Sitaram vs Radhey Shyam Vishnav

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1200 OF 2018 (@ S.L.P. (C) No. 20768 of 2017)

Sitaram Appellant (s)

VERSUS

Radhey Shyam Vishnav & Ors. Respondent(s)

JUDGMENT

Dipak Misra, CJI

The singular issue that arises for consideration in this

appeal by special leave is whether the High Court of Judicature

for Rajasthan at Jaipur Bench is justified in dismissing S.B.

Civil Writ Petition No. 8238 of 2017 thereby affirming the order

dated 23.05.2017 passed by the learned Additional District

Judge, Kishangarh, District Ajmer (herein after referred to as

“the Election Tribunal”) in Election Petition No. 55 of 2016

whereunder the Election Tribunal had rejected the application Signature Not Verified Digitally signed by DEEPAK GUGLANI Date: 2018.03.06 12:51:22 IST Reason:

preferred under Order VII Rule 11(d) and (e) read with Order 2

XIV Rule 2 read with Section 151 of the Code of Civil Procedure

(CPC) seeking rejection of the election petition on the

foundation that there had been non-compliance of the

Rajasthan Municipalities Election Petition Rules, 2009 (herein

after referred to as “the 2009 Rules”) which are mandatory in

character.

2. Bereft of unnecessary details, the facts requisite to be

stated are that the appellant and the 1st respondent were

elected to Municipal Ward Nos. 28 and 45 respectively of

Municipal Council, Kishangarh. The election to the post of

Chairperson of the Municipal Corporation is to be made from

amongst the 45 Ward Members and the said post has been

reserved for the OBC category. There is no dispute that both

the appellant and the 1st respondent belong to the OBC

category. The election was held on 21.08.2015. The appellant,

as per the votes counted by the returning officer, received 23

votes and the 1st respondent secured 18 votes as a

consequence of which the appellant was declared elected.

Challenging the election, Election Petition No. 180 of 2015 was

filed by the 1st respondent alleging that the votes in favour of

the elected candidate had been erroneously counted though 3

they deserved to be rejected on the ground that 11 voters had

left such marks on the ballot papers that could identify them.

Apart from the said allegation, certain other aspects were also

pleaded. It was also set forth in the petition that a sum of Rs.

1,000/- had been deposited before the Election Tribunal as per

law.

3. After filing a reply to the election petition, the appellant

filed an application under Order VII Rule 11 read with Section

151 CPC for rejection of the election petition because of

non-compliance of Rule 3(d) of the 2009 Rules. In addition to

the aforesaid, certain other grounds were also urged to reject

the election petition but as the said grounds have not been

canvassed before us, we need not dwell upon the same.

4. It was contended before the Election Tribunal that as

required by the 2009 Rules, an election petition may be filed by

a candidate who has been defeated or whose nomination has

been rejected to challenge the election by filing an election

petition which is required to be accompanied by a treasury

challan of Rs. 1,000/- and the Judge hearing the election

petition as per Rule 7(3) of the 2009 Rules is obligated to

dismiss the election petition which does not comply with the 4

provisions of the said Rules. It was pleaded that though the 1st

respondent had filed the election petition on 09.09.2015, yet it

was not accompanied by treasury challan of Rs. 1,000/- and to

substantiate the same, reliance was placed on the order dated

16.09.2015 passed by the Election Tribunal wherein it had

allowed the election petitioner to deposit the amount. The

same is also perceptible from the order dated 17.9.2015. The

application for rejection was resisted by the election petitioner

on the ground that he had filed an application before the court

to file the receipt of challan of Rs. 1,000/- and the amount was

subsequently deposited and, therefore, the application for

rejection of the election petition did not merit consideration.

5. The Election Tribunal took note of the fact that the

amount was deposited on 16.08.2015 and further as the

election petitioner had filed an application in the court and

had, under the direction of the court, deposited the said

amount and filed the receipt thereof in the court, the ground

raised under Order VII Rule 11 was sans substratum and did

not deserve acceptance.

6. Aggrieved by the aforesaid order, the appellant filed Writ

Petition before the High Court and reiterated the grounds urged 5

before the Election Tribunal. The High Court, as is discernible

from the impugned order, did not advert to the question of

nature of the provision as engrafted in the 2009 Rules and

noted that the issue whether the election petition was liable to

be rejected despite the subsequent submission of the challan

within the period of limitation was not required to be gone into

as the application under Order VII Rule 11(d) CPC on the

ground agitated therein was not maintainable and

mis-directed. Being of this view, the High Court dismissed the

Writ Petition. The High Court further directed that the writ

petitioner would be free to agitate all the defences in his written

statement as available to him in law against the election

petition including its maintainability.

7. We have heard Mr. Mahavir Singh, learned senior counsel

for the appellant, and Mr. Sushil Kumar Jain, learned senior

counsel for the 1st respondent.

