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2013 DIGILAW 395 (MP)

Balveer Singh v. Secretary

2013-03-21

ANIL SHARMA

body2013
JUDGMENT Arguments heard. The petitioner has filed this civil revision under Section 115 of the Code of Civil Procedure read with section 26(2)of the Madhya Pradesh Municipalities Act, 1961 challenging the order dated 6.12.2010 passed by the District Judge, Ashoknagar in Election Petition No. 3/10, dismissing the petition on the ground that necessary security amount for filing the election petition under Section 20(3)(ii) of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the "Act") has not been deposited. 2. This is an admitted fact that the petitioner had filed the election petition before the District Judge without depositing the amount of security of Rs. 200/- in accordance with the provisions of Section 20(3)(ii) of the Act but he had submitted stamp of Rs. 200/- which according to the petitioner is the compliance of the above mentioned provisions. On filing of preliminary objections, the learned trial court has dismissed the election petition for non-compliance of provisions of Section 20(3)(ii) of the Act read with Order 7 Rule 11(D) of CPC. 3. Learned counsel for the petitioner has submitted that the provisions of depositing the security amount has been incorporated with intention to check frivolous filing of huge election petitions and the petitioner had submitted court fees stamp purchased from the stamp vendor of Rs. 200/- which is compliance of the said Rules. It is further submitted by learned counsel for the petitioner that deposit of security amount is mandatory but the manner in which it is to be deposited is not mandatory. 4. In this regard, the provisions of Section 20(3)(ii) of the Act are reproduced herein below:- “it is accompanied by a Government Treasury receipt showing a deposit of two hundred rupees, in the case of [election or nomination to Municipal Councils] and one hundred rupees in the case of [election or nomination to Nagar Panchayat].” 5. Further, in this regard, provisions of Rule 19(2) of the Madhya Pradesh Municipalities (election petition) Rules, 1962 are also relevant which are produced herein below:- “At the time of presentation of the petition for revision under sub-section (2) of Section 26against 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 rule are not complied with the High Court shall dismiss the petition.” 6. 250 as security for the costs of the revision. If the provisions of this rule are not complied with the High Court shall dismiss the petition.” 6. Learned counsel for the petitioner has cited a judgment of Hon'ble Apex Court regarding relevant provisions of Representation of the People Act, 1951 passed in the case of Aeltemesh Rein v. Chandulal Chandrakar and ors, AIR 1981 SC 1199 and Para 3 of the judgment is relevant which is reproduced herein below:- “The only question which survives is as to what is the consequence of non-compliance with Section 117 of the Act. That question has been settled by the decision of this Court in Charan Lal Sahu v. Nand Kishore Bhatt, (1974) 11 SCR 294 : AIR 1973 SC 2464 ), wherein it was held that the High Court has no option but to reject an election petition which is not accompanied by the payment of security amount as provided in Section 117 of the Act. Sec. 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117. In that view of the matter, the High court was right in dismissing the election petition summarily.” 7. Learned counsel for the petitioner has also cited another judgment of Hon. Apex Court in respect of provisions of Section 117 of the Representation of the People Act, 1951 passed in the matter of Charan Lal Sahu v. Nand Kishore Bhatt, AIR 1973 SC 2464 ), but all these citations relate to the Representation of the People Act under which election petition is filed before the High Court and court fees or security is to be deposited in accordance with the rules framed by the different High Courts while with regard to the Municipal election there is specific provisions under Section 20(3)(ii) of the Act and the rules are also framed. Therefore, the judgments passed by the Hon. Apex court with regard to Representation of the People Act cannot be applied to the elections of Municipalities because there is specific provisions for depositing the security amount which requires that the amount of security of Rs. 200/- be deposited by challan in the treasury and receipt of which be enclosed with the petition then only the petition will be entertained. 8. Learned counsel for the respondent no. 200/- be deposited by challan in the treasury and receipt of which be enclosed with the petition then only the petition will be entertained. 8. Learned counsel for the respondent no. 14, on the other hand, has cited a judgment of Division Bench of this Court in the matter of Sarla Tripathi (Smt.) v. Smt. Kaushilya Devi and others, 2004 (2) JLJ 263 , in which it has been held that "security deposit not accompanied with election petition in compliance of Rule 7-8 of the Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rule, 1995 (MP), petition cannot be entertained and liable to be dismissed under R. 8. Provisions under Rule 7 are mandatory. No deposit thereafter can remove the defect." 9. Learned counsel for the respondent no. 14 has also cited another judgment of this court in the matter of Aslam Beg Mirdha v. Babulal and others, 1997 (2) JLJ 154 in which it has been held that "provisions of Rule 19(2) of the Madhya Pradesh Municipalities (election petition) Act, 1962 are mandatory. Security amount has to be deposited alongwith the revision petition. High Court has no discretion to condone the lapse. It has been further held under the provisions of Ss. 86(1) and 117 of Representation of the People Act, 1951 that "security amount not deposited alongwith election petition, High Court has no option but to dismiss the election petition." It has been further held that challenge to any election to any municipality is provided under Article243ZG(b) which invokes Article 329(b) of the Constitution of India, right is statutory right, terms of statute has to be complied with." 10. Learned counsel for the respondent no. 14 has drawn attention towards the provisions of 19(2) of the Madhya Pradesh Municipalities (election petition) Act, 1962. 11. It is further submitted by learned counsel for the respondent no. 14 that this revision petition is itself not maintainable as it is not accompanied with the receipt of amount of security. 12. Learned counsel for the petitioner has submitted that the deposit of court fees stamp of Rs. 200/- is token compliance of provisions of Section 20(3)(ii) of the Act and the manner in which security amount is to be deposited, provision relating to is not mandatory but directory. 12. Learned counsel for the petitioner has submitted that the deposit of court fees stamp of Rs. 200/- is token compliance of provisions of Section 20(3)(ii) of the Act and the manner in which security amount is to be deposited, provision relating to is not mandatory but directory. But, there is no force in this argument advanced by learned counsel for the petitioner because Section 20(3)(ii) of the Act begins with the word "no petition presented under subsection (2) shall be admitted unless, it means the provisions of sub section are mandatory. Therefore, the learned court below is fully justified in passing the impugned order by rejecting the election petition for want of receipt of security amount. The submission of court fees stamp of Rs. 200/- cannot be equated with the deposit of security. 13. Further, the present civil revision should have been accompanied with the receipt of deposit of Rs. 250/- according to Rule 19(2) of the Madhya Pradesh Municipalities (election petition) Act, 1962 which has not been complied with. 14. In view of the aforesaid, the present civil revision cannot be allowed on merits nor is maintainable on technicalities. Therefore, the present civil revision is hereby dismissed.