SITARAM versus RADHEY SHYAM VISHNAV & ORS. on 6 March 2018

SITARAM

v.

RADHEY SHYAM VISHNAV & ORS.

(Civil Appeal No. 1200 of 2018)

MARCH 06, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR D.Y. CHANDRACHUD, JJ.]

Rajasthan Municipalities Election Petition Rules, 2009:

rr. 3(5)(d) and 7(3) – Election to the post of Chairperson ofMunicipal Corporation – Challenged by filing election petition –Application seeking rejection of election petition for non-complianceof r. 3(5)(d) – Application dismissed by Election Tribunal – In writpetition challenging order of Tribunal, High Court held that theapplication was not maintainable – On appeal, held: R.3(5)(d)mandates that election petition has to be accompanied by the treasurychallan and with the treasury challan, there has to be deposit in thetreasury – R.7(3) mandates dismissal of election petition fornon-compliance of rules – Therefore, the election Tribunal wasbound in law to reject the election petition – Election Laws.

Allowing the appeal, the Court

HELD: 1. Rule 3(5) (d) of Rajasthan Municipalities ElectionPetition Rules, 2009 commands that the election petition shallbe accompanied by the treasury challan. The word used in theRule is ‘accompanied’ and the term ‘accompany’ means toco-exist or go along. There cannot be a separation or segregation.The election petition has to be accompanied by the treasurychallan and with the treasury challan there has to be a deposit inthe treasury. [Para 37] [625-B-C]

2. There is no rule which prescribes filing of treasury challanbefore the Election Tribunal in election petition after seekingpermission at the time of presenting an election petition.Permission, if any, may be sought earlier. [Para 37] [625-E]

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602SUPREME COURT REPORTS

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AGulab Singh v. The Munsif and Judicial Magistrate 1stClass and Others 1981 WLN (UC) 78 ; Bajrang Lal v.Kanhaiya Lal and Others RLW 2007 (2) Raj 1551 –relied on.

3. Rule 7 of Rajasthan Municipalities Election PetitionBRules, 2009 leaves no option to the Judge but to dismiss thepetition. Thus, regard being had to the language employed inboth the Rules, the deposit of treasury challan which meansdeposit of the requisite amount in treasury at the time ofpresentation of the election petition is mandatory. Therefore, theinevitable conclusion is that no valid election petition wasCpresented. In such a situation, the Election Tribunal was boundin law to reject the election petition. [Para 38] [625-H; 626-A]Charan Lal Sahu v. Fakruddin Ali Ahmed and Others(1975) 4 SCC 832 – followed.

Charan Lal Sahu v. Nandkishore Bhatt and OthersD(1973) 2 SCC 530 ; Aeltemesh Rein v. ChandulalChandrakar and others (1981) 2 SCC 689 – relied on.

K. Kamaraja Nadar v. Kunju Thevar and Others[1959] SCR 583 : AIR 1958 SC 687; ChandrikaEPrasad Tripathi v. Shiv Prasad Chanpuria and Others[1959] 2 Suppl. SCR 527 : AIR 1959 SC 827 ;M. Karunanidhi v. Dr. H.V. Hande and Others (1983) 2SCC 473 ; Om Prabha Jain v. Gian Chand and AnotherAIR 1959 SC 837 : [1959] 2 Suppl. SCR 516 ;Budhi Nath Jha v. Manilal Jadav (1960) 22 ELR 86 ;FM.Y. Ghorpade v. Shivaji Rao M. Poal and Others(2002) 7 SCC 289 ; T.M. Jacob v. C. Poulose and Others(1999) 4 SCC 274 ; Dr. Shipra and Others v. ShantiLal Khoiwal and Others (1996) 5 SCC 181 ;Murarka Radhey Shyam Ram Kumar v. Roop SinghGRathore and Others AIR 1964 SC 1545 : [1964] 3SCR 573 ; G.M. Siddeshwar v. Prasanna Kumar(2013) 4 SCC 776 ; Anil Vasudev Salgaonkar v. NareshKushali Shigaonkar (2009) 9 SCC 310 – heldinapplicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1200of 2018.

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From the Judgment and Order dated 03.07.2017 of the High Courtof Judicature for Rajasthan at Jaipur Bench in S. B. Civil Writ PetitionNo. 8238 of 2017.

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Mahavir Singh, Sr. Adv., Aditya Singh, Rajiv Dalal, AwadheshYadav, Gagandeep, Advs for the Appellant.

Sushil Kumar Jain, Sr. Adv., Puneet Jain, Praveen Choudhary,Ms. Christi Jain, Abhinav Gupta, Ms. Priyal Jain, Ms. Yashika Sharma,Harsh Jain, Ms. Pratibha Jain, Advs. for the Respondents.

