Beena Pandey vs Mamta Devi and Others

Sanjay Yadav, J.

Heard.

Petitioner was elected as Sarpanch, Gram Panchayat, Pahadiya, 365, Janpad Panchayat, Raipur Karchulian District Rewa on 18.1.2010. Respondent no. 1 filed an election petition as 122 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam 1993.

Petitioner raised objection as to maintainability of election petition and for dismissal of election petition for non compliance of Rule 7 of M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules 1995 (hereafter referred as Rules 1995).''

Rule 7 of the Rules 1995 stipulates:

Deposit of security.-At the time of presentation of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. Five Hundred as security. Where the election of more than one candidate is called in question, a separate deposit of an equivalent amount shall be required in respect of each such returned candidates.

The effect of non compliance of Rule 7 is depicted in Rule 8 of Rules 1995 which provides:

8 Procedure on receiving petition.- If the provisions of rule 3 or rule 4 or rule 7 have not been complied with, the petition, shall be dismissed by the specified officer:

Provided that the petition shall not be dismissed under this rule without giving the petitioner an opportunity of being heard.

Objection raised by the petitioner was overruled by the specified officer vicie his order dated 5/5/2010, holding that as per arrangement and non availability of the regular establishment of Sub Division Office at a Tahsil place, i.e. Raipur Karchulian, the amount towards security are required to be deposited in the office of Tehsildar Raipur Karchulian who issues receipt vide MPTC 6.

Placing reliance on the decision in Babulal and Another Vs. State of M.P. and Others, , Uday Singh Vs. Himmat Singh and Others, , Sarla Tripathi (Smt.) Vs. Smt. Kaushilya Devi and Others, as also the affidavit filed by Collector Rewa, which is in pursuant to order dated 24/3/2011 to substantiate the submissions that provisions of Rule 7, i.e. deposit of security amount, is mandatory and requires strict compliance.

The Affidavit by Collector Rewa relied upon by the petitioner is in pursuance to the direction by this Court on 24/3/2011 whereby the Collector was called upon to indicate as to how cash deposits are made with regard to proceedings initiated in the Court of Sub Divisional Officer, Tehsil Raipur Karchulian District Rewa.

Collector, Rewa in his affidavit dated 10/5/2011 has stated that the cash deposit can be made in the office of Sub Divisional Officer, who is required to issue MPTC-6 receipt in accepting cash deposits, it is further stated that ''any person who is required to make the deposits under the provisions of Madhya Pradesh Panchayats (Elections Petition Corrupt Practices and Disqualification for Membership) Rules 1995 is required to deposits the same with the SDO and not with the Tahsildar as has been the case in the present matter in as much as vide receipt dated 24/2/2010 Tahsildar Raipur Karchuliyan had issued a receipt for Rs. 500/-".

In view of provisions of Rule 7 and 8 of the Rules 1995, the decisions relied upon by the petitioner and the Affidavit filed by the Collector Rewa, there cannot be a cavil regarding the mandate contained in Rule 7 that at the time of presentation from of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. 500/- as security.

Thus in case of non deposit of security amount alongwith election petition with specified officer, the election petition would be liable to be dismissed u/R 8 of Rules 1995.

But in a case as the present one, where the deposit is made before filing the election petition with the authority as per the arrangement made by the specified officer, whether in such circumstances can it be said that there is a non-compliance of Rule 7 of Rules 1995

What is mandatory under Rule 7 of Rules 1995 is the deposit of security at the time of presentation of election petition and not the mode in which it is deposited. Collector in his affidavit seems to have mixed up two aspect in the affidavit filed by him.

In the case at hand, there is no dispute that at the time of presentation of election petition on 24/2/2010 the same was accompanied with a receipt MPTC-6 dated 24/2/2010, though issued by Tehsildar, Tehsil Raipur Karchulian, but as certified by the specified officer vide his letter dated 12/1/2011 which was in pursuance to the query raised under Right to Information Act 2005 (Annexure R/4), the said mode was evolved by the Sub-Divisional Officer, may be for the reasons, as spelt out in the return that there is no regular establishment/court of Sub-divisional Officer, but of Tehsildar. Therefore, mode of deposit being not mandatory, the election petition is rightly been held to be filed as per rule. In this context reference can be had of decision of the Supreme Court which is in respect of Section 117 of the Representation of people Act 1951 also supports the view of substantial compliance of Rule 7 of Rules 1995.

In M. Karunanidhi Vs. Dr. H.V. Hande and Others, it is held:

The submissions advanced by learned counsel for the appellant cannot be accepted as they proceed on the assumption that no distinction can be drawn between the requirement as to the making of a deposit in the High Court under sub-sec. (1) of seel 17 and the manner of making such deposit. There was considerable emphasis laid by learned counsel that sub-sec (1) of Sec. 117 cannot be dissected in to 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 Sec (1) of S. 117 is in two parts. The first part of sub section (1) of Sec. 117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court sum of Rs. 2000/- as security for the costs of the petitioner, 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 noncompliance of which must entail dismissal in limine of the election petition under sub sect (1) of Sec 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory. As Maxwell on the interpretation of Statues, 12 Edn at p.314 puts it: "An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." The rule of construction is well settled and we need not burden the judgment with many citations.

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 detennining factor and that must ultimately depend on the context.

In M.Y. Ghorpade Vs. Shivaji Rao M. Poal and Others, it was held: 9.......One of the question that arose was whether the expression ''in favour of the Election Commission'', contained in Section 117, as it stood then, were mandatory in character or not, and this Court held that the first part of Section 117 though mandatory, but not the later part. It is not necessary to multiply authorities on the point, but suffice it to say, that the sum of Rs. 2,000/- must be deposited while filing an Election Petition and that is undoubtedly mandatory, but through whom the amount will be deposited etc. cannot be held to be mandatory. That being the position, and in the case in hand the evidence of the Election Petitioner as well as the evidence of Respondent No. 5 unequivocally pointing out that it is the Election Petitioner who deposited the amount of Rs. 2,000/-, we see no infirmity with the conclusion of the High Court that there has been compliance of Section 117 of the Act and consequently the Election Petition has been rightly held to be maintainable and could not have been dismissed u/s 86 on the ground of non-compliance of Section 117 of the Act...........

In view whereof there being substantial compliance of the provision of Rule 7 of Rules 1995, there is no substance in the challenge put forth. Petition fails and is dismissed. No costs.