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Judgment
The present revision has been filed against the order dated 27-06-2018 passed by the learned First Additional District Judge, Mandsaur, District
Mandsaur in Election Petition No. 01/2016.
The facts of the case reveal that the petitioner has contested the election of Councillor of Ward No.26 of Municipal Council, Mandsaur held in the
month of December, 2015 and the petitioner was declared as elected from Ward No.26. The certificate was issued on 26-11-2015. The respondent
No.1 has also contested the general election for the office of Councillor from ward No.26 and as he was unsuccessful, he preferred an election
petition which was registered as Election Petition No. 01/2016. The court below vide order dated 27-06-2018 has partly allowed the election petition
and has held that the respondent No.2 has interpolated her nomination form and the scrutiny form and has held that the petitioner was not a candidate
of BJP, however, by manipulation, the petitioner got herself allotted electoral symbol of BJP and was declared as authorized candidate of BJP.
Against the impugned order dated 27-06-2018, the present revision has been filed. A preliminary objection has been raised in the matter and it has
been argued by learned counsel appearing for the respondent that the election petition has to be dismissed as provisions of M.P. Municipalities
(Election Petition) Rules, 1962 have not been complied with.
Learned Sr. Counsel Mr Piyush Mathur appearing on behalf of the petitioner has drawn the attention of this court towards the judgment delivered in
the case of Aarti Singh Vs. Usha Kol and others reported in 2003 (2) MPLJ 224 and his contention is that in light of the aforesaid judgment the defect
in respect of depositing the security deposits deserves to be condoned. The learned Single Judge while dealing with the case of Aarti Singh was
dealing with the provisions as contained u/s 20 and 22 of M.P. Municipalities Act, 1961 read with M.P. Nagarpalika Nirwachan Niyam, 1994. Section
20(3) of M.P. Municipalities Act, 1961 reads as under :-
Election petitions.-
(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 rupees, in the case of election or nomination to Municipal
Council and one hundred rupees, in the case of election or nomination to Nagar Panchayat.
The aforesaid provision provides that the election petition shall not be admitted unless it is presented within thirty days and it is accompanied by a
security deposit. It is certainly true that in the aforesaid case thirty days time is given to file an election petition and also thirty days time is given to
deposit the security amount and the statute provides that the petition will not be admitted in case the security is not deposited within thirty days. The
dispute before the learned Single Judge was in respect of a petition which was presented within thirty days. In the aforesaid case the issue was in
respect of “presentation†of election petition and “admission†of election petition whereas in the present case there is no such dispute at all.
Rule 19 (2) of the Election Petition Rules governing the field categorically provides that at the time of presentation of the petition for revision under
Sub-section (2), the petitioner is required to deposit a sum of Rs. 250/- as security for the cost of the revision. Meaning thereby, at the time of
presentation itself Rs. 250/- is required to be deposited as a security deposit and receipt has to be filed in the matter and, therefore, as the statute
involved in the present case is very clear and provides that in case the security deposit is not made and the election petition is presented, then the same
shall resulted in dismissal. Not only this, as a similar controversy was looked into by this court in the case of (Deepak Kumar Soni Vs. Ashok Kumar
and others) reported in 2015(1) MPHT 388 and this court after taking into account the various judgments on the subject has held as under :-
“2. Non-applicant No. 1 by filing I.A. No. 5147/2014 on 20-3-2014 has raised the preliminary objection regarding maintainability of this petition due
to non-compliance of Rule 19(2) of M.P. Municipalities (Election Petition) Rules, 1962 (hereinafter referred to as ""Election Petition Rules""). It is said
that as per the requirement of Rule 19(2), the applicant has not deposited a sum of ` 250/- as security for the cost of the revision with the High Court
at the time of presentation"" of the petition. However, as per the consequence specified therein, the election petition ought to be dismissed in limine.
