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Madhya Pradesh High Court · body

2014 DIGILAW 1331 (MP)

Deepak Kumar Soni v. Ashok Kumar

2014-10-14

J.K.MAHESHWARI

body2014
JUDGMENT : J.K. Maheshwari, J.:- Assailing the order dated 29-1-2014 passed by the First Additional District Judge, Harda in Election Petition No. 34/2011 declaring the election of the applicant as Councilor from Ward No. 12 of V.V. Giri Ward, Harda, as null and void this petition has been filed under Section 26(2) of the M.P. Municipalities Act, 1961 (hereinafter called as "the Act"). Non-applicant No. 1 by filing I.A. No. 5147/2014 on 20-3-2014 has raised the preliminary objection regarding maintainability of this petition due to non-compliance of Rule 19(2) of M.P. Municipalities (Election Petition) Rules, 1962 (hereinafter referred to as "Election Petition Rules"). It is said that as per the requirement of Rule 19(2), the applicant has not deposited a sum of Rs. 250/- as security for the cost of the revision with the High Court "at the time of presentation" of the petition. However, as per the consequence specified therein, the election petition ought to be dismissed in limine. 2. Learned Counsel, Shri Imtiyaz Hussain representing non-applicant No. 1 referring Rule 19(2) urged with vehemence that applicant at the time of presentation of the revision petition under Section 26(2) of the Act challenging the decision of the Judge has not deposited the sum of Rs. 250/- as security for the cost. Due to non-compliance of the same, this petition ought to be dismissed. In support of his contention, reliance has been placed on the judgments of Hon'ble Apex Court rendered in the case of Charan Lal Sahu Vs. Nandkishore Bhatt and others, AIR 1973 SC 2464 and Aeltemesh Rein Vs. Chandulal Chandrakar and others, AIR 1981 SC 1199 . Reliance has also been placed to the judgment of this Court in the case of Radheshyam s/o. Nandlalji Patidar Vs. Jagdish s/o. Gangaram Patidar, AIR 1995 MP 272 . Lastly, reliance has been placed upon the judgment of Aslant Beg Mirdha Vs. Babulal and others, 1997 (2) JLJ 154 , wherein Rule 19(2) has been interpreted and its compliance is held mandatory and non-deposit of the security alongwith revision was found fatal. It is held by this Court that High Court does not have any discretion to condone the said lapse. In context of the said argument, it is urged that this petition may be dismissed due to non-compliance of the mandatory requirement of the Rules. 3. It is held by this Court that High Court does not have any discretion to condone the said lapse. In context of the said argument, it is urged that this petition may be dismissed due to non-compliance of the mandatory requirement of the Rules. 3. In counter to the argument of the non-applicant No. 1, learned Senior counsel, Shri V.S. Shroti contends that the requirement of Rule 19(2) of the Election Petition Rules is mandatory, which has been complied immediately after presentation of this revision by the applicant depositing the amount of security for the cost of the revision. However, the purposive interpretation of Rule 19(2) ought to be done by the Court. In such circumstances, the objection raised by the non-applicant No. 1 may be dismissed. In support of his contention, reliance has been placed on a judgment of Hon'ble Apex Court in the case of M. Karunanidhi Vs. H.V. Handa and others, AIR 1983 SC 558 . Reliance has further been placed on another judgment of Hon'ble Apex Court rendered in the case of D. Saibaba Vs. Bar Council of India and another, (2003) 6 SCC 186 , and said that interpretation of statute where literal construction or plain meaning may cause hardship, futility, absurdity or uncertainty the Court may prefer purposive or contextual construction to arrive at a more just, reasonable and sensible result. Further, relying upon the judgment of Hon'ble Apex Court in the case of Mahadev Govind Gharge and others Vs. Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka, (2011) 6 SCC 321 , in the context that in procedural law the purpose and interpretation is always intended to facilitate process of achieving ends of justice besides expeditious disposal of cases and Courts normally favour interpretation, which would achieve said object. It is further said that the provisions of the procedural law, which have no penal consequence in default of their compliance and even clothe Court with discretion to condone same should normally be construed as directory in nature and receive liberal construction. It is further said that the provisions of the procedural law, which have no penal consequence in default of their compliance and even clothe Court with discretion to condone same should normally be construed as directory in nature and receive liberal construction. Learned Senior Counsel referring the meaning of "at the time" in the context of the Words and Phrases State and Federal Court from America by the Book of Permanent Edition, West Publishing Company submits that within statute providing that certificate of title duly assigned shall be delivered to purchaser at the time motor vehicle is delivered, refer to the whole transaction or series of circumstances and do not literally mean "eo instanti". However, if after filing the revision and on pointing out the defect of non-deposit of the security for the cost of the revision, it was rectified on the same day then the words "at the time of presentation" en-grafted in Rule 19(2) of Election Petition Rules should be construed liberally maintaining this petition. It is further submitted by him that Chapter 20 of High Court of Madhya Pradesh Rules, 2008 do not prescribe any mode and manner to deposit the security for cost, however, on rectification of the defect pointed out by the Registry on the same day, if this revision is dismissed, then it will run contrary to the interpretation of the statute and would not be meaningful. In view of the aforesaid, it is submitted that the objection raised by the non-applicant No. 1 may be turned down at threshold. 