Deepak Sharma Alias Bunty vs Dinesh Dewangan and Others

N.K. Agarwal, J.—By this order, preliminary objection taken by non-applicant No. 1 is being disposed of.

The instant revision is directed against the order dated 01-09-2007 passed by District Judge, Durg in M.J.C. (Election Petition) No. 15/2005 whereby and whereunder, the election petition has been dismissed as time barred.

The brief facts necessary for deciding the maintainability of revision are that the applicant preferred the instant revision on 22-07-2008 along with an application for condonation of delay u/s 5 Read with Section 14 of the Limitation Act. However, on 27-08-2008, permission was sought to deposit the amount of Rs. 250/- as security, which was granted by this Court and thereafter, the said amount was deposited on 04-09-2008.

Learned Counsel for non-applicant No. 1 preferred a preliminary objection that under Rule 19(2) of the Chhattisgarh Municipal Corporation Act (Election Petition) Rules, 1963 (for short "Rules of 1963"), the applicant is required to deposit with the High Court a sum of Rs. 250/- as security for the cost of revision along with the revision and the Rule being mandatory in nature, its non-compliance is fatal to the revision and as the said amount has not been deposited along with the revision, therefore, the revision is liable to be dismissed on this count.

Shri Sanjay K. Agrawal, learned Counsel for non-applicant No. 1 placing reliance upon the judgment of High Court of M.P. in cases of Radheshyam Patidar Vs. Jagdish Patidar, ; Babu Lal v. State of M.P. 1986 MPLJ 128; and judgment of this Court in case of Santoshi v. Addl. Collector, Korba 2008(4) MPHT 20; submitted that the compliance of Rule 19(2) of Rules, 1963 is mandatory; and, therefore, revision is liable to be dismissed. He would further submit that the Division Bench of the M.P. High Court in case of Bharti Botham v. State of M.P. and Anr. (2006) MPLJ 487; has held that that Rule 19(2) of Rules, 1963 prescribing deposit of Rs. 250/- for cost of revision is intra-vires.

Per contra, Shri H.B. Agrawal, learned Senior Advocate appearing for the applicant would submit that there is nothing in the main Act requiring the applicant to deposit such amount while filing the revision and, therefore, Rule 19(2) of Rules, 1963 is not inconsonance with the Act and can be ignored. He would further submit that the amount of Rs. 250/- has been deposited by the applicant with permission of this Court, and, therefore, default if any has been cured and the preliminary objection raised by non-applicant No. 1 is liable to be dismissed.

The following question arises for decision making in the case:

(I) Whether under Rule 19(2) of Rules, 1963, the requirement of deposit of Rs. 250/- along with revision application is mandatory in nature and its non-compliance is fatal.

(II) Whether the Rule 19(2) of Rules, 1963 is not in conformity with the provisions contained in Section 441F of the Chhattisgarh Municipal Corporation Act, 1956.

(III) Whether the applicant can be permitted to deposit the said security deposit on a date subsequent to the filing of revision petition?

To appreciate the revatised submissions advanced by the counsel for the parties, it is appropriate to refer certain provisions of Act and Rules.

Section 441F(2) provides for remedy of revision against the decision of the Court to be filed within 30 days from the date of such decision before the High Court. In Exercise of powers conferred by Sub-section (1) of Section 433 read with Section 441(c) of the Chhattisgarh Municipal Corporation Act, 1956 (for short ''the Act''), the State Government framed the rules known as Chhattisgarh Municipal Corporation (Election Petition) Rules, 1963. Rule 19(2) of the Rules of 1963 reads as under:

Rule 19(1)....

19(2) - At the time of presentation of petition for revision under Sub-section (2) of Section 441F against the decision of the Court, the Petitioner shall deposit with the High Court a sum of Rs. 250/- as security for the cost of the revision. If the provisions of the Rule are not complied with, the High Court shall dismiss the petition.

Section 441(3) reads thus:

(3) No petition presented under Sub-section (2) shall be admitted unless:

(i) it is presented within thirty days from the date on which the result of such election or [nomination] was notified in the gazette; and

(ii) it is accompanied by a Government Treasury receipt showing a deposit of two hundred and fifty rupees.