Learned Counsel, Shri Imtiyaz Hussain representing non-applicant No. 1 referring Rule 19(2) urged with vehemence that applicant at the time of
presentation of the revision petition under Section 26(2) of the Act challenging the decision of the Judge has not deposited the sum of ` 250/- as
security for the cost. Due to non-compliance of the same, this petition ought to be dismissed. In support of his contention, reliance has been placed on
the judgments of Hon'ble Apex Court rendered in the case of Charan Lal Sahu Vs. Nandkishore Bhatt and others, AIR 1973 SC 2464 and Aeltemesh
Rein Vs. Chandulal Chandrakar and others, AIR 1981 SC 1199. Reliance has also been placed to the judgment of this Court in the case of
Radheshyam s/o. Nandlalji Patidar Vs. Jagdish s/o. Gangaram Patidar, AIR 1995 MP 272. Lastly, reliance has been placed upon the judgment of
Aslant Beg Mirdha Vs. Babulal and others, 1997 (2) JLJ 154, wherein Rule 19(2) has been interpreted and its compliance is held mandatory and non-
deposit of the security alongwith revision was found fatal. It is held by this Court that High Court does not have any discretion to condone the said
lapse. In context of the said argument, it is urged that this petition may be dismissed due to non-compliance of the mandatory requirement of the
Rules.
In counter to the argument of the non-applicant No. 1, learned Senior counsel, Shri V.S. Shroti contends that the requirement of Rule 19(2) of the
Election Petition Rules is mandatory, which has been complied immediately after presentation of this revision by the applicant depositing the amount of
security for the cost of the revision. However, the purposive interpretation of Rule 19(2) ought to be done by the Court. In such circumstances, the
objection raised by the non-applicant No. 1 may be dismissed. In support of his contention, reliance has been placed on a judgment of Hon'ble Apex
Court in the case of M. Karunanidhi Vs. H.V. Handa and others, AIR 1983 SC 558. Reliance has further been placed on another judgment of Hon'ble
Apex Court rendered in the case of D. Saibaba Vs. Bar Council of India and another, (2003) 6 SCC 186, and said that interpretation of statute where
literal construction or plain meaning may cause hardship, futility, absurdity or uncertainty the Court may prefer purposive or contextual construction to
arrive at a more just, reasonable and sensible result. Further, relying upon the judgment of Hon'ble Apex Court in the case of Mahadev Govind Gharge
and others Vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 SCC 321, in the context that in procedural
law the purpose and interpretation is always intended to facilitate process of achieving ends of justice besides expeditious disposal of cases and Courts
normally favour interpretation, which would achieve said object. It is further said that the provisions of the procedural law, which have no penal
consequence in default of their compliance and even clothe Court with discretion to condone same should normally be construed as directory in nature
and receive liberal construction. Learned Senior Counsel referring the meaning of ""at the time"" in the context of the Words and Phrases State and
Federal Court from America by the Book of Permanent Edition, West Publishing Company submits that within statute providing that certificate of title
duly assigned shall be delivered to purchaser at the time motor vehicle is delivered, refer to the whole transaction or series of circumstances and do
not literally mean ""eo instanti"". However, if after filing the revision and on pointing out the defect of non-deposit of the security for the cost of the
revision, it was rectified on the same day then the words ""at the time of presentation"" en-grafted in Rule 19(2) of Election Petition Rules should be
construed liberally maintaining this petition. It is further submitted by him that Chapter 20 of High Court of Madhya Pradesh Rules, 2008 do not
prescribe any mode and manner to deposit the security for cost, however, on rectification of the defect pointed out by the Registry on the same day, if
this revision is dismissed, then it will run contrary to the interpretation of the statute and would not be meaningful. In view of the aforesaid, it is
submitted that the objection raised by the non-applicant No. 1 may be turned down at threshold.
After having heard learned Counsel appearing on behalf of the parties and on perusal of the facts of this case, it is apparent that non-applicant No.
1 had filed the election petition bearing No. 34/2011 before the First Additional District Judge, Harda challenging the election of the applicant as
Councilor from Ward No. 12 (V.V. Giri Ward, Harda), which was allowed by the order impugned dated 29-1-2014. By filing this revision under
Section 26(2) of the Act by the applicant on 3-2-2014 order impugned is challenged. On presentation of this revision, Section Officer has pointed out
two defects, which are reproduced as under:--
(1) Legible copies/typed copies--Typed copy of handwritten Annexure A-8.
