TMI Blog1983 (3) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... from the Anna Nagar Assembly Constituency No. 8 held in May 1980, the appellant, M. Karunanidhi, leader of the Dravida Munnetra Kazhagam party, contested as a candidate of that party and secured 51290 votes. As against this, the respondent Dr. H.V. Hande sponsored as a candidate by the All India Anna Dravida Munnetra Kazhagam secured 50591 votes. On June 1, 1980 the appellant, M. Karunanidhi, was consequently declared elected by a margin of 699 votes. The last date for filing an election petition to challenge his election was July 16, 1980. On July 14, 1980 the respondent, Dr. H.V. Hande, filed an election petition under Section 81 read with Section 100 of the Representation of People Act 1951 (for the sake of brevity hereinafter referred to as 'the Act') challenging the election of the appellant on various grounds. The election petition was accompanied by a pre-receipted challan prepared by the Accounts Department of the High Court on the basis of a lodgment schedule initialled by the Assistant Registrar II, High Court, showing that a sum of Rs. 2,000 had been credited on July 11, 1980, to the account of the Registrar, High Court, Madras, in the Reserve Bank of India, Madr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the respondent in the Reserve Bank of India to the credit of the Registrar, High Court, at the instance of the High Court, and in accordance with the procedure followed for deposit of amounts in court. In reaching that conclusion, the High Court relied upon the lodgment schedule presented by K. Subramaniam, counsel for the respondent, which had been prepared in the Registry by the Assistant Registrar II, and the challan in triplicate prepared by the Accounts Department of the High Court and signed by the official referee specifying the amount and the date within which it had to be deposited. It held that the requirements of Sub-section (1) of Section 117 of the Act read with Rule 8 of the Election Petitions Rules for the making of the deposit of Rs. 2,000 as security for costs in the High Court were mandatory but the manner of making such deposit was directory and as the amount of Rs. 2,000 had, in fact, been deposited to the credit of the Registrar, High Court, within the time allowed therefor, there was substantial compliance with the requirements of Sub-section (1) of Section 117 of the Act. As regards the objection based on the non-supply of a copy of the photograph of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deposits to such of those parties who produce one part of the Challan and make a request for official receipt to that effect. It is also submitted that Accounts Department will not receive cash without specific orders to that effect. This is the procedure that is being followed by the Accounts Section of High Court with regard to Court Deposits. 7. It is against this order of the High Court that this appeal was filed. The appeal was first heard in April 1981, and this Court by its order dated April 2, 1981, remitted back the issue with regard to the alleged non-compliance with the requirements of Sub-section (1) of Section 117 read with Rule 8 of the Election Petitions Rules to the High Court for a decision afresh, as it was felt that the point raised was primarily a matter of evidence, but the parties had unfortunately not led any evidence on the point. It accordingly directed the High Court to record the evidence that may be adduced as regards the practice and procedure followed by the High Court in regard to the making of an election petition under Section 81 of the Act and the manner in which the security amount of Rs. 2,000 was deposited in the High Court in complianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the respondent, had been initialled by him and that he had also put the date July 14, 1980 by which date the deposit had to be made. K. Subramaniam (P.W. 6), counsel for the respondent', stated that the respondent had given him the amount of Rs. 2,000 in the first week of July 1980, and accompanied by an authorised representative of the respondent, he took the lodgment schedule Ex. P-2B to K.S. Natarajan (P.W. 4), Assistant Registrar II, who initialled the same and indicated the date by which the deposit was to be made. He then took the lodgment schedule to the Accounts Department where S. Seturaj (P.W. 1) working as challan issuing clerk, prepared the challan in triplicate. Thereafter, he took the challan in triplicate to the Reserve Bank of India and deposited the amount of Rs. 2,000 in cash in the name of the Registrar, High Court, and the duplicate copy of the challan was handed over to him. The duplicate copy of the challan, Ex. P-2C, bears the seal of the Reserve Bank of India, with the endorsement 'received in cash' and is dated July 11, 1980. The duplicate copy of the challan Ex P-2C, was filed along with the election petition. 10. At this point, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the limitations imposed by it. The Court having regard to the non obstante clause in Article 329(b) held that the Act having furnished a complete Code for challenging an election, the election must be challenged in the manner provided. The Court relied upon the dictum of Willes, J. in Wolverhampton New Water Works Company v. Hawkesford [1859] 6 CB (NS) 336 which has become classical. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. 12. As observed by this Court in Jagan Nath v. Jaswant Singh and Ors., [1954]1SCR892 an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It also added that: It is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. At the same time, the Court added a note of caution: It is always to be borne in mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested by the petitioner under his own signature to be a true copy of the petition. 15. Section 82 which is the next section lays down who shall be parties to an election petition. We need not refer to this section in detail since we are not concerned with it Section 83 is however material and it provides what shall be the contents of an election petition. It reads: 83 (1) 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 as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and (c) shall be signed by the petitioner and verified in the manner laid down in the CPC, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court in the Reserve Bank of India to the credit of the Registrar, High Court, Madras as security for costs well within the period of limitation for filing the election petition is not in dispute and the controversy turns on the question whether the deposit of the security amount was in accordance with the rules of the High Court. There are different sets of rules framed by different High Courts under Article 225 of the Constitution regulating the practice and procedure to be observed in all matters coming before the High Court in exercise of its jurisdiction under Section 80A of the Act. The words in accordance with the rules must therefore connote according to the procedure prescribed by the High Court . The mode of making deposit must necessarily be an internal matter of the concerned High Court. 21. In support of this appeal, learned Counsel for the appellant contends that the provisions of Sub-section (1) of Section 117 of the Act are mandatory, non-compliance of which will entail dismissal of the election petition in limine under Sub-section (1) of Section 86 of he Act. It is urged that no distinction can be drawn between the requirement as to the making of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court under Sub-section (1) of Section 117 and the manner of making such deposit. There was considerable emphasis laid by learned Counsel that Sub-section (1) of Section 117 cannot be dissected into two parts, one part being treated as mandatory and the other as directory. The contention is wholly misconceived and indeed runs counter to several decisions of this Court. It is always important to bear the distinction between the mandatory and directory provisions of a statute. Sub-section (1) of Section 117 is in two parts. The first part of Sub-section (1) of Section 117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court a sum of Rs. 2000/- as security for the costs of the petition, and the second is that such deposit shall be made in the High Court in accordance with the rules of the High Court. The requirement regarding the making of a security deposit of Rs. 2000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under Sub-section (1) of Section 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. 25. In Manbodhan Lal's case, (supra) the contention was that the reduction in rank after departmental inquiry was invalid for non-compliance with the requirements of Article 320(3)(c) of the Constitution which read literally made it obligatory for the Government of India or a Government of a State to consult the Union Public Service Commission or the State Public Service Commission in all disciplinary matters affecting a person in service of the State. In turning down the contention it was observed by this Court: The use of the word shall in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid. 26. Following the principle laid down by the Privy Council in Montreal Street Railway Company's case, (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, in the circumstances, substantial compliance with the provisions of Sub-section (3) of Section 94 of that Act. 28. There was quite some discussion at the Bar as to the legality and propriety of the procedure adopted in the Madras High Court as to the making of a security deposit under Sub-section (1) of Section 117 of the Act. The objection is to the manner of such deposit being made on the strength of pre-receipted challan prepared by the Accounts Department on the basis of the lodgment schedule into the Reserve Bank of India to the credit of the Registrar, High Court, Madras. It was submitted that this was in complete violation of Rule 8 of the Election Petitions Rules. It is said that Rule 8 must be read as forming part of Sub-section (1) of Section 117 and the only manner prescribed is. by making deposit in cash with the Registrar and obtain his receipt there for. It was urged that it is paradoxical to say that deposit of money into the Reserve Bank to the credit of the Registrar, High Court, Madras is a sufficient compliance of Sub-section (1) of Section 117 when Rule 8 provides that the money should be deposited in the High Court in cash, and that is the only mode pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are informed that the same practice and procedure has been followed during the relevant period in all the election petitions filed in the Madras High Court and there was no separate receipt of the Registrar except in one case where the election petition was not tried. We need not dilate on the point any further. It must accordingly be held that there was due compliance with the requirements of Sub-section (1) of Section 117 of the Act read with Rule 8 of the Election Petitions Rules. 