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Rajasthan High Court · body

2018 DIGILAW 1518 (RAJ)

Ganesh Pareek S/o Nand Lal Pareek v. Mustfa Luhar S/o Mohd. Haroon

2018-07-18

SANDEEP MEHTA

body2018
JUDGMENT : 1. The instant writ petition under Article 226/227 of the Constitution of India is preferred by the petitioner Ganesh Pareek elected Sarpanch of the Gram Panchayat Bigod, Panchayat Samiti Mandalgarh, District Bhilwara for assailing the proceedings of the election held on 24.01.2015 result whereof was declared on the same day. 2. The respondent No.1 Mustfa Luhar presented the above mentioned election petition on 23.02.2015 in the Court of District Judge, Bhilwara under Section 43 of the Rajasthan Panchayati Raj Act, 1994 read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. The registry of the District Court, Bhilwara made a noting on the petition wherein, mentioning at serial No.4 that the election petitioner (respondent No.1 herein) had not deposited security amount of Rs.500/- along with the election petition. As per the order-sheet dated 27.02.2015, it is indicated that the election petitioner sought some time to remove the defects. Thereupon, the next date was given by the Election Tribunal as 11.03.2015. The requisite security amount of Rs..500/- was tendered and deposited by the election petitioner on 11.03.2015. The election petition was registered and notice thereof was issued to the petitioner herein being the returned candidate by order dated 11.03.2015. Soon after marking appearance in the proceedings, the petitioner proceeded to submit his reply on 04.01.2016. Thereafter, the petitioner submitted an application under Order 7 Rule 11 CPC read with Section 151 CPC praying that the election petition be dismissed as the same suffered from the fatal defect of non-tendering of the security amount of Rs.500/- simultaneously with the election petitioner in terms of Rule 81 of the Panchayat Raj (Election) Rules and thus, it had to be presumed that the election petition was not lawfully submitted within the statutory time of 30 days and hence, the same was liable to be dismissed. The Election Tribunal, proceeded to reject such application filed by the petitioner vide order dated 01.02.2016 holding that the election petition itself was presented within a period of 30 days of declaration of result of election and non-deposition of the security amount of Rs.500/- within the said period of 30 days was not mandatory nor could this defect be treated as fatal so as to terminate the proceedings. The learned Election Tribunal held that the election petitioner could not receive certain copies within time and thus, the delay could be excused and was not fatal to the proceedings. With these findings, the application preferred by the petitioner returned candidate under Order 7 Rule 11 of CPC read with Section 151 CPC was dismissed vide order dated 01.02.2016 which is assailed in the instant writ petition. 3. Shri Paramveer Singh Champawat has put in appearance on behalf of election petitioner-respondent No.1 whereas, Shri Manish Patel, learned AGC has marked appearance on behalf of the State through Panchayati Raj Department. Both have filed reply to the writ petition craving dismissal thereof. 4. Mr. Sridhar Mehta learned counsel representing the petitioner drew the Court’s attention to the relevant provisions i.e. Rules 80 and 81 of the Rajasthan Panchayati Raj (Election) Rules, 1994 and urged that the procedure provided in these rules is mandatory and any deviation there from is not curable and must result into dismissal of the election petition. The defect of non-deposition of the security amount within the statutory period of 30 days as prescribed by Rule 81(2) of the Rules of 1994 is a fatal one and cannot be allowed to be cured in any condition whatsoever. He placed reliance on the Supreme Court Judgments in the cases of Ram Sukh vs. Dinesh Aggarwal, reported in (2009)10 SCC 541 and M. Karunanidhi vs. H.V. Handa & Ors., reported in AIR 1983 SC 558 and urged that the view taken by the Election Tribunal in the impugned order that the election petition was itself presented within a period of 30 days and the non-deposition of the security amount was not a fatal defect, is absolutely illegal, arbitrary and contrary to the mandatory requirements of the statute. On these grounds, he implored the Court to exercise its supervisory writ jurisdiction and craved setting aside of the impugned order passed by the learned Election Tribunal consequent dismissal of the election petition preferred by the respondent No.1 against the petitioner. 