Karnataka High Court
Smt. Latha G. Krishna vs The Returning Officer, Dasarahalli ... on 11 July, 2003
Equivalent citations: ILR2003KAR3402, 2004 AIR - KANT. H. C. R. 90, (2003) 4 KCCR 2911
Author: Tirath S. Thakur
Bench: Tirath S. Thakur
JUDGMENT Tirath S. Thakur, J.
1.This Miscellaneous First Appeal calls in question the correctness of an order passed by the VIth Addl City Civil Judge at Bangalore, whereby E.P.No. 12/2001 filed by the appellant before the said Court has been dismissed on the ground that the same has not complied with the provisions of Rule 69 of the Karnataka Municipalities (Election of Councilors) Rules, 1977.
2. Election to ward No. 34 of Municipal Council Dasarahalli was held on 23-7-2001. 7 candidates were in the fray including the appellant and respondent No.4 the latter having been eventually declared elected. Election Petition No 12/2001 was filed by the appellant before the VI Addl. City Civil Judge, Bangalore, challenging the validity of the election of respondent No. 4 on the ground that she was not qualified to contest the election against the seat reserved for backward class candidates since her husband was an income tax assessee. During the pendency of the said petition, an application under Order 7 Rule 11 was filed by the respondents for rejection of the petition on the ground that the same disclosed no cause of action and in particular because the petitioner had not complied with the provisions of Rule 69 of the Karnataka Municipalities (Election of Councillors) Rules, 1977. The application alleged that the petitionerappellant herein had not deposited the prescribed fees towards .security of costs. for filing the election petition in the manner and the mode prescribed under the Rule aforementioned. The deposit of the amount as contemplated under Rule 69 being mandatory, any failure on the part of the petitioner to comply with the said requirements rendered the petition liable to be dismissed. That contention has found favour with the Court below resulting in dismissal of the election petition. The Court has held that the appellant had failed to make a deposit in terms of Rule 69 of the Rules mentioned above which requirement being mandatory, would entail dismissal of the petition. The present appeal as noticed earlier assails the correctness of that order.
3. I have heard learned Counsel for the parties and perused the record. Rule 69 of the Karnataka Municipalities (Election of Councillors) Rules, 1977 reads as under:
"69. Fee to be paid on an election petition-
Every election petition shall be accompanied by a Government Treasury receipt showing that a deposit of one hundred rupees has been made by the petitioner either in the Reserve Bank of India or in a Government Treasury or in any Branch of the State Bank of India in favour of the Commissioner".
4. The above leaves no doubt that every election petition must be proceeded by the deposit of a fee of Rs. 100/- in the Reserve Bank of India or in a Government Treasury or in any branch of the State Bank of India in favour of the Commissioner. That the requisite amount had been deposited by the petitioner-appellant herein through his Counsel Sri M. Irappa Reddy, Advocate before the Court trying the Election Petition is not in dispute. The receipt evidencing such a deposit has been produced which proves that the deposit was made. That the deposit was made on the very day on which the election petition was presented i.e., on 23-7-2001 is also admitted. It is also clear from a reading of the receipt that the deposit has been made in connection with the Election Petition No. 12/2001 filed by the appellant. The above notwithstanding the question is whether the deposit of the fee before the Court below satisfies the requirements of Rule 69 supra and if the same does not whether the default in the mode of deposit adopted by the appellant could justify dismissal of the Election Petition. There is no direct decision of this Court or that of the Apex Court dealing with the nature of the deposit to be made in terms of Rule 69 of the Municipalities (Election of Councilor.s) Rules, 1977 or the consequence flowing from a violation of the said requirement. The decisions of the Apex Court dealing with the provisions of Sections 86 and 117 of the Representation of People Act were however cited by learned Counsel for the appellant in an attempt to show that the deposit of the amount of fee prescribed under Rule 69 may on the analogy of the provisions of Section 117 of the Representation of People Act be treated to be mandatory but not so the mode of making the said deposit. In K. KAMARAJA NADAR vs KURSUTHEVAR, 1. the receipt evidencing the deposit in terms of Section 117 of the Representation of People Act as it stood prior to its amendment showed that the deposit had been made but did not show that the same had been made in favour of the Secretary to the Election Commissioner. One of the questions that arose was whether the expression .in favour of the Election Commissioner. contained in Section 117 as it stood before amendment was mandatory in character. The Supreme Court held that the first part of Section 117 requiring a deposit to be made was mandatory but the later part which prescribed the mode of the deposit was not.
