1. This Special civil application raises an important question under Section 82 of the Representation of the People Act, 1951, and the question arises in this way.
2. An election to the Bombay Legislative Assembly from an Assembly Constituency known as the Karad North Assembly Constituency was to be held on 2-5-1957. Before 29-1-1957 five candidates including the present petitioner and the second respondent had filed their nomination papers and 29-1-1957 was the last date for filing nominations. All these nominations were scrutinized and accepted by the Returning Officer as valid nominations on 1-2-1957. It appears that one of the five candidates withdrew his candidature before the date fixed for withdrawal and then the Returning Officer published a list of contesting candidates under Section 38 of the Representation of the People Act. There is HO dispute that that list included the names of the petitioner, the second respondent and two other candidates viz., Mahomed Abdulla Awate and Ali Suleman Mulla. Mahomed Abdulla Awate and Ali Suleman Mulla, however, retired from the contest on or about 15-2-1957 and this was in accordance with Section 55A of the Act. They gave notice to the Returning Officer about their retirement from contest. The election was held on 2-3-1957 and the result of the election was declared on 4-3-1957. The result of the election was that the petitioner became successful in the election, having obtained 25,297 votes as against 23,671 votes obtained by the second respondent.
3. On 16-4-1957 the second respondent filed a petition before the Election Commission of India and it was numbered as petition No. 8 of 1957. By the petition, the second respondent charged the petitioner with corrupt and illegal practices committed by the petitioner and other persons during the said election. In the said petition the second respondent also complained of material irregularities and illegalities which, according to the second respondent, materially affected the result of the election. Further, he complained of non-compliance with the provisions of the Constitution, the Representation of the People Act, 1951, and the rules and the orders made thereunder. The second respondent", therefore, claimed a declaration that the said election of the petitioner was void and that the second respondent be declared as duly elected.
4. The petitioner filed a written statement to this petition and in paragraph 3 of the written statement it was stated:
"The Respondent further submits that the Petitioner, in addition to claiming a declaration that the election of the Respondent is void, claims a further declaration that he himself has been duly elected. Hence it was incumbent upon him to join as Respondents to his petition the other two contesting candidates, namely the said Awate and Sri Mullah. The Respondent, therefore, submits that the petition should be dismissed in limine under Section 80(3) read with Section 82(a) of the Representation of the People Act, 1951 on account of the said nonjoinder of the necessary parties".
5. The election tribunal appointed to deal with this petition made an order, holding that it was not necessary for the second respondent to join those two persons as respondents to the petition. He took the view that the provisions of Section 82 were complied with in the case and that the tribunal could not dismiss the election petition under Section 80(3) of the Act. It is the correctness of this order which has been challenged on this petition made under Articles 226 and 227 of the Constitution of India.
6. Upon this petition Mr. Chari appearing for the second respondent has raised a preliminary objection and the objection taken by him is that the order made by the election tribunal is an interlocutory order and the order being an interlocutory order, this petition is not maintainable. It was contended that the petitioner had a remedy under Section 116A of the Act. Section 116A which provides for an appeal, by Sub-Section (1), says:
"An appeal shall lie from every order made by a Tribunal under Section 98 or Section 99 to the High Court of the State in which the Tribunal is situated".
Now, the order which has been made by the election tribunal is that the election tribunal has come to the conclusion that the preliminary objection raised by the petitioner fails. It is not in dispute that no appeal can be preferred from this order under Section 116A. In the petition filed by the petitioner he has averred that "the allegations made in the said election petition are very voluminous and will require a great deal of expense and time and energy of the parties and of the Tribunal which will be a sheer waste if in law the Tribunal is bound to dismiss the said petition". Now, if the provisions of Section 82 are not complied with, then the consequence is mentioned in Section 80 which, by Sub-section (3), provides:
"The Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117 notwithstanding that it has not been dismissed by the Election Commission under Section 85".
If the objection raised by the petitioner is wellfounded, the objection goes to the root of the matter and if the petitioner is right, then in that event the provisions of Section 80(3) will come into operation, because if the provisions of Section 82 are not complied with, the consequence is that the Election Tribunal is bound to dismiss the petition under Section 80(3). It may also be mentioned that although Mr. Chari raised the preliminary objection, he did not seriously pursue it and, in our view, he was well within his rights in doing so. Therefore, the preliminary objection which has been raised is not of much substance and must, therefore, be disallowed.
