Election petition non-joinder and security deposit compliance under the Representation of the People Act remain mandatory but not purely literal

A candidate whose name remained in the published list of contesting candidates was treated as a contesting candidate for section 82 of the Representation of the People Act, 1951, even after retirement under section 55A(2); where the petitioner also sought a declaration that another candidate was duly elected, non-joinder of such a candidate was mandatory and attracted dismissal under section 90(3). The security-deposit requirement under section 117 was treated as one of effective compliance: omission to state that the treasury deposit was made in favour of the Secretary to the Election Commission was not fatal if the deposit was otherwise valid and under the Commission's control, though the objection had to be decided on the evidence before the Tribunal.

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Issues: (i) Whether a candidate whose name was included in the list of contesting candidates but who retired from the contest under section 55A(2) of the Representation of the People Act, 1951 remained a "contesting candidate" for the purpose of section 82 when the election petition also sought a declaration that another candidate had been duly elected. (ii) Whether omission to mention in the treasury receipt that the security deposit under section 117 was made in favour of the Secretary to the Election Commission was fatal to maintainability.

Issue (i): Whether a candidate whose name was included in the list of contesting candidates but who retired from the contest under section 55A(2) of the Representation of the People Act, 1951 remained a "contesting candidate" for the purpose of section 82 when the election petition also sought a declaration that another candidate had been duly elected.

Analysis: The statutory scheme treats the list of contesting candidates published under section 38 as identifying those who remain in the election contest after the withdrawal period. Section 55A(2) permits retirement from the contest, but section 55A(5) creates a deeming fiction only for the purposes of section 52 and does not eliminate the character of such a person as a contesting candidate for the Act generally. When a petitioner seeks the additional relief of a declaration that he or another candidate has been duly elected, section 82 requires joinder of all contesting candidates other than the petitioner. That requirement is mandatory, and non-joinder attracts dismissal under section 90(3).

Conclusion: Such a retired candidate remained a contesting candidate for section 82, and his non-joinder made the election petition liable to dismissal.

Issue (ii): Whether omission to mention in the treasury receipt that the security deposit under section 117 was made in favour of the Secretary to the Election Commission was fatal to maintainability.

Analysis: Section 117 is designed to secure costs of the election petition. The essential requirement is that the prescribed sum be deposited and be available under the control of the Election Commission for payment in accordance with law. The wording "in favour of the Secretary to the Election Commission" is directory rather than mandatory, so a deposit that is otherwise traceable, effective, and within the Commission's control substantially complies with the section. The record in the first appeal showed such effective compliance. In the third appeal, the record was insufficient for a final determination, and the objection had to be decided as a preliminary issue by the Election Tribunal.

Conclusion: The omission was not fatal where effective security had been furnished, but in the third appeal the objection under section 117 was required to be decided on the evidence before the Tribunal.

Final Conclusion: The appeals resulted in dismissal of the election petitions for non-joinder where section 82 was not complied with, while the security-deposit objection under section 117 was treated as one of substance but not of strict literal form, and the matter requiring factual verification was remitted for decision according to law.

Ratio Decidendi: A person whose name is included in the published list of contesting candidates remains a contesting candidate for the purposes of section 82 even after retirement under section 55A(2), and the requirement in section 117 is satisfied by effective deposit of security under the control of the Election Commission notwithstanding non-compliance with the literal wording as to the named payee.

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