8. As the controversy rests upon the interpretation of the

2009 Rules, it is necessary to scan and understand the nature

and character of the said Rules. Rule 3 of the 2009 Rules deals

with the election petition. Rule 3(3) provides the grounds on

which the election of any person as Chairperson or 6

Vice-Chairperson or member of a municipality can be

questioned. Rule 3(5) of the said Rules provides for the

requirements of an election petition. The said Rule, being

pertinent, is extracted below:-

“Rule 3(5). An election petition –

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including names of the person alleged to have committed such corrupt practice and the date and place of the commission of such practice;

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908) for the verification of pleadings. Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition, and

(d) shall be accompanied by a treasury challan of rupees one thousand.” [Emphasis added]

9. Rule 7 of the 2009 Rules deals with the decision of the

Judge. As we are only concerned with sub-rule (3) of Rule 7, it

is reproduced below:-

“Rule 7. Decision of the Judge.-

(3) The Judge shall dismiss an election petition, which does not comply with the provisions of these rules.” [Underlining is ours] 7

10. It is submitted by Mr. Singh, learned senior counsel

appearing for the appellant, that as per Rule 3(5)(d), it is

mandatory that an election petition is required to be

accompanied by a treasury challan of Rs. 1,000/- and if the

said requirement is not complied with, it is obligatory on the

part of the Judge to dismiss the election petition. He would

urge that the factum of non-deposit is a matter of record and

the language employed in the relevant Rule is mandatory in

character and, therefore, the Election Tribunal completely erred

in rejecting the petition and the High Court failed to exercise

the jurisdiction vested in it by not correctly adverting to the

same.

11. Mr. Jain, learned senior counsel appearing for the 1st

respondent, would contend that the 2009 Rules stipulate filing

of treasury challan for the making of a deposit and there is a

distinction between filing of a treasury challan and making the

deposit. He would submit that the order of the Court is

necessary to make a deposit in the court as per the General

Rules (Civil), 1986 (hereinafter referred to as “the 1986 Rules”)

which is prevalent in the State of Rajasthan. Apart from other

decisions, he has commended us to the judgment dated 8

08.08.2016 passed by the learned single Judge of the High

Court of Rajasthan in Civil Writ (CW) No. 7637 of 2016.

12. Before we proceed to deal with the manner of deposit and

the mode provided under the 1986 Rules, it would be apt to

refer to certain authorities that have dealt with the

prescriptions pertaining to the presentation of an election

petition.

13. In Charan Lal Sahu v. Nandkishore Bhatt and

others1, the Court was dealing with the provisions contained in

Section 117 of the Representation of People Act, 1951 (for

short, “the 1951 Act”) which requires that at the time of

presenting an election petition, the petitioner shall deposit in

the High Court in accordance with the rules of the High Court

a sum of two thousand rupees as security for the costs of the

petition and it also confers power on the High Court to call

upon the election petitioner to give such further security for

costs as it may direct. It was contended before the High Court

that Section 117 of the 1951 Act is only directory and not

mandatory and that the deposit of Rs. 2000/- is only to secure

the costs in the course of the trial of the election petition. The

1 (1973) 2 SCC 530 9

said plea was negatived by the High Court. The two-Judge

Bench referred to Article 329(b) of the Constitution of India

which provides that no election to either House of Parliament

or to the House 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. Proceeding further, the Court observed:-

“3. … The right conferred being a statutory right, the terms of that statute had to be complied with. There is no question of any common law right to challenge an election. Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes. If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. This Court has held that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency 2 it was pointed out that strictly speaking, it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members, and if the Legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.”

2 1952 SCR 218 : AIR 1952 SC 64 10

14. The command in the provision, the Court opined, of the

deposit of the security along with the election petition as

required under Section 117 of the 1951 Act leaves no option

with the court but to reject the election petition. It is worthy

to note here that the Court distinguished the authority in K.

Kamaraja Nadar v. Kunju Thevar and others 3 where the

election petitioner under the unamended provision of Section

117 of the 1951 Act had deposited the amount in Government

treasury but had neither mentioned the complete head of

account in the Government treasury receipt nor was the

deposit made in favour of the Secretary to the Election

Commission as provided in the aforesaid Section. The Court in

K. Kamaraja Nadar (supra), interpreting the unamended

Section 117, had expressed thus:-

“31. … 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 Commission itself would not be sufficient compliance 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 Commission” used in Section 117 are directory and not mandatory in their character. What is of the essence of the provision contained in Section 117 is that the

3 1959 SCR 583 : AIR 1958 SC 687 11

petitioner should furnish security for the costs of the petition, and should enclose along 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, 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.

32. 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 terms of Section 117 is at all necessary as is contended for on behalf of the appellant before us.”

15. As stated earlier, the said decision was distinguished and

the distinction is vivid from the analysis made in the above

quoted paragraphs.

