Surendra Sharma v. Jagdish Sharma — 1994 DIGILAW 395 (PAT)

Judgment A. N. Chaturvedi, J. 1. This is a petition under Article 329 (B) of the constitution of India read with sections 80 and 81 of the Representation of the Pepoles Act, 1951 for setting aside the election of respondent No.1 jagdish Sharma from 246 Ghoshi Legislative Assembly Constituency and for declaring the election petitioner elected. 2. The case of the election petitioner as made out in the election petition is that by a notification published in the Bihar Gazette (Extra Ordinary) the Assembly Constituencies of Bihar State Legislative Assembly including 246 Ghoshi Assembly Constituency had been called upon to elect members for the purpose of constituting the new Legislative Assembly of the state and the various dates in January and February, 1990 had been fixed for the defferent stages of the election from the aforesaid 246 Goshi Assembly constituency. The election petitioner and several others presented their nomination papers to be candidates. As required by Sec.34 (2) of the representation of the People Act, 1951 the election petitioner deposited Rs.250/- in Government Treasury, Jehanabad. under Treasury Challan in favour of Returing Offier and attached the Treasury Challan with his nomination paper. At the time of scrutiny of the nomination papers on the 5th February, 1990 the election petitioner inspected papers of other candidates and found that none of them including respondent No.1 Jagdish Sharma and respondents 6 to 17 had made deposits of security amount as required under Section 34 of the said Act either with the Returning Officer in cash or in the Reserve bank of India or in the Government Treasury rather had deposited the required sum with the District Nazir, Jehanabad and had obtained receipt from the Nazir bearing his (Nazirs) Signature and had enclosed the same with their respective nomination papers. The election petitioner accordingly raised objection against the acceptance of the nomination papers of the candidates including that of respondent No, 1 and 6 to 17 but the Returning officer did not entartain the same. The election petitioner also filed written objection but the Returning Officer refused to receive the same and then the election petitioner approached the Collector, Jehanabad and informed him about the refusal of written objection by the Returning Officer and then the collector-cum-District Election Officer, Jehanabad directed the office to receive the written objection and the same was received by a clerk. The Returing officer accepted the deposits by respondent No.1 and 6 to 17 as valid and accordingly accepted the nomination papers of the candidates including respondent No.1 and 6 to 17. Further case of the election petitioner is that but for illegal acceptance of nomination papers of other candidates including that of respondent No.1 and 6 to 17, the election petitioner should have been declared elected uncontested after expiry of the date for withdrawal of the nomination papers but the Returing Officer declared respondent No.1 elected on 2-3-1990 and hence this election petition for the aforesaid reliefs. 3. Respondent No.1 Jagdish Shrma has filed written statement and has contested the election petition. The other respondents have neither filed written statement nor have contested the election petition. The case of the contesting respondent No.1, inter alia, is that he and other candidates had not deposited the security money with the Nazir rather had deposited the security money directly with the Returning Officer in cash before filing their nomination papers which is permissable under Sec.34 of the Representation of the Pepole Act and the Nazir had simply granted receipt as per direction of the Returing Officer and they (respondents) had attached the receipt with their nomination papers. The nomination papers were rightly and legally accepted by the Returning Officer. There was no infraction of Sec.34 of the Representation of the Peoples Act. It is also the case of the contesting respondent No 1 that the election petition is not maintainable and is fit to be dismissed. The contesting respondent in his written statement has also taken certain technical pleas but those pleas not pressed at the time of bearing and hence are not being mentioned here. 4. On the pleadings of the parties the following issues have been framed for determination in the case :- 1. Is the election petition as framed maintainable ? 2. Whether the deposit of money as required by Sec.34 of the representation of the People Act had been made by the candidates including respondent No.1 in accordance with law If not, whether the nomination papers of the candidates including that of respondent No.1 were liable to be rejected in accordance with sub-section (2) of Sec.36 of the Representation of the people Act.3. Is the election petitioner entitled to the reliefs as sought for ? 5 First of all I would like to consider and determine Issue No.2. Is the election petitioner entitled to the reliefs as sought for ? 