4. After having heard learned Counsel appearing on behalf of the parties and on perusal of the facts of this case, it is apparent that non-applicant No. 1 had filed the election petition bearing No. 34/2011 before the First Additional District Judge, Harda challenging the election of the applicant as Councilor from Ward No. 12 (V.V. Giri Ward, Harda), which was allowed by the order impugned dated 29-1-2014. By filing this revision under Section 26(2) of the Act by the applicant on 3-2-2014 order impugned is challenged. On presentation of this revision, Section Officer has pointed out two defects, which are reproduced as under:- (1) Legible copies/typed copies--Typed copy of handwritten Annexure A-8. (2) Deposit Receipt--Receipt of deposit amount Rs. 250/-. Not deposited in the High Court Cashier Judicial. On presentation of this revision, Section Officer has pointed out two defects, which are reproduced as under:- (1) Legible copies/typed copies--Typed copy of handwritten Annexure A-8. (2) Deposit Receipt--Receipt of deposit amount Rs. 250/-. Not deposited in the High Court Cashier Judicial. However, on the next date, learned Counsel for the applicant appeared and put up the note that "default removed". In the record of this petition, an application submitted by the Counsel for the applicant to the Registrar General, High Court of M.P. in respect to deposit of Rs. 250/- as per Rule 19 of the Election Petition Rules is available by which it was deposited on 3-2-2014 on the same day. In the said application number of the Civil Revision has also been specified, meaning thereby after presentation of the revision, it was registered as Civil Revision allotting its number and when the defect has been pointed out by the Registry, it has been cured by deposit of Rs. 250/- as reflected from the note of applicant's Counsel regarding removal of the defect. In the said context, while considering the objection raised by non-applicant No. 1, it is to be examined that the compliance of Rule 19(2) of the Election Petition Rules is mandatory and such compliance has been truly made by the applicant to maintain the revision at the time of its presentation. 5. In the said context, first of all Rule 19 of the Election Petition Rules is required to be referred, which is quoted hereinbelow:-- "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 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. If the provisions of this rule are not complied with the High Court shall dismiss the petition." A bare reading of sub-rule (2), it is clear that "at the time of presentation" of the petition challenging the decision of the Judge, under Section 26(2) of the Act, the petitioner "shall" deposit a sum of Rs. 250/- as security for the cost of the revision. 250/- as security for the cost of the revision. The later part of sub-rule (2) specifies the consequence, if the provisions of this rule are not complied with, the High Court "shall" dismiss the petition. In view of the aforesaid, it is apparent that the starting of sub-rule (2) emphasise that "at the time of presentation" security deposit should be made, otherwise consequence of such non-compliance has been specified in the later part of the said rule using the words, that High Court "shall" dismiss it. In the said context by the judgment of this Court interpreting the Rule 19(2) in the case of Radheshyam (supra), it was held that the requirement to deposit the security amount for cost under Rule 19 is mandatory. It has further been held that by filing a subsequent petition and depositing security at the time of presentation with an intent to cure such illegality would not amount to cure the same. However, this Court while dismissing the revision petition, held that, if it is allowed for the purpose of maintaining the subsequent petition, it would defeat the provisions of laws. 6. In another decision of Aslam Beg Mirdha (supra), this Court has interpreted Rule 19(2) of the Election Petition Rules and held that while filing revision petition under Section 26(2) of the Act, the compliance of provisions of Rule 19(2) of Election Petition Rules is mandatory. It is further held that the security amount has to be deposited alongwith revision petition and the High Court has no discretion to condone the lapse. This judgment was delivered relying upon the judgments of Hon'ble Supreme Court rendered in the cases of Charan Lal Sahu (supra) and Aeltemesh Rein (supra). 7. Learned Senior Counsel, Shri Shroti has placed reliance on the judgment of M. Karunanidhi (supra), wherein the issue regarding dismissal of election petition under Section 117 of the Representation of Peoples Act for depositing the security alongwith the election petition by way of challan in the name of Registrar of the Madras High Court in the Reserve Bank of India. It was urged, that the High Court dismissed the said election petition because the security has not been deposited in cash as specified in Rule 8 of Madras High Court Election Petition Rules, 1967 as specified therein. It was urged, that the High Court dismissed the said election petition because the security has not been deposited in cash as specified in Rule 8 of Madras High Court Election Petition Rules, 1967 as specified therein. It is submitted by him that as the manner to deposit was not specified in the rules and deposit was made by challan at the time of filing, therefore, treating the manner to deposit directory, which was not specified in the rules, deposit of security was accepted by way of challan in the name of Registrar. Thus, even in a case where compliance to deposit security is found mandatory but its manner was not specified, however, the dismissal of petition by the High Court was set aside. In the facts of present case, wherein the amount of security for cost of revision has been deposited on the same day and date, however, even the compliance of Rule 19(2) of the Election Petition Rules is found mandatory, this petition should not be dismissed merely because the deposit was in later part of the day, which cannot be fatal as it is on the date of presentation of election petition. 