ION Civil Appeal No 38NCE of 1981
Appeal by Special leave from the judgment and Order dated the 1st January 1980 of the Madras High Court in Application No 4309 of 1980 in Election Petition No 17 of 1980
AND Special Leave Petition Civil No 1580 of 1981 From the Judgment and Order dated the 13th January 1981 of the Madras High Court in Election Petition No 13 of 1980 633 AND Special Leave Petition Civil No 5178 of 1981
From the Judgment and Order dated the 8th July 1981 of the Madras High Court in Application No 1967 of 1981 in Election Petition No 14 of 1980
AND Civil Appeal No 4216NCE of 1982
Appeal by Special leave from the Judgment and Order dated the 22nd October 1982 of the Madras High Court in Application No 265 of 1981 in Election Petition No 5 of 1980
AND Civil Appeal No 1170 of 1981
Appeal by Special leave from the Judgment and Order dated the 4th February 1981 of the Madras High Court in Application No 189 of 1981 in Election Petition No 7 of 1980
IN CIVIL APPEAL NO
3881 G Ramaswamy K Rajendra Chowdhury NA Subhramanyam and Mahabir Singh for the Appellant
NT Vanamalai RK Garg VJ Francis and Bhaskar Shankar for the Respondent
AV Rangam for Respondent No 10
ATM Sampath for the intervener
IN SLP C NO
1580 OF 1981 CS Vaidyanathan for the Petitioner
ATM Sampath for Respondent No 1
AVRangam for Respondent No 2 634 IN SLPC NO 5178 of 1981 KR Nambiar for the Petitioner
PN Ramalingam for the Respondent
IN CA NO 1170 of 1981 G Ramaswamy and AS Nambiar for the Appellant
ATM Sampath for Respondent No 1
AV Rangam for Respondent No 2
IN CA
4216 of 1980 AS Nambiar and P Parmeswaran for the Appellant
ATM Sampath for Respondent
AV Rangam for Respondent
The Judgment of the Court was delivered by SEN J
These appeals by special leave and the connected special leave petitions from the judgment and orders of the High Court of Madras raise the same question and therefore they are disposed of by this common judgment
In Civil Appeal No 38 NCE of 1981 there is a further question involved
The facts are more or less similar in all these appeals except that in Civil Appeal No 38NCE of 1981 there are certain additional facts
It will suffice for our purposes to set out the facts giving rise to that appeal
At the last general election to the State Legislative Assembly of Tamil Nadu from the Anna Nagar Assembly Constituency No 8 held in May 1980 the appellant M Karunanidhi leader of the Dravida Munnetra Kazhagam party contested as a candidate of that party and secured 51290 votes
As against this the respondent Dr HV Hande sponsored as a candidate by the All India Anna Dravida Munnetra Kazhagam secured 50591 votes
On June 1 1980 635 the appellant M Karunanidhi was consequently declared elected by a margin of 699 votes
The last date for filing an election petition to challenge his election was July 16 1980
On July 14 1980 the respondent Dr HV Hande filed an election petition under section 81 read with section 100 of the Representation of People Act 1951 for the sake of brevity hereinafter referred to as the Act  challenging the election of the appellant on various grounds
The election petition was accompanied by a pre receipted challan prepared by the Accounts Department of the High Court on the basis of a lodgment schedule initialled by the Assistant Registrar II High Court showing that a sum of Rs 2000 had been credited on July 11 1980 to the account of the Registrar High Court Madras in the Reserve Bank of India Madras as security for costs along with the lodgment schedule signed by the Assistant Registrar II
The respondent pleaded inter alia in paragraph 18 of the petition that the appellant was guilty of corrupt practice under sub s6 of section 123 of the Act by incurring or authorising expenditure in contravention of section 77
It was alleged that he had failed to disclose certain items of expenditure in his statement of election expenses filed by him in connection with the election as detailed in subparagraphs a to e of paragraph 18 of the petition
The allegation in paragraph 18b related to an expenditure of about Rs 50000 in erecting fancy banners throughout the constituency and it was alleged that there were such fancy banners about 50 in number the cost of each banner being not less than Rs 1000 It was averred in paragraph 18b that a photograph of one such banner was filed along with the petition
Admittedly though the respondent had filed with the election petition a photograph of one such banner a copy of the photograph was not annexed to the copy of the petition furnished to the appellant
On October 30 1980 the appellant filed his written statement
He pleaded inter alia that the election petition was liable to be dismissed in limine under sub section
1 of section 86 due to non compliance with the requirements of sub s1 of s117 of the Act read with rule 8 of the Madras High Court Election Petitions Rules 1967 for the reason that there was no deposit of Rs 2000 in cash in the High Court as security for costs and also for non compliance with the requirements of sub s3 of section 81 of the Act as the copy of the election petition served on the appellant was not accompanied by a copy of the photograph of the alleged fancy banner annexed to the 636 petition as alleged in paragraph 18b of the petition
The appellant accordingly raised a preliminary objection as to the maintainability of the election petition
The High Court by its order dated December 1 1980 overruled both the preliminary objections
In regard to the objection based on sub s1 of section 117 of the Act read with Rule 8 of the Madras High Court Election Petitions Rules 1967 for short the Election Petitions Rules  the High Court held that a sum of Rs 2000 as security amount had been deposited by the respondent in the Reserve Bank of India to the credit of the Registrar High Court at the instance of the High Court and in accordance with the procedure followed for deposit of amounts in court
In reaching that conclusion the High Court relied upon the lodgment schedule presented by K Subramaniam counsel for the respondent which had been prepared in the Registry by the Assistant Registrar II and the challan in triplicate prepared by the Accounts Department of the High Court and signed by the official referee specifying the amount and the date within which it had to be deposited
It held that the requirements of sub s1 of section 117 of the Act read with rule 8 of the Election Petitions Rules for the making of the deposit of Rs 2000 as security for costs in the High Court were mandatory but the manner of making such deposit was directory and as the amount of Rs 2000 had in fact been deposited to the credit of the Registrar High Court within the time allowed therefor there was substantial compliance with the requirements of sub section
1 of section 117 of the Act
As regards the objection based on the non supply of a copy of the photograph of the fancy banner adverted to in paragraph 18b the High Court relying upon the decision of this court in Sahodrabai Rai vs Ram Singh Aharwar1 held that the banner could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banners erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a breach of the provisions contained in sub s3 of section 81 of the Act
These findings were reached by the High Court on the basis of the affidavits filed by the parties and the material on record
The High Court had also before it a report from the Registry as to the procedure followed with regard to Court deposits 637 Any person desirous of paying money into Court shall present a lodgement schedule duly vouched by the concerned Section regarding the quantum and the time limit and initialled by the Officers of Original Side or Appellate side as the case may be to the Accounts Department for the issue of a Challan to enable the party to make the payment into Reserve Bank of India Madras to the credit of the case concerned
On the presentation of the Lodgement Schedule to the Accounts Department a Challan in triplicate specifying the amount and the date within which it should be paid will be issued by the Accounts Department to the person desirous of making such payment who will deliver the Challan to the Bank
The Bank in turn after deposit deliver one part of the Challan duly signed to the person making the payment
On the production of the Challan the Accounts Department will make necessary credit entries in the ledgers and the receipt registers
The remaining two parts of the Challan are sent by Reserve Bank of India Madras to Pay and Accounts Office which in turn sends one part of it to this Office
Sometimes it takes about one or two months to receive the said Challan from the Pay and Accounts Office
In cases where advocates do not produce one part of Challan in Accounts Department credit entries are made on the strength of the Challan from Pay and Accounts Office and the pass book from the Reserve Bank of India Madras
