Sitaram Hirachand Birla vs Yograjsing Shankarsing Parihar.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1952 Supreme(Bom) 169

IN THE HIGH COURT OF BOMBAY
Chagla, C.J. and Dixit Y.V. , J.
Appellants: Sitaram Hirachand Birla
Vs.
Respondent: Yograjsing Shankarsing Parihar and Ors.
Civil Appln. No. 2017 of 1952
Decided On: 19.12.1952
Counsels:
For Appellant/Petitioner/Plaintiff: S.G. Patwardhan, Adv.
For Respondents/Defendant: R.B. Kotwal, Adv. M.P. Amin, Adv. General and Little Co.

Headnote:A.Election Petition - Petition not verified - Section 82, 83, 90(2), 90(4) of Representative of People Act - contention that the Tribunal should have dismissed under section 90(4) the petition which was not in conformity with Section 83 of Representative of People Act - Election Tribunal allowed to correct error by amendment - held, but the very fact that the Legislature has left it to the discretion of the Election Tribunal clearly goes to show that the Legislature conferred the power upon the Tribunal in proper cases to amend a petition and to bring it in conformity with Section 83 so that it need not be dismissed. (para 6)
       B.Procedure and Power - Code of Civil Procedure - The whole of the Civil Procedure Code, as its very name implies, deals with procedure, in the course of procedure the Court always exercises powers and when the Court is exercising its powers, it is exercising them in order to carry out the procedure laid down in the Code. Therefore procedure and powers in this sense are really interchangeable terms and it is difficult to draw a line between procedure and power. ( para 6)
       C.Obligation upon the Election Tribunal - petition not verified - Section 90(4) of Representative of People Act - Code of Civil Procedure - contention: the petition should have been dismissed by the tribunal for want of verification - in Section 90 (4) the Legislature has used the expression may dismiss". It is obvious therefore that no obligation is cast upon the Tribunal under Section 90 (4) to dismiss an election petition which does not comply with the provisions of Section 83 - held, no such statutory obligation upon the Tribunal . (para 4)
       D.Intention of Legislature - interpretation of statutes - "may" and "shall" - When we find in the same statute with regard to the same subject matter the Legislature using in one case the expression shall" and in the other case "may", it is impossible to hold that these two expressions were used with the same meaning and connotation. The Legislature obviously wanted to make a distinction between these two expressions, and therefore whereas in the one case the Legislature wanted to cast an obligation upon the Commission to dismiss the petition, in the other case the Legislature has given a discretion to the Tribunal whether to dismiss or not to dismiss the petition. (para 4)
       E.Essential Party - difference between candidate for an election and candidate at an election - Section 82 of Representative of People Act - opponent no.7 who withdraw nomination made party on his request - order challenged - "all the candidates who were duly nominated at the election" - contention: whose nomination paper has been accepted even subsequently withdrawn is a duly nominated candidate and essential party - held, the object of Section 82 is that all parties who were concerned with the actual election and who contested the election should be before the Tribunal - candidate withdrawing nomination is not validly nominated candidate at an election - respondent 7 was not necessary party. (para 7 and 8)
       F.Jurisdiction - adding a party - opponent 7 was added as party respondent on his application for amendment - contention: The tribunal had not power to add party - even when the opponent no. 7 was not a necessary party, the tribunal had power to add a person as party - held, the power to add parties is derived from the wide language used by the Legislature in Section 90 (2) - tribunal had the jurisdiction to add a party. ( Para 10 and 11)

JUDGMENT - Chagla, C.J.

(1) This is a petition filed by a successful candidate at an election held for a seat in the Bombay Legislative Assembly from the Erandol Taluka Constituency. A petition was filed by opponent 1 challenging the petitioners election. Seven nominations were received for this election. Opponent 7, although he was duly nominated, withdrew from the contest. The scrutiny of the nominations was held on 27-11-1951, and on 28-11-1951, the Returning Officer published the list of valid nominations. The election took place on 7-1-1952, the counting of votes took place on 12-1-1952, and the result of the election was declared on 19-1-1952, and as already pointed out the petitioner was declared to be duly elected. The first opponent filed his election petition on 25-3-1952, and it reached the Election Commission on 27-3-1952. The Election Commission referred the petition to an Election Tribunal which was appointed for the trial of the petition, and the petitioner has now come before us for a writ directed against the Tribunal calling upon the Tribunal to dismiss the election petition.

(2) Mr. Patwardhan who appears for the petitioner has pointed out various defects which appear in the petition. It is pointed out that when the petition was presented it was not properly verified, and Section 83 (1), Representation of the People Act, provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall bo signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. Admittedly, the verification of the petition as presented to the Election Commission did not comply with the provisions of the Code. A list was also furnished to the Commission in accordance with Section 83 (2) and that sub-section provides that the petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice. The verification of this list was not also in accordance with the Civil Procedure Code. A further additional list was also sent to the Commission and the Commission in referring the petition to the Tribunal also forwarded with the petition the list and the additional list which was submitted to it.

(3) In the first place, it is contended that the Election Commission should have dismissed the petition and should not have appointed an Election Tribunal for the trial of the petition under Section 86 of the Act. Section 85 of the Act provides that if the provisions of Section 81, Section 83 or Section 117 are not complied with, the Election Commission shall dismiss the petition. Mr. Patwardhan contends that inasmuch as the petition and the list were not verified as required by Section 83 (1) and Section 83 (2), it was obligatory upon the Election Commission to dismiss the petition. Now, this petition is not directed against the Election Commission. The petitioner does not require any mandamus against the Election Commission to discharge its statutory obligation. The election petition is directed against the Tribunal, and what we have to consider in this petition is not the statutory obligations of the Election Commission but the statutory obligations of the Tribunal. If the Election Commission failed to dismiss the petition, assuming that it was under an obligation to do so under Section 35, even so, once the election petition is referred to an Election Tribunal, the duty of the Election Tribunal is to dispose of it according to law. It is not open to the Election Tribunal to challenge the competence of the Election Commission to appoint the Tribunal or to refer the election petition to it for trial.

(4) It is then urged that if the

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