Judgment

N. H. BHAGWATI, J. These Civil Appeals raise a common question of law, viz., the interpretation of sections 82 and 117 of the Representation of the People Act 1951, (hereinafter referred to as "the Act") and can be disposed of by a common judgment.

2. Civil Appeal No. 763 of 1957 : The appellant in Civil Appeal No. 763 of 1957 is the Chief Minister of Madras and was declared duly elected to the Madras State Legislative Assembly at an election held on 4th March 1957, from the Sathur Constituency having got 36,400 valid votes as against 31, 683 valid votes secured by his rival, the respondent No. 2 in the petition. There had been seven candidates duly nominated for election in that constituency out of whom 4 had withdrawn their candidature by 4th February 1957, which was the last date for such withdrawal. Three candidates were thus left in the field, the Appellant, the 2nd respondent and one Sundaraju Pillai and their names were placed in the list of contesting candidates and published by the Returning Officer under S. 38 of the Act. Pillai retired from the contest on 21st, February 1957, under S. 55A(2) of the Act, thus leaving the appellant and the 2nd respondent the only two contestants for the seat.

3. After the appellant was declared duly elected, the first respondent who was an elector in the said constituency filed an election petition, being Election Petition No. 147 of 1957, impleading the appellant and the 2nd respondent as party respondents to that petition and prayed that the election of the appellant from Sathur Constituency be declared void and further that the 2nd respondent be declared duly elected.

4. As Pillai who had retired from the contest on 21st February 1957, was not impleaded as a party respondent to this petition an objection was raised by the Election Commission on the score of his non-joinder. A notice was issued to the 1st respondent on 1st May 1957, calling upon him to show cause why the petition should not be dismissed summarily for non-joinder of one of the necessary parties and on 10th May 1957, the Election Commission by its order stated that it would be for the Election Tribunal to decide at the trial after hearing the parties if the issue of the non-joinder of Pillai as a respondent necessarily affected the prayer seeking that the 2nd respondent be declared duly elected. The Election Commission also discovered a defect in the deposit of Rs. 1,000 inasmuch as the proper and complete head of account had not been mentioned in the treasury receipt nor had the deposit been made in favour of the Secretary, Election Commission as laid down in S. 117 of the Act. This question also was left to the Tribunal to decide after hearing the parties, if the defect should be treated as fatal or one that could be cured by fresh deposit or otherwise so as to secure the costs of the appellant if eventually awarded to him. The Election Commission admitted the petition and a copy of the petition was published in the official gazette as required under S. 86(1) of the Act. It was also served on the appellant and the petition was referred to the Election Tribunal for trial.

5. On 22nd June, 1957, the appellant filed I. A. No. 1 of 1957 before the Election Tribunal asking for a dismissal of the petition as required by S. 90 (3) of the Act on the ground that the respondent had failed to join Pillai, who was also a contesting candidate, as a respondent. On the same day the appellant filed another application being I. A. No. 2 of 1957, before the Election Tribunal similarly asking for the dismissal of the petition inasmuch as the proper and complete head of account had not been mentioned in the treasury receipt which the 1st respondent had sent to the Election Commission and the deposit also had not been made in the name of the Secretary, Election Commission, as clearly and strictly required under S. 117 of the Act. The first respondent filed before the Election Tribunal I. A. No. 3 of 1957 asking for an amendment of t