A.S. Subbaraj vs M. Muthiah and Others

Venkatarama Ayyar, J.—This is an application for the issue of a Writ of Prohibition directing the Election Tribunal, Tirunelveli, not to

proceed with the hearing of the Election Petition No. 71 of 1952.

At an election held on 16-1-1952 the petitioner A. S. Subbaraj was returned to the Legislative Assembly, Madras, from the Uttampalayam

Constituency. The first respondent Muthiah, who was one of the three unsuccessful candidates for the seat, filed on 27-3-1952 a petition u/s 81 of

the Representation of the People Act, hereinafter referred to as the Act, for setting aside the election. The Election Commission to which it was

presented appointed u/s 86 of the Act an Election Tribunal for the hearing of this petition. Notice of the same was served on the petitioner on 28-

9-1952. On 22-10-1952 when the petition came up for hearing before the Election Tribunal the petitioner raised a preliminary objection to its

maintainability on the ground that it was not duly verified as required by Section 83 of the Representation of the People Act, 1951, & was,

therefore, liable to be rejected ''in limine'' u/s 85 of the Act.

Section 83(1) of the Act runs as follows:

An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and

verified in the manner laid down in the Code of Civil Procedure, 1308 (Act 5 of 1903) for the verification of pleadings.

The provision of the CPC relating to verification is Order 6, Rule 15 which is as follows:

Order 6, Rule 15 (1):

Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties

pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what

he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which it was signed.

In the present case the petition was verified. But the verification stated generally that the facts mentioned therein were true to the knowledge and

information of the petitioner. It did not specify what he verified of his own knowledge and what upon information received and believed to be true.

Nor did the verification state when and where it was signed. It did not, therefore, comply with the prescriptions laid down in Order 6, Rule 15,

Civil P. C.

Section 85 of the Act provides that ""if the provisions of Section 81, Section 83 or Section 117 are not complied with, the Election Commission

shall dismiss the petition.

Basing himself on the language of Sections 83 and 85 of the Act the petitioner herein urged before the Election Tribunal that the Election Petition

was liable to be dismissed ''in limine'' for failure to comply with the requirements of Order 6, Rule 15 and that there was no jurisdiction in the

Tribunal to hear the petition.

To meet this objection, the respondent Muthiah filed on 3-11-1952 an application for permission to amend the verification so as to bring it in

conformity with the prescriptions laid down in Order 6, Rule 15. That was C. M. P. No. 1 of 1952. It was opposed by the petitioner herein on the

ground that the Tribunal had no power to direct amendment of the petition and that u/s 90(4) of the Act it had no option but to dismiss it.

Both these contentions were overruled by the Election Tribunal which held that Section 90 (4) gave it a discretion in the matter of dismissing the

Election petition for non-compliance with Section 83 and that it had also the power to permit amendment of the petition. It is against this order that

the present application for the issue of a Writ of Prohibition has been filed.

In this Court the argument for the petitioner proceeded on somewhat different lines. The contention that was mainly pressed by Mr. K. V.

Venkatasubramania Aiyar was that Section 85 cast a duty on the Election Commission to dismiss the petition on the ground that it was not in

accordance with Section 83, that its order wider Section 86 appointing an Election Tribunal for trial of the petition was in violation of the statutory

duty cast on it u/s 85, that in consequence it had no legal operation and conferred no jurisdiction on the Election tribunal to try the petition and that

this court should accordingly issue a Writ of Prohibition directing the Election Tribunal not to proceed with the trial.

It will be seen that this in its substance is direct ed not against the order in C. M. P. No. 1 of 1952, but against the action of the Election

Commission in not having passed an order of dismissal under S, 85 and in having appointed an Election Tribunal and transferred the petition to it

for trial. The question is whether that can be permitted to be done in these proceedings. This is not an application for the issue of a Mandamus to

the Election Commission to dismiss the election petition, nor for the issue of a Writ of Certiorari or other appropriate writ for quashing the order

tinder Section 86 directing the trial of the petition by the Tribunal; and even if any such writ had been applied for, this court would have had no

jurisdiction to issue it against the Election Commission which is at Delhi.

