied
with the provisions of s. 117 of the Act in regard to
• (2) S.C.R. SUPREME COURT REPORTS
529
the making of the deposit of the security for costs and
'959
praying that his election petition should be dismissed Shri Clzandrika
on that account under s. 90, sub-s. (3) of the Act. Prasad Tripathi
Respondent 1 disputed these allegations and urged .
v.
tbat there was no justification for dismissing his petiShri Siv Prasad
tion under s. 90, sub-s. (3) of the Act.
Chanpt1ria
By its order passed on December 5, 1957, the Elec-
& Others
tion Tribunal held that the provisions of s. 117 were Gajendragadkar J.
mandatory and that they had not been complied with
by respondent 1. In the result the application filed
by the appellant was allQwed, his objection was upheld
and the election petition presented by respondent 1
was dismissed under s. 90, sub-s. (3) of the Act.
-
On December 27, 1957, respondent 1 preferred an
appeal in the High Court of Madhya Pradesh at
Jabalpur against the said order (Appeal No. 141 of
1957). In the High Court a preliminary objection
was urged on behalf of the appellant that the appeal
preferred by respondent 1 was incompetent under
s. 116A of the Act. This objection was overruled and
the merits of the appeal were considered by the High
Court. On the merits the High Court held that respondent 1 had substaatially complied with s. 117 and
so the order passed by the Election Tribunal dismissing the election petition filed by respondent 1 was set
aside and the said petition was sent back to the Election Tribunal for disposal in accordance with law.
On February 22, 1958, the appellant applied to the
High Court for a certificate of fitness but his application was dismissed. Thereupon the appellant applied
for, and obtained, special leave to appeal from this
Court on April 14, 1958. That is how this appeal has
come to this Court.
The first point which calls for our decision in this
appeal is whether the High Court was rig~t in holding that the appeal preferred before it by respondent 1
was competent. The appellant's contention is that
the impugned order was passed under s. 90, sub-s. (3)
and no appeal is provided against such an order under
s. 116A. Section 116A provides that an appeal shall
lie from every order made by the tribunal under s. 98
67
530
SUPREME COURT REPORTS
[1959] Supp. ·
'959
or s. 99 to the High Court of the State in which the
tribunal is constituted. We are not concerned in
Shri Chandrika
Prasad Tripathi the present appeal with s. 99.
The case for respondv..
ent 1 is that in substance and in law the impugned
Shd Siv hasad order must be deemed to have been passed under s. 98.
Chanpuria
That is the view which the High Court has taken and
"' Others
we are satisfied that the High Court is right.
Gajendragadkar J.
It is true that in terms and in f?rJ:? the order was
passed under s. 90, sub-s. (3); and it 1s a.lso true that
the right to prefer on appeal is a creature of. the
statute and no appeal can be held to be competent
unless it is shown that such a right flows from the
relevant statutory provision itself. In order to decide
whether or not an order passed under s. 90, sub-s. (3)
can be regarded in law and in substance as an order
passed under s. 98, it would be relevant to consider
the scope and effect of the provisions of the said two
sections. Section 98(a) provides that at the conclusion
of the trial of an election petition the tribunal shall
make an order dismissing the election petition. There
is no doubt that in the present case the Election Tribunal has dismissed the election petition filed by
respondent 1.
But the appella.nt's contention is that
this d_ismissal cannot be said to be under s: 98(a)
because the order dismissing the petition has not
been passed at the conclusion of the trial of the
election petition. This argument is not well-founded.
Section 90, sub-s. (3) under which the impugned
order purports to have been passed occurs in ch. III
of Pt. VI which deals with the trial of election
petitions. In other words, s. 90, sub:s. (3) confers
power on the tribunal to dismiss the election petition
after the trial of the election petition has commenced.
The scheme of ch. III clearly indicates that once an
election petition is referred to an Election Tribunal
for trial under s. 86 the tribunal is possessed of the
petition and all proceedings before it are proceedings
in the trial of the said petition. Section 85 shows that
for failure to comply with the provisions of ss. 81, 82
and 117, the Election Commission is empowered to
dismiss the election petition. If the Election Commission exercises its jurisdiction and passes an order
(2) S.C.R.
