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Kaushalendra Prasad Narain Singh v. Nand Kishore Prasad Singh
Factual and Procedural Background
During the 1957 general elections to the Bihar Legislative Assembly, the appellant contested from the Asthawan constituency but the first respondent was declared elected. The appellant filed an election petition before the Election Commission seeking to set aside that election and deposited Rs 1,000 in the Government Treasury as security for costs. The treasury chalan described the payee as “security, Election Commission” instead of “Secretary, Election Commission,” an evident clerical error.
The petition was referred to the Election Tribunal, Patna. After extensive evidence had been recorded, the first respondent amended his written statement to contend that the petition was fatally defective for non-compliance with Section 117 of the Representation of the People Act, 1951. Although the Tribunal allowed the amendment, it refused to treat the objection as a preliminary issue. The respondent then invoked Article 227 of the Constitution before the Patna High Court, which, following its earlier decisions, dismissed the petition for non-compliance with Section 117. The appellant obtained special leave and appealed to the Supreme Court.
Legal Issues Presented
- Whether the omission to state in the deposit receipt that the amount was deposited “in favour of the Secretary to the Election Commission,” as prescribed by Section 117 of the Representation of the People Act, 1951, renders an election petition liable to dismissal.
- Whether the words in Section 117 are mandatory or merely directory in nature.
Arguments of the Parties
Appellant’s Arguments
- The error in the chalan was purely clerical and did not affect the availability of the security deposit to the Election Commission.
- Relied on the Supreme Court ruling in K. Kamaraja Nadar v. Kunju Thevar, which held that the words in Section 117 are directory, not mandatory.
Respondent’s Arguments
- Strict compliance with Section 117 is mandatory; failure to designate the deposit in favour of the Secretary to the Election Commission is a fatal defect.
- Cited Patna High Court precedents holding such non-compliance fatal to the maintainability of an election petition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K. Kamaraja Nadar v. Kunju Thevar and Others, 14 E.L.R. 270 | Words “in favour of the Secretary to the Election Commission” in Section 117 are directory, not mandatory; the crucial element is that the deposit be under the control of the Election Commission. | Treated as binding authority; applied to hold that the clerical error in the present case did not invalidate the deposit or the petition. |
| Sardar Harihar Singh v. Ganga Prasad, 13 E.L.R. 478 (Patna HC) | Non-compliance with Section 117 is fatal. | Cited by the High Court below; not followed by the Supreme Court in light of the binding precedent in Kamaraja Nadar. |
| Sunder Singh v. Member, Election Tribunal, Misc. Judicial Case No. 686 of 1957 (Patna HC) | Failure to comply strictly with Section 117 defeats an election petition. | Also relied on by the High Court; effectively disapproved by the Supreme Court. |
Court’s Reasoning and Analysis
The Supreme Court reiterated the ratio of Kamaraja Nadar: the statutory language of Section 117 is directory rather than mandatory. The decisive factor is whether the money is at the Election Commission’s disposal. Because the deposit was made in the Government Treasury and fully accessible to the Commission, a clerical slip in the chalan could not vitiate the security. Describing the error as “venial,” the Court held it incapable of prejudicing the respondent or obstructing recovery of costs. Observing that more than three years had already elapsed, the Court also emphasised the need to avoid delay by striking out the additional issue introduced by amendment.
Holding and Implications
APPEAL ALLOWED. The order of the Patna High Court dismissing the election petition is set aside; the additional issue on maintainability is struck off. The Election Tribunal is directed to proceed with the hearing on merits expeditiously. Costs before the Supreme Court and the High Court are awarded to the appellant.
Implications: The judgment confirms that minor clerical errors in a treasury chalan will not defeat an election petition so long as the deposit is under the Election Commission’s control. It discourages reliance on technical objections to delay adjudication and aligns High Court practice with binding Supreme Court authority, without setting new precedent beyond reaffirming the directory nature of Section 117.
JUDGMENT
J.C. Shah, J.
