Pazhanikutty Moothan vs Vasudevan and Another

Vaidialingam, J.—In this writ petition, the question that arises for consideration is as to whether the order passed by the learned District Judge of Palghat, dismissing Election Petition Ho. 47/1962 filed by the petitioner, as being not in compliance with the provisions of rule 5 (1) of the Kerala Municipalities (Decision of Election Disputes) Rules, 1961, is correct or not. The petitioner and the 1st respondent, in these proceedings contested for the election to the Palghat Municipality in the Municipal elections held on 26--9--1962 from Ward No. 22. The 1st respondent was declared elected on 28--9--1962 with a majority of 11 votes. The petitioner filed Election Petition No. 47/1962 under sections 65 of the Kerala Municipalities Act, 1960, Act XIV 1961-- hereinafter to be referred to as the Act--challenging the election of the 1st respondent, and also requesting that the election be set aside. It will be seen that the Election Petition itself was filed by the petitioner on 4--10- --1962, and there can be no controversy that it is perfectly within the period prescribed by Section 65 (2) of the Act, read with rule 3 of the Kerala Municipalities (Decision of Election Disputes) Rules 1961-hereinafter to be referred to as the Rules.

According to the petitioner, as required by rule 5 (1) of the Rules, he made an attempt on 4--10--1962 to deposit a sum of Rs. 50/- in cash in the Palghat Treasury, but the Treasury would not receive the amount. The Chalan in that respect has been produced in these proceedings as Ext. P.2. It is the further case of the petitioner that the Election Petition itself was presented by him to the Sheristadar of the Palghat District Court on 4--10--1962, and that the sum of Rs. 50/- as required by rule 5 (1) of the Rules, was also tendered to the Sheristadar. But, according to the petitioner, the Sheristadar would not receive the amount, and therefore the petitioner had to file an application or a memo, so to say, requesting for the issue of a chalan to enable him to deposit the sum of Rs. 50/- as required by rule 5 (1) of the Rules, in the Treasury concerned. That such a memo was filed by the petitioner on 4_10--1962, is clear from the records produced in these proceedings.

It so happened that an order was passed by the learned District Judge, only on 11--10--1962, directing the deposit of the amount by 12--10--1962. And there is also no controversy that the petitioner, as soon as the said order was passed on 11--10--1962, deposited the amount on the same day, in the Palghat Treasury and filed the chalan, along with the memo to receive the same, on 12--10--1962.

That the Election Petition filed by the petitioner, was within the period provided by Section 65 (2) of the Act, I have already indicated, is beyond controversy. I have also indicated that there is no controversy that the amount of Rs. 50/- under rule 5 (1) of the Rules, has also been deposited by the petitioner within the period of 15 days provided for u/s 65 (2) of the Act, read with rule 3 of the Rules. It is also seen that after the deposit of the amount by the petitioner, the learned District Judge issued notices on 12--10--1962 regarding the Election Petition, to the 1st respondent as well as the Municipal Chairman and the Election authority, and also directed the affixture of copy of the notice on the court notice board and the Municipal office. The authorities, to whom notices were issued, filed written statements. The 1st respondent in these proceedings also filed his written statement. But, so far as I could see, none of the authorities, to whom notice was issued, seem to have taken any objection on the score that inasmuch as the provisions of pale, 5 (1) of the Rules had not been complied with the Election Petition should be dismissed in limine. But whatever it is, it is seen that this question was taken up by the learned District Judge, who after hearing the parties, has now passed the order Ext. P.3 on 17--12--1962, dismissing the Election Petition in limine on the ground that the mandatory provisions contained in rule 5 (1) of the Rules have not been complied with and therefore he is left with no other alternative but to dismiss the petition as provided under rule 5 (2) of the rules. It is this order of the learned District Judge, dismissing the Election Petition in limine, without going into the merits, that is challenged by Mr. T.P. Kelu Nambiar, learned counsel for the petitioner in this writ petition;

