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Gulab Singh Vs. the Munsif and Judicial Magistrate 1st Class and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 703 of 1979
Judge
Reported in1981WLN(UC)78
AppellantGulab Singh
RespondentThe Munsif and Judicial Magistrate 1st Class and ors.
DispositionPetition allowed
Cases ReferredCharan Lal Sahu v. Fakrudclin All Ahmed
Excerpt:
.....and entire proceedings before tribunal do not exist in eye of law.;rule 79(2) in relation to the deposit of security along with the petition is mandatory and since on facts it is not in dispute that on 21st february, 1978, when the election petition was filed, it was not presented along with a deposit of rs. 50/- as required for the case of the opposite party, the legal and logical consequence of this is that it cannot be deemed to have been presented under these rules as per the mandate of rule 79(2) of the rajasthan panchayat and nyaya panchayat rules, 1960 as there was no valid election petition before the election tribunal, the entire proceedings taken by the election tribunal including recounting and the final decision, all are consequential on the basis of the election petition..........the election petition filed in this case was no election petition in the eye of law because the security deposit of rs. 50/- was not deposited along with the election petition & there was flagrant disregard and clear violation of rule 79(2) & (3) of the rajasthan panchayat and nyaya panchayat election rules, 1960. the subsequent deposit of rs. 50/- on the next day i.e. on 22-2-78 cannot cure this fatal defect because the provision is mandatory.6. the second objection taken by the learned counsel is that the copy of the election petition was not sent to the collector, ganganagar, as required by law and on that count also, there was violation of rule 79.7. the third ground raised by the learned counsel is that ballot paper no. 431770 was not marked according to the rules and, therefore,.....
Judgment:

G.M. Lodha, J.

1. Petitioner Gulab Singh contested an election or Ward Panch for Ward No. 8 of Grampanchayat Suratpura, Tehsil Bhadra. The election was held on 13th February, 1978

2. As per the results declared by the Returning Officer petitioner received 75 votes and respondent no. 3 Vijay Singh also received 75 votes. 5 votes were declared invalid. The Returning Officer on account of result of the toss, declared the petitioner elected.

3. Vijay Singh preferred an election petition in the court of Munsif and Judicial Magistrate, Bhadra. It was filed on 21st February, 1978. Certain preliminary objections were taken and decided on 22-5-78. Recount was ordered and on the basis of the recount, the respondent no. 3 Vijay Singh was declared elected as Panch.

4. This writ petition has been filed against the judgment of the Election Tribunal Munsif and Judicial Magistrate dated 22-5-78 & 28-3-79.

5. The learned Counsel for the petitioner submitted that the election petition filed in this case was no election petition in the eye of law because the security deposit of Rs. 50/- was not deposited along with the election petition & there was flagrant disregard and clear violation of Rule 79(2) & (3) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. The subsequent deposit of Rs. 50/- on the next day i.e. on 22-2-78 cannot cure this fatal defect because the provision is mandatory.

6. The second objection taken by the learned Counsel is that the copy of the election petition was not sent to the Collector, Ganganagar, as required by law and on that count also, there was violation of Rule 79.

7. The third ground raised by the learned Counsel is that ballot paper no. 431770 was not marked according to the rules and, therefore, it should not have been accepted. So also the ballot paper no. 431706 should have been rejected for violation of Rule 30.

8. Mr. Arora, the learned Counsel for the respondent election petitioner has vehemently controverted the above submissions and admitted that the writ petition deserves to be dismissed. According to him, Rule 79(2) and (3) are directory and not mandatory. The amount of Rs. 50/- as security cost was deposited on the very next date i.e. 22nd Februry, 1978 and it was within limitation. The copy of the election petition was sent by the election petitioner to the Collector after filing of the same and, therefore, there was substantial compliance of the law. On the point of wrongful rejection or acceptance of the ballot papers, Mr. Arora submitted that the finding of the Election Tribunal is correct and warrants no interference.

9. In order to appreciate the controversy about the security deposit it would be useful and necessary to first glance at the language of Rule 79(2) and (3), which reads as under:

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

(3) The petitioner shall also send a copy of the petition under a certificate of posting to the Collector concerned.