Official receipt for such deposits are issued under the signature of the Assistant Registrar Original Side for Original Side Deposits and of the Deputy Registrar for Appellate Side Deposits to such of those parties who produce one part of the Challan and make a request for official receipt to that effect
It is also submitted that Accounts Department will not receive cash without specific orders to that effect
This is the procedure that is being followed by the Accounts Section of High Court with regard to Court Deposits
 It is against this order of the High Court that this appeal was filed
The appeal was first heard in April 1981 and this Court by 638 its order dated April 2 1981 remitted back the issue with regard to the alleged non compliance with the requirements of sub s1 of section 117 read with rule 8 of the Election Petitions Rules to the High Court for a decision afresh as it was felt that the point raised was primarily a matter of evidence but the parties had unfortunately not led any evidence on the point
It accordingly directed the High Court to record the evidence that may be adduced as regards the practice and procedure followed by the High Court in regard to the making of an election petition under section 81 of the Act and the manner in which the security amount of Rs 2000 was deposited in the High Court in compliance with the requirements of sub s1 of section 117 of the Act read with rule 8 of the Election Petitions Rules
After the issue was remitted the High Court allowed the parties to lead their evidence both oral as well as documentary and has recorded its findings dated July 20 1981
The High Court adhered to its earlier view that on a construction of sub section
1 section 117 of the Act the factum of making of deposit of Rs 2000 as security for costs in the High Court was mandatory but the manner of making such deposit was directory and further held that although there was no strict or literal compliance with the requirements of rule 8 of the Election Petitions Rules there had been substantial compliance with the requirements of sub s1 of s117 of the Act in that the requisite amount of Rs 2000 had actually been deposited to the credit of the Registrar High Court in the Reserve Bank of India on July 11 1980 that is before the election petition was filed on July 14 1980 and the same was available for payment of costs
In the connected cases also the High Court reached the same conclusion after taking evidence of the respective parties
It appears from the evidence adduced in all these cases that after the general elections to the State Legislative Assembly of Tamil Nadu the then Chief Justice Ismail CJ nominated KS Natarajan PW 4 Assistant Registrar II to deal with all election petitions filed under section 81 of the Act
The evidence of PW 4 shows that he met the officer in charge of the Accounts Department of the High Court and ascertained the procedure to be followed for making the security deposit of Rs 2000 in cash in the High Court
He was informed by the officer in charge that the party filing the election petition should bring the lodgment schedule duly filed and that PW4 should initial it and then the lodgment schedule had to 639 be taken to the Accounts Department
He was told that the Accounts Department would prepare a challan in triplicate and hand over the same to the party for depositing the money in the Reserve Bank of India in the name of the Registrar High Court and that the duplicate challan must be filed along with the election petition
He deposed that the same procedure was adopted in all the cases
The lodgment schedule Ex P 2B prepared by K Subramaniam PW6 counsel for the respondent had been initialled by him and that he had also put the date July 14 1980 by which date the deposit had to be made K Subramaniam PW6 counsel for the respondent stated that the respondent had given him the amount of Rs 2000 in the first week of July 1980 and accompanied by an authorised representative of the respondent he took the lodgement schedule exhibit P 2B to KS Natarajan PW4 Assistant Registrar II who initialled the same and indicated the date by which the deposit was to be made
He then took the lodgment schedule to the Accounts Department where section Seturaj PW1 working as challan issuing clerk prepared the challan in triplicate
Thereafter he took the challan in triplicate to the Reserve Bank of India and deposited the amount of Rs 2000 in cash in the name of the Registrar High Court and the duplicate copy of the challan was handed over to him
The duplicate copy of the challan exhibit P 2C bears the seal of the Reserve Bank of India with the endorsement received in cash  and is dated July 11 1980
The duplicate copy of the challan Ex P 2C was filed along with the election petition
At this point it is necessary to refer to the entries of the duplicate copy of the challan
Column 1 of the challan bears the heading By whom paid and name or designation and address of the person on whose behalf money is paid and the entry reads Registrar High Court Madras and bears the seal of the High Court
Column 2 reads On what account with authority if any and the entry bears the name of the counsel for the election petitioner and mentions that the amount was deposited as security deposit for the election petition
Column 3 bears the heading Amount and the amount deposited in each case is entered as Rs 2000
The last column bears the heading Head of account and gives the head as PDAc Registrar High Court Madras
A bare reading of the challans would show that the amount of Rs 2000 as security for costs was received by the High Court and credited to its own account
When the High Court asked the counsel for the election 640 petitioner to credit the amount in the Reserve Bank along with the pre receipted challan it must be deemed that the Reserve Bank was acting as an agent of the High Court
All the challans bear the seal of the Reserve Bank of India with the endorsement received in cash
Article 329b of the Constitution provides that no election to either House of Parliament or to the House or either House of the Legislature of the State shall be called in question except by an election petition presented to such authority and in such manner as may be provided by or under any law made by the appropriate Legislature
The Representation of the people Act 1951 is a law made by Parliament under article 327 of the Constitution to provide for adjudication of disputes regarding such elections
Part VI of the Act is headed Disputes regarding elections  and Chapter II in that Part deals with the presentation of election petitions to the High Court
Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI
Section 80A provides that the Court having jurisdiction to try an election petition shall be the High Court
In NP Ponnuswami vs Returning Officer Namakkal1 this Court restated the principle that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it
The Court having regard to the non obstante clause in article 329 b held that the Act having furnished a complete Code for challenging an election the election must be challenged in the manner provided
The Court relied upon the dictum of Wiles J in Wolverhampton New Water Works Company vs Hawkesford2 which has become classical
It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of
As observed by this Court in Jagan Nath vs Jaswant Singh  Ors
3 an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power
It also added that It is a sound principle of natural justice that the success of a candidate who has won at an election should not be 641 lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law
 At the same time the Court added a note of caution It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices
In cases where the election law does not prescribe the consequence or does not lay down penalty for non compliance with certain procedural requirements of that law the jurisdiction of the tribunal entrusted with the trial of the case is not affected
 There are two questions that fall for determination
The first is whether the election petition filed by the respondent under section 81 read with s100 of the Representation of the People Act 1951 was liable to be dismissed in limine under sub section
1 of s86 on the ground that there was non compliance with the requirements of sub section
1 of section 117 of the Act read with r 8 of the Election Petitions Rules
The second is whether the election petition is also liable to be dismissed under sub section
1 of s86 of the Act inasmuch as the copy of the election petition furnished to the appellant was not accompanied by a copy of the photograph of the fancy banner referred to in paragraph 18b of the petition as required by sub section
3 of s81 of the Act
In view of the arguments addressed to us it is necessary to set out a few of the relevant provisions which bear upon the points raised
S81 deals with presentation of election petitions
It runs 81