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AThe Judgment of the Court was delivered by DIPAK MISRA, CJI. 1. The singular issue that arises forconsideration in this appeal by special leave is whether the High Courtof Judicature for Rajasthan at Jaipur Bench is justified in dismissingS.B. Civil Writ Petition No. 8238 of 2017 thereby affirming the orderBdated 23.05.2017 passed by the learned Additional District Judge,Kishangarh, District Ajmer (herein after referred to as “the ElectionTribunal”) in Election Petition No. 55 of 2016 whereunder the ElectionTribunal had rejected the application preferred under Order VII Rule11(d) and (e) read with Order XIV Rule 2 read with Section 151 of theCode of Civil Procedure (CPC) seeking rejection of the election petitionCon the foundation that there had been non-compliance of the RajasthanMunicipalities 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 statedare that the appellant and the 1[st] respondent were elected to MunicipalDWard Nos. 28 and 45 respectively of Municipal Council, Kishangarh.The election to the post of Chairperson of the Municipal Corporation isto be made from amongst the 45 Ward Members and the said post hasbeen reserved for the OBC category. There is no dispute that both theappellant and the 1[st] respondent belong to the OBC category. The electionEwas held on 21.08.2015. The appellant, as per the votes counted by thereturning officer, received 23 votes and the 1[st] respondent secured 18votes as a consequence of which the appellant was declared elected.Challenging the election, Election Petition No. 180 of 2015 was filed bythe 1[st] respondent alleging that the votes in favour of the elected candidatehad been erroneously counted though they deserved to be rejected onFthe ground that 11 voters had left such marks on the ballot papers thatcould identify them. Apart from the said allegation, certain other aspectswere also pleaded. It was also set forth in the petition that a sum ofRs. 1,000/- had been deposited before the Election Tribunal as per law.

3. After filing a reply to the election petition, the appellant filed anGapplication under Order VII Rule 11 read with Section 151 CPC forrejection of the election petition because of non-compliance of Rule 3(d)of the 2009 Rules. In addition to the aforesaid, certain other groundswere also urged to reject the election petition but as the said groundshave not been canvassed before us, we need not dwell upon the same.

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4. It was contended before the Election Tribunal that as requiredby the 2009 Rules, an election petition may be filed by a candidate whohas been defeated or whose nomination has been rejected to challengethe election by filing an election petition which is required to beaccompanied by a treasury challan of Rs. 1,000/- and the Judge hearingthe election petition as per Rule 7(3) of the 2009 Rules is obligated todismiss the election petition which does not comply with the provisionsof the said Rules. It was pleaded that though the 1[st] respondent had filedthe election petition on 09.09.2015, yet it was not accompanied by treasurychallan of Rs. 1,000/- and to substantiate the same, reliance was placedon the order dated 16.09.2015 passed by the Election Tribunal wherein ithad allowed the election petitioner to deposit the amount. The same isalso perceptible from the order dated 17.9.2015. The application forrejection was resisted by the election petitioner on the ground that hehad filed an application before the court to file the receipt of challan ofRs. 1,000/- and the amount was subsequently deposited and, therefore,the application for rejection of the election petition did not meritconsideration.

5. The Election Tribunal took note of the fact that the amount wasdeposited on 16.08.2015 and further as the election petitioner had filedan application in the court and had, under the direction of the court,deposited the said amount and filed the receipt thereof in the court, theground raised under Order VII Rule 11 was sans substratum and did notdeserve acceptance.

6. Aggrieved by the aforesaid order, the appellant filed Writ Petitionbefore the High Court and reiterated the grounds urged before the ElectionTribunal. The High Court, as is discernible from the impugned order, didnot advert to the question of nature of the provision as engrafted in the2009 Rules and noted that the issue whether the election petition wasliable to be rejected despite the subsequent submission of the challanwithin the period of limitation was not required to be gone into as theapplication under Order VII Rule 11(d) CPC on the ground agitatedtherein was not maintainable and mis-directed. Being of this view, theHigh Court dismissed the Writ Petition. The High Court further directedthat the writ petitioner would be free to agitate all the defences in hiswritten statement as available to him in law against the election petitionincluding its maintainability.

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A7. We have heard Mr. Mahavir Singh, learned senior counsel forthe appellant, and Mr. Sushil Kumar Jain, learned senior counsel for the1[st] respondent.

8. As the controversy rests upon the interpretation of the 2009Rules, it is necessary to scan and understand the nature and characterBof 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 asChairperson or Vice-Chairperson or member of a municipality can bequestioned. Rule 3(5) of the said Rules provides for the requirements ofan election petition. The said Rule, being pertinent, is extracted below:- C“Rule 3(5). An election petition –

(a) shall contain a concise statement of the material facts on whichthe petitioner relies; (b) shall set forth full particulars of any corrupt practice that thepetitioner alleges, including names of the person alleged to haveDcommitted such corrupt practice and the date and place of thecommission of such practice;

(c) shall be signed by the petitioner and verified in the manner laiddown in the Code of Civil Procedure, 1908 (Central Act V of1908) for the verification of pleadings. Any schedule or annexureEto the petition shall also be signed by the petitioner and verified inthe same manner as the petition, and (d) shall be accompanied by a treasury challan of rupees onethousand.”

[Emphasis added]

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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 reproducedbelow:- “Rule 7. Decision of the Judge.-G(3) The Judge shall dismiss an election petition, which does not”comply with the provisions of these rules.

[Underlining is ours]

10. It is submitted by Mr. Singh, learned senior counsel appearingfor the appellant, that as per Rule 3(5)(d), it is mandatory that an electionpetition is required to be accompanied by a treasury challan ofRs. 1,000/- and if the said requirement is not complied with, it is obligatoryon the part of the Judge to dismiss the election petition. He would urgethat the factum of non-deposit is a matter of record and the languageemployed in the relevant Rule is mandatory in character and, therefore,the Election Tribunal completely erred in rejecting the petition and theHigh Court failed to exercise the jurisdiction vested in it by not correctlyadverting to the same.