5. A similar contention was urged by Mr. Reddy, learned Counsel for respondent No. 4 before me. He argued that the deposit in the instant case was in terms of Rule 69 to be made in favour of the Commissioner whereas the amount deposited by the petitioner before the trial Court was not in favour of the Commissioner. That contention in my opinion is completely answered by the decision of the Supreme Court in K. KAMARAJA NADAR vs KURSU THEVAR.s, case supra. So long as the deposit is made, the provisions of Rule 69 must be deemed to have been satisfied. The fact that the deposit is not made in the name of the authority prescribed in the rule would be an irregularity that cannot entail the dismissal of the election petition.
6. In M. KARUNANIDHI vs H.V. HANDA, , the question that arose for consideration of their Lordship was whether deposit of the amount representing security for costs in the High Court was mandatory. The Assistant Registrar of the High Court had in that case directed that the amount of security be deposited to the credit of the Registrar of the High Court in the Reserve Bank of India. Pursuant to the said direction, the election petitioner had deposited the amount of Rs. 200/- to the credit of the Registrar of the High Court which was evidenced by Reserve Bank of India making an endorsement that it had received the cash. The contention all the same was that the provisions of Section 117(1) of the Representation of People Act and Rule 8 of the Election Petition Rules had not been complied with Rule 8 of the Election Petition Rules provided that the deposit should be made in the High Court in cash and that since no such deposit had been made, the deposit of money in the Reserve Bank of India to the credit of the Registrar cannot be construed as a compliance with the requirements of Section 117(1) of the Act. That contention was repelled by the Supreme Court. It was held that there was nothing wrong in the procedure adopted in making the deposit and that the deposit made before the Reserve Bank of India must be taken as having been made in the High Court and the challan bearing the endorsement of the Reserve Bank of India must be treated as the receipt of the Registrar. In the instant case also the contention of the respondent successful candidate was that the deposit of the amount of fee had to be made in the Reserve Bank of India or in a Government treasury or in any branch of the State Bank of India and since no such deposit had been made, the receipt of the statutory deposit by the Court itself could not suffice or validate the deposit. There is however no merit in that contention for two precise reasons. Firstly because the deposit made by the petitioner complies with the essential requirement of Rule 69. What is important is that the deposit is made by the petitioner who files the petition. Such a deposit could be either before the Reserve Bank of India, Government treasury or in any branch of the State Bank of India. But the very fact that instead of making the deposit before any one of these three agencies, the deposit was made by the petitioner before the Court itself would not render the deposit bad. The mode of making the deposit is different from the deposit itself, the former being a procedural matter which must be deemed to be directory in character in the light of the decisions of the Supreme Court referred to earlier. Secondly because if the deposit was not to be taken as valid for the purpose for which it was being made, the Court ought to have turned down the request for the making of such a deposit. Instead of doing so, the Court appears to have received the deposit and acknowledged the same by issuing a receipt. It is fairly well settled that no litigant can be made to suffer for the fault of the Court. The acceptance of the deposit by the Court was sufficient to create a bonafide impression in the mind of the petitioner that the deposit made by her was valid and that the same satisfied the requirements of the Rules making it unnecessary for her to rush to any other quarter or attempt a deposit elsewhere.
7. In M.Y. GHORPADE vs SHIVAJI RAO M POAL AND OTHERS, , the Election Petition filed under Section 81 of the Representation of People Act challenged the election of the successful candidate. The said candidate applied to the High Court for dismissal of the Election Petition under Section 86 of the Act alleging non- compliance with Section 117 as deposit of Rs. 200/- by way of security of costs had been made in the High Court by a person other than the election petitioner. It was contended that Section 117 of the Representation of People Act required that the deposit shall be made in the High Court by the petitioner in accordance with the Rules of the High Court. The High Court inquired into the factual aspect and came to the conclusion that the deposit had been made by the election petitioner and that the provisions of Section 117 of the Act stood duly complied with. Before the Supreme Court, the question debated was whether the deposit could be treated to be in compliance with Section 117 of the Act. It held that the purpose underlying the deposit of security of costs was to discourage filing of frivolous election petitions and making provisions for costs in favour of the parties who ultimately succeed in the same. Seen in that light, the deposit of security was mandatory so that failure to comply with the said requirement would entail the dismissal of the petition under Section 86(1) of the Act. The mode of deposit as well as the person who could make the deposit was however a matter that was prescribed by the Rules of the High Court, have directory in nature. The following passage from the said decision is in this regard instructive.