7. Now, turning to the merits of the matter, it will be convenient first to understand the scheme underlying the Representation of the People Act, 1951. Now, the Act was passed in the year 1951 and was, it appears, amended twice. It was amended by Act LXVII of 1951, which is called the second amendment Act. It was also amended in 1956, the main Act being amended by Act XXVII of 1956 and we are concerned in this proceeding with the Act of 1951, as amended in 1951 and in 1956. Looking at the Act, it would appear that the Act is divided into several parts. Part I is preliminary. Part II deals with qualifications and disqualifications for membership. Part III deals with notification of general elections. Part IV deals with administrative machinery for the conduct of elections. Part V deals with conduct of elections. Part VI deals with disputes regarding elections. Part VII deals with corrupt practices and electoral offences. Part VIII deals with disqualifications. Part IX deals with bye-elections. Part X is said to be miscellaneous, while Part XI is described as general. In this petition we are mainly concerned with Part V and Part VI. Part V itself is divided into several chapters with separate headings. Chapter I deals with nomination of candidates and in the group of sections falling within Chapter I, we will have to look at Sections 30, 31, 36, 37 and 38. Chapter II deals with candidates and their agents. We will be particularly concerned with Sections 46 and 47. Chapter III deals with general procedure at elections and here we will be concerned with Sections 52, 53, 54 and 55A. Chapter IV deals with the poll and in this petition we will be concerned particularly with Section 56. Chapter V is concerned with counting of votes and we will have occasion to refer to Sections 66 and 67. The next Chapter is Chapter VI. It deals with multiple elections and there is no section, in particular, to which there will be an occasion to refer, but we will be concerned with the next Chapter which is Chapter VII and in this application we will be concerned with Sections 77 and 78. Part VI, as I said, deals with disputes regarding elections and Chapter I of that part contains Section 79 which is a definition section. Chapter II deals with presentation of election petition to Election Commission and here we will be concerned with Sections 80, 81, 82 and 84. Chapter III is concerned with trial of election petitions and hero we will be concerned principally with Sections 80, 97, 98, 100 and 101. Then Chapter IV deals with withdrawal and abatement of election petitions. There is no Section to which particular reference may have to be made so far as this chapter is concerned. Then Chapter IV-A deals with appeals and I have already referred to Section 116A which occurs in this Chapter. Then there is Chapter V and reference may have to be made to Section 119. Part VII, to which reference has been made already, has a Section which is Section 123 which deals with corrupt practices. It will be, therefore, necessary to refer to some of these Sections in some detail.
8. Now, in the case of an election there are certain setps to be taken until the poll is taken. In the first place, there is an announcement about the holding of an election. This is followed by nomination of candidates. After the nominations are made, a scrutiny of the nominations is held. After the nominations are scrutinized, a list of validly nominated candidates is prepared. After the list of validly nominated candidates is prepared, there is a stage of withdrawal enabling a candidate to withdraw his candidature. After the withdrawal, if any, a candidate may retire from contest and finally, there is the poll. Indeed, an election is one continuous process involving these steps. In this connection, I may refer to what has been pointed out in the case of Shankar v. Returning Officer, Kolaba,
(A). With regard to the expression "election", it was stated as follows:
"The expression "election' in Article 329(b) of the Constitution of India bears a wider meaning than the very limited restricted meaning of the result of an election or the counting of votes. 'Election' has the same meaning as the expression used in Articles 327 and 328, viz., matters relating to or in connection with election. Therefore nomination of candidates, scrutinizing of nominations, and decisions as to whether a nomination paper is valid or not, are all part and parcel of an election.
'Election' is not merely the ultimate decision or the ultimate result. 'Election' is every stage from the time the notification is issued till the result is declared, and even perhaps if there is an election petition till the decision of the Election Tribunal. It is one whole continuous integrated proceeding and every aspect of it and every stage of it and every step taken in it is a part of the election, and what is prohibited by Article 329(b) is the calling in question any one aspect or stage of the election. The expression 'except by an election petition' in the article does not point to the period when it can be called in question; it rather points to the manner and the mode in which it can be called in question; and Article 329(b) provides that the only way any matter relating to or in connection with an election can be called in question is by an election petition, which could be presented to such authority and in such manner as may be provided for by law passed by the appropriate legislature."
It may be observed that in this case the Court was considering Article 329(b) of the Constitution of India. But, in our view, what has been stated in that case with regard to election, may well apply to an election contemplated under the Representation of the People Act, 1951.
9. The principal question which arises for decision is as regards the proper construction of the I expression "all the contesting candidates" occurring i in Section 82(a) of the Act and for the sake of convenience, I propose to reproduce at this stage Section 82 as one finds it in the Act:
"A petitioner shall join as respondent to his petition :
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, ail the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition." Now, Section 82 is preceded by Section 80 and Section 80 provides :
"No election shall be called in question except by an election petition presented in accordance with the provisions of this Part."
