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Muti Ahmed Jafari Vs. Virendra Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 1 of 1958
Judge
Reported inAIR1958MP214
ActsRepresentation of the People Act, 1951 - Sections 117
AppellantMuti Ahmed Jafari
RespondentVirendra Singh and ors.
Appellant AdvocateK.B. Saksena, Adv.
Respondent AdvocateG.S. Gandhey and ;P.S. Khirwadkar, Advs. for Respondent 1
DispositionAppeal allowed
Cases ReferredJagannath v. Jaswant Singh
Excerpt:
.....and the money is available for paying costs to the successful party in the event of the petition being..........required by section 17 of the representation of the people act (hereinafter the act). before the election commission the question had arisen whether the election petition was liable to be dismissed in limine because the receipt showed that the deposit was made not in the name of the secretary to the election commission, as required by section 17 of the act, but in the name of the secretary to the election petition. the election commission did not dismiss the petition under section 85 of the act and observed as follows: 'the treasury challan enclosed with the petition is defective inasmuch as instead of specifically mentioning that the amount has been deposited in favour 'the secretary election commission', the words 'secretary, election petition' have been written. moreover, the full.....
Judgment:

1. This is an appeal from a judgment passed by the Election Tribunal, Ujjain, on 25-11-1957, in Election Petition No. 196 of 1957.

2. The matter arises out of, the last elections to the Madhya Pradesh Legislative Assembly. The appellant was a candidate for electionfrom the Khachraud constituency, and the fourrespondents were also candidates. Of these, the first respondent Shri Virendra Singh son of Thakur Parbatsingh was elected, and the present appellant filed an election petition challenging the election. Along with his election petition the appellant enclosed a Government Treasury receipt, as required by Section 17 of the Representation of the People Act (hereinafter the Act). Before the Election Commission the question had arisen whether the election petition was liable to be dismissed in limine because the receipt showed that the deposit was made not in the name of the Secretary to the Election Commission, as required by Section 17 of the Act, but in the name of the Secretary to the Election Petition. The Election Commission did not dismiss the petition under Section 85 of the Act and observed as follows:

'The Treasury challan enclosed with the petition is defective inasmuch as instead of specifically mentioning that the amount has been deposited in favour 'the Secretary Election Commission', the words 'Secretary, Election Petition' have been written. Moreover, the full and correct head of account, has not been given therein.

This may make it difficult for the costs, if any, ordered against the petitioner to be realised out of the deposit. It will be for the Tribunal to decide during trial after hearing the parties whether the defect in deposit is fatal or may be cured, e. g., by a fresh deposit or otherwise, so as to safeguard the Respondent's right of costs, if any, awarded by the Tribunal.'

3. When the matter came before the Tribunal objection was taken that the defect was fatal. The Tribunal thereupon framed a preliminary issue, which reads as follows:

'Whether the deposit has been correctly made and if there is a mistake it is not fatal to the Petition.'

After hearing the parties and taking such evidence as was tendered the Tribunal came to the conclusion that the defect was substantial and that the petition was liable to be dismissed under Section 90 (3) of the Act. It accordingly dismissed the petition on this short ground, and the present appeal has been filed against the judgment of the Tribunal.

4. There is no doubt that the election law is a special law and all its formalities have to be complied with. This was laid down by their Lordships of the Supreme Court in Jagannath v. Jaswant Singh, AIR 1954 SC 210 (A). There is also no doubt that before the present amendment in 1956 the power of the Tribunal to dismiss an election petition for breach of Section 17 was expressed in language which is usually described as discretionary.

The word used was 'may', but after the amendment of 1956 the word has been altered to 'shall', and it is this which led to the argument before the Tribunal that the election petition was liable to be dismissed summarily because it did not comply with the mandatory provision of Section 17 of the Act.

5. Section 117, no doubt, is worded in mandatory way. It reads as follows:

'The petitioner shall enclose 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 Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition.'

The use of the word 'shall', combined with the penalty of dismissal which is laid down in Sections 85 and 90 (3) of the Act, shows that the requirement has to be faithfully complied with. We must, however, draw a line where the requirements of the law are satisfied and where they are not. It cannot be gainsaid that a Government Treasury receipt cannot tie impugned on the ground that it contained some spelling mistakes or the writer had failed to dot some i's or cross some t's.

The gist of the matter is that the Election Commission must know that the person seeking to set aside an election has furnished the necessary deposit for ensuring the costs of the other side in the event of the petition being unsuccessful. What appears to be the substance of the requirement is that the receipt must be enclosed with the' petition for the information of the Election Commission.