1 An election petition calling in question any election may be presented on one or more of the grounds specified in sub section 1 of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days from but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different the later of those two dates
642 Explanation In this sub section elector  means a person who was entitled to vote at the election to which the election petition relates whether he has voted at such election or not
3 Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
 Section 82 which is the next section lays down who shall be parties to an election petition
We need not refer to this section in detail since we are not concerned with it
S83 is however material and it provides what shall be the contents of an election petition
It reads 83 1 An election petition a shall contain a concise statement of the material facts on which the petitioner relies b shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and c shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 5 of 1908 for the verification of pleadings Provided that where the petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof
2 Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition
 The next chapter which is Chapter III deals with the trial of election petitions but here we are concerned only with sub section
1 of 643 section 86 which interdicts that the High Court shall in certain circumstances dismiss an election petition in limine
Sub section 1 of section 86 provides as follows 86 1 The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117
Explanation An order of the High Court dismissing an election petition under this sub section shall be deemed to be an order made under clause a of section 98
 Sub section
1 of section 117 which is important for our purposes is in these terms 117
Security for costs 1 At the time of presenting an election petition the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the costs of the petition
 Rule 8 of the Madras High Court Election Petitions Rules 1967 framed by the High Court under article 225 of the Constitution which is also important for the purposes of these cases provides as follows 8
An Election Petitioner before presenting his Election Petition shall deposit in the High Court in cash a sum of two thousand rupees towards security for costs as provided for under Section 117 of the Act and shall produce the receipt of the Registrar for the same at the time of presentation of the petition
 Rule 12 of the Election Petitions Rules is also relevant and reads 12
Subject to the foregoing rules and to the extent they are not inconsistent with the provisions of the Act the Rules of the High Court 1956 Original Side shall as far as practicable be observed in all Election Petitions and all applications taken in respect of them
 644 Taking up the contentions in the order in which they were advanced we shall first deal with the submission that there was non compliance with the mandatory requirements of sub section
1 of section 117 of the Act read with r8 of the Election Petitions Rules framed by the High Court which is common to all these cases
The factum of deposit of Rs 2000 in each of these cases on the strength of pre receipted challans issued by the Accounts Department of the High Court in the Reserve Bank of India to the credit of the Registrar High Court Madras as security for costs well within the period of limitation for filing the election petition is not in dispute and the controversy turns on the question whether the deposit of the security amount was in accordance with the rules of the High Court
There are different sets of rules framed by different High Courts under article 225 of the Constitution regulating the practice and procedure to be observed in all matters coming before the High Court in exercise of its jurisdiction under s80A of the Act
The words in accordance with the rules must therefore connote according to the procedure prescribed by the High Court
The mode of making deposit must necessarily be an internal matter of the concerned High Court
In support of this appeal learned counsel for the appellant contends that the provisions of sub section
1 of section 117 of the Act are mandatory non compliance of which will entail dismissal of the election petition in limine under sub section
1 of s86 of he Act
It is urged that no distinction can be drawn between the requirement as to the making of a security deposit in the High Court under sub section
1 of section 117 and the manner of making such deposit and sub section 1 of section 117 cannot be dissected into two parts one part being treated as mandatory and the other as directory
It is further urged that the words in accordance with the rules of the High Court under sub section
1 of section 117 were as much a mandatory requirement as the requirement that the election petitioner shall at the time of presenting an election petition deposit in the High Court a sum of Rs 2000 as security for the costs of the petition
There is therefore no warrant for the view taken by the High Court that the factum of deposit of the security amount of Rs2000 in the High Court was mandatory and not the manner in which the security deposit was made
It is also urged that r8 of the Election petitions Rules framed by the High Court under article 225 to regulate the mode of making deposit must be read as forming part of sub s1 of s117 by incorporation and therefore the only manner prescribed is by 645 making deposit in cash with the Registrar
When a statute requires that something shall be done in a particular manner or from expressly declaring what shall be the consequence of non compliance with it the requirement must be regarded as imperative
Having regard to the definite stand taken by the respondent that he had complied with the requirements of r8 it is not permissible to fall back on the provisions contained in order 31 of the Madras High Court Rules relating to deposit of suitors  money
The last submission is that in view of the finding reached by the High Court that there was no strict or literal compliance of r8 the election petition must be dismissed
Even if the rule of substantial compliance applies it is clear on evidence that there has been no compliance at all much less any substantial compliance
There is intrinsic evidence to show that there has been tampering with the documents
We are afraid the contention that there was no compliance of sub section 1 of s117 of the Act cannot prevail in the light of the well settled principles
The submissions advanced by learned counsel for the appellant cannot be accepted as they proceed on the assumption that no distinction can be drawn between the requirement as to the making of a deposit in the High Court under sub section
1 of s117 and the manner of making such deposit
There was considerable emphasis laid by learned counsel that sub section
1 of s117 cannot be dissected into two parts one part being treated as mandatory and the other as directory
The contention is wholly misconceived and indeed runs counter to several decisions of this Court
It is always important to bear the distinction between the mandatory and directory provisions of a statute
Sub section
1 of s117 is in two parts
The first part of sub section
1 of s117 provides that at the time of presenting an election petition the petitioner shall deposit in the High Court a sum of Rs 2000 as security for the costs of the petition and the second is that such deposit shall be made in the High Court in accordance with the rules of the High Court
The requirement regarding the making of a security deposit of Rs 2000 in the High Court is mandatory the non compliance of which must entail dismissal in limine of the election petition under sub section
1 of s86 of the Act
But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory
As Maxwell on the Interpretation of Statutes 12th edn
at p314 puts it An absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled 646 substantially
 The rule of construction is well settled and we need not burden the judgment with many citations
It is well established that an enactment in form mandatory might in substance be directory and the use of the word shall does not conclude the matter
The general rule of interpretation is well known and it is but an aid for ascertaining the true intention of the Legislature which is the determining factor and that must ultimately depend on the context
The following passage from Crawford on Statutory Construction  at p516 brings out the rule The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed
The meaning and intention of the legislature must govern and these are to be ascertained not only from the phraseology of the provision but also by considering its nature its design and the consequences which would follow from construing it the one way or the other
 This passage was quoted with approval by the Court in State of UP vs Manbodhan Lal Srivastava1 The State of Uttar Pradesh  Ors
