The purpose of the deposit should be taken into account in determining compliance with S.117 of the Representation of the People Act, 1951.

1. This is an appeal by the petitioner in Election Petition No. 242 of 1957. His petition to set aside the election of the respondent to the Kerala State Assembly from the Manalur Constituency (No. 66) was dismissed by the Election Tribunal, Ernakulam, by its order dated the 11th November, 1957. It is the correctness of that order that is challenged by this appeal under S.116A of the Representation of the People Act, 1951.

2. There were three contesting candidates, the petitioner (Congress), the respondent (Communist) and one Govindankutty Nair (P. S. P.) who has not been impleaded either in the petition or in this appeal before us. The polling was on the 11th March 1957. The respondent secured 23,350 votes, the petitioner 21,355 votes and Govindankutty Nair, 2,486 votes. The result of the election was declared on the 14th March 1957.

3. S.117 of the Representation of the People Act, 1951, provides:

"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 cost of the petition",

Section 85 of the Act:

"If the provisions of S.81 or S.82 or S.117 have not been complied with, the Election Commission shall dismiss the petition":

Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard",

and S.90 (3):

"The Tribunal shall dismiss an election petition which does not comply with the provisions of S.81, S.82 or S.117 notwithstanding that it has not been dismissed by the Election Commission under S.85".

According to the respondent the deposit in this case was not proper and the first issue farmed for trial was:

"Has the petitioner complied with the provisions of S.117 of the Representation of the People Act of 1951? If not, is the petition maintainable?".

4. The Tribunal dealt with the issue in Para.7 to 14 of its order, negatived the contention of the respondent, and held that the petition was maintainable. The Tribunal summed up the case as follows:

"The petitioner has made a deposit in a Government Treasury but the receipt produced by him does not indicate that the amount was paid in favour of the Secretary to the Election Commission. That was the receipt which he forwarded with his petition to the Election Commission in New Delhi.

Subsequently, after the hearing of the petition commenced before the Tribunal, he paid another sum of Rs. 1000 in strict compliance with the provisions of S.117, by stating that it was made in favour of the Secretary to the Election Commission. This subsequent deposit made after the lapse of the prescribed period cannot save the situation for him, if there was a fatal defect in the original deposit made by him. The question, therefore, is whether there was such a fatal defect in the original deposit as to attract the provisions of S.90 (3) of the Act that 'the Tribunal shall dismiss an Election Petition which does not comply with the provisions of S.117, notwithstanding that it has not been dismissed by the Election Commission under S.85'. In the present case, the Election Commission did not exercise the power vested in it by S.85 and did not dismiss the election petition, but posted it before this Tribunal remarking that it is left to the Tribunal to decide whether this should be treated as a fatal defect or one that can be cured by a fresh deposit or otherwise so as to secure the right of the respondent to have the costs, if any, eventually awarded to him being safeguarded. The contention of the respondent's learned counsel is that the defect is fatal and that consequently the petition should be dismissed under S.90 (3)". (paragraph 7)

The correctness of the Tribunal's statement regarding the second deposit:

"This subsequent deposit made after the lapse of the prescribed period cannot save the situation for him (the petitioner), if th