Prima facie, therefore, the language of this rule commands the Court not to treat an election petition as an election petition unless it is accompanied by deposit of Rs. 50/- as is express prohibition to treat it as presented. Mr. Arora invited my attention to the judgment of this Court in Ram Swarup v. Kapur Chand 1957 RLW 613 in order to substantiate his submission that the provision is directery and in any case the petition cannot be dismissed on this ground when on the very next day within the period of limitation, amount of Rs. 50/- has been deposited. Ram Swarup's case relates to the interpretation of Rule 19 of the Rajasthan Town Municipalities Election Rules. In that case the application was filed along with the election petition on 10th February, 1954, expressing the desire to deposit Rs. 50/- and requesting the Court to accept the amount. According to civil rules, the tender form was then obtained and the Munsrim then dealt with it on the same day it was filed and the District Judge signed it on 12th on which date the amount was deposited. The petition was dismissed by the Election Tribunal and then an appeal was filed before the High Court. The High Court held that the appellant could not deposit the amount earlier than the 12th and have no neglect or fault of the appellants. The court then observed as under:

When a litigant proceeds to comply with the rules or direction of law but is unable to comply with the terms strictly owing to some delay not attributable to him but to the court, it is but just to keep out of consideration the delay which is made by the court and applying that principle to the present case, the deposit by the appellant made on the 15th on the very day when he received the tender from back from the court would be deemed to have been made on the day when he produced the tender from in court, i.e., 11th of February, 1954. On that day the application challenging the validity of the election was within time. The deposit made by the appellant if considered to have been validly presented on the 11th as aforesaid was still within time and the application challenging the validity of election does not, therefore, suffer from any defect as aforesaid.

10. In para No. 4, the Court observed as under:

The lower court had thus committed an error in throwing out the petition on the ground that the money was not deposited along with the application. The deposit made on the 11th and the application which was presented on the 10th will be deemed to have been validity made on the 11th of February, 1954.

11. Mr. Arora also pointed out the judgment of Birdha v. Ranchhordas 1964 RLW 549. In this case the Court held as under:

What is essential is that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a receipt that such a deposit has been made by him in the Government Treasury and is at the disposal of the Judge as security for the costs of the petition. The receipt evidencing the deposit may be either in the form of a treasury receipt or in the form of a tender duly receipted by the officer of the Court and authorised to do so.

In particularly Mr. Arora placed reliance to para 27, which is as under:

Although penalty has been prescribed for the noncompliance of Section 53 under Section 44(3) no such of the non-compliance of the provision of Section 55. The provision of this Section is therefore directory. All that is necessary is that a treasury receipt showing that the required deposit has been made in the Government Treasury in favour of the High Court as security for costs of the appeal has been made before the expiry of the period of limitation for the appeal.

In this case, the Hon'ble Judge relied upon the judgment of Kumaranand in para no. 26 and observed as under:

It has recently been held by their Lordships of the Supreme Court in Kumaranand v. Brijmohanlal Civil Appeal No. 644 of 1964 decided on 24-8-1964 that the provision of Section 119A of the Pepresentation of the People Act is not mandatory as no penalty for non-compliance with it has been prescribed as has been done for non-compliance with the provision of Section 117. The decision of the Division Bench of this Court in Shri Kumaranand v. Shri Brijmohanlal (D.B. Election Appeal No. 93/63) decided on 25th February, 1964 which was relied upon by the respondents was set aside.

In para no. 29 the Court further observed as under-

The deposit made on behalf of the appellant under the above challan was thus a deposit in favour the High Court as security for the costs of the appeal. The provisions of Section 55 were thus substantially complied with.

It would, thus, be seen that in this case the Court was considering the difference between the various provisions in relation to deposit of security in the same election petition in contradiction to the appeal. The relevant provision about the appeal is contained in Section 55. Section 55 reads as under:

Every person who prefers an appeal under Sub-section (1) of Section 46 shall enclose with the memorandum of appeal a Government treasury receipt showing that a deposit of one hundred rupees has been made by him in the Government treasury in favour of the High Court as security for the costs of the appeal.

