Orissa High Court
Smt. Kiranbala Rout vs Smt. Rasnamayee Roy on 6 December, 2012
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.20648 of 2012
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Smt. Kiranbala Rout, aged about 35 years
W/o-Shri Prashanta Kumar Rout,
Village-Tala Kaipada, P.O.-Kaipada,
P.S.-Bari-Ramachandrapur,
Dist.-Jajpur ... Petitioner
-Versus-
Smt. Rasnamayee Roy, aged about 37 years,
W/o-Shri Pravat Kumar Roy,
Village-Uppar Kaipada, P.O.-Kaipada,
P.S.-Bari-Ramachandrapur,
Dist.-Jajpur ... Opp. Party
For Petitioner : M/s. Anupam Rath &
M. Panda
For Opp. Party : M/s.Gautam Mishra &
D.K. Patra
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 06.12.2012
B.N. Mahapatra, J.The present writ petition has been filed with a prayer to quash the impugned order dated 24.9.2012 passed by the learned Civil Judge (Jr. Divn.), Jajpur (hereinafter referred to as "Election Tribunal") in Election Misc. Case No.6 of 2012 wherein the Election Tribunal rejected petitioner's prayer to dismiss the election petition as the same was not presented together with the security deposit.
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2. Petitioner's case in a nutshell is that the petitioner along with Election Petitioner-opposite party contested to the post of Sarpanch, Kalamatia Grama Panchayat in Bari Block, District-Jajpur in the year 2012. In the G.P. Election, the petitioner was declared elected by the Election Officer-cum-B.D.O., Bari. Opposite party challenges the election of the petitioner in Election Misc. Case No.6/2012 before the Election Tribunal on the ground that the petitioner is disqualified to be a candidate for the post of Sarpanch as she has given birth to three children after 1995 i.e. after the cut-off date. The result of election was declared on 21.2.2012 and the election petition was filed on 02.03.2012 without being accompanied by deposit of Security for costs as required under Section 31 of the Grama Panchayats Act. The said amount of security money was deposited on 05.03.2012 that is after three days of filing of the election petition. The Election Tribunal while admitting the election petition issued show-cause notice to the petitioner and on appearance before the Election Tribunal, an objection was filed by the petitioner with a prayer to dismiss the election petition on the ground of non-compliance of statutory provision as laid down under Section 31 of the G.P. Act. The said objection of the petitioner was rejected by the Election Tribunal on the ground that though the security deposit was paid on a later date, the same being paid within the period of limitation, election petition cannot be dismissed. Hence, the present writ petition.
3. Mr. A. Rath, learned counsel appearing for the petitioner submits that the impugned order passed by the Election Tribunal is not 3 sustainable as the same has been passed whimsically without application of judicial mind coupled with colourable exercise of powers.
A bare reading of Section-31 of the G.P. Act makes it clear that an Election Petition is to be presented together with the deposit of the security for costs. The word "together" signifies that an election petition whether filed within the period of limitation or beyond the same has to be accompanied by the prescribed deposit towards security for costs which has not been complied with in the present case. Under Section 31 of the G.P. Act, there is no scope for Election Tribunal to exercise any concession/discretion in case of non-compliance of the statutory requirement of deposit of security together with the Election Petition. The decision of the Election Tribunal defeats the object behind the statutory requirement and thereby makes the word "together" redundant. Such an interpretation by the learned Election Tribunal is impermissible under law.
4. Learned Election Tribunal has passed a cryptic order without dealing with arguments raised by the petitioner with respect to the judgment of the Hon'ble Supreme Court in the case of M.Y. Ghorpade Vs. Shivaji Rao M. Poal and others, reported in AIR 2002 SC 3105 wherein the Hon'ble Supreme Court held that the requirement of making security deposit is mandatory and the same has to be made while presenting an Election Petition. If the statute provides a particular thing to be done in a particular manner then it should be done in that manner alone and in no other way or should not be done at all. The impugned order causes prejudice to the petitioner, hence liable to be quashed. In 4 support of his contention, he relied upon the judgment of Hon'ble Supreme Court in the case of Sarif-ud-Din vs. Abdul Gani Lone, AIR 1980 SC 303.
