BIREN ROY Vs. BEJOYESH MUKHERJEE

JUDGEMENT

(1.) This is an appeal from an order of Sinha, J., dated 11-2-1958 whereby the learned Judge discharged a Rule, issued by himself, on an application by the appellant under Article 226 of the Constitution of India.

(2.) The appellant was elected as a member of Parliament from the Calcutta South-West Constituency in the last General Election held in March, 1957. Soon after the election, an election petition was filed by two persons, named Kalipadi Banerjee and Anil Kumar Sadhukhan, who are respondents Nos. 2 and 3 before us and who challenged the appellant's election on the ground that the same had been secured by malpractices of various kinds. They prayed that the appellant's election as a member of Parliament from the Calcutta South-West Constituency might be declared void or, alternatively, that the whole election might be declared void.

(3.) The petition was opposed by the appellant on its merits as well as on a certain technical ground. It is only the latter which is material for the purposes of the present appeal. In paragraph 27 of his written statement he contended that the petition filed by the respondents Nos. 2 and 3 was liable to be dismissed in limine, inasmuch as the provisions of Section 117 of the Representation of People Act, 1951, had not been complied with by them. Although the objection was stated in the written statement in those general terms, the point actually canvassed before the Election Tribunal was that Section 117 had not been complied with and that it had been contravened, inasmuch as, instead of making a deposit of security for the costs of petition in favour of the Secretary to the Election Commission, the petitioners before the Tribunal had made the deposit in favour of the Election Commission itself.