(2) Deposit Receipt--Receipt of deposit amount ` 250/-. Not deposited in the High Court Cashier Judicial. However, on the next date, learned Counsel
for the applicant appeared and put up the note that ""default removed"". In the record of this petition, an application submitted by the Counsel for the
applicant to the Registrar General, High Court of M.P. in respect to deposit of ` 250/- as per Rule 19 of the Election Petition Rules is available by
which it was deposited on 3-2-2014 on the same day. In the said application number of the Civil Revision has also been specified, meaning thereby
after presentation of the revision, it was registered as Civil Revision allotting its number and when the defect has been pointed out by the Registry, it
has been cured by deposit of ` 250/- as reflected from the note of applicant's Counsel regarding removal of the defect. In the said context, while
considering the objection raised by non-applicant No. 1, it is to be examined that the compliance of Rule 19(2) of the Election Petition Rules is
mandatory and such compliance has been truly made by the applicant to maintain the revision at the time of its presentation.
In the said context, first of all Rule 19 of the Election Petition Rules is required to be referred, which is quotedhereinbelow:--
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 ` 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.
A bare reading of sub-rule (2), it is clear that ""at the time of presentation"" of the petition challenging the decision of the Judge, under Section 26(2) of
the Act, the petitioner ""shall"" deposit a sum of ` 250/- as security for the cost of the revision. The later part of sub-rule (2) specifies the consequence,
if the provisions of this rule are not complied with, the High Court ""shall"" dismiss the petition. In view of the aforesaid, it is apparent that the starting of
sub-rule (2) emphasise that ""at the time of presentation"" security deposit should be made, otherwise consequence of such non-compliance has been
specified in the later part of the said rule using the words, that High Court ""shall"" dismiss it. In the said context by the judgment of this Court
interpreting the Rule 19(2) in the case of Radheshyam (supra), it was held that the requirement to deposit the security amount for cost under Rule 19
is mandatory. It has further been held that by filing a subsequent petition and depositing security at the time of presentation with an intent to cure such
illegality would not amount to cure the same. However, this Court while dismissing the revision petition, held that, if it is allowed for the purpose of
maintaining the subsequent petition, it would defeat the provisions of laws.
In another decision of Aslam Beg Mirdha (supra), this Court has interpreted Rule 19(2) of the Election Petition Rules and held that while filing
revision petition under Section 26(2) of the Act, the compliance of provisions of Rule 19(2) of Election Petition Rules is mandatory. It is further held
that the security amount has to be deposited alongwith revision petition and the High Court has no discretion to condone the lapse. This judgment was
delivered relying upon the judgments of Hon'ble Supreme Court rendered in the cases of Charan Lal Sahu (supra) and Aeltemesh Rein (supra).
Learned Senior Counsel, Shri Shroti has placed reliance on the judgment of M. Karunanidhi (supra), wherein the issue regarding dismissal of
election petition under Section 117 of the Representation of Peoples Act for depositing the security alongwith the election petition by way of challan in
the name of Registrar of the Madras High Court in the Reserve Bank of India. It was urged, that the High Court dismissed the said election petition
because the security has not been deposited in cash as specified in Rule 8 of Madras High Court Election Petition Rules, 1967 as specified therein. It
is submitted by him that as the manner to deposit was not specified in the rules and deposit was made by challan at the time of filing, therefore,
treating the manner to deposit directory, which was not specified in the rules, deposit of security was accepted by way of challan in the name of
Registrar. Thus, even in a case where compliance to deposit security is found mandatory but its manner was not specified, however, the dismissal of
petition by the High Court was set aside. In the facts of present case, wherein the amount of security for cost of revision has been deposited on the
same day and date, however, even the compliance of Rule 19(2) of the Election Petition Rules is found mandatory, this petition should not be
dismissed merely because the deposit was in later part of the day, which cannot be fatal as it is on the date of presentation of election petition.
In order to advert the said contention, interpretation of Rule 19(2) of the Election Petition Rules is necessary, the starting word of sub-rule (2) is ""at
the time of presentation"" of the petition for revision challenging the decision of the Judge shall deposit with the High Court a sum of ` 250/- as security
for the cost of the revision. However, in the first part of Rule 2, it is clear that at the time of presentation of the petition, the security deposit should be
made. The aforesaid view finds support from the judgment of the Co-ordinate Bench of this Court in the cases of Aslam Beg Mirdha (supra) and
Radheshyam (supra). However, looking to the language of the rule using word ""shall"" for deposit, there is no reason to differ from the said view and it
is reiterated that compliance of Rule 19(2) to deposit security for cost is the mandatory compliance. The later part of this rule starts from the words
that if the provisions of this rule are not complied with, the High Court ""shall"" dismiss the petition; meaning thereby in the first part as well as in the
later part the word ""shall"" has been used. However, the deposit of security of cost is mandatory ""at the time of presentation"" and if it is not deposited
in compliance of the rules, dismissal is the consequence. In the case of Sharif-ud-din Vs. Abdul Gani Lone, AIR 1980 SC 303, E.S. Vekataramiah, J.,
delivering the judgment in the case 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 the said
requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should
not follow.
