BROJO GOPAL DAS Vs. KALIPADA BANERJEE

JUDGEMENT

(1.) THESE three appeals are directed against the declaration, granted by an Election Tribunal, that a certain parliamentary election is void. The respective appellants are Sri Brojo Gopal Das, and Sri Nirmal Chandra Das, two or the persons who were substituted under Section 116 of the Representation of the People Act, 1951, in place of the original contesting respondent before the Tribunal, namely, Sri Biren Roy, who was the successful candidate at the above election, upon the latter's retirement from contest, and the said Biren Roy himself is the appellant in the third or the other appeal.

(2.) THE proceedings had had a chequered career before the Tribunal and they were lively and interesting and the questions that arose for consideration bad also their own peculiar difficulties and interest.

(3.) ON 3 -5 -1957, the first two respondents of the present appeal, namely, Kalipada Banerjee and Anil Kumar Sadhukhan, who 'at all material times, were citizens of India and residents of Calcutta' within the above Constituency and 'were electors of the same and entitled to vote' at the above election, applied before the Election Commission, New Delhi, for a declaration that the above election, namely, of Sri Roy, was void on certain grounds, of which the relevant ones will be duly noticed and referred to in the course of this judgment. The application (petition), in which originally all the three candidates, the successful Roy as well as the two defeated candidates Dutta and Mukberjee, were made parties as respondents, was registered as Election Petition No. 439 of 1957, and, after, the necessary preliminaries, it was forwarded by the Chief Election Commissioner, and sent for trial to Sri Bijoyesh Mukherjee, Additional District Judge, 24 -Parganas, who had meanwhile been constituted the Tribunal for the purpose under Sec. 86 of the Representation of the People Act, 1951. That was in June, 1957, and the first date of appearance of the parties before the Tribunal was fixed as 18 -7 -1957. On or before that date, the first two respondents, Roy and Dutta. duly appeared before the Tribunal and, on the 25th following, the Tribunal, by its order of that date, held that, in view of the fact that the only prayer of the petitioners in their instant election petition was for a declaration that the above election, namely, of Biren Roy, was void, Roy - - and none else, - -was the necessary and proper respondent and directed that the names of Sri Dutta and Sri Mukherjee should be struck off. The Tribunal also overruled the technical objection of respondent Roy to the maintainability of the instant election petition on account of deposit of the security for costs (Rs. 1,000/ -) in the name of Election Commission, New Delhi, instead of in the name of the Secretary to that Commission in literal compliance with Section 117 of the Act, holding, inter alia, that there was substantial compliance with the said provision and such substantial compliance was sufficient under the law. The proceedings then continued against the sole respondent Biren Roy and, after the preliminary steps had been taken by the parties, the hearing actually commenced on 25 -4 -1958. Between that date and 9 -5 -1958. nine witnesses, P. Ws. Nos. 1 to 9. were examined by the petitioners, of whom two (P.Ws. Nos. 4 and 9) were examined in part during the said period. In the meantime, the Tribunal's order, regarding the validity and sufficiency of the deposit, had been upheld by this Court in a proceeding under Article 226 of the Constitution and the respondent Roy had applied before the Election Commission for transfer of the instant case to some other Tribunal.