BIREN RAY Vs. BEJAYES MUKHERJEE

JUDGEMENT

(1.) The petitioner was elected as a member of Parliament from the Calcutta South-West Constituency in the last General Election held in March 1957. On the 3rd May, 1957 an Election Petition was filed by two persons, namely, Kalipada Banerjee and Anil Kumar Sadhukhan, challenging the election of the petitioner. They are respondents Nos. 2 and 3 in this application. In the election petition, the said respondents prayed that the election of the petitioner in the last General Election as a member of parliament from the said Constituency be declared void and alternatively, for a declaration that the whole election was void. Section 117 of the Representation of the People Act, 1951, (Act 43 of 1951) lays down that the petitioner in an election petition 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 costs of the petition. What the respondents Nos. 2 and 3 did was to make the application, but to make the security deposit m the Reserve Bank of India in the name of the Election Commission. There is nothing before me to show that the security was refused or that it has been returned to the said respondents or that the Election Commission cannot deal with it. Section 85 of the said Act lays down that if the provisions of Section 81 or Section 82 or Section 117 have not been complied with, the Election Commission shall dismiss the petition. In this particular case the Election Commission did not dismiss the petition but left it for the Tribunal to decide whether it should be dismissed. Section 90 (3) provides that the Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 32 or Section 117, notwithstanding that it has not been dismissed by the Election Commission under Section 85.

(2.) The petitioner took an objection before the Tribunal which had been constituted to try the election petition (being the respondent No. 1 in this application), to the effect that the election petition should be dismissed in limine because the provisions of Section 117 of the said Act had not been complied with. The respondent No. 1 has held that there has been a substantial compliance with the provision of Section 117 of the Act and has dismissed the application. The petitioner has now come up to this Court and the Rule was issued on the 28th August, 1957 calling upon the respondents to show cause why a Writ in the nature of Mandamus should not issue directing the opposite party No. 1 to dismiss in limine the election petition of the opposite parties NOS. 2 and 3 and for other reliefs.

(3.) Mr. Acharyya appearing on behalf of the petitioner has argued as follows. He has drawn my attention to the Supreme Court decision in Jagan Nath v. Jaswant Singh. Mahajan, C.J., said there as follows: