P.N Mookerjee, J.:— The appellant before us was the unsuccessful candidate at the last general election from the Contai North Legislative Assembly Constituency, Midnapore, West Bengal. The election was held on March 7, 1957, and in it, respondent No. 1, who was the rival candidate, was declared elected, he having secured 20,586 votes as against the appellant's 20,523. Respondent No. 12 was the Returning Officer.
2. In or about the beginning of May, 1957, the appellant applied for setting aside the election of respondent No. 1 and for a further declaration that he (the appellant) had been duly elected. The application was duly sent by registered post to the Election Commission, New Delhi, which received it on May 3, 1957. It was registered as Election Petition No. 447 of 1957. By an order, dated July 2, 1957, the Chief Election Commissioner fixed the trial of the petition at Midnapore before Sri Surendra Mohan Banerjee (Sri S.M Banerjee), District Judge, Midnapore, who was constituted the one-man tribunal for the purpose. The 20th July, 1957, was fixed as the date for the first appearance of the parties before the Tribunal and appropriate notices were issued to them accordingly. The petition was forwarded to the Tribunal on July 10, 1957, and there the parties appeared and the respondents duly filed their written statements.
3. The petition has been dismissed by the Tribunal on the preliminary ground of non-compliance with the provisions of section 117 of the Representation of the People Act, 1951, (Central Act No. XLIII of 1951). The propriety of this decision is questioned in this appeal.
4. The matter arose upon Order No. 2 of the Chief Election Commissioner, dated May 14, 1957, wherein he observed, inter alia, as follows:
“The Treasury Chalan, enclosed with the petition, is defective, inasmuch as it does not specifically mention that the amount has been deposited in favour of the Secretary, Election Commission. This may make it difficult for, the costs, if any, ordered against the petitioner to be realised out of the deposit.”
5. And also upon the specific objection, taken by respondent No. 2 in his written statement, to the effect that “as no requisite deposit has been made in favour of the Secretary to the Election Commission, provision of section 117 has not been complied with and as such the petition is liable to be dismissed.”
6. The relevant facts lie within a very narrow compass and they stand as stated hereunder:
The election petition, as we have said above, was filed about the beginning of May, 1957, its verification being dated April 30, 1957. On that date, it appears, the petitioner deposited with the Reserve Bank of India, Calcutta, a sum of Rs. 1,000 by a duly receipted Chalan of that date which may be set out hereunder as follows:
T.R 6 (Treasury Rule 92)
Chalan of cash paid into the Reserve Bank of India at Calcutta.
By whom tendered
Name of designation and address of the person on whose behalf mony is paid.
Full particulars of the remittance and of authority (if any)
Amount
Head of Account
Accounts officer by whom adjustable
Order to the Bank.
Sanat Kumar Bhattacharji, 7, Sambhu Chatterji Street, Calcutta-12.
Sir Sudhansu Kumar Panda, P.O Contai, Dist. Midnapore.
An Election petition for setting aside the election result of the Contai North Contaituenoy, Dist: Midnapore in the Legislative Assembly Constituency in the State of West Bengal.
Rs. 1,000
Central (Civil) Section F Deposits and advances Part II Deposits not bearing interest (c) other deposits accounts Civil deposits Revenue deposits – Deposits for Election Petitions.
Date. Correct. Receive and grant Receipt. Signature and full designation of the officer ordering the money to be paid in.
Total Rs. 1,600/- (Rupees one thousand only)
Received payment (in words) Rupees – Stamp (seal) of the Reserve Bank of India, Calcutta
R.B.I Cal. (5)
Cash Received
Rs. ???000/-
(Rupees one thousand only)
Date 30.4.57
(Illegible)
Treasurer
(Illegible)
P. Manager,
278 Particulars (on the back) Amount
Ten pieces of R.B Notes of Rs. 100/- each……………
Rs. 1,000/-
Total:
Rs. 1,000/-
7. The receipted Chalan or the Government Treasury receipt, as it is designated by the statute (vide section 117). undoubtedly shows deposit of Rs. 1,000 by the petitioner in connection with “an election petition for setting aside the election result of the Contai North Constituency, District Midnapore, in the Legislative Assembly Constituency in the State of West Bengal.”
8. The money also appears to have been credited under the Head of Account relating, inter alia, to “Deposits for Election Petitions.” The point is whether section 117 of the Representation of the People Act, 1951, has-been complied with, so as to sustain the appellants election petition.
9. Section 117 is in the following terms:
“Deposit of security.—The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition.”
10. It thus requires the petitioner to enclose with his petition “a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition.”