On behalf of the petitioner it is argued that though no relief is sought against the Election Commission in this petition, nevertheless, if as he contends

the Election Tribunal is not properly seized of the cause and has no jurisdiction to hear it, he is entitled to a writ of prohibition as a matter of right,

''ex debito justitiae'' and. he quoted the decisions in -- ''Martin v. Mackonochie'', (1878) 3 QBD 730 (A); -- ''Meckonochie v. Penzance'', (1881)

6 AC 424 (B), -- ''Worthington v. Jaffries'', (1875) LR 10 CP 379 (C), -- ''Farquharson v. Morgan'', (1894) 1 QB 552 (D) and -- ''Rex v.

North; Ex parte Oakey'', (1927) 1 KB 491 (E), in support of this contention. It is unnecessary to discuss these decisions in detail because the

position is well-settled and is thus summed up in Halsbury''s Laws of England, Vol. 9, page 819, para 1398: ""With certain exceptions, the issue of

the writ of prohibition, though not of course, is of right and not discretionary, and the superior court cannot reluse to enforce public order in the

administration of the law by the denial of a grant of the writ; smalmess of the matter in dispute and delay on the part of the applicant are not

themselves grounds for refusal."" The decision in ''Re London Scottish Permanent Building Society'', (1893) 63 LJ QB 112 (P) was particularly

relied on as apposite to this case. There, in the course of winding up of building society a shareholder who had withdrawn his membership applied

for the refund of his share money. The Judge referred the claim to the determination of an arbitrator in spite of the opposition of all the parties

concerned. One of the questions raised in the case was whether a writ of prohibition could be issued in respect of this matter. In holding that there

was an excess of jurisdiction and the writ should accordingly issue. Charles J. observed:

It is extremely difficult to distinguish sometimes between what is excess of jurisdiction & what (is) mere irregularity of procedure. Clearly

prohibition will not lie for mere Irregularity of procedure; that is the whole purport of Lord Justice Thesiger''s judgment on that point. But where a

tribunal contrary to law is constituted by a Judge where he confers on another without statutory authority the right to deal with a subject matter,

though in his (the Judge''s) jurisdiction, I am of opinion that that is acting in excess of and absolutely without jurisdiction, and is therefore a ground

for prohibition.

The argument of Mr. K. V. Venkata-subramania Aiyar for the petitioner is that in the same manner if the Election Commission was under a duty

to dismiss the petition u/s 85 of the Act, the constitution of a Tribunal and the transfer of a petition for trial to it u/s 86 would be in excess of its

jurisdiction and that a Writ of prohibition should issue against the hearing of the petition by the Election tribunal.

This contention should, in my opinion, fail firstly because on its true construction Section 85 does not make it imperative on the part of the

Election Commission to dismiss the Election petition for defective verification and secondly whatever might be the powers of the Election

Commission u/s 85, when once the matter comes before the Tribunal, it is thereafter governed by Section 90 (4) and under this section the

Tribunal has a discretion in the matter of dismissing the petition for non-compliance with the requirements of Section 83.

On the first question the petitioner strongly relies on the language of Section 85 that the ""Election Commission shall dismiss the petition."" These

words are in form undoubtedly mandatory. But, it is well settled that though the words in a statute should be construed in their ordinary natural

sense, nevertheless a reading, of the enactment as a whole might indicate that that sense was not what was intended by the Legislature. Halsbury

states the position thus:

Upon the principle that the ordinary sense of enacting words is primarily to be adhered to, provisions which appear on the face of them to be

imperative cannot without strong reason be held to be directory.....Broadly speaking, it may be said that powers conferring Jurisdiction on a

judicial body, provisions as to time in regard to procedure, and generally in public statutes, enacting words where the thing to be done is for the

public benefit or in advancement of public justice, must be taken to have a compulsory force. On the other hand, statutes conferring private rights,

or prescribing that certain things are to be done within a certain time, time not being of the essence, or ''in a certain manner'', or by those whose

action the person invoking the aid of the statute is unable to control, are usually directory only."" (Volume 31 pp. 529-530 paragraph 692).