11. Mr. Jain, learned senior counsel appearing for the 1[st] respondent,would contend that the 2009 Rules stipulate filing of treasury challan forthe making of a deposit and there is a distinction between filing of atreasury challan and making the deposit. He would submit that the orderof the Court is necessary to make a deposit in the court as per theGeneral 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 08.08.2016 passed by thelearned 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 themode provided under the 1986 Rules, it would be apt to refer to certainauthorities that have dealt with the prescriptions pertaining to thepresentation of an election petition.

13. In Charan Lal Sahu v. Nandkishore Bhatt and others[1], theCourt was dealing with the provisions contained in Section 117 of theRepresentation of People Act, 1951 (for short, “the 1951 Act”) whichrequires that at the time of presenting an election petition, the petitionershall deposit in the High Court in accordance with the rules of the HighCourt a sum of two thousand rupees as security for the costs of thepetition and it also confers power on the High Court to call upon theelection petitioner to give such further security for costs as it may direct.It was contended before the High Court that Section 117 of the 1951Act 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 electionpetition. The said plea was negatived by the High Court. The two-Judge 1(1973) 2 SCC 530

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ABench referred to Article 329(b) of the Constitution of India whichprovides that no election to either House of Parliament or to the Houseor either House of the Legislature of a State shall be called in questionexcept by an election petition presented to such authority and in suchmanner as may be provided for by or under any law made by theappropriate Legislature. Proceeding further, the Court observed:-B

“3. … The right conferred being a statutory right, the terms ofthat statute had to be complied with. There is no question of anycommon law right to challenge an election. Any discretion tocondone the delay in presentation of the petition or to absolve thepetitioner from payment of security for costs can only be providedCunder the statute governing election disputes. If no discretion isconferred in respect of any of these matters, none can be exercisedunder any general law or on any principle of equity. This Courthas held that the right to vote or stand as a candidate for electionis not a civil right but is a creature of statute or special law andDmust 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 theLegislature to examine and determine all matters relating to theelection of its own members, and if the Legislature takes it out ofits own hands and vests in a special tribunal an entirely new andEunknown jurisdiction, that special jurisdiction should be exercisedin accordance with the law which creates it.”

14. The command in the provision, the Court opined, of the depositof the security along with the election petition as required under Section117 of the 1951 Act leaves no option with the court but to reject theFelection petition. It is worthy to note here that the Court distinguishedthe authority in K. Kamaraja Nadar v. Kunju Thevar and others[3]where the election petitioner under the unamended provision of Section117 of the 1951 Act had deposited the amount in Government treasurybut had neither mentioned the complete head of account in theGGovernment treasury receipt nor was the deposit made in favour of theSecretary to the Election Commission as provided in the aforesaid Section.The Court in K. Kamaraja Nadar (supra), interpreting the unamendedSection 117, had expressed thus:- 2 1952 SCR 218 : AIR 1952 SC 64H3 1959 SCR 583 : AIR 1958 SC 687 1959 SCR 583 : AIR 1958 SC 687

3 1959 SCR 583 : AIR 1958 SC 687 1959 SCR 583 : AIR 1958 SC 687

SITARAM v. RADHEY SHYAM VISHNAV & ORS.[DIPAK MISRA, CJI]

“31.… It would be absurd to imagine that a deposit madeeither in a Government Treasury or in the Reserve Bank of Indiain favour of the Election Commission itself would not be sufficientcompliance with the provisions of Section 117 and would involvea dismissal of the petition under Section 85 or Section 90(3). Theabove illustration is sufficient to demonstrate that the words “infavour of the Secretary to the Election Commission” used in Section117 are directory and not mandatory in their character. What is ofthe essence of the provision contained in Section 117 is that thepetitioner should furnish security for the costs of the petition, andshould enclose along with the petition a Government Treasuryreceipt showing that a deposit of one thousand rupees has beenmade by him either in a Government Treasury or in the ReserveBank of India, is at the disposal of the Election Commission to beutilised by it in the manner authorised by law and is under itscontrol and payable on a proper application being made in thatbehalf to the Election Commission or to any person duly authorisedby it to receive the same, be he the Secretary to the ElectionCommission or any one else.

32. If, therefore it can be shown by evidence led before the ElectionTribunal that the Government Treasury receipt or the chalan whichwas obtained by the petitioner and enclosed by him along with hispetition presented to the Election Commission was such that theElection Commission could on a necessary application in that behalfbe in a position to realise the said sum of rupees one thousand forpayment of the costs to the successful party it would be sufficientcompliance with the requirements of Section 117. No such literalcompliance with the terms of Section 117 is at all necessary as iscontended for on behalf of the appellant before us.”

15. As stated earlier, the said decision was distinguished and thedistinction is vivid from the analysis made in the above quoted paragraphs.

