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Madhya Pradesh High Court · body

2001 DIGILAW 468 (MP)

Sarla Tripathi v. Kaushilya Devi

2001-07-03

DIPAK MISRA, S.K.KULSHRESTHA

body2001
ORDER Kulshrestha, J. -- 1. Noticing an apparent conflict with regard to the requirement of security deposit with the election petition challenging election under the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as 'the Panchayat Act') in two sets of decisions, one of us (Dipak Misra, J.) has referred the question as to whether the security deposit under rule 7 of the M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as 'the Election Petition Rules') is required to be made only at the time of presentation of the election petition or the deposit can even be made thereafter within the period of limitation prescribed for presenting such petitions, for authoritative pronouncement. The petitioner has filed this petition challenging the order dated 20.11.2000 (Annexure P-5) passed by the Commissioner, Rewa Division, Rewa, by which he has set aside the order dated 17.7.2000 passed by the Additional Collector, Rewa, in Case No. 10/C-134/99-2000. The petitioner was elected as Sarpanch of Gram Panchayat, Ratangaonwa in election held on 1.2.2000. The election of the petitioner was challenged by the respondent No. 1 before the Sub Divisional Officer, Mauganj, Tah. Mauganj, District Rewa under section 122 of the Panchayat Act. The petitioner had raised objection to the maintainability of the election petition inter alia on the ground that the amount of security of Rs. 500/- had not been deposited at the time of the presentation of the election petition as required under Rule 7 of the Election Petition Rules and the election petition was, therefore, liable to be summarily dismissed under Rule 8 thereof. The Sub Divisional Officer rejected the preliminary objection by order Annexure P-3 but in revision, the Additional Collector sustained the objection and dismissed the election petition. In a further revision before the Commissioner, the order of the Additional Collector has been set aside and, therefore, the present petition has been filed challenging the said order. We may record that it is not in dispute that neither the Additional Collector nor the Commissioner had any jurisdiction to entertain a revision in respect of an order passed by the specified Officer and, therefore, we have to examine only the validity of the order passed by the Specified Officer by which the preliminary objection has been rejected. 2. We may record that it is not in dispute that neither the Additional Collector nor the Commissioner had any jurisdiction to entertain a revision in respect of an order passed by the specified Officer and, therefore, we have to examine only the validity of the order passed by the Specified Officer by which the preliminary objection has been rejected. 2. The Panchayat Act has evolved a three tier system of Panchayats; Gram Panchayat at the village level, Janpad Panchayat at the block level and Zila Panchayat for every district. The Gram Panchayat is constituted of elected Panchas and Sarpanch and Janpad Panchayat and District Panchayat of members elected for the constituency and other members as enumerated in section 22 and 29 of the Act. Election of such Panchas and Members can be called in question only by a petition presented in the prescribed manner within 30 days from the date on which the election in question was notified and such petitions are required to be inquired into and disposed of according to such procedure as may be prescribed. Section 2(32) of the M.P. General Clauses Act, 1957 defines "prescribed" to mean prescribed by Rules made under an enactment. Section 95 of the Act empowers the State Government to make Rules for carrying out the purposes of the Act and accordingly, with a view to prescribe the manner of presentation of the petitions under section 122 of the Act and the procedure for inquiring into and disposal of such petitions, the said Election Petition Rules have been made by the State Government. Since the question before us requires interpretation of section 122, Rule 7 and Rule 8, these provisions are reproduced hereunder for ready reference : "122. Election Petition: (1) An election under this Act shall be called in question only by a petition presented in the prescribed manner: (i) in case of Gram Panchayat to the Sub-Divisional Officer (Revenue); (ii) in case of Janpad Panchayat to the Collector; and (iii) in case of Zila Panchayat to the Divisional Commissioner and not otherwise. (2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified. (3) Such petition shall be enquired into or disposed of according to such procedure as may be prescribed. R. 7. (2) No such petition shall be admitted unless it is presented within thirty days from the date on which the election in question was notified. (3) Such petition shall be enquired into or disposed of according to such procedure as may be prescribed. R. 7. Deposit of Security: At the time of presentation of an election petition, the petitioner shall deposit with the specified Officer a sum of Rs. 500/- as security. Where the election of more than one candidate is called in question, a separate deposit of an equivalent amount shall be required in respect of each such returned candidates. R. 8. Procedure on receiving petition: If the provisions of rule 3 or rule 4 or rule 7 have not been complied with, the petition, shall be dismissed by the specified Officers: Provided that the petition shall not be dismissed under this rule without giving the petitioner an opportunity of being heard." 