Lata Mishra (Ms.) vs District Election Officer and Another

Krishn Kumar Lahoti, A.C.J.

This appeal is directed against an order dated 9.1.2013 passed in W.P. No. 159/2013 by the writ Court, by which writ petition preferred by the appellant against an order dated 21.11.2012 Annexure P-11 of the District Judge, Rewa, by which the election petition filed by the petitioner bearing No. 2/2010 was dismissed because of non compliance of section 441(3) of the M.P. Municipal Corporation Act, 1956. The default on the part of petitioner was that the petitioner had not deposited requisite amount alongwith Election petition which was Rs. 250/-, but had deposited Rs. 100/- after the expiry of period of filing of election petition, that is 30 days from the date from which the election was notified in the Gazette.

The learned Election Tribunal had found that the election petition was not maintainable because of non-compliance of sub-clause (2) of sub-section (3) of section 441 of the M.P. Municipal Corporation Act, 1956 (hereinafter referred to as ''Act'' for short).

The learned Single Judge considered the statutory provisions and found that the requisite amount was not deposited alongwith the election petition and an amount of Rs. 100/- was deposited after the expiry of period of limitation, while the requisite amount was Rs. 250/-, which was not deposited by the petitioner and considering the provisions as contained under sub-section (3) of section 441 of the Act, dismissed the writ petition. This order is under challenge in this appeal.

Learned counsel for appellant submitted that the aforesaid objection ought to have been taken by the respondents at the initial stage and that too by filing an application in this regard and without filing such an application, the election Tribunal had erred in allowing such objection. Reliance is placed to a Division Bench judgment of this Court in Vidya Charan Shukla Vs. G.P. Tiwari and Others, . Another judgment which is relied on by the appellant is Ravi Thakur Vs. Shivshankar Patel and Others, , in which the learned Single Judge of this Court held that if the security amount was not deposited along with the petition, but was deposited within the time period as provided for filing of election petition, it was a sufficient compliance of the provision and on this ground the election petition could not have been dismissed.

To appreciate the aforesaid contention, we have perused the record.

Section 441(3) of the Act is relevant, which we reproduce thus:--

Election petitions--

(1) ....

(2) ....

(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.

The aforesaid provision specifically provides that any petition presented under sub-section (2) shall not be admitted unless it is presented within a period of thirty days from the date on which the result of such election was notified in the Gazette and it is accompanied by the Government Treasury receipt showing a deposit of Rs. 250/-. The aforesaid provision is very specific, which is mandatory in nature and casts a duty on the Court not to admit any election petition until and unless it is accompanied by a receipt of Government Treasury and the deposit shall be of Rs. 250/-. Infact it was the duty on the part of the Court to see whether such amount was deposited in the Government Treasury and the receipt was accompanied along with the election petition.

In the aforesaid circumstances, if the objection was not raised by the other side and the matter was proceeded further or the election petitioner was allowed time to deposit the amount, the objection was raised at a subsequent stage, the election Tribunal had taken cognizance of it and considered the legal position and dismissed the election petition, no fault is found. When the duty is cast on the Court and it is mandatory requirement, the Court ought to have looked into this fact at the initial stage or at a subsequent stage. When such mandatory provision was not complied with, then it was well within the jurisdiction of the Tribunal to consider this objection even at a later stage.

In Vidya Charan Shukla (supra) the question was in respect of the consideration of the preliminary objection without filing written statement and the Division Bench while considering this aspect held that the preliminary objection ought to have been filed in the written statement and in that circumstances the aforesaid decision was rendered. The objections were in respect of the non-joinder of necessary party and non-deposit of security amount. But in the present case as stated hereinabove, the Tribunal had considered the mandatory provision as contained u/s 441(3) of the Act and found that the aforesaid deposit was mandatory, in absence of such deposit the election petition itself was not maintainable and dismissed even at a later stage, in which no fault is found. It is settled law that amount of security cannot be reduced or delay in deposit cannot be condoned. See Charan Lal Sahu Vs. Nandkishore Bhatt and Others,

In so far as the judgment rendered in Ravi Thakur (supra) is concerned, in that case, the question was entirely different. The security amount was not deposited alongwith the election petition, but was deposited within the time period as provided for filing of election petition and in that circumstances the learned Single Judge of this Court, considering the legal position, held that the aforesaid deposit can be treated within time and cannot be as fatal to dismiss the election petition.

The factual position in the present case is entirely different. In the present case the amount was not deposited within the time period, as provided under the statute and it was deposited beyond the period of limitation, that too only Rs. 100/- while the requisite amount was Rs. 250/-.

In view of aforesaid discussion, we find that the learned Single Judge has rightly dismissed the writ petition, in which we do not find any fault.

At this stage, it would be proper to mention that the remedy which was available to the petitioner against the dismissal of election petition was u/s 441F of the Act by filing a revision and invoking the jurisdiction of High Court by filing a writ petition under Article 227 of the Constitution of India itself was mis-conceived. Section 441F provides thus:--

441-F. Finality of decisions (1) No appeal shall lie against the decision of the Court on petition.

(2) Any person aggrieved by the decision of the Court on the petition may within thirty days from the date of such decision apply to the High Court for revision on any of the following grounds-

(a) that the decision is contrary to law;

(b) that the Court has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction vested in it by law,

but subject to such orders as the High Court may pass thereon, such decision shall be final.

The aforesaid provision specifically provides that any person aggrieved by the decision of the Court on the petition may within a period of thirty days of such decision may apply to the High Court by filing revision. The aforesaid provision specifically provides filing of revision against the decision of election Tribunal. In view of aforesaid, petitioner ought to have filed revision against such an order and filing of such petition under Article 226 of the Constitution of India was misconceived. In view of aforesaid, no fault is found in the order passed by the learned Single Judge. Accordingly, this appeal is dismissed, with no order as to costs.