16. In this context, reference to the decision by the ConstitutionBench in Charan Lal Sahu v. Fakruddin Ali Ahmed and others[4] isinstructive. In the said case, the nomination of the petitioner was rejectedon the ground of non-compliance with Sections 5-B and 5-C introducedin the Presidential and Vice-Presidential Elections Act, 1952 by an AB

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Aamendment made by Act 5 of 1974. Section 5-C(1) requires that acandidate shall not be deemed to be duly nominated for election unlesshe deposits or causes to be deposited a sum of two thousand five hundredrupees. Section 5-C(2) lays down that the sum required to be depositedunder sub-section (1) shall not be deemed to have been deposited underthat sub-section unless at the time of presentation of the nominationBpaper under sub-section (1) of Section 5-B, the candidate has eitherdeposited or caused to be deposited that sum with the Returning Officerin cash or enclosed with the nomination paper a receipt showing that thesaid sum has been deposited by him or on his behalf in the ReserveBank of India or in a Government Treasury. The petitioner in the saidCcase had sent a cheque for Rs. 2500/- to the Returning Officer alongwith his nomination paper. Interpreting Section 5-C, the Court held thatenclosing a cheque for Rs. 2500/- did not comply with the mandatoryrequirement of sub-section (2) of Section 5-C. The Court took note ofthe fact that the provision expressly states that a candidate has to either deposit in cash or enclose with the nomination paper a receipt showingDthat the said sum had been deposited by him or on his behalf in theReserve Bank of India or in a Government Treasury. Relying on the saiddecision, Mr. Mahavir Singh, learned senior counsel, would submit thatthe concept of treasury challan would clearly mean deposit in the treasuryand filing the receipt of the amount that has been deposited at the timeEof presentation of the election petition but not to file a challan before theCourt seeking permission to deposit. The said submission has beencontroverted 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.F

17. In Aeltemesh Rein v. Chandulal Chandrakar and others[5],the Court opined that Section 117 of the 1951 Act has been enactedhaving the source of power under Article 329(b) of the Constitutionwhich provides that an election petition has to be presented to suchauthority and in such manner as may be provided for by or under lawGmade by the appropriate legislature. In the said case, admittedly, theappellant stated in the election petition that he had deposited the securityamount of Rs. 2000/- along with the petition as required under Section117 of the 1951 Act but, in fact, no such deposit was made. Dealing withthe same, the Court expressed:-H5 (1981) 2 SCC 689

“3. The only question which survives is as to what is theconsequence of non-compliance with Section 117 of the Act. Thatquestion has been settled by the decision of this Court in CharanLal Sahu v. Nandkishore Bhatt (supra) wherein it was held thatthe High Court has no option but to reject an election petitionwhich is not accompanied by the payment of security amount asprovided in Section 117 of the Act. Section 86(1) of the Act providesthat the High Court shall dismiss an election petition which doesnot comply with the provisions of Section 81, 82 or 117. In thatview of the matter, the High Court was right in dismissing theelection petition summarily.”

18. From the aforesaid authority, it is clear as crystal that therehas to be compliance with the provision relating to deposit failing whichthe Court has no option but to reject an election petition. Be it notedwith profit that the said decision dealt with a situation where the electionpetition had to be accompanied by payment of security deposit.

19. Mr. Jain, learned senior counsel appearing for the 1[st]respondent, has advanced the contention with regard to substantialcompliance. To bolster the said submission, immense inspiration has beendrawn from a three-Judge Bench decision in Chandrika PrasadTripathi v. Shiv Prasad Chanpuria and others[6]. In the said case, theCourt was dealing with the unamended provision of Section 117 of the1951 Act. The Court referred to the earlier decision in K. KamarajaNadar (supra) and opined that Section 117 should not be strictly ortechnically construed and that wherever it is shown that there has beena substantial compliance with its requirement, the Tribunal should notdismiss the election petition on technical grounds. Scanning the languageemployed in Section 117, the Court ruled:- “… Indeed it is clear that the receipt with which this Court wasconcerned in the case of Kamaraj Nadar, (supra) was perhapsslightly more defective than the receipt in the present case. Theargument based on the use of the word “refundable” ignores thefact that the security in terms has been made in respect of theelection petition in question and it has been duly credited as towardsthe account of the Election Commission. Therefore, there can beno doubt that if an occasion arises for the Election Commission to 6 1959 SUPP (2) SCR 527 : AIR 1959 SC 827

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Amake an order about the payment of this amount to the successfulparty, the use of the word “refundable” will cause no difficultywhatever. We hold that the security has been made by Respondent1 as required by Section 117 of the Act and would be at the disposalof the Election Commission in the present proceedings.”

B20. On a perusal of the aforesaid dictum, we are inclined to statethat the aforesaid decision has to be distinguished on the principle laiddown by this Court in Charan Lal Sahu (I) (supra).

21. In M. Karunanidhi v. Dr. H.V. Hande and others[7], a two-Judge Bench was interpreting Section 117 of the 1951 Act wherein theCquestion arose as to whether the High Court was justified in expressingthe view that the factum of making deposit of Rs. 2,000/- as security forcosts in the High Court was mandatory and the manner of making thedeposit was directory. It was contended before this Court that theprovisions of sub-section (1) of Section 117 of the 1951 Act are mandatoryand, therefore, non-compliance with the same has to entail dismissal ofDthe election petition in limine under sub-section (1) of Section 117 of the1951 Act. The Court adverted to the issue as to whether the provision ismandatory or not and, in that context, held:- “20. It is well established that an enactment in form mandatorymight in substance be directory and that the use of the word “shall”Edoes not conclude the matter. The general rule of interpretation iswell-known and it is but an aid for ascertaining the true intentionof the legislature which is the determining factor, and that mustultimately depend on the context. The following passage fromCrawford on Statutory Construction at p. 516 brings out therule:F

‘The question as to whether a statute is mandatory or directorydepends upon the intent of the legislature and not upon thelanguage in which the intent is clothed. The meaning andintention of the legislature must govern, and these are to beGascertained, not only from the phraseology of the provision,but also by considering its nature, its design, and theconsequences which would follow from construing it the oneway or the other.’