SUPREME COURT REPORTS
531
dismissing any election petition, it may be said that the
z959
election petition never reached the stage of trial ; but Shri Chandrika
once the petition has passed the scrutiny of the ElecPrasad Tripatlii
tion Commission under s. 85 and it has been referred
v.
to the Election Tribunal for trial, any further action Shri Siv Prasad
taken by the parties or any order passed by the tribuChanpuria
nal under the said petition would constitute a part of
& Others
the trial of the said petition. This question has been Gajendragadkar J.
incidentally considered by this Court in Barish Chandra Bajpai v. Triloki Singh (1) while it was dealing
with s. 90, sub-s. (2) of the Act; and it has been
held that "the provisions of ch. III read as a whole
clearly show that ' the trial ' is used as meaning
the entire proceedings before the tribunal from the
time the petition is transferred to it under s. 86 until
the pronouncement of the award". _Therefore, there
can be no doubt that the order passed under s. 90,
sub-s. (3) is an order passed at the conclusion of the
trial. It i~ true that it is an order on a preliminary
point of law raised by the appellant; but even so the
decision of the preliminary issue is undoubtedly a part
of the trial of the petition and it cannot be said that
the order passed on such a preliminary point is not
an order passed at the conclusion of the trial when it,
in fact, concludes the trial.
Section 90, sub-s. (3) provides that the tribunal shall
dismiss an election p~tition which does not comply
with the provisions of ss. 81, 82 or 117 notwithstanding that it has not been dismissed by the Election
Commission under s. 85. It would thus be clear that
an objection raised against the competence of the
election petition on the ground that the provisions of
the aforesaid sections have not been complied with
can be considered by the Election Commission suo
motu under s. 85 ; and if it is upheld the election petition can be dismissed without any further enquiry;
but if the Election Commission does not dismiss the
petition under s. 85, then the same objection can be
raised before the Election Tribunal by the respondent
to the election petition; and when it is so raised it
assumes the character of a preliminary objection and
{r) [1957] S.C.R. 370, 387.
532
SUPREME COURT REPORTS [1959] Supp.
'959
is dealt with by the Election Tribunal as any prelimi51 . Cl
d .k
nary objection would be dealt with by a civil court
p,;;ad ·~;;;:1~; under the Code of Civil Procedure. That being so, a
v.
preliminary objection has been tried and the decision
Shri Siv Prasad on the preliminary objection being in favour of the
Ckanpuria
respondent the election petition is dismissed. Though
.s. Others
the order of dismissal in form may be under s. 90, subGajendragadkar 1. s. (3), it is in substance and in law an order of dismissal passed at the conclusion of the trial and must
be deemed to be an order under s. 98(a). That is tho -
view which the Madhya Pradesh High Court has
taken in Gulshar Ahmed v. Election Tribunal(') and it
was this decision which was followed by the High
Court in the present proceedings. In our opinion,
therefore, the contention raised by the appellant that
the appeal preferred by respondent 1 before the High
Court was incompetent must be rejected.
The question of construing s. 90 can be considered
from another point of view. It provides for the procedure before the tribunal and lays down that it is open
to the tribunal to dismiss an election petition under
s. 90, sub-s. (3); but this being a procedural provision
is would not be unreasonable to hold that, when the
actual order dismissing the petition is passed, it would
be referable to the provisions of s. 98(a).
The same
conclusion would follow if we consider the provisions of
ss. 103, 106 and 107. It cannot be suggested that the
order passed by the tribunal dismissing the election petition for non-compliance of s. 117 is not required to be
communicated to the Election Commission under s. 103
or transmitted by the Election Commission to the
appropriate authority under s. 106. 8imilarly it cannot be said that such an order would not take effect as
soon as it is pronounced by the tribunal under s. 107.
It would thus be noticed that though the provisions of
these sections are obviously applicable to an order dismissing the election petition on the ground of noncompliance of s. 117, in terms the said sections refer to
orders passed under s. 98 or s. 99. Therefore, we think
it would be reasonable to hold that, where the tribunal
dismisses an election petition by virtue of the provi-
(1) f\.l.R. 1958 Madh. Pra. 224.
(2) S.C.R.
SUPREME COURT REPORTS
533
sions contained in s. 90, sub-s. (3), the order of dismisr959
sal must be deemed to have been made under s. 98. Shri Chandrika
Similarly s. 99(1) (b) which empowers the tribunal to Prasad Tripathi
fix the total amount of costs payable and to specify
v.
the person by and to whom that shall be paid in terms Shri Siv Prasad
refers to cases where an order is made under s. 98. It
Chanpuria
cannot be suggested that, where an order of dismissal
& Others
is passed under s. 90, snb-s. (3), the tribunal cannot Gajendragadkar J.
make an appropriate order of costs.
This provision
-
also indicates that the order passed under s. 90, subs. (3) is in law and in substance an order passed under
s. 98(a). It is true that in cases where such an order
is passed s. 99(1)(a) would not come into operation,
but that can hardly affect the position that an order
under s. 90, sub-s. (3) is nevertheless an order under
s. 98.
