Birdha v. Ranchhordas — 1964 DIGILAW 187 (RAJ)

JAGAT NARAYAN, J.—This is an appeal by one Birdha whose election petition filed under sec. 34 of the Rajasthan Municipalities Act 1959 challenging the election of Ranchhor Das to ward No. 2 of Merta Municipality has been dismissed by the Civil Judge, Merta under sec. 44(3) on the ground that he failed to comply with the provisions of sec. 53(1) inasmuch as the treasury receipt was not enclosed along with the petition. 2. A preliminary objection has been taken on behalf of Ranchhordas that this appeal is not competent as the treasury receipt showing that a deposit of Rs. 100/-has been made by the appellant in the Government treasury in favour of the High Court as security for the cost of the appeal was not enclosed with the memorandum of appeal. 3. It was alleged on behalf of Birdha before the learned Civil Judge that the Government treasury receipt was enclosed with the petition and it has also been alleged on his behalf before me that the Government treasury receipt was enclosed with the memorandum of appeal. Both these deposits were made as civil court deposits. 4. The current procedure for making such deposits is this. The person wanting to make a deposit presents a tender in triplicate in accordance with r. 255 of the General Rules (Civil) and r. 820 of the High Court (Rules). The tender is presented before the Munsarim of the subordinate civil court concerned. In the case of the High Court the tender is to be presented before the Deputy Registrar (Judicial). Cash is not accepted either in the subordinate courts or in the High Court. 5. Cash challans are then prepared in triplicate in the form prescribed under the Treasury Manual and are handed over to the person desiring to make payment. He takes them to the treasury and after the money is deposited one of these forms is given back to him along with the receipt for the money. He takes this treasury challan containing the receipt to the office. Thereupon the tender forms handed over by him originally in the office are completed. One is handed over to the person who makes the deposit, one is kept on the record of the case and one is kept in the office. The treasury challan containing the receipt (this is referred to as the treasury receipt) is also retained in the office. 6. One is handed over to the person who makes the deposit, one is kept on the record of the case and one is kept in the office. The treasury challan containing the receipt (this is referred to as the treasury receipt) is also retained in the office. 6. In accordance with the above procedure only one part of the tender was kept on the file of the election petition when it was transferred by the District Judge to the court of the Civil Judge. The treasury receipt showing that the deposit of Rs. 100/- had been made was retained by the District Judge in his office. When a preliminary objection was raised against the maintainability of the election petition on the ground th$,t there was non-compliance of the provision contained in sec. 53(1) then this treasury receipt was sent for. This treasury receipt goes to show that the required deposit was made in the treasury by the election petitioner on 6.1.64 namely the date on which he filed his election petition. There is an order by the District Judge bearing the date 6.1.64 on the treasury receipt to the effect that it should be kept on the file concerned. This shows that the treasury receipt was filed on 6.1.64. There is also a report by the clerk concerned on the back of the election petition to the effect that the necessary security deposit had been made by the petitioner. 7. The allegation made by the election petitioner was that he filed the treasury receipt along with the election petition, but that it was removed subsequently from the file of the election petition, as it was needed by the Accounts Section of the District Judges office for accounts purposes. The learned Civil Judge did not believe this allegation. He held that as the treasury receipt was not enclosed with the election petition there was non-compliance of sec. 53 within the meaning of sec. 44(3). He accordingly dismissed the election petition. 8. So far as the appeal is concerned the original tender presented by the appellant is on the file of the appeal, but the treasury receipt is not on the file. The tender goes to show that the deposit was made in the treasury on 30.4.64. 53 within the meaning of sec. 44(3). He accordingly dismissed the election petition. 