This passage was quoted with approval by the Court in State ofU.P. v. Manbodhan Lal Srivastava[8], State of U.P. v. Babu RamUpadhya[9] and Raza Buland Sugar Co. Ltd. v. MunicipalBoard, Rampur[10]. The Court in Manbodhan Lal case whereArticle 320(3)(c) of the Constitution was held to be directory andnot mandatory, relied upon the following observations of the PrivyCouncil in Montreal Street Railway Company v. Normandin[11]:

‘The question whether provisions in a statute are directory orimperative has very frequently arisen in this country, but it hasbeen said that no general rule can be laid down, and that inevery case the object of the statute must be looked at. Thecases on the subject will be found collected in Maxwell onStatutes, 5th Edn., p. 596 and following pages. When theprovisions of a statute relate to the performance of a publicduly and the case is such that to hold null and void acts done inneglect of this duty would work serious general inconvenience,or injustice to persons who have no control over those entrustedwith the duty, and at the same time would not promote themain object of the Legislature, it has been the practice to holdsuch provisions to be directory only, the neglect of them, thoughpunishable, not affecting the validity of the acts done.’”

22. After so stating, the two-Judge Bench referred to Rule 8 ofthe Madras High Court (Election Petitions) Rules, 1967. Be it noted, thesaid Rule prescribes the mode of deposit. The contention was advancedbefore the Court that it is paradoxical to say that deposit of money intothe Reserve Bank to the credit of the Registrar, High Court, Madras is asufficient compliance of sub-section (1) of Section 117 when Rule 8provides that the money should be deposited in the High Court in cash,and that is the only mode prescribed under sub-section (1) of Section117.

23. Repelling the said submission, the Court held:- “We are afraid, we are unable to accept this line of argument. Aliteral and mechanical interpretation of Rule 8 would lead tomanifest absurdity as it would imply that in every case the election 8 AIR 1957 SC 912

9 AIR 1961 SC 751

10 AIR 1965 SC 895

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Apetitioner shall have to pay to the Registrar a sum of Rs 2000 incash towards security for costs as required by sub-section (1) ofSection 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 cannotordinarily be expected that the Registrar of a High Court wouldaccept the amount of security deposit in cash. The procedureBadopted by II Assistant Registrar in directing that the money bedeposited to the credit of the Registrar of the High Court in theReserve Bank of India was in conformity with the requirementsof Rule 8 of the Election Petitions Rules. Inasmuch as Rule 8does not lay down the procedure regulating the manner of depositCof cash, the matter falls to be governed by Rule 2 of Order 31 ofthe Madras High Court (Original Side) Rules, 1956 by reason ofRule 12 of the Election Petitions Rules. Although Order 31 Rule 2does not in terms apply because Order 31 relates to “Paymentinto Court of moneys to the credit of civil court deposits and accountof suitors’ money”, and though no lodgment schedule can beDprepared under Rule 2 except in pursuance of a decree or orderpassed by the High Court i.e. in relation to some proceedingpending, or disposed of, by the High Court, still by virtue of Rule12 of the Election Petitions Rules that is the procedure to beadopted for deposit of Rs 2000 in the High Court in cash i.e. byEcrediting the amount on the strength of a pre-receipted challanprepared by the Accounts Department on the basis of a lodgmentschedule. That was the only procedure applicable and there wasnothing wrong in the procedure adopted in making the deposit.When the amount was so deposited with a pre-receipted challanissued by the Accounts Department to the credit of the RegistrarFof the High Court and the Reserve Bank of India made theendorsement “Received in Cash”, it must be regarded that thepayment was made in the High Court and the pre-receipted challanbearing the endorsement of the Reserve Bank of India must betreated as the receipt of the Registrar in terms of Rule 8, theGReserve Bank acting as an agent of the High Court.”

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Be it noted, the Court relied on the authorities in K. KamarajaNadar (supra), Chandrika Prasad Tripathi (supra), Om Prabha Jainv. Gian Chand and another[12] and Budhi Nath Jha v. Manilal Jadav[13]

12 AIR 1959 SC 837 : 1959 SUPP (2) SCR 516H13 (1960) 22 ELR 86

to opine that Section 117 of the 1951 Act should not be strictly ortechnically construed and substantial compliance with its requirementshall be treated as sufficient. The decisions in Charan Lal Sahu (I)(supra) and Aeltemesh Rein (supra) were discussed. The two-JudgeBench took note of the fact that there is no provision to absolve theelection petitioner of payment of security for costs.