At the outset, it may be observed that the expression "contesting candidates" has not been defined in the Act. It may be pointed out that there is a definition Section and certain definitions are given in Section 2. One of the definitions is the definition of the expression "election" and it means an election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State Other than the State of Jammu and Kashmir or in the electoral college of a Scheduled Part C State. There are also certain Sections which give certain definitions. For example, section 9 is an interpretation Section avid there are two definitions given in that section, but the interpretation is for the Chapter in which Section 9 occurs. Therefore, the two definitions given in section 9 are definitions for the purpose of the Chapter in which the particular Section occurs. Then there is another definition Section which is Section 19. Now, that Section defines the expression "constituency," but the definition is to apply so far as Part IV and Part V are concerned. After this, there is Section 79 which is also a definition section. Section 79 gives definitions including the two : (1) "candidate" and (2) "returned candidate." I will refer to these two definitions a little later. It is, therefore obvious that while Section 2 is an interpretation Section as being applicable to the whole of the Act, Sections 9, 19 and 79, which are the other definition sections, are to be confined to the particular Parts in which those Sections occur, and it is curious that there is no definition of the expression "contesting candidates" to be found in the Act. However, the expression "contesting candidates" occurs in several Sections of the Act and before I refer to these sections, I may first, refer to Section 30. Section 30 deals with appointment of dates for nominations and the Section deals with five different stages. Under Clause (a) of section 30 the last date for making nominations is fixed. Under Clause (b) the date for the scrutiny of nominations is fixed. Under Clause (c) the last date for the withdrawal of candidatures is fixed and under Clause (d) the date or dates on which a poll shall be taken is or are fixed. Lastly, under Clause (e) the date, on which the election shall be completed, is fixed. It is clear, therefore, that these are several steps which occur in the process of an election or these are the several stages which lead to an election. First of all, Section 32 deals with nomination of candidates for election. Then section 35 deals with notice of nominations and Section 36 deals with scrutiny of nominations. Section 36, by Sub-section (8), provides :
"Immediately after all the nomination papers have been scrutinted and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board."
Therefore, under Section 36 nominations are to be scrutinized and after the nonimotions are scrutinized, the Returning Officer has to prepare a list of validly nominated candidates and the list of validly nominated candidates is described as the list of candidates whose nominations have been found valid. After the nominations are scrutinized, there is a stage for withdrawal and that is the state where a candidate is afforded an opportunity to withdraw his candidature within the time specified under Section 30(c). The position, therefore, is that after the nominations are received, the Returning Officer scrutinizes the nominations. Having scrutinized the nominations, he prepares a list of validly nominated candidates. Then, if a candidate withdraws his candidature within the time specified under Section 30(c), then under section 38, it is the duty of the Returning Officer to prepare and publish in such form and manner as may be prescribed a list of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period. It is clear, therefore, that after giving an opportunity to a candidate to withdraw hit, candidature, the Returning Officer's duly is to prepare and publish a list of contesting candidates and it is in Section 38 for the first time that one notices the expression "contesting candidates" as used in the Act. As I have already pointed out, the expression "contesting candidates" is not defined in the Act. But, if one may say so, Section 38 explains or describes the expression "contesting candidates" as "candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period." One of the questions argued was whether Section 38 defines the expression "contesting candidates." Mr. V. Section Desai contended that Section 38 defined the expression "contesting candidates." We are unable to accept this contention for two reasons. Firstly, if the Legislature wanted to define the expression "contesting candidates," it was not difficult for the Legislature to have done so either in Section 2 of the Act or if it was not done in Section 2, to define the expression "contesting candidates'" in some other section of the Act, just as the Legislature has defined particular expressions occurring in the Act, as for example, the definitions given in Sections 9, 19 and
79. In our view, therefore, what Section 38 does is not to define the expression "contesting candidates" but merely to explain it or to describe it. The meaning of the expression "that is to say" may be had from Stroud's Judicial Dictionary, 3rd edition, p. 3007, where the learned Author says :
"That is to say is the commencement if an ancillary Clause which explains the meaning of the principal Clause. It has the following properties : (1) it must not be contrary to the principal Clause; (2) it must neither increase nor diminish it; (3) but where the principal Clause is general in terras it may restrict it."
