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Civil Appeal No. 100 of 1953. Case: Jagan Nath Vs. Jaswant Singh Vs others. Supreme Court (India)

Judgment Cited in 59 Precedent Map Related
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Case NumberCivil Appeal No. 100 of 1953
CounselFor the Appellant: Shri N. C. Chatterjee, Senior Advocate (Shri A. N. Sinha, Advocate, with him) instructed by Shri N. H. Hingorani, Agent and For the Respondents: Shri S. P. Sinha, Senior Advocate (Shri R. Patnaik, Advocate, with him), instructed by Shri K. L. Mehta, Agent
JudgesMehr Chand Mahajan, C.J.I., B. K. Mukherjea, S. R. Das, Vivian Bose And Ghulam Hasan, JJ.
IssueElection, Representation of the People Act (43 of 1951) - Sections 80, 82, 90, 110, 115, 116 and Part VI; Civil Procedure Code (5 of 1908) - Section 9
CitationAIR 1954 SC 210, 1954 SCJ 257, 1954 (1) MadLJ 480, 1954 SCR 892, 1954 SCA 1111
Judgement DateJanuary 20, 1954
CourtSupreme Court (India)

Judgment:

Mahajan, C. J.

1. This is an appeal by special leave against the decision of the Delhi Election Tribunal dated 11th November 1952 in Election Petition No. 10 of 1952.

2. The appellant Jagan Nath was elected a member of the Delhi State Legislative Assembly from Constituency No. 25 (Roshanara) of the Delhi State. The polling in this constituency took place on the 14th January 1952. On the 26th April 1952 which was the last date under the law for the presentation of an election petition, Jaswant Singh (Respondent No. 1) presented such a petition before the Secretary of the Election Commission at New Delhi challenging the election of the appellant and contesting the order of the Returning Officer rejecting his nomination paper.

In the petition he impleaded as respondents, Brahma Sarup, Ram Prashad Poddar and the appellant, Jagan Nath, but he omitted to implead, as required by S. 82 of the Representation of the People Act, 1951, Baijnath, one of the candidates, whose nomination had been accepted but who had withdrawn his candidature subsequently.

3. On the 14th July 1952 the Election Commissioner appointed an Election Tribunal comprising Respondents 5 to 7. This appointment was published in the Gazette of India on the 26th July 1952 and the election petition after due publication was referred to the Tribunal. On the 26th August 1952 which was the first date of hearing before the Tribunal, the appellant raised a preliminary objection that the omission to implead Baijnath, a duly nominated candidate as a respondent in the petition was fatal to its maintainability. The petitioner contended that Baijnath was neither a necessary nor a proper party and that in any event the non-joinder of a party was not fatal to the petition in view of the provisions of Order I, Rule 9, C.P.C In the alternative, it was claimed that if it was considered that he was a necessary or a proper party, permission may be given to the petitioner to implead him.

4. The Tribunal decided the preliminary point in favour of the petitioner and held that the non-joinder of Baijnath as a respondent was not fatal to the petition. On the finding, however, that Baijnath was a proper party to be impleaded in the case, the Tribunal directed that he be added as a respondent in the petition and notice of the petition be served on him. In the view of the Tribunal Baijanath was not a necessary party in the sense that in his absence no effective decision could be given in the case and that being a proper party, there was no obstacle to his being joined as a respondent even after the expiry of the period of limitation prescribed for making the petition.

5. The appellant being dissatisfied with the decision, made an application to the Punjab High Court under Articles 226 & 227 of the Constitution of India for the issue of a writ of 'certiorari' quashing the order of the tribunal on the ground that it was without jurisdiction and for an order that the election petition be dismissed as there was no valid petition before the Election Tribunal for trial. This petition was summarily rejected by the High Court on the 27th November 1952. On a petition presented to this Court under Article 136 of the Constitution, special leave was granted by this Court.

6. In this appeal it was contended before us that the Election Tribunal was not a court of general jurisdiction, that it was established by the Representation of the People act, 1951 for the special purpose of trying election petitions, that its jurisdiction was derived from the statute upon certain specified terms and conditions precedent contained in the statute itself and that it has no general and inherent powers of an existing court and that being so, if the terms and conditions precedent prescribed by the stature were not complied with, it had no jurisdiction to act.

According to the appellant, the scheme of the Act was that no election could be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act (S. 80), and it was suggested that unless all the requirements of Ss. 81, 82, 83 and 117 were complied with, an election could not be questioned and that no subsequent addition or amendment of the petition after the expiry of the 14 days prescribed for presenting a petition was permissible.

It was further contended that the provisions of S. 82 were explicit and mandatory and admitted of no exceptions and the petition not being in accordance with the provisions of the law, there was no valid petition which the Tribunal could proceed to try. Lastly, it was contended that the provisions of the Code of Civil Procedure were applicable to the trial of petitions but could not be of assistance in determining whether a petition had been validly...

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