vs Babu Ram Upadhya2 and Raza Buland Sugar Co Ltd vs Municipal Board Rampur3 The Court in Manbodhan Lal s case supra where article 320 3 c of the Constitution was held to be directory and not mandatory relied upon the following observations of the Privy Council in Montreal Street Railway Company vs Normandih4 The question whether provisions in a statute are directory or imperative has very frequently arisen in this country but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at
The cases on the subject will be found collected in Maxwell on Statutes 5th ed p596 and following pages
When the provisions of a statute relate to the performance of a public duty and the case is such 647 that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature it has been the practice to hold such provisions to be directory only the neglect of them though punishable not affecting the validity of the acts done In Manbodhan Lal s case supra the contention was that the reduction in rank after departmental inquiry was invalid for noncompliance with the requirements of article 320 3 c of the Constitution which read literally made it obligatory for the Government of India or a Government of a State to consult the Union Public Service Commission or the State Public Service Commission in all disciplinary matters affecting a person in service of the State
In turning down the contention it was observed by this Court The use of the word shall in a statute though generally taken in a mandatory sense does not necessarily mean that in every case it shall have that effect that is to say that unless the words of the statute are punctiliously followed the proceeding or the outcome of the proceeding would be invalid
 Following the principle laid down by the Privy Council in Montreal Street Railway Company s case supra the Court held that article 320 3 c itself contemplates three grounds and the word shall appeared in almost every paragraph and every clause or sub clause of that Article
If it were held that the provisions of Art 320 3 c were mandatory in terms the other clauses or sub clauses of that Article would have to be equally held to be mandatory
If they were so held any appointments made to the public services without observing strictly the terms of these sub clauses in cl
3 of article 320 would adversely affect the person so appointed to a public service without any fault on his part and without his having any say in the matter and this could not have been contemplated by the makers of the Constitution
The Court held that if the Article were construed as mandatory it would cause serious general inconvenience and injustice to persons who had no control over those entrusted with the duty
As the Privy Council itself pointed out the question whether provisions in a statute are directory or mandatory cannot be decided 648 by laying down a general rule and in every case the object of the statute must be looked at
In Raza Buland Sugar Co Ltd s case supra the question for consideration was whether the whole of sub s3 of s 131 of the UP Municipalities Act 1916 was mandatory or the part of it requiring publication in the manner laid down in sub s3 of s94 was merely directory
Per majority the Court held that sub s3 of section 131 could be divided into two parts the first one providing that the proposal and draft rules for a tax intended to be imposed should be published for the objections of the public if any and the second laying down that the publication must be in the manner laid down in sub section
3 of section 94
Considering the object of the provisions for publication namely to enable the public to place its view point the Court found it necessary to hold that the first part of the section was mandatory for to hold otherwise would be to render the whole procedure prescribed for the imposition of tax nugatory
The second part of the section was however held to be merely directory
In that case there was no regularly published local Hindi newspaper but the publication was made in Hindi in a local paper which on the evidence seemed to have good circulation in Rampur
There was in the circumstances substantial compliance with the provisions of sub s3 of section 94 of that Act
There was quite some discussion at the Bar as to the legality and propriety of the procedure adopted in the Madras High Court as to the making of a security deposit under sub section
1 of s117 of the Act
The objection is to the manner of such deposit being made on the strength of pre receipted challan prepared by the Accounts Department on the basis of the lodgment schedule into the Reserve Bank of India to the credit of the Registrar High Court Madras
It was submitted that this was in complete violation of r8 of the Election Petitions Rules
It is said that r 8 must be read as forming part of sub s1 of section 117 and the only manner prescribed is by making deposit in cash with the Registrar and obtain his receipt therefor
It was urged that it is paradoxical to say that deposit of money into the Reserve Bank to the credit of the Registrar High Court Madras is a sufficient compliance of sub s1 of s117 when r 8 provides that the money should be deposited in the High Court in cash and that is the only mode prescribed under sub s1 of section 117
We are afraid we are unable to accept this line of argument
649 A literal and mechanical interpretation of r8 would lead to manifest absurdity as it would imply that in every case the election petitioner shall have to pay to the Registrar a sum of Rs 2000 in cash towards security for costs as required by sub s1 of s117 of the Act and obtain a receipt from him therefor
Rule 8 is silent as to how the cash is to be handled
It cannot ordinarily be expected that the Registrar of a High Court would accept the amount of security deposit in cash
The procedure adopted by II Assistant Registrar in directing that the money be deposited to the credit of the Registrar of the High Court in the Reserve Bank of India was in conformity with the requirements of r8 of the Election Petitions Rules
Inasmuch as r 8 does not lay down the procedure regulating the manner of deposit of cash the matter falls to be governed by r2 of Order 31 of the Madras High Court Original Side Rules 1956 by reason of r 12 of the Election Petitions Rules
Although Order 31 r 2 does not in terms apply because Order 31 relates to Payment into court of moneys to the credit of civil court deposits and account of suitor s money and though no lodgment schedule can be prepared under r2 except in pursuance of a decree or order passed by the High Court ie in relation to some proceeding pending or disposed of by the High Court still by virtue of r 12 of the Election Petitions Rules that is the procedure to be adopted for deposit of Rs 2000 in the High Court in cash ie by crediting the amount on the strength of a pre receipted challan prepared by the Accounts Department on the basis of a lodgment schedule
That was the only procedure applicable and there was nothing wrong in the procedure adopted in making the deposit
When the amount was so deposited with a pre receipted challan issued by the Accounts Department to the credit of the Registrar of the High Court and the Reserve Bank of India made the endorsement Received in Cash it must be regarded that the payment was made in the High Court and the pre receipted challan bearing the endorsement of the Reserve Bank of India must be treated as the receipt of the Registrar in terms of r 8 the Reserve Bank acting as an agent of the High Court
We are informed that the same practice and procedure has been followed during the relevant period in all the election petitions filed in the Madras High Court and there was no separate receipt of the Registrar except in one case where the election petition was not tried
We need not dilate on the point any further
It must accordingly be held that there was due compliance with the requirements of sub s1 of section 117 of the Act read with r 8 of the Election Petitions Rules
650 The matter is no longer res integra
The submission runs counter to the decision of this Court in the well known case of KKamaraja Nadar vs Kunju Thevar  Ors1 That was a case under the old section 117 of the Act as it stood prior to its amendment by Act 47 of 1966
It read The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition In that case the petitioner enclosed a Government Treasury receipt showing a deposit of Rs1000 as security for costs in the State Bank of India Ranchi Branch but it did not show that the deposit had been made in favour of the Secretary to the Election Commission
A question arose whether the election petition was liable to be dismissed summarily under s85 or sub s3 of s90 as the requirements of section 117 of the Act had not been complied with
The Court analyzed section 117 and observed that it consisted of three parts viz 1 The Government Treasury receipt must show that such deposit had actually been made in a Government Treasury or in the Reserve Bank of India
2 It must show that it had been made in favour of the Secretary to the Election Commission