Thus in -- ''Jones v. Robson'', 1901 1 QB 673 (G), Section 6, Coal Mines Regulation Act, 1896 provided that a secretary of State may by order

prohibit the use of explosives and notice thereof shall be given in such manner as he may direct. The order was passed but no notice was given. It

was held that the provision as to notice was only directory and did not affect the validity of the order.

In -- ""The King v. Lincolnshire Appeal Tribunal; Stubbins ex parte'', (1917) 1 KB 1 (H), it was held that the requirements of the statute as to the

form of the notice of appeal were not mandatory, even though the statute provided that such notice shall be served on the opposite side.

In -- Tirumala Reddi Chinnappa Reddi Vs. Kolakula Thomasu Reddi and Another, , where the question was whether the word ""shall"" in Section

43, Provincial Insolvency Act was mandatory or directory, Kumaraswami Sastri J. observed as follows:

The word ""shall"" in its ordinary signification is mandatory though there may be considerations which influence the court in holding that the intention

of the Legislature was to give a discretion.

In -- ''Madangopal v. Bhagwandas'', 11 All 304 (J), the word ""shall"" in Section 64(b) of the CPC was construed as directory and not as manda-

tory. In -- ''Pandurang v. Ramachandra'', AIR 1830 Bom 554 (K), a provision that a notice of 14 days shall be given for a meeting was held to be

directory rather than mandatory. It must, therefore, be taken that the use of the word ""shall"" is not conclusive and that the intention of the

Legislature must be gathered on a reading of the enactment as a whole. Now, there are three provisions in the statute which are material as

reflecting the legislative mind. They are the proviso to Section 35, Section 83(2) and Section 90 (4). The proviso to Section 85 is as follows:

Provided that, if a person making the petition satisfies the Election Commission that sufficient cause existed for his failure to present the petition

within the period prescribed therefor, the Election Commission may, in its discretion, condone such failure.

Under the proviso the Election Commission would have acted within its powers if it had received a new petition duly verified and excused the

delay in presentation on the ground that a petition, though defective in form had been presented in time. Taking the matter one step further, the

Election Commission could have permitted the verification to be amended and treated the petition as presented on the day of amendment and

excused the delay in presentation. If even a delay in presentation can be excused under the proviso, it is difficult to believe that the Legislature

intended that a defective verification should be fatal to the life of the Election Petition. Coming next to Section 83(3) it is as follows:

The Tribunal may, upon such term as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be

amended or other such further and better particulars in regard to any matter referred to therein to be furnished as may in its opinion, be necessary

for the purpose of ensuring a fair and effectual trial of the petition.

This provision comes into operation after the petition conies up before the Election Tribunal by transfer u/s 86. It will be noticed that u/s 83(2) the

election petition should be accompanied by a list giving full particulars and signed and verified in the manner laid down in the Civil Procedure Code.

If that is not done, the petition is liable to be dismissed u/s 85. The particulars in the list are of the very essence of an election petition; they furnish

the real ground for attack on the merits and they are also required to be verified like a plaint. If the Legislature considered that even particulars

could be amended, it is difficult to believe that they regarded a defective verification as incurable and fatal to the maintenance of the application.

Then comes Section 90 (4) which is as follows:

Notwithstanding anything contained in Section 85, the Tribunal may dismiss an election petition which does not comply with the provisions of

Section 81, Section 83 or Section 117.

The language of this provision is clearly directory; it does not impose a duty on the Election tribunal to dismiss the petition; it confers on it a power

to dismiss it at its discretion. If it is mandatory with the Election Commission to dismiss the petition u/s 85 for defective verification, Section 90(4)

should consistently have enacted that the Election tribunal should do what the Election Commission was under a duty to do and dismiss the

application. But the fact that the tribunal is given a discretion in the mat ter goes far to support the view that Section 85 should not be construed as

mandatory.