29. The matter is no longer res inttgra. The submission runs counter to the decision of this Court in the well-known case of K. Kamaraja Nadar v. Kunju Thevar and Ors. [1959]1SCR583 . That was a case under the old Section 117 of the Act as it stood prior to its amendment by Act 47 of 1966. It read: The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. 30. In that case, the petitioner enclosed a Government Treasury receipt showing a deposit of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion that the election petition was liable to be dismissed in limine under Section 85 or Sub-section (3) of Section 90 for non-compliance with the requirements of Section 117 of the Act and observed: It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of Section 117 and would involve a dismissal of the petition under Section 85 or Section 90(3) The above illustration is sufficient to demonstrate that the words in favour of the Secretary to the Election Commission used in Section 117 are directory and not mandatory in their character. What is of the essence of the provision contained in Section 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 either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-compliance of the provisions of Sub-section (1) of Section 117. this Court repelled the contention and expressed the view that the words in such manner in Article 329(b) could not be limited in their operation to procedural requirements. The Court held: The provision of law which prescribes that an election petition shall be accompanied by the payment of security amount pertains to the area covered by the manner of the making of the election petition and is therefore within the authority of Parliament. 33. Adverting to the dismissal of the election petition by the High Court, this Court held that the High Court had no option but to dismiss the petition as it was not accompanied by payment of the security deposit for Sub-section (1) of Section 86 of the Act clearly provides that the High Court shall dismiss an election petition which did not comply with the provisions of Sections 81, or 82 or 117 of the Act. 34. The remaining part of the case is not free from difficulty. There are two questions that arise, namely : (1) Whether the photograph referred to in paragraph 18(b) was a schedule or annexure within the meaning of Sub-section (2) of Section 83 and therefore formed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 77. It is alleged that the appellant had set up fancy banners throughout the constituency and the number of such banners was about 50, the cost of each such banner being not less than Rs. 1000 and therefore the expenditure involved in erecting these 50 banners was not less than Rs. 50,000/-, but that the appellant had not disclosed the amount in the return of the election expenses and thus committed a corrupt practice under Sub-section (6) of Section 123 of the Act. 37. It is not possible to conceive of the dimension of the large fancy banner unless one has a look at the photograph. The photograph filed with the election petition gives a visual description of the fancy banner, the cost of which at a mere look would show that the expenditure in setting up each such banner would be Rs. 1000 or more. The photograph depicts two election banners. One of them is a huge fancy banner or a hoarding on the left side of the road and the other on the right is a smaller election banner. The fancy banner depicts two groups, and the appellant is present in both. On the left hand top there is a large picture of the appellant with the late Sri Annadurai and at the right hand below there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tract the copy from being a true copy. The facts and circumstances of the case therefore showed that there had been a substantial compliance with the requirements of Sub-section (3) of Section 81 of the Act. The wider question whether Sub-section (3) of Section 81 or apart thereof is mandatory or directory was left open. On the facts of that case the Court held that if there was substantial compliance with the requirements of Sub-section (3) of Section 81 the election petition could not be dismissed. 