And 3 it must further show that it had been made as security for the costs of the petition
The question then arose whether the words in favour of the Secretary to the Election Commission were mandatory in character so that if the deposit had not been made in favour of the Secretary to the Election Commission as therein specified the deposit even though made in a Government Treasury or in the Reserve Bank of India and as security for costs of the petition would be invalid and of no avail
This Court held that these words in section 117 were directory and not mandatory in their character and that the essence of the provision contained in section 117 was that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of Rs 1000 had been made by him either in a Government Treasury or in the Reserve Bank of India to be at the disposal of the 651 Election Commission to be utilized by it in the manner authorized by law and was under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorized by it to receive the same be he the Secretary to the Election Commission or any one else
If this essential requirement was complied with no literal compliance was at all necessary with the words in favour of the Secretary to the Election Commission
Though therefore the making of the deposit and the presentation of the receipt thereof along with the petition was held to be mandatory this Court held that the form in which the deposit should be made was only directory
This Court rejected the contention that the election petition was liable to be dismissed in limine under section 85 or sub s3 of section 90 for non compliance with the requirements of section 117 of the Act and observed It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of section 117 and would involve a dismissal of the petition under section 85 or section 903
The above illustration is sufficient to demonstrate that the words in favour of the Secretary to the Election Commission used in s117 are directory and not mandatory in their character
What is of the essence of the provision contained in section 117 is that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same be he the Secretary to the Election Commission or any one else The same question was dealt with in Chandrika Prasad Tripathi vs Siv Prasad Chanpuria  Ors1 In that case security deposit of Rs 1000 had been made but not in terms in the name of the Secretary 652 to the Election Commission instead the deposit was made refundable by order of the Election Commission of India New Delhi
The Court held that the objection based on the peculiar wording of the deposit was purely technical
To the same effect are the decisions of this Court in Om Prabha Jain vs Gian Chand  Anr1 and Budhi Nath Jha vs Manilal Jadav2 The Court in all these cases followed the decision in Kamaraja Nadar s case supra that section 117 of the Act should not be strictly or technically construed and that substantial compliance with its requirements should be treated as sufficient
In contrast the decisions in Charan Lal Sahu vs Nandkishore Bhatt  Ors3 and Aeltemesh Rein vs Chandulal Chandrakar  Ors4 were cases where the petitioners made no security deposit before filing their election petitions
In Charan Lal Sahu s case supra the petitioner applied to the High Court for being absolved from making any security deposit or to reduce the amount required to be deposited under the Act
This Court referred to article 329 b of the Constitution and held that the petitioner had no right to file an election petition except in the manner provided by the Act
There being no provision to absolve the petitioner from payment of security for costs this Court held that the Madhya Pradesh High Court was right in rejecting the election petition under sub section
1 of s86 of the Act
In Aeltemesh Rein s case supra it was stated in the petition that a security amount of Rs 2000 was being deposited but in fact no deposit was made
The Madhya Pradesh High Court dismissed the election petition
On appeal the petitioner contended that sub section
1 of s117 of the Act was ultra vires article 329 b of the Constitution and therefore the High Court was in error in dismissing the election petition on the ground of non compliance of the provisions of sub section
1 of s117
This Court repelled the contention and expressed the view that the words in such manner in article 329b could not be limited in their operation to procedural requirements
The Court held  The provision of law which prescribes that an election petition shall be accompanied by the payment of security amount pertains to the area covered by the manner of the 653 making of the election petition and is therefore within the authority of Parliament Adverting to the dismissal of the election petition by the High Court this Court held that the High Court had no option but to dismiss the petition as it was not accompanied by payment of the security deposit for sub section
1 of s86 of the Act clearly provides that the High Court shall dismiss an election petition which did not comply with the provisions of s81 or 82 or 117 of the Act
The remaining part of the case is not free from difficulty
There are two questions that arise namely 1 Whether the photograph referred to in paragraph 18b was a schedule or annexure within the meaning of sub section
2 of s83 and therefore formed an integral part of the election petition and thus the failure to furnish the appellant with a copy of the photograph along with a copy of the election petition amounted to a non compliance of sub section
3 of s81 2 Whether the High Court was right in relying upon the decision of this Court in Sahodrabai Rai vs Ram Singh Aharwr1 in holding that the photograph was merely a document filed along with the election petition as a piece of evidence in proof of the allegation contained in paragraph 18b and therefore there was no need for the respondent to supply the appellant with a copy of the photograph
To bring out the points in controversy the averments in paragraph 18b may be set out  18
The Petitioner submits that the first Respondent is guilty of the corrupt practice under Section 1236 of the Act by incurring and authorising expenditure in excess of the limit of Rs 35000 fixed under Section 77 of the Act
The first Respondent has submitted a statement of election expenses disclosing a total of Rs 1012575 only
A true photostat copy of the Return filed by him is filed herewith as Annexure V He has however failed to disclose the following amount incurred by him in connection with the election between the date of his nomination and the date of the declaration of the result thereof
b The first Respondent erected fancy banners throughout the constituency and the number of such 654 banners is about 50
A photograph of one such banner is filed herewith
The cost of each such banner will be not less than Rs 1000
The expenditure involved in erecting these fifty banners is about Rs 50000
It is submitted that the first Respondent has incurred the above said expenditure which added to the amount disclosed in the Return of Election Expenses exceeds the amount fixed under Section 77 3 of the Act thus amounting to a corrupt practice under Section 1236 of the Act
 Admittedly a copy of the photograph was not furnished to the appellant along with a copy of the election petition The averment contained in paragraph 18b would be incomplete without a copy of the photograph being supplied with a copy of the election petition
The averment therein is that the appellant committed a corrupt practice under sub s6 of s123 of the Act by incurring or authorising expenditure in contravention of s77
It is alleged that the appellant had set up fancy banners throughout the constituency and the number of such banners was about 50 the cost of each such banner being not less than Rs 1000 and therefore the expenditure involved in erecting these 50 banners was not less than Rs 50000  but that the appellant had not disclosed the amount in the return of the election expenses and thus committed a corrupt practice under sub s6 of s123 of the Act
It is not possible to conceive of the dimension of the large fancy banner unless one has a look at the photograph
The photograph filed with the election petition gives a visual description of the fancy banner the cost of which at a mere look would show that the expenditure in setting up each such banner would be Rs 1000 or more
The photograph depicts two election banners
One of them is a huge fancy banner or a hoarding on the left side of the road and the other on the right is a smaller election banner
The fancy banner depicts two groups and the appellant is present in both
On the left hand top there is a large picture of the appellant with the late Sri Annadurai and at the right hand below there is a smaller picture of the appellant with Smt
Indira Gandhi
The fancy banner shown in the photograph contains an election slogan in Tamil appealing to the electorate to vote for the appellant
