Naushad Ali vs Mubarak Ali @ Bhura

With the consent of both the parties, the matter is heard finally.

The instant Civil Revision petition is filed under the provisions of Section 26(2) of M.P. Municipalities Act, 1961 (hereinafter referred to as ‘the

Act’) challenging the order dated 05.04.2018 passed by the 1st Additional District Judge to the Court of 1st Additional District Judge, Satna

(M.P.) in Election Revision No.1/2015 (Mubarak Ali @ Bhura Vs. Nausad Ali & Ors) whereby the learned Election Tribunal has allowed the Election

Petition filed by the respondent no.1 and set-aside the election of the petitioner on the psot of Councillor of Ward No. 13 (Badi Chiphati) Nagar

Parishad Uchehra, District Satna and as a consequence thereof the respondent no.1 has been declared elected as Councillor of Ward No. 13 (Badi

Chiphati) Nagar Parishad Uchehra, District Satna.

An objection has been raised by the learned counsel for the respondent that the present revision petition has been filed without compliance of the

mandatory provision of Rule 19(2) of M.P. Municipalities (Election Petition) Rules 1962 (For short ‘the Rules, 1962’) as no security amount has

been deposited alongwith memo of revision petition and therefore, the petition is not maintainable.

The undisputed facts are that the order impugned was passed in election reference/petition on 05.04.2018. The revision petition was filed on 23rd

April, 2018 and alongwith the said revision petition, the security amount of Rs.250/- was not deposited. The security amount has been deposited on

11.05.2018. It is relevant to mention here that the period of limitation for filing the revision petition is 30 days from the date of order passed in the

Election Petition. Thus, in the present case the preliminary objection regarding maintainability of the petition due to non-compliance of provisions

envisiged in Rule 19(2) of the Rules, 1962 is being considered. It is contended by learned counsel for the respondents that as per the requirement of

Rule 19(2) the petitioner has not deposited a sum of Rs.250/- as security towards cost of revision with the High Court “at the time of

presentationâ€​ of the petition. However, as per the consequence specified therein, the election petition ought to be dismissed in limine.

The facts stated in nutshell are that the petitioner and the respondents no. 1 to 4 had contested the election in the year 2014 for the post of

Councillor of Ward No. 13 (Badi Chiphati) Nagar Parishad Uchehra, District Satna. The present petitioner was declared as an elected candidate by

one vote for the post of Councillor. Respondent no.1, therefore, filed the election petition under Section 20 of the M.P. Municipalities Act, 1961 Read

with the ‘Rules 1962’ for setting aside the election of the petitioner as a Councillor of Ward No. 13 (Badi Chiphati) Nagar Parishad Uchehra,

District Satna.

Learned trial Court has framed the issues and thereafter recording the evidence and passed the impugned order, whereby the election petition filed

by respondent no.1 was allowed and the election of the petitioner on the post Councillor of Ward No. 13 (Badi Chiphati) Nagar Parishad Uchehra,

District Satna was set-aside and as a consequence the respondent no.1 was declared elected as Councillor of Ward No. 13 (Badi Chiphati) Nagar

Parishad Rchehra, District Satna. Being aggrieved by the aforesaid order of the learned Tribunal, the present revision petition is filed.

Learned counsel for the petitioner submitted that there is substantial compliance of the provisions of the Act and Rules framed thereunder as the

petitioner had deposited the security amount on 11.05.2018. Learned counsel for the petitioner placed reliance on the judgment passed by the Apex

Court in the case of M. Karunanidhi Vs. H.V. Handa, AIR 1983 SC 558.

Learned counsel for respondents submitted that the present revision petition is not maintainable in view of the provisions envisaged in Rule 19(2) of

the ‘Rules 1962’ as the petitioner has not deposited the security amount of Rs.250/- alongwith the present revision petition. He further relied on

the judgments passed in the case of Aslam Beg Mirdha Vs. Babulal & Ors. reported in 1997(2) JLJ 154, Radhe Shyam Tripathi Vs. Kailash Narain

Gupta reported in 1998(1) M.P. Weekly Notes,45 and also in the judgment passed in the case of Deepak Kumar Soni Vs. Ashok Kumar & Ors.

Reported in 2015(III) MPJR 213.

Having heard learned counsel for the parties, to appreciate the rival contentions raised at bar, it is apposite to refer the provisions of Rule 19 of

Rules, 1962 which is reproduced hereunder:

“19. Revision. - (1) No petition by way of revision shall lie against any interlocutory order passed by the Judge.

(2) At the time of presentation of the petition for revision under sub-section (2) of Section 26 against the decision of the Judge, the petitioner shall

deposit with the High Court a sum of Rs. 250 as security for the costs of the revision. If the provisions of this rule are not complied with the High

Court shall dismiss the petition.â€​

The Rules of 1962 has been framed in exercise of the powers conferred by Sub-section (1) and Clause (i) of Sub-Section (2) of Section 355 Read

with Section 23 of the M.P. Municipalities Act, 1961 and in super-session of all the Rules previously made therein on the subject. It is not in dispute

that the rules are statutory in nature.