It was pointed out that this provision was just like Section 119A of the Representation of the People Act and there was no penalty provided in case it is not complied with. On the contrary to it, non-compliance of Section 53(1) resulted in the penalty of dismissal under Section 54(3) of the Rajasthan Municipalities Act, 1959. Similarly, non-compliance of Section 117 resulted in dismissal Under Section 85 of the Representation of the People Act, as it stood at that time.

12. No analogy can be drawn between Rule 79(2) of the Panchayat Rules referred to above and Section 55 of the Municipalities Act and Section 119 of the Representation of the People Act. Similarly, Section 19 of the Town Municipalities Act also is not in analogy to Section 119-A or Section 55 so far as the question of security deposit is concerned. Section 19(1) is as under:

At any time within ten days after the date of the declaration of the result of an election, any candidate who stood for election or any ten persons qualified to vote at that election, may apply together with a deposit of fifty rupees as security for costs to the Judge having jurisdiction over the district within which the election has been or should have been held for the determination of the validity of the election.

There is no provision in this Act or the Rajasthan Town Municipalities Act, 1951, by which an election petition is liable to be dismissed if the same is not accompanied by a deposit of Rs. 50/-. I am, therefore, of the opinion that the principles laid down in the judgment of Ram Swarup's case (supra) and Birdha's case (supra) cannot provide any guidance for interpreting the effect of Rule 79(2) to these rules. It is well established principle of interpretation of the statute, the language of the statute provides the best guidance for its interpretation.

13. Rule 79 of the Panchayat Election Rules was interpreted by this Court in Chhitar Mai v. The Munsif, Rajgarh 1967 RLW 128. An application for transposition as petitioner was made in the election petition. This application was not accompanied by a security deposit of Rs. 50/-. The earlier security deposit by election petitioner was withdrawn and the Court directed the applicant to deposit his amount of Rs. 50/- within two days, which was done. However, this order was challenged in a writ petition. This Court interpreted Rule 79(2) in the following manner:

For Rule 79(2) lays down that no petition shall be deemed to have been presented under these Rules unless the petitioner deposits a sum of Rs. 50/- along with the petition by way of security for the costs of the opposite party. Although strictly speaking Badri did not present the election petition he will be deemed to have presented the election petition within the meaning of Rule 79(2) when he filed an application for being transposed as an election petitioner. As was held in Ram Pratap v. Yasin Mohammed (2) the Tribunal was bound to dismiss the election petition of Prabhu Singh as soon as he filed an application for withdrawal on 26-4-65. The election petition will be deemed to have been dismissed on that date as having been withdrawan. By then the security deposit had not been made by Badri The result was that in the eye of law after Prabhu Singh had filed his application for withdrawal there was no election petition pending against the petitioner.

If however Badri had made the security deposit along with his application for transposition before Prabhu Singh filed his application for withdrawal he would have been validly transposed as an election petitioner and could have prosecuted the election petition filed by Prabhu Singh.

I accordingly allow the writ petition and hold that the election petition against the petitioner stood dismissed on 26-4-65 and Badri cannot be transposed as an election petitioner as he did not make security deposit by that date

14. In the above judgment, Rule 79(2) has not been discussed in details nor it has been interpreted although the principle which can be deduced certainly shows that the great importance was given to this rule by the Court and even though the lower court allowed the application to deposit the amount, which was done, the writ petition was accepted and that application for transposition was dismissed.

15. The controversy in the present case is Covered by the authoritative pronouncement of the Hon'ble Supreme Court in a latter case of Charan Lal Sahu v. Fakrudclin All Ahmed : AIR1975SC1288 . The relevant provision of Section 5(C)(1) may now be reproduced for ready reference as it will have to be seen whether Rule 79(2) is analogous to Section 5(C)(1). Section 5(C)(1) reads as under:

A candidate shall not be deemed to be duly nominated for election unless he deposits or causes to be deposited a sum of two thousand five hundred rupees: Provided that where a candidate has been nominated by more than one nomination paper for the same election, not more than one deposit shall be required of him under this Sub-section.