3. Rule 7 speaks of deposit of security :It the time of presentation of an election petition of the sum specified therein. In Kailash Narayan v. Namdar and others [ 1996 JLJ 391 ], the question arose before the Single Bench as to whether the election petition could be dismissed under Rule 8 if full security amount was not deposited at the time of the presentation of the petition. In the said case, initially Rs. 50/- was deposited and the deficiency was made good within the period of limitation thereafter. Doabia, J. expressed the view that the correct interpretation of Rules 7 and 8 was that if the default was made good within the period of limitation, the presentation of election petition would be valid and it would be deemed to have been presented on the date on which the default was removed. Reference was made to the decision of Supreme Court in Pirgonda Mongonda Patil v. Kalgonda Shidronda Patil and others [ AIR 1957 SC 363 ] and to the passage quoted therein with regard to the law relating to amendment of the pleadings. Reference was also made to another decision in Harish Chandra Bajpai v. Triloki Singh and others [ AIR 1957 SC 444 ] dealing with the power of the Tribunal to allow particulars in respect of corrupt practices to be amended. Reference was also made to another decision in Harish Chandra Bajpai v. Triloki Singh and others [ AIR 1957 SC 444 ] dealing with the power of the Tribunal to allow particulars in respect of corrupt practices to be amended. This decision was followed by C.K. Prasad, J. in Ravi Thakur v. Shiv Shankar Patel and others [ 1997(1) JLJ 89 = AIR 1997 M.P. 136 ] where the question arose whether the deposit of security amount though not at the time of presentation of the election petition but within the period of limitation was sufficient compliance of Rule 7 of the Election Petition Rules. Relying on the judgment in Kailash Narayan (supra) and distinguishing the Division Bench Judgment in Babulal v. State of M.P. [ 1985 JLJ 644 ], it was held that if the security amount has been deposited within the period limitation before the cognizance is taken by the specified Officer, the election petition cannot be dismissed under Rule 8 on the ground of non-compliance with the requirement of Rule 7. With reference to the decision in Babulal (supra), it was observed that the question of effect of deposit within the period of limitation was not in issue in the said case and, therefore, the decision was of no assistance for deciding the question as to whether the deposit of the amount within the period of limitation constituted sufficient complaince of the provision. The question, however, once again arose in Uday Singh v. Himmat Singh [ 1999(1) JLJ 200 ] before D.M. Dharmadhikari, J. (as his Lordship then was) and after referring to the above decisions on the point, his Lordship observed that where the security deposit was not made on the date of the presentation of the petition, the election petition deserved summary rejection under Rule 8 for non-compliance of Rule 7 of the Election Petition Rules. The relevant discussion contained in Paragraph 14 of the report reads as under : "14. I shall take up for consideration first the preliminary objections raised to the valid presentation of the petition. It is not in dispute that on the date of presentation of the petition, the security amount was not deposited. According to the election petitioner, it was depsited on that very day although the receipt was issued late. But this face is not evidenced by any document on record. It is not in dispute that on the date of presentation of the petition, the security amount was not deposited. According to the election petitioner, it was depsited on that very day although the receipt was issued late. But this face is not evidenced by any document on record. The Specified Officer in the impugned order has stated that the security amount came to be deposited on 13.9.1994. The Rules framed fortrial of election petition i.e. The Madhya Pradesh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995, particularly Rule 7 thereof, requires deposit of security amount at the time of presentation of election petition. Under Rule 8, if provisions of Rule 7 regarding deposit are not complied with, the petition shall stand dismissed. Rules 7 and 8. have been construed and held mandatory by a Division Bench of this Court in Babulal and another v. State of M.P. and others [ 1985 JLJ 644 = AIR 1986 MP 49 ]. A learned Single Judge of this Court (T.S. Doabia, 1.) in Dr. Omprakash Soni v. Ashok Kumar Bhargava and others [1995(2) Vidhi Bhasvar 309 = AIR 1996 MP 43 ], relying on the decision of the Supreme Court in F.A. Sapa v. Singora [ AIR 1991 SC 1557 ], construed a similar rule as mandatory and upheld the summary dismissal of the petition. The decision of learned C.K. Prasad, J. appears to have based his decision on the provision of above Act No.9 of 1996 where deficit in amount of security could be made good within the period fixed for filing the election petition. Such is not the case here. There is no evidence that the security deposit, as stated by the election petitioner, was made on the date of presentation of the petition and only receipt for the same came be issued in his favour subsequently. Thus, for non-compliance of Rule 7, the election petition deserved summary rejection under Rule 8 of the Rules framed for trying election petitions." 