Before I advert to the contentions that have been raised by Mr. Kelu Nambiar, learned counsel for the petitioner, as well as by Mr. V. Balakrishna Eradi, learned counsel appearing for the contesting 1st respondent, it is necessary to consider the reasons given by the learned District Judge for dismissing the Election Petition in limine. The learned District Judge adverts to the fact that the question that arises for consideration before him will be as to whether the deposit of the amount by the petitioner on 11--10--1962, on the basis of the order passed, by the court on the same day, can be considered to be a deposit, as contemplated under rule 5 (1) of the rules. The learned District Judge then refers to the provisions of Rules 3, 6, 8 (6) and 11 (3) of the rules. He then adverts to the contention of the petitioner that he tendered the amount of Rs. 50/- on 4--10--1962 along with the Election Petition, to the Sheristadar of his Court. In this connection, the learned District Judge is of the view that as he is functioning as persona designate under the Kerala Municipalities Act, read with the rules, and not as District Court, the proper procedure that should have been adopted by the petitioner, even in respect of presenting the Election Petition itself, was not to present it to the Sheristadar, but really to himself. But nevertheless the learned District Judge was prepared to proceed on the basis that on that ground alone the Election Petition need not be rejected. He considers also the plea of the petitioner that, along with the Election Petition he had tendered in cash a sum of Rs, 50/- to the Sheristadar under rule 5(1) of the rules. The learned District Judge also assumes, for the purpose of deciding the Election Petition, that the plea of the petitioner is true. But he is of the view that even assuming that the petitioner had tendered the amount to the Sheristadar of the District Court, that cannot be considered to be a proper deposit under rule 5 (1), because the petitioner had not at any time approached the District Judge himself, who is the competent authority for receiving the said amount. On the other hand, the learned District Judge proceeds to state that if the Election Petition itself had been presented to himself, he would have suggested the deposit of the amount and the amount would very well have been received by him as per the rules.

The learned District Judge then considers the scope and effect of rule 5 (1) of the rules, as well as sub-rules (2) and (3) of rule 5. After referring to some of the decisions that have been cited before him, the learned District Judge ultimately comes to the conclusion that inasmuch as there was no deposit of the amount at the time of the presentation of the Election Petition, as is mandatory under rule 5 (1) of the rules, the application has to be rejected under rule 5 (2) of the rules. And it is really on this basis that the learned District Judge has ultimately held that inasmuch as there has been no proper presentation of the petition in accordance with the rules, the petition has to be summarily dismissed under rule 5 (2). Ultimately the learned District Judge, by his order Ext. P.3, dismissed the Election Petition as not maintainable, and also directed the 1st respondent in this writ petition to take his costs from the amount deposited by the petitioner.

Mr. T.P. Kelu Mambiar, learned counsel for the petitioner, has raised two contentions, namely (1) that the provisions contained in rule 5 (1) of the rules cannot be considered to be mandatory and that they are only directory; (2) the second contention that is raised by the learned counsel for the petitioner is that even if the provisions in the said rule are to be considered as mandatory, there has been sufficient compliance by the petitioner, inasmuch as the deposit has been made within 15 days of the declaration of the result of the election. No doubt, the learned counsel has elaborated these contentions; and I will deal with them a little later. Therefore according to the learned counsel for the petitioner, the view of the learned District Judge that there has been a non-compliance with the provisions of rule 5(1) of the rules, is erroneous and the order under attack will have to be set aside by this court.