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 Courts 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 at the time of presentation of the petition for revision the sum of
Rs.250/- as security for the cost of the revision must be deposited with the High Court and as per the later 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), stricto sensu at the time of presentation of the election petition, the deviation from such noncompliance 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 petition"" has been used therein to deposit cost on presentation meaning thereby ""eo instanti"". 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 Aslant Beg Mirdha
(supra), having no discretion with the High Court to condone the lapse of non-depositing the security of cost of revision at the time of presentation of
revision, in my considered opinion, objection raised by the non-applicant No. 1 deserves to be upheld and this petition is liable to be dismissed.
Accordingly, upholding the objection filed by the non-applicant No. 1, this petition is hereby dismissed due to non-compliance of Rule 19(2) of
Election Petition Rules, in the facts. Parties to bear their own cost.â€
Against the aforesaid judgment S.L.P was preferred and the Hon'ble apex court has dismissed the SLP vide order dated 12-12-2014. In light of the
aforesaid judgment delivered by a co-ordinate Bench which was affirmed by Hon'ble Supreme Court and also keeping in view the statutory provisions
as the word “shall†has been used twice, the factum of deposit of security at the time of filing of the election petition has to be treated as
mandatory condition and as the same was not fulfilled, this court is left with no other choice except to decline the admission of revision.
Hon'ble Shri Justice G. P. Singh in Principles of Statutory Interpretation, 13th Edition 2012, under Chapter 5 â€" “Subsidiary Rulesâ€, under
Synopsis 6 has dealt with Mandatory and Directory Provisions in a Statute.
Hon'ble Shri Justice G. P. Singh has observed at page 397, while giving an example of Section 117 of the Representation of the People Act, 1951, that
at the time of presenting an Election Petition, the petitioner is required to deposit in the High Court, in accordance with Rules, a sum of Rs.2,000/-, as
Security for costs of the petition. Construing Section 117 it has been held that the requirement of making the deposit of Rs.2,000/- as Security Deposit
is mandatory and the same has to be made while presenting election petition, but the mode of deposit as well as the person who could make the
deposit is directory.
Hon'ble Shri Justice G. P. Singh placing reliance upon the judgment delivered in the case of M. Y. Ghorpade Vs. Shivaji Rao M. Poal reeported in
(AIR 2002 SC 3105) has held that non compliance of the provision ie., deposit of Rs.2,000/- at the time of presentation of election petition shall result
in dismissal. Not only this, Hon'ble Shri Justice G. P. Singh under Synopsis 6, Note (b), after taking into account the judgment delivered in the case of
Rajsekhar Gogoi Vs. State of Assam reported in (AIR 2001 SC 2313) has observed that when consequence of nullification on failure to comply with a
prescribed requirement is provided by the statute itself, there can be no manner of doubt that such statutory requirement must be interpreted as
mandatory.
Hon'ble Shri Justice G. P. Singh under Synopsis 6 (e), has also dealt with the use of word “shall†and “may†in a statute. The same reads as
under:
(e) Use of 'shall' or 'shall and may'; 'must' and 'should'
The use of word 'shall' raises a presumption that the particular provision is imperative, however this prima-facie inference may be rebutted by other
consideration such as object and scope of the enactment and the consequences flowing from such construction. There are numerous cases where the
word 'shall' has, therefore, been construed as merely directory. The word “shall†observes HIDAYATULLAH, J. “is ordinarily mandatory but
it is sometimes not so interpreted if the context or the intention otherwise demands†and points out SUBBARAO, J : “When a statute uses the
word 'shall', prima facie it is mandatory, but the court may ascertain the reral intention of the Legislature by carefully attending to the whole scope of
the statute. If different provisions are connected with the same word 'shall', and if with respect to some of them the intention of the Legislature is
clear that the word 'shall' in relation to them must be given an obligatory or a directory meaning, it may indicate that with respect to other provisions
also, the same construction should be placed.
In the light of the aforesaid, it can be safely gathered that the word 'shall' used in the statute in question makes it mandatory as compliance of
deposit of Rs.250/- as security deposit certainly results in dismissal as a consequence on account of failure to comply the prescribed requirement of
deposit of Rs.250/-, already provided under the statute itself.