24. As we are only concerned with the deposit, we may usefullyrefer to a three-Judge Bench decision in M.Y. Ghorpade v. ShivajiRao M. Poal and others[14]. In the said case, the security as requiredunder Section 117 of the 1951 Act was deposited in the High Court bythe Respondent No.5 and not by the election petitioner who was the 1[st]respondent before this Court. The High Court came to hold that as thedeposit in question had been made by the petitioner, and the same had tobe treated as security for the costs of the election petition. For the saidpurpose, the High Court had placed reliance on the decision in ChandrikaPrasad Tripathi (supra) and other decisions and the authority in M.Karunanidhi (supra). It was urged before this Court that on thefoundation of Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra),the view expressed by the High Court was absolutely erroneous, for thedeposit made by the Respondent No.5 could never be construed as thedeposit by the election petitioner. The three-Judge Bench, analyzing theobject of Section 117 of the 1951 Act, held that the purpose of Section117 is to discourage entertaining frivolous election petitions and makeprovision for costs in favour of the parties who ultimately succeed in theelection petition. The Court further observed that sub-section (2) ofSection 117 authorises the High Court to call upon an election petitionerduring the course of the trial of an election petition to give such furthersecurity which may be necessary depending upon the facts andcircumstances of the case. The decision in Charan Lal Sahu (I) (supra)was distinguished as it was a case of non-deposit. The authority inAeltemesh Rein (supra) was also distinguished as no such deposit hadbeen made though it was stated in the petition that the security amountwas being deposited. The Court placed reliance on M. Karunanidhi(supra) and eventually ruled:- “This Court relied upon the earlier decision of this Court in thecase of K. Kamaraja Nadar v. Kunju Thevar which was a caseunder the provisions of Section 117 of the Act, as it stood prior to A

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Aits amendment, wherein also the receipt showed that the deposithad been made but did not show that the deposit had been madein favour of the Secretary to the Election Commission. One of thequestions that arose was whether the expression “in favour of theElection Commission”, contained in Section 117, as it stood then,was mandatory in character or not, and this Court held that theBfirst part of Section 117 though was mandatory, but not the laterpart. It is not necessary to multiply authorities on the point, butsuffice it to say, that the sum of Rs 2000 must be deposited whilefiling an election petition and that is undoubtedly mandatory, butthrough whom the amount will be deposited etc. cannot be held toCbe mandatory.”

(Underlining is ours)

From the aforesaid passage, it is luculent that deposit at the timeof presentation is mandatory but not the mode.

D25. Many an authority has been commended to us with regard tosubstantial compliance and the doctrine of curability. We may refer tosome of them.

26. In T.M. Jacob v. C. Poulose and others[15], the ConstitutionBench was dealing with the defects pertaining to true copy of the affidavitEas has been held to be mandatory in Dr. Shipra and others v. ShantiLal Khoiwal and others[16]. The larger Bench expressed thus:-

“40. In our opinion it is not every minor variation in form but onlya vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act withthe consequences under Section 86(1) to follow. The weight ofFauthority clearly indicates that a certain amount of flexibility isenvisaged. While an impermissible deviation from the original mayentail the dismissal of an election petition under Section 86(1) ofthe Act, an insignificant variation in the true copy cannot beconstrued as a fatal defect. It is, however, neither desirable norGpossible to catalogue the defects which may be classified as of avital nature or those which are not so. It would depend upon thefacts and circumstances of each case and no hard and fast formulacan be prescribed. …”

15 (1999) 4 SCC 27416 (1996) 5 SCC 181H

27. Be it stated, the Court in the said case referred to theConstitution Bench decision in Murarka Radhey Shyam Ram Kumarv. Roop Singh Rathore and others[17 ]and opined that the tests laid downtherein are sound and did not require a repetition.

28. In G.M. Siddeshwar v. Prasanna Kumar[18], the three-JudgeBench after referring to T.M. Jacob (supra) came to hold that the defectin verification of affidavit is not fatal to the election petition and it couldbe cured. Reference was made to a passage from Anil VasudevSalgaonkar v. Naresh Kushali Shigaonkar[19] wherein it has been held:- “50. The position is well settled that an election petition can besummarily dismissed if it does not furnish the cause of action inexercise of the power under the Code of Civil Procedure.Appropriate orders in exercise of powers under the Code can bepassed if the mandatory requirements enjoined by Section 83 ofthe Act to incorporate the material facts in the election petitionare not complied with.”

29. After so stating, the three-Judge Bench ruled :- “52. The principles emerging from these decisions are that althoughnon-compliance with the provisions of Section 83 of the Act is acurable defect, yet there must be substantial compliance with theprovisions thereof. However, if there is total and complete non-compliance with the provisions of Section 83 of the Act, then thepetition cannot be described as an election petition and may bedismissed at the threshold.”

30. We may immediately clarify that the aforesaid cases dealtwith 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 andcomplete non-compliance with the provision of Section 83 of the 1951Act whereupon the election petition cannot be described as an electionpetition and may be dismissed at the threshold. In the instant case, weare concerned with the deposit by treasury challan which shall accompanythe election petition. The Rule prescribes in categorical terms that thetribunal shall dismiss the petition in case of non-compliance. We havereferred to the authorities relating to security deposits under Section 117

17 AIR 1964 SC 1545 : 1964 (3) SCR 573

18 (2013) 4 SCC 776

19 (2009) 9 SCC 310

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Aof the 1951 Act. The present rules refer to municipal election. It is worthyto 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 perLaw. A copy of this petition has already been sent to the DistrictBReturning Officer.”