8. So far as the appeal is concerned the original tender presented by the appellant is on the file of the appeal, but the treasury receipt is not on the file. The tender goes to show that the deposit was made in the treasury on 30.4.64. The treasury receipt is on the record of the Accounts Section in accordance with the usual practice followed by the office which has been referred to above by me. The memorandum of appeal was presented on 2.5.64. An affidavit was filed by the clerk of Shri Chandmal that he presented the Treasury receipt along with the memorandum of appeal. This was filed by Shri Chandmal on 8.8.64, the date on which this appeal was first heard. An objection was taken on behalf of Chhanwar Singh respondent on 25.7.64 in writing that the treasury receipt had not been filed with the memorandum of appeal, and it was in pursuance of this that the above affidavit was filed by the clerk of Shri Chandmal. 9. On behalf of the respondent it is contended that the affidavit of the clerk of Shri Chandmal should not be relied upon as the tender form on the file of the appeal goes to show that the usual procedure was followed in this case, namely, that the tender was given to the person making the deposit and the treasury receipt was retained in the Office. 10. The allegation made by the clerk is that he attached the treasury receipt with the memorandum of appeal when he presented it before the Stamp Reporter, but that latter on he was called by the cashier of the Accounts Branch of the High Court who asked him to bring the receipt of the treasury challan so that he might keep it with the record of the Accounts Branch. Further that he then took the treasury receipt to the cashier and brought the tender from him and gave it to the Stamp Reporter. This tender is on the file of the Court. It has not been explained how the cashier came to know that the clerk had filed the treasury receipt along with the memorandum of appeal. Further that he then took the treasury receipt to the cashier and brought the tender from him and gave it to the Stamp Reporter. This tender is on the file of the Court. It has not been explained how the cashier came to know that the clerk had filed the treasury receipt along with the memorandum of appeal. It seems to me that the clerk first took the treasury receipt to the cashier in accordance with the usual procedure and the latter gave him one foil of the tender duly receipted which was attached to the memorandum of appeal. This is the procedure which is usually followed in case of court deposits and the clerk would normally follow it. 11. The first preliminary objection on behalf of the respondents is that there was non-compliance of the provisions contained in sec. 55 inasmuch as the treasury receipt was not enclosed with the memorandum of appeal. 12. The entries in the treasury receipt are as follows :— (1) Name and signature of person tendering the amount ... Shri Chandmal Lodha, Advocate (2) Name and designation of person on whose behalf money is paid ... — (3) Full particulars of remittance and of authority ... S.B. Civil Misc. Municipal Election Appeal No.../64 Birdha vs. Ranchhordas Security for cost of respondent (4) Complete classification : Major and Miner Head Detailed Head ... Civil Court Deposit No. 120 Rajasthan High Court, Jodhpur (5) Accounts Officer by whom adjustable ... — (6) Amount ... Rs. 100/- The treasury challan was signed by the Chief Accountant on behalf of the Deputy Registrar, Rajasthan, High Court, Jodhpur before it was presented to the treasury. 13. The second preliminary objection on behalf of the respondents is that the treasury receipt does not show that the deposit was made in favour of the High Court. 14. Coming now to the facts of the main case no witness was examined orally on behalf of the election petitioner. Reliance was placed on the record of the case and the letter from the District Judge, Merta, dated 13.3.64 to the Civil Judge, Merta, which runs as follows :— "In the above noted election petition the petitioner had deposited a sum of Rs. 100/-in favour of this Court as security for costs as shown in the original Government Treasury Receipt Challan No. 186, dated 6.1.64). 100/-in favour of this Court as security for costs as shown in the original Government Treasury Receipt Challan No. 186, dated 6.1.64). The petitioner had enclosed this Government Treasury receipt along with the above election petition, but as the same was required for the purposes of accounting in the proper accounts register, it was taken by the Accounts Section on the file of Civil Court Deposit receipts. The Government Treasury Receipt (challan) is now returned for putting it back on the file of the above case pending in your Court." 15. Subsequently on 19.3.64 on the application of Ranchhor Das the learned District Judge made the following clarification of his letter dated 13.3.64 : — "The application of Shri Ranchhor Das be sent to Civil Judge, Merta who is trying the election petition. Letter No.230, dated 13.3.64 was sent by me on the verbal report of Shri Sukhdeo Prasad, Accounts clerk of District Court Merta. I have got no personal knowledge. This letter was sent for information as an administrative matter. This letter, therefore, be not considered as proof of any fact. The application of Birdha applicant on which order and the report of the office exists be also sent to Civil Judge, Merta." Neither the letter of the District Judge nor the subsequent clarification made by him can be treated as evidence in the case as the learned District Judge was not examined as a witness. 