The stand taken by the learned counsel for the petitioner has been controverted by Mr. Balakrishna Eradi, learned counsel appearing for the contesting 1st respondent in these proceedings. According to the learned counsel, the provisions of rule 5 (1) are mandatory, and the powers and jurisdiction of the District Judge, who functions as persona designate, are exclusively to be found in the statute and the rules, which clothe him with the necessary jurisdiction regarding the various matters. The learned counsel also urged that unless the provisions of rule 5 (1) are strictly complied with, there is no option left with the District Judge but to dismiss the election petition, as provided under rule 5 (2). Therefore, according to the learned counsel, when the petitioner has not complied with the provisions of rule 5 (1), the dismissal of the election petition by the District Judge in limine under rule 5 (2) of the rules is perfectly justified in the circumstances of this case. Mr. Balakrishna Eradi also '' urged that neither the fact that the petitioner attempted earlier in the day to deposit the amount in the Treasury and failed, nor the circumstance that he tendered the amount in cash to the Sheristadar of the District Court, will avail to the petitioner, in view of the clear and specific provisions contained in the statute, read with the rules, though all those may establish the bona fides of the petitioner. But, according to the learned counsel, bona fides do not come into the picture at all in the face of the definite provisions to the contrary, contained in the statute and the rules. The learned counsel also urged that the petitioner has not pleaded, nor has he set up a case, that he, at any time tendered or offered to pay the amount to the District Judge, and that the District Judge has not chosen to accept the same, and that is why the petitioner was not in a position to comply with the provisions of rule 5 (1). If that is established, according to the learned counsel, it may be that the general principle that nobody should suffer because of a mistake committed by the court, can very well be invoked by the petitioner. According to the learned counsel, the fact that the learned District Judge passed an order on 11--10--1962, permitting the petitioner to deposit the amount by 12--10--1962, and that the said amount was deposited within the time given by the District Judge, is again of no consequence, because, according to the learned counsel, the learned District Judge has no jurisdiction to extend the time provided for under rule 5 (1) of the rules.

Therefore, the question that arises for consideration will be as to whether the dismissal of the election petition by the learned District Judge, on the ground of non-compliance with the provisions of rule 5 (1), is correct or not.

Before 1 advert to the contentions advanced by the learned counsel, and which have been elaborated by reference to some of the decisions of the Supreme Court bearing on the matter, it is necessary to consider the scheme of the statute and the rules. Section 65 of the Act deals with determination of validity of elections. Sub-section (1) of that Section provides that if the District Judge is satisfied about one or the other of the matters referred to in the sub-clauses contained in the subsection, the said authority may declare the election of such councilor to be invalid, and such declaration shall be final. There are also certain other consequential provisions made in the other sub-clauses of sub-section (I) of Section 65. Subsection (2) of Section 65 gives a right to any person qualified to vote at the election, in which any question mentioned in sub-section (I) is involved, to apply "at any time within fifteen days after the date of the declaration of the result of the elections, to the District Judge for determination of such question". Therefore the application under sub-section (2) of Section 65 is to be made to the District Judge, and the said application is also to be filed at any time within fifteen days after the date of the declaration of the result of the election. In this case, as I have already indicated, the declaration of the result of the election was on 28--9--1962, and the election petition itself was filed on 4--10--1962. Therefore, prima facie, the filing of the application was perfectly within the period referred to in sub-section (2) of Section 65 of the Act.

Sub-section (4) of Section 65 provides that the inquiry to be held by the District Judge under Sub-section (1), is to be "subject to the provisions of this Act and the rules made in this behalf". Therefore, Sub-section (4) of Section 65 clearly lays a duty on the part of the District Judge to adjudicate upon the application that is filed before him, only subject to the provisions of the Act and the rules made in that behalf. The term "District Judge" is also defined in Section 65 (5) of the Act.

Section 344 of the Act empowers the Government to make rules. Under Sub-section (1) of Section 344, the Government is authorised to make rules to carry out all or any of the purposes of the Act not inconsistent therewith. Sub-section (2), again gives power to the Government to frame rules, without prejudice to the generality of the power under sub-section (1), in respect of the various matters referred to in clauses (a) to (q) of Sub-section (2). In particular, the rules, to which I will be making reference immediately, have been admittedly framed under clause (b) of Sub-section (2) of Section 344, That clause authorises the Government to make rules "with reference to all matters not expressly provided for in this Act, relating to the elections of Chairman, Vice-chairman, or councilors including election petitions and deposits to be made by candidate standing for election as councilors and the conditions under which such deposits may be forfeited." A perusal of the above clause (b) in Sub-section (2) of Section 344, clearly shows that the Government have got the power to frame rules regarding election petitions. No doubt, there is also a deposit referred to in the clause extracted above; but that deposit has nothing to do with the deposit which this court is now considering.