It is argued for the petitioner on the basis of the well known observations of Earl Cairns L. C., Lord Penzance & Lord Blackburn in -- ''Julius v.

Bishop of Oxford'', (1880) 6 AC 214 (L), that in certain circumstances the word ""may"" can be construed as meaning ""shall"" and that having regard

to the use of the word ""shall"" in Section 85 the word ""may"" in Section 90(4) which deals with the same subject matter should also be construed as

meaning ""shall"". This argument ignores the words ""notwithstanding anything contained in Section 85"" which clearly show that ""may"" in Section 90

(4) means only ""may"".

The importance of this provision consists in this that the Legislature contemplates that petitions which are liable to be dismissed on the strict

wording of Section 85 might not be so dismissed and might come up before the Tribunal and what is enacted is that at that stage the petition should

be not liable to be dismissed as a matter of course. This affords a complete answer to the contention of the petitioner that if a petition does not

comply with the requirements of Section 83, the Election commission has no option but to dismiss it and that an order passed u/s 86 appointing an

election Tribunal and transferring the petition to it for trial cannot give life to the petition or confer jurisdiction on the tribunal to try it. The

cumulative effect of the three provisions Section 85 proviso, Section 83(3) and Section 90 (4) is to lead to the conclusion that it is not mandatory

on the part of the Election commission to dismiss the petition and that the words ""shall dismiss"" should be construed as meaning ""shall nave the

power to dismiss.

This conclusion is in accordance with the authorities under Order 6, Rule 15, Civil P. C. which by force of Section 83(1) has been made

applicable to election petitioners -- that defective verification is a mere irregularity and does not affect the jurisdiction of the court to entertain the

suit, notwithstanding that the rule provides that the verification ""shall"" be in the manner prescribed therein. In -- ''Rajitram v. Kateswarnath'', 18 All

396 (M), the Full Bench of the Allahabad High Court observed as follows: ""It would be difficult to imagine any case in which a defective

verification of a plaint could affect the merits of the case or the jurisdiction of the Court.

In -- ''Basdeo v. John Smidt'', 22 All 55 (N), the learned Judges quoted with approval the following passage from Mr. Venfleet''s Law of

Collateral Attack on Judicial proceedings:

The Statutes require many kinds of petitions to be verified. This includes generally all complaints and petitions in special proceedings, the bill in

equity, the libel in admiralty and in some States, the complaint or petition in all cases. Such verification adds no allegation to the pleading & tenders

no issue. Its only object is to show the good faith of the petitioner. .. Like any other formal matter its absence is waived by a failure to object. And

if its entire absence does not affect the Jurisdiction, of course, mere defects in it cannot.

The decisions under Order 33, Rules 2 and 5 are even more directly applicable to the present case. Order 33, Rule 2 provides that every

application for permission to sue ''in forma pauperis'' shall be signed and verified in the manner prescribed for the signing and verification of

pleadings and Order 33, Rule 5 provides that the court shall reject an application for permission to sue as a pauper when it is not framed in the

manner prescribed by Rule 2.

These provisions thus correspond to Section 83(1) and Section 85 of the Act. The authorities on Order 33, Rules 2 and 5 clearly establish that

before exercising the power of dismissal under Order 33, Rule 5, the Court should give an opportunity to the party to amend the petition and that

the order of dismissal should follow only when there is thereafter a failure to amend. Vide -- Piare Lal Vs. Bhagwan Das and Another ''Ma Yon v.

Ma Sawe Thin'', AIR 1933 Rang 410 (P) and -- AIR 1937 108 (Nagpur) . It is true that there is no express provision in the Act conferring any

power on the Election commission to permit amendment. But such a power is inherent in all bodies exercising judicial functions. That amendments

can be allowed by courts under their inherent powers when there is no express statutory provision providing for it has been recognised in a number

of decisions u/s 161, Civil P. C. It will be consistent with these authorities to hold that the Election commission has inherent jurisdiction to permit

the necessary amendments in the election petition so as to make it conform to the requirements of Section 83 & that the powers of dismissal u/s 85

is intended to be exercised only if there is failure to amend after being required so to do. In that view the failure of the Commission to get the

verification formally amended is a mere irregularity and does not affect either its power to appoint an Election tribunal u/s 86 and transfer the

petition to it for trial or the jurisdiction of the Election tribunal to hear it. In this view, no writ of prohibition can issue.