5. Per contra, Shri Paramveer Singh, learned counsel representing the respondent No.1 election petitioner vehemently opposed the submissions advanced by the petitioner’s counsel. He relied upon the Judgments of this Court in the cases of Ashok Kumar vs. Learned A.D.J. No.2,Chittorgarh & Ors. 5. Per contra, Shri Paramveer Singh, learned counsel representing the respondent No.1 election petitioner vehemently opposed the submissions advanced by the petitioner’s counsel. He relied upon the Judgments of this Court in the cases of Ashok Kumar vs. Learned A.D.J. No.2,Chittorgarh & Ors. (SB Civil Writ Petition No.7637/2016) decided on 08.08.2016 and Girija vs. Kuki Devi (S.B. Civil Writ Petition No.13485/2017) decided on 04.12.2017 and urged that the order passed by the Election Tribunal is perfectly just and proper and that the application preferred by the petitioner under Order 7 Rule 11 CPC was rightly rejected. He contended that it was clearly mentioned in the election petition that the election petitioner was ready and willing to tender the security amount of Rs.500/-. However, the learned Tribunal did not pass a specific order approving acceptance of the security amount in absence whereof, the election petitioner could not proceed in the direction of depositing the security amount. He thus urged that the non-deposition of the security amount by the election petitioner was owing to the illegal omission on part of the Tribunal and not the election petitioner who cannot be penalised for the Tribunal’s fault. He contended that this Court has taken this very view in the cases of Ashok Kumar and Girija, referred to supra, and craved dismissal of the writ petition on these grounds. 6. Shri Manish Patel, learned AGC supported the arguments advanced by Shri Champawat. 7. I have given my thoughtful consideration to the arguments advanced by the learned counsel representing the parties and have gone through the material available on record. 8. The law is well settled by a catena of decisions including that of M. Karunanidhi’s case (supra) that in an election dispute, non-presentation of the election petition explicitly in the manner prescribed by law is fatal and the defect existing therein, unless expressly curable by law, cannot be allowed to be removed and must entail into dismissal of the election petition on this very ground. The Hon’ble Supreme court, in the case of Ram Sukh vs. Dinesh Aggarwal (supra), while dealing with the provisions of Representation of the People Act, 1951, has clearly laid down that non-tendering of security amount along with election petition is a fatal defect which cannot be cured. 9. The Hon’ble Supreme court, in the case of Ram Sukh vs. Dinesh Aggarwal (supra), while dealing with the provisions of Representation of the People Act, 1951, has clearly laid down that non-tendering of security amount along with election petition is a fatal defect which cannot be cured. 9. Thus, the moot issue which this Court would be required to adjudicate in the case at hand is as to whether the election petitioner did offer or tender the security amount to the Tribunal within the stipulated mandatory period of 30 days or not. Manifestly, as per Rule 85 of the Election Rules, the provisions of CPC are to be applied wherever procedure is not provided in the Rules or the Act itself. As per the relevant provisions of CPC, an amount required to be deposited can only be considered as validly tendered if the party offers to deposit the same with a challan form in triplicate. It is not case of the election petitioner (respondent No.1) that he actually tendered the security amount with triplicate copies of Form No.21 as per the General Rules (Civil). The said tender form (Annexure-3) as placed on record of the writ petition bears the date 11.03.2015. Manifestly thus, the first endeavour of the election petitioner to tender/deposit the security amount was on 11.03.2015 by which date, the limitation prescribed for filing of the election petition (30 days) had expired. In the cases of Ashok Kumar as well as Girija, relied upon by Shri Champawat, the factual situation was that the election petitioner had along with the election petition, actually furnished the challan forms in triplicate in accordance with Rules 260 to 265 of the General Rules (Civil), 1986 which read as below:- “260. Mode of payment of money into court. – Payment of money into court shall ordinarily be made by means of a tender upon a printed triplicate form. The applicants shall enter in the court language the particulars required in columns 1 to 4 of the triplicate form of tender (F. 23). The applicant shall then hand over the tender to the Munsarim or the Reader of the Court concerned, as the case may be. 261. Office report by the official-in-charge of the record. The applicants shall enter in the court language the particulars required in columns 1 to 4 of the triplicate form of tender (F. 23). The applicant shall then hand over the tender to the Munsarim or the Reader of the Court concerned, as the case may be. 261. Office report by the official-in-charge of the record. - The Munsarim or the Reader of the court concerned, as the case may be, shall then f call upon the official-in-charge of the record of the case for an office report as to whether the amount and nature of the payment tendered and the number of the suit, or proceeding, if any are correct, and whether the payment is due from the person on whose account it is tendered. Any necessary corrections shall be made and the munsarim or the Reader of the Court concerned, as the case may be, shall then sign the tender and enter it in the register of challans prior to the order for receipt of payment being passed. 