31. As stated earlier, the petition was filed on 09.09.2015 but thetreasury challan was not filed on that day. The Election Tribunal hadpassed an order on a later date permitting the deposit. It is submitted byMr. Jain that the election petitioner could not have deposited the amountCwithout obtaining the permission of the Court. To substantiate the saidstand, he has placed reliance on the 1986 Rules. We have beencommended to Rules 252, 253, 260, 261 and 262. We think it appropriateto reproduce the said Rules:- “252. Appointment of a Receiving Officer.- (1) Every civilDcourt or where two or more courts have a single account with theTreasury, every such group of courts, shall have an officialentrusted with the receipt of money deposited in the Court.

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

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

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

(1) Deposits;

(a) Civil Court deposits, including:

(i) sums paid under decrees and orders;

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SITARAM v. RADHEY SHYAM VISHNAV & ORS.[DIPAK MISRA, CJI]

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

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

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

(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 Arbitratorsetc.;

(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; (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) ……

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(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 StateAccount under the major head “065” Other Administrative Servicesand sub-head(d) under the major head “0.30” Stamps &Registration fees”. These major heads and sub-heads willautomatically be deemed to have changed whenever they arechanged 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 ofmoney into court shall ordinarily be made by means of a tenderupon a printed triplicate form. The applicants shall enter in thecourt language the particulars required in columns 1 to 4 of thetriplicate form of tender (F. 23). The applicant shall then handover the tender to the Munsarim or the Reader of the Courtconcerned, 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 casemay be, shall then call upon the official-in-charge of the record ofthe case for an office report as to whether the amount and natureof the payment tendered and the number of the suit, or proceeding,if any are correct, and whether the payment is due from the personon whose account it is tendered. Any necessary corrections shallbe 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 theregister of challans prior to the order for receipt of payment beingpassed.

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

32. In this regard, our attention has also been invited to the GeneralFinancial and Accounts Rules Volume I & Volume II. Rule 54 of thesaid Rules deals with the payment into treasury. Rule 56 deals withSigning of Challan by Departmental Officer. The said Rules read asfollows:- “Rule 54: (1) Payments of money into the treasury or bank maybe made in cash, by E-payment, cheques, bank draft, Banker’scheque and Postal Orders.

(2) Challan : Subject as otherwise provided in these Rules, orunless the Government in relation to any particular class oftransactions direct otherwise any person paying money into atreasury or the Bank on Government accounts shall present achallan in Form G.A. 57 showing distinctly the nature of thepayment, the person or Government officer on whose account itis made, and all the information necessary for the preparation ofthe receipt to be given in exchange, for the proper accountclassification of the credit and, where necessary for its allocationbetween Government and departments concerned. Separatechallans shall be used for moneys creditable to different head ofaccounts.

Note: However, in case of E-payment, physical challan will notbe required. Instead, prescribed details usually received through AB

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physical challan, will be incorporated into a scroll of E-paymentswhich will be provided by the Bank duly authenticated on eachpage to the treasury for classification of credit and preparation ofaccounts of the Government.

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Rule 56: Signing of Challan by Departmental Officer: Whenmoney is paid by a private person into a treasury located in thesame place as the departmental officer concerned with thepayment, the challan shall before presentation to the Bank, Treasuryor Bank be signed by the officer to whose account the money isto be credited. The departmental officer shall particularly checkclassification before it is given to the depositor. Such challansshall be received direct at the Bank without the intervention ofTreasury Officer.

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

33. In this context, we may also refer to Rule 83 and Rule 86 ofthe Rajasthan Treasury Rules, 2012 (hereinafter referred to as “the 2012Rules”) . They read as follows:- “83. No item should be credited as a deposit save under the formalorder of a Competent Authority. Besides, no sum shall be creditedin any deposit register which can be carried to any other head ofaccount, for example, revenue paid to Government on account ofa demand not yet due should at once be credited to the properrevenue head, instead of treating it as a deposit.

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86. All kinds of revenue deposits under this category shall beseparately paid into treasury linked agency bank with challans/System Generated Challans and other prescribed documentssetting forth all the particulars necessary for entries to be made inRevenue Deposit Register. Each item of revenue deposit, otherthan security deposit relating to election of Lok Sabha received, should at once be properly entered with unique identificationnumber. There should be a separate series of numbers for eachregister, beginning afresh each year. All deposits must be separatelypaid into the treasury with challans or other documents settingforth all the particulars necessary for the entries to be made in theregister of deposit receipts. The treasury officer should carefullycheck the amount and particulars of each entry and then set hisinitials in the proper column against each. The format for RevenueDeposit Register is appended in form No. TY-2.