4. It is in the context of the above inconsistency between the two sets of judgments that Dipak Misra, J. has referred the matter for authoritative pronouncement by a larger Bench. 5. Thus, for non-compliance of Rule 7, the election petition deserved summary rejection under Rule 8 of the Rules framed for trying election petitions." 4. It is in the context of the above inconsistency between the two sets of judgments that Dipak Misra, J. has referred the matter for authoritative pronouncement by a larger Bench. 5. It has been argued by the learned counsel for the election petitioner that unlike in other similar enactments, there is no requirement in section 122 of the Panchayat Act for making any security deposit which merely contemplates presentation of the petition in the prescribed manner. Learned counsel has contended that even without the Rules prescribing the manner for presentation, the provision was workable and the election petitions could have been presented before the authorities specified therein in accordance with the normal procedure and in this connection reference has been made to the decision of a Full Bench in Sudhir Kumar Mishra v. Municipal Corporation, Jabalpur [ 1978 JLJ 155 = 1978 MPLJ 9 ]. In the said case, the question considered was whether there could be consultation with the Public Service Commission as required under the proviso to section 58(1) of the M.P. Municipal Corporation Act, 1956 in the absence of Rules prescribing the manner for such consultation. It was observed that section 58(1) (as it stood then) was complete in itself and capable of operation without the aid of any further rules to bridge the gap. Dwelling on the ratio of this case, the contention of the learned counsel for the election petitioner is that even without the rules prescribing the manner for presentation, since the election petition could have been presented and since section 122 does not prescribe any security deposit, the requirement introduced in the Rules cannot be treated as mandatory and if the amount has been deposited within the period prescribed for presentation of petition by section 122, it should be treated as due complaince. In the present case, the question before us is not as to whether an election petition could have been filed under section 122 even in the absence of Rules prescribing the manner for its presentation. In the present case, the question before us is not as to whether an election petition could have been filed under section 122 even in the absence of Rules prescribing the manner for its presentation. The question is that when the Rules in terms require the election petitioner to deposit the security with the Specified Officer at the time of presentation of the election petition, whether the amount deposited after presentation of the petition but within the period of limitation amounts to complaince of the provision. The decision relied upon by the learned counsel is, therefore, of no help for deciding the question in issue before us. Learned counsel has further contended that the Rules framed by a delegate cannot restrict or widen the scope of the provision contained in section 122 of the Act and cannot take away the right granted by such provision. The contention of the learned counsel is that where the Act does not require deposit of any amount by way of security, merely in prescribing the manner of presentation, such requirement could not have been laid down in the Rules is exercise of the power delegated by the Act to make Rules under section 95. Learned counsel has relied upon the decision in Agricultural Market Committee v. Shalimar Chemical Works Ltd. [ (1997) 5 SCC 516 ] in support of his contention. In the said case while the Act limited the rebuttable presumption to only one factor, viz., moving of the notified agricultural produce out of the notified market area, the rules and the bye-laws framed under the provisions of the Act additionally provided for raising a presumption if the commodity was weighed, measured or counted within the notified area. It was observed that market fee could be levied under the Act only on the sales and purchase of notified agricultural produce within the notified area and section 12 of the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966 created a legal fiction that if any notified agricultural produce was taken out of a notified market area, it shall be presumed to have been purchased or sold within such area. No other factor could have been introduced to give rise to such a legal fiction and therefore, the statutory presumption of a limited character could not have been enlarged by providing in the Rules and the Bye-laws that if the notified agricultural produce was weighed, measured or counted within the notified area, it would be deemed to have been sold or purchased within the said area. On this ground, the Rule was struck down as ultra vires. Reference has also been made by the learned counsel to the decision in Collector of Customs v. A.S. Bava (AIR 1968 SC 18) in which the Supreme Court has held that right of appeal under section 35 of the Central Excise and Salt Act, 1944 could not have been whittled down by introducing the requirement of deposit of duty or penalty as required under section 129 of the Customs Act, 1962 and such a provision could, therefore, not be regarded as procedure relating to appeal. In the above two decisions relied