This has been translated for us into English and it reads 655 To The Electorate in Anna Nagar Constituency I request you to mark on the Rising Sun and ensure success to enable service to you
Always your affectionate Kalaignar M Karunanidhi Polling Date 31580 It is true that paragraph 18b must be read in conjunction with the opening part of paragraph 18
Though the words in connection with do not appear in paragraph 18b these words are there in paragraph 18 and therefore it must be taken that the fancy banners were set up in connection with the election
Nevertheless without being furnished with a copy of the photograph the averments in paragraph 18b would be incomplete as regards the allegation of the corrupt practice committed by the appellant
We are driven to this conclusion by the mandatory requirement of sub section
3 of section 81 of the Act which is in two parts
The first part of sub section
3 of s81 provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part relates to the manner in which such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
It has already been stated that mandatory provisions must be fulfilled exactly whereas it is sufficient if directory provisions are substantially fulfilled
In Ch
Subbarao vs Member Election Tribunal Hyderabad1 this Court held that 1 if there is a total and complete non compliance of the provisions of sub s3 of s81 the election petition might not be an election petition presented in accordance with the provisions of this Part within the meaning of s80 of the Act and 2 by the expression copy in sub section
3 of s81 it was meant not an exact copy but only one so true that nobody can possibly misunderstand it being not the same as the original
In Ch
Subbarao s case supra there was no attestation at the foot of the copies that they were true copies
It was held that the absence in the copy of a note to the effect that it was a true copy  656 could not detract the copy from being a true copy
The facts and circumstances of the case therefore showed that there had been a substantial compliance with the requirements of sub s 3 of s81 of the Act
The wider question whether sub section
3 of section 81 or a part thereof is mandatory or directory was left open
On the facts of that case the Court held that if there was substantial compliance with the requirements of sub section
3 of s81 the election petition could not be dismissed
It was submitted on behalf of the appellant that there was total and complete non compliance of the requirements of sub section
3 of section 81 and therefore the election petition was liable to be dismissed in limine under sub section
1 of s86
The argument to the contrary advanced on behalf of the respondent was that the photograph filed along with the election petition had to be treated as a document in proof of the allegations contained in paragraph 18b and not as a part of the election petition
The submission is that there is a distinction between a schedule or annexure to the petition referred to in sub section
2 of section 83 and a document which is merely evidence in the case which is annexed to the election petition and to such a document sub section
3 of s81 is not attracted
The preliminary issue and the appeal turn on a short point of construction
The question that arises is whether the words copies thereof in sub section
3 of s81 comprehend the election petition proper or do they also include a schedule or annexure annexed thereto
The controversy whether the photograph was a schedule or annexure in terms of sub section
2 of s83 or merely a document only in proof of the allegations in paragraph 18b must turn on a construction of sub section
3 of s81 read with sub s2 of s83
It now appears to be well settled by Sahodrabai s case supra that sub section
2 of s83 applies only to a schedule or annexure which is an integral part of the election petition and not to a document which is produced as evidence of the election petition
In dealing with sub section
2 of s83 of the Act it was observed We are quite clear that sub section
2 of s83 has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put not in the election petition but in the accompanying schedules or annexures
We can give quite a number of examples 657 from which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures
For example the details of the corrupt practice there in the former days used to be set out separately in the schedules and which may in some cases be so done even after the amendment of the present law
Similarly details of the averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition
The law then requires that even though they are outside the election petition they must be signed and verified but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondent if the requirement regarding service of the election petition is to be wholly complied with
But what we have said here does not apply to documents which are merely evidence in the case but which for reasons of clarity and to lend force to the petition are not kept back but produced or filed with the election petitions
They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof
The pamphlet therefore must be treated as a document and not as a part of the election petition in so far as averments are concerned
 The High Court rests its conclusion on the decision of this Court in Sahodrabai s case supra but that decision in our opinion is inapplicable to the facts and circumstances of the present case
In Sahodrabai s case supra an election petition was filled together with a pamphlet as annexure thereto
A translation in English of the pamphlet was incorporated in the body of the election petition and it was stated that it formed part of the petition
A preliminary objection was raised that a copy of the pamphlet had not been annexed to the copy of the petition served on the returned candidate and therefore the election petition was liable to be dismissed under sub s1 of s86 of the Act
The Madhya Pradesh High Court sustained the preliminary objection and dismissed the election petition
On appeal this Court held that the words used in sub section
1 of section 81 are only the election petition and there was no mention of documents accompanying the election petition
Since the election petition itself reproduced the whole of the pamphlet in translation 658 in English it could not be said that the averments with regard to the pamphlet were themselves a part of the petition and therefore the pamphlet had in fact been served on the returned candidate although in a translation and not in the original
The Court then stated that even if it were not so sub section
2 of s83 of the Act has reference not to a document which is produced as evidence of the averments of the election petition but to averments of the election petition which are put not in the election petition but in the accompanying schedules or annexures
It was observed that the details of averments may be too compendious for being included in the petition and may be set out in the schedule or annexure to the election petition
The Court then gave examples on which it would be apparent that many of the averments of the election petition are capable of being put as schedules or annexures
It then went on to say that such annexures or schedules are treated as integrated with the election petition and copies of them must be served on the returned candidate if the requirement regarding service of the election petition is to be wholly complied with
But that this rule was not applicable to documents which are merely an evidence in the case but which for reasons of clarity and to lend force to a petition are not kept back but are produced or filed with the election petition
The Court added They are in no sense an integral part of the averments of the petition but are only evidence of those averments and in proof thereof In that view of the matter the Court held that the pamphlet in question had to be treated as a document and not as a part of the election petition so far as the averments were concerned
It said It would be stretching the words of sub section
2 of s83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper
In this particular case we do not think that the pamphlet could be so treated
 It follows as a necessary corollary that if the pamphlet had not been incorporated in the body of the election petition the decision of the Court in Sahodrabai s case supra would have been otherwise
That precisely is the case here
659 In this connection we may next refer to the decisions of this Court in Jagat Kishore Prasad Narayan Singh vs Raj Kumar Poddar  Ors
1 and Satya Narain vs Dhuja Ram  Ors
2 In Jagat Kishore Prasad Naryan Singh s case supra there were serious discrepancies between the original election petition filed in the Court and the copies supplied to the contesting candidates
This Court dismissed the election petition on the ground of non compliance of sub section
