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2005 DIGILAW 439 (KAR)

RAJESAB v. KARNATAKA STATE

2005-07-05

ANAND BYRAREDDY

body2005
ANAND BYRAREDDY, J. ( 1 ) MFA 5347/01 is directed against that portion of the common order pertaining to. A. XI which was filed by the fourth respondent with a prayer to reject the petition for non-payment of fees of rs. 100/- on the Election Petition treating the same as a violation and non-compliance of a mandatory provision. The Trial Court has allowed the said application holding that in terms of rule 69 of the Karnataka Municipalities (Election of Councillors) Rules, 1977 ('the Rules', for short) read with Section 117 of the Representation of Peoples Act, 1951. ( 2 ) RULE 69 of the Rules reads as follows: " 69. Fee to be paid on an eletion petition- every election petition shall be accompanied by a Government Treasury receipt showing that a deposit of one hundred rupees has been made by the petitioner either in the Reserve Bank of india or in a Government Treasury or in any Branch of the State Bank of India in favour of the commissioner. " It is the appellant's contention that Rule 69 provides for the fees to be paid on an election petition. It is his contention that fees has been paid on the election petition, though not along with the petition at the time of filing. The further contention of the appellant is that this would not be fatal to the election petition and he relies upon a judgment of this Court in Smt. Latha G. Krishna v. The Returning Officer, Dasarahalli City Municipal Council, Bangalore and Ors. ILR2003 KAR 3402 wherein this Court, while dealing with an identical situation as to the payment of fees under Rule 69 of the Rules, held that the deposit in terms of rule 69 is directory, though the rule employs the word "shall", it need not be read as being mandatory. This Court has held that since the Rules do not prescribe the consequence of non-deposit of fees in the manner prescribed under the Rules. This Court has concluded that even if the rule could be held to be mandatory, it could only be in so far as the essence of the requirement prescribed by the said rule and the essence of the requirement is that a deposit towards fee must be made and that having been complied with, the delayed payment would not result in the petition being thrown out. ( 3 ) PER contra, the Counsel for the respondent would rely upon the judgment in the case of S. Shekhar v. Commissioner/returning Officer, Bangalore City Corporation AIR 1999 KANT. 174 wherein a Division Bench of this Court had held that Rule 70 of the Karnataka Municipal corporations (Election) Rules, 1979 requires the payment of a deposit of Rs. 200/- as security for costs which would have to be read as being mandatory. And if the rule is not complied with, a delayed deposit cannot be condoned. The intention of the legislature was that the deposit of security was mandatory. It is contended that the said rule is analogous to Rule 69 of the Rules with which we are concerned in the present case and hence the appeal should be dismissed as not maintainable. But, however, this Division Bench judgment has been referred to and distinguished by the learned Single Judge in ILR2003 KAR 3402 referred to herein above and it is held that though the Division Bench has held that Rule 70 was analogous to Section 117 of the Representation of Peoples Act, 1951, the requirement of Rule 69 of the Rules is somewhat different, for it prescribes a deposit of fee and not a deposit towards costs. The term 'fee' has a known legal connotation. A 'fee' is different from costs and so also should be different from a deposit that may be awarded to the successful party. The result is that the deposit made under Rule 69 will be a deposit of fee simplicitor which cannot be equated with a deposit for costs. Therefore the learned Single Judge concluded there is no similarity between the provisions of Rule 69 on the one hand and that of Rule 70 of the Municipalities Act and section 117 (1) of the Representation of Peoples Act, on the other. I am fully in agreement with this opinion and dictum and therefore the contention on behalf of the respondent has to be rejected. In the result, the appeal will have to be allowed. ( 4 ) IN so far as MFA 5335/01 is concerned, the same is directed against an order passed on an application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908, on the ground that no cause is set out in the election petition. In the result, the appeal will have to be allowed. ( 4 ) IN so far as MFA 5335/01 is concerned, the same is directed against an order passed on an application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908, on the ground that no cause is set out in the election petition. The Trial Court, while dealing with this application, has held at para 15 that the only contention of the petitioner was that the fourth respondent does not fall under Category 