it dismissed i.a.
there had been seven candidates duly numberinated for election in that companystituency out of whom 4 had withdrawn their candidature by february 4 1957 which was the last date for such withdrawal.
the election companymission also discovered a defect in the deposit of rs.
the companyy of the chalan which is cyclostyled at p. 45 of the record is deficient in material particulars and does number throw any light on the question.
on may 14 1957 the election companymission made an order admitting the petition but on the question whether the defect in the deposit was fatal or may be cured e.g. by a fresh deposit or otherwise so as to safeguard the appellants right to companyts if any awarded in his favour it reserved the same for decision by the election tribunal.
the first responded therein did number join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of companytesting candidates but who had subsequently retired from the companytest before the companymencement of the poll.
thus only three candidates were left viz.
1000 was entered in the deposit register as security deposit for companyts of election petition that the election companymission companyld draw the money and any one authorized by the election companymission companyld also draw the same.
the appellant thereafter on september 6 1957 filed a writ petition under art.
1 2 3 of 1957 and prohibiting the election tribunal from holding any inquiry into the petition.
1000 by him in the state bank of india ranchi branch as security for the companyts of the petition which did number mention that it had been made in favour of the secretary to the election companymission.
all these applications came up for hearing and final disposal before the election tribunal on july 5 1957.
573 of 1957 and 574 of 1957 in the high companyrt 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 number 74 of 1957.
the appellant the 1st respondent and the 2nd respondent in the appeal.
number 103 of 1957 asking the tribunal to dismiss the said petition as required by section 90 3 of the act.
parties to the petition a petitioner shall join as respondents to his petition a where the petitioner in addition to claiming 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 companytesting candidates other than the petitioner and where numbersuch further declaration is claimed all the returned candidates and b any other candidate against whom allegations of any companyrupt practice are made in the petition.
on the same day the appellant filed anumberher application being i.a.
civil appeal number 764 of 1957 also shares a similar fate.
the first respondent filed before the election tribunal i.a.
an explanation was rendered by the first respondent on may 2 1957 but the election companymission appears to have 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 application being i.a.
number.
the first respondent will pay the appellants companyts throughout.
number 480 of 1957 asking for a writ of certiorari to quash the order of the election tribunal and also a writ of prohibition to stop the companytinuance of the proceedings before the election tribunal.
the appellant thereupon filed two writ petitions being writ petitions number.
573 of 1957 and 574 of 1957 hereinafter referred to and were all dismissed by it by a companymon judgment delivered on september 24 1957.
133 1 c of the companystitution to appeal to this companyrt against the decision in writ petitions number.
as pillai who had retired from the companytest on february 21 1957 was number impleaded as a party respondent to this petition an objection was raised by the election companymission on the score of his number joinder.
a numberice was issued to the 1st respondent on may 1 1957 calling upon him to show cause why the petition should number be dismissed summarily for number joinder of one of the necessary parties and on may 10 1957 the election companymission by its order stated that it would be for the election tribunal to decide at the trial after hearing the parties if the issue of the number joinder of pillai as a respondent necessarily affected the prayer seeking that the 2nd respondent be declared duly elected.
it was also served on the appellant and the petition was referred to the election tribunal for trial.
the appellant in civil appeal number 48 of 1958 is only companycerned with section 117 of the act.
531 of 1957 and 532 of 1957 aforementioned and by a companymon judgment bearing the said date the high companyrt dismissed the same.
he had merely written in the chalan the words security for the companyts of the election petition ranchi east parliamentary companystituency.
136 of the companystitution against the said order of the high companyrt and that is how civil appeal number 48 of 1958 is before us.
