An order dismissing an election petition under S. 90(3) of the Representation of the People Act, 1951, is an order made at the conclusion of the trial and is, therefore, appealable under S. 116A of the Act.

Headnote:
ELECTION LAW - ELECTION PETITION - APPEAL - ORDER DISMISSING PETITION UNDER S. 90(3) OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - WHETHER APPEALABLE - INTERPRETATION OF S. 98 AND S. 90(3) - MEANING OF TRIAL - WHETHER ORDER UNDER S. 90(3) IS AN ORDER AT THE CONCLUSION OF THE TRIAL - S. 117 - DEPOSIT RECEIPT - REQUIREMENTS - INTERPRETATION.
Fact of the Case:

The appellant, an elected member of the Punjab Legislative Assembly, faced an election petition filed by the respondent, Gian Chand, alleging that the appellant's election was void. The Election Tribunal dismissed the petition under S. 90(3) of the Representation of the People Act, 1951, for non-compliance with S. 117, which required a deposit of Rs. 1,000 as security for costs. The High Court allowed the respondent's appeal, holding that the order was appealable and that the deposit receipt complied with S. 117.
Finding of the Court:

The Supreme Court held that an order dismissing an election petition under S. 90(3) is an order made at the conclusion of the trial and is, therefore, appealable under S. 116A of the Act. The Court interpreted the word trial in S. 98 to mean the entire proceeding before an Election Tribunal from the reference of the petition to it by the Election Commission to the conclusion. The Court also held that the deposit receipt filed by the respondent complied with the requirements of S. 117.
Issues: 1. Whether an order dismissing an election petition under S. 90(3) of the Representation of the People Act, 1951, is appealable. 2. Whether the deposit receipt filed by the respondent complied with the requirements of S. 117 of the Act.
Ratio Decidendi: 1. The Court interpreted S. 98 and S. 90(3) of the Act and concluded that an order dismissing an election petition under S. 90(3) is an order made at the conclusion of the trial and is, therefore, appealable under S. 116A. The Court held that the word trial in S. 98 means the entire proceeding before an Election Tribunal from the reference of the petition to it by the Election Commission to the conclusion. 2. The Court interpreted S. 117 of the Act and held that the deposit receipt filed by the respondent complied with the requirements of the section. The Court held that the words on whose behalf in the deposit receipt meant in whose favour and that the respondent had paid the money into the Treasury as security for the costs of the election petition in his own name and not as an agent of the Secretary, Election Commission.
Final Decision: The Supreme Court dismissed the appeal with costs.

Judgment

SARKAR, J. : In the 1957 General Elections the appellant was declared elected to the Punjab Legislative Assembly. The respondent, Gian Chand, filed an election petition for a declaration that the appellant s election was void. The other respondent in this appeal, presumably another unsuccessful candidate at the election, had been made a party to the petition but he never appeared at any stage. For brevity we will refer to the respondent Gian Chand, as the respondent.

2. The Election Tribunal before whom the petition came up for trial framed a number of issues and recorded evidence. When the case was ready for argument, the appellant made an application to the Tribunal for an order dismissing the petition under S. 90(3) of the Representation of the People Act, 1951, which is later set out, on the ground that S. l17 of that Act had not been complied with. Section l17 requires that every election petition shall be accompanied by a Government Treasuary receipt showing that a deposit of Rs. 1,000 had been made by the petitioner in favour of the Secretary to the Election Commission as security for the costs of the petition. The appellant s contention was that the receipt enclosed with the petition was not, for reasons which will be mentioned later, in terms of the section. The respondent objected to the application being entertained because of the delay in filing it and also on the ground that it could not be decided without taking evidence. The Tribunal overruled the respondent s objections and held on a scrutiny of the receipt alone that it was not in terms of S. l17, and thereupon dismissed the election petition under the powers conferred by S. 90(3) without deciding the other issues framed.

3. The respondent went up in appeal to the High Court of Punjab. It was there contended on behalf of the appellant that no appeal lay from an order dismissing an election petition for the reasons mentioned in S. 90(3) and that the order of the Tribunal was in any event right. The High Court held that an appeal lay to it and that the order dismissing the petition was wrong because the terms of S. l17 had been complied with. The present appeal is against this order of the High Court.

4. The first point that arises is whether an appeal lay to the High Court. The Act provides by S. l16-A that an appeal shall lie from every order made by an Election Tribunal under S. 98 or S. 99 to the High Court of the State in which the Tribunal is situated. The appellant s contention is that the order of the Tribunal dismissing the petition had not been made under either of these sections. It is quite clear that the Tribunal s order had not been made under S. 99. The point that arises is whether the order had been made under S. 98. If it had not been made under S. 98, an appeal would clearly not lie. The appellant contends that it was not so made but had been made under S. 90 (3). These two sections are set out below:

Section 98- Decision of the Tribunal - At the conclusion of the trial of an election petition the Tribunal shall make an order-

(a) dismissing the election petition; or

(b) declaring the election of all or any of the returned candidates to be void; or

(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected;

Section 90. - Procedure before the Tribunal.-

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(3) The Tribunal shall dismiss an election petition which does not comply with the provisions of S. 81, S. 82 or S. l17 notwithstanding that it has not been dismissed by the Election Commission under S. 85.

Section 85 provides:

Section 85 - If the provisions of S. 81 or S. 82 or S. l17 have not been complied with, the Election Commission shall dismiss the petition.

5. It is first contended on behalf of the appellant that the provisions of S. 85 and S. 90(3) are substantially the same and the fact "that no appeal has been provided against the order made by the Election Co

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