Research › Search › Judgment

Telangana High Court · body

2019 DIGILAW 398 (TS)

Ekhar Pasha v. Lacchavar Nithin

2019-10-28

SHAMEEM AKTHER

body2019
ORDER : Shameem Akther, J. 1. Since the facts of the case, parties to the litigation and the issues involved for determination in both these petitions are identical, both these civil revision petitions are being disposed of by this common order. 2. Both these civil revision petitions are filed by the same petitioner/respondent No. 1 in Election OP No. 4 of 2019, challenging the common order, dated 2.7.2019, passed in IA Nos. 80 & 81 of 2019 in Election OP No. 4 of 2019, by the Principal Junior Civil Judge-cum-Election Tribunal for Gram Panchayat at Bodhan, whereby, the Court below dismissed IA No. 80 of 2019 filed by the petitioner praying to dismiss the main Election Petition No. 4 of 2019 in limine, and allowed IA No. 81 of 2019 filed by the petitioner seeking permission of the Court below to pay the deficit security deposit before proceeding into enquiry. 3. Heard the submissions of Sri Vedula Srinivas, the learned Counsel for the petitioner, Sri M. Achutha Reddy, learned Counsel for the 1st respondent in both these civil revision petitions and perused the record. 4. The learned Counsel for the petitioner would contend that Rule 5(i) & (ii) of the Telangana Panchayat Raj (Authority to dispose petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Parishads) Rules 2018 (for short, 'the Rules'), are mandatory in nature. In the instant case, an amount of Rs. 1,000/- was not deposited on the date of the filing of the election petition, i.e., 11.2.2019. When the revision petitioner filed an application to reject/dismiss the plaint, the respondent No. 1/election petitioner filed an application in IA No. 81 of 2019 before the Court below on 26.3.2019 and sought permission to allow him to deposit Rs. 1,000/- as security, as contemplated in the Rule 5(i) of the Rules. The Court below erroneously allowed the said application. The time stipulated to pay, an amount of Rs. 1,000/- as security is only thirty days, which was not complied by the election petitioner. It is a mandatory provision. It is not discretionary, as determined by the Court below. 1,000/- as security, as contemplated in the Rule 5(i) of the Rules. The Court below erroneously allowed the said application. The time stipulated to pay, an amount of Rs. 1,000/- as security is only thirty days, which was not complied by the election petitioner. It is a mandatory provision. It is not discretionary, as determined by the Court below. The Court below committed illegality/perversity in dismissing IA No. 80 of 2019 and allowing IA No. 81 of 2019 and ultimately prayed to allow IA No. 80 of 2019 and dismiss IA No. 81 of 2019 in EP No. 4 of 2019 on the file of the Principal Junior Civil Judge-cum-Election Tribunal for Gram Panchayat at Bodhan. In support of his contentions, learned Counsel for the revision petitioner had relied on a judgment of this Court in Bangaru Sankaraiah v. Talari Pothalaiah, 2015 (4) ALD 394 . 5. On the other hand, the learned Counsel for the respondent No. 1 herein/election petitioner would contend that Rule 5(i) & (ii) and Rule 9 of the Rules have to be read together. Rule 5(i) of the Rules is not mandatory. It is discretionary. The Court below had not returned the election petition for want of payment of Rs. 1,000/- towards security and without taking any objection, was pleased to number the same. Having noticed that a cash of Rs. 1,000/- was not deposited in tune with Rule 5(i) of the Rules, an application in IA No. 81 of 2019 was filed by the election petitioner and the Court below is justified in allowing the same, granting time of one week to deposit the same from the; date of the said order. Therefore, the requirement under Rule 5(i) of the Rules is complied with. There is no perversity or illegality in the impugned common order, dated 2.7.2019, and ultimately prayed to sustain the common order under challenge and dismiss both the civil revision petitions. 6. In view of the above rival contentions, the point that arises for determination in both these civil revision petitions is as follows: "Whether payment of cash of Rs. 1,000/- towards security in terms of Rule 5(i) of the Telangana Panchayat Raj (Authority to dispose petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Parishads) Rules, 2018, alongwith the election petition, is mandatory or discretionary?" Point: 7. 1,000/- towards security in terms of Rule 5(i) of the Telangana Panchayat Raj (Authority to dispose petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Parishads) Rules, 2018, alongwith the election petition, is mandatory or discretionary?" Point: 7. Rule 5 of the Telangana Panchayat Raj (Authority to dispose petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Parishads) Rules 2018, reads as under: "5(i) At the time of presentation of the petition, the petitioner shall deposit with it in cash Rs. 1000/- (Rupees one thousand only) as security for the costs of same. Explanation:- Where the election of more than one returned candidate is called in question a separate deposit shall be made in respect of each such returned candidate. (ii) If the provisions of these rules are not complied with, the Election Tribunal shall dismiss the petition. (iii) Upon compliance with the provision of sub-rule (1) the Election Tribunal shall proceed to enquire into the petition." 