The rules themselves have been framed u/s 344(2) (b) of the Act referred to above. The rules are, the Kerala Municipalities (Decision of Election Disputes) Rules, 1961. It is necessary to advert in particular to rules 2, 3, 5 and 6 of the said rules. Rule 2 provides that except as otherwise provided, no election held under the Act, whether of a Councilor, Chairman, or Vice-Chairman, shall be called in question "except by an election petition presented in accordance with these rules to the District Judge.....". Therefore, it will be seen that a petition challenging the election of a Councilor, Chairman, or Vice-Chairman, that has to be filed u/s 65 of the Act, should be by an election petition, and it must be presented in accordance with the rules, to the District Judge. And that rule, in my view, clearly contemplates that the presentation of the election petition itself will have to be to the District Judge as such by a candidate or elector who presents the election petition. 1 am adverting to this aspect, because in the order, which is under attack in these proceedings, the learned District Judge has no doubt proceeded on the basis that the presentation of the election petition by the petitioner to his Sheristadar can be considered to be a valid presentation. But, in my view, in the face of the provisions contained in rule 2 referred to above, that view of the learned District Judge cannot be sustained. The expression occurring in rule 2 to the effect that the election petition must be presented in accordance with the rules to the District Judge, may also have a bearing in understanding the true scope of the expression occurring again in rule 3 (1) of the rules regarding the presentation of the petition itself.

Rule 3 is analogous to what is provided in Section 65(2) of the Act itself, namely that it provides that the petition shall be presented within 15 days of the date of the declaration of the result of the election. I have already indicated that that is the period provided in Section 65(2) of the Act. There is, no doubt, an explanation to sub-rule (1) of rule 3 to the effect that if the court of the District Judge is closed on the last of the 15 days referred to in sub-rule (1) the petition may be presented to the District Judge on the next day afterwards on which such court is open. Here again, it will be seen that even the Explanation emphasises that the petition is to be presented to the District Judge. It is not really necessary to advert to sub-rule (2) of rule 3, nor even to rule 4.

Rule 6 of the rules, again, deals with the jurisdiction of the District Judge to have service of notice regarding the petition effected on the parties concerned as early as possible. It also gives jurisdiction to the District Judge to call upon the petitioner to execute a bond in such amount and with such sureties, as he may require, for the payment of any further costs.

Rule 5 of the rules, regarding the interpretation of which there is considerable controversy in this case, together with the three sub-rules, is as follows:

(1) At the time of presentation of the petition, the petitioner shall deposit with it, as security for the cost of the same, a sum of rupees fifty in cash.

Explanation.--Where the election of more than one returned candidate is called in question, a separate deposit shall be made in respect of each such returned candidate.

(2) If the provisions of sub-rule (1) are not complied with, the District Judge shall dismiss the petition.

(3) Upon compliance with the provisions of sub-rule (I) the District Judge shall proceed to inquire into the petition.

Under sub-rule (1) it will be seen that (a) at the time of the presentation of the petition (b) the petitioner has to deposit with it (c) as security for the costs, a sura of Rs. 50/- in cash. There is also the explanation to sub-rule (1) which provides that if the election of more than-one returned candidate is called in question, a separate deposit is to be made in respect of each such returned candidate. Sub-rule (2) again, provides that if the provisions of sub-rule (1) are not complied with, the District Judge shall dismiss the petition. Sub-rule (3) provides that on compliance with the provisions of sub-rule (1) the District Judge shall proceed to inquire into the petition. This is broadly the scheme of rule 5 of the rules.

I have broadly indicated the scheme of the particular section of the statute, namely Section 65, as well as the relevant rules bearing on the points arising for consideration in these proceedings. I have also indicated that the view of the learned District Judge is that the deposit made by the petitioner, no doubt, in accordance with the directions given by him on 11-10-1962, cannot be considered to be a proper deposit in terms of rule 5 (1) of the rules referred to above.