Here, the expression "that is to say" which occurs after the words "contesting candidates'' describes what ''contesting candidates" means and, that is, candidates whose names are to be found in the list of validly nominated candidates and who have not withdrawn their candidature within the period specified. Mr. Desai has referred to several Sections in which this expression occurs. He, first of all, referred to Section 46 which deals with appointment of polling agents. That Section commences with the words "a contesting candidate." This expression occurs also in Section 47 which deals with appointment of counting agents and the Section opens with the words "a contesting candidate." The expression "contesting candidate" also occurs in Section 52 which deals with death of candidate before poll. The expression also occurs in Section 53 and in Section 54. It occurs in Section 55-A(2) which deals with retirement from contest. It is referred to also in Section 78 and that Section opens with the words "every contesting candidate at an election." Then the expression occurs in Section 82 and it is the expression "all the contesting candidates" which has given rise to a great deal of controversy. As to the expression "all the contesting candidates" two interpretations may be suggested. One interpretation is that the expression ' all the contesting candidates" means all the candidates who took part in the contest at the poll. The other interpretation is that the expression "all the contesting candidates" means all those who took part in the contest at the poll and also those who may have under Section 55-A retired from the contest. To put it in different language, one may say that the expression "all the contesting candidates" means not merely those candidates who contested at the election but also those candidates who contested for the election. Section 82 occurs in Part VI which deals with disputes regarding elections and it occurs in Chapter I. Chapter I of Part VI begins with section 79 which is a definition section. Curiously, however, there is a definition of the expression "candidate" in Section 79(b) and there is also a definition of the expression "returned candidate" in section 79(f). It would seem to be remarkable that there is no definition of the expression "contesting candidate" in Section 79. Section 82 obviously embraces two categories of persons. The genus is the candidate and the species are (1) 'a contesting candidate' and (2) 'a returned candidate'. The maintainability of the petition depends upon whether the petitioner claims one declaration or both the declarations. Now, an election petition may be presented at the instance of an elector or at the instance of a candidate at on election. In an election petition the petitioner, whether he is an elector or a candidate at an election, may ask for one declaration or he may ask for two declarations. The declarations which a petitioner may claim are to be found in Section 79: (1) a declaration that the election of all or any of the returned candidates is void and (2) a declaration that the election of all or any of the returned candidates is void and that the petitioner or any other candidate has been duly elected. It is obvious, therefore, that in interpreting Section 82, one has to see as to whether the petitioner has claimed one declaration or has claimed two declarations. If the petitioner has asked only for a declaration that the election of all or any of the returned candidates is void, it is sufficient if the petitioner joins to his petition as respondents all the returned candidates, which obviously means all the successful candidates at the election. But if the petitioner is not satisfied with this declaration only but, in addition, claims a further declaration that the petitioner himself or any other candidate has been duly elected, he is required to join to his petition all the contesting candidates and the provision is mandatory, because Section 82 begins with the words: "A petitioner shall join as respondent to his petition..........." It is obvious, therefore, that the provision is mandatory and where the provision in relation to the joinder of parties is not strictly complied with, the consequence is mentioned in section 80(3) which says that the Tribunal shall dismiss an election petition which does not comply with the provisions, among others, of Section 82. When the expression "contesting candidates" has not been defined in the Act, the task of interpretation is by no means easy. Once the expression is defined in the interpretation section, it is possible to apply the definition to all those Parts of the Act in which the expression occurs. But that is not the situation here. It is significant that the expression "candidate" is defined in Section 79(a) and it has some materiality, because Section 82, by Clause (b) provides that a petitioner shall join as respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition. So that what Section 82 contemplates in this. In the case of a declaration by which the election of a returned candidate is sought to be declared as void, a petitioner has to join to his netition all the returned candidates. Where a petitioner wants a further declaration besides the above declaration that the petitioner himself or any other candidate has been duly elected, he must join to his petition all the contesting candidates. But by Section 82(b) there is a further requirement whereby a petitioner is required to join as respondent to his petition any other candidate against whom allegations of any corrupt practice are made in the petition. Now, the expression "any other candidate" must obviously refer to a candidate other than the candidates mentioned in Clause (a) of Section 82, because whereas in Section 82(a) reference is made to the returned candidates and reference is made to all the contesting candidates, reference is made in Section 82(b) to any other candidate. Now, the expression "candidate"' is defined in Section 79(b) as meaning a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as From the time when, with the election in prospect, he began to hold himself out as a prospective-candidate. The expression "candidate" occurring in Section 79(b) would include a number of persons. A candidate may be a candidate who has been duly nominated as distinguished from a candidate who has been validly nominated. It may mean a person who may claim to have been duly nominated but who in fact may not have been duly nominated and it embraces every other person who shall be deemed to have been a candidate as from the time when the person concerned held himself out as a prospective candidate. Apart from the fact that the provisions of Section 82 are mandatory, there is in Section 80(4) a provision whereby if a person is not joined as a party to the petition, he may be joined under Section 80(4) which provides :
"Any candidate not already a respondent shall, upon application made by him to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of Section 119, be entitled to be joined as a respondent."
The provision in Section 119 is the provision relating to security for costs from a respondent. Therefore, when Section 82 is read both with reference to Clause (a) and Clause (b), it is clear that all the returned candidates must be made parties to the petition when only one declaration is sought and all the contesting candidates must be made parties to the petition when both the declarations are sought & any other candidate may be made a party when allegations of any corrupt practice are made in the petition. There is a further provision in seciion 90(4) whereby a candidate may be joined as a party to the petition upon an application made by him, provided he gives security for costs as contemplated by Section 119.