8. In order to advert the said contention, interpretation of Rule 19(2) of the Election Petition Rules is necessary, the starting word of sub-rule (2) is "at the time of presentation" of the petition for revision challenging the decision of the Judge shall deposit with the High Court a sum of Rs. 250/- as security for the cost of the revision. However, in the first part of Rule 2, it is clear that at the time of presentation of the petition, the security deposit should be made. The aforesaid view finds support from the judgment of the Co-ordinate Bench of this Court in the cases of Aslam Beg Mirdha (supra) and Radheshyam (supra). However, looking to the language of the rule using word "shall" for deposit, there is no reason to differ from the said view and it is reiterated that compliance of Rule 19(2) to deposit security for cost is the mandatory compliance. The later part of this rule starts from the words that if the provisions of this rule are not complied with, the High Court "shall" dismiss the petition; meaning thereby in the first part as well as in the later part the word "shall" has been used. The later part of this rule starts from the words that if the provisions of this rule are not complied with, the High Court "shall" dismiss the petition; meaning thereby in the first part as well as in the later part the word "shall" has been used. However, the deposit of security of cost is mandatory "at the time of presentation" and if it is not deposited in compliance of the rules, dismissal is the consequence. In the case of Sharif-ud-din Vs. Abdul Gani Lone, AIR 1980 SC 303 , E.S. Vekataramiah, J., delivering the judgment in the case observed that:-- "Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow." 9. In addition to the aforesaid, as per the Major Law Lexicon by P. Ramanatha Aiyar, 4th Edition 2010, 590, the connotation "at the time of presenting of application" has been dealt with in the context of Section 17 of the Provincial Small Cause Courts Act, 1887. Referring the judgment of the Allahabad High Court in the case of Har Kumar Vidyarthi Vs. Sudha Devi, AIR 2006 NOC 792 (All), it is held that the expression "at the time of presenting of application" occurring in Section 17 of the Act means time when application is presented to the proper officer of the Court. However, in the said context, if the language of Rule 19(2) is looked into, then it is apparent that at the time of presentation of the petition for revision the sum of Rs. 250/- as security for the cost of the revision must be deposited with the High Court and as per the later part of the said Rule, if the provisions of this rule are not complied with then the election petition shall be dismissed. Thus legislature using the word "shall" in first part as well as in later part expressed the concern in the context of depositing the security at the time of presentation otherwise the dismissal is a consequence. Using "shall" makes the compliance of Rule 19(2), stricto sensu at the time of presentation of the election petition, the deviation from such noncompliance lead to dismissal of the petition. Using "shall" makes the compliance of Rule 19(2), stricto sensu at the time of presentation of the election petition, the deviation from such noncompliance lead to dismissal of the petition. In the said context, it is to be held that Rule 19(2) either in first part or later part is mandatory. In view of the discussion made hereinabove, it is apparent that at the time of presentation of the petition for revision if the cost was not deposited, however, the defect was pointed out by the Section Officer and to rectify the said defect, the cost though deposited on the same day but subsequently which would not lead to different consequence to maintain the petition for the Rule 19(2) as referred in the statute. In such circumstances, the arguments as advanced by learned Senior Counsel, Shri Shroti relying upon the judgment of M. Karunanidhi (supra), would not be applicable in this case. It is not a case where the whole transaction or series of circumstances requires to comply the provisions of Rule 19(2) of the Election Petition Rules. In fact, it is to be interpreted in the context that when the election petition is presented, the cost shall be deposited by way of security to the High Court. However, the word "at the time of presentation of petition" has been used therein to deposit cost on presentation meaning thereby "eo instanti". In other words, we can say that as and when the decision passed by the Judge has been challenged by filing the revision before the High Court under Section 26(2) of the Act then at the time of presentation, the security of the cost must be deposited and after pointing out of the defect if such deposit is made in the later part of the day, it would not come within the connotation "at the time of presentation" and it would lead to consequence of dismissal as specified in the later part of sub-rule (2) of Rule 19 of Election Petition Rules. 10. 10. In view of the foregoing discussion, relying upon the judgment of this Court in the case of Radheshyam (supra), as well as Aslant Beg Mirdha (supra), having no discretion with the High Court to condone the lapse of non-depositing the security of cost of revision at the time of presentation of revision, in my considered opinion, objection raised by the non-applicant No. 1 deserves to be upheld and this petition is liable to be dismissed. Accordingly, upholding the objection filed by the non-applicant No. 1, this petition is hereby dismissed due to non-compliance of Rule 19(2) of Election Petition Rules, in the facts. Parties to bear their own cost.