16. In this context, reference to the decision by the

Constitution Bench in Charan Lal Sahu v. Fakruddin Ali 12

Ahmed and others 4 is instructive. In the said case, the

nomination of the petitioner was rejected on the ground of non-

compliance with Sections 5-B and 5-C introduced in the

Presidential and Vice-Presidential Elections Act, 1952 by an

amendment made by Act 5 of 1974. Section 5-C(1) requires

that a candidate shall not be deemed to be duly nominated for

election unless he deposits or causes to be deposited a sum of

two thousand five hundred rupees. Section 5-C(2) lays down

that the sum required to be deposited under sub-section (1)

shall not be deemed to have been deposited under that sub-

section unless at the time of presentation of the nomination

paper under sub-section (1) of Section 5-B, the candidate has

either deposited or caused to be deposited that sum with the

Returning Officer in cash or enclosed with the nomination

paper a receipt showing that the said sum has been deposited

by him or on his behalf in the Reserve Bank of India or in a

Government Treasury. The petitioner in the said case had sent

a cheque for Rs. 2500/- to the Returning Officer along with his

nomination paper. Interpreting Section 5-C, the Court held that

enclosing a cheque for Rs. 2500/- did not comply with the

4 (1975) 4 SCC 832 13

mandatory requirement of sub-section (2) of Section 5-C. The

Court took note of the fact that the provision expressly states

that a candidate has to either deposit in cash or enclose with

the nomination paper a receipt showing that the said sum had

been deposited by him or on his behalf in the Reserve Bank of

India or in a Government Treasury. Relying on the said

decision, Mr. Mahavir Singh, learned senior counsel, would

submit that the concept of treasury challan would clearly mean

deposit in the treasury and filing the receipt of the amount that

has been deposited at the time of presentation of the election

petition but not to file a challan before the Court seeking

permission to deposit. The said submission has been

controverted by Mr. Jain, learned senior counsel, on two

counts, namely, seeking permission is imperative and as long

as there has been a deposit, the election petition cannot be

rejected treating it as not maintainable. We shall deal with the

said facet at a later stage.

17. In Aeltemesh Rein v. Chandulal Chandrakar and

others5, the Court opined that Section 117 of the 1951 Act has

been enacted having the source of power under Article 329(b) of

5 (1981) 2 SCC 689 14

the Constitution which provides that an election petition has to

be presented to such authority and in such manner as may be

provided for by or under law made by the appropriate

legislature. In the said case, admittedly, the appellant stated

in the election petition that he had deposited the security

amount of Rs. 2000/- along with the petition as required under

Section 117 of the 1951 Act but, in fact, no such deposit was

made. Dealing with the same, the Court expressed:-

“3. The only question which survives is as to what is the consequence of non-compliance with Section 117 of the Act. That question has been settled by the decision of this Court in Charan Lal Sahu v.

Nandkishore Bhatt (supra) wherein it was held that the High Court has no option but to reject an election petition which is not accompanied by the payment of security amount as provided in Section 117 of the Act. Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117. In that view of the matter, the High Court was right in dismissing the election petition summarily.”

18. From the aforesaid authority, it is clear as crystal that

there has to be compliance with the provision relating to

deposit failing which the Court has no option but to reject an

election petition. Be it noted with profit that the said decision 15

dealt with a situation where the election petition had to be

accompanied by payment of security deposit.

19. Mr. Jain, learned senior counsel appearing for the 1st

respondent, has advanced the contention with regard to

substantial compliance. To bolster the said submission,

immense inspiration has been drawn from a three-Judge

Bench decision in Chandrika Prasad Tripathi v. Shiv

Prasad Chanpuria and others6. In the said case, the Court

was dealing with the unamended provision of Section 117 of

the 1951 Act. The Court referred to the earlier decision in K.

Kamaraja Nadar (supra) and opined that Section 117 should

not be strictly or technically construed and that wherever it is

shown that there has been a substantial compliance with its

requirement, the Tribunal should not dismiss the election

petition on technical grounds. Scanning the language employed

in Section 117, the Court ruled:-

“… Indeed it is clear that the receipt with which this Court was concerned in the case of Kamaraj Nadar, (supra) was perhaps slightly more defective than the receipt in the present case. The argument based on the use of the word “refundable” ignores the fact that the security in terms has been made in respect of the election petition in question and it has been duly credited as towards the account of the Election

6 1959 SUPP (2) SCR 527 : AIR 1959 SC 827 16

Commission. Therefore, there can be no doubt that if an occasion arises for the Election Commission to make an order about the payment of this amount to the successful party, the use of the word “refundable” will cause no difficulty whatever. We hold that the security has been made by Respondent 1 as required by Section 117 of the Act and would be at the disposal of the Election Commission in the present proceedings.”

20. On a perusal of the aforesaid dictum, we are inclined to

state that the aforesaid decision has to be distinguished on the

principle laid down by this Court in Charan Lal Sahu (I)

(supra).