5. Mr. G. Mishra, learned counsel for opp. party submits that under Section 31 of Orissa Grama Panchayats Act, 1965, power has been given to the Election Tribunal to condone delay in presentation of election petition. Similar power has also been given to condone delay in presentation of election petition under Section 44-B of Panchayat Samiti Act. Under Section 10 of the Orissa Municipal Act, no such power has been given for condoning the delay. Similarly under Section 81 of Representation of the People Act, 1950, no power is vested with the High Court to condone the delay. The provisions contained in Section 81 of Representation of the People Act, 1950 are not available in G.P. Act or the Panchayat Samiti Act. The Division Bench by its judgment dated 25.4.2003 passed in W.P.(c) No.1277 of 2003 held that there is no provision in the Panchayat Samiti Act to indicate that "non-deposit of Rs.200/- as security together with the election petition would result in dismissal of election petition".
Referring to the judgments in the cases of Maddipatla Jagan Mohan Rao vs. Akula Nagamalleswari, 2008(3) ALT 332 and Arun Kumar son of Sri Ram Sharan vs. The Presiding Authority, 2007 (3) ADJ 442, Mr. Mishra submitted that the security deposit can be made subsequent to filing of the election petition.
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Mr. Mishra also placed reliance upon the judgment of Hon'ble Supreme Court in the case of Shiv Chand V. Ujagar Singh and another, AIR 1978 SC 1583 in support of his contention.
6. On the rival contentions advanced by the parties, the following questions fall for consideration by this Court:
(i) Whether the learned Civil Judge (Jr. Divn.), Jajpur is justified to hold that the Election Petition presented within the period of limitation without deposit of the security amount as required under Section 31 of the G.P. Act is maintainable as the security amount was subsequently paid within the period of limitation ?
(ii) Whether the learned Civil Judge (Jr. Divn.), Jajpur is justified to reject the petition of the returned candidate challenging maintainability of the election petition which was not presented together with security amount as required under Section 31 of the G.P.Act ?
7. Since both the questions are interlinked, they are dealt with together.
To deal with the above questions, it is necessary to quote Section 31(1) of the Orissa Grama Panchayats Act, 1964 and Rule 88 of the Orissa Grama Panchayats Election Rules, 1965 (for short, "Election Rules").
Section 31 of Grama Panchayats Act:
"The petition shall be presented on one or more of the grounds specified in Section 39 before the [Civil Judge (Junior Division)] having jurisdiction over the place at which the office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be prescribed in that behalf as security for costs 6 within fifteen days after the date on which the name of the person elected is published under Section 15:"
Rule 88 of the Election Rules :
"88. Election Petitioners - The following amounts shall be deposited as security for costs along with an election petition filed under Chapter-V of the Act:
Election petition relating to election of Sarpanch - 150.00 Election Petition relating to election of Naib-Sarpanch- 50.00 Election Petition relating to election of a Member - 40.00"
8. A conjoint reading of Section 31 of G.P. Act read with Rule 88 of Election Rules postulates that an election petition should be presented on one or more of the grounds specified in Section 39 before the Election Tribunal together with Rs.150.00/Rs.50.00/ Rs.40.00, as the case may be as security for costs within fifteen days after the date on which the name of the person elected is published under Section 15 of the G.P. Act. There is nothing in Section 31 of the G.P. Act and Rule 88 of Election Rules which precludes the election petitioner from complying with the condition stipulated under Section 31 of the G.P. Act and Rule 88 of Election Rules on two different dates within the period of limitation, i.e., within 15 days from the date on which the name of the person elected is published under Section 15 of the G.P. Act. Therefore, the requirement of Section 31 is that presentation of Election Petition as well as deposit of security for cost has to be made within the period of limitation prescribed under Section 31 of the G.P. Act read with Rule 88 of the Election Rules. Hence, in case the deposit of security amount is made before expiration of period of limitation prescribed under Section 31 of the G.P. Act for presentation of Election Petition though not paid together with the 7 election petition filed earlier it would amount to substantial compliance of Section 31 of the G.P. Act.
