1. These two petitions arise out of elections to the Cantonment Board, Kirkee, held on 9th February 1964. Results of the elections were declared on 10th February 1964 at which the petitioners in both the cases were declared elected in respect of their respective Wards. The opponent in each case, who was a candidate in his respective Ward, filed on 17th February 1964 an election petition challenging the election of the respective petitioner. At the time of presenting the election petition, the deposit which is required to be made under R. 44 of the Election Rules framed under the Act, was not made. Ultimately, on the 4th September 1964, the learned Judge framed the issues in the presence of both the sides and at that time it was brought to the notice of the learned Judge by the respective petitioners that deposits as required by R. 44 were not made. The respective Advocates of Opponent No. 1 in each case then made an application that they should be allowed to make the deposit, and they were allowed to do so even though the petitioners opposed. After the deposit was made, the petitioners insisted that the learned Judge should decide the preliminary issue as to whether the election petitions were competent, inasmuch as the Opponents had not complied with R. 44. The learned Judge returned the finding in opponent's favour. These petitions seek to challenge this finding. The question now before us is whether or not the election petition can be heard as there is a breach of R. 44 in view of the Opponent not having deposited the security deposit as required by it.
(2) We may refer to the relevant Rules viz Rules 42, 43, 44 and 45, in this connection. They are as follows:
'42. No election shall be called in question except by an election petition presented in accordance with these rules'.
43 a petition calling in question the validity of an election or the return of a particular candidate may be presented in writing to the District Judge of the District within which the election has been held (or where there is no Dist. Judge, to such Judicial Officer as the State Govt. may appoint in their behalf). within seven days after the date on which the result of the election was declared either by a person who was a candidate at the election or by not less than five persons entitled to vote at the said election:
Provided that no such petition shall be presented on the ground either that the name of any person qualified to vote has been omitted from the electoral roll or that the name of any person not so qualified has been inserted in the roll. 44. Every petition shall be accompanied by a deposit of one hundred and fifty rupees in cash or in Government promissory notes of equal value at the market rate of the day as security for the costs likely o be incurred.
Provided that where such petition relates to the election of a candidate belonging to the Scheduled Castes or the Scheduled Tribes, the amount of such 'deposit' shall be seventy-five rupees only.
At the conclusion of the inquiry, the deposit or, if the petitioner has been directed under Rule 46 to pay costs, the balance, if any of the deposit after deduction of those costs, shall be refunded to the petitioner.
45. Where a petition has been presented under Rule 43 and the security deposited as required by Rule 44. the District Judge (Or the officer appointed in accordance with Rule 43), or any Judicial Officer subordinate to him and not below such rank as the State Government may by any notification prescribe in this behalf to whom the District Judge may transfer the petition, shall after notice to all candidates for the ward concerned at the election (other than such of them as may be petitioners) hold such inquiry as he deems necessary.'
(3) It is to be noticed that under R. 42 the election petition is to be presented in accordance with the Rules. The Rules prescribe the manner in which it is to be presented and the condition which has to be complied with. the condition being that there shall be a deposit as required by R. 44. The language of R. 44 is mandatory, and unless there is any indication in the body of the Rules read as a whole or in the Rule itself that the word 'shall' was not intended to have the mandatory meaning. the Court would not be justified in construing the word 'shall' as 'may' If at all, the provisions of Rule 45 indicate that the direction is mandatory inasmuch as it provides that the District Judge shall enter into the inquiry, 'where a petition has been presented and the security deposited as required by R. 44.' If the word 'shall' in R. 44 was not intended to be mandatory the wording would have been 'after a petition has been presented under R 43 and the security deposited as required R. 44'. This is the only Rule which has a bearing on the construction of Rule 44, and the only construction to which it can lead is the one indicated by us.
(4) In this connection, it must also be remembered that elections are not to be set aside as a matter of course. To be a candidate at the election, to be elected as a Member of the Board and to have the election of a particular candidate set aside are matters of right created by the statute, and in order that any one should be enabled to take advantage of the statute to have the same set aside its terms must be strictly complied with, and this is more so when one has to remember that elections ought not to be set aside very readily. That this was the intention of the framers of the Act and the Rules as shown by the provisions of the Rules require several matters to be provided before an election could be set aside.
(5) the learned trial Judge, however, relied on two decisions of the Supreme Court which, according to him, favour the construction of the rule adopted by him. these decisions are Kamaraja Nadar v. Kunju Thevar, : 1SCR583 and Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria, : AIR1959SC827 . Both these cases arose under the Representation of the People Act, 1951. Under this Act, deposit had to be made under S. 117 which is as follows:
'The Petitioner shall enclose with the petition a Government treasury receipt showing that a deposit of Rs. 1000 has been made by him either in the Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security of the costs of the petition'.
In the first case, it is not that the Supreme Court construed the word 'shall' to mean 'may'. it only observed:
'The words 'in favour of the Secretary to the Election Commission' used in S. 117 are directory and not mandatory in their character.'
And holding so, it held that as the deposit was, in fact, made but only in the name of the Election Commission, there was substantial compliance with the Section, and, therefore, the Petition was not liable to be dismissed, the deposit having been made at the time of the election petition and the relevant challan having accompanied the same. While dealing with this point, the learned Judge observed:
'What is of the essence of the provision contained in S. 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 .. . . . . . . .'
It is no authority for the proposition that the word 'shall' may be read as 'may'. In the second case again the deposit was made and the relevant chalan was presented along with the election petition as required by the Act. It was, however, stated in column two 'security deposits for Election Petition of Bargi Assembly Constituency No. 97, District Jabalpur, Madhya Pradesh refundable by order of the Election Commission of India, New Delhi,' An objection was taken to the letter words, and it was contended that it should not be regarded as deposit under S. 117. The Supreme Court rejected this contention on the ground that the deposit was made, that it clearly indicated the purpose for which it was made, and the words which were subsequently added did not render the deposit any the less one under S. 117. This again is no authority for saying the word 'shall' can be construed as 'may'.
(6) In our view, the learned Judge was no in error in holding that the deposit could be made at any time before he took up the hearing of the case. In this view of the matter, the petitions succeed. We set aside the order made by the learned Judge below and dismiss the election petitions of the petitioners in both the cases.
(7) In each case, Opponent No. 1 will pay the costs of the petitioner.
(8) Petitions allowed.