21. In M. Karunanidhi v. Dr. H.V. Hande and others7, a

two-Judge Bench was interpreting Section 117 of the 1951 Act

wherein the question arose as to whether the High Court was

justified in expressing the view that the factum of making

deposit of Rs. 2,000/- as security for costs in the High Court

was mandatory and the manner of making the deposit was

directory. It was contended before this Court that the

provisions of sub-section (1) of Section 117 of the 1951 Act are

mandatory and, therefore, non-compliance with the same has

to entail dismissal of the election petition in limine under

sub-section (1) of Section 117 of the 1951 Act. The Court 7 (1983) 2 SCC 473 17

adverted to the issue as to whether the provision is mandatory

or not and, in that context, held:-

“20. It is well established that an enactment in form mandatory might in substance be directory and that the use of the word “shall” does not conclude the matter. The general rule of interpretation is well- known and it is but an aid for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context. The following passage from Crawford on Statutory Construction at p. 516 brings out the rule:

‘The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.’

This passage was quoted with approval by the Court in State of U.P. v. Manbodhan Lal Srivastava8, State of U.P. v. Babu Ram Upadhya 9 and Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur 10 . The Court in Manbodhan Lal case where Article 320(3)(c) of the Constitution was held to be directory and not mandatory, relied upon the following observations of the Privy Council in Montreal Street Railway Company v. Normandin11:

‘The question whether provisions in a statute are directory or imperative has very

8 AIR 1957 SC 912 9 AIR 1961 SC 751 10 AIR 1965 SC 895 11 1917 AC 170 18

frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duly and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.’”

22. After so stating, the two-Judge Bench referred to Rule 8 of

the Madras High Court (Election Petitions) Rules, 1967. Be it

noted, the said Rule prescribes the mode of deposit. The

contention was advanced before the Court that it is paradoxical

to say that deposit of money into the Reserve Bank to the credit

of the Registrar, High Court, Madras is a sufficient compliance

of sub-section (1) of Section 117 when Rule 8 provides that the

money should be deposited in the High Court in cash, and that

is the only mode prescribed under sub-section (1) of Section

117.

23. Repelling the said submission, the Court held:-

19 “We are afraid, we are unable to accept this line of argument. A literal and mechanical interpretation of Rule 8 would lead to manifest absurdity as it would imply that in every case the election petitioner shall have to pay to the Registrar a sum of Rs 2000 in cash towards security for costs as required by sub- section (1) of Section 117 of the Act and obtain a receipt from him therefor. Rule 8 is silent as to how the cash is to be handled. It cannot ordinarily be expected that the Registrar of a High Court would accept the amount of security deposit in cash. The procedure adopted by II Assistant Registrar in directing that the money be deposited to the credit of the Registrar of the High Court in the Reserve Bank of India was in conformity with the requirements of Rule 8 of the Election Petitions Rules. Inasmuch as Rule 8 does not lay down the procedure regulating the manner of deposit of cash, the matter falls to be governed by Rule 2 of Order 31 of the Madras High Court (Original Side) Rules, 1956 by reason of Rule 12 of the Election Petitions Rules. Although Order 31 Rule 2 does not in terms apply because Order 31 relates to “Payment into Court of moneys to the credit of civil court deposits and account of suitors’ money”, and though no lodgment schedule can be prepared under Rule 2 except in pursuance of a decree or order passed by the High Court i.e. in relation to some proceeding pending, or disposed of, by the High Court, still by virtue of Rule 12 of the Election Petitions Rules that is the procedure to be adopted for deposit of Rs 2000 in the High Court in cash i.e. by crediting the amount on the strength of a pre-receipted challan prepared by the Accounts Department on the basis of a lodgment schedule. That was the only procedure applicable and there was nothing wrong in the procedure adopted in making the deposit.

When the amount was so deposited with a pre- receipted challan issued by the Accounts Department to the credit of the Registrar of the High Court and the Reserve Bank of India made the endorsement “Received in Cash”, it must be 20

regarded that the payment was made in the High Court and the pre-receipted challan bearing the endorsement of the Reserve Bank of India must be treated as the receipt of the Registrar in terms of Rule 8, the Reserve Bank acting as an agent of the High Court.”

Be it noted, the Court relied on the authorities in K.

Kamaraja Nadar (supra), Chandrika Prasad Tripathi

(supra), Om Prabha Jain v. Gian Chand and another12 and

Budhi Nath Jha v. Manilal Jadav13 to opine that Section 117

of the 1951 Act should not be strictly or technically construed

and substantial compliance with its requirement shall be

treated as sufficient. The decisions in Charan Lal Sahu (I)

(supra) and Aeltemesh Rein (supra) were discussed. The two-

Judge Bench took note of the fact that there is no provision to

absolve the election petitioner of payment of security for costs.

24. As we are only concerned with the deposit, we may

usefully refer to a three-Judge Bench decision in M.Y.