9. In the present case, it is nobody's case that the security deposit required to be made together with the election petition under Section 31 of the G.P. Act, which is mandatory, has not been paid within the period of limitation. The only dispute is that the security amount has not been deposited on the very day of filing of election petition on 02.03.2012, but subsequently paid on 05.03.2012 i.e. after three days of filing of election petition, which is undisputedly within the period of limitation.
10. There is no provision in the Orissa Grama Panchayats Act to indicate that non-deposit of Rs.150.00/ Rs.50.00/Rs.40.00, as the case may be as security for cost together with election petition would result in dismissal of Election Petition.
11. The Andhra Pradesh High Court in the case of Maddipatla Jagan Mohan Rao, S/o-Nagaiah V. Akula Nagamalleswari, W/o- Venkata Ramaiah and Ors., 2008(4) ALD 71, 2008(3) ALT 332 held as under:-
"Having regard to the combined effect of Rules 3 and 5 of the Rules, 1995, the deposit of Rs.100/- is concerned, there are no two standards. On the other hand, both the filing of the election petition coupled with the deposit of Rs.100/- shall be within 30 days from the date of the declaration of the result of the election, as contemplated under Rule 3 of the Rules, 1995. But, the election petitioner is not precluded from complying with the conditions stipulated under Rules 3 and 5 of the Rules, 1995 on two different dates, provided if those two postulates are complied with within the prescribed period of 30 days from the date of 8 the declaration of the result of the election for filing the election petition."
12. The Allahabad High Court in the case of Yashwant Singh Yadav V. Prescribed Authority/Sub-Divisional Officer and Another, (C.M.W.P. No.13732 of 1997 decided on 30.4.1997) held that Rule 24 of the U.P. Panchayat Raj Rules which has since been omitted by Rule 6 of the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994, came up for consideration in the case of Shamsher Singh V. VIIth Addl. District Judge, Varanasi and Ors., 1991 RD 439. It has been held therein that in case the deposit of security amount is made before expiration of the period of limitation prescribed for filing of election petition, it would amount to substantial compliance of the related provisions. Accordingly, the Court found no force in the arguments that the election petition would be defective merely because, it was not accompanied with a treasury challan testifying to the deposit of Rs.5 towards security.
13. The Hon'ble Supreme Court in the case of Chandrika Prasad Tripathi V. Shiv Prasad Chanpuria and others, AIR 1959 SC 827 following the earlier decision in the case of K. Kamaraja Nadar V. Kunju Thevar and others, AIR 1958 SC 687 held that Section 117 of the Representation of the People Act should not be strictly or technically construed. Wherever it is shown that there has been a substantial compliance with its requirements, the Tribunal should not dismiss the election petition under Section 90, sub-Section (3) on technical grounds. 9
14. The Hon'ble Supreme Court in the case of Shiv Chand V. Ujagar Singh and another, reported in AIR 1978 SC 1583 held as under:-
"We are satisfied that if he is impleaded as a respondent the election petition cannot be dismissed under S. 86(1) of the Act. That provision states that the High Court shall dismiss an election petition which does not comply with the provisions of S. 82. The test is whether the election petition complies with S. 82, not whether the election petitioner has failed to comply with Section 82. The substance of the matter must govern because hyper-technicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition."
15. In the instant case, since presentation of election petition and the security deposit has been made within the period of limitation prescribed under Section 31 of the G.P. Act, this Court is of the view that there is substantial compliance of Section 31 of the G.P. Act and a literal and mechanical interpretation of Section 31 of G.P. Act and Rule 88 of the Election Rules would lead to manifest absurdity. The substance of the matter must govern because hyper-technicality would defeat a vital judicial process.
