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Venkataswami Naidu Vs. Nachimuthu Goundan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtChennai High Court
Decided On
Reported in(1960)1MLJ173
AppellantVenkataswami Naidu
RespondentNachimuthu Goundan and ors.
Cases ReferredJagannath v. Rama Chandra
Excerpt:
- .....for complying with the mandatory provision of rule 4(1) as the election petition would be in time if presented on that date. mr. sharfuddin, the learned advocate for the respondents contended that notwithstanding the provision of rule 4, the election commissioner would have jurisdiction to grant such time as he may deem just for making the deposit and he referred me, in this connection, to the decision in gopalakrishna pillai v. kunjithapatham pillai : (1923)45mlj849 . in that case, a petition was filed to set aside an election of a member of a taluk board held on the 9th of may, 1922. the petition was filed on the 17th july, 1922, immediately after the court re-opened after summer recess. the petitioner brought the money required to be deposited in court, along with the.....
Judgment:
ORDER

Ramachandra Iyer, J.

1. These are petitions under Article 226 of the Constitution to call for records in O.P. No. 30 of 1958, on the file of the Election Commissioner (District Munsif), Tiruppur, and to quash the order, dated 17th April, 1959, therein.

2. The election to the Village Panchayat of Selakaraichal in Coimbatore District took place on 10th June, 1958. For Ward No. 4 three seats had to be filled up. Six persons filed their nominations for the three seats, amongst whom the petitioners in the two petitions were contesting candidates. There were four more candidates who filed their nominations. But the Election Officer rejected the nomination papers of those four persons, as not being proper, with the result, that for the three seats for which there had to be an election, there were only two candidates, namely, Venkataswami Naidu and Rangaswami Naidu. The Election Officer, therefore, declared both of them to be duly elected, holding the other seat was vacant. This declaration was made on 9th June, 1958. The four persons, whose nominations were rejected, presented a petition to the Election Commissioner challenging the election of the returned candidates on various grounds. The petition was presented on 18th June, 1958. The petition was, however, filed without the deposit of Rs. 25 which had to be made in respect of each of the candidates whose election was challenged under the provisions of Rule 4(1) of the Rules relating to the decision of Election Disputes. Even the lodgment schedule form which accompanied the petition was not signed by the advocate presenting the petition. The petition was returned on the same date, the Election Commissioner stating 'Returned. Time one week.' The petition was re-presented on 25th June, 1958. A chalan was then issued to the petitioner's advocate, and a sum of Rs. 50 was paid on the same date. The election of the returned candidates was challenged on the grounds (1) that there was no due publication of the date of the election, and (2) that the returned candidates were not qualified to stand, they having been defaulters in respect of the taxes payable to the Panchayat. The successful candidates took a preliminary objection to the maintainability of the petition on the ground that the petition was not presented in time, and that, it was liable to be dismissed. The Election Commissioner held that there was no merit in the case of the election petitioners, that there was no due publication of the notice relating to the election. He, however, held that the successful candidates were defaulters. As regards the objection of the returned candidates, that the election petition was not filed in time, the Commissioner held that, as the amount of Rs. 50 was paid within the time granted by his order, dated 18th June, 1958, there was no delay in the presentation of the petition. On those findings, the Election Commissioner set aside the election, and directed a fresh election. The successful candidates have filed the above writ petitions, challenging the propriety of the order of the Election Commissioner.

3. The only question argued before me was as to whether the election petition had been presented in time. To appreciate that contention, it is necessary to refer to rule 4 of the Rules relating to decision of election disputes. That Rule states:

4. (1) At the time of presentation of the petition, the petitioner shall deposit with it in cash twenty-five rupees as security for the costs of the same.

Explanation. - Where the election of more than one returned candidate is called in question, a separate deposit shall be made in respect of each such returned candidate.

(2) If the provisions of Sub-rule (1) are not complied with, the Election Commissioner shall dismiss the petition.

(3) Upon compliance with the provisions of Sub-rule, (1), the Election Commissioner shall proceed to inquire into the petition.