40. It was submitted on behalf of the appellant that there was total and complete non-compliance of the requirements of Sub-section (3) of Section 81 and therefore the election petition was liable to be dismissed in limine under Sub-section (1) of Section 86. The argument to the contrary advanced on behalf of the respondent was that the photograph filed along with the election petition had to be treated as a document in proof of the allegations contained in paragraph 18(b) and not as a part of the election petition. The submission is that there is a distinction between a schedule or annexure to the petition referred to in Sub-section (2) of Section 83 and a document which is mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n are not kept back but produced or filed with the election petitions. They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof. The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments are concerned. 42. The High Court rests its conclusion on the decision of this Court in Sahodrabai's case, supra, but that decision, in our opinion is inapplicable to the facts and circumstances of the present case. In Sahodrabai's case (supra) an election petition was. filled together with a pamphlet as annexure thereto. A translation in English of the pamphlet was incorporated in the body of the election petition and it was stated that it formed part of the petition. A preliminary objection was raised that a copy of the pamphlet had not been annexed to the copy of the petition served on the returned candidate and therefore the election petition was liable to be dismissed under Sub-section (1) of Section 86 of the Act. The Madhya Pradesh High Court sustained the preliminary objection and dismissed the election petition. On appeal, this Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the body of the election petition, the decision of the Court in Sahodrabai's case, supra, would have been otherwise. That precisely is the case here. 47. In this connection, we may next refer to the decisions of this Court in Jagat Kishore Prasad Narayan Singh v. Raj Kumar Poddar and Ors. [1971]1SCR821 and Satya Narain v. Dhuja Ram and Ors. [1974]3SCR20 . In Jagat Kishose Prasrd Naryan Singh's case, supra, there were serious discrepancies between the original election petition filed in the Court and the copies supplied to the contesting candidates. this Court dismissed the election petition on the ground of non-compliance of Sub-section (3) of Section 81 as the copies furnished to the contesting respondents were not true copies and there was divergence between the allegations made in the petition and the allegations made in the copies, and that such divergence was bound to mislead the contesting candidates and prejudice their defence, particularly in a case where the returned candidate is charged with corrupt practice. That is because he must know the nature of the charge against him, so that he may prepare his defence. It was observed : The law requires that a true co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of Section 81, it was observed: Now, the first question which arises is as to what constitute an election petition for the purpose of section 81, Sub-section (3). Is it confined only to election petition proper or does it also include a schedule or annexure contemplated in Sub-section (2) of Section 83 or a supporting affidavit referred to in the proviso to section 83, Sub-section (1)? To answer this question, we must turn to Section 83 which deals with contents of an election petition. Sub-section (1) of that section sets out what an election petition shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in the CPC, 1908 for the verification of pleadings. The proviso requires that where the petitioner alleges any corrupt practice, prescribed form in support of the allegation of such corrupt practice the election petition shall also be accompanied by an affidavit in the and the particulars thereof. The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition. Otherwise, it need not have been introduced in a section dealing with contents of an electi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk that every document produced as evidence in the election petition becomes a part of the election petition proper. 51. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-ud-din v. Abdul Gani Lone [1980]1SCR1177 but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding Sub-section (3) of Section 89 of the Jammu Kashmir Representation of the people Act, 1957 which reads: Every election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. 52. In that case, both the copies of the election petition contained the endorsement ''Attested true copy, Piyare Lal Handoo, Advocate . The question arose whether there was a sufficient compliance with the provisions of Sub-section (3) of Section 89 of that Act. The Court pointed out that Sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph 18(b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of Sub-section (3) of Section 81 of the Act. 56. For these reasons, all the appeals and special leave petitions except Civil Appeal No. 38 (NCE) of 1981 must fail and are dismissed. Civil Appeal No. 38 (NCE) of 1981 partly succeeds and is allowed. The judgment of the High Court holding that the amount of Rs. 2000 having been deposited to the credit of the Registrar, High Court in the Reserve Bank of India on the strength of pre-receipted challans issued by the Accounts Department on the basis of a lodgment schedule, there was substantial compliance of the requirements of Sub-section (1) of Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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