16. Learned counsel for the petitioner putting emphasis on the expression "together with" appearing in Section 31 of the G.P. Act submitted that if the election petition is filed without deposit of the security amount, such petition is liable to be dismissed. It has not satisfied the requirement of Section 31 of the G.P. Act. To substantiate his case, Mr. Rath relied upon the judgment of the Supreme Court in the case of M.Y. Ghorpade V. Shivaji Rao M. Poal and others, reported in AIR 10 2002 SC 3105 wherein the apex Court held that the requirement of making of security deposit is mandatory and the same has to be made while presenting an Election Petition. In that case, the question that arose for consideration before the Hon'ble Supreme Court was whether there has been non-compliance of Section 117 of the Representation of the People Act, 1951 (hereinafter referred as "Act, 1951"). Section 86 of the Act, 1951 in Chapter III deals with the trial of Election Petition and Section 86(1) states, the High Court shall dismiss Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section
117. Section 117 (1) of the Act, 1951 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court, in accordance with the Rules of the High Court, a sum of two thousand rupees as security for the costs of the petition. In that case, the allegation of the appellant was that a sum of Rs.2000/- had been deposited in the High Court of Karnataka by one Heroji Lad, Respondent No.5, and not by Shivaji Rao Poal, the election petitioner and, therefore, there has been non-compliance of Section 117 of the Act, 1951. The Hon'ble Supreme Court held that the evidence of the election petitioner as well as the evidence of respondent No.5 unequivocally pointed out that it was the election petitioner who deposited the amount of Rs.2000/-. Therefore, it was held that there was no infirmity with the conclusion of the High Court that there has been compliance of Section 117 of the Act and consequently election petition has been held to be maintainable and could not have been dismissed under Section 86 of the Act on the ground of non-compliance of Section 117 of the Act. While looking at the 11 provision of Section 117 of the Act, the Hon'ble Supreme Court held that the requirement of making a security deposit of Rs.2000/- is mandatory and the same has to be made while presenting an Election Petition, but the mode of deposit as well as the person who could make a deposit has to be complied with in accordance with the rules of the High Court in question and the same has been held to be directory.
17. Undoubtedly in that case, the question was not before the Supreme Court, if the election petition was filed within the period of limitation and the amount of security was paid thereafter on some other day, but within the period of limitation, whether the said election petition was maintainable or not? Apart from that, the Hon'ble Supreme Court took into consideration, the provisions of Section 86(1) of the Act which provides that the High Court shall dismiss Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, 1951. In the Grama Panchayats Act, there is no such provision as to whether; if the election petition is filed within the period of limitation and the security deposit is made thereafter within the period of limitation, such election petition shall be dismissed ? Therefore, the judgment of the Hon'ble Supreme Court in the case of M.Y. Ghorpade (supra) is of no help to the election petitioner.
18. On the other hand, the Hon'ble Supreme Court in the case of M. Karunanidhi V. H.V. Handa and others and in connected cases, AIR 1983 SC 558, held that Sub-section (1) of Section 117 of the Act is in two parts. The first part of sub-sec. (1) of S.117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High 12 Court a sum of Rs.2000/- as security for the costs of the petition, and the second part is that such deposit shall be made in the High Court in accordance with the Rules of the High Court. The requirement regarding the making of a security deposit of Rs.2000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under sub-sec.(1) of S. 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory.
Where the amount of Rs.2000/- as security for costs was not deposited in cash in the High Court by the petitioner filing election petition but was deposited by pre-receipted challan in the Reserve Bank of India to the credit of the Registrar, High Court at the instance of the High Court, and in accordance with the procedure followed for deposit of amounts in Court, it was held that there was due compliance with the requirements of sub-sec.(1) of S.117 of the Act read with R.8 of the Election Petitions Rules.