We would like to add that by Act 58 of 1958 an
explanation has been added to s. 90, sub-s. (3) which
clarifies the legislative intention on this point. This
explanation provides that an order of the tribunal
dismissing an election petition under this sub-section
shall be deemed to be an order made under cl. (a)
of s. 98.
After the enactment of this explanation
there can be no doubt that an order passed under
s. 90, sub-s. (3) would be appealable under s. 116A of
the Act.
That takes us to the second point raised by the
appellant that the High Court was in error in holding
that respondent I had complied with the provisions of
s. 117 of the Act.
Section 117 provides that the petitioner shall enclose with the petition a Government
Treasury Receipt showing that a deposit of Rs. 1,000/-
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
costs of the petition. In the present case, respondent
1 has deposited the requisite security, but it is urged
that the security has not been deposited as required
by s. 117. This is how the security deposit has been
made:-
r959
Shti Ghandrika
Prasad Tripathi
v.
Shti ,-.,·iv Prasad
Chanpuria
& Others
Gajcndragadluir ].
534
SUPREME COUitT REPORTS [1959] Supp.
By whom
brought.
Shiv Pra.sad
Chanpuria.
On what account.
Security deposits for
Election Petition of
Bargi Assembly Constituencv
No.
97
Dist t.; Jabalpur,
Madhya Pr a d es h.
Refundable by order
of the Election Comm1ss10n
of India,
New Delhi.
Under
Amount.
rupees in
words.
Rs. One
Thousand and
one
only.
Rs. A.P.
1,000-0-0.
Total ...
1000-0-0.
The argument is that the security has not been depo8ited in the name of the Secretary to the Election
Commission as required by s. 117 and it is deposited
with the condition that it is refundable by the order
of the Election Commission of India. In other words,
the only power which the Election Commission of
India can exercise in respect of the security is to
refund the amount to respondent 1 ; and it would not
be competent to the Commission to direct the amount
to be paid to the appellant even if the election petition
filed by respondent 1 is dismissed with costs. In our
opinion, this objection is purely technical. It has
recently been held by this Court in Kamaraj Nadar v.
K unju Thevar (') that s. 117 should not be strictly or
technically construed and that wherever it is shown
that there has been a substantial compliance with its
requirements the tribunal should not dismiss the election petition under s.
90, sub-s. (3) on technical
grounds.
Indeed it is clear that the receipt with
which this Court was concerned in the case of Kamaraj
Nadar ('), was perhaps slightly more defective than
the receipt in the present case. The argument based
on the use of the word "refundable" ignores the fact
that the security in terms has been made in respect of
the election petition in question and it has been duly
credited as towards the account of the Election Commission.
Therefore, there can be no doubt that if an
(1)
A.I.R. 1958 S.C. 687.
(2) S.C.R. SUPREME COURT REPORTS
535
occasion arises for the Election Commission to make
r959
an order about the payment of this amount to the
Shri Chandrika
successful party the use of the word "refundable" will Prasad Tripathi
cause no difficulty whatever. We hold that the secuv.
rity has been made by respondent 1 as required by Shri Siv Prasad
s. 117 of the Act and would be at the disposal of the
Chanpuria
d.
<!>- Others
Election Commission in the present procee mgs.
_
We would like to add that even s. 117 has been Gajendragadkar J.
subsequently amended by Act 58 of 1958 and the
reference to the Secretary has been deleted.
The result is the appeal fails and must be dismissed
with costs.
Appeal dismissed.
BHAGW AN SINGH
v.
RAMESHW AR PRASAD SASTRI & OTHERS
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. W ANCHOO, JJ.)
Election Dispute-Disqualification for membership-Election to
State Legislature-Interest in contracts-Contract entered into as
Mukhiya of Panchayat-Representation of the People Act, r95r (43
of I95I), SS. 7(d), 8I, IOO(I)(a).
The election of the appellant as a member of the Bihar State
Assembly was challenged under s. 7(d) of the Representation of
the People Act, 1951, by the first respondent who was also a
candidate for election for the same constituency, on the ground
that at the date of the nomination the appellant had an interest·
in contracts for execution of works undertaken by the Bihar
Government, and that his nomination had been improperly
accepted.
The appellant's plea inter alia was that he had
executed the contracts not in his individual capacity but as the
Mukhiya of the Village Panchayat and therefore the disqualification imposed bys. 7(d) of the Act could not be invoked against
him. The contracts in question related to community projects
undertaken in pursuance of the Second Five Year Plan, under
which the execution of different works adopted under the plan was
to be by popular local agencies like Village Panchayats. The contracts were all in the prescribed form and the appellant, at the comI959
April r4.