TaxTMI 
TaxTMI 
2018 (3) TMI 1961
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.... VII Rule 11(d) and (e) read with Order 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....
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....erve acceptance. 6. Aggrieved by the aforesaid order, the Appellant filed Writ Petition before the High Court and reiterated the grounds urged 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) Code of Civil Procedure 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 understa....
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....posit. 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 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 Ors. (1973) 2 SCC 530, 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 furth....
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....1 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 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 ....
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....er. Interpreting Section 5-C, the Court held that enclosing a cheque for Rs. 2500/- did not comply with the 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 Ors. (1981) 2 SCC 689, the Court opin....
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....uage 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 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 Ors. (1983) 2 SCC 473, a two-Judge Bench was interpreting Secti....
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....nd 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: We are afraid, we are unable to acc....
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....drika Prasad Tripathi (supra), Om Prabha Jain v. Gian Chand and Anr. AIR 1959 SC 837: 1959 SUPP (2) SCR 516 and Budhi Nath Jha v. Manilal Jadav (1960) 22 ELR 86 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 Ors. (2002) 7 SCC 289. 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 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 Chandr....
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....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 Ors. (1999) 4 SCC 274, 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 Ors. v. Shanti Lal Khoiwal and Ors. (1996) 5 SCC 181. 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 presc....
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....r 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. 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 t....
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....r 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 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-charg....
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....here 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 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 Govern....
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.... 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 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 Ors. [Civil Writ (CW) No. 7637 of 2016 decided on 8.8.2016] 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 o....
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....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 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 ....