'a' but he has falsely filed a certificate issued by the tashildar to the said effect and he had won the election. The Trial Court has therefore concluded that apart from this, there are no material facts forthcoming in the petition and therefore it was liable to be rejected. ( 5 ) IT is seen from the application filed by the fourth respondent that the application is wholly bereft of any such contention and it was a bald application simply stating that the petition should be rejected for want of material facts. Whether the petition had set out the material particulars or not and whether the appellant had made out a case or not was a matter for trial. ( 6 ) IT is also to be noticed that while considering the application aforesaid, out of which the present appeal arises, the Trial Court has further held that each page of the petition has not been signed and therefore the election petition would have to be rejected in terms of Section 21 (4) (b) and Section 24 of the Karnataka Municipalities Act, 1964 read with Order VI Rule 14 and 15 of the Code of Civil Procedure, 1908 and Rule 15 of the Karnataka Municipalities (Election) Rules, 1965 and relying upon the judgments in the case of Sharif-Ud-Din v. Abdul Gani Lone AIR1980 SC 303 , (1980 )1 SCC403 , [1980 ]1 SCR1177 , 1980 (12 )UJ39 (SC ) and in the case of Ram Padarath Singh v. Baidyanath Prasad and Ors. AIR1973 Pat 389 has held that the petition is liable to be dismissed since the election petition is not signed on all pages and verified in the manner prescribed. AIR1973 Pat 389 has held that the petition is liable to be dismissed since the election petition is not signed on all pages and verified in the manner prescribed. ( 7 ) THE Counsel for the respondent would contend that even if the appeals are to be allowed as aforesaid, the objection as to the petition not being signed on all pages, would still be a bar to the entertainment of the appeals as the petition itself was not maintainable. In this connection he relied upon the judgment in the case of S. Shekar v. Commissioner/returning Officer, Bangalore city Corporation-AIR 1999 SC 174 (supra) at para 51 wherein it is held that Rule 77 (4) of the karnataka Municipal Election Rules provide that a petition under Sub-rule (1) shall be signed by the petitioner and verified in the manner laid-down in Code of Civil Procedure, 1908, for verification of pleadings and that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. In this light, in that particular case the Court held that the petitioner before the Trial Court had not so verified his petition and therefore it was an infirmity going to the root of the matter. ( 8 ) IT is to be noticed that the Division Bench judgment above referred to is rendered in the context of the Karnataka Municipal Corporation Election Rules and presently we are concerned with an election petition under the Karnataka Municipalities (Election of Councillors) Rules, 1977. It is further to be noticed that though Section 21 of the Act prescribed that the election petition shall be verified in the manner prescribed under the Code of Civil Procedure, there is no other provision or Rule which lays down that the petition shall be rejected on account of the verification of pleadings not being so signed. In this regard, in a later judgment of the Supreme court in the case of Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and Ors. In this regard, in a later judgment of the Supreme court in the case of Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar and Ors. 2005 air SCW 19 while dealing with Representation of Peoples Act, 1951, the Supreme Court has held that furnishing of true copies, attestation on election petition and such other infirmities would not be fatal to the maintainability of the petition and has proceeded to hold that the judgments in Rajendra Singh v. Usha Rani and Satya Narain v. Dhuja Ram AIR1974 SC 1185 , (1974 ) 4 SCC237 , [1974 ]3 SCR20 , 1974 (6 )UJ126 (SC ) are rendered per incuriam. In the light of the above judgment the fact that the petition was not signed and verified in the manner prescribed, would not be fatal on the principle that when no consequence is provided for under the Act for the non-compliance of the requirement as aforesaid, the provision becomes directive and it could not be held to be mandatory. Viewed in this light, the appeal deserves to be allowed. ( 9 ) ACCORDINGLY the appeals M. F. A. 5347 and 5335 of 2001 are allowed. The impugned orders of the Trial Court are set aside and the matters are remitted for fresh consideration. ( 10 ) SINCE the challenge is to the election to an office, for a term and as the term would run out, the Trial Court is directed to expedite the disposal of the petition, for it would be rendered infructuous otherwise. ( 11 ) . R. B. Sathyanarayana Singh, Government Pleader, is permitted to file his memo of appearance for R1, R2 and R8, within four weeks from today.