Mustfa Luhar vs Ganesh Pareek And Ors

Vinit Kumar Mathur, J

The present appeal is filed against the order passed by the learned Single Judge on 18.07.2018 in S.B. Civil Writ Petition No.5718/2016.

The brief facts necessary to be noted are that an election petition was preferred by the petitioner on 23.02.2015 as the election results of the Panchayat elections were declared on 24.01.2015.

The point in issue is that the election petition, which was filed under the Rajasthan Panchayati Raj (Election) Rules, 1994 on the 30th day as mandated by the Rules, was sought to be dismissed on an application preferred under Order 7 Rule 11 of the CPC.

The respondent preferred an application under Order 7 Rule 11 of the CPC read with Rule 151 praying for dismissal of the election petition on account of the fact that the election petition was suffering from the defect of non-tendering of the security amount of Rs.500/- as mandated by Rule 81 of the Panchayati Raj (Election) Rules, 1994. This application preferred by the respondent was rejected by the learned Election Tribunal. Aggrieved of the same, the petitioner preferred a writ petition before this Court.

The learned Single Judge noticing that Rule 81 mandates that an election petition is required to be presented under the Rules with a deposit of sum of Rs.500/- (by way of security for the costs of the opposite party), took note of the fact that the cost of Rs.500/- was not deposited with the election petition when it was presented. It was also observed that since within the mandatory period of 30 days, the memo of election petition was not accompanied by a security amount of Rs.500/-, the petition itself was incompetent and the same was not deemed to have been presented within a period of 30 days. The learned Single Judge relying upon a judgment of Supreme Court in M.Karunanidhi vs. H.V. Handa & Ors. [AIR 1983 SC 558] held that if the amount stipulated in Rule 81 is not deposited and the factum of deposition is not accompanied with the memo of election petition then the same is deemed to have been presented after the stipulated period of time as prescribed by law and therefore, the learned Single Judge allowed the writ petition holding that the learned Election Tribunal was not right in rejecting the application filed under Order 7 Rule 11 of the CPC.

In appeal, learned counsel for the appellant has vehemently argued and submits that the presentation of the election petition is made within the time prescribed in conformity with the provisions of Section 80 and does not mandate that the amount prescribed in Rule 81 is to be deposited within 30 days. He further submits that mere presentation of the petition within a stipulated time of 30 days is sufficient for maintaining the election petition before the learned Election Tribunal. He submits that there is no embargo in Rule 80 of the Rules of 1994 where it is prescribed that Rs.500/- required to be deposited for maintaining the election petition. He also relies upon Section 43 of the Rajasthan Panchyati Raj Act, 1994.

We have considered the submission made at the Bar and we are unable to accept the proposition canvassed before us simply for the reason that Rule 81 categorically prescribes that the petition will be deemed to be competent only in the circumstances the petitioner deposits a sum of Rs.500/- along with the petition by way of security or the cost of the opposite party. Rule 81 of the Rules is as under:

"81. Who may present election petition.- (1) A petition under rule 80 may be presented by any candidate at such election.

Explanation.-The petition shall be deemed to have been duly presented, if it is delivered by the person making the petition or by person authorised in writing in this behalf by the person making the petition.

(2) No petition shall be deemed to have been presented under these rules unless the petitioner deposits a sum of Rs. 500/- alongwith the petition by way of security for the costs of the opposite party.

(3) The petitioner shall also send a copy of the petition under a certificate of posting to the District Election Officer (Panchayats) concerned."

A plain reading of Rule 81 shows that any election petition presented within a stipulated period of 30 days is mandatorily required to accompany the fact of deposition of a sum of Rs.500/-; failing which the petition will not be entertained and will not be considered to be a competent petition. Since the fact noticed by us that the amount of Rs.500/- was not actually deposited before the stipulated period of 30 days the election petition was not competent to be taken further by the Election Tribunal.

In these circumstances, we find no infirmity with the order passed by the learned Single Judge and therefore, the present appeal is bereft of merits and the same is accordingly dismissed.