upon by the learned counsel, the offending Rule itself was under challenge as ultra vires the Act while in the present case the question before us is not as to whether or not the State Government was competent to make a Rule such as Rule 7 in view of absence of any requirement of security deposit in section 122 of the Act but whether the deposit made after the presentation of the petition and before the expiry of the period prescribed for filing election petition is sufficient compliance of the provision. We are afraid that insofar as the controversy before us is concerned, the above decisions relied upon by the learned counsel do not help him as they relate to the vires of the Rules and not to the compliance of the Rules. For the purposes of present decision, we have to proceed on the assumption that the requirement contained in Rule 7 of making security deposit is legal and valid and to examine whether it stands satisfied even where the deposit has been made subsequent to the presentation of the election petition but within the period of limitation. 6. Learned counsel for the election petitioner has next submitted that even if it is assumed that the Rule is valid, it needs to be harmoniously construed in a reasonable manner to obviate unnecessary hardship. 6. Learned counsel for the election petitioner has next submitted that even if it is assumed that the Rule is valid, it needs to be harmoniously construed in a reasonable manner to obviate unnecessary hardship. Reference has been made to the decision in Surjit Singh Kalra v. Union of India [ 1991(2) SCC 87 ] that the Court should adopt purposeful construction to buttress the contention that since what is required by Rule 7 is that amount should be deposited, once the amount has been deposited within the period of limitation, the purpose stands fulfilled and, therefore, it should be treated as sufficient compliance of the Rule. Reference has also been made to the decision in Surinder Singh v. Central Government [ 1986(4) SCC 667 ] that even where preemptory time limit is fixed, extension can be granted provided that action is not inconsistent with any provision of the Act. On the basis of this judgment, the learned counsel contends that since the Act does not prescribe for deposit of security amount and the requirement has been introduced in the Rules only, even if the time limit is extended for compliance thereof, the same would not be inconsistent or in conflict with any provision of the Act and, therefore, notwithstanding that the Rule requires deposit to be made with the specified Officer at the time of the presentation of an election petition, since its deposit after such presentation cannot be said to be inconsistant or in conflict with any provision of the Act, it should be treated as due compliance and such a petition cannot, therefore, be dismissed under Rule 8. Learned counsel has, therefore, contended that decisions in Kailash Narayan and Ravi Thakur correctly interpret the requirement contained in Rule 7 and the decision in Uday Singh does not lay down the law correctly. 7. In M. Karunanidhi v. H. V. Handa ( AIR 1983 SC 558 ) the question arose whether the deposit of security made by challan in the Reserve Bank of India and not in cash in the High Court along with the election petition filed under the Representation of People Act, 1951 constituted compliance of the requirement contained in section 117 of the Act. It was observed that section 117 was in two parts, the first requiring deposit in the High Court of the sum as security for the cost of the petition at the time of presenting an election petition and the second requiring the deposit to be made in the High Court in accordance with the Rules of the High Court. It was held that the requirement regarding the making of a security deposit in the High Court was mandatory, the non-compliance of which must entail dismissal in limine of the election petition under sub-section (1) of section 86 of the Act but the requirement of its deposit in the High Court in accordance with the Rules of the High Court was clearly directory. The observations contained in paragraph 19 of the report read as extracted below: "19. The submissions advanced by learned counsel for the appellant cannot be accepted as they proceed on the assumption that no distinction can be drawn between the requirement as to the making of a deposit in the High Court under sub-sec. (1) of Section 117 and the manner of making such deposit. There was considerable emphasis laid by learned counsel that sub-section (1) of section 117 cannot be dissected into two parts, one part being treated as mandatory and the other as directory. The contention is wholly misconceived and indeed runs counter to several decisions of this Court. It is always important to bear the distinction between the mandatory and directory provisions of a statute. Sub-section (1) of section 117 is in two parts. The first part of sub-section (1) of section 117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court a sum of Rs. 2000/- as security for the costs of the petition, and the second is that such deposit shall be made in the High Court in accordance with the rules of the High Court. The requirement regarding the making of a security deposit of Rs. 2000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under sub-section (1) of section 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory. As Maxwell on the Interpretation of Statutes, 12th Edn. 2000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under sub-section (1) of section 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory. As Maxwell on the Interpretation of Statutes, 12th Edn. at p. 314 put it : "An absolute enactment must, be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." The rule of construction is well settled and we need not burden the judgment with many citations." 