I have already indicated the two contentions that have been raised by Mr. T.P. Kelu Nambiar, learned counsel for the petitioner. The first of those contentions is that the provisions contained in rule 5(1) of the rules are not mandatory, but are only directory. In support of this contention, the learned counsel has referred me to two decisions of the Supreme Court, namely those reported in K. Kamaraja Nadar Vs. Kunju Thevar and Others, , and in Chandrika Prasad Tripathi Vs. Siv Prasad Chanpuria and Others, , where the Supreme Court had to consider the scope of the provisions contained in Section 117 of the Representation of the People Act, 1951. That Section provided for the petitioner enclosing with the election petition a Government Treasury receipt showing that a deposit of Rs. 1,000/- has been made by him, either in a Government Treasury or in the Reserve Bank of India, in favour of the Secretary to the Election Commission, as security for costs of the petition. From the chalans that the petitioner in those proceedings enclosed along with the election petition--which deposit had been made either in the Government Treasury or the Reserve Bank of India, as referred to in Section 117--it was seen that the deposit itself was not specifically made in favour of the Secretary of the Election Commission, as required by Section 117 of the Representation of the People Act, 1951.

The question that arose before the Supreme Court was as to whether the provisions contained in Section 117 of the Representation of the People Act, 1951, relating to "in favour of the Election Commission" are mandatory or only directory. Having due regard to the purpose of the deposit, and also having due regard to the fact that the petitioner had as a matter of fact deposited the amount in a Government Treasury as required by Section 117, and that he had also enclosed the said chalan along with the petition sent by him, the Supreme Court ultimately came to the conclusion that the particular provisions referred to above in section 117 are not mandatory, but are only directory. Those observations of the Supreme Court have no doubt been very strongly relied upon by the learned counsel for the petitioner before me. In this connection, quite naturally, the learned counsel also referred to the same interpretation placed upon the expression occurring in Section 117 of the Representation of the People Act, 1951, by M.S. Menon J. (as he then was) sitting with Kumara Pillai J. in the decision reported in Sukumaran v Joseph Mundasseri (1958 K.L.J. 346). In that decision the learned Judges also ultimately came to the conclusion that the absence of the expression in the deposit receipt, which was otherwise in accordance with the provisions of Section 117 of the Representation of the People Act, 1951, to the effect that it was in favour of the Secretary of the Election Commission, cannot be considered to be fatal. That view, if I may say so with respect, is quite in accordance with the decision of the Supreme Court referred to above.

But the question is whether these decisions of the Supreme Court are of any assistance to the learned counsel for the petitioner, in view of the clear wording of section 65 (4) of the Act, read with rules 5 (1), 5 (2) and 5 (3) of the rules.

Mr. Balakrishna Eradi, learned counsel appearing for the contesting 1st respondent, on the other hand, has drawn my attention to the observations of the Supreme Court in the decision reported in Jagan Nath Vs. Jaswant Singh and Others, , to the effect that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. The learned counsel also referred me to the further observations contained in the same judgment, to the effect that if an election law lays down a penalty for non-compliance with any of the provisions as indicated in the statute, there will be no jurisdiction in the tribunal to enlarge the period referred to therein. In particular, the learned counsel also referred me to the observations contained in the judgment of the Supreme Court reported in Sri Baru Ram Vs. Prasanni and Others, , to the effect that whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence. The learned counsel also referred me to the observations contained in the latter part of the same judgment that it is settled law that the statutory requirements of election law have to be strictly observed. It will also be seen that in the decision of the Supreme Court referred to above, the Supreme Court has referred to the observations made by it in Jagan Nath Vs. Jaswant Singh and Others, , referred to by me earlier, to the effect that an election contest is not an action at law or a suit in equity, but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. No doubt it is also stated that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with, and any petition seeking such interference must strictly conform to the requirements of the'' law bearing on the matter.