Ghorpade v. Shivaji Rao M. Poal and others14. In the said

case, the security as required under Section 117 of the 1951

Act was deposited in the High Court by the Respondent No.5

and not by the election petitioner who was the 1st respondent 12 AIR 1959 SC 837 : 1959 SUPP (2) SCR 516 13 (1960) 22 ELR 86 14 (2002) 7 SCC 289 21

before this Court. The High Court came to hold that as the

deposit in question had been made by the petitioner, and the

same had to be treated as security for the costs of the election

petition. For the said purpose, the High Court had placed

reliance on the decision in Chandrika Prasad Tripathi

(supra) and other decisions and the authority in M.

Karunanidhi (supra). It was urged before this Court that on

the foundation of Charan Lal Sahu (I) (supra) and Aeltemesh

Rein (supra), the view expressed by the High Court was

absolutely erroneous, for the deposit made by the Respondent

No.5 could never be construed as the deposit by the election

petitioner. The three-Judge Bench, analyzing the object of

Section 117 of the 1951 Act, held that the purpose of Section

117 is to discourage entertaining frivolous election petitions

and make provision for costs in favour of the parties who

ultimately succeed in the election petition. The Court further

observed that sub-section (2) of Section 117 authorises the

High Court to call upon an election petitioner during the course

of the trial of an election petition to give such further security

which may be necessary depending upon the facts and

circumstances of the case. The decision in Charan Lal 22

Sahu (I) (supra) was distinguished as it was a case of non-

deposit. The authority in Aeltemesh Rein (supra) was also

distinguished as no such deposit had been made though it was

stated in the petition that the security amount was being

deposited. The Court placed reliance on M. Karunanidhi

(supra) and eventually ruled:-

“This Court relied upon the earlier decision of this Court in the case of K. Kamaraja Nadar v. Kunju Thevar which was a case under the provisions of Section 117 of the Act, as it stood prior to its amendment, wherein also the receipt showed that the deposit had been made but did not show that the deposit had been made in favour of the Secretary to the Election Commission. One of the questions that arose was whether the expression “in favour of the Election Commission”, contained in Section 117, as it stood then, was mandatory in character or not, and this Court held that the first part of Section 117 though was mandatory, but not the later part. It is not necessary to multiply authorities on the point, but suffice it to say, that the sum of Rs 2000 must be deposited while filing an election petition and that is undoubtedly mandatory, but through whom the amount will be deposited etc. cannot be held to be mandatory.” (Underlining is ours)

From the aforesaid passage, it is luculent that deposit at

the time of presentation is mandatory but not the mode.

23 25. Many an authority has been commended to us with

regard to substantial compliance and the doctrine of curability.

We may refer to some of them.

26. In T.M. Jacob v. C. Poulose and others 15 , the

Constitution Bench was dealing with the defects pertaining to

true copy of the affidavit as has been held to be mandatory in

Dr. Shipra and others v. Shanti Lal Khoiwal and others16.

The larger Bench expressed thus:-

“40. In our opinion it is not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defects which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. …”

27. Be it stated, the Court in the said case referred to the

Constitution Bench decision in Murarka Radhey Shyam Ram

15 (1999) 4 SCC 274 16 (1996) 5 SCC 181 24

Kumar v. Roop Singh Rathore and others17 and opined that

the tests laid down therein are sound and did not require a

repetition.

28. In G.M. Siddeshwar v. Prasanna Kumar 18 , the three-

Judge Bench after referring to T.M. Jacob (supra) came to hold

that the defect in verification of affidavit is not fatal to the

election petition and it could be cured. Reference was made to

a passage from Anil Vasudev Salgaonkar v. Naresh Kushali

Shigaonkar19 wherein it has been held:-

“50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with.”

29. After so stating, the three-Judge Bench ruled :-

“52. The principles emerging from these decisions are that although non-compliance with the provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance with the provisions thereof. However, if there is total and complete non-compliance with the provisions of Section 83 of the Act, then the petition cannot be

17 AIR 1964 SC 1545 : 1964 (3) SCR 573 18 (2013) 4 SCC 776 19 (2009) 9 SCC 310 25

described as an election petition and may be dismissed at the threshold.”

30. We may immediately clarify that the aforesaid cases dealt

with substantial compliance relating to ‘true copy’,

‘verification’, ‘affidavit’ and applicability of the principle of

curability. In G.M. Siddeshwar (supra), the Court made a

difference between total and complete non-compliance with the

provision of Section 83 of the 1951 Act whereupon the election

petition cannot be described as an election petition and may be

dismissed at the threshold. In the instant case, we are

concerned with the deposit by treasury challan which shall

accompany the election petition. The Rule prescribes in

categorical terms that the tribunal shall dismiss the petition in

case of non-compliance. We have referred to the authorities

relating to security deposits under Section 117 of the 1951 Act.

