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1965 DIGILAW 397 (KER)

SANKARAN NAIR v. GOVINDA PILLAI

1965-12-16

K.K.MATHEW

body1965
Judgment :- 1. The petitioner was declared as duly elected member from Kannenkode, Ward No. V, of the Panchayat in question, and he was thereafter elected as the President of the Panchayat. The 1st respondent who is a voter borne on the electoral rolls of Ward No. V filed a petition to set aside the election. The petition was filed before the Munsiff of Attingal, by presenting it to the Head Clerk of the Munsiff's Court there. It was numbered as Election Petition No. 3 of 1963. The petition was not accompanied by a Government treasury receipt showing that a deposit of Rs. 50/- has been made by the petitioner in a Government treasury in favour of the Munsiff as security for the costs of the petition. Sub-rule (1) of R.25 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963, reads as follows: "The petitioner shall enclose with the petition a Government Treasury Receipt showing that a deposit of fifty rupees has been made by him in a Government Treasury in favour of the Munsiff as security for the costs of the petition." and sub rule (8) of R.5 runs as follows: "If the provisions of sub-rules (1), (2), (3), (4), (5) or (6)of this rule or sub-rule (1) of R.25 are not complied, the Munsiff shall dismiss the petition." The 1st respondent deposited an amount of Rs. 50/-in the treasury to the credit of the District Munsiff, Attingal, as per chalan No. 350 dated 13-12-1963. The petitioner entered appearance and filed an objection contending that the petition was not maintainable for want of compliance with the relevant rules. The petitioner moved another petition for deciding the question of the maintainability of the petition in the first instance. The learned Munsiff by his order under attack decided that the election petition is maintainable and has posted the petition for trial on merits. 2. This writ petition questions the validity of the order on two grounds: (1) that the election petition has not been presented to the Munsiff as persona designata, and (2) that since the election petition was not accompanied by a chalan receipt showing that Rs. 50/-has been deposited in favour of the Munsiff, the petition should have been dismissed. 3. 2. This writ petition questions the validity of the order on two grounds: (1) that the election petition has not been presented to the Munsiff as persona designata, and (2) that since the election petition was not accompanied by a chalan receipt showing that Rs. 50/-has been deposited in favour of the Munsiff, the petition should have been dismissed. 3. As regards the first question I am of opinion that the petition has been delivered to the Munsiff although it has been presented to the Head Clerk of the Court. I have considered this question in O.P. No. 1985 of 1964 (1965 KLT.1018) and there, I have held that the presentation of the petition to the Head Clerk as ministerial agent of the Munsiff was actual delivery to the Munsiff himself and that such a presentation was valid. 4. As regards the second point, it was argued on behalf of the petitioner that compliance with R.25 was mandatory, that the consequence of non compliance with that rule has been specified in R.5 (8) and therefore it was the duty of the Munsiff to have dismissed the petition when he found that the election petition was not accompanied by a treasury receipt showing that a deposit of Rs. 50/-has been made in the Government treasury in favour of the Munsiff as security for the costs of the election petition. In this connection the relevant provisions of the Representation of the People Act, 1950 may be noted. S.117 of that Act reads as follows: "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. 90(3) of the above Act corresponds to R.5 (8) of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963. In Jagan Nath v. Jaswant Singh (AIR. 1954 SC. 210) it was held: " The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. 1954 SC. 210) it was held: " The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it." In K. Kamaraja Nadar v. Kunju Thevar AIR. 1958 S. C. 687 it was said that in order to decide the question whether a petition should be dismissed under S.90 (3) of the Representation of the People Act, it has first to be considered whether the provision which has not been complied with is mandatory or directory. The relevant portions in Para.30 and 31 of the report are quoted below: "Turning now to S.117. we find that it is a provision relating to the deposit of security for the costs of the petition. When a petitioner presents an election petition to the Election Commission under S.81 he is to enclose with the petition a Government treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. The Government treasury receipt must show that such deposit has been actually made by him either in a Government treasury or in the Reserve Bank of India; it must also show that it has been so made in favour of the Secretary to the Election Commission, and it must further show that it has been made as security for the costs of the petition. These are the three requirements of the section which have to be fulfilled. These are the three requirements of the section which have to be fulfilled. The question, however, arises whether the words 'in favour of the Secretary to the Election Commission' are mandatory in character so that if the deposit has not been made in favour of the Secretary to the Election Commission as therein specified the deposit even though made in a Government treasury or in the Reserve Bank of India and as security for the costs of the petition would be invalid and of no avail. If, for instance, the petitioner made the deposit either in a Government treasury or in the Reserve Bank of India in favour of the Election Commission itself and obtained a Government treasury receipt in regard to the same, could it be contended that in spite of such a deposit having been made, the said Government treasury receipt was not in conformity with the requirements of S.117 and the petitioner could be said not to have complied with the requirements of that section so as to involve a dismissal of his petition under S.85 or S.90 (3)? What is of the essence of the provision contained in S.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 a 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." In Babu Ram v. Smt. Prasanni AIR. 1959 S. C. 93 it was held that if a consequence is prescribed for failure to comply with the conditions prescribed by S.117 of the Representation of the People Act, then that consequence must follow and the question whether the provision not complied with is mandatory or directory does not arise for consideration. 5. 1959 S. C. 93 it was held that if a consequence is prescribed for failure to comply with the conditions prescribed by S.117 of the Representation of the People Act, then that consequence must follow and the question whether the provision not complied with is mandatory or directory does not arise for consideration. 5. I am of opinion that if there is non-compliance with a provision which is substantial in character and if a consequence is prescribed for the failure to comply with that provision then that consequence must follow. As the Government treasury receipt did not accompany the petition, it has to be held that the petition was defective and that the consequence envisaged in R.5 (8) must follow. I quash the order of the election tribunal and allow the petition. There will be no order as to costs. Allowed.