The Hon'ble Supreme Court while interpreting this Section 5C(1) observed as under:

We need concern ourselves only with Section 5C for the disposal of this point. It is clear on the petitioner's own submission that he sent a cheque for Rs. 2500/- to the Returning Officer on 19-7-74 along with his nomination paper. The last date for filing nomination papers was 30-7-74. It is not disputed that under Sub-section (2) of Section 5C a candidate has to either deposit Rs. 2500/- in cash or enclose with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury. The enclosing of a cheque for Rs. 2500/-does not comply with the mandatory requirement of Sub-section (2) of Section 5C. The petitioner has, therefore, clearly not complied with the requirement of Sub-section (2) of Section 5C.

16. It would thus be seen that Section 5C(1), the phraseology used is, the candidate shall not be deemed to be duly nominated and in Rule 79(2), the phraseology used is that no petition shall be deemed to have presented. The conduct of the appellant could have been so that Sub-clause (2) of Rule 79 is analogous Section 5C(1) of the Representation of the People Act.

17. In Charan Lal 's case, the last date for filing nomination papers was 30. 7. 74 and, therefore, if the stringent view would not have been taken, there was no difficulty in arranging the withdrawal of the amount of the cheque which was given on 19th July, 1974. It is, thus, clear by various decisions of the Hon'ble Supreme Court that the law in relation to election petitions and the requirements prescribed there in have always been interpreted strictly because it has been repeatedly laid down that it is neither a common law right to challenge an election nor it is an action in equity. Time and again, it has been laid down that election petition is a creation of statute and the satute only and, therefore, if the petitioner wants to file the election petition, he should strictly comply with the provisions of the law.

18. There is a great analogy in the present case and Charan Lal's case because in the instant case also, the principal argument advanced by Mr. Arora, which prima-facie appears to be plausible but has not been able to withstand, a close scrutiny by this Court is that although the petition was not accompanied by a scrutiny deposit as required by Rule 79(2) but since the same was deposited on the second day within the period of limitation, it must be deemed that there was a valid presentation of the election on 22nd, i.e. the next date.

19. As I have discussed above, this argument on the first sight appears to be plausible but on comparative discussion and comparison with the analogous provisions of the Representation of the People Act, it is no so. The Hon'ble Supreme Court has taken the stringent view and insisted on direct compliance of the analogous of the provisions of the Representation of the People Act, namely, Section 5C. There is a great similarity between the language of the two provisions as discussed above. And the earlier judgments of this Court referred to by Mr. Arora for which I have made a reference earlier are of no assistance. The law laid down by the Hon 'ble Supreme Court which is of 1975 is the law of the land and has to be followed by this Court in letter and spirit, fn that view of the matter, I have got no hesitation in holding that the Election Tribunal would not have entertain the election petition on account of the non-compliance of Rule 79(2) inasmuch as the amount of security deposit was not made along with the election petition on 21st February, 1978.

20. Since I have held that Rule 79(2) in relation to the deposit of the security along with the petition is mandatory and since on facts it is not in dispute that on 21st February, 1978, when the election petition was filed, it was not presented along with a deposit of Rs. 50/-as required for the cost of the opposite party, the legal and logical consequence of this is that it cannot be deemed to have been presented under these rules as per the mandate of Rule 79(2) of the Rajasthart Panchayat and Nyaya Panchayat Rules, 1960. As there was no valid election petition before the Election Tribunal, the entire proceedings taken by the Election Tribunal including recounting and the final decision, all are consequential on the basis of the election petition but had no valid existence in the eye of law.

21. The result is that it is held that there was no valid election petition before the Election Tribunal in this case and all the orders passed on it including the final judgment of setting aside the election of the petitioner are illegal and consequently they are set-aside.

22. Since, on the first point canvassed by the learned Counsel for the petitioner, I have held that there was no valid election petition before the Election Tribunal, it is not necessary to decide the other two objections, which have been raised by him.

23. The net result is that this writ petition is accepted. The impugned order setting aside the election of the petitioner by the judgment dated 28.3.79 by the Munsif and Judicial Magistrate, Bhadra, is set-aside. There will be no order as to costs.


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