3 of s81 as the copies furnished to the contesting respondents were not true copies and there was divergence between the allegations made in the petition and the allegations made in the copies and that such divergence was bound to mislead the contesting candidates and prejudice their defence particularly in a case where the returned candidate is charged with corrupt practice
That is because he must know the nature of the charge against him so that he may prepare his defence
It was observed The law requires that a true copy of an election petition should be served on the respondents
That requirement has not been either fully or substantially complied with
 The next case in point is Satya Narain vs Dhuja Ram  Orssupra where the election petition was not accompanied by the requisite number of spare copies for service on the respondent and no schedules were filed along with the petition
When the petition came up for scrutiny the Deputy Registrar of the High Court asked the election petitioner to remove the defects
Before the date refixed the spare copies were filed and the defect removed
The question before the Court was whether the petition was liable to be dismissed in limine under sub section
1 of s86 of the Act for non compliance of sub section
3 of s81
The importance of the decision in Satya Narain s case supra lies in the fact that the Court laid down that the first part of sub section
3 of s81 which required that the election petition should be accompanied by as many copies thereof as there were respondents mentioned in the petition was mandatory in character and non compliance with it was fatal to the petition in view of sub section
1 of s86
The decision in Kamalam vs Dr VA Syed Mohamad3 may also be referred
What had happened in that case was this
The signature of the election petitioner by way of authentication appeared 660 at the foot of the copy of the affidavit but there was no such signature separately appended at the foot of the copy of the election petition
There was a preliminary objection raised that since the copy of the election petition had not been attested by the petitioner under her own signature to be a true copy there was no compliance with sub s3 of s81 of the Act and hence the petition was liable to be dismissed in limine under sub section
1 of s86 of the Act
In repelling the contention the Court observed that the second part of sub s3 of s81 had been complied with upon the view that the copy of the petition and the affidavit filed along with it as required by law constituted one single document and the signature in original of the petitioner in proof of the affidavit satisfied the requirements of sub s3 of s81 of the Act
In explaining as to what constitutes an election petition for purposes of sub section
3 of s81 it was observed Now the first question which arises is as to what constitute an election petition for the purpose of section 81 sub section 3
Is it confined only to election petition proper or does it also include a schedule or annexure contemplated in sub section 2 of section 83 or a supporting affidavit referred to in the proviso to section 83 sub section 1 To answer this question we must turn to section 83 which deals with contents of an election petition
Sub section 1 of that section sets out what an election petition shall contain and provides that it shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 for the verification of pleadings
The proviso requires that where the petitioner alleges any corrupt practice prescribed form in support of the allegation of such corrupt practice the election petition shall also be accompanied by an affidavit in the and the particulars thereof
The context in which the proviso occurs clearly suggests that the affidavit is intended to be regarded as part of the election petition
Otherwise it need not have been introduced in a section dealing with contents of an election petition nor figured as a proviso to a sub section which lays down what shall be the contents of an election petition
Sub section 2 also by analogy supports this inference
It provides that any schedule or annexure to an election petition shall be signed by the petitioner and verified in the same manner as an election petition
It is now established by the decision of this Court in Sahodrabai Rai vs 661 Ram Singh Aharwar that sub section 2 applies only to a schedule or annexure which is an integral part of the election petition and not to a schedule or annexure which is merely evidence in the case but which is annexed to the election petition merely for the sake of adding strength to it
 The test to be applied in determining whether the photograph referred to in paragraph 18b is an integral part of the election petition or was merely a piece of evidence in proof of the allegations contained therein depends on whether it is a part of the pleadings
Upon the view that the photograph was not merely a document accompanying the election petition but was a part and parcel of the pleading contained in paragraph 18b it is unnecessary for us to deal with the submission based on order VII r14 of the Code of Civil Procedure 1908
Our attention was drawn to the passage in Sahodrabai s case supra at p18 of the Report
The Court observed that under order VII r14 where a plaintiff sues upon a document in his possession or power he is required to file only one copy of the document and not as many copies as there are defendants and therefore a copy of the document is not expected to be deliberate with the copy of the plaint to the answering defendants when summons is served on them and that it would be too strict a reading of the provisions of sub section
3 of s81 and sub section
2 of s83 to lay down that the election law provides anything different
These observations cannot in our opinion be read out of context
The decision in Sahodrabai s case supra was that since the election petition itself reproduced the whole of the pamphlet in a translation in English the pamphlet filed along with the petition had to be treated as a document and not as a part of the election petition and that being so the Court observed that it would be stretching the words of sub section
3 of s81 and sub section
2 of s83 too far to think that every document produced as evidence in the election petition becomes a part of the election petition proper
We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif ud din vs Abdul Gani Lone 1 but that decision is not directly in point
One of us Venkataramiah J had occasion to deal with the corresponding sub section
3 of s89 of the Jammu  Kashmir Representation of the people Act 1957 which reads 662 Every election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition
 In that case both the copies of the election petition contained the endorsement Attested true copy Piyare Lal Handoo Advocate
The question arose whether there was a sufficient compliance with the provisions of sub section
3 of s89 of that Act
The Court pointed out that sub section
3 of s89 consists of two parts
The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain s case supra The Court held the second part also to be mandatory and observed It is true that sub s3 of s89 of the Act was purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice
But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner the Courts have no option but to enforce the law as it is Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub section 3 of s89 of that Act as it required attestation by the election petitioner himself
The decision is an application of the rule that mandatory provisions must be fulfilled exactly
It is obvious that photograph was a part of the averment contained in paragraph 18 b
In the absence of the photograph the averment contained in paragraph 18 b would be incomplete
The photograph referred to in paragraph 18 b was therefore an integral part of the election petition
It follows that there was total non compliance with the requirements of sub section
3 of s81 of the Act by failure to serve the appellant with a copy of the election petition
In 663 Ch
Subbarao s case supra the Court held that if there is a total and complete non compliance with the provisions of sub section
3 of s81 the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of s80 of the Act
Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan
The conclusion is irresistible that the words copies thereof in sub s3 of s81 read in the context of sub s2 of s83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein
That being so we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in paragraph 18 b could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub section
3 of s81 of the Act
For these reasons all the appeals and special leave petitions except Civil Appeal No 38 NCE of 1981 must fail and are dismissed
Civil Appeal No38NCE of 1981 partly succeeds and is allowed
The judgment of the High Court holding that the amount of Rs 2000 having been deposited to the credit of the Registrar High Court in the Reserve Bank of India on the strength of pre receipted challans issued by the Accounts Department on the basis of a lodgement schedule there was substantial compliance of the requirements of sub section
