Allahabad High Court
Arun Kumar Son Of Sri Ram Sharan vs The Prescribed Authority/Sub ... on 7 March, 2007
Equivalent citations: 2007(3)AWC2613, AIR 2007 (NOC) 1495 (ALL.) = 2007 (3) ALJ 147, 2007 (3) ALJ 147
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Sri S.P. Singh learned Counsel for the petitioner and Sri Vikrant Pandey and Shaildema Awasthi learned Counsel appearing for the respondents.
2. By this writ petition the petitioner has prayed for quashing the order dated 2.2.2007 passed by the learned District Judge dismissing the revision filed by the petitioner and the order dated 4.1.2007 passed by the Prescribed Authority rejecting the application filed by the petitioner dated 9.11.2006 for dismissing the Election Petition.
3. The respondent No. 2 Hari Om filed an Election Petition Under Section 12(c) of the U.P. Panchayat Raj Act, 1947 challenging the election of the petitioner dated 28.8.2005 for the office of Pradhan, Gram Panchayat Mohanipur, Tahsil Sardhana, District Meerut. Written statement was filed by the writ petitioner, the petitioner moved an application dated 9.11.2006 praying that the issue No. 2 i.e. whether the Election Petition is maintainable? be decided before deciding the other issues. The averments in the application were that in paragraph 20 it has been pleaded that the amount of security is not deposited,in the account in accordance with the rules nor any receipt has been produced by the election petitioner hence the Election Petition be rejected. The said objection was replied by the petitioner. It was stated by the election petitioner that treasury challan of Rs. 100/- of security deposit has been submitted along with the Election Petition and the said issue be decided along with the other issues and the application dated 9.1.2006 be rejected. The Prescribed Authority rejected the application and observed that it is a technical flaw and due to which the Election Petition need not be dismissed. A revision was filed by the petitioner against the order of the Prescribed Authority which has been dismissed holding that the revision is not maintainable. The revisional court held that the order of the Prescribed Authority was only as interlocutory order refusing to decide the issue as preliminary issue. The writ petition has been filed challenging the said order.
4. Learned Counsel for the petitioner challenging the order contended that there was non compliance of rule3 (1) of the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 since the election petitioner did not deposit the security amount in the personal ledger account of the Gram Panchayat hence the Election Petition deserves to be rejected. Learned Counsel for the petitioner has filed copy of Challan Form as Annexure-1 to the Supplementary affidavit. He contended that the amount was deposited in Account No. 8448 which was account of "Other funds". Learned Counsel for the petitioner further contended that the deposit not being in the personal ledger account of the Gram Panchayat, the Election Petition was liable to be dismissed. Learned Counsel for the petitioner has also placed reliance on two judgments of this Court namely, 1986-Revenue Judgments-Page 106 Ramesh Chandra Tewariu v. Vth Additional District Judge, Basti and Ors. and 1997 (88) RD, 380 Yashwant Singh Yadav v. The Prescribed Authority and Anr.
5. Learned Counsel for the respondents refuting the submissions of counsel for the petitioner contended that the security amount was deposited by treasury challan and the amount was mentioned as security for the Election Petition of village Mohinipur in the Treasury. Learned Counsel for the respondents contended that the deposit being there, the petition cannot be dismissed as there being substantial compliance. Learned Counsel for the respondents has relied on the judgment of the apex Court Shaik Saidulu Alias Saida v. Chukka Yesu Ratnam and Ors. for the proposition that the remedy provided under a statute cannot be defeated under the cloak of technicalities by adopting a hyper-technical approach.
6. I have considered the submissions of counsel for the parties and perused the record.
7. This writ petition raises an issue regarding interpretation of Rule 3 (1) of 1994 Rules. The treasury challan of Rs. 100/- as security deposit has been filed by the election petitioner. The submission is that the said deposit not being in personal ledger account of the Gram Panchayat there is non compliance of Rule 3(1) proviso and the Election Petition is liable to be dismissed due to non compliance. Submission is that Rule 3(1) proviso is mandatory and the non compliance of which is fatal. Rule 3(1) of 1994 Rules, is as follows:
Rule 3(1) All application under Sub-section (1) of Section 12-C of the Act shall be presented before the Sub Divisional Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground.
Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security.
8. The proviso mandate that no Election Petition shall be entertained unless it is accompanied by treasury challan to show that the amount of Rs. 50/- is deposited in the personal ledger account of the Gram Panchayat concerned. Deposit of security and filing it along with the Election Petition is a condition precedent for entertainment of the Election Petition. The question is that if security amount has been deposited and the treasury challan has been annexed with the petition, the Election Petition can be refused to be entertained on the ground that the said deposit is not in personal ledger account of the Gram Panchayat. The security deposit for filing the Election Petition is a must which provision is contained in several statutes providing for filing the Election Petition. Section 117 of the Representation of People Act, 1951 also is to the similar effect. Section 117(1) of the Representation of People Act is quoted below:
117. Security for costs_ (1) 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.
9. Prior to 1994 rule U.P. Panchayat Raj Rules, 1947 contained Rule 24 which provided for deposit of security which has been amended after enforcement of 1994 Rules. Rule 24 of the U.P. Panchayat Raj Rules, 1947 came for consideration before this Court. The question which arose in that case was also the effect of not crediting the amount of security in the correct Head i.e. personal ledger account of the Gram Panchayat. The order of the Prescribed Authority dismissing the Election Petition on the above ground was set aside by the revisional court which revisional order was under challenge before the High Court. The High Court remanded the matter to record finding as to whether there has been substantial compliance of the provision of Rule 24. Thus in Ramesh Chandra Tewari's case (supra) also the Court was of the view that the substantial compliance of the provision may save the Election Petition from being dismissed for non compliance. The said judgment being judgment remanding the matter for necessary finding does not help the petitioner in the present case since no such proposition was laid down that the writ petition is liable to be dismissed if there is no strict compliance of Rule 24.