17. In order to rebut the allegation made by the election petitioner Ranchhor Das appeared as a witness. He filed a copy of the election petition bearing the signature of the lawyer of the election petitioner in which the particulars of the challan and the tender which are contained in para 9 of the election petition which is on the record are not entered. This paragraph runs as follows :— ^^;g gS fd gLc dkuwu :- 10@& ds dksVZ Qh LVsEil lkFk isk gS o gLc /kkjk 53 vkj-,e- ,DV] 1959 ds :- 100@& crkSj Security of cost ds Government treasury esa tek djk;s tk pqds gSa ftldh jlhn lkFk isk gSA ¼jlhn ua- 186 rkjh[k 6-1-64 Bank of Bikaner and Jaipur, Branch Merta City Tender No. 241, dated 6.1.64 Hkh lkFk gSA½ 18. He also stated that he inspected the file on 19.2.64 and 25.2.64 but the challan was not on the record of the election petition. He also stated that he inspected the file on 19.2.64 and 25.2.64 but the challan was not on the record of the election petition. He did not however say that when he inspected the file paragraph 9 of the petition did not contain the number of the treasury receipt and the number of the tender. 19. It is therefore clear that before the election petition was presented in court it contained the number of the treasury receipt as well as the number of the tender. There can be no doubt that he had deposited the money by way of security in the Bank of Bikaner and Jaipur and had obtained the treasury receipt and filed it in the office of the District Judge either along with the election petition or before the presenting of the election petition. For as I have already pointed out above, alter the deposit is made, the treasury receipt is handed over in the office and one foil of the tender is attached to the file. 20. Having heard the learned counsel for the parties I am satisfied that neither the preliminary objection taken before the learned Civil Judge nor the two preliminary objections taken before me have any force. 21. Secs. 53(1), 44(3) and 55 of the Rajasthan Municipalities Act 1959 run as follows : — Sec. 53(1).—"A person filing an election petition shall enclose with the petition a Government treasury receipt showing that a deposit of two hundred rupees in the case of a city or of one hundred rupees in the case of any other municipality has been made by him in a Govt. treasury in favour of the Judge as security for the costs of the petition." Sec. 44(3).—"The Judge shall dismiss an election petition which does not comply with the provisions of sec. 36 or sec 37 or sec. 53" Sec. 55—Security for costs of appeal—Every person who prefers an appeal under sub-sec. (1) of sec. 46 shall enclose with the memorandum of appeal a Government treasury receipt showing that a deposit of one hundred rupees has been made by him in the Government treasury in favour of the High Court as security for the costs of the appeal." 22. They: correspond to secs. (1) of sec. 46 shall enclose with the memorandum of appeal a Government treasury receipt showing that a deposit of one hundred rupees has been made by him in the Government treasury in favour of the High Court as security for the costs of the appeal." 22. They: correspond to secs. 117, 85 and 119-A of the Representation of the People Act; 1951, as they stood in 1958: Sec. 117.—Deposit of Security.— The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of two thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the petition." Sec. 85—Procedure on receiving petition.—"If the provisions of sec. 81 or sec. 82 or sec. 117 have not been complied with, the Election Commission shall dismiss the petition : Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard." Sec. 119-A—Security for costs of appeal —Every person who prefers an appeal under Chapter IV-A shall enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the appeal." 23. In K. Kamraja Nadar vs. Kanju Thevar(I) interpreting secs. 117 and 85 of the Representation of the People Act 1951 their Lordships of the Supreme Court held that the words "in favour of the Secretary to the Election Commission" used in sec. 117 were directory and not mandatory. They observed :— "What is of the essence of the provision contained in sec. 117 and 85 of the Representation of the People Act 1951 their Lordships of the Supreme Court held that the words "in favour of the Secretary to the Election Commission" used in sec. 117 were directory and not mandatory. They observed :— "What is of the essence of the provision contained in sec. 