10. In contending for the construction that all the contesting candidates would be not merely those who contested at the election but all those who contested for the election, Mr. Desai has referred, in particular, to Section 52 of the Act. But before I refer to Section 52, I would refer first to Section 55A. It may be pointed out that Section 55A is a new provision which comes into the Act by amending Act XXVII of 1956. This provision was not to be found in the Act before its amendment in 1956. It is evident that there was no provision for retirement before Section 55A was enacted. There was undoubtedly a provision for withdrawal as contemplated by Section 37. Now, Section 55A is composed of seven Sub-sections. According to Section 55A(2), a contesting candidate may retire from the contest by a notice in the prescribed form and in the manner laid down in Sub-Section (2). There can be no doubt, therefore, that a Contesting candidate may retire from contest at the election, The effect of retirement is stated in Section 55A(3) which provides:
"No person who has given a notice of retirement under Sub-Section (2) shall he allowed to cancel the notice".
It moans, therefore, that when once a contesting candidate gives a notice of retirement, it is final; it becomes irrevocable and he will not bo permitted to say that he continues to be a contesting candidate at the election. Section 55A(4) mentions the duty of the returning Officer and what the returning officer has to do is to cause a copy of the notice to be affixed to his notice board and to be published in the manner prescribed. That is, therefore, an intimation to the electorate that a particular contesting candidate has retired from the contest. The legal effect of retirement is stated in Section 55A(5) which provides:
"Any person who has given a notice of retirement under Sub-Section (2) shall thereafter be deemed not to be a contesting candidate for the purposes of Section 52."
The argument urged in support of the contention is that a contesting candidate ceases to be a contesting candidate to the extent mentioned in Section 52, In other words, the contention is that a contesting candidate may retire from contest, but he does not cease to be a contesting candidate except for the limited purpose of Section 52. This leads me to the consideration of Section 52. Section 52 deals with the death of a candidate before the poll. Cases may arise where a contesting candidate may die before the commencement of the poll and in such a case when a report is received about the death of a contesting candidate before the commencement of the poll, the returning officer is required to countermand the poll and he has to report the fact of the death of the contesting candidate to the Election Commission and also to the appropriate authority and the consequence of the fact of the death of a contesting candidate is that there would be a new election. There are two provisos to Section 52. Under the first proviso, if there be a contesting candidate, then such a contesting candidate is not required to file any nomination for the new election, provided the person was a contesting candidate at the time of the countermanding of the poll. Therefore, when a new election takes place consequent upon the death of a contesting candidate, the contesting candidate in the field can contest the election without being required to file a nomination paper. The 2nd proviso gees much further and according to the second proviso, a candidate who has withdrawn under Section 37 and a contesting candidate who has retired from co test under Section 55A(2), do not remain to be contesting candidates and the candidate who has withdrawn from contest and the candidate who has retired from contest may be eligible for filing a fresh nomination paper. Now, in the case of a candidates who has withdrawn his candidature, there is no question of his being a contesting candidate. He, having withdrawn from contest, ceases to be a validly nominated candidate. Therefore, in the case or a person who has withdrawn his candidature under Section 37 and in the case of a contesting candidate who has retired from contest under Section 55A(2), the consequence is that these two persons would be eligible for being nominated as candidates for the election after the countermanding, and this is obvious, because the election is to be a new election. Therefore, in the case of an election which is interrupted by the death of a contesting candidate, the election is to be held as a new election in which a contesting candidate, provided he was as such before the countermanding of the poll, will be allowed to the a countesting candidate but a person who has withdrawn his candidature under Section 37 or a contesting candidate who has retired from contest under Section 55A(2): will have to file a nomination paper. Now, upon the effect of Section 55A read with Section 52 two interpretations are suggested. The interpretation suggesed by Mr. Desai is that a contesting candidate who has retired from contest under Section 55A(2) ceases to be a contesting candidate only for the limited purpose of Section 52, while the interpretation suggested by Mr. Chari is that a contesting candidate when once he retires from contest, ceases to be a contesting candidate in every sense of the term. But there is no difficulty in coming to the right conclusion. Section 52 contemplates a specific case dealing with the death of a contesting candidate. Therefore, in regard to the particular election consequent upon the death of a contesting candidate, the contesting candidate who has retired from contest under SPC-tion 55A(2) ceases to be a contesting candidate. But that does not mean that the contesting candidate ceases to be a contesting candidates in all cases. Such a person is a contesting candidate for the election, although on account of his retirement from contest ho would cease to be a contesting candidate at the election. Therefore, Section 55A need not be construed in the sense that a contesting candidate after retirement from contest ceases to be a contesting candidate. But that, by no means, would solve the difficulty. The real question for determination is whether the expression "all the contesting candidates" is to be understood by reference to the expression as it occurs in the several Parts of the Act or is to be construed by reference to the actual poll when the election takes place.