The present rules refer to municipal election. It is worthy to

note that the election petition in para 15 has stated thus:-

“15. That necessary Court fee has been paid with this petition. Rs. 1000/- has been deposited before this Hon’ble Court as per Law. A copy of this petition has already been sent to the District Returning Officer.” 26

31. As stated earlier, the petition was filed on 09.09.2015 but

the treasury challan was not filed on that day. The Election

Tribunal had passed an order on a later date permitting the

deposit. It is submitted by Mr. Jain that the election

petitioner could not have deposited the amount without

obtaining the permission of the Court. To substantiate the said

stand, he has placed reliance on the 1986 Rules. We have

been commended to Rules 252, 253, 260, 261 and 262. We

think it appropriate to reproduce the said Rules:-

“252. Appointment of a Receiving Officer.- (1) Every civil court or where two or more courts have a single account with the Treasury, every such group of courts, shall have an official entrusted with the receipt of money deposited in the Court.

(2) Such official shall be called as the Receiving Officer and shall be appointed by the presiding officers of the Civil Court or where two or more courts have single account with the Treasury, he shall be appointed by the presiding officer of the highest court subject to instructions if any, of the District Judge concerned.

(3) In a court where no official is appointed specifically to perform the duties of the Receiving Officer or during the absence on leave or otherwise of the person appointed as the Receiving Officer, the presiding officer of the civil court or the presiding officer of the high court as the case may be, shall appoint any other official of his court to carry on the duties of the Receiving Officer.

27 253. Head of account.- The following are the head of account under which the money received and paid under these Rules are classified:-

(1) Deposits;

(a) Civil Court deposits, including:

(i) sums paid under decrees and orders;

(ii) sums deposited under Order XX, Rule 14 and Order XXIV, Rule 1 of the Civil Procedure Code and Section 83 of the Transfer of Property Act;

(iii) Sums deposited under Order XXII, Rule 84 or paid under Order XXI, Rule 85 of the Code;

(iv) Sums deposited under Section 379(1) of the Indian Succession Act;

(v) Sums deposited in lieu of security;

(vi) Sums deposited under any law relating to the Land Acquisition;

(b) petty cash deposits, including deposits for:-

(i) Travelling and other expenses of witnesses;

(ii) Subsistence money for judgment debtors;

(iii) Incidental charges of Commissions, Amins and Arbitrators etc.;

(iv) Commission fees;

(v) Postage and registration fees;

(vi) Cost of publication of proclamation and orders; (2) Other Administrative Services. A. Administration of Justice.

(a) Services and Service fees;

(i)…..

(ii) Civil and Sessions and Judicial Courts;

28 (b) Fines and forfeitures;

(i)…..

(ii) Civil and Sessions & other Judicial Court.

(c) Other Receipts.

I. Sale proceeds of unclaimed and escheated property

(i)….

(ii) Civil and Sessions & other Judicial Courts. II. Legal Aid to poor.

III. Recoveries of over payments.

(i)……

(ii) Civil and Sessions & Other Judicial Court. IV. Other Receipts.

(i)….

(ii) Civil and Sessions & Other Judicial Court.

(d) Stamp duties and penalties.

Note:- Sub-heads (a),(b) &(c) have been classified in the State Account under the major head “065” Other Administrative Services and sub-head(d) under the major head “0.30” Stamps & Registration fees”. These major heads and sub-heads will automatically be deemed to have changed whenever they are changed in the Budget, (3) Departmental cash including:-

(i) Salary of establishment.

(ii) Travelling allowance.

(iii) Contingencies.

260. Mode of payment of money into court. -

Payment of money into court shall ordinarily be made by means of a tender upon a printed triplicate 29

form. The applicants shall enter in the court language the particulars required in columns 1 to 4 of the triplicate form of tender (F. 23). The applicant shall then hand over the tender to the Munsarim or the Reader of the Court concerned, as the case may be.

261. Office report by the official-in-charge of the record. - The Munsarim or the Reader of the court concerned, as the case may be, shall then call upon the official-in-charge of the record of the case for an office report as to whether the amount and nature of the payment tendered and the number of the suit, or proceeding, if any are correct, and whether the payment is due from the person on whose account it is tendered. Any necessary corrections shall be made and the munsarim or the Reader of the Court concerned, as the case may be, shall then sign the tender and enter it in the register of challans prior to the order for receipt of payment being passed.

262. Preparation of the order for payment. – The order to receive payment shall be prepared in the office of the Court and shall be enfaced upon the duplicate and triplicate forms of the tender, and shall run in the name of or Receiving Officer as prescribed in Rules 255, 256, 257. The order shall be signed by the presiding officer for all amount payable under Head of Account (1)(a) and (2) of Rule 253 and by the Munsarim or the Reader of the court concerned; as the case may be for all amounts payable under shall send the tender forms to the Munsarim or the Reader of the Court concerned, as the case may be. The third form of tender shall be retained in custody by the Munsarim or the Reader of the court concerned, as the case may be, and then he shall return the second copy of the tender to the applicant and the original copy shall be sent to the concerned court for keeping it in the concerned case file.” 30

32. In this regard, our attention has also been invited to the

General Financial and Accounts Rules Volume I & Volume II.