Of course, there may be receipts and receipts. If the deposit is made, for example, in the name of the petitioner himself or is made in the name of a third party, it may be said that there is not that compliance with Section 17 of the Act as is contemplated and that the penalty, viz., the dismissal of the election petition, should consequently follow.

Where, however, the deposit has been made in a Government Treasury and has been made so as to cover the costs of the petition but there is a slight error in the description of the Election Commission, then, we take it, the mandatory nature of the provision is not attracted and the election petition, as a whole, cannot be dismissed.

The law does not give an opportunity for rectification, but in small matters there is an inherent power in Courts to rectify such mistakes. It is always said 'De minimis non curat lex' (The law takes no account of every trifling matter),

6. However, the facts here are entirely convincing. The deposit was made at Sub-Treasury, Khachraud, and the depositor had filed the Treasury challan in triplicate. In the challan which was presented to the Treasury and Was retained by it, the expression was 'The Secretary, Election Commission'. There was some dispute as to whether the original read 'Election Commission' or 'Election Commissioner', and we were shown two statements of the Accountant of the District Treasury.

Ho at first said that the original read 'Election Commission' and later said that it read 'Election Commissioner'. We have, however, before us a certified copy of that challan and we find in it that the expression. 'Election Commission' was correctly entered. We see no reason to doubt the certified copy which was presented by the officer concerned. Indeed, we think that cross-examination about what a document reads is hardly appropriate, because if the document is before the Court, the Court can read it for itself.

We go by the certified copy, and we say that the deposit was in fact made in the name of the Election Commission. We also saw the Register of the District Treasury at Ujjain, in which the entry correctly shows that the deposit of Rs. 1000/- was made in the name of the Election Commission. What was erroneous was, however, the duplicate of the receipt, in which through some clumsy blundering the words 'The Secretary, Election Commission' were not enter-ed but the words 'The Secretary, Election Petition' were inserted.

The Election Commission must have felt that this was probably an error and that is why it did not visit on the appellant the penalty mentioned in Section 85 of the Act. It left the matter open to the Tribunal to find out, after hearing the parties, whether there had been such a grave defect as required visiting the penalty under Section 90 (3) of the Act.

The evidence of the Accountant, together with the certified copy of the register maintained at Ujjain District Treasury and the voucher which was retained by the Sub-Treasury at Khachraud, clearly show that the deposit in fact was correctly made in the name of the Election Commission and the money is available for paying costs to the successful party in the event of the petition being dismissed.

The only error that we have found is that in the copy which was tendered in the Treasury for certification and which after certification was enclosed along with the Election Petition, the words used were 'Secretary, Election Petition' instead of 'Secretary, Election Commission'. This, in our opinion, is a venial fault and can be executed, regard being had to full compliance with the real requirements of Section 17, as disclosed in the evidence and the Treasury record.

7. We may say here that undoubtedly the election law has to be complied with. In a matter which is mandatory, it is still more necessary that it be strictly adhered to, but there is a limit to which the strictness and the rigour with which the penalty is visited upon an erring party go. What the law contemplates is not that a clumsy blundering or some grammatical or spelling mistake cannot be excused, but that there should not be a breach of Section 17.

Section 117 requires that there shall be a deposit of Rs. 1000/- in a Government Treasury or in the Reserve Bank of India as security for the costs of the petition. It ensures that the money should be readily available to the Election Commission to pay the costs out of the same, and for this purpose it enjoins that the deposit should be made in the name of the Secretary Election Commission.

We find In this case that the deposit in fact was made in the name of the Election Commission and the receipt which was sent along with the petition was capable of easy rectification, either by the party to whom it should have been returned for getting corrected or at the instance of the Tribunal when the Treasury Officer was in Court. In these circumstances, to hold that the penalty of the dismissal of the election petition was justified is to make Sections 117 and 90 (3) more technical than they already are.

8. In our opinion, the election petition was wrongly dismissed. The voucher was capable of being corrected. Indeed, the Election Commission took the right view of the matter when it did not exercise its own powers and left it to the Election Tribunal to see whether the correction could be made or not. In this view of the matter, the appeal succeeds with costs. The case shall now be remitted to the Election Tribunal for disposal as expeditiously as possible. Counsel's fee Rs. 100/-. The costs of the Tribunal shall be costs in the cause and shall abide the event.


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