11. This position would seem to be extremely intriguing. A contesting candidate who retires from contest cannot be said to be a contesting candidate in the popular acceptation of the term, if a candidate retires from contest, it is difficult to say what he is contesting for and it hardly stands to reason to suggest that a candidate who retires from contest is a contesting candidate. To make a candidate a contesting candidate, he must take part in the contest; otherwise he cannot be a contesting candidate. He must contest something. If the expression "contest" is given the restricted meaning that "contest" means a contest at the poll only, then Mr. Chari would be right. But a contest may begin much earlier in point of time. When an announcement is made about the holding of an election, there is a contest in prospect. If there is only one candidate for one seat, there is no contest. But if there is one seat and two candidates, there is a contest. But the real contest, if I may say so, begins when nomination papers are filed and scrutinized and when the returning officer prepares and publishes a list of contesting candidates who are entitled to take part at the poll. If this be the true view, there can be no question that a contesting candidate may retire from contest, but he would nonetheless be a contesting candidate, because he would be a contesting candidate for the election, although he is not a contesting candidate at the election. The meaning of the expression "contest'' may be seen from a recognised text-book. In the Law Lexicon of British India by P. Ramanatha Aiysr the expression "contest" is defined at page
236. A contest implies the existence of two parties. There can be no contest unless two persons take part in a thing, and according to this recognised authority, to contest is to set up rival pretensions to be determined by the suffrages of others, as to contest an election, to contest a prize. Therefore, it would not be right to restrict the meaning of the word "contest" to only a contest which takes place at the poll and not before. There are cases no doubt where although there was initially a contest, the contest may cease to exist on account of the fact that a contesting candidate has retired from contest. Such cases are contemplated and dealt with by Sections 53 and 54 read with Section 55A and Mr. Chari, with his accustomed fairness, has conceded that it is not his argument that a contest can take place only at the time of the poll and not before. If this concession is right, there is no question that a 'contesting candidate is still a contesting candidate although he is not to take Part at the noil because of his retirement from contest. In this connection, it would be interesting to look at Section 82 before its amendment in 1936. Section 82 before its amendment ran as follows:
"A petitioner shall join as respondent to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated".
So that according to Section 82 the scheme was that those candidates were to be joined as parties to the petition who were duly nominated at the election the expression "at the election" gave rise to conflict of judicial opinion. The view taken in Bombay and in Allahabad was that in order that a candidate may be joined as a party to the petition he must be a candidate duly nominated at the election. In other words, the point of time which would be material would be the point of time at which the candidate may be nominated at the election. Therefore, if a candidate withdrew, then he could not be said to be a person who was duly nominated at the election. That was how the expression "duly nominated at the election" was construed by this Court. The necessary reference would be found in Sitaram Hirachand Birla v. Yograjsing, (B). The principle is sufficiently expressed in the
head-note to that case, which is as follows:
"The object of Section 82 of the Representation of the People Act, 1951, is that all parties who were concerned with the actual election and who contested the election should be before the Tribunal, but a person who did not contest the election and who withdrew from the fight does not stand in the same position as candidates who not only were duly nominated but who were candidates at the election".
A contrary view was taken in a Patna case which is reported in Mohammad Umair v. Ram Charan Singh, AIR 1954 Pat 225 (C). The Allahabad case in which a view being similar to the view taken by this Court will be found reported in Sheo Kumar v. V. G. Oak, , and it is clear that the Allahabad High Court accepted the view taken in the Bombay case. The point of importance is that the question arose with reference to the expression "at the election" occurring in Section 83 before its amendment in 1956, and as was pointed out in the Bombay case, a candidate may be a candidate at the election or he may be a candidate before the election and the expression "at the election" would indicate the point of time when the election takes place. This question arose before the Supreme Court and that will be seen from the case reported in Bhikaji Keshao v. Brijlal Nandlal . At p. 435 (of SCR) : (at p. 614 of AIR) are the relevant observations upon the point. This is how Jagannadhadas J. puts it:
"The Bombay and Allahabad cases hold that this phrase confines the necessary parties under this section to those who were candidates for the actual poll, while the Patna High Court takes the view that the phrase "at the election" has no such limiting significance. It appears to us to be unnecessary and academic to go into this judicial controversy having regard to the decision of this Court in Jagan Nath v. Jaswant Singh, .
Therefore, this question was not decided by their Lordships of the Supreme Court. But one fact which is significant cannot be overlooked. Although the language of Section 82 before its amendment is different from the language of Section 82 as one finds it to-day, the expression "at the election" which occurred in Section 82 before its amendment does not find a place in Section 82 as one finds it to-day, and this has, in my view, an important bearing in the solution of the problem which has arisen for decision. The question is, is the omission of the expression "at the election" in Section 82 as it is to-day deliberate? If the intention was that the expression "all the contesting candidates" should be confined to the candidates who took part at the poll, the Legislature would have used appropriate language and indicated the same in unequivocal terms by using the expression "at the election" in Section 82 as it occurs to-day. This is particularly so because the Legislature must be aware of the conflict of judicial opinion which had existed in India and that conflict of judicial opinion is reflected in the views of the Bombay and Allahabad High Courts on the one hand and in the view taken by the Patna High Court on the other. It is, therefore, reasonable to suggest that when the Legislature adopted the terminology of "all the contesting candidates" in Section 82, the Legislature may well have meant that what was intended was not merely the candidates who contested at the poll but also those candidates who were contesting for the election.
12. But Mr. Chari has contended that this construction cannot be accepted. In the first place, he relies upon two passages in Maxwell's Interpretation of Statutes, 10th edition. The first passage is at page 3, which is as follows:
"The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, Otherwise, in their ordinary meaning; and, secondly, that the phrases and sentences are to he construed according to the rules of grammar".
Then at page 54 the other passage, on which reliance has been placed, is as follows:
"In dealing with matters relating to the general public, statutes are presumed to use words in their popular sense; uti loquitur vulgus. But when dealing with particular businesses or transactions, words are presumed to be used with the particular meaning in which they are used and understood in the particular business in question, that meaning being rejected, however, as soon as the judicial mind is satisfied that another is more agreeable to the object and intention".
Mr. Chati argues that one has merely to look at section 82 to construe it in the sense contended for by him. He says:
"Take the expression 'all the contesting condi-dates'. It means and must mean those candidates who took part in the contest at the poll. The popular meaning of the expression "contesting candidates" would be that those are contesting candidates who take part in the contest at the poll and not those who withdrew from the contest or retired from the contest, because, the moment a candidate retires from the contest, he ceases to be interested in the election and such a person cannot, therefore, be called as a contesting candidate".
There is something to be said in support of this contention. But there is a great deal to be said in favour of the other contention. In Section 82, before its amendment, the expression used was "duly nominated at the election". In Section 82, after its amendment, the expression used is "all the contesting candidates" without reference to cither at the election or for the election. The omission of the words "at the election" would seem to be deliberate, because the Legislature intended that all persons who were contesting for the election in the sense that they were validly nominated candidates, should be joined as parties to the petition, although some of the candidates may have retired from the contest. Another interpretation suggested by Mr. Chari is that in the context in which the expression "all the contesting candidates" occurs, it means and must mean only those candidates who actually took part at the poll and this is suggested by reference to the stage at which an election petition is filed and an election petition is filed long alter the election is held and is over. Disputes regarding an election arise only after the election and at this stage the expression "all the contesting candidate.:;" can only mean those persons who took part in the contest at the poll. According to Mr. Chari, this would be the popular meaning to be given to the expression "all the contesting candidates". But I am not prepared to accept this construction. If the intention of the Legislature was that the expression "all the contesting candidates" should be confined only to those candidate who took part at the poll, the Legislature would have used appropriate, language to indicate its intention and preference, and this is not merely a matter of accident. The words "at the election" occurred in Section 82 before its amendment and if the true view is that an section is one continuous process consisting of several stages ultimately leading to the poll, the expression "all the contesting candidates" with reference to such an election must obviously mean those candidates who were contesting not merely at the election but also those candidates who were contesting for the election. In this connection Mr. Chari relied upon a case repotted in Hariprasad Shivshanker v. A. D. Divelkar. 59 Born LR 384 : ((S) AIR 1957 SC 121) (G). That was a case arising under the Industrial Disputes Act and, in particular, ho referred to a passage occurring at p. 388. There Their Lordships of the Supreme Court were considering Section 2(oo) of the Industrial Disputes Act and his argument was that one should give the expression "all the contesting candidates" a meaning by reference to, what is called, "a colour from the context.'' As I have already pointed out, it is possible to construe the expression "all the contesting candidates" by reference to the context in which that expression occurs. It is also possible to construe the expression "all the contesting candidates" by the colour from the context in which it occurs. But when all is said and done, it must be remembered that an election is confined not merely to the poll. An election begins much before the stags of the poll and it is one continuous process from begining to end, save in those cases in which there is no contest because there is only one candidate for one seat or two candidates for two seats, as the case may be. Section 82 really contemplates two categories. The first category is the category of "returned candidates" and the second category is the category of "contesting candidates" and if the expression "all the returned candidates" is contrasted with the expression "all the contesting candidates," it is evident that the expression "all the contesting candidates" can only have one meaning i.e., those candidates who were contesting not merely at the election but also for the election. In this connection, reference may again be made to Section 38. In explaining the term "contesting candidates," it is stated that contesting candidates were those candidates who were included in the list of valklly nominated candidates. If that is the description of "contesting candidates," one has merely to substitute the words "validly nominated, candidates" in place of the expression "contesting candidates." This will not, of course, include those candidates who 'have withdrawn from the contest under Section 37, because the stage contemplated by Section 38 is much in advance of the stage contemplated by Section 37 which deals with the case of withdrawal of candidature. In this connection, reference may be made also to a decision of the Supreme Court .
There their Lordships of the Supreme Court were considering the question of par-tics to an election petition. It is to be remembered that before the Representation of the People Act was amended in 1956, there was no provision in the Act which involved the dismissal of a petition for non-compliance with Section 82. But the observations of their Lordships would seem to be apposite. At p. 893 (of SCR) : (at p. 212 of AIR) this is what their Lordships say :
"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when, it does not state the consequences of non-compliance with certain procedural requirements laid down by it. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the tribunal entrusted with the trial of the case is not affected."