"Section 117 of the RP Act requires deposit of Rs. 2000/- as security for the cost which has to be made at the time of presenting an election petition. The object of having the aforesaid provision could be to discourage entertaining frivolous election petitions and to make provision for cost in favour of the parties who ultimately succeed in the election petition. Sub-Section (2) of Section 117 authorises the High Court to call upon an election petitioner during the course of the trial of an election petition, to give such further security which may be necessary, depending upon the facts and circumstances of the case. It would, therefore, be apparent 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. If the High Court comes to the conclusion that the election petition had not complied with the provisions of Section 117, then that election petition has to be dismissed under Section 86(1). 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, as such the same is directory."
8. A division bench of this Court in S. SHEKAR vs COMMISSIONER/RETURNING OFFICER, BANGALORE CITY CORPORATION, AIR 1999 KAR 174 was also dealing with a somewhat similar situation. That was a case where the election of the successful candidate as a Councilor to Bangalore City Corporation had been assailed. Rule 70 of the Rules framed under the Karnataka Municipalities (Election of Councilors) Rules, 1977 requires that every election petition under Section 33 shall be accompanied by a deposit of Rs. 200/- as security of costs. The deposit in that case was made not on the date the petition was presented but on the day following such presentation. The question was whether the provisions of Rule 70 could be treated as mandatory. The division bench answered the same in the affirmative. It was held that the requirement of Rule 70 was analogous to the requirements of Section 117 of the Representation of People Act and since the later provision has been interpreted by the Supreme Court to be mandatory, the provisions of Rule 70 of the Rules under the Karnataka Municipalities (Election of Councilors) Rules, 1977 must also be similarly treated as mandatory. Failure to make a deposit was therefore held to be fatal to the proceedings no matter the Act did not contain any provision analogous to Section 86(1) of the Representation of People Act providing for dismissal of election petition for non-compliance of certain provisions of the said Act.
9. It was contended by Mr. Reddy that the ratio of the above decision could be applied to the instant case also in as much as Rule 70 of the Rules under the Corporations Act was analogous to Rule 69 of Karnataka Municipalities (Election of Councilors) Rules, 1977. The argument is on its face value attractive but not equally sound. Rule 70 of the Rules framed under the Municipal Corporations Act prescribed a deposit as security of costs in the same fashion as Section 117 of the Representation of People Act prescribed it for election under the said Act. The division bench was therefore impressed by the similarity in the two provisions which led the Court to hold that a provision stipulating a deposit as security of costs in the Municipal Corporations Rules must on the analogy of Section 117 of the Representation of People Act be held to be mandatory no matter there was no provision analogous to Section 86(1) of the Representation of People Act making non-compliance with a deposit under Section 117(1) fatal to the maintainability of the petition. In the instant case, however, the deposit prescribed is not for .security of costs. as is the position under Section 117 of the Representation of People Act and Rule 70 of the Karnataka Municipality Corporation Rules. The requirement of Rule 69 of the Karnataka Municipalities (Election of Councilors) Rules, 1977, is somewhat different. It prescribes a requirement for deposit of a fee and not a deposit towards security of costs. The term fee has a known legal connotation. The .Fee. is materially different from a tax and so also should it be different from a deposit which is meant only to provide security of costs that may be awarded to the successful party. This is evident from the provisions of the Rules which do not envisage utilisation of the deposit made under Rule 69 for purposes of awarding costs to the successful party. The result is that the deposit made under Rule 69 will be a deposit of fee simplicitor that cannot be equated with a deposit for security of costs. There is therefore no similarity between the provisions of Rule 69 on the one hand and those of Rule 70 of Rules under the Corporation Act and Section 117(1) of the Representation of People Act on the other. The division bench decision of this Court would not therefore have any direct application to the case at hand.
10. There is one more aspect that needs to be noticed at this stage. The requirement of a deposit towards fee on an election petition is prescribed by Rule 69 alone. The Karnataka Municipalities Act does not either prescribe any such deposit nor does it make default in compliance with Rule 69 fatal to the election petition. The absence of any provision either in the Act or in the Rules providing for the consequence of the default renders the provision regarding deposit directory. It is fairly well settled by the decisions of the Supreme Court that where the consequence of a non-compliance with the provisions are not prescribed, the provision may be held to be directory in nature. The mere use of word .shall. could not in such cases make the provision mandatory so as to render violation thereof sufficient to result in the action itself being annulled.