Recently, the Hon'ble Supreme Court in the case of Sitaram Vs. Radhey Shyam Vishnav reported in (2018) 4 SCC 507 in paragraphs 32, 33, 39, 40
and 41 has held as under :-
“32. We may immediately clarify that the aforesaid cases dealt with substantial compliance relating to ‘true copy’, ‘verification’,
‘affidavit’ and applicability of the principle of curability. In G.M. Siddeshwar (supra), the Court made a difference between total and complete
non-compliance with the provision of Section 83 of the 1951 Act whereupon the election petition cannot be described as an election petition and may
be dismissed at the threshold. In the instant case, we are concerned with the deposit by treasury challan which shall accompany the election petition.
The Rule prescribes in categorical terms that the tribunal shall dismiss the petition in case of non-compliance. We have referred to the authorities
relating to security deposits under Section 117 of the 1951 Act. The present rules refer to municipal election. It is worthy to note that the election
petition in para 15 has stated thus:-
“15. That necessary Court fee has been paid with this petition. Rs. 1000/- has been deposited before this Hon’ble Court as per Law. A copy of
this petition has already been sent to the District Returning Officer.â€
As stated earlier, the petition was filed on 09.09.2015 but the treasury challan was not filed on that day. The Election Tribunal had passed an order
on a later date permitting the deposit. It is submitted by Mr. Jain that the election petitioner could not have deposited the amount without obtaining the
permission of the Court. To substantiate the said stand, he has placed reliance on the 1986 Rules. We have been commended to Rules 252, 253, 260,
261 and
We think it appropriate to reproduce the said Rules:-
“252. Appointment of a Receiving Officer.- (1) Every civil court or where two or more courts have a single account with the Treasury, every such
group of courts, shall have an official entrusted with the receipt of money deposited in the Court.
(2) Such official shall be called as the Receiving Officer and shall be appointed by the presiding officers of the Civil Court or where two or more
courts have single account with the Treasury, he shall be appointed by the presiding officer of the highest court subject to instructions if any, of the
District Judge concerned.
(3) In a court where no official is appointed specifically to perform the duties of the Receiving Officer or during the absence on leave or otherwise of
the person appointed as the Receiving Officer, the presiding officer of the civil court or the presiding officer of the high court as the case may be, shall
appoint any other official of his court to carry on the duties of the Receiving Officer.
Head of account.- The following are the head of account under which the money received and paid under these Rules are classified:-
(1) Deposits;
(a) Civil Court deposits, including:
(i) sums paid under decrees and orders;
(ii) sums deposited under Order XX, Rule 14 and Order XXIV, Rule 1 of the Civil Procedure Code and Section 83 of the Transfer of Property Act;
(iii) Sums deposited under Order XXII, Rule 84 or paid under Order XXI, Rule 85 of the Code;
(iv) Sums deposited under Section 379(1) of the Indian Succession Act;
(v) Sums deposited in lieu of security;
(vi) Sums deposited under any law relating to the Land Acquisition;
(b) petty cash deposits, including deposits for:-
(i) Travelling and other expenses of witnesses;
(ii) Subsistence money for judgment debtors;
(iii) Incidental charges of Commissions, Amins and Arbitrators etc.;
(iv) Commission fees;
(v) Postage and registration fees;
(vi) Cost of publication of proclamation and orders; (2) Other Administrative Services.
A. Administration of Justice.
(a) Services and Service fees;
(i)…..
(ii) Civil and Sessions and Judicial Courts;
(b) Fines and forfeitures;
(i)…..
(ii) Civil and Sessions & other Judicial Court.
(c) Other Receipts.
I. Sale proceeds of unclaimed and escheated property
(i)….
(ii) Civil and Sessions & other Judicial Courts. II. Legal Aid to poor.
III. Recoveries of over payments.
(i)……
(ii) Civil and Sessions & Other Judicial Court. IV. Other Receipts.
(i)….
(ii) Civil and Sessions & Other Judicial Court.
(d) Stamp duties and penalties.
Note:- Sub-heads (a),(b) &(c) have been classified in the State Account under the major head “065†Other Administrative Services and sub-
head(d) under the major head “0.30†Stamps & Registration feesâ€. These major heads and sub-heads will automatically be deemed to have
changed whenever they are changed in the Budget, (3) Departmental cash including:-
(i) Salary of establishment.
