V.Bhargava, J. - (1.) Haji Abdul Wahid has filed this petition under Article 226 of the Constitution for the issue of a writ of certiorari to quash a decision of the Election Tribunal, Allahabad dated 25-9-1957, by which the Tribunal dismissed under Section 90(3) of the Representation of the People Act an election, petition which had been presented by the present petitioner challenging the election of opposite party No. 1, Dr. Balkrishna Vishunath Keskar, to the House of the People from the Sultanpur Mus-firakhana Constituency No. 358. The ground, on which the Tribunal dismissed the election petition under Section 90(3) of the Representation of the People Act, was that the Government Treasury receipt attached to the election petition by the petitioner when he presented the election petition to the Election Commission, did not show that the sum of Rs. 1,000/- deposited as security had been deposited in favour of the Secretary, Election Commission. The Tribunal held that the provisions of Section 117 of the Representation of the People Act were mandatory and, since the receipt did not have inscribed on it the words 'in favour of the Secretary, Election Commission,' there was non-compliance with the provisions of Section 117 of the Representation of the People Act- It is this decision that has been challenged by this writ petition.
(2.) When this writ petition came up for hear-ing before us, a very similar point bad already been decided by this Court in Bhuvanesh Bhushan Sharma v. Election Tribunal, Farrukhabad, 1958 All LJ 443: (AIR 1958 All 587). It was held in that case that if the head of account prescribed by the Central Government for the deposit of security for costs of an election petition was correctly shown in a Government Treasury receipt, it necessarily followed that the deposit was in favour of the Secretary, Election Commission, and consequently the entry of the head of account was sufficient to show that the deposit was in favour of the Secretary, election Commission. Subsequent to that decision by this Court, there has also been a decision by the Supreme Court in Kamaraja Nadar v. Kunju Thevar, 1958 SCJ 680: (AIR 1958 SC 687) where the Supreme Court held as follows : "What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the cost of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of Rs. 1,000/-has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission 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 Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of Section 117. No such literal compliance with the items of Section 117 is at all necessary as is contended for on behalf of the appellant before us." Prima facie, these two decisions would show that the order of the Election Tribunal dismissing the election petition in the present case was incorrect because the correct head of account was entered in the Government Treasury receipt which was attached to the election petition. Mr. Fathak, learned counsel for opposite party No. 1, Dr. Balkrishna Vishunath Keskar, has however urged that decision of this Court in Bhuvnesh Bhushan Shanna's case 1958 All LJ 443: (AIR 1958 All 587) should not be applied to this case, because the decision in that case proceeded on the basis of an examination of certain treasury rules and government orders and further on the evidence of a Deputy Accountant General who was examined in this Court during the hearing of that case, whereas no such evidence is before this Count or was adduced before the Election Tribunal in the present case. In advancing this argument, learned counsel relied on the view of the Supreme Court in the case of Kamaraja Nadar, 1958 SCJ 680: (AIR 1958 SG 687) cited above where the Supreme Court gave the decision that it could be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan was such that the Election Commission could, on a necessary applicaition made in that behalf, be in a position to realise a sum of Rs. 1000/- for payment of the cost to the successful party. The Supreme Court having recognised that evidence could be led, Mr. Pathak has contended that, in the present case also it was necessary that the petitioner should have led evidence in order to establish the fact that the money deposited by him was at the disposal of the Election Commission to be utilised by it in the manner authorised by law. His further contention is that the treasury rules, government orders and the evidence of the Deputy Accountant General, which were taker, into account by this Court when deciding the case of Bhuvanesh Bhushan Sharma, 1958 All LJ 443: (AIR 1958 All 587) are pieces of evidence which cannot be react in the present case by this Court and could not have been taken into account by the Election Tribunal, and, if those pieces of evidence are excluded from consideration the decision of that case that the entry of the head of account was by itself sufficient to show that the deposit was in favour of the Secretary, Election Commission cannot be arrived at in this case. He has thus tried to distinguish the present case from that case and we have, therefore, to consider whether, in the present case, the Election Tribunal had before it any material or that it was bound to take into account any material and, if so, whether that material was sufficient to arrive at the same decision which was arrived at in the case of Bhuvanesh Bhushan Sharma, 1958 All LJ 443; (AIR 1958 All 587).
(3.) There can, of course be no doubti that, so far as the evidence of the Deputy Accountant General in the case of Bhuvanesh Bhushan Sharma, 1958 All LJ 443 : (AIR 1958 All 587) was concerned, that evidence was confined to that particular case only and any evidence given by him in that case before this Court cannot be taken info account when deciding the present writ petition, nor could it possibly have been taken in account by the Election Tribunal when dealing with the election petition of the present petitioner. It has, however, to be kept in view that the decision of this Court in Bhuvanesh Bhushan Sharma's case 1958 All LJ 443: (AIR 1958 All 587) did not turn on the evidence of the Deputy Accountant General. The judgment of that case itself makes it clear that the actual decision about the effect of the entry of the correct head of account in the receipt was based on the Central Government Treasury Rules and the relevant government order which were notified for the information of the public. The Deputy Accountant General was examined mainly for the purpose of discovering whether there were any other rule and order which had not come to the notice of the Court and for the additional purpose of interpreting one of the rules on which the word 'refund' had been used. The Court was inclined to interpret that word 'refund' in a certain manner and the Deputy Accountant General was questioned to make it sure that that interpretation was correct & was the interpretation which formed the basis of the actual procedure in the treasuries. Consequently, even if the evidence of the Deputy Accountant General had been entirely ignored, the decision of the Court would have been the same in Bhuvanesh Bhushan Sharma's case 1958 All LJ 443: (AIR 1958 All 587) as the one which has been given after taking some assistance from the evidence of the Deputy Accountant General. The result is that, in the present case, if the evidence of the Deputy Accountant General which was confined to the case of Bhuvanesh Bhushan Sharma, 1958 All LJ 443: (AIR 1958 All 587) alone, is not taken into account but the rest of the material is taken into account, we would still arrive at the same decision.;