Section 117 of the Representation of the People Act, 1951 reads:

Security for Costs.-(i) At the time of presenting an election petition; the Petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of two thousand rupees as security for the costs of the petition.

(2) During course of the trial of an election petition, the High Court may, at any time, call upon the Petitioner to give such further security for costs as it may direct.

Rule 7 and 8 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, (for short "Rules 1995") reads as under:

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.

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

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

A bare reading of Rule 19(2) of the Rules, 1963 would reveal that the rule is para materia of Section 117(i) of the Act, 1951 and Rules 7 and 8 of Rules, 1995.

Hon''ble the Supreme Court in case of K. Kamaraja Nadar Vs. Kunju Thevar and Others, ; has observed that an objection as to non-compliance with the provisions of Section 117 of Representation of Peoples'' Act, 1951 should be entertained and decided as a preliminary issue.

Hon''ble the Supreme Court in case of Aeltemesh Rein Vs. Chandulal Chandrakar and Others, ; has observed that election petition is liable to be dismissed for non-compliance of Section 117 of Representation of Peoples'' Act, 1951 by virtue of Section 86(1) of the Act.

Hon''ble the Supreme Court in case of Charanlal v. Nand Kishore AIR 1973 SC 1264; has observed that non-deposit of security along with the petition as required by-Section 117 of Representation of Peoples'' Act, the High Court has no option but to reject the petition.

In case of M. Karunanidhi Vs. Dr. H.V. Hande and Others, ; Hon''ble the Supreme Court has observed in para 19 as under:

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-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....

The Division Bench of Madhya Pradesh High Court in case of Babulal Kaluram Kirar and Anr. v. State of M.P. and Ors., while dealing with the provisions of Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1962 (for short "the Rules, 1962), rule 7 and 8 has observed that in paragraph 10.01 as under:

10.01. On a plain reading of Rule 7 the requirement of making the deposit of security amount is along with the petition. The expression: "At the time of presentation of an election petition", in Rule 7 is very significant. Thus, the requirement of deposit of security amount along with the petition is an essential link in the chain of presentation of the petition. Therefore, if this link is missing, there is no valid presentation of the petition. The Tribunal has ajurisdiction only when there is a validly presented petition before it.

Hon''ble the Supreme Court in case of Rajsekhar Gogoi Vs. State of Assam and Others, has observed that whenever a statute prescribes that a particular Act is to be done in a particular manner and also lays down that failure to comply with said requirement leads to a specific consequences, it would be difficult to hold that the requirement is not mandatory, and the specified consequence should not follow. The single bench of High Court of M.P. dealing with similar provision contained in Madhya Pradesh Municipalities (Election Petition) Rules, 1962; Rule 19 of M.P. Municipalities Act, Section 26(2) in case of Radheshyam Nandialji Patidar v. Jagdish Gangaram Patidar and Ors.; has held that Rule is mandatory, it is mandatory for such Petitioner to deposit security amount of Rs. 250/- at the time of presentation of revision petition before this Court and if he fails to do so, the only result would be dismissal of his petition. A Single Bench of this Court in case of Smt. Santoshi v. Additional Collector, Korba and Ors., while dealing with the Chhattisgarh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules. 1995, Rules 7 and 8 held that non-deposit of security amount along with the election petition is fatal.

Therefore, relying upon the principles of law laid down in the above referred judgments, I am of the opinion that provisions contained in Rule 19(2) of the Rules, 1963 are mandatory in nature and its non-compliance is fatal to the revision filed by the applicant.

While dealing with the election petition the law in this regard has to be construed strictly. The Supreme Court in case of Sadashiv H. Patil Vs. Vithal D. Teke and Others, ; in para 14 has observed as under:

A finding as to disqualification under the Act has the effect of unseating a person from an elected office held by him pursuant to his victory at the polls in accordance with the democratic procedure of constituting a local-authority. The consequences behalf not only him as an individual but also the constituency represented by him which would cease to be represented on account of his having been disqualified. Looking at the penal consequences flowing from an elected councilor being subjected to disqualification and its repercussion on the functioning of the local body as also the city or township governed by the local body the provisions have to be construed strictly. A rigorous Compliance with the provisions of the Act and the Rules must be shown to have taken place while dealing with a reference u/s 7 of the Act.