11. Analysing the requirements under the section it is clear that the Government Treasury receipt, or the Treasury receipt, as it is usually called, which is to accompany the election petition, must show a deposit by the petitioner of one thousand rupees:
(i) In a Government Treasury or in the Reserve Bank of India;
(ii) In favour of the Secretary to the Election Commission; and
(iii) As security for the costs of the petition.
12. Admittedly, in this case, a Treasury receipt was enclosed with the petition. That receipt also shows deposit of one thousand rupees by the petitioner in the Reserve Bank of India. It does not, however, show that the deposit was made in favour of the Secretary in the Election Commission or as security for the costs of the petition. The question is, whether this defect (which is prima facie there) is fatal to the maintainability of the petition.
13. The Tribunal has answered the question in the affirmative and the point is whether its view is right.
14. The answer depend on section 90(3) of the Representation of the People Act, 1951, read with section 117. This latter section has been fully set out above. We need not discuss it at this stage. The other section, however, namely section 90(3) which is in these terms:
“The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85”
15. Is plainly mandatory, particularly when it is remembered that by the amendment of 1956 [vide section 51 (d) of Central Act XXVII of 1956] the word “shall” was introduced in the section in place of the word “may” which occurred in the corresponding provision [section 90(4)] before the said amendment and it leaves no discretion to the Tribunal and in case of non-compliance with inter alia section 117, the Tribunal is bound to dismiss the petition. It is, therefore, necessary to enquire whether there has been in the present case non-compliance with section 117 and such noncompliance as comes within the meaning and mischief of section 90(3).
16. We have pointed out above that the Government Treasury receipt, enclosed by the petitioner with his election petition to comply with section 117 of the Act, is prima facie defective in that it does not show deposit of the amount (one thousand rupees) in favour of the Secretary to the Election Commission or as security for the costs of the petition. That position cannot be controverted.
17. It is argued, however, on behalf of the petitioner (appellant) that the defect, as disclosed above, is merely one of form and not of substance and that, as such, it should be disregarded for purposes of section 90(3). The basis of this argument is that section 117, so far, at least, as the form or manner of deposit is concerned, is not mandatory but merely directory and substantial compliance with it in that respect ought to be sufficient (vide Punjab Co-operative Bank Limited, Amritsar v. Income Tax Commissioner, Lahore (1) L.R 67 I.A 464 at page 476) and no strict compliance ought to be demanded and in that view, the Treasury receipt in the present case should be regarded as of requisite compliance with section 117 for purposes of section 90(3).
18. In the view, which we are taking, it is unnecessary to express any opinion on the petitioner's above basic argument on the point and to decide whether the relevant part of section 117 is mandatory or directory as, in our opinion, there has been, in this case, not even substantial compliance with the statute (section 117), there being nothing in the receipt or in the materials, placed before us, from which it can be necessarily or even reasonably construed that the deposit is in favour of the Secretary to the Election Commission or as security for the costs of the petition. In the absence of any material, showing that the deposit money would be available to the Secretary to the Election Commission as or by way of security for costs of the petition it would not be proper to hold that the statute has even been substantially complied with. Nothing, indeed, could be placed before us to enable us to hold or to warrant a finding that, under the above deposit, as it stands, the money would be payable to the Secretary to the Election Commission or that the Reserve Bank would pay it to him or that the said Officer, even if he be paid the money, would hold it or would be bound to hold it as security for the costs of the petition. At best, the position is one of uncertainty which makes it difficult for the court to find substantial compliance with the statute. Even the theory of substantial compliance would not, therefore, help the appellant in the present case and so his appeal cannot succeed.
19. In the above view, we do not deem it necessary to examine the implications of the observations of the Supreme Court in Jagannath v. Jaswant Singh, A.I.R 1954 S.C 210 at pages 212 and 214 or to discuss the decisions of the Supreme Court of Canada in (1891) 20 Canada Supreme Court Reports 26 (Queen's County and Prince County (P.E.I) Election cases) or of the English House of Lords in Katherine Yale v. The King (1721) E.R 910 or the very recent decision of Sinha, J. in Civil Revision Case No. 2294 of 1957 (Biren Roy v. Bijoyesh Mukherjee) (since reported in 62 C.W.N 240—Ed.) which all appear to be clearly distinguishable.
20. In the result, we dismiss this appeal with costs, hearing fee being assessed at three gold mohurs for each set of appearing respondents.
21. Let a copy of this judgment be forwarded to the Election Commission as early as possible.
Sarkar, J.:— I agree.
S.K.B