(ii) Travelling allowance.
(iii) Contingencies.
Mode of payment of money into court. - Payment of money into court shall ordinarily be made by means of a tender upon a printed triplicate
form. The applicants shall enter in the court language the particulars required in columns 1 to 4 of the triplicate form of tender (F. 23). The applicant
shall then hand over the tender to the Munsarim or the Reader of the Court concerned, as the case may be.
Office report by the official-in-charge of the record. - The Munsarim or the Reader of the court concerned, as the case may be, shall then call
upon the official-in-charge of the record of the case for an office report as to whether the amount and nature of the payment tendered and the number
of the suit, or proceeding, if any are correct, and whether the payment is due from the person on whose account it is tendered. Any necessary
corrections shall be made and the munsarim or the Reader of the Court concerned, as the case may be, shall then sign the tender and enter it in the
register of challans prior to the order for receipt of payment being passed.
Preparation of the order for payment. â€" The order to receive payment shall be prepared in the office of the Court and shall be enfaced upon
the duplicate and triplicate forms of the tender, and shall run in the name of or Receiving Officer as prescribed in Rules 255, 256, 257. The order shall
be signed by the presiding officer for all amount payable under Head of Account (1)(a) and (2) of Rule 253 and by the Munsarim or the Reader of the
court concerned; as the case may be for all amounts payable under shall send the tender forms to the Munsarim or the Reader of the Court
concerned, as the case may be. The third form of tender shall be retained in custody by the Munsarim or the Reader of the court concerned, as the
case may be, and then he shall return the second copy of the tender to the applicant and the original copy shall be sent to the concerned court for
keeping it in the concerned case file.â€
The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory;
second, the non-deposit will entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of
copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election
petition shall be accompanied by the treasury challan. The word used in the Rule is ‘accompanied’ and the term ‘accompany’ means to
co-exist or go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the
treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also
convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in
Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining to non-deposit will have full applicability. The principle stated in M. Karunanidhi
(supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the
1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we
do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking
permission at the time of presenting an election petition. Permission, if any, may be sought earlier. Such was the case in Bajrang Lal v. Kanhaiya Lal
and others22 where the election petition was submitted on 31.8.2005 and an application was submitted before the court below on 30.8.2005 under
Section 53 of the Act of 1959 with the signature of the advocate and an order was passed by the court on the same application itself on 30.8.2005
allowing the advocate to deposit the security amount under Section 53 of the Act of 1959 for election petition. The election petition was submitted on
31.8.2005. In such a fact situation, the High Court found that there was compliance with the provision.
Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves
us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both
the 22 RLW 2007 (2) Raj 1551 Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in
treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was
presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition.
In view of the aforesaid analysis, we allow the appeal and set aside the order passed by the High Court that has affirmed the order of the
Additional District Judge as a result of which the election petition shall stand rejected. There shall be no order as to costs.â€
The Hon'ble Supreme Court has dealt with a similar provision as contained under the Rajasthan Municipalities Election Petition Rules, 2009. In the
aforesaid case also deposit of requisite amount in treasury, filing of treasury challan at the time of election petition was mandatory and non-compliance
of such deposit was held to be fatal and the order passed by the Election Tribunal permitting to make the deposit later on and the order passed by the
High Court have been set aside by the Hon'ble Supreme Court, as a result of which the election petition itself has been dismissed.
In the present case also a similar controversy is involved and therefore, in light of the law laid down by the Hon'ble apex court again the revision
petition deserves to be dismissed.
Learned counsel for the respondent has also argued that the petitioner has filed the nomination form 08-12-2015 as an independent candidate and
requested the election officer to allot coconut tree, fan or telephone as election symbol, however in connivance with election officer, did interpolation in
the nomination form and projected herself as a candidate of a political party. The factum of interpolation has been established before the learned
District Judge based upon the evidence. The interpolation in the nomination form, Exhibit-P-3 and affidavit, Exhibit-P-4 has been established and,
therefore, on merits also no case is made out in the matter. The contention raised by the learned counsel is that the petition deserves to be dismissed
on merits also.
This court is of the opinion that as this court is dismissing the petition on preliminary ground, the question of considering other grounds does not
arise.
Resultantly, in light of the preliminary objection the revision is dismissed.
Certified copy as per rules.