5 First of all I would like to consider and determine Issue No.2. Sec.34 of the Representation of the People Act read thus : 34. Deposits :- (1) A candidate shall not be deemed to be duly nominated for election from a constituency unless be deposits or causes to be deposited- (a) in the case of an election from a Parliamentary constituency, a sum of five hundered rupees or where the candidate is a member of a Scheduled Caste or Scheduled Tribe, a sum of two hundered and fifty rupees; and (b) in the case of an election from an Assembly or Council constituency, a sum of two hundered and fifty rupees or where the candidate is a member of a Scheduled Caste or scheduled Tribe, a sum of one hundered and twenty-five rupees ; provided that where a candidate has been nominated by more than one nomination paper for election in the same constituency, not more than one deposit shall be required of him under this sub-section. (2) Any sum required to be deposited under sub-section (1)shall not be deemend to have been deposited under that sub-section unless at the time of delivery of the nomination paper (under sub-section (1) or, as the case may be, subsection (1a)of section 33) the candidate has either deposited or caused to be deposited that sum with the returning officer in cash or enclosed with the nomination paper a receipt showing that the said sum has been deposited by him or on his behalf in the Reserve Bank of India or in a Government Treasury. Sec.36 of the Representation of the Peoples Act read as follows :-36. Scrutiny of nominations- (1) On the date fixed for scrutiny of nominations under Sec.30, the candidiates, their election agents, one proposer of each candidate, and one other person duly authorised in writing by each candidate, but no other person, may attend at such time and place as the returning officer may appoint ; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Sec.33. (2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion after such summary enquiry, if any, as he thinks necessary, (reject) any nomination on any of the following grounds :- (a) (that on the date fixed for the scrutiny of nominations of candidate) either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable, namely :-Articles 84, 102, 173 and 191, (Part II of this Act, and Sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of 1963) (b) that there has been a failure to comply with any of the provisions of Sec.33 or Sec.34 ; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine.3. Nothing contained in clause (b) or clause (c) of sub-section (2)shall be deemed to authorise the (rejection) of the nomination of any candidate on the ground of any irregularity in respect of a nomination paper, if the candidate has been duly nominated by means of another nomination paper in respect of which no irregularity has been committed.4. The returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.5. The returning Officer shall hold the scrutiny or the date appointed in this behalf under clause (b) of Sec.30 and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or abstructed by riot or open violence or by causes beyond his control. Provided that in case an objection is raised by the Returning Officer or is made by other person the candidate concerned may be allowed time to rebut it not later than the next day but one following the date fixed for scrutiny, and the Returning Officer shall record his dicision on the date to which the proceedings have been adjourned. 6 The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. 7. 6 The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection. 7. For the purposes of this section, a certified copy of an entry in the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that he is subject to a disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950 ). 8. Immediately after all the nomination papers have been scrutinised and decisions accepting or rejecting the same have been recorded, the Returning Officer shall prepare and list of validly nominated candidates, that is to say, candidates whose nominations have been found valid, and affix it to bis notice board.6. From the provisions of Sec.34 of the said Act it is apparent that the security money has to be deposited either with the returning officer in cash at the time of presentation of nomination paper or with the Reserve bank of India or in the Government Treasury. It is not disputed that the election petitioner bad deposited the security money in Government Treasury. It is also not disputed that none of the candidates other than the election petitioner had deposited the security money either in the Reserve Bank of india or in Government Treasury. According to the election petitioner the other candidates including respondent No, 1 and 6 to 17 had deposited the security amount with the Nazir and had attached receipt granted by the nazir with their nomination papers. On the other band respondent No.1 has alleged that he as well as respondents 6 to 17 had deposited the security money with the returning officer in cash and Nazir had simply granted receipt in taken thereof as per direction of the returning officer and they had attached the receipt granted by the Nazir with their nomination papers. In support of their respective cases to the aforesaid effect both the parties have adduced evidence which I will consider hereafter.7. The election petitioner, namely, Surendra Sharma has examined himself as P. W.1. In support of their respective cases to the aforesaid effect both the parties have adduced evidence which I will consider hereafter.7. The election petitioner, namely, Surendra Sharma has examined himself as P. W.1. He has stated that by depositing security amount in treasury through challan he had presented his nomination paper with the copy of challan but the other candidates, including respondent No.1 Jagdish sharma, had presented their nomination popers without challan showing deposit of security in treasury. P. W 1 has further stated that respondent no.1 and other candidates bad attached with their nomination papers the receipt granted by Nazir of Jehanabad collectorate showing deposit of security money with the Nazir. He has further stated that at the time of scrutiny he had raised objection against the nomination papers of the candidates, including that of respondent No.1, on the ground that there was no compliance of section 34 of the Representation of the People Act by them but the Returning Officer did not entertain his objection and accepted the nomination papers of respondent No, 1 and ether candidates. He has also