1. This is an appeal by special leave. The Appellant was a candidate at the last general elections held in 1957, for election to the Bihar Legislative Assembly from the Asthawan constituency. The first Respondent was declared elected by the returning officer. The Appellant then submitted a petition to the Election Commission for setting aside the election of the first Respondent. The petition was accompanied by a chalan evidencing a deposit of Rs. 1,000 on behalf of the Appellant in the Government Treasury. The chalan showed that the amount was tendered as "security deposit for election petition in favour of security, Election Commission." The word "security" used immediately before "Election Commission" was evidently a mistake for "Secretary". The Election Commission referred the petition to the Election Tribunal presided over by the District Judge, Patna, for trial. The first Respondent filed his written statement, but did not specifically raise a contention that the petition was liable to be dismissed because the requirements of Section 117 of the Representation of the People Act, 43 of 1951, hereinafter called the Act, were not complied with. After a large number of witnesses were examined on behalf of the Appellant, and some witnesses were examined by the Respondent, on 7th February, 1958, the first Respondent sought to raise by amendment of his written statement a contention that the petition was liable to be dismissed because it did not show on its face that the amount of Rs. 1,000 was deposited in favour of the Secretary to the Election Commission as security for the costs of the Respondent. The Election Tribunal permitted amendment of the written statement, and raised the following additional issue: "Is the deposit of security money in accordance with the provisions of Section 117 of the Act or not, and whether the election petition is liable to be dismissed under Section 90(3) for non-compliance of Section 117 of the Representation of the People Act." The first Respondent then applied that the additional issue be tried as a preliminary issue and that the petition be disposed of without entering upon a decision on the merits. The Election Tribunal declined to accede to that request. Against the order passed by the Election Tribunal, the first Respondent presented a petition under Article 227 of the Constitution before the High Court of Judicature at Patna, praying that the election petition be ordered to be dismissed as it was not in conformity with the provisions of Section 117 of the Act. The High Court upheld the contention of the first Respondent, observing that the case before them was governed by their earlier judgments in Sardar Harihar Singh v. Singh Ganga Prasad 13 E.L.R. 478 and Sunder Singh v. Member, Election Tribunal Miscellaneous Judicial Case No. 686 of 1957 in which it was held that failure on the part of the Petitioner to comply with the provisions of Section 117 of the Act amounted to a defect fatal to the maintainability of the petition. The High Court, accordingly, set aside the order of the Election Tribunal and ordered that the election petition be dismissed for noncompliance with the requirements of Section 117 of the Act.
2. Against the order passed by the High Court, this appeal is filed with special leave. The question whether failure to comply with the requirements of Section 117 of the Act amounts to a defect which is fatal to the maintainability of an election petition was considered by this Court in K. Kamaraja Nadar v. Kunju Thevar and Ors. 14 E.L.R. 270. In that case, it was held that the words "in favour of the Secretary to the Election Commission" used in Section 117 of the Act, were directory and not mandatory in their character and no literal compliance with the terms of Section 117 was required. What was of the essence of the provisions of Section 117 of the Act was that the receipt should show, or it should be proved by evidence led before the Tribunal, that the deposit was at the disposal of the Election Commission to be utilised in the manner authorised by law and was under the control of the Commission and payable to the Election Commission or to any other person duly authorised to receive the same.
3. In our view, the principle of that case governs the present case. The error in the chalan was venial and it could not affect the maintainability of the petition, nor is it likely to give rise to any difficulty, if the petition is ultimately dismissed, in the recovery of the costs, out of the amount deposited by the Appellant. Section 117 of the Act is intended to provide that security for costs shall be furnished by a party moving the Election Commission and for that purpose he is required to furnish a receipt showing that an amount of Rs. 1,000 is deposited in the Reserve Bank or in the Government Treasury. It is true that the amount should be shown to have been deposited in favour of the Secretary to the Election Commission; but the matter of primary importance is the deposit of the amount which may be at the disposal of the Election Commission, and if the security deposited, a venial error in describing the name of the person in whose favour the amount is deposited will not affect the validity of the deposit. In our view, the High Court was in error in holding that the petition filed by the Appellant was liable to be dismissed.
4. Since the date on which the petition was filed, more than three years have elapsed and we do think that it would be in the interest of all the parties that no further time be spent in the hearing of preliminary objections of the nature sought to be raised by the first Respondent. We, accordingly, direct that the additional issue, which has been raised, at the instance of the first Respondent as to the maintainability of the petition in view of the alleged defect, be struck off. We trust that this petition will be taken up for hearing by the Election Tribunal with the least practicable delay and disposed of according to law. We allow the appeal and set aside the order passed by the High Court. The Appellant will be entitled to his costs in this Court as well as in the High Court.
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