Rule 8 of the Election Petitions Rules does not contemplate that the money should be deposited in the High Court in cash. A literal and mechanical interpretation of R.8 would lead to manifest absurdity.
19. The decision of this Court in the case of Dr. Nirmal Chandra Satpathy V. Jitu Patnaik @ Jitendranath Patnaik and others (OJC No.4025 of 1993 decided on 6.9.1993) relied upon by Mr. A. Rath, learned counsel for the petitioner is also of no help to the petitioner. In that case, the last date of limitation in terms of Section 19 of the Orissa Municipal Act, 1950 was 16.3.1992. On that day, an 13 election petition was filed without deposit of Rs.200/- as security as required under sub-section (1) of Section 19 of the Orissa Municipal Act. On the date of filing of the election petition, a petition was filed on that date to permit the petitioner to deposit the security by way of challan. The District Judge while directing to register the petition, ordered to put up the same on 24.3.1992 with office note. The case was put up and on that day and after seeing the office note, the District Judge noted that the advocate for the petitioner filed challan to deposit the security money and asked the office to check and report. Later the learned District Judge ordered the Nazir to receive the amount, which was done. On an objection being taken that the petition had not been presented in accordance with law, the plea has been accepted and the election petition has been dismissed on the ground that since the petition was not in terms of Section 19 of the Orissa Municipal Act which is mandatory in nature, the petition was not maintainable. In that case, this Court held that the District Judge under the law has no power to grant extension of time to pay the security amount. Section 5 of the Limitation Act cannot apply to a petition filed under Section 19 of the Orissa Municipal Act. This Court further held that on examination of the relevant provision of the special law, it becomes clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Special Act. It was further held that the special provision, namely, Section 19 of the Orissa Municipal Act did exclude by necessary implication the provision of Section 5 of the Limitation Act inasmuch as 14 if application of this section were to be conceded, the limitation provided by Section 19 of the Orissa Municipal Act would virtually be set at naught because it would then become open to the District Judge to extend the period of limitation on sufficient cause being shown. Accordingly, the election petition was held to be invalid.
20. The facts of the case at hand are completely different from the facts of Dr. Nirmal Chandra Satpathy's case (supra). In that case the election petition was filed on the last date of limitation i.e. 16.3.1992 and the District Judge extended the time beyond the period of limitation for deposit of the security amount which was held by this Court not permissible. Under Section 19 of the Orissa Municipal Act, 1950, no power is vested with the District Judge to extend the period of limitation. In the instant case, the amount of security has been paid within the period of limitation and not beyond the period of limitation. Under Section 31 of the G.P. Act, there is a provision for extending the period of limitation for sufficient ground to present the election petition. Thus, Dr. Nirmal Chandra Satpathy's case (supra) has no application to the present case.
21. The matter may be looked at from another angle. Election petitioner instead of filing the election petition on 02.03.2012 could have filed the same on 05.03.2012 when the security deposit was made. In such situation, it would not have been anybody's case that the election petition is not maintainable for non-compliance of requirement of Section 31 of the G.P. Act. Therefore, merely because the election petition was filed on 2.3.2012 and the security deposit was made on 15 5.3.2012, the election petition cannot be said to be not maintainable as the election petition was filed and the security deposit was made within the period of limitation.
22. In view of the above, this Court is of the opinion that since the election petition was presented on 2.3.2012 without security deposit which was paid on 5.3.2012 i.e. after three days of the filing of the election petition and both filing of election petition and payment of security deposit were made within the period of limitation, there is substantial compliance of Section 31 of the Orissa Grama Panchayats Act and therefore, the Election Tribunal is justified to entertain the election petition and reject the objection filed by the returned candidate.
23. In the result, the writ petition is dismissed.
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B.N. Mahapatra,J.
Orissa High Court, Cuttack The 6th December, 2012/bkb.