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in Government Treasury or in the Reserve Bank of India is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else." 24. So far as the sec. 53 is concerned what is essential is that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a receipt that such a deposit has been made by him in the Government Treasury and is at the disposal of the Judge as security for the costs of the petition. The receipt evidencing the deposit may be either in the form of a treasury receipt or in the form of a tender duly receipted by the officer of the Court and authorised to do so. As I have held above the election petition was either accompanied by the treasury receipt or by the tender which was receipted by the officer of the Court after receiving the treasury receipt from the petitioner. There was thus substantial compliance of the provision contained in sec. 53(1) about the deposit of security of costs. 25. So far as section 55 is concerned, the above reasoning is equally applicable. As I have held above the memorandum of appeal was accompanied by the tender duly receipted by the officer of the Court to whom treasury receipt had been delivered on behalf of the appellant. There was substantial compliance with the provision of section 55 also. 26. 25. So far as section 55 is concerned, the above reasoning is equally applicable. As I have held above the memorandum of appeal was accompanied by the tender duly receipted by the officer of the Court to whom treasury receipt had been delivered on behalf of the appellant. There was substantial compliance with the provision of section 55 also. 26. It has recently been held by their Lordships of the Supreme Court in Kumaranand vs. Brijmohanlal (Civil appeal No. 644 of 1964) decided on 24.8.1964 that the provision of section 119-A of the Representation of the People Act is not mandatory as no penalty for non-compliance with it has been prescribed as has been done for non-compliace with the provision of S. 117. The decision of the Division Bench of this Court in Shri Kumaranand vs. Shri Brijmohan Lal (D. B. Election Appeal No. 93/63) decide on 25th February, 1964 which was relied upon by the respondents was set aside. 27. Although penalty has been prescribed for non-compliance of section 53 under section 44(3) no such penalty has been prescribed for the non-compliance of the provision of section 55. The provision of this section is therefore directory. All that is necessary is that a treasury receipt showing that the required deposit has been made in the Government Treasury in favour of the High Court as security for costs of the appeal has been made before the expiry of the period of limitation for the appeal. 28. In the first column of the treasury receipt the name and signature of the person tendering the amount is to be entered. In this column the name of Shri CM. Lodha, Advocate, was entered. In the second column the name and designation of the person on whose behalf money is paid was to be entered. In this column the name of Birdha appellant should have been entered. But it was left blank. In the third column it was clearly mentioned that the amount was deposited as security for costs of an election petition under the Municipalities Act and the names of the parties were given. In the fourth column classification of the deposit was indicated as Civil Court deposit No. 120, Rajasthan High Court, Jodhpur. Now civil court deposit No. 120 indicates the classification of the account of the Rajasthan High Court, Jodhpur. In the fourth column classification of the deposit was indicated as Civil Court deposit No. 120, Rajasthan High Court, Jodhpur. Now civil court deposit No. 120 indicates the classification of the account of the Rajasthan High Court, Jodhpur. If any deposit is made under the head "Civil Court Deposit No. 120" then the money so deposited is at the disposal of the High Court of Rajasthan at Jodhpur and no one can withdraw this money without the order of the High Court. It is the entry in the column for classification of the deposit that determines the person or authority by whose orders the money can be withdrawn, if at all. In other words, the "Head" under which the deposit is made indicates the person or authority in whose favour the deposit has been made. There is no separate column in the challan for indicating such a person or authority. 29. The deposit made on behalf of the appellant under the above challan was thus a deposit in favour the High Court as security for the costs of the appeal. The provisions of section 55 were thus substantially complied with. 30. I accordingly allow the appeal, set aside the order of the learned Civil Judge dismissing it and remand the election petition for decision in accordance with law. The costs of this appeal shall abide the final result of the election petition. The amount of security deposited in this Court shall be refunded to the appellant. 31. Let the record of the election petition be returned to the learned Civil Judge forthwith so that he may dispose of the election petition expeditiously.