Research › Browse › Judgment

Madhya Pradesh High Court · body

1997 DIGILAW 200 (MP)

Aslam Beg Mirdha v. Babulal

1997-04-11

S.S.JHA

body1997
ORDER 1. The order of this revision shall govern the disposal of Civil Revision No. 1029 of 1996 between Farukh and Ramesh Singh & others. 2. This revision is filed under section 26 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the 'Act'). Both these revision petitions arise out of the order passed in Election Petition under the Act before the District Judge, Guna, . 3. For filing an election petition rules have been framed, which are known as Madhya Pradesh Municipalities (Election Petition) Rules, 1962 (hereinafter referred to as the 'Rules'). Rule 19 of the Rules provides for revision. Rule 19 is reproduced below :- " 19. Revision.-- (1) No petition by way of revision shall lie against any interlocutory order passed by the Judge. (2) At the time of presentation of the petition for revision under subsection (2) of section 26 against the decision of the Judge, the petitioner shall deposit with the High Court a sum of Rs. 250 as security for the costs of the revision. If the provisions of this rules are not complied with the High Court shall dismiss the petition." 4. Sub-rule (2) of Rule 19 provides that at the time of presentation of the petition for revision under sub-section (2) of section 26 against the decision of the Judge, the petitioner shall deposit with the High Court a sum of Rs. 250/- as security for the costs of the revision. The rule further provides that on failure to comply with this rule the High Court shall dismiss the petition. In both these revisions, it is an admitted position that the amount of security of Rs. 250/- was not deposited at the time of presentation of petition for revision. 5. Learned counsel for the applicant submitted that the amount is deposited by them but not at the time of presentation of the petition. The amount of security was deposited after presentation of petition. Civil Revision No. 1028/96 was presented on 29.8.96 and the amount of security was deposited on 2.9.96, whereas in Civil Revision No. 1029/96 the revision petition was presented on 29.8.96 and security amount was deposited on 3.9.96. 6. Learned counsel for the applicant submits that he has complied with the provision and deposited security amount within time prescribed for filing revision. 6. Learned counsel for the applicant submits that he has complied with the provision and deposited security amount within time prescribed for filing revision. He submitted that the day he deposited security amount, it was well within the period of limitation for filing revision before the High Court. 7. Learned counsel for the applicant submitted that once he has deposited the amount within period of limitation for filing revision, the revision cannot be dismissed on this ground. Counsel for the applicant submitted that in the case of Kailash Narayan v. Namdar and others, 1996 JLJ 391 , it is held that if the deficiency is made good within the period of limitation prescribed for the presentation of petition, the petition cannot be dismissed. This judgment relates to Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991. Learned counsel also referred to the judgment of this Court in the matter of Ravi Thakur v. Shiv Shankar Patel and others, 1997 (1) JLJ 89 . The aforesaid judgment related to the Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1991 and Panchayat Raj Adhiniyam. 8: Learned counsel submitted that the provisions of Rule 19 are pari materia to the provisions of Sec. 86 of Representation People Act, 1951. 9. Learned counsel for the respondent, on the other hand, submitted that non-payment of security at the time of presentation of the petition is fatal and revision petition cannot be entertained. Learned counsel for the respondents invited attention of the Court to the provisions of section 117 of the Representation of People Act and submitted that on non-compliance of provisions of section 117 of the Representation of People Act the election petition is liable to be dismissed under the provision of section 86 of Representation of People Act, 1951. Sections 86 and 117 of Representation of- People Act, 1951 are reproduced below :- "86. Trial of election petition.-- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 17. Explanation.-- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. Trial of election petition.-- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 17. Explanation.-- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98. (2) As soon as may be after an election petition has been presetned to the High Court, it shall be referred to the Judge or one of the judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.-- For the purposes 'of this sub-section and section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (6) The trial of an election petition shall, so far as is practiceable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. . (6) The trial of an election petition shall, so far as is practiceable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded. . (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial" "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. (2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct." 10. Section 86 of the Representation of People Act, 1951 provides that the High Court shall dismiss the election petition, which does not comply with the provisions of section 81 or 82 or 117. The language used in Rule 19 is also that if the provisions of this rule are not complied with, the High Court shall dismiss the petition. Learned counsel for the respondents submitted that provision is mandatory and not directory. The intention of the Legislature is that the security amount should be deposited at the time of representation of the petition. It is not the intention of the Legislature that the amount of security may be deposited within the time prescribed or the period of limitation for filing the revision petition. 