NAND KISHORE PRASAD SINGH Vs. MEMBER ELECTION TRIBUNAL

JUDGEMENT

(1.) This application is made on behalf of Shri Nand Kishore Prasad Singh under Articie 227 of the Constitution against the order of the Election Tribunal of Patna, dated 10-2-1958, refusing to decide the preliminary issue whether the deposit of security money by opposite party No. 2, Shri Kaushalendra Prasad Narain Singh, had been validly made under Section 117 of the Representation of the People Act and whether the election petition-was liable to be dismissed under Section 90, Sub-section (3) of the Act for non-compliance of the provisions of Section 117.

(2.) It appears that on 24-4-1957, the opposite party No. 2, Sri Kaushalendra Prasad Narain Singh, filed an election petition before the Election Commission, New Delhi questioning the validity of the election of the petitioner. The Election Commission made the following order on 13-5-1957, on the election petition:

(3.) On behalf of the petitioner learned Counsel contended that the present case is governed by the decision of this court in the case of Harihar Singh v. Ganga Prasad Singh, 1958 Pat LR 11: (AIR 1958 Pat 287) (A) and also another decision of this Court in Sunder Singh v. Member, Election Tribunal, Misc. Judl. Case No. 686 of 1957, D/-7-2-1958 (Pat) (B:). On behalf of the opposite party No. 2 it was argued that in the present case a number of witnesses have been examined on behalf of both the parties and it would not be proper that the election petition should be dismissed on the preliminary ground under Section 90 (3) of the Representation of the People Act. We do not consider that the argument advanced by the learned counsel for the opposite party No. 2 is right. The legal position in this case is exactly the same as in the two other cases to which we have referred, namely 1958 Pat LR 11: (AIR 1958 Pat 287) (A) & Misc. Judl. Case No. 686 of 1957 (Pat) (B), where a precisely similar question of law was the subject-matter of consideration. We have discussed the relevant statutory provisions in those cases and have held that the provisions of Section 117 of the Representation of the People Act are mandatory in character & that the election petition ought to have been dismissed for failure to enclose a chalan with the particulars required by the section. In the present case the original chalan has been produced before us in the course of the hearing of the case and it is reproduced below: