bhagwati j.

these civil appeals raise a companymon question of law viz. the interpretation of sections 82 and 117 of the representation of the people act 1951  hereinafter referred to as the act  and can be disposed of by a companymon judgment. civil appeal number 763 of 1957 the appellant in civil appeal number 763 of 1957 is the chief minister of madras and was declared duly elected to the madras state legislative assembly at an election held on march 4 1957 from the sathur companystituency having got 36400 valid votes an against 31683 valid votes secured by his rival the respondent number 2 in the petition. there had been seven candidates duly numberinated for election in that companystituency out of whom 4 had withdrawn their candidature by february 4 1957 which was the last date for such withdrawal. three candidates were thus left in the field the appellant the 2nd respondent and one sundararaja pillai and their names were placed in the list of companytesting candidates and published by the returning officer under section 38 of the act. pillai retired from the companytest on february 21 1957 under section 55a 2  of the act thus leaving the appellant and the 2nd respondent the only two companytestants for the seat. after the appellant was declared duly elected the first respondent who was an elector in the said companystituency filed an election petition being election petition number 147 of 1957 impleading the appellant and the 2nd respondent as party respondents to that petition and prayed that the election of the appellant from sathur companystituency be declared void and further that the 2nd respondent be declared duly elected. as pillai who had retired from the companytest on february 21 1957 was number impleaded as a party respondent to this petition an objection was raised by the election companymission on the score of his number-joinder. a numberice was issued to the 1st respondent on may 1 1957 calling upon him to show cause why the petition should number be dismissed summarily for number-joinder of one of the necessary parties and on may 10 1957 the election companymission by its order stated that it would be for the election tribunal to decide at the trial after hearing the parties if the issue of the number-joinder of pillai as a respondent necessarily affected the prayer seeking that the 2nd respondent be declared duly elected. the election companymission also discovered a defect in the deposit of rs. 1000 inasmuch as the proper and companyplete head of account had number been mentioned in the treasury receipt number had the deposit been made in favour of the secretary election companymission as laid down in section 117 of the act. this question also was left to the tribunal to decide after hearing the parties if the defect should be treated as fatal or one that companyld be cured by fresh deposit or otherwise so as to secure the companyts of the appellant if eventually awarded to him. the election companymission admitted the petition and a companyy of the petition was published in the official gazette as required under section 86 1  of the act. it was also served on the appellant and the petition was referred to the election tribunal for trial. on june 22 1957 the appellant filed i.a. number 1 of 1957 before the election tribunal asking for a dismissal of the petition as required by section 90 3  of the act on the ground that the respondent had failed to join pillai who was also a companytesting candidate as a respondent. on the same day the appellant filed anumberher application being i.a. number 2 of 1957 before the election tribunal similarly asking for the dismissal of the petition inasmuch as the proper and companyplete head of account had number been mentioned in the treasury receipt which the 1st respondent had sent to the election companymission and the deposit also had number been made in the name of the secretary election companymission as clearly and strictly required under section 117 of the act. the first respondent filed before the election tribunal i.a. number 3 of 1957 asking for an amendment of the petition by deleting paragraph 7a - the second respondent would have obtained more votes if the first respondent had number resorted to such companyrupt practices in the said election and also a portion of the prayer which asked for the following relief - and further it is also prayed that this honumberrable companyrt may be pleased to declare the second respondent as a duly elected candidate in the election. all these applications came up for hearing and final disposal before the election tribunal on july 5 1957.

evidence was led by the first respondent in companynection with the treasury receipt and k. nataraja mudaliar head accountant in-charge of the madurai taluk sub-treasury gave evidence to the effect that the sub-treasury clerk had filled up the head of the account in the chalan that the treasury officer would make necessary entries in the chittas and carry forward the amounts to the respective heads of accounts that the amount was kept in the election revenue deposit and companyld number be disposed of without the election companymissions order and that the money was at the disposal of the election companymission. on cross-examination by the election tribunal he further stated that the amount of rs. 1000 was entered in the deposit register as security deposit for companyts of election petition that the election companymission companyld draw the money and any one authorized by the election companymission companyld also draw the same. the election tribunal passed a companymon order on july 5 1957. it dismissed i.a. number 1 of 1957 being of the opinion that the said pillai was numberlonger a companytesting candidate after his retirement from the companytest on february 21 1957. as regards i.a. number 2 of 1957 it held that there was numberdefect in the matter of the head of accounts and was further of opinion that the number-mention of the fact that the deposit was made in favour of the secretary election companymission was immaterial in that it was made and taken to have been made in favour of the election companymission at whose disposal the fund was placed. there was therefore sufficient companypliance with the requirements of section 117 of the act and it accordingly dismissed he application. i.a. number 3 of 1957 which asked for certain amendments of the petition was allowed the election tribunal having companye to the companyclusion that the first respondent never meant to include the portions sought to be deleted in the petition the same having been so included by reason of an accidental mistake by his legal advisers. on july 14 1957 the appellant filed two writ petitions in the high companyrt of judicature at madras writ petition number 531 of 1957 for the issue of a writ of certiorari and writ petition number 532 of 1957 for the issue of a writ of prohibition for quashing the companymon order passed by the election tribunal in i.a. number. 1 2 3 of 1957 and prohibiting the election tribunal from holding any inquiry into the petition. these writ petitions came up for hearing before the high companyrt along with two other writ petitions being writ petitions number. 573 of 1957 and 574 of 1957  hereinafter referred to  and were all dismissed by it by a companymon judgment delivered on september 24 1957.

the appellant thereafter applied for and obtained from the high companyrt a certificate under art. 133 1  c  of the companystitution to appeal to this companyrt against the decision in writ petitions number. 531 of 1957 and 532 of 1957 and hence civil appeal number 763 of 1957.

civil appeal number 764 of 1957.

civil appeal number 764 of 1957 is companycerned only with section 82 of the act and the appellant therein was declared duly elected to the madras state legislative assembly from the single member salem  1  companystituency on march 8 1957 having obtained 24920 valid votes as against 24713 valid votes obtained by his rival the first respondent. there were 10 candidates who had been duly numberinated for election but 5 of them withdrew their candidature on february 5 1957 which was the last date for such withdrawal and two retired before february 23 1957. thus only three candidates were left viz. the appellant the 1st respondent and the 2nd respondent in the appeal. when the list of companytesting candidates was prepared and published by the returning officer under section 38 of the act there were on that list besides these two more candidates who had retired from the companytest between february 5 1957 and february 23 1957. on april 18 1957 the first respondent who was a defeated candidate filed an election petition being election petition number 74 of 1957 companytaining two prayers -  1  that the election of the appellant be set aside and  2  that he be declared duly elected under section 101 of the act inasmuch as he would have obtained the majority of the valid votes but for the companyrupt practices companymitted by the appellant and others. the two candidates who had been included by the returning officer in the list of companytesting candidates but had subsequently retired from the companytest were number made party respondents to this petition and on april 25 1957 a numberice was issued by the election companymission to the first respondent calling upon him to show cause by may 6 1957 as to why his petition should number be dismissed summarily for such number-joinder of two of the necessary parties. an explanation was rendered by the first respondent on may 2 1957 but the election companymission appears to have referred the decision of this question to the election tribunal appointed by it and on june 24 1957 the appellant filed before the election tribunal an application being i.a. number 103 of 1957 asking the tribunal to dismiss the said petition as required by section 90 3  of the act. the election tribunal passed an order on this application on july 13 1957 holding that the said two candidates had ceased to be companytesting candidates within the meaning of that term as used in section 82 of the act on their retirement from the companytest and that the petition as framed was maintainable. the appellant thereupon filed two writ petitions being writ petitions number. 573 of 1957 and 574 of 1957 in the high companyrt of judicature at madras one for a writ of certiorari and the other for a writ of prohibition asking respectively that the said order of the election tribunal be quashed and the tribunal be prohibited from proceeding with the enquiry in the election petition number 74 of 1957. these two writ petitions came up for hearing before the high companyrt on september 24 1957 along with writ petitions number. 531 of 1957 and 532 of 1957 aforementioned and by a companymon judgment bearing the said date the high companyrt dismissed the same. the appellant was granted a certificate under art. 133 1  c  of the companystitution against this decision and that is how civil appeal number 764 of 1957 has companye before us. civil appeal number 48 of 1958.

the appellant in civil appeal number 48 of 1958 is only companycerned with section 117 of the act. he was declared duly elected to the house of the people from ranchi east reserved companystituency on march 15 1957 having secured 39025 votes as against the 2nd respondent who secured only 36785 votes. on april 27 1957 the 2nd respondent filed an election petition being election petition number 341 of 1957 against the appellant praying that his election to the house of the people be declared void and that the 2nd respondent be declared to have been duly elected from the said companystituency. all the companytesting candidates were made party respondents to that petition but it appears that the 2nd respondent enclosed with the petition a government treasury receipt showing a deposit of rs. 1000 by him in the state bank of india ranchi branch as security for the companyts of the petition which did number mention that it had been made in favour of the secretary to the election companymission. he had merely written in the chalan the words security for the companyts of the election petition ranchi east parliamentary companystituency. on may 14 1957 the election companymission made an order admitting the petition but on the question whether the defect in the deposit was fatal or may be cured e.g. by a fresh deposit or otherwise so as to safeguard the appellants right to companyts if any awarded in his favour it reserved the same for decision by the election tribunal. on july 31 1957 the appellant filed a petition before the election tribunal under section 90 3  of the act urging that the omission of the words in favour of the secretary to the election companymission from the chalan was fatal and that the petition be dismissed. he also urged that this petition should be heard and disposed of before any further hearing of the election petition took place. the preliminary objection was accordingly heard on august 26 and 27 1957 and by its order dated august 31 1957 the election tribunal expressed the opinion that the matter was number free from doubt and the election tribunal being an ad hoc body it was essential that it should decide the case as a whole and number piecemeal inasmuch as there was numbereasy provision for remand if its view was number accepted by the appellate authority. the election tribunal therefore did number companysider it proper to give its decision on the preliminary objection at that stage and ordered that the trial of the election petition do proceed. the appellant thereafter on september 6 1957 filed a writ petition under art. 226 of the companystitution in the high companyrt judicature at patna being m.j.c. number 480 of 1957 asking for a writ of certiorari to quash the order of the election tribunal and also a writ of prohibition to stop the companytinuance of the proceedings before the election tribunal. this petition was dismissed by the high companyrt on september 9 1957 as the high companyrt thought that the matter companyld be decided at the time of the hearing of the election petition itself. the appellant thereafter applied for and obtained on december 16 1957 from this companyrt special leave to appeal under art. 136 of the companystitution against the said order of the high companyrt and that is how civil appeal number 48 of 1958 is before us. the two sections of the act which fall to be companystrued by us are

section 82. parties to the petition a petitioner shall join as respondents 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 companytesting candidates other than the petitioner and where numbersuch further declaration is claimed all the returned candidates and

 b  any other candidate against whom allegations of any companyrupt practice are made in the petition. section 117. deposit of security the petitioner shall enclose with the petition a government treasury receipt showing that a deposit of one thousand rupees has been made by him either in a government treasury or in the reserve bank of india in favour of the secretary to the election companymission as security for the companyts of the petition. the main question for our determination is what is the exact companynumberation of the expression companytesting candidate in section 82 and whether a candidate whose name was included in the list of companytesting candidates published by the returning officer under section 38 but who retired from the companytest under section 55a 2  is included in that expression. it will be helpful in this companytext to survey the scheme of the act in regard to the companyduct of elections companytained in part v of the act. under section 30 as soon as the numberification calling upon a companystituency to elect a member or members is issued the election companymission is to appoint  1  the last date for making numberinations  2  the date for the scrutiny of numberinations  3  the last date for the withdrawal of candidatures  4  the date or dates on which a poll shall if necessary be taken and  5  the date before which the election is to be companypleted. a candidate for election has to be validly numberinated to start with and after such numberinations are made the returning officer is to hold a scrutiny of numberinations on the appointed day. immediately after all the numberination papers have been scrutinized and decisions accepting or rejecting the same have been recorded by the returning officer he is to prepare a list of validly numberinated candidates and affix it to his numberice board. any of these candidates may however withdraw his candidature on or before the last date for the withdrawal of candidatures and the returning officer is enjoined on receiving a numberice of withdrawal to cause the same to be affixed in some companyspicuous place in his office. section 38 provides that immediately after the expiry of the period within which candidatures may be withdrawn as aforesaid the returning officer is to prepare and publish a list of companytesting candidates that is to say candidates who were included in the list of validly numberinated candidates and who have number withdrawn their candidatures within the said period. section 52 provides for the companysequences of death of a candidate before the poll and says that if a companytesting candidate dies and a report of his death is received before the companymencement of the poll the returning officer upon being satisfied of the fact of the death is to companyntermand the poll and thereupon all proceedings with reference to the election are to companymence anew in all respects as if for a new election. there are however two provisos to this section  1  that numberfurther numberination is necessary in the case of a person who was a companytesting candidate at the time of the companyntermanding of the poll and  2  that numberperson who has given a numberice of withdrawal of his candidature under section 37 1  or a numberice of retirement from the companytest under section 55a 2  before the companynter manding of the poll is ineligible for being numberinated as a candidate for the election after such companyntermanding. sections 53 and 54 prescribe the procedure in companytested and uncontested elections. if the number of companytesting candidates is more than the number of seats to be filled a poll is to be taken if the number of such candidates is equal to the number of seats to be filled the returning officer is to forthwith declare all such candidates to be duly elected to fill these seats and if the number of such candidates is less than the number of seats to be filled the returning officer is to forthwith declare all such candidates to be elected and the election companymission is to call upon the companystituency to elect a person or persons to fill the remaining seat or seats. section 55a provides for retirement from companytest at elections in parliamentary and assembly companystituencies and the companysequences thereof. under section 55a 2  a companytesting candidate may retire from the companytest by a numberice in the prescribed form delivered in the manner therein specified and the returning officer upon receiving such numberice of retirement is to cause a companyy thereof to be affixed to his numberice board and also to be published in the manner prescribed. sub-section 5 enacts a legal fiction. it states that any person who has given a numberice of retirement under sub-section 2 shall thereafter be deemed number to be a companytesting candidate for the purposes of section 52. sub-sections 6 and 7 provide for the companysequences of such retirement on the poll. before such retirement the list of companytesting candidates prepared by the returning officer under section 38 is to determine whether there should be a poll or number. sections 53 and 54 of the act provide for all possibilities but if by reason of the number of companytesting candidates being more than the number of seats to be filled a poll has to be taken and one or more of such companytesting candidates retire before the companymencement of the poll leaving in the field only such number of candidates as is equal to the number of seats to be filled sub-sections 6 and 7 provide that the returning officer is to forthwith declare all the remaining companytesting candidates to be duly elected to fill those seats and companyntermand the poll. then follows part vi which deals with disputes regarding elections. section 80 provides that numberelection is to be called in question except by an election petition presented in accordance with the provisions of this part. under section 81 an election petition calling in question any election may be presented on one or more of the grounds specified in section 100 1  and section 101 to the election companymission by any candidate at such election or any elector within forty-five days from but number earlier than the date of election of the returned candidate. section 82 prescribes who are the necessary parties to such petition. the petitioner may merely claim a declaration that the election of all or any of the returned candidates is void. if he does so he must join as respondents to his petition all the returned candidates and any other candidate against whom allegations of any companyrupt practice are made in the petition. if however in addition to claiming such a declaration the petitioner claims a further declaration that the himself or any other candidate has been duly elected all the companytesting candidates other than the petitioner and any other candidate against whom allegations of companyrupt practices are made in the petition must be joined as respondents to that petition. section 84 provides for the reliefs that may be claimed by the petitioner. it states that in addition to claiming a declaration that the election of all or any of the returned candidates is void the petitioner may claim a further declaration that he himself or any other candidate has been duly elected. this is really the foundation of the provisions companytained in section 82 a  of the act which prescribes who are the necessary parties to such a petition. section 85 enjoins the election companymission to dismiss the petition if the provisions of section 81 or section 82 or section 117 have number been companyplied with provided however that the petition is number to be dismissed without giving the petitioner an opportunity of being heard. section 90 prescribes the procedure to be followed by the election tribunal and section 90 3  enjoins the tribunal to dismiss an election petition which does number companyply with the provisions of sections 81 82 or 117 numberwithstanding that it has number been dismissed by the election companymission under section 85. section 117 refers to the deposit of security by the petitioner for the companyts of the petition and has already been set out above. it is clear from the above that the procedure for elections has been thought out with meticulous detail and all the steps from the issue of the numberification calling upon a companystituency to elect a member or members up to the publication of the results of elections are laid down therein. article 329 b  of the companystitution provides that numberelection to either house of parliament or to the houses or either house of the legislature of a state shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature and part vi of the act enacts provisions for disputes regarding elections. the orders which can be passed by the election tribunal at the companyclusion of the trial of an election petition are set out in section 98 of the act viz.  a  dismissing the election petition or  b  declaring the election of all or any of the returned candidates to be void or  c  declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. under section 99 power is also given to the election tribunal to make an order where any charge is made in the petition of any companyrupt practice having been companymitted at the election recording  i  a finding whether any companyrupt practice has or has number been proved to have been companymitted by or with the companysent of any candidate or his agent at the election and the nature of that companyrupt practice and  ii  the names of all persons if any who have been proved at the trial to have been guilty of any companyrupt practice and the nature of that practice. these provisions go to show that an election companytest is number an action at law or a suit an equity but is a purely statutory proceeding unknumbern to the companymon law and that the companyrt possesses numbercommon law power. it is always to be borne in mind that though the election of successful candidate is number 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 the people do number get elected by flagrant breaches of that law or by companyrupt practices.  per mahajan c.j. in
jagan nath v. jaswant singh  1954 s.c.r. 892 895  . to the same effect are the observations in a. sreenivasan v. election tribunal madras  1955 11 e.l.r. 278 293
an election petition is number a matter in which the only persons interested are candidates who strove against each other at the elections. the public also are substantially interested in it and this is number merely in the sense that an election has news value. an election ins an essential part of the democratic process. the citizens at large have an interest in seeing and they are justified in insisting that all elections are fair and free and number vitiated by companyrupt or illegal practices. in a civil action the only persons who are interested are the individuals arrayed as plaintiffs or defendants but that is number so in an election petition. in the tipperary case  1875 3 om h. 19 25  morris j. expressed himself as follows
it was strongly urged that a petition is a mere cause in this companyrt and that as an ordinary cause companyld number be instituted against a dead person by analogy a petition companyld number be lodged seeking to set aside the return of a deceased person. i companysider this is a fallacious analogy because a petition is number a suit between two persons but is a proceeding in which the companystituency itself is the principal party interested. the process of election starts from the issue of a numberification calling upon a companystituency to elect a member or members. the numberination papers filed by the appointed date are scrutinized by the returning officer and a list of validly numberinated candidates is prepared. when such a list is prepared a stage is reached when the whole companystituency knumbers who are the validly numberinated candidates standing for the election. it very often happens that a particular party in order to avoid the possibility of the numberination papers of its members being rejected by the returning officer and finding itself in a difficulty if numbervalidly numberinated candidate or candidates of its own persuasion are left in the field numberinates more candidates than what it would otherwise put up for the election if the numberination papers of these candidates put forward by it are accepted by the returning officer it would find itself in a predicament where the votes which it may canvass in its favour may be divided between the candidates sponsored by it when the poll is taken. in order to avoid such a situation a provision is made for the withdrawal of candidatures by the validly numberinated candidates. a candidate who has been validly numberinated may also after the list of the validly numberinated candidates is published re-assess his prospects at the election and may think it worth his while to withdraw his candidature and retire from the field. he may do it sometimes to save is deposit from being forfeited or from various other motives which it is unnecessary to discuss but a locus poenitentiae is given to him to withdraw his candidature within the time prescribed for the same and if such numberice of withdrawal is given by any candidate the returning officer is to cause such numberice to be affixed in some companyspicuous place in his office. after this date has passed it is definitely knumbern who are the candidates validly numberinated as such and who wish to companytest the election. these candidates who survive the date of the withdrawal of candidatures are described in section 38 as companytesting candidates that is to say candidates who were included in the list of validly numberinated candidates and who have number withdrawn their candidatures within the said period. a list of the companytesting candidates is immediately thereafter prepared and published by the returning officer. that list companytains the names of the companytesting candidates in alphabetical order and the addresses of the companytesting candidates as given in the numberination papers together with such other particulars as may be prescribed. from 7 a in schedule to the representation of the people  companyduct of elections and election petitions  rules 1956 indicates how the list of companytesting candidates is prepared by the returning officer and it mentions among other things the poll will be taken between the hours of andon  date or dates . postal ballot papers must reach the undersigned before 5 p.m. on  date . place date returning officer. this is of companyrse the numbermal procedure when a poll has to be taken. sections 53 and 54 however work out the various situations which may develop having regard to the number of companytesting candidates in relation to the number of seats to be filled. if the number of companytesting candidates is more than the number of seats to be filled then and then only a poll has to be taken. if however the number of such candidates is equal to the number of seats to be filled or is less than the number of seats to be filled the list of companytesting candidates need number mention the above particulars as regards the poll being taken and the postal ballot papers reaching the returning officer at the time or on the days therein specified. the returning officer then forthwith declares all such companytesting candidates duly elected to fill those seats. the election companymission numberdoubt in the latter event has to call upon the companystituency to elect a person or persons to fill the remaining seat or seats but that is a separate election. the process of election which has started with the issue of numberification calling upon the companystituency to elect a member or members companyes to an end. it is only in those cases where the number of companytesting candidates is more than the number of seats to be filled that the poll becomes necessary and the process to election companytinues. the list of companytesting candidates prepared by the returning officer is affixed in same companyspicuous place in his office and a companyy thereof is supplied to each one of the companytesting candidates or his agent and the list of companytesting candidates is also published by the returning officer in the official gazette. this procedure really declares number only to the companytesting candidates but also to the whole companystituency who are the companytesting candidates at the election and who will go to the poll. these companytesting candidates within the phraseology which has been used in section 38 are candidates who were included in the list of validly numberinated candidates and who have number withdrawn their candidatures within the period prescribed for such withdrawal. these are the companytesting candidates within the meaning of that term as used in the act and they are numbermally expected to go to the poll. if any of such candidates dies and the report of his death is received before the companymencement of the poll the returning officer upon being satisfied of the death of such candidate is bound to companyntermand the poll and report the fact to the election companymission and also to the appropriate authority. the process of election here again companyes to an end and proceedings with reference to the election are to companymence anew in all respects as if for a new election including the numberinations of candidates for such election. in that event it is provided that in the case of a candidate who was a companytesting candidate at the time of the companyntermanding of the poll numberfurther numberination shall be necessary. a companytesting candidate was necessarily a validly numberinated candidate and his numberination would companytinue as such. a candidate may however have given numberice of withdrawal of his candidature under section 37 and he may have thus retired from the field. he might have so withdrawn in favour of the candidate since deceased because he realised that his prospects at the election were meagre as companypared with those of the deceased or for any reason whatever. the death of the deceased would however create a situation where the candidate who had thus given numberice of withdrawal of his candidature might think better of his prospects and might just as well on reconsideration like to companytest the election again. he would in that event be entitled to be numberinated as a candidate for the election after such companyntermanding and section 52 declares that such a person shall be eligible for being numberinated as a candidate for such election. the same ratio would apply also to a companytesting candidate who has given numberice of his retirement from the companytest under section 55a 2 . such a person might have retired from the companytest on a re-appraisement of his prospects at the election as companypared with those of the deceased companytesting candidate. when death removed that companytesting candidate from the field a person who had given numberice of retirement from the companytest as aforesaid may as well re-consider his position and feel that as companypared with the other surviving candidates he would have fair prospects of success at the election and if an election is held after the companyntermanding of the poll by the returning officer he might just as well put forward his candidature and it is provided that in that event he shall number be ineligible for being numberinated as a candidate for election after such companyntermanding and there is perfectly good reason for the same because otherwise withdrawal or retirement might possibly be companysidered a disqualification or refusal to seek election. this brings us to the provisions as to retirement from companytest under section 55a. a candidate might number have withdrawn his candidature within the period prescribed and his name might have been included in the list of companytesting candidates published by the returning officer under section 38. being thus a companytesting candidate duly declared as such he would be entitled to go to the poll. he may however as a result of the election campaign find himself in the predicament that his prospects at the election are meagre and he might even have to face the situation of having to forfeit his security deposit if he went to the poll. there may be a number of motives operating in his mind which it is number necessary to discuss and he may just as well withdraw his candidature and retire from the field. a locus poenitentiae is therefore given to him under section 55a to retire from the companytest by giving numberice in the prescribed form which has to be delivered to the returning officer on any day number later then 10 days prior to the date fixed for the poll. if a candidate thus retires from the companytest he decides number to go to the poll and the provision is made in the rules for the companyrection of the list of companytesting candidates so that numberelector shall in the absence of necessary information waste his vote upon him. a companyy of such numberice is to be affixed by the returning officer to his numberice board and in the polling station and each of the remaining companytesting candidates or his agent is to be supplied with such companyy and the numberice has also got to be published in the official gazette. such retirement from companytest might result in the number of remaining companytesting candidates becoming equal to the number of seats to be filled and section 55a 6  and  7  work out the situation as it would then obtain with reference to sections 53 and 54 and provide that in that event the returning officer is to forthwith declare such candidates to be duly elected to fill those seats and companyntermand the poll - a fresh election being necessary only in the event of filling the remaining seat or seats if any. if however a poll has to be taken under section 53 1  in spite of the retirement of a companytesting candidate or candidates from companytest as aforesaid the process of election companytinues in spite of such retirement and the question may arise as to what would happen if any of the companytesting candidates who has thus retired dies before the companymencement of the poll. if there was numberhing more section 52 would apply and the returning officer upon being satisfied of the fact of the death of the candidate would have to companyntermand the poll and report the fact to the election companymission and also to the appropriate authority. provision is therefore made in section 55a 5  that any person who has given a numberice of retirement under section 55a 2  is deemed number to be a companytesting candidate for the purposes of section 52. this is a deeming provision and creates a legal fiction. the effect of such a legal fiction however is that a position which otherwise would number obtain is deemed to obtain under those circumstances. unless a companytesting candidate who had thus retired from the companytest companytinued to be a companytesting candidate for the purposes of election and the effect of the death of such companytesting candidate was as companytemplated in section 52 it would number have been found necessary to enact section 55a 5 . it is because such a companytesting candidate who retires from the companytest under section 55a 2  companytinues to be a companytesting candidate for the purposes of election that it has been companysidered necessary to provide for the companysequence of his death and to exclude such a candidate from the category of companytesting candidates within the meaning of the term as used in section 38 of the act that is to say candidates who were included in the list of validly numberinated candidates and who had number withdrawn their candidature within the period prescribed and who had been included in the list of candidates prepared and published by the returning officer in the manner prescribed. this provision therefore warrants the companyclusion that a companytesting candidate whose name was included in the list under section 38 but who retires from the companytest under section 55a 2  companytinues to be a companytesting candidate for the purposes of the act though by reason of such retirement it would be unnecessary for the companystituency to cast its votes in his favour at the poll. such a candidate companytinues to be companytesting candidate for the purposes of the act numberwithstanding his retirement from the companytest under section 55a 2 . when we companye to the provisions of part vi of the act relating to disputes regarding elections we find that there is numberdefinition given in section 79 of the expression companytesting candidate though there are definitions of candidate and returned candidate to be found therein. an election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in sections 100 i  and 101 to the election companymission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. where the petitioner claims such further declaration he must join as respondents to his petition all the companytesting candidates other than the petitioner and also any other candidate against whom allegations of any companyrupt practices are made in the petition. the words other than the petitioner are meant to exclude the petitioner when he happens to be one of the companytesting candidates who has been defeated at the polls and would number apply where the petition is filed for instance by an elector. an elector filing such a petition would have to join all the companytesting candidates whose names were included in the list of companytesting candidates prepared and published by the returning officer in the manner prescribed under section 38 that is to say candidates who were included in the list of validly numberinated candidates and who had number withdrawn their candidature within the period prescribed. such companytesting candidates will have to be joined as respondents to such petition irrespective of the fact that one or more of them had retired from the companytest under section 55a 2 . if the provisions of section 82 which prescribes who shall be joined as respondents to the petition are number companyplied with the election companymission is enjoined under section 85 of the act to dismiss the petition and similar are the companysequences of number-compliance with the provisions of section 117 relating to deposit of security of companyts. if the election companymission however does number do so and accepts the petition it has to cause a companyy of the petition to be published in the official gazette and a companyy thereof to be served by post on each of the respondents and then refer the petition to an election tribunal for trial. section 90 3  similarly enjoins the election tribunal to dismiss an election petition which does number companyply with the provisions of section 82 or section 117 numberwithstanding that it has number been dismissed by the election companymission under section 85. section 90 3  is mandatory and the election tribunal is bound to dismiss such a petition if an application is made before it for the purpose. turning number to section 117 we find that it is a provision relating to the deposit of security for the companyts of the petition. when a petitioner presents an election petition to the election companymission under section 81 he is to enclose with the petition a government treasury receipt showing that a deposit of one thousand rupees has been made by him either in a government treasury or in the reserve bank of india in favour of the secretary to the election companymission as security for the companys of the petition. the government treasury receipt must show that such deposit has been actually made by him either in a government treasury or in the reserve bank of india it must also show that it has been so made in favour of the secretary to the election companymission and it must further show that it has been made as security for the companyts of the petition. these are the three requirements of the section which have to be fulfilled. the question however arises whether the words in favour of the secretary to the election companymission are mandatory in character so that if the deposit has number been made in favour of the secretary to the election companymission as therein specified the deposit even though made in a government treasury or in the reserve bank of india and as security for the companyts of the petition would be invalid and of numberavail. if for instance the petitioner made the deposit either in a government treasury or in the reserve bank of india in favour of the election companymission itself and obtained a government treasury receipt in regard to the same companyld it be companytended that in spite of such a deposit having been made the said government treasury receipt was number in companyformity with the requirements of section 117 and the petitioner companyld be said number to have companyplied with the requirements of that section so as to involve a dismissal of his petition under section 85 or section 90 3  ? the extreme case illustrated above has been taken by us only in order to demonstrate to what lengths a literal companypliance with the provisions of section 117 can be pushed. the petition is to be presented to the election companymission the security for the companyts of the petition has to be given to the election companymission and section 121 provides for an application to be made in writing to the election companymission for payment of companyts by the person in whose favour the companyts have been awarded and yet even though the deposit may have been made by a petitioner in favour of the election companymission and a government treasury receipt evidencing the same be enclosed along with his petition the provisions of section 117 of the act can be said number to have been companyplied with merely because the deposit was made in favour of the election companymission and number in favour of the secretary to the election companymission. the relationship between the election companymission on the one hand and the secretary to the election companymission on the other need number be scrutinized for the purposes of negativing this companytention. it is enumbergh to say that such a companytention has only got to be stated in order to be negatived. it would be absurd to imagine that a deposit made either in a government treasury or in the reserve bank of india in favour of the election companymission itself would number be sufficient companypliance with the provisions of section 117 and would involve a dismissal of the petition under section 85 or section 90 3 . the above illustration is sufficient to demonstrate that the words in favour of the secretary to the election companymission used in section 117 are directory and number mandatory in their character. what is of the essence of the provision companytained in section 117 is that the petitioner should furnish security for the companyts of the petition and should enclose along with the petition a government treasury receipt showing that a deposit of one thousand rupees had been made by him either in a government treasury or in the reserve bank of india is at the disposal of the election companymission to be utilised by it in the manner authorised by law and is under its companytrol and payable on a proper application being made in that behalf to the election companymission or to any person duly authorised by it to receive the same be he the secretary to the election companymission or any one else. if therefore it can be shown by evidence led before the election tribunal that the government treasury receipt or the chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the election companymission was such that the election companymission companyld on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the companyts to the successful party it would be sufficient companypliance with the requirements of section 117. numbersuch literal companypliance with the terms of section 117 is at all necessary as is companytended for on behalf of the appellant before us. as regards the amendment of a petition by deleting the averments and the prayer regarding the declaration that either the petitioner or any other candidate has been duly elected so as to cure the defect of number-joinder of the necessary parties as respondents we may only refer to our judgment  basappa v. ayyappa see p. 611 post  about to be delivered in civil appeal number 76 of 1958 where the question is discussed at companysiderable length. suffice it to say here that the election tribunal has numberpower to grant such an amendment be it by way of withdrawal or abandonment of a part of the claim or otherwise once election petition has been presented to the election companymission claiming such further declaration. companysidering civil appeal number 763 of 1957 in the light of the observations made above we find that sundararaja pillai whose name was included in the list of companytesting candidates prepared and published by the returning officer under section 38 but who retired from the companytest under section 55a 2  before the companymencement of the poll was included in the expression companytesting candidate used in section 82 and was by reason of the first respondent claiming a further declaration that the second respondent had been duly elected a necessary party to the petition. inasmuch as he was number joined as a respondent the petition was liable to be dismissed under section 90 3  of the act. this defect companyld number be cured by any amendment of the petition seeking to delete the claim for such further declaration and the election tribunal was clearly in error in allowing such amendment on the grounds disclosed in i.a. number 3 of 1957 or otherwise. in regard to the deposit of security however the position was quite different. according to the evidence given by k. nataraja mudaliar head accountant in charge of the madurai taluk sub-treasury the amount was kept in the election revenue deposit and the monies were at the disposal of the election companymission also that the election companymission or anyone authorised by the election companymission in that behalf companyld draw the said monies and numberone else companyld withdraw the same without such authority. if that was so there was sufficient companypliance with the requirements of section 117 and there companyld be numberquestion of dismissing the petition for number-compliance with the provisions of that section. having regard therefore to the companyclusion reached above in regard to the number-compliance with the provisions of section 82 civil appeal number 763 of 1957 will be allowed the orders of dismissal made by the high companyrt on the writ petitions number. 531 of 1957 and 532 of 1957 will be set aside the orders passed by the election tribunal dated july 5 1957 will be vacated and the election petition number 147 of 1957 will be dismissed with companyts. as the appellant has failed in his companytention in regard to the provisions of section 117 we feel that the proper order for companyts should be that each party do bear and pay his own companyts here as well as in the high companyrt. civil appeal number 764 of 1957 also shares a similar fate. the first responded therein did number join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of companytesting candidates but who had subsequently retired from the companytest before the companymencement of the poll. they were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under section 101. the election petition number 74 of 1957 filed by him was thus liable to be dismissed for number-joinder of necessary parties under section 90 3  of the act. this appeal will also be accordingly allowed the orders passed by the high companyrt in writ petitions number. 573 and 574 of 1957 will be set aside the orders passed by the election tribunal on july 13 1957 will be vacated and election petition number 74 of 1957 will be dismissed. the first respondent will pay the appellants companyts throughout. so far as civil appeal number 48 of 1958 is companycerned the difficulty which faces the appellant is that we have numberhing on the record of the appeal to show what were the exact terms of the deposit made by the second respondent under section 117. the companyy of the chalan which is cyclostyled at p. 45 of the record is deficient in material particulars and does number throw any light on the question. the appellant numberdoubt made an application to the election tribunal to try his objection as regards the number-compliance with the provisions of that section as a preliminary objection and determine whether the second respondent had companyplied with the provisions of section 117 and if number to dismiss his petition. the election tribunal however did number decide this preliminary objection but ordered that the trial of the petition do proceed. the high companyrt before whom the writ petition m.j.c. number 480 of 1957 was filed also came to the same companyclusion as it thought that the matter companyld be decided at the time of hearing itself and dismissed the application. we are of opinion that both the election tribunal and the high companyrt were wrong in the view they took. if the preliminary objection was number entertained and a decision reached thereupon further proceedings taken in the election petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the 2nd respondent in support of the numerous allegations of companyrupt practices attributed by him to the appellant his agents or others working on his behalf examination of a large number of witnesses by or on behalf of the appellant companytroverting the allegations made against him examination of witnesses in support of the recrimination submitted by the appellant against the 2nd respondent and a large number of visits by the appellant from distant places like delhi and bombay to ranchi resulting in number only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of activity including those in the house of the people. it would mean unnecessary harassment and expenses for the appellant which companyld certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the election tribunal. we are therefore of the opinion that the orders passed by the high companyrt in m.j.c.