Rule 54 of the said Rules deals with the payment into treasury.

Rule 56 deals with Signing of Challan by Departmental Officer.

The said Rules read as follows:-

“Rule 54: (1) Payments of money into the treasury or bank may be made in cash, by E-payment, cheques, bank draft, Banker’s cheque and Postal Orders.

(2) Challan : Subject as otherwise provided in these Rules, or unless the Government in relation to any particular class of transactions direct otherwise any person paying money into a treasury or the Bank on Government accounts shall present a challan in Form G.A. 57 showing distinctly the nature of the payment, the person or Government officer on whose account it is made, and all the information necessary for the preparation of the receipt to be given in exchange, for the proper account classification of the credit and, where necessary for its allocation between Government and departments concerned.

Separate challans shall be used for moneys creditable to different head of accounts.

Note: However, in case of E-payment, physical challan will not be required. Instead, prescribed details usually received through physical challan, will be incorporated into a scroll of E-payments which will be provided by the Bank duly authenticated on each page to the treasury for classification of credit and preparation of accounts of the Government.

xxx xxx xxx

Rule 56: Signing of Challan by Departmental Officer: When money is paid by a private person into 31

a treasury located in the same place as the departmental officer concerned with the payment, the challan shall before presentation to the Bank, Treasury or Bank be signed by the officer to whose account the money is to be credited. The departmental officer shall particularly check classification before it is given to the depositor. Such challans shall be received direct at the Bank without the intervention of Treasury Officer.

Note: Challans may also be signed by non-Gazetted Government servants as may be authorized by the Government. Presently Excise Inspector, Balotra and Insurance Assistants are authorized to sign challan for excise revenue and for deposits by the Panchayat Samiti or local bodies on account of State Insurance, etc.”

33. In this context, we may also refer to Rule 83 and Rule 86

of the Rajasthan Treasury Rules, 2012 (hereinafter referred to

as “the 2012 Rules”) . They read as follows:-

“83. No item should be credited as a deposit save under the formal order of a Competent Authority. Besides, no sum shall be credited in any deposit register which can be carried to any other head of account, for example, revenue paid to Government on account of a demand not yet due should at once be credited to the proper revenue head, instead of treating it as a deposit.

xxx xxx xxx

86. All kinds of revenue deposits under this category shall be separately paid into treasury linked agency bank with challans/System Generated Challans and other prescribed documents setting forth all the particulars necessary for entries to be made in Revenue Deposit 32

Register. Each item of revenue deposit, other than security deposit relating to election of Lok Sabha received, should at once be properly entered with unique identification number. There should be a separate series of numbers for each register, beginning afresh each year. All deposits must be separately paid into the treasury with challans or other documents setting forth all the particulars necessary for the entries to be made in the register of deposit receipts. The treasury officer should carefully check the amount and particulars of each entry and then set his initials in the proper column against each. The format for Revenue Deposit Register is appended in form No. TY‐2.

Notes: 1. Revenue deposit registers need not necessarily be opened every year but if there are a sufficient number of pages available in the old registers, they should be utilized, a separate series of numbers being given every year for each class of deposit.

2. The entry in the columm “Nature of deposit” should be sufficient to explain why the amount is deposited.

3. In system driven environment, the treasury officer shall create new account for each revenue deposit received. The unique deposit ID shall be generated at the time of creation of account which will provide link to original deposit at the time of refund of deposit.”

34. Mr. Jain has referred to Form G.A.-57. The said form

relates to cash challan. It provides for the signature of the

person who deposits and in whose favour the deposit is being

made and the permission for deposit. The Form also provides 33

for the amount and certain heads or categories. The

submission, in essence, is that the cumulative reading of the

1986 Rules and the 2012 Rules clearly show that there cannot

be any deposit without the permission of the concerned Court

or authority. Support has been drawn from the judgment

passed by the learned Single Judge in Ashok Kumar v.

Learned A.D.J. No. 2 Chittorgarh and others20 wherein the

High Court was dealing with Rule 85 of the election of

Sarpanch of Gram Panchayat. The action was challenged under

Section 43 of the Rajasthan Panchayati Raj Act, 1994 and the

issue arose with regard to the interpretation of the provisions

contained in the Rajasthan Panchayati Raj Election Rules,

1994 (for short, “the 1994 Rules”). Rule 81(2) of the 1994

Rules provides that no petition shall be deemed to have been

presented under the election rules unless the petitioner

deposits a sum of Rs. 50/- along with the petition by way of

security deposit for the costs of the opposite party. In the said

case, the election petition was filed on 28.02.2015 but costs

were not deposited along with the petition and the same were

deposited on 12.03.2015. It was contended before the learned

20 Civil Writ (CW) No.7637 of 2016 decided on 8.8.2016 34

single Judge that the election petitioner had submitted the

challan/tender for the deposit on 28.02.2015 itself but the

Election Tribunal had not passed any order for depositing the

costs with the treasury and, therefore, the same could not have

been deposited on that day and the deposit was made after the

order was passed. The learned single Judge took note of Rule

85 of the Election Rules which provides that the procedure

provided in the CPC with regard to suits is made applicable in

so far as can be made applicable and came to hold that if the

deposit exceeds Rs. 25/-, the same can only be deposited in the

treasury if an order is passed by the Court or by the Munsarim

or the Reader of the Court concerned, as the case may be.