Rule 2 of the Rules prescribes a period of 15 days for the presentation of an election petition from the date of the declaration of the result of the election. In the present case declaration of the result of the election was made on 9th June, 1958. A petition, challenging the election, could be filed within 15 days thereafter, that is, by 24th June, 1958. As stated already, the petition was actually filed on 18th June, 1958. But then the petition was not accompanied with a deposit of Rs. 50 under Rule 4(1). The petition was not re-presented within 24th June, 1958, after complying with the requirements of Rule 4; it was re-presented only a day later. Under the circumstancess, a question will arise as to whether there has been proper presentation of the petition within the terms of Rule 2. That would depend upon the answer to the question, whether the provision of Rule 4(1) is mandatory, so as to render invalid any petition presented without complying with the provision as to deposit of cost. Rule 4(1) on its terms is mandatory. Indeed, Sub-rule (2) directs the Election Commissioner to dismiss a petition, if it is not accompanied by the deposit. Under the circumstances, it was not open to the Election Commissioner to give time for making deposit beyond the period of time, within which the election petition could be presented. In the present case, the Election Commissioner could have granted time till 24th June, 1958, to the election petitioners for complying with the mandatory provision of Rule 4(1) as the election petition would be in time if presented on that date. Mr. Sharfuddin, the learned advocate for the respondents contended that notwithstanding the provision of Rule 4, the Election Commissioner would have jurisdiction to grant such time as he may deem just for making the deposit and he referred me, in this connection, to the decision in Gopalakrishna Pillai v. Kunjithapatham Pillai : (1923)45MLJ849 . In that case, a petition was filed to set aside an election of a Member of a Taluk Board held on the 9th of May, 1922. The petition was filed on the 17th July, 1922, immediately after the Court re-opened after summer recess. The petitioner brought the money required to be deposited in Court, along with the application, and applied for a chalan to pay it into the Bank, as required by the Civil Rules of Practice. The money could not be paid into the Bank on that date, owing to the absence of the Treasury Officer. It could not be paid on the forenoon of the next day, owing to an accident sustained by the petitioner with the result that it had to be paid only on the next day. An objection was taken to the maintainability of the petition on the ground that the petition was not accompanied with the deposit, as prescribed by the Rules. The learned Judges held that the delay in the payment of the money in that case was not due to any negligence of the party but to the act of Court, and applying the principle that no party should be prejudiced by the acts of Court or its Officers, it was held that there was no delay. This decision was considered by Wadsworth, J. in Sankaran Nayar v. Govindan Nayar : AIR1942Mad534 , where the learned Judge held that a deposit required to be made under the statutory provision could be deemed to have been made on the day on which chalan was applied for, only if it was proved that the applicant was prevented from making the deposit on the very day on which chalan was applied for by some default on the part of the Treasury Officer, or the Bank, or by some delay on the part of the Court in issuing the chalan, so as to prevent the applicant from making the deposit in time. Those decisions will, however, have no application to the present case, where the delay in making the deposit on the very day on which chalan was applied for was due to default of the petitioner himself, and not to any mistake on the part of the Court or its Officers. There is, a decision of the Orissa High Court in Jagannath v. Rama Chandra : AIR1959Ori26 , in a similar case under the Representation of the People Act. The Representation of the People Act contained a provision for payment of deposit as security in respect of costs of the petition similar to the one contained in Rule 4. In that case, the treasury receipt did not accompany the election petition which was sent by post. But, on the same day, the election petitioner sent another packet to the Election Commissioner, containing treasury receipt and copies of the election petition. The first packet containing the original petition reached the Election Commissioner on the 22nd April, 1957. But the other packet containing the treasury receipt, although sent by Air Mail (express delivery), reached the Election Commissioner four days after the time had expired. It was held that there was no valid presentation of the petition within the time prescribed by law, and that it should be dismissed. It is, however, unnecessarily to consider whether that decision is in conformity with the principle laid down in the two Madras cases where the party could not make deposit in time, owing to the mistake of the Court or its Officers and the treasury receipt not reaching the Election Commissioner in time. In the present case, there is a default on the part of the election petitioner to make the deposit within the time prescribed by the law and the default could not be attributed either to the Election Commissioner or to the Treasury Officials. There was thus a non-compliance with the mandatory provision of Rule 4(1). The making of deposit within the time prescribed being an essential condition for proper presentation of an election petition, it should be held that there was no valid presentation of the petition in the present case within the time prescribed by Rule 2, viz., 24th of June, 1958. The petition, presented on 25th June, 1958, was out of time, and, therefore, would not be maintainable. The Election Commissioner had, therefore, no jurisdiction to deal with the petition which should be dismissed.

4. Rule nisi is made absolute. In the circumstances of the case, there will be no order as to costs.


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