11. Reference in this connection may be made to KUMARANAND vs BRIJ MOHAN LAL, . That was a case where an appeal filed against the order passed by the Election Tribunal under the Representation of the People Act, 1951, as it then stood was not accompanied by a receipt showing that a deposit of Rs. 500/- had been made in favour of the Election Commission. The appellant had instead tendered the amount in the Office of the Registrar of the High Court which amount was duly accepted and credited in the name of the appellant as security deposit. At the hearing of the appeal, it was contended by the respondent interalia that the appellant had failed to enclose with the memorandum of appeal a Government Treasury Receipt showing that a deposit of Rs. 500/- had been made by him in favour of the Election Commission as security of the costs of the appeal. This failure, it was contended rendered the appeal not maintainable. The High Court had accepted that contention and dismissed the appeal as incompetent. The Supreme Court on a further appeal, reversed the view taken by the High Court. The Court observed:
"The failure to comply with the requirements of Section 119- A does not necessarily result in the dismissal of the appeal, for the Act imposes no express penalty for non- compliance with the requirements of that section. The Court had therefore jurisdiction having regard to the circumstances, either to permit rectification of the mistake, or to decline to proceed with the appeal which did not comply with the statutory requirements in the present case the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation of the appeal which contributed to the irregularity of the procedure adopted by the appellant."
12. Reference may also be made to GANESH PRASAD SAH KESARI AND ANOTHER vs LAKSHMI NARAYAN GUPTA, , STATE OF U.P., vs MANBODHAN LAL SRIVASTAVA, , and JAGANNATH vs JASWANT SINGH AND OTHERS, , where the Court observed:
"It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices. In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected."
13. The decisions of the Supreme Court in K. KAMARAJA NADAR vs KURSU THEVAR, M. KARUNANIDHI vs H.V. HANDA and M.Y. GHORPADE vs SHIVAJI RAO M. POAL AND OTHERS (Supra) referred to earlier deal with provisions of Section 117 of the Representation of People Act and declare them to be mandatory as the consequence of the violation of the said provision prescribed by Section 86 of the Act leaves no option but to treat the provisions regarding deposit mandatory. If the non-making of the deposit under Section 117 can be a ground for dismissal of the election petition under Section 86, it would be difficult to see how deposit under Section 117 could be said to be directory. The absence of any provision in the Act and the Rule with which we are dealing in the instant case providing for the consequence of violation of Rule 69 therefore places the present case on an entirely different footing. The making of the deposit may itself be said to be directory in nature since there is no provision which prescribes the consequences for non-deposit. That does not however necessarily mean that the Court dealing with an election petition under the Municipalities Act cannot insist upon the making of a deposit in terms of Rule 69 or that the deposit under the said provision becomes discretionary or optional. The provisions of a Rule that prescribe the procedure for filing and trial of election petitions even when the same is directory has to be followed and the Court trying any such election petition would be entitled to insist upon compliance even with a directory provision of the Rules that regulate the trial before it. There is however a difference between enforcing a directory provision because it is statutory in character and treating the violation of such a provision as fatal on the ground that the provision is mandatory. Suffice it to say that even if the provisions of Rule 69 are held to be mandatory they can be so only in so far as the essence of the requirement prescribed by the said rule is concerned. The essence of the requirement is that a deposit towards fee must be made. The mode of the making of the deposit would be entirely inconsequential, as it cannot be anything but directory. Indeed if the mode of making the deposit under Section 117 of the Representation of People Act has been held to be directory, it is difficult to see how the mode of deposit in the case of Rule 69 can be said to be mandatory. It is noteworthy that the election petitioner had paid in addition to the deposit of Rs. 200/- a Court fee of Rs. 200/- in the form of adhesive stamps. If fee has an element of quid pro quo, the payment of Court fee had taken care of that requirement. It is difficult to discover the rationale underlying the deposit of a fee of Rs. 200/- over and above the Court fee of Rs. 200/- already paid by the petitioner. That aspect need not however detain us for the election petitioner had without questioning the wisdom of Rule 69 requiring deposit made a deposit of Rs 200/- on the date he presented the election petition. That deposit before the Court trying the election petition was in my opinion a substantial compliance with the provisions of Rule 69. The trial Court was in error in holding otherwise.
14. In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the trial Court is set aside and the matter remanded back to the said Court to proceed with the trial of the petition on its merit. In the circumstances of the case, there shall be no orders as to costs.