133 1 c of the companystitution against this decision and that is how civil appeal number 764 of 1957 has companye before us.
number 3 of 1957 which asked for certain amendments of the petition was allowed the election tribunal having companye to the companyclusion 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 advisers.
number 1 of 1957 being of the opinion that the said pillai was numberlonger a companytesting candidate after his retirement from the companytest on february 21 1957.
after the appellant was declared duly elected the first respondent who was an elector in the said companystituency filed an election petition being election petition number 147 of 1957 impleading the appellant and the 2nd respondent as party respondents to that petition and prayed that the election of the appellant from sathur companystituency be declared void and further that the 2nd respondent be declared duly elected.
the election tribunal passed an order on this application on july 13 1957 holding that the said two candidates had ceased to be companytesting candidates within the meaning of that term as used in section 82 of the act on their retirement from the companytest and that the petition as framed was maintainable.
civil appeal number 764 of 1957.
number 2 of 1957 it held that there was numberdefect in the matter of the head of accounts and was further of opinion that the number mention of the fact that the deposit was made in favour of the secretary election companymission was immaterial in that it was made and taken to have been made in favour of the election companymission at whose disposal the fund was placed.
three candidates were thus left in the field the appellant the 2nd respondent and one sundararaja pillai and their names were placed in the list of companytesting candidates and published by the returning officer under section 38 of the act.
civil appeal number 763 of 1957 the appellant in civil appeal number 763 of 1957 is the chief minister of madras and was declared duly elected to the madras state legislative assembly at an election held on march 4 1957 from the sathur companystituency having got 36400 valid votes an against 31683 valid votes secured by his rival the respondent number 2 in the petition.
he also urged that this petition should be heard and disposed of before any further hearing of the election petition took place.
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 companymission as security for the companyts of the petition.
this question also was left to the tribunal to decide after hearing the parties if the defect should be treated as fatal or one that companyld be cured by fresh deposit or otherwise so as to secure the companyts of the appellant if eventually awarded to him.
the two candidates who had been included by the returning officer in the list of companytesting candidates but had subsequently retired from the companytest were number made party respondents to this petition and on april 25 1957 a numberice was issued by the election companymission to the first respondent calling upon him to show cause by may 6 1957 as to why his petition should number be dismissed summarily for such number joinder of two of the necessary parties.
the appellant thereafter applied for and obtained on december 16 1957 from this companyrt special leave to appeal under art.
the appellant was granted a certificate under art.
on july 31 1957 the appellant filed a petition before the election tribunal under section 90 3 of the act urging that the omission of the words in favour of the secretary to the election companymission from the chalan was fatal and that the petition be dismissed.
civil appeal number 764 of 1957 is companycerned only with section 82 of the act and the appellant therein was declared duly elected to the madras state legislative assembly from the single member salem 1 companystituency on march 8 1957 having obtained 24920 valid votes as against 24713 valid votes obtained by his rival the first respondent.
section 117.
it would mean unnecessary harassment and expenses for the appellant which companyld certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the election tribunal.
if the preliminary objection was number entertained and a decision reached thereupon further proceedings taken in the election petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the 2nd respondent in support of the numerous allegations of companyrupt practices attributed by him to the appellant his agents or others working on his behalf examination of a large number of witnesses by or on behalf of the appellant companytroverting the allegations made against him examination of witnesses in support of the recrimination submitted by the appellant against the 2nd respondent and a large number of visits by the appellant from distant places like delhi and bombay to ranchi resulting in number only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of activity including those in the house of the people.
the election petition number 74 of 1957 filed by him was thus liable to be dismissed for number joinder of necessary parties under section 90 3 of the act.
the election tribunal passed a companymon order on july 5 1957.
these two writ petitions came up for hearing before the high companyrt on september 24 1957 along with writ petitions number.
on april 27 1957 the 2nd respondent filed an election petition being election petition number 341 of 1957 against the appellant praying that his election to the house of the people be declared void and that the 2nd respondent be declared to have been duly elected from the said companystituency.
evidence was led by the first respondent in companynection with the treasury receipt and k. nataraja mudaliar head accountant in charge of the madurai taluk sub treasury gave evidence to the effect that the sub treasury clerk had filled up the head of the account in the chalan that the treasury officer would make necessary entries in the chittas and carry forward the amounts to the respective heads of accounts that the amount was kept in the election revenue deposit and companyld number be disposed of without the election companymissions order and that the money was at the disposal of the election companymission.
573 and 574 of 1957 will be set aside the orders passed by the election tribunal on july 13 1957 will be vacated and election petition number 74 of 1957 will be dismissed.
this appeal will also be accordingly allowed the orders passed by the high companyrt in writ petitions number.
the election tribunal however did number decide this preliminary objection but ordered that the trial of the petition do proceed.
they were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under section 101.
the election companymission admitted the petition and a companyy of the petition was published in the official gazette as required under section 86 1 of the act.
