TMI Blog2018 (3) TMI 1961X X X X Extracts X X X X X X X X Extracts X X X X ..... tition 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 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. The deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition. The order passed by the High Court that has affirmed the order of the Additional District Judge as a result of which the election petition shall stand rejected - Appeal allowed. - Civil Appeal No. 1200 of 2018 (Arising out of S.L.P. (C) No. 20768 of 2017) - - - Dated:- 6-3-2018 - Dipak Misra, C.J.I., A.M. Khanwilkar And Dr. D.Y. Chandrachud, JJ. For the Appellant : Mahabir S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. After filing a reply to the election petition, the Appellant filed an application Under Order VII Rule 11 read with Section 151 Code of Civil Procedure for rejection of the election petition because of non-compliance of Rule 3(d) of the 2009 Rules. In addition to the aforesaid, certain other grounds were also urged to reject the election petition but as the said grounds have not been canvassed before us, we need not dwell upon the same. 4. It was contended before the Election Tribunal that as required by the 2009 Rules, an election petition may be filed by a candidate who has been defeated or whose nomination has been rejected to challenge the election by filing an election petition which is required to be accompanied by a treasury challan of ₹ 1,000/- and the Judge hearing the election petition as per Rule 7(3) of the 2009 Rules is obligated to dismiss the election petition which does not comply with the provisions of the said Rules. It was pleaded that though the 1st Respondent had filed the election petition on 09.09.2015, yet it was not accompanied by treasury challan of ₹ 1,000/- and to substantiate the same, reliance was placed on the order dated 16.09.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Rule, being pertinent, is extracted below: Rule 3(5). An election petition- (a) shall contain a concise statement of the material facts on which the Petitioner relies; (b) shall set forth full particulars of any corrupt practice that the Petitioner alleges, including names of the person alleged to have committed such corrupt practice and the date and place of the commission of such practice; (c) shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908) for the verification of pleadings. Any Schedule or annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition, and (d) shall be accompanied by a treasury challan of rupees one thousand. 9. Rule 7 of the 2009 Rules deals with the decision of the Judge. As we are only concerned with Sub-rule (3) of Rule 7, it is reproduced below: Rule 7. Decision of the Judge.- (3) The Judge shall dismiss an election petition, which does not comply with the provisions of these rules. 10. It is submitted by Mr. Singh, learned senior Counsel appearing for the Appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Article 329(b) of the Constitution of India which provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Proceeding further, the Court observed: 3. ... The right conferred being a statutory right, the terms of that statute had to be complied with. There is no question of any common law right to challenge an election. Any discretion to condone the delay in presentation of the petition or to absolve the Petitioner from payment of security for costs can only be provided under the statute governing election disputes. If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. This Court has held that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency 1952 SCR 218 : AIR 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or any one else. 32. If, therefore it can be shown by evidence led before the Election Tribunal that the Government Treasury receipt or the chalan which was obtained by the Petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of Section 117. No such literal compliance with the terms of Section 117 is at all necessary as is contended for on behalf of the Appellant before us. 15. As stated earlier, the said decision was distinguished and the distinction is vivid from the analysis made in the above quoted paragraphs. 16. In this context, reference to the decision by the Constitution Bench in Charan Lal Sahu v. Fakruddin Ali Ahmed and Ors. (1975) 4 SCC 832 is instructive. In the said case, the nomination of the Petitioner was rejected on the ground of non-compliance with Sections 5-B and 5-C introduced in the Presidential and Vice-Presidential Elections Act, 1952 by an amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stated in the election petition that he had deposited the security amount of ₹ 2000/- along with the petition as required Under Section 117 of the 1951 Act but, in fact, no such deposit was made. Dealing with the same, the Court expressed: 3. The only question which survives is as to what is the consequence of non-compliance with Section 117 of the Act. That question has been settled by the decision of this Court in Charan Lal Sahu v. Nandkishore Bhatt (supra) wherein it was held that the High Court has no option but to reject an election petition which is not accompanied by the payment of security amount as provided in Section 117 of the Act. Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117. In that view of the matter, the High Court was right in dismissing the election petition summarily. 18. From the aforesaid authority, it is clear as crystal that there has to be compliance with the provision relating to deposit failing which the Court has no option but to reject an election petition. Be it noted with profit that the said decision dealt with a situation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (1) of Section 117 of the 1951 Act are mandatory and, therefore, non-compliance with the same has to entail dismissal of the election petition in limine Under Sub-section (1) of Section 117 of the 1951 Act. The Court adverted to the issue as to whether the provision is mandatory or not and, in that context, held: 20. It is well established that an enactment in form mandatory might in substance be directory and that the use of the word shall does not conclude the matter. The general Rule of interpretation is well-known and it is but an aid for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context. The following passage from Crawford on Statutory Construction at p. 516 brings out the rule: The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him therefor. Rule 8 is silent as to how the cash is to be handled. It cannot ordinarily be expected that the Registrar of a High Court would accept the amount of security deposit in cash. The procedure adopted by II Assistant Registrar in directing that the money be deposited to the credit of the Registrar of the High Court in the Reserve Bank of India was in conformity with the requirements of Rule 8 of the Election Petitions Rules. Inasmuch as Rule 8 does not lay down the procedure regulating the manner of deposit of cash, the matter falls to be governed by Rule 2 of Order 31 of the Madras High Court (Original Side) Rules, 1956 by reason of Rule 12 of the Election Petitions Rules. Although Order 31 Rule 2 does not in terms apply because Order 31 relates to Payment into Court of moneys to the credit of civil court deposits and account of suitors' money , and though no lodgment Schedule can be prepared under Rule 2 except in pursuance of a decree or order passed by the High Court i.e. in relation to some proceeding pending, or disposed of, by the High Court, still by virtue of Rule 12 of the Election Petitions Rules that is the procedure to be adopted for deposit of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trued as the deposit by the election Petitioner. The three-Judge Bench, analyzing the object of Section 117 of the 1951 Act, held that the purpose of Section 117 is to discourage entertaining frivolous election petitions and make provision for costs in favour of the parties who ultimately succeed in the election petition. The Court further observed that Sub-section (2) of Section 117 authorises the High Court to call upon an election Petitioner during the course of the trial of an election petition to give such further security which may be necessary depending upon the facts and circumstances of the case. The decision in Charan Lal Sahu (I) (supra) was distinguished as it was a case of non-deposit. The authority in Aeltemesh Rein (supra) was also distinguished as no such deposit had been made though it was stated in the petition that the security amount was being deposited. The Court placed reliance on M. Karunanidhi (supra) and eventually ruled: This Court relied upon the earlier decision of this Court in the case of K. Kamaraja Nadar v. Kunju Thevar which was a case under the provisions of Section 117 of the Act, as it stood prior to its amendment, wherein also the receipt s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nna Kumar (2013) 4 SCC 776, the three-Judge Bench after referring to T.M. Jacob (supra) came to hold that the defect in verification of affidavit is not fatal to the election petition and it could be cured. Reference was made to a passage from Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar (2009) 9 SCC 310 wherein it has been held: 50. The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. 29. After so stating, the three-Judge Bench ruled: 52. The principles emerging from these decisions are that although non-compliance with the provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance with the provisions thereof. However, if there is total and complete non-compliance with the provisions of Section 83 of the Act, then the petition cannot be described as an election petition and may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Receiving Officer or during the absence on leave or otherwise of the person appointed as the Receiving Officer, the presiding officer of the civil court or the presiding officer of the high court as the case may be, shall appoint any other official of his court to carry on the duties of the Receiving Officer. 