8. A bare perusal of the above extracted provision makes it clear that Rule 5(i) of the Rules is mandatory. It mandates the election petitioner to deposit Rs. 1000/- in cash, as security for the costs of the petition. Rule 5(ii) of the Rules is again in mandatory terms. It mandates that if the provisions of Rule 5(i) of the Rules are not complied with, the Election Tribunal shall dismiss the petition. It is thus clear that the provision in Rule 5 is mandatory and if for any reason amount of Rs. 1000/- is not deposited alongwith the election petition, the Election Tribunal has no other option, but to dismiss the said petition. The above rules did not give any discretion to the Election Tribunal to entertain an election petition, even though the petitioner was restrained from complying with the said mandate for justifiable cause and reason, within the time fixed. 9. In Bangaru Sankaraiah's case (supra), relied by the learned Counsel for the petitioners in both these revisions, this Court took a similar view. 9. In Bangaru Sankaraiah's case (supra), relied by the learned Counsel for the petitioners in both these revisions, this Court took a similar view. In the said decision, this Court referred to a decision of a Division Bench of this Court in Anjamma v. S. Pushpamma and another, 2001 (1) ALD 77 (DB) : 2001 (1) ALT 235 (DB), wherein, this Court considered identical issue and held that if the petitioner in an election petition complied with the mandate of Rule 5 of the Rules in all respects and presented/represented the petition within one month, such petition is maintainable. Though on a plain reading of Rule 5 of the Rules such course is not envisaged, this Court proceeded to give benefit of doubt to a person if Rs. 100/- is not paid alongwith election petition when it was originally presented, but has paid the same within one month. 10. In the case on hand, the results of the Sarpanch elections were declared on 25.1.2019. The election petition was filed by the election petitioner on 11.2.2019. IA No. 80 of 2019 was dismissed by the Court below on 25.3.2019. IA No. 81 of 2019 was filed by the respondent No. 1 in both these civil revision petitions on 26.3.2019. The said petition was ordered, wherein one week time was granted to the respondent No. 1/election petitioner to pay cash of Rs. 1,000/- towards security. The respondent No. 1/election petitioner had paid the said amount. Thus, payment of Rs. 1,000/- by the respondent No. 1/election petitioner towards security was made beyond the period of thirty days of limitation prescribed to file the election petition. In the facts and circumstances of the case, the discretion exercised by this Court in Anjamma's case (supra), cannot be extended to the respondent No. 1/election petitioner. The Court below, without adverting to the mandate given under Rule 5(i) of the Rules, erroneously extended the time and allowed IA No. 81 of 2019. In view of the mandate given under Rule 5(i) of the Rules, the Court below ought not have extended the time to deposit the amount of Rs. 1,000/- towards security. The extension of time granted by the Court below is not in tune with Rule 5(i) of the Rules. Thus, the Court below exceeded its jurisdiction in passing the impugned common order, dated 2.7.2019, and as such, committed illegality. 11. 1,000/- towards security. The extension of time granted by the Court below is not in tune with Rule 5(i) of the Rules. Thus, the Court below exceeded its jurisdiction in passing the impugned common order, dated 2.7.2019, and as such, committed illegality. 11. It is also appropriate to extract Rule 9 of the Telangana Panchayat Raj (Authority to dispose petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Parishads) Rules 2018, which reads as under: 9. Any order made by the Election Tribunal as to the costs of the enquiry may be executed in the same manner as if it was land revenue due and be recovered as per the provisions of the Telangana Revenue Recovery Act, 1864, and be remitted to the party in whose favour it is ordered by the Election Tribunal. 12. Rule 5(i) and Rule 9 of the Rules are to be read independently. Both these rules have different applications. The submissions put forth on behalf of the respondent No. 1/election petitioner do not merit consideration. Further, the Court below had taken a view that it did not take objection with regard to the compliance of Rule 5(i) of the Rules, i.e., payment of Rs. 1,000/- towards security and allowed IA No. 81 of 2019 on that score. Rule 5(i) of the Rules mandates the election petitioner to deposit Rs. 1,000/- as security. Whether the Court takes an objection or not, it is mandatory for the election petitioner to deposit Rs. 1,000/- as security. Merely because the Court below had not taken any objection to that effect, the election petitioner cannot seek protection on that ground. 13. For the foregoing reasons, the impugned common order is not sustainable. Accordingly, both these civil revision petitions are allowed by setting aside the impugned common order, dated 2.7.2019. Consequently, IA No. 80 of 2019 filed before the Court below stands allowed and IA No. 81 of 2019 filed before the Court below stands dismissed. Consequently, Election OP No. 4 of 2019 filed before the Court below stands dismissed. No order as to costs. 14. Miscellaneous petitions, if any, pending in both these civil revision petitions, shall stand closed.