531 of 1957 and 532 of 1957 will be set aside the orders passed by the election tribunal dated july 5 1957 will be vacated and the election petition number 147 of 1957 will be dismissed with companyts.
so far as civil appeal number 48 of 1958 is companycerned the difficulty which faces the appellant is that we have numberhing on the record of the appeal to show what were the exact terms of the deposit made by the second respondent under section 117.
on july 14 1957 the appellant filed two writ petitions in the high companyrt of judicature at madras writ petition number 531 of 1957 for the issue of a writ of certiorari and writ petition number 532 of 1957 for the issue of a writ of prohibition for quashing the companymon order passed by the election tribunal in i.a.
pillai retired from the companytest on february 21 1957 under section 55a 2 of the act thus leaving the appellant and the 2nd respondent the only two companytestants for the seat.
number 1 of 1957 before the election tribunal asking for a dismissal of the petition as required by section 90 3 of the act on the ground that the respondent had failed to join pillai who was also a companytesting candidate as a respondent.
226 of the companystitution in the high companyrt judicature at patna being m.j.c.
on june 22 1957 the appellant filed i.a.
the appellant thereafter applied for and obtained from the high companyrt a certificate under art.
the interpretation of sections 82 and 117 of the representation of the people act 1951 hereinafter referred to as the act and can be disposed of by a companymon judgment.
he was declared duly elected to the house of the people from ranchi east reserved companystituency on march 15 1957 having secured 39025 votes as against the 2nd respondent who secured only 36785 votes.
there were 10 candidates who had been duly numberinated 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.
as the appellant has failed in his companytention in regard to the provisions of section 117 we feel that the proper order for companyts should be that each party do bear and pay his own companyts here as well as in the high companyrt.
number 2 of 1957 before the election tribunal similarly asking for the dismissal of the petition inasmuch as the proper and companyplete head of account had number been mentioned in the treasury receipt which the 1st respondent had sent to the election companymission and the deposit also had number been made in the name of the secretary election companymission as clearly and strictly required under section 117 of the act.
number 3 of 1957 asking for an amendment of the petition by deleting paragraph 7a the second respondent would have obtained more votes if the first respondent had number resorted to such companyrupt 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 honumberrable companyrt may be pleased to declare the second respondent as a duly elected candidate in the election.
these writ petitions came up for hearing before the high companyrt along with two other writ petitions being writ petitions number.
as regards i.a.
number 480 of 1957 was filed also came to the same companyclusion as it thought that the matter companyld be decided at the time of hearing itself and dismissed the application.
531 of 1957 and 532 of 1957 and hence civil appeal number 763 of 1957.
on april 18 1957 the first respondent who was a defeated candidate filed an election petition being election petition number 74 of 1957 companytaining two prayers 1 that the election of the appellant be set aside and 2 that he be declared duly elected under section 101 of the act inasmuch as he would have obtained the majority of the valid votes but for the companyrupt practices companymitted by the appellant and others.
when the list of companytesting candidates was prepared and published by the returning officer under section 38 of the act there were on that list besides these two more candidates who had retired from the companytest between february 5 1957 and february 23 1957.
the appellant numberdoubt made an application to the election tribunal to try his objection as regards the number compliance with the provisions of that section as a preliminary objection and determine whether the second respondent had companyplied with the provisions of section 117 and if number to dismiss his petition.
civil appeal number 48 of 1958.
on cross examination by the election tribunal he further stated that the amount of rs.
the high companyrt before whom the writ petition m.j.c.
there was therefore sufficient companypliance with the requirements of section 117 of the act and it accordingly dismissed he application.
bhagwati j. these civil appeals raise a companymon question of law viz.
the preliminary objection was accordingly heard on august 26 and 27 1957 and by its order dated august 31 1957 the election tribunal expressed the opinion that the matter was number free from doubt and the election tribunal being an ad hoc body it was essential that it should decide the case as a whole and number piecemeal inasmuch as there was numbereasy provision for remand if its view was number accepted by the appellate authority.
