GANPATSINGH Vs. BRIJMOHANLAL SHARMA

JUDGEMENT

(1.) BY his order dated the 15th of January, 1958, Shri Kishen Lal, Member Election tribunal, Ajmer dismissed the election petition of Shri Kalyansingh filed by him against Shri Brij Mohan Lal, Shri Kumaranand, Shri Ganpatsingh and four others on the ground of non-compliance of the mandatory provisions of Section 117 (1)of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act ). Shri Ganpatsingh has filed Appeal No. 20 of 1958 under Section 116-A of the Act. He has also filed a writ petition No. 88 of 1958 and has challenged the order of the tribunal dated the 15th of January, 1958 in both these proceedings. A preliminary objection was raised on behalf of Shri Brij Mohan Lal that Shri Ganpat-singh who had not filed the election petition but was merely a respondent in that election petition could not challenge the aforesaid order either by filing an appeal or by filing a writ petition.

(2.) THE election petition relates to the election of a member to the Rajasthan legislative Assembly from the Beawar constituency the polling of which took place on the 25th of February, 1957. In that election Shri Brij Mohan Lal, Shri kumaranand, Shri Ganpatsingh and Shri Bhagirath were the contesting candidates and Shri Kalyan-singh was the election agent appointed by Shri Kumaranand on the 13th of February, 1957. The counting of the votes took place on the 26th of February, 1957 and Shri Brij mohan Lal was declared elected. In the election petition the election of Shri Brij mohan Lal was challenged on various grounds which included the allegation that he had committed various corrupt practices mentioned in the petition. In addition to (his it was also prayed that Shri Kumaranand be declared elected.

(3.) IT is stated in the election petition that a deposit of security for a sum of Rs. 1000/- as required by Section 117 of the Act was made in the Government treasury, Beawar on the 4th of April, 1957 in favour of the Secretary, Election commission of India by the petitioner, the receipt of which was enclosed with the petition. The receipt that was enclosed was not on the original challan. The secretary, Election Commission, vide his letter dated the 17th of April, 1957, wrote to Shri Kalyansingh to forward the original challan for record at an early date. The original challan was obtained by Shri Kalyansingh from the State Bank of india, Beawar on the 14th of April, 1957 and was sent to the Election Commission which reached there on the 11th of May, 1957. The Election Tribunal appointed first Shri C. Jacob and later on his resignation, Shri Kishen Lal as the Tribunal and the case was tried by the latter. Preliminary objections to the maintainability of the election petition were filed by Shri Brij Mohal Lal and one another respondent to the election petition. Shri Brij Mohan Lal raised the objection that Shri Kalyansingh has not complied with the mandatory provisions of Section 117 of the Act and as such the election petition should be dismissed under Section 90 (3 ). On the 9th of November, 1957, the Tribunal passed the order that as it was of opinion that unless evidence was led to the effect that the proper compliance of treasury rules was not made and the challan was not properly filled in, it would not be expedient to decide the point off hand and on arguments only without taking evidence on that point. The tribunal, therefore, ordered that the objection would be decided when evidence is led by the parties. Thereafter written statement was filed by Shri Brij Mohan Lal on the 2nd of january, 1958 pleading inter alia that the application should be dismissed as the petitioner had not complied with the provisions of Section 117 of the Act. Recriminating petition under Section 97 had also been filed by him on the 13th of july, 1957 praying that Shri Kumaranand be held not entitled to any relief with respect to the claim for the seat in case it be necessary to decide that question and Shri Kalyansingh and Shri Kumaranand be disqualified from voting under section 151 of the Act. No written statement was filed by Shri Ganpatsing. As many as 18 issues were framed on the 2nd of January, 1958 and out of them issue No. 17 was as follows: -"did the petitioner not deposit and enclose a receipt as required by section 117 of the Rule P. A. ? If not, what is its effect? the parties wanted first to lead evidence on issue No. 17 and they were ordered to do so on the 9th of January, 1958 and it was further ordered that arguments will also be heard on that date. On the 9th of January, 1958, the petitioner Shri kalyansingh was absent. Shri D. D. Bhargava counsel for the petitioner was present. He reported that he had no instructions in the petition. Thereafter, Shri simlote, Sub Treasury Officer, Beawar was examined on behalf of Shri Brij Mohan lal who closed his evidence on issue No. 17. Shri Simlote was not cross-examined by any of the parties. Arguments were heard and the judgment was reserved to be pronounced on the 15th of January, 1958. On that date Shri Kalyansingh and his counsel were absent. On that day an application was filed by Shri G. P. Sharma counsel for Shri ganpatsingh that