8. In the present case, it is not disputed that the amount was not deposited at the time of presentation of the petition but later on. In somewhat similar situation, a Division Bench of this Court in Babulal v. State of M.P. (supra) has observed that the expression "shall deposit" and the penalty of failure prescribed in rule 8 clearly spell out that the provision of rule 7 is mandatory and the requirement of making the deposit of security amount is along with the petition as clear from the expression "at the time of presentation of an election petition". Para 10.01 of the report containing the said observations reads under: "10.01. On a plain reading of rule 7 the requirement of making the deposit of security amount is along with the petition. The expression : "At the time of presentation of an election petition," in rule 7 is very significant. Thus, the requirement of deposit of security amount along with the petition is an essential link in the chain of presentation of the petition. Therefore, if this link is missing, there is no valid presentation of the petition. The Tribunal has a jurisdiction only when there is a validly presented petition before it." 9. It appears that this decision was not brought to the notice of the learned Single Judge in Kailash Narayan (supra). The decisions noticed in the said case relate to the question of amendment and, therefore, were not relevant for deciding as to whether or not the amount of security required to be deposited at the time of the presentation of the petition could be deposited after presentation on a later date. The decisions noticed in the said case relate to the question of amendment and, therefore, were not relevant for deciding as to whether or not the amount of security required to be deposited at the time of the presentation of the petition could be deposited after presentation on a later date. Section 86(5) of the Representation of People Act, 1951 itself permits amendment as regards particulars of any corrupt practices alleged in a petition as may be necessary for ensuring fair and effective trial. In F.A. Sapa v. Singopa ( AIR 1991 SC 1557 ), the Supreme Court has observed that the defect in the verification of an election petition is not fatal but failure to cure the same would be fatal as observed in R.P. Moidutty v. P.T. Kunju Mohd. [ 2000(1) SCC 481 ]. This requirement is contained in section 83(1) of the Representation of People Act while section 86(1) requires the High Court to dismiss an election petition which does not comply with the provisions of section 81 or 82 or section 117 and not a petition which does not comply with the provisions of section 83. Rule 8 of the Election Petition Rules clearly provides for dismissal of the petition if the provisions of Rules 3, 4 or Rule 7 have not been complied with. Therefore, any decision with regard to the curability of the defect in verification of the petition or with regard to the permissibility of the amendment is not relevant in respect of requirement of deposit of security laid down by Rule 7 and the consequence of failure provided in rule 8. C.K. Prasad, J. has followed the judgment in Kailash Narayan in Ravi Thakur and has distinguished the case of Babulal (supra) on the ground that the question whether the security amount could be deposited within the period of limitation after presentation of the petition was not in issue in the said case. We are afraid, we cannot subscribe to this view of the learned Single Judge. As apparent from the passage quoted hereinabove, the Division Bench has clearly held that the requirement of making the deposit of security amount is along with the petition which clearly implies that there is no option to deposit the amount on a later date. Rule 7 is clear, without ambiguity and unequivocal. As apparent from the passage quoted hereinabove, the Division Bench has clearly held that the requirement of making the deposit of security amount is along with the petition which clearly implies that there is no option to deposit the amount on a later date. Rule 7 is clear, without ambiguity and unequivocal. It requires deposit at the time of the presentation of the petition and thus, any deposit made after the date of the presentation of the election petition would not be its compliance. It is not a case where along with the presentation of the election petition that deposit of security was made in the manner other than the one prescribed by rule 7. The view expressed by Dharmadhikari, J. in Uday Singh (supra) appears to be the correct exposition of the Rules. The view expressed in Kailash Narayan (supra) and Ravi Thakur (supra) is not correct. Since it is not disputed in the present case that the election petition was filed on 10.2.2000 while the security deposit was made on 3.3.2000, the election petition was liable to be dismissed under rule 8. 10. Consequently, this petition is allowed and the order dated 1.5.2000 (Annexure P-3) passed by the Specified Officer (respondent No. 10) is quashed and the election petition is dismissed with no order as to costs. ..........................