262. Preparation of the order for payment. - The order to receive payment shall be prepared in the office of the Court and shall be enfaced upon the duplicate and triplicate forms of the tender, and shall run in the name of or Receiving Officer as prescribed in Rules 255, 256, 257. The order shall be signed by the Presiding Officer for all amount payable under Head of Account (1) (a) and (2) of Rule 253 and by the Munsarim or the Reader of the court concerned; as the case may be for all amounts payable under Head of Account (1) (b) of Rule 253. The tender form shall then be sent to the Receiving Officer who shall (in case where the deposit exceeds Rs. 25/-), prepare cash challan in form No. G.A. 57 in Duplicate and will hand it over to the party concerned for depositing the amount in Treasury. After depositing the amount in the Treasury, the party shall submit one copy of the cash challan to the Receiving Officer bearing bank endorsement of depositing of such amount. The Receiving Officer shall then make necessary entries in the concerned Register and make endorsement of the challan No. and date and amount on each of the three forms of the tender. The Receiving Officer shall then make necessary entries in the concerned Register and make endorsement of the challan No. and date and amount on each of the three forms of the tender. Thereafter, the Receiving Officer shall send the tender forms to the Munsarim or the Reader of the Court concerned, as the case may be. The third form of tender shall be retained in custody by the Munsarim or the Reader of the court concerned, as the case may be, and then he shall return the second copy of the lender to the applicant and the original copy shall be sent to the concerned court for keeping it in the concerned case file. 263. Munsarim's responsibility to prevent unnecessary delay. - The Munsarim or the Reader of the Court concerned, as the case may be, shall be possible that no unnecessary delay occurs in obtaining the office report and the order to receive payment and in returning the duplicate form of tender to the applicant and the original form to the court concerned for placing it on the levant case file. 264. Procedure on presentation of the tender forms. - On presentation of the three tender forms and on payment of money to the Receiving Officer named in the court's order to receive payment, the applicant shall receive as an Acknowledgment, the duplicate form of the tender duly signed. 265. Cash- Book and Register of petty receipts. - Every receipt of cash under these rule by the Receiving Officer shall be forthwith entered by him, in the relevant Cash-Book and Register. If item falls under the head of account (1) (a) of Rule 253 it will be entered in deposit Cash-Book (Reg. 16). If the amount item falls under (1) (b) of Rule 253, it will be entered in the Register of Petty Receipts and Repayment (Reg. 18). If item falls under (2) of Rule 253 it will be Referred in Cash-Book (general) (Reg. 27), and in the Register of Revenue Receipts (Reg. 22).” 10. As the amount of security was more than Rs.25/-, the same could not be deposited without an express order of the Court. However, the Election Tribunal failed to pass an order for depositing the same and hence, the amount was deposited in the Treasury with some delay. 11. 27), and in the Register of Revenue Receipts (Reg. 22).” 10. As the amount of security was more than Rs.25/-, the same could not be deposited without an express order of the Court. However, the Election Tribunal failed to pass an order for depositing the same and hence, the amount was deposited in the Treasury with some delay. 11. Considered in light of these facts, apparently, the factual complexion of the case at hand is entirely different from that of pevailing in the two cases relied upon by Shri Champawat. In both those cases, there was a genuine offer of the election petitioner with challans in triplicate to accept the security amount which was duly tendered but the fault lay on the part of the Tribunal in not passing the order for the deposition thereof. Those circumstances were considered sufficient to save the election petitions from dismissal on account of the fatal defect of non-deposition of security amount. However, as noticed above, in the present case, the situation is entirely different and admittedly, the election petitioner did not tender the security amount to the Tribunal along with challan form in triplicate along with the election petition and instead, offered to deposit the same for the first time on 11.03.2015 i.e. well after the statutory limitation of 30 days for filing the election petition had elapsed. Thus, the election petition presented by the election petitioner (respondent No.1 herein) suffered from the fatal defect of non-tendering of the security amount and was required to be dismissed. The learned Election Tribunal, whilst rejecting the application filed by the petitioner under Order 7 Rule 11 CPC has committed manifest error apparent in law and hence, the impugned order dated 01.02.2016 cannot be sustained. 12. Resultantly, the writ petition deserves to be and is hereby allowed. The impugned order dated 01.02.2016 passed by the Election Tribunal is hereby set aside. As a consequence, the election petition No.1/2015 submitted by the election petitioner-respondent No.1 for challenging the petitioner’s election is hereby dismissed as suffering from the fatal defect of non-deposition of security amount to the tune of Rs.500/- within 30 days. 13. Stay application is disposed of. No order as to cost.