The remedy of revision against the order passed by the Election Tribunal is provided under Section 26 of the Act, 1961 and the same being useful

for the present petition which is also reproduced hereunder:

“26. Finality of decision. - (1) No appeal shall lie against the decision of the Judge on the petition.

(2) Any person aggrieved by the decision of the Judge 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 Judge has exercised jurisdiction not vested in him by law or has failed to exercise a jurisdiction vested in him by law, but subject to such

orders as the High Court may pass thereon, such decision shall be final.â€​

In the case of Aslam Beg Mirdha Vs. Babulal and others 1997(2) JLJ 154 a Co-ordinate Bench of this Court has held that the Rule 19(2) is

mandatory and nondeposit of the security amount alongwith memo of revision is fatal. It is further held that the High Court does not have any

discretion to condone the said lach.

In the case of Deepak Kumar Soni Vs. Ashok Kumar & Ors. 2015(III) MPJR, 2013 this Court has held that the word ‘at the time of

presentation’ under Sub-Rule 2 or Rule 19 has been interpreted. In paras 10 & 11 of the order this Court has observed as under:

“10. In addition to the aforesaid, as per the Major law Lexicon by P. Ramanatha Aiyar, 4th Edition 2010 590 the connotation “at the time of

presenting of application†has been dealt with in the context of Section 17 of the Provincial Small Cause Curt Act, 1887. Referring the judgment of

the Allahabad High Court in the case of Har Kumar Vidyarthi Vs. Sudha Devi AIR 2006 NOC 792 (ALL) it is held that the expression “at the

time of presenting of application†occurring in Section 17 of the Act means time when application is presented to the proper officer of the Court.

However, in the said context, if the language of Rule 19(2) is looked into, then it is apparent that the time of presentation of the petition for revision the

sum of Rs.20/- as security for the cost of revision must be deposited with the High Court and as per the latewr part of the said Rule if the provisions

of this rule are not complied with then the election petition shall be dismissed. Thus legislature using the word “shall†in first part as well as in later

part expressed the concern in the context of depositing the security at the time of presentation otherwise the dismissal is a consequence. Using

“shall†makes the compliance of Rule 19(2) strictio sensu at the time of presentation of the election petition, the deviation from such non-

compliance lead to dismissal of the petition. In the said context, it is to be held that Rule 19 (2) either in first part or later part is mandatory. In view of

the discussion made hereinabove, it is apparent that at the time of presentation of the petition for revision if the cost was not deposited, however, the

defect was pointed out by the Section Officer and to rectify the said defect, the cost though deposited on the same day but subsequently which would

not lead to different consequence to maintain the petition for the Rule 19(2) as referred in the statute . In such circumstances, the arguments as

advanced by learned Senior Counsel Shri Shroti relying upon the judgment of M. Karunanidhi (Supra) would not be applicable in this case. It is not a

case where the whole transaction or series of circumstances requires to comply the provisions of Rule 19(2) of the Election Petition Rules. In-fact, it

is to be interpreted in the context that when the election petition is presented, the cost shall be deposited by way of security to the High Court.

However, the word “at the time of presentation of the petition†has been used therein to deposit cost on presentation meaning thereby “eo

instantiâ€​.

In other words we can say that as and when the decision passed by the judge has been challenged by filing the revision before the High Court under

Section 26(2) of the Act then at the time of presentation, the security of the cost must be deposited and after pointing out of the defect if such deposit

is made in the later part of the day, it would not come within the connotation “at the time of presentation†and it would lead to consequence of

dismissal as specified in the later part of sub-rule 2 of Rule 19 of Election Petition Rules.

In view of the foregoing discussion, relying upon the judgment of this Court in the case of Radheshyam (Supra) as well as Aslam Beg Mirdha

(supra) having no discretion with the High Court to condone the lapse of nondepositing the security of cost of revision at the time of presentation of

revision, in my considered opinion objection raised by the nonapplicant no.1 deserves to be upheld and this petition is liable to be dismissed.â€​

In view of the admitted fact that, the securityamount of Rs.250/- was not deposited alongwith the present revision petition, and therefore, the same

is liable to be dismissed.

Thus, in view of the forgoing discussion, relying upon the judgment of this Court rendered in the cases of Deepak Kumar Soni (supra),

Radheshyam (supra) as well as Aslam Beg Mirdha (supra), it is held that for filing of revision petition before the High Court under Section 26(2) of

the Act challenging the order/decision passed in an election petition/reference, at the time of presentation, the security of the cost must be deposited

and after pointing out the defect if such deposit is made in the later part of the delay, it would not come within the connotation “at the time of

presentationâ€​ and it would leave to the consequence of dismissal of the revision petition, as prescribed in Sub-Rule (2) of Rule 19 of Rules 1962.

It is further held that there is no discretion with the High Court to condone the delay of non depositing the security cost of revision, as the same

has to be deposited at the time of presentation of the revision.

Thus, the objection raised by the respondents is upheld and the revision petition deserves to and is hereby dismissed, due to non-compliance of the

mandatory Rules 19(2) of Rules 1962. There shall be no order as to cost.