35. In this regard, Mr. Singh has placed reliance on an earlier

decision of the Rajasthan High Court in Gulab Singh v. The

Munsif and Judicial Magistrate 1st Class and others 21. In

the said case, the learned single Judge was dealing with the

security deposit as provided under Rule 79(2) & (3) of the

Rajasthan Panchayat and Nyaya Panchayat Election Rules,

1960. In the said case, the deposit was made subsequently. It

was contended that the same was fatal to the case as the

21 1981 WLN (UC) 78 35

provision is mandatory. Rule 79(2) of the said Rules read as

follows:-

“79(2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs.50/- along with the petition by way of security for the costs of the opposite party.”

36. The learned single Judge placed reliance on Charan Lal

Sahu (II) (supra) and came to hold that Rule 79(2) in relation to

the deposit of the security along with the petition is mandatory

and since on facts it is not in dispute that on 21st February,

1978 when the election petition was filed, it was not presented

along with a deposit of Rs. 50/- as required for the costs of the

opposite party, the legal and logical consequences would be

that the election petition could not be deemed to have been

presented under the Rules as per the mandate of Rule 79(2) of

the Rajasthan Panchayat and Nyaya Panchayat (Election)

Rules,1960. Being of this view, the learned single Judge opined

that there was no valid election petition before the Election

Tribunal.

37. The discussion hereinabove can be categorized into three

compartments. First, the deposit is mandatory and the mode of

deposit is directory; second, the non-deposit will entail 36

dismissal and irregular deposit is curable and third, in other

areas like verification, signature of parties, service of copy, etc.,

the principle of substantial compliance or the doctrine of

curability will apply. In the case at hand, Rule 3(5)(d)

commands that the election petition shall be accompanied by

the treasury challan. The word used in the Rule is

‘accompanied’ and the term ‘accompany’ means to co-exist or

go along. There cannot be a separation or segregation. The

election petition has to be accompanied by the treasury challan

and with the treasury challan, as has been understood by this

Court, there has to be a deposit in the treasury. The 2012

Rules, when understood appropriately, also convey that there

has to be deposit in the treasury. Once the election petition is

presented without the treasury challan, the decisions of this

Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein

(supra) pertaining to non-deposit will have full applicability.

The principle stated in M. Karunanidhi (supra), K. Kamaraja

Nadar (supra), Chandrika Prasad Tripathi (supra) and other

decisions will not get attracted. The interpretation placed on

the 1986 Rules by the learned single Judge in Ashok Kumar

(supra) cannot be treated to lay down the correct law. We arrive 37

at the said conclusion as we do not find that there is really any

Rule which prescribes filing of treasury challan before the

Election Tribunal in election petition after seeking permission

at the time of presenting an election petition. Permission, if

any, may be sought earlier. Such was the case in Bajrang Lal

v. Kanhaiya Lal and others22 where the election petition was

submitted on 31.8.2005 and an application was submitted

before the court below on 30.8.2005 under Section 53 of the

Act of 1959 with the signature of the advocate and an order

was passed by the court on the same application itself on

30.8.2005 allowing the advocate to deposit the security amount

under Section 53 of the Act of 1959 for election petition. The

election petition was submitted on 31.8.2005. In such a fact

situation, the High Court found that there was compliance with

the provision.

38. Mr. Jain would submit that this is not an incurable defect

as the deposit has been made within the period of limitation.

The said submission leaves us unimpressed inasmuch as Rule

7 leaves no option to the Judge but to dismiss the petition.

Thus, regard being had to the language employed in both the

22 RLW 2007 (2) Raj 1551 38

Rules, we are obligated to hold that the deposit of treasury

challan which means deposit of the requisite amount in

treasury at the time of presentation of the election petition is

mandatory. Therefore, the inevitable conclusion is that no valid

election petition was presented. In such a situation, the learned

Additional District Judge was bound in law to reject the

election petition.

39. In view of the aforesaid analysis, we allow the appeal and

set aside the order passed by the High Court that has affirmed

the order of the Additional District Judge as a result of which

the election petition shall stand rejected. There shall be no

order as to costs.

……………………………,CJI (Dipak Misra)

……………………………...,J.

(A.M. Khanwilkar)

……………………………...,J.

(D.Y. Chandrachud)

New Delhi;

March 06, 2018