Even if I agreed with the contention of the petitioner that the only jurisdiction which the Election Commission possessed under the Act was to

dismiss this petition u/s 85, I should still bold that it did not affect the jurisdiction of the Election tribunal to proceed with the trial. When once the

matter comes before it u/s 86, thereafter the powers of the Election tribunal are those which are conferred on it by the statute and such powers are

not controlled by the limitations on the power of the Election commission under the Act. The Election Tribunal is in no sense a body subordinate to

the Election commission; it is no doubt nominated by the Election commission u/s 86 but it does not derive its powers from the Election

Commission arid the Election tribunal (Sic). Both are two Independent bodies operating in the same field but at different stages and with different

powers. It has been already seen that u/s 90(4) what is conferred on the Election tribunal is a discretionary power to dismiss the petition for non-

compliance with Section 83 and that that power is ""notwithstanding anything contained in Section 85"". It is impossible to contend in the face of this

provision that the Election tribunal had no jurisdiction to hear the petition, assuming that the petition was one which was bound to have been

dismissed by the Election commission. I am, therefore, of opinion that the Election tribunal has jurisdiction to try the election petition, even though

the verification was defective and that in consequence no writ of prohibition can be issued.

It was next argued that even if the Election tribunal had jurisdiction to entertain the petition, it had no jurisdiction to order an amendment and that

in the absence of an amendment, the only order that could be passed u/s 90 (4) was one of dismissal. The relevant provisions bearing on this

question are Section 90 (2) and Section 92. Section 90 (2) enacts that

subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the tribunal, as nearly as may be, in

accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act 5 of 1908) to the trial of suits"", and Section 92 enacts

that

The tribunal shall have the powers which are vested in a court under the CPC 1908 (Act 5 of 1908) when trying a suit in respect of the following

matters

and those matters are enumerated. The contention on behalf of the petitioner is that the word ""trial"" in Section 92 will be inapplicable to amendment

of the petition and that the only provisions of the CPC which are applicable to the proceedings before the Tribunal are those specifically mentioned

in Section 92; and as Order 6 Rule 17 providing for amendment is not one of them, the Tribunal had no power to order an amendment.

The answer of the respondent to this contention is that though ""trial"" might be understood as meaning only the actual hearing of the petition, that

was not the sense in which it was used in the Act; that Section 90 (3) finds a place in Chapter III Part 6 which is headed ""trial of election petitions"",

that the enumeration of certain powers in Section 92 is illustrative and not exhaustive and that the Tribunal had, therefore all the powers which a

court has to order amendment. The question whether Order 6 Rule 17 Is as such applicable to proceedings before the Election tribunal is not free

from doubt.

It will be noticed that Section 83(3) permits only amendments of particulars included in the list or the inclusion of better particulars in regard to any

matters referred to in the list and that would seem to negative a general power of amendment which the Civil Courts possess under Order 6, Rule

In the ''Lahore City case (Hammond''s Indian Election Petition Volume I, pages 148-149)'' it was held that Order 6 Rule 17 was applicable,

but that related only to amendment of particulars. In the ''Amritsar City case (Hammond''s Indian Election Petition, Volume II, pages 26-27)'' It

was held that there was no general power of amendment under Order 6 Rule 17. It is unnecessary to go into this question as the amendments

ordered in this case are of a formal character and as already stated every Tribunal has Inherent jurisdiction to permit clerical and formal

amendments. The Election Tribunal has exercised a sound discretion in permitting the verification to be amended as required by Order 6 Rule 15

and its order is eminently reasonable and just.

There are no grounds for issuing a Writ of Prohibition and this application must be dismissed with costs of the first respondent. Advocate''s fee

Rs. 250.