10. Another judgment referred by the counsel for the petitioner in Yashwant Singh Yadav v. The Prescribed Authority and Anr. (supra) is a case which is more or less of similar fact. In the said case the deposit of treasury challan was not made in the personal ledger account of the Gram Panchayat rather it was made in the personal account No. 8443 of District Gaon Fund. The Prescribed Authority decided the preliminary issue holding that since the security was deposited it was not feasible to dismiss the Election Petition. The order of the Prescribed Authority was challenged in the High. Court. Following was held by this Court in paragraphs 5 and 7:
5. 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 Shamsher Singh v. 7th Additional District Judge, Varanasi and Ors., 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 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.
7. In the instant case, the treasury challans (Annexures 4 and 5) clearly denote that the amount was deposited towards security of the election petition and it is stated in para 25 of the election petition that the Personal Ledger Account of the Gram Panchayat concerned had not been opened up to that date. That being the position the decision in Ramesh Chandra Tewari (supra) does not help the petitioner for in that case also it was held that in such eventuality substantial compliance of the Rule would save the petition from being dismissed. In my opinion, the security deposit of Rs. 50/- in the Gaon Fund Account No. 8443 towards security amount for the purposes of election petition would be understood to be a deposit in the Personal Ledger Account of the Gram Panchayat concerned in that there is nothing to indicate that account No. 8443 mentioned in the Treasury Challan is not the Personal Ledger Account of the Gram Panchayat concerned. Mere fact that the expression " Personal Ledger Account" is not prefixed to figure 8443' in the treasury challans, would not be fatal and would not lead to non-compliance of the requirement of Rules 3 and 4 of the Rules aforesaid particularly because the purpose of deposit is unambiguously mentioned therein. The view taken by the Prescribed Authority does not wear the taint of any infirmity and hence, the petition being shorn of merit, is liable to be dismissed.
11. The issue arising in this writ petition is fully covered by the judgment of the apex Court in M.Karunanidhi v. H.V. Handa and Ors. Section 117(1) of the Representation of People Act as quoted above came for consideration before the apex Court. In the case before the apex Court security deposit of Rs. 2000/- was made but the said deposit was made by a treasury Challan in Reserve Bank of India to the credit of Registrar High Court. The question raised was that the amount having not been deposited in the High Court there is non compliance of Rule 117 and the writ petition was liable to be dismissed. The apex Court after considering the submission laid down that the requirement of deposit of Rs. 2000/- is mandatory and non compliance of it must entail dismissal of the writ petition. However, the deposit in the High Court in accordance with the rules ofthe High Court is clearly directory. Following was laid down by the apex Court in paragraph 19:
19. The submissions advanced by learned Counsel for the appellant cannot be accepted as they proceed on the assumption that no distinction can be drawn between the requirement as to the making of a deposit in the High Court under Sub-section (1) of Section 117 and the manner of making such deposit. There was considerable emphasis laid by learned Counsel that Sub-section (1) of Section 117 cannot be dissected into two parts, one part being treated as mandatory and the other as directory. The contention is wholly misconceived and indeed runs counter to several decisions of this Court. It is always important to bear the distinction between the mandatory and directory provisions of a statute. Sub-section (1) of Section 117 is in two parts. The first part of Sub-section (1) of Section 117 provides that at the time of presenting an election petition , the petitioner shall deposit in the High Court a sum of Rs. 2000/- as security for the costs of the petition and the second 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-section (1) of Section 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. As Maxwell on the Interpretation of Statutes, 12th Edn. At p. 314 puts it" "An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." The rule of construction is well settled and we need not burden the judgment with many citations.
12. Thus following the same analogy Rule 3(1) proviso in so far as it provides that the election petition shall not be entertained unless it is accompanied by the treasury challan to show that the amount of Rs. 50/- has been deposited is mandatory whereas the manner of deposit cannot be said to be mandatory failure of which may entail dismissal of the election petition. In case the deposit is shown for the purposes of the election petition for the Gaon Sabha in question substantial compliance is fully proved and the election petition need not be dismissed on the ground that the deposit is not in the particular account i.e. personal ledger account of the Gaon Sabha. The petitioner himself has filed treasury challan by which the amount was deposited in the State Bank of India by the petitioner for the purposes of election petition of village Mohinipur. The aforesaid deposit clearly makes out substantial compliance of Rule 3 and the election petition is fully entertained on the strength of such deposit.
13. In view of forgoing discussions I do not find any infirmity in the order of the Prescribed Authority and of the revisional court. However, since the learned Counsel for the petitioner has made submission on merits of the above issue the same has been decided. The election petition filed by the respondent is not liable to be dismissed on the ground of non compliance of Rule 3(1) proviso as contended by the counsel for the petitioner. There is no merit in the writ petition. The writ petition is dismissed.