253. Head of account. The following are the head of account under which the money received and paid under these Rules are classified: (1) Deposits; (a) Civil Court deposits, including: (i) sums paid under decrees and orders; (ii) sums deposited Under Order XX, Rule 14 and Order XXIV, Rule 1 of the Code of Civil Procedure and Section 83 of the Transfer of Property Act; (iii) Sums deposited Under Order XXII, Rule 84 or paid Under Order XXI, Rule 85 of the Code; (iv) Sums deposited Under Section 379(1) of the Indian Succession Act; (v) Sums deposited in lieu of security; (vi) Sums deposited under any law relating to the Land Acquisition; (b) petty cash deposits, including deposits for: (i) Travelling and other expenses of witnesses; (ii) Subsistence money for judgment debtors; (iii) Incidental charges of Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reparation of the order for payment. The order to receive payment shall be prepared in the office of the Court and shall be enfaced upon the duplicate and triplicate forms of the tender, and shall run in the name of or Receiving Officer as prescribed in Rules 255, 256, 257. The order shall be signed by the presiding officer for all amount payable under Head of Account (1)(a) and (2) of Rule 253 and by the Munsarim or the Reader of the court concerned; as the case may be for all amounts payable under shall send the tender forms to the Munsarim or the Reader of the Court concerned, as the case may be. The third form of tender shall be retained in custody by the Munsarim or the Reader of the court concerned, as the case may be, and then he shall return the second copy of the tender to the applicant and the original copy shall be sent to the concerned court for keeping it in the concerned case file. 32. In this regard, our attention has also been invited to the General Financial and Accounts Rules Volume I Volume II. Rule 54 of the said Rules deals with the payment into treasury. Rule 56 deals with Signing of Challan by Departmental Officer. The said Rules read as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny deposit register which can be carried to any other head of account, for example, revenue paid to Government on account of a demand not yet due should at once be credited to the proper revenue head, instead of treating it as a deposit. xxx xxx xxx 86. All kinds of revenue deposits under this category shall be separately paid into treasury linked agency bank with challans/System Generated Challans and other prescribed documents setting forth all the particulars necessary for entries to be made in Revenue Deposit Register. Each item of revenue deposit, other than security deposit relating to election of Lok Sabha received, should at once be properly entered with unique identification number. There should be a separate series of numbers for each register, beginning afresh each year. All deposits must be separately paid into the treasury with challans or other documents setting forth all the particulars necessary for the entries to be made in the register of deposit receipts. The treasury officer should carefully check the amount and particulars of each entry and then set his initials in the proper column against each. The format for Revenue Deposit Register is appended in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been deposited on that day and the deposit was made after the order was passed. The learned single Judge took note of Rule 85 of the Election Rules which provides that the procedure provided in the Code of Civil Procedure with regard to suits is made applicable in so far as can be made applicable and came to hold that if the deposit exceeds ₹ 25/-, the same can only be deposited in the treasury if an order is passed by the Court or by the Munsarim or the Reader of the Court concerned, as the case may be. 35. In this regard, Mr. Singh has placed reliance on an earlier decision of the Rajasthan High Court in Gulab Singh v. The Munsif and Judicial Magistrate 1st Class and Ors. 1981 WLN (UC) 78. In the said case, the learned single Judge was dealing with the security deposit as provided under Rule 79(2) (3) of the Rajasthan Panchayat and Nyaya Panchayat Election Rules, 1960. In the said case, the deposit was made subsequently. It was contended that the same was fatal to the case as the provision is mandatory. Rule 79(2) of the said Rules read as follows: 79(2) No petition shall be deemed to have been presented under these Rules unless the Petitioner deposits a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier. Such was the case in Bajrang Lal v. Kanhaiya Lal and Ors. RLW 2007 (2) Raj 1551 where the election petition was submitted on 31.8.2005 and an application was submitted before the court below on 30.8.2005 Under Section 53 of the Act of 1959 with the signature of the advocate and an order was passed by the court on the same application itself on 30.8.2005 allowing the advocate to deposit the security amount Under Section 53 of the Act of 1959 for election petition. The election petition was submitted on 31.8.2005. In such a fact situation, the High Court found that there was compliance with the provision. 38. Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury ..... X X X X Extracts X X X X X X X X Extracts X X X X
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