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

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

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

34. Mr. Jain has referred to Form G.A.-57. The said form relatesto cash challan. It provides for the signature of the person who depositsand in whose favour the deposit is being made and the permission fordeposit. The Form also provides for the amount and certain heads orcategories. The submission, in essence, is that the cumulative reading ofthe 1986 Rules and the 2012 Rules clearly show that there cannot beany deposit without the permission of the concerned Court or authority.Support has been drawn from the judgment passed by the learned SingleJudge in Ashok Kumar v. Learned A.D.J. No. 2 Chittorgarh andothers[20] wherein the High Court was dealing with Rule 85 of the electionof Sarpanch of Gram Panchayat. The action was challenged underSection 43 of the Rajasthan Panchayati Raj Act, 1994 and the issuearose with regard to the interpretation of the provisions contained in theRajasthan Panchayati Raj Election Rules, 1994 (for short, “the 1994Rules”). Rule 81(2) of the 1994 Rules provides that no petition shall bedeemed to have been presented under the election rules unless the 20 Civil Writ (CW) No.7637 of 2016 decided on 8.8.2016

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Apetitioner deposits a sum of Rs. 50/- along with the petition by way ofsecurity deposit for the costs of the opposite party. In the said case, theelection petition was filed on 28.02.2015 but costs were not depositedalong with the petition and the same were deposited on 12.03.2015. Itwas contended before the learned single Judge that the election petitionerhad submitted the challan/tender for the deposit on 28.02.2015 itself butBthe Election Tribunal had not passed any order for depositing the costswith the treasury and, therefore, the same could not have been depositedon that day and the deposit was made after the order was passed. Thelearned single Judge took note of Rule 85 of the Election Rules whichprovides that the procedure provided in the CPC with regard to suits isCmade applicable in so far as can be made applicable and came to holdthat if the deposit exceeds Rs. 25/-, the same can only be deposited inthe treasury if an order is passed by the Court or by the Munsarim or theReader of the Court concerned, as the case may be.

35. In this regard, Mr. Singh has placed reliance on an earlierDdecision of the Rajasthan High Court in Gulab Singh v. The Munsifand Judicial Magistrate 1st Class and others[21]. In the said case, thelearned single Judge was dealing with the security deposit as providedunder Rule 79(2) & (3) of the Rajasthan Panchayat and Nyaya PanchayatElection Rules, 1960. In the said case, the deposit was made subsequently.It was contended that the same was fatal to the case as the provision isEmandatory. Rule 79(2) of the said Rules read as follows:-

“79(2) No petition shall be deemed to have been presented underthese rules unless the petitioner deposits a sum of Rs.50/- alongwith the petition by way of security for the costs of the oppositeparty.”F36. 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 ofthe security along with the petition is mandatory and since on facts it isnot in dispute that on 21[st] February, 1978 when the election petition wasfiled, it was not presented along with a deposit of Rs. 50/- as requiredfor the costs of the opposite party, the legal and logical consequencesGwould be that the election petition could not be deemed to have beenpresented under the Rules as per the mandate of Rule 79(2) of theRajasthan Panchayat and Nyaya Panchayat (Election) Rules,1960. Beingof this view, the learned single Judge opined that there was no validelection petition before the Election Tribunal.

H21 1981 WLN (UC) 78

37. The discussion hereinabove can be categorized into threecompartments. First, the deposit is mandatory and the mode of deposit isdirectory; second, the non-deposit will entail dismissal and irregular depositis curable and third, in other areas like verification, signature of parties,service of copy, etc., the principle of substantial compliance or the doctrineof curability will apply. In the case at hand, Rule 3(5)(d) commands thatthe election petition shall be accompanied by the treasury challan. Theword used in the Rule is ‘accompanied’ and the term ‘accompany’ meansto co-exist or go along. There cannot be a separation or segregation.The election petition has to be accompanied by the treasury challan andwith the treasury challan, as has been understood by this Court, therehas to be a deposit in the treasury. The 2012 Rules, when understoodappropriately, also convey that there has to be deposit in the treasury.Once the election petition is presented without the treasury challan, thedecisions of this Court in Charan Lal Sahu (I) (supra) and AeltemeshRein (supra) pertaining to non-deposit will have full applicability. Theprinciple stated in M. Karunanidhi (supra), K. Kamaraja Nadar(supra), Chandrika Prasad Tripathi (supra) and other decisions willnot get attracted. The interpretation placed on the 1986 Rules by thelearned single Judge in Ashok Kumar (supra) cannot be treated to laydown the correct law. We arrive at the said conclusion as we do not findthat there is really any Rule which prescribes filing of treasury challanbefore the Election Tribunal in election petition after seeking permissionat the time of presenting an election petition. Permission, if any, may besought earlier. Such was the case in Bajrang Lal v. Kanhaiya Laland others[22] where the election petition was submitted on 31.8.2005and an application was submitted before the court below on 30.8.2005under Section 53 of the Act of 1959 with the signature of the advocateand an order was passed by the court on the same application itself on30.8.2005 allowing the advocate to deposit the security amount underSection 53 of the Act of 1959 for election petition. The election petitionwas submitted on 31.8.2005. In such a fact situation, the High Courtfound that there was compliance with the provision.

38. Mr. Jain would submit that this is not an incurable defect asthe deposit has been made within the period of limitation. The saidsubmission leaves us unimpressed inasmuch as Rule 7 leaves no optionto the Judge but to dismiss the petition. Thus, regard being had to the A

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Alanguage employed in both the Rules, we are obligated to hold that thedeposit of treasury challan which means deposit of the requisite amountin treasury at the time of presentation of the election petition is mandatory.Therefore, the inevitable conclusion is that no valid election petition waspresented. In such a situation, the learned Additional District Judge wasbound in law to reject the election petition.B

39. In view of the aforesaid analysis, we allow the appeal and setaside the order passed by the High Court that has affirmed the order ofthe Additional District Judge as a result of which the election petitionshall stand rejected. There shall be no order as to costs.

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Appeal allowed.

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