A bare perusal of the provision contained in Section 441(iii) of the Chhattisgarh Municipal Corporation Act, 1956 and Rule 19(2) of the Rules, 1963, framed in exercise of powers conferred by the Chhattisgarh Municipal Corporation Act. There is nothing which can suggest that the rules framed are not inconformity with the provisions of the Act. There was an occasion with the High Court of M.P. to deal with the validity of Rule 19(2) of the Municipal Corporation (Election Petition) Rules, 1963. The Division Bench of High Court of Madhya Pradesh in case of Bharti Batham v. State of M.R and Anr., has observed in para 21 as under:

Submission of Mr. Sharma is that the Act does not provide for making rules for deposit as security for the costs of revision. It is his submission that the relevant rule does not flow from the enactment and in fact it is a supplant. On a perusal of the Act we do not notice any provision to which the present rule runs counter to. As has been indicated earlier because of enumeration of certain particulars there cannot be restriction because of certain facets have been particularized. We do not perceive that the said provision has been utilized to extend the scope of the general operation of the Act. It is not such a provision by which what has been excluded in the Act has been included in the Rules. The Statute provides for filing of a revision u/s 441F, Rule 19(2) only provides for deposit of security for the costs of the revision. Such a stipulation does not run contrary to the provisions of the statute. There is a purpose behind the same. It has nexus with the statute. It is, in a way, necessary to ensure not to have frivolous revisions. It cannot be said that it is unnecessary for giving effect to the purposes of the Act. It is extremely difficult to opine that the said condition is alien to the enactment, indubitably such a condition, a requisite postulate, can be postulated within the ambit and sweep of the power that has been conferred on the authority u/s 433 of the Act. Ergo, we have no hesitation in holding that Rule 19(2) of the Rules is intra vires.

I am in respectful agreement with the above referred dictum of the High Court of Madhya Pradesh and therefore, it is not correct to say that the provision of Rule 19(2) of Rules, 1963 not being inconformity with the provisions contained in the Chhattisgarh Municipal Corporation Act are liable to be ignored.

Third question arises for consideration is that whether the applicant can be permitted to deposit the said security deposit on a date subsequent to the filing of the revision petition?

It is crystal clear that the provisions contained in Rule 19(2) of Rules, 1963 requires the Petitioner to deposit the amount of Rs. 250/- as security deposit at the time of presentation of the petition and not subsequent thereto. As held earlier, the provisions are mandatory in nature and its non-compliance is fatal, therefore, if the revision has been filed without depositing the amount of security, then it is fatal to the revision and the defect cannot be cured by depositing the same on a date subsequent to the filing of the revision. Hon''ble the Supreme Court in the case of Chandrakant Uttam Chodankar Vs. Shri Dayanand Rayu Mandrakar and Others, ; has observed in para 68 as under:

In Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad, , the Constitution Bench accepted the submission of the learned Counsel appearing for the Appellant therein to the effect that the election petition was not to be equated to an election at law or in equity, but as the rights are purely creature of the statute, if the statute renders any particular requirement mandatory, the Courts possess and can exercise no dispensing power of waive non-compliance. The Constitution Bench following Murarka Radhe Shyam case held: (AIR pp. 1033-34, para 26).

We do not however consider that there is really need for so much refinement when one has to look at whether there is a substantial compliance with the requirement of this provision. If the signatures now found on the copies were intended to authenticate the document to which it is appended viz. the copy, it would only mean that the copy did not reproduce the signature in the original. There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with Section 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice.

Applying the ratio of above referred cases in the facts of the present case indisputably, the instant revision petition has been filed along with an application for condonation of delay. Meaning thereby even beyond the period of limitation to file revision prescribed under the law and that too without depositing the requisite amount of security deposit along with the revision, which cannot be cured by depositing the said amount subsequently.

Matter can be looked from other angle. There may be a case in which although deposit was not made along with revision petition but made subsequently but before expiration of period of limitation, then it may have been said that the petition does not suffer from fatal defect but here in the instant case, the revision itself has been filed along with an application for condonation of delay without depositing the requisite amount and, therefore, non-compliance is fatal.

The preliminary objection preferred by the non-applicant No. 1 is allowed and the revision is dismissed accordingly.

No order as to costs.