stated that when his written objection was not entertained by the returning officer, he intimated about this to the Collector of Jehanabad but the Collector did not be anything in the matter saying that he was not the appellate court against any order of the returning officer. He has further stated that the collector directed one clerk to receive bis written objection and the clerk received the same He has also stated that on 6th February, 1990 he sent telegram to the Election Commission of India as well as to the Electoral officer of intimating them about non compliance of provisions of Sec.34 of the Representation of the People Act by the other candidates. It may be pointed out that election petitioner a has neither examined the Collector jehanabad nor any officer of the Election Commission of India nor the electoral Officer of Bihar in support of his statement to the aforesaid effect. However the reluming officer, Court Shanker Singh has been examined as p. W.2. It may be pointed out that it is not the case of the election petitioner that respondent No.1 and 6 to 17 had presented their nomination papers in his presence. However the reluming officer, Court Shanker Singh has been examined as p. W.2. It may be pointed out that it is not the case of the election petitioner that respondent No.1 and 6 to 17 had presented their nomination papers in his presence. It is also not the case of the election petitioner that respondent No.1 and 6 to 17 had deposited the security amount with the nazir in his presence rather it is his specific case in para 18 aud 19 of the election petition that at the time of scrutiny when hs inspected the nomination papers of candidates, he found that the deposit of security amount was not in accordance with Sec.34 (2) of the Representation of the People act and they (other candidates including respondent No, 1 and 6 to 17) had deposited the security amount with the Nazir receipt granted by Nazir When the security amount had not been deposited by respondent No.1 and 6 to 17 in presence of the election petitioner, he can hardly he competent to say that they had deposited the security amount with the district Nazir and not with the returning officer.8. As against the above evidence of the election petitioner the contesting respondent No.1 has examined himself as R. W.1 and the returning Officer as R. W.2. As R. W.1 respondent No.1 Jagdish Sharma her stated that he had deposited the security amount in cash with the returning officer and the Nazir had granted receipt in token thereof as per direction of the returning Officer. R. W.1 has denied the allegation that he had deposited the security amount with the Nazir. The evidence of R. W.1 jagdish Sharma to the aforesaid effect has been coroborrated by the returning officer, Gouri Shanker Singh (R. W.2 ). The returning officer (R. W.2) has stated that most of the candidates, including respondent No.1 Jagdish Sharma had deposited the security amount in cash with him which was handed over to the Nazir of Collectore for granting receipt as per his direction to the respective candidates concerned. The returning officer R. W.2) has specifically stated that respondent No.1 Jagdish Sharma had deposited the security amount with him and he handed over the same to the Nazir and the Nazir granted receipt to respondent No.1 in respect thereof. R. W.2 has. The returning officer R. W.2) has specifically stated that respondent No.1 Jagdish Sharma had deposited the security amount with him and he handed over the same to the Nazir and the Nazir granted receipt to respondent No.1 in respect thereof. R. W.2 has. denied the suggestion given in his cross-examination that security amount had not been deposited with him rather had been deposited directly with the Nazir. There appears nothing in the cross-examination of R. W.1 Jagdish Sharma and R. W.2 Gouri Shanker Singh to discredit their evidence to the aforesaid effect. Their evidence shows that the security amount was deposited by the candidates other than the election petitioner with the returning officer in cash and as per direction of the returning officer the Nazir granted receipt under his signature in respect thereof. 9. The learned counsel for the election petitioner contended that the representation of People Act is a self contained Act. Referring to Section 22 and 23 of the Representation of the People Act it was further contended that the returning officer can take help of the Assistant returning Officer in doing acts and things connected with the election but the law does not provide for taking help of Nazir and if the returning officer thought it necessary to utilise the services of Nazir he should have taken approval of the Election Commission of India in accordance with Sec.29 of the said act. In this connection it was rightly pointed out by the learned counsel for the contesting respondent that Sec.29 of the said Act is with regard to the election to the council of States and the Legislative Council of State and not with regard to the election to the Legislative Assembly. It was further rightly pointed out by the learned counsel for the contesting respondent that the returning officer after accepting the security amount tendered by the candidates other than the election petitioner in cash simply directed the Nazir to keep the security amount and grant receipt with regard thereto and under the circumstances it cannot be said that the returning officer did something against the provisions of law. The returning officer as R. W.2 has clearly stated that the receipt granted by the Nazir is the proof of the fact that the security amount had been deposited with me in cash and since the Nazir granted receipt as per his direction it was practically grant of receipt on his (Returning Officer) behalf. 