11. Learned counsel for the respondents submitted that the scope of section 117 of the Representation of People Act was considered in the case of Charml Lal Sahu v. Nandkis/Zore Bhatt and others, AIR 1973 SC 2464 , In this case, it was held that in the event of non-deposit of security amount along with the election petition, as required under section 117, the High Court has no option but to reject the election petition. 12. 12. Article 329 (b) of the Constitution of India provides for challenge to election petition, and therefore, the Apex Court considering the scope of section 117 of the Representation of People Act in Charan Lal Sahu's case (supra) held that the provision of section 117 is mandatory in their character and the petitioner was required to enclose with the petition deposit of security amount. Failure to non-depositing the amount shall render the petition to be dismissed. 13. After the Constitution (73rd) Amendment Act, 1992, new Part IX-A consisting Articles 243P to 243ZG relating to the Municipalities has been inserted in the Constitution of India. 14. Article 243ZG (b) provides that no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legisalture of a State. Therefore, right to challenge the election is a right under Article 243ZG of the Constitution of India. This provision invokes to Article 329 (b) of the Constitution of India in respect of challenge to election to either House of Parliament or to the House or either House of the Legislature of a State. The right conferred is a statutory right and the terms of that statute had to be complied with. There is no question of any common law right to challenge an election. Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes if no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. 15. Learned counsel for the non-applicant again referred to the judgment of the Apex Court in the case of Aoltemesh Rain v. Chandulal Chandrakar and others, AIR 1981 SC 1199 , and submitted that the Apex Court has held that sections 86 (1) and 117 of the Representation of People Act provides• that the High Court shall dismiss the election petition, if the provisions of these sections are not complied with' and, therefore, the revision petition, which was not accompanied with security amount, is liable to be dismissed. Learned counsel further referred the judgment of this Court in respect of section 26 of the Act in the case of Radheshyam slo Nandlalji Patidar v. Jagdish slo Gangaram Patidar, , AIR 1995 MP 272 , learned counsel invited the attention of the Court to para 12 of the judgment, wherein it was held that in view of the plain language of Rule 19, it is mandatory for such petitioner to deposit security amount of Rs. 250/- at the time of presentation of revision petition before the High Court and if he fails to do so, the only result would be dismissal of the petition. 16. After having heard the counsel for both the parties, I am of the opinion that the revision petition is not maintainable, as the provisions of rule 19 of the Rules are mandatory and not directory. The rule itself provides that amount of security should be deposited at the time of presentation of the petition as held in the case of Charan Lal Sahu (supra) that there is no discretion to condone the delay in presentation of petition or to absolve the petitioner from payment of security for costs, which can only be provided under the Statute governing the election disputes. If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. 17. Learned counsel for the applicant also referred to the judgment in the case of Harish Chandra and another v. Triloki Singh. AIR 1957 SC 444 . Learned counsel invited the attention of the Court to paras 19 and 20 of the judgment. This judgment relates to amendment in the pleadings and interpreting the scope of limitation enacted in section 19 (2) of the Representation of People Act and application for amendment under Order VI Rule 17 of the Code of Civil Procedure. This judgment relates to a different aspect of the matter, that is, namely, applicability of the Code of Civil Procedure and amendment in the pleadings. The Supreme Court held that the amendment even at the belated stage can be allowed. This judgment does not lay down that mandatory provisions can be relaxed. Therefore, this judgment is not applicable to determine the present controversy. 18. The Supreme Court held that the amendment even at the belated stage can be allowed. This judgment does not lay down that mandatory provisions can be relaxed. Therefore, this judgment is not applicable to determine the present controversy. 18. The judgment referred in the cases of Kailash Narayan (supra) and Ravi Thakur (supra), and directly in conflict with the Division Bench judgment of this Court in the case of Babulal & another v. State of M.P. & others, 1985 JLJ 644 , while considering the provisions of Rule 7 and Rule 8 of Panchayat (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1962 it was held that or: account of deficiency in deposit of security amount the election petition should be dismissed. It was held that the rule is mandatory. Law does not provide any extention of time to deposit security amount. The amount deserves to be deposited at the time of presentation of the petition, as held in the case of Charan Lal Sahu (supra) and in the case of Aoltemesh Rein (supra). 19. The law is also settled by this Court in respect of section 26 of the Act and Rule 19 of the Rules in the case of Radheshyam (supra). 20. Since the mandatory provision of deposit of security at the time of presentation of petition was not complied with, the Court has no option but to dismiss the revision petition under Rule 19 of the Rules. Language of Rule 19 is plain and simple. Since elections of Municipality are subject to challenge under the provision of Article 243ZG of the Constitution of India, the Court had no power to exercise the jurisdiction in extending the period to deposit the security or to condone the delay to deposit the security amount. 21. In the result, both the revision petitions are liable to be dismissed for non-compliance of Rule 19 of the Rules, arid are hereby dismissed. However, there shall be no orders as to costs.