In my view, having due regard to the provisions contained in Section 65 (4) of the Act, which, I have already indicated, clearly show that the jurisdiction of the District Judge to decide the application that is filed before him, is to be subject to the provisions of the Act and the rules made in that behalf, and also having due regard to the provisions of rule 5, the contention of the learned counsel for the contesting 1st respondent that the provisions contained in rule 5 are mandatory, will have to be accepted, however hard the result may be so far as this particular case is concerned. I am adverting to the hardship to the petitioner, because in this case the petitioner had made an attempt to deposit the amount in the Treasury on 4--10--1962, and the plea of the petitioner that he made a further attempt to pay the amount to the Sheristadar of the District Court in cash at the time of the presentation of the election petition on 4--10--1962 has not at any rate ''been rejected by the learned District Judge. There is also the further circumstance, namely that the learned District Judge himself gave time to the petitioner to deposit the amount by his order dated 11--10--62 and, based really upon that order, it was, that the petitioner deposited the amount, which is ultimately within 15 days of the date of the declaration of the result of the election. Notwithstanding all these circumstances, in my view, the position in laws that the deposit made by the petitioner cannot be considered to be in accordance with the mandatory provisions contained in rule 5 (1) of the rules.

I have already indicated, when referring to rule 2, that the election of a councilor, or Chairman, or a Vice Chairman, cannot be called in question except by an election petition presented in accordance with the rules, to the District Judge. Therefore, the election petition, in order to be a valid and proper election petition, must be one presented (a) to the District Judge, and (b) in accordance with the rules''. In this case, I have already indicated that the presentation of the petition by the petitioner to Sheristadar of the District court cannot be considered to be a presentation to the District Judge. Though the learned District Judge has proceeded on the basis that he will assume that such a presentation is valid, that view again is not correct. The second essential requirement is that the election petition that is presented, to the District Judge, must be one in accordance with the rules. And the expression "in accordance with these rules" in rule 2 of the rules, will take in also the requirement mentioned in rule 5(1). Rule 5(1) consists, in my view, of three parts, namely (1) a sum of Rs. 50/- in cash (2) as security for the costs of the petition, and (3) must be deposited at the time of the presentation of the petition. The presentation of the petition referred to in rule 5 (1) must really have relation to the presentation of the petition to the District Judge,-as provided in rule 2 referred to by me earlier. And, therefore, according to sub-rule (1) of rule 5, in my view, it is clear that the rules contemplate that it is at the time of presentation of the election petition and along with such presentation, that the sum of Rs. 50/- in cash is to be deposited by the election petitioner. Under these circumstances, the deposit can be only with the authority who is competent to receive it, namely the District Judge. Therefore, the fact that the petitioner in this case made an attempt to tender the amount of Rs. 50/- to the Sheristadar, is of no avail, in view of the specific provisions contained in rule 5 (1). I have also adverted to the fact that the petitioner has not pleaded that he made any attempt to approach the District Judge and offered to pay the amount to him. If the District Judge had declined to receive the amount, then the position in law would be entirely different. But, as matters stand, there has been no attempt made by the petitioner to deposit the amount with the District Judge at the time of the presentation of the election petition, as is contemplated by rule 5 (1) of the rules.

Sub-rule (2) of rule 5 itself provides the penal consequence for noncompliance with the provisions of sub-rule (1). Sub-rule (2) is to the effect that if the provisions of sub-rule (1) are not complied with, the District Judge shall dismiss the petition. Therefore, the procedure for deposit is indicated in sub-rule (1) of rule 5. The consequence or the action that has to be taken for non-compliance with the provisions of sub-rule (1) are again indicated in sub-rule (2). And, if there has been compliance with the provisions of sub-rule (1), as to what the District Judge is to do, has been indicated in sub-rule (3), namely that the District Judge shall proceed to inquire into the petition. The fact that the District Judge did not raise any objection to the receipt of the petition without the deposit of the amount at a later stage, or the circumstance that he himself gave time to the petitioner on 11--10--1962 for deposit of the amount, will not, in my view, assist the petitioner in requesting this court to accept his contention that there is a deposit in this case as is required under sub-rule (1) of rule 5 of the rules. Rule 5 is a self-sufficient provision, dealing with a deposit and the action to be taken when the deposit is made or not made. Therefore, in my view, having due regard to the scheme of the Act and the provisions contained in sub-rule (2) of rule 5, there is no escape from the conclusion to be arrived at, namely that the provisions of sub-rule (1) of rule 5 are mandatory; and non-compliance with those provisions will entail the penal consequence provided under sub-rule (2). So far as I could see, there is no provision either in the statute or the rules themselves giving any discretion or power to the District Judge to extend the period provided under sub-rule (2) of rule 5. In the face of such provisions, the observations of the Supreme Court in Sri Baru Ram Vs. Prasanni and Others, , in my view, have to be borne in mind. Applying those principles, the position in this case is that the view of the learned District Judge that the election petition has to be rejected in limine for non-compliance with the provisions of sub-rule (1) of rule 5 of the rules, is perfectly justified in the circumstances.