Therefore, an election petition filed to settle an election dispute is a statutory proceeding and the statutory requirements of the election law must be strictly complied with. The question for decision, therefore, is whether Section 82 has been complied with in this case. Now, what happened was that two candidates of the names of Mahomed Ahdulla Awate and Ali Suleman Mulla retired on or about 15-2-1957, under Section 55-A of the Representation of the People Act. 1951. The election was held on 2-3-1957 and the result of the election was declared on 4-3-1957. When these two candidates retired from contest on or about 15-2-1957, it may be that they were not contesting candidates at the election which was held on 2-3-1057. But does it follow that although they were not contesting candidates at the election which was held on 2-3-1957, they were not contesting candidates for the election? and in this connection, reference may also be mafic to ,1 decision of the Privy Council reported in Bhagchand v. Secretary of State, 29 Bom LP 1227 : (AIR 1927, PC 176 (II). There their Lordships of the Privy Council were dealing with the requirements of a notice under Section 80 of the Code of Civil Procedure and with reference to Section 80, their Lordships of the Privy Council observed : "Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions." Their Lordships were considering the question whether a suit for injunction would or would not be a suit within Section 80 and they held that Section 80 would as much apply to any other suit as to a suit for injunction. In our view, the same construction must be adopted with reference to Section 82. Section 82 is express, explicit and mandatory. It says that with regard to two declarations all the contesting candidates must be joined as parties to the petition. This language does not admit of any exception or of any implication. If this were not so, one may well see what the result would be like. If we were to adopt the construction contended for by Mr. Chari, we would have to say that the expression "all the contesting candidates" must mean those candidates other than the candidates who had retired from contest, and if we do so, we would be adding to Section 82 words which do not occur in the section. On the other hand, if we give the expression "all the contesting candidates" the meaning which the Act intendes to give, it is clear that the expression "all the contesting' candidates'' must mean those candidates who are contesting candidates as contemplated by the Act, and a candidate does not cease to be a contesting candidate if he retires from contest within the meaning of Section 55-A. It may look strange if we were to hold that a candidate is a contesting candidate although he retires from the contest, but we are not concerned with that situation. We must give the expression "all the contesting candidates" the meaning which naturally flows from the expression as used in several Sections of the Act. We must give the expression "all the contesting candidates" its full content and connotation and when we give the expression "all the contesting candidates" its full content and connotation, there is no question that under Section 82 the Legislature contemplated that all the contesting candidates should be joined as parties to the petition and the expression "all the contesting candidates" meant not merely those candidates who contested at the election but also those candidates who were contesting for the election. This construction seems to us to be legitimate for the reason that an election is one continuous process and if it is one continuous process what is sought to be challenged is the election, which means, the election as it commenced and as it ended. It mav well happen that a contesting candidate who has retired from contest may or may not have interest in the result of the election petition. It may be that such a contesting candidate has no chance of himself being elected, but the law contemplates that an election dispute should be settled once and for all and if it is to be settled once and for all, the dispute must be settled in the presence of every candidate who is either (immediately or remotely affected by the result. One indication of this can as well be seen from Section 97 which provides :
"When in an election petition a declaration that any candidate other than the returned candidate he is been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election."
There may be hundred and one reasons as to why such a person should be made a party to the petition. But that is all for the Legislature and we would not be justified in adding to the Section words which do not occur there and in giving this construction to Section 82, we are doing no violence to the language of the section. In choosing one interpretation and rejecting the other, the choice is really between a literal interpretation and a rational interpretation and we should choose the rational one which we have suggested above.
13. The learned member of the Election Tribunal in the course of his order took the view that as Section 82 dealt with a stage subsequent to the poll, the inference was irresistible that the provision required the joining of only those candidates who were contesting at the poll. In view of what we have observed above, we are not satisfied that this is a proper inference to draw and that is the sole basis of his decision.
14. After carefully considering the matter, we must hold that we are unable to agree with the conclusion arrived at by the Election Tribunal. The result is that this petition must succeed. If we are right in the view that the provisions of Section 82 have not been complied with in this case, it follows that the Election Tribunal will have to dismiss the petition under Section 80(3). As we take the view that the provisions of Section 82 have not been complied with, the order that we can pass on this petition will, therefore, be that we quash the order made by the Election Tribunal on 18-9-1957 and direct that it will proceed to dispose of the petition in accordance with Jaw. The rule will be made absolute. As regards costs of this petition, the question raised by this petition is one of interpretation of Section 82 of the Act. The question cannot be said to be free from difficulty. Learned Counsel for the second respondent has pointed out that under similar circumstances the Madras High Court has taken a view contrary to the view which we have taken. That suggests that the matter is a debatable one. In the circumstances, therefore, there will be no order as to costs on this petition.
15. Petition allowed.