10. The learned counsel for the election petitioner further contended that in Sub-section (2) of Sec.34 of the Representation of People Act the word used is with the Returning Officer and not" with the Nazir" and hence the deposit of security amount with the Nazir cannot be deemed to be compliance with the provisions of Sec.34 of the said Act. As pointed out above the evidence on record clearly shows that the deposit was with the Returning Officer in cash and the Nazir simply kept the security amount as per direction of the Returning Officer and granted receipt in respect thereof. In view of this there appears no substance in the contention that there was no compliance with the provisions of Sec.34 of the representation of the People Act. 11. The fact that the contesting respondent as well as those candidates who had deposited the security amount in cash had attached the receipt granted by the Nazir with their nomination papers is not disputed. Referring to instruction No 10 of "handbook for returning officer" as well as to sub-section (2) of Sec.34 of the Representation of the People Act, 1951 it was further contended on behalf of the election petitioner that the receipt is reauired to be attached with the nomination paper only when the security amount has been deposited in the Reserve Bank of India or in a Government treasury and not in case of deposit of the same in cash to the returning Officer but the contesting respondent No I and other respondents enclosed the receipt granted by the Nazir with their nomination papers which goes to show that the amount in terms of Sec.34 of the representation of the People Act had actually been deposited with the Nazir and not with the returning officer. In face of the evidence of the returning officer (R. W.2) and that of respondent No.1) it is difficult to accept the above contention of the learned counsel for the election petitioner. 12. In face of the evidence of the returning officer (R. W.2) and that of respondent No.1) it is difficult to accept the above contention of the learned counsel for the election petitioner. 12. The learned counsel for the election petitioner further contended that it is well understood rule of law that if a thing is to done in a particular manner it must be done in that manner and not at all and other modes of compliance are excluded. There can be no dispute with the rule of law as mentioned above by the learned counsel for the election petitioner. As mentioned earlier the evidence on record shows that the security amount had been deposited by respondent No.1 and other candidates (excluding the election petitioner) with the returning Officer in cash and as per direction of the Returning Officer the receipt regarding the same was granted by the nazir. That being so, the deposit of amount by respondent No.1 and the candidates other than the election petitioner had been made in accordance with Sec.34 (2) of the Representation of the People Act 1951. Under the circumstances there was no violation of the above mentioned rule of law. 13. In this connection the learned counsel for the respondent No.1 invited the attention of this court towards a bench decision of this Court in he case of Arbind Kumar Lal V/s. Ram Tahal Choudhary and others, reported in 1994 (1) P. L. J. R.786 in which deposit of security amount with the Nazir has been held to be valid and it has been further held that Sec.34 of the said Act should not be construed in two technical manner so to lead to absurdity It was futher contended that a perusal of Sec.34 of the representation of the People Act will show that the provisions regarding deposit of amount is in two parts and the first part regarding making of deposit is mandatory, the non-compliance of which must entail the rejection of nomination papers but the second part regarding the mode of deposit either in cash with the returning officer or in Government Treasury or in the Reserve Bank of India is directory. In support of this contention the learned counsel referred to the decision of the Supreme Court reported in (1983) 2 SCC 473 and AIR 1958 SC 687 In the said cases deposit under Sec.117 of the representation of the People Act, 1951 was involved. In the case reported in (1983) SCC 473 it was held by the appex court that the mode of making the deposit is directory. 14. In view of what has been pointed out above, I am of the opinion that the deposit in terms of Sec.34 of the Representation of the People act had been made by the candidates, including respondent No.1 in accordance with law and hence their nomination papers were not liable to be rejection in accordance with Sub-section (2) of Sec.36 of the Representation of the People Act and the Returning Officer was prefectly justified in accepting their nomination papers. Issue No.2 is disposed of accordingly. 15. The only ground on which the election of respondent No.1 has been challenged is that the deposit of amount by him and candidates other than the election petitioner was not in accordance with Sec.34 of the representation of the People Act. In view of my above finding to the effect that the deposit of amount was in accordance with the provisions of Section 34 of the said Act, this election petition is not maintainable and the election petitioner is not entitled to any of the reliefs, as prayed for. Issue Nos 1 and 3 are disposed of accordingly. 16. Having regard to the above findings, this election petition is hereby dismissed, on contest, with cost against respondent No.1 and ex parte without cost against the rest Advocates fee Rs.500/-and Advocate clerks fee of Rs.55/-. The officer shall intimate the decision to the Election commission snd the Speaker of the State Legislative Assembly and shall forward to the election Commission and authenticated copy of the judgment and the formal order of the Court. Election Petition Dismissed.