Mr. Balakrishna Eradi, learned counsel for the contesting 1st respondent, referred me to an early decision of the Madras High Court reported in M. Krishnaji Reddiar Vs. Muthuveera Reddiar and Another, , where Krishnan J., on analogous rules found in the rules framed under the Madras Local Boards Act (XIV of 1920), has come to the conclusion that unless the deposit is made at the time of the presentation of the election petition, it shall be dismissed, and the deposit made after the presentation of the election petition is not sufficient compliance with the provisions of the Act and rule in question. That view of the learned Judge has also been approved by a Division Bench of the Andhra Pradesh High Court in the decision reported in Siviah v Munsiff-Magistrate, Medak ( 1962 2 AWR 283). In fact, a perusal of the decision of the Andhra Pradesh High Court will show that several judgments of the Madras High Court in considering rules analogous to rule 5 now before me, have taken the view that such rules are mandatory, and if the deposit is not made at the time of presentation of the election petition, notwithstanding the fact that the deposit is made later, it is of no avail at all and therefore the election petition will have to be dismissed as provided under the rules. I am in respectful agreement with the views expressed by Krishnan J., in the decision of the Madras High Court in Krishnaji v Muthuveera (A.I.R. 1923 Mad 490), as by the Division Bench decision of the Andhra Pradesh High Court in Siviah v Munsiff-Magistrate, Medak (1962 2 Andhra Weekly Reporter 283), referred to earlier.

In the view that I take on this aspect, the second contention of Mr. Kelu Nambiar, learned counsel for the petitioner, that even if the provisions of rule 5 (1) are considered to be mandatory, there can be sufficient compliance with it in this case, inasmuch as the deposit has been made before the period of limitation provided u/s 65 (2) of the Act read with sub-rule (1) of rule 3 of the rules, may not really arise for consideration. Because once the rules are considered to be mandatory, there is no question of the alternative contention of the learned counsel for the petitioner assisting the petitioner. No doubt, in support of the second contention referred to above, the learned counsel referred me to the Full Bench decision of the Madras High Court, reported in Assan Mohammed Sahib v Rahim Sahib (I.L.R. (1920) 43 Mad 579), which has been adopted and approved by my learned brother Madhavan Nair J., in the decision of this court reported in Cherlya Amma v Narayanan Nair (1963 KLT 352). That latter decision related to the construction to be placed upon Section 14 proviso of the Kerala Small Cause Courts Act, 1957, providing for deposit or security to be given at the time of presentation of the application to set aside ex parte decree. In my view the principles laid down, either in the Full Bench decision of the Madras High Court or in the decision of my learned brother Madhavan Nair J., referred to above, have no application to the facts of the present case, in view of the specific provisions contained in Section 65 (2) of the statute read with rules 5(1) and 5(2) of the rules. Therefore, the question as to whether the provisions of the rule in question are mandatory or only directory, has to be considered having due regard to the scheme of the Act and the rules and the expressions used therein.

I have already indicated that the provisions of rule 5 (1) are mandatory, in as much as the penal action that follows has also been clearly indicated in rule 5 (2) viz., that non-compliance of rule 5 (1) will entail the dismissal of the election petition itself. Therefore, the view of the learned District Judge that in this case the provisions of rule 5 (1) have not been complied with by the petitioner and as such the election petition has to be dismissed, has to be sustained. The result is, the Writ Petition fails and is dismissed. There will be no order as to costs.