1 of s117 of the Act is upheld
But the judgment of the High Court is set aside insofar as it holds that the failure to supply a copy of the photograph of the fancy banner referred to in paragraph 18 b along with a copy of the election petition to the appellant did not amount to a breach of the provisions contained in sub section
3 of s81 of the Act and instead we hold that the failure to do so amounted to non compliance of sub section
3 of s81 inasmuch as the photograph of the fancy banner was an integral part of the election petition and therefore the election petition must be dismissed summarily under sub section
1 of s86 of the Representation of the People Act 1951
We further direct that the High Court shall permit the appellant to withdraw the recrimination petition filed by him under s97 of the Act in terms of the undertaking given by learned 664 counsel for the appellant during the course of the hearing of the appeal
The costs throughout shall be borne by the parties as incurred
HSK Civil Appeal No 3881 partly by allowed
Petitions  Civil Appeal Nos
421682 and 117081 dismissed


Summary:
Respondent No 1 in CA 38 of 1981 filed an election petition under the Representation of the People Act challenging the election of the appellant to the State Legislative Assembly on various grounds
The petition was accompanied by a pre receipted challan prepared by the Accounts Department of the High Court on the basis of the lodgment schedule initialled by the Assistant Registrar II showing that a sum of Rs 2000 had been credited to the account of the Registrar High Court Madras in the Reserve Bank of India Madras as security for costs
The facts are more or less similar to all the appeals
In CA 3881 which has additional facts the respondent pleaded inter
alia that the appellant was guilty of corrupt practice under sub s6 of section 123 of the Act
He alleged that the appellant had erected about 50 fancy banners each costing not less than Rs 1000 and if this expenditure of Rs 50000 was added to the amount already disclosed by him in his return of election expenses it would exceed the prescribed limit thus amounting to a corrupt practice
The respondent filed a photograph of one such fancy banner with the election petition but did not annex a copy of this photograph to the copy of the election petition furnished to the appellant
The appellant raised two preliminary objections as to the maintainability of the petition on the ground of non compliance with sub s1 of section 117 read with r 8 of the Election Petitions Rules and with sub s3 of section 81
High Court overruled both the objections and held 1 there was substantial compliance with sub section
1 of section 117 and 2 the banner could not be treated as an integral part of the election petition but was merely a piece of evidence as to the nature and type of the fancy banners erected by the appellant and therefore failure 630 to supply a copy of its photograph to the appellant along with the copy of the election petition did not amount to a breach of sub s3 of of section 81
On appeal this Court by its order dated April 2 1981 remitted back the issue with regard to non compliance of sub section 1 of section 117 read with r 8 for a decision afresh on the basis of the evidence to be led by the parties
After considering the evidence the High Court adhered to its earlier view
The appellant contended in this Court 1 the provisions of sub section
1 of section 117 were mandatory there was no distinction between the requirement as to the making of security deposit and the manner of making such deposit the words in accordance with the rules of the High Court in sub section 117 were mandatory r 8 must be read as forming part of sub section
1 of section 117 by incorporation in view of the definite stand taken by the respondent t at he had complied with r 8 it was not possible to fail back on Order 31 of the Madras High Court Original Side Rules 1956
There was no compliance with r 8 as the security amount was not deposited with the Registrar in cash
2 There was no compliance with the requirements of sub section
3 of section 81 as the copy of the election petition served on him was not accompanied by a copy of the photograph of the fancy banner
Dismissing all the appeals and special leave petitions except CA 3881 which partly succeeds and is allowed
 HELD 1a
Sub section
1 of section 117 is in two parts
The first part provides that at the time of presenting an election petition the petitioner shall deposit in the High Court a sum of Rs 2000 as security for the costs of the petition and the second is that such deposit shall be made in the High Court in accordance with the rules of the High Court
The requirement regarding the making of a security deposit of Rs 2000 in the High Court is mandatory the non compliance of which must entail dismissal in limine of the election petition under sub section 1 of section 86 of Act
But the requirement of its deposit in the High Court in accordance with rules of the High Court is clearly directory
The essence of subs
1 of section 117 is that at the time of filing an election petition the petitioner should furnish security for the costs of the petition
Section 117 should not be strictly or technically construed and substantial compliance with its requirements should be treated as sufficient
645 F 651 E 652 B 1b
A literal and mechanical interpretation of r 8
of the Election Petitions Rules would lead to manifest absurdity as it would imply that in every case the election petitioner shall have to pay to the Registrar a sum of Rs 2000 in cash towards security for costs and obtain a receipt from him there for
Rule 8 is silent as to how the cash is to be handled
Inasmuch as r 8 does not lay down the procedure regulating the manner of deposit of cash the matter falls to be governed by r 2 of Order 31 of the Madras High Court Original Side Rules 1956 by reason of r 12 of the Election Petitions Rules
Although Order 31 r 2 does not in terms apply because Order 31 relates to  payment into court of moneys to the credit of civil court deposits and account of suitors  money and though no lodgment schedule can be prepared under r 2 except in pursuance of a decree or order passed by the High Court ie in relation to some proceeding pending or disposed of by the High Court still 631 by virtue of r 12 of the Election Petitions Rule that is the procedure to be adopted for deposit of Rs 2000 in the High Court in cash ie by crediting the amount on the strength of a pre receipted challan prepared by the Accounts Department on the basis of a lodgment schedule649 A E In the present case the Assistant Registrar II Madras High Court directed that the money be deposited to the credit of the Registrar of the High Court in the Reserve Bank of India
The election petitioner deposited Rs 2000 with a pre receipted challan issued by the Accounts Department to the credit of the Registrar of the High Court and the Reserve Bank of India made the endorsement received in cash
It must be regarded that the payment was made in the High Court and the pre receipted challan bearing the endorsement of the Reserve Bank must be treated as the receipt of the Registrar in terms of r 8 the Reserve Bank acting as an agent of the High Court
The procedure adopted by Assistant Registrar II was in conformity with r8
There was due compliance with the requirements of sub section
1 of section 117 of the Act read with r 8 of the Election Petitions Rules
649 B E H K Kamaraja Nadar vs Kunju Thevar  Ors  Chandrika Prasad Tripathi vs Siv Prasad Chanpuria  Ors
   Om Prabha Jain vs Gian Chand Jadav  Charan Lal Sahu vs Nandkishore Bhatt  ors 19741 SCR 294 Aeltemesh Rein vs Chandulal Chandrakar  Ors   referred to 2a
Sub section
3 of section 81 of the Act is in two part
The first part provides that every election petition shall be accompanied by as many copies there of as there are respondents mentioned in the petition and the second part relates to the manner In which such copy shall be attested by the petitioner under his own signature to be a true copy of the petition
The first part is mandatory in character and non compliance with it was fatal to the petition in view of sub section
1 of section 86
E 659 F 2b
The words copies thereof in sub section
3 of section 81 read in the context of sub section
2 of section 83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein
Sub section
2 of section 83 applies only to a schedule or annexure which is an integral part of the election petition and not a document which is produced as evidence of the averments of the election petition
663 B C 656 F G In the instant case the test to be applied in determining whether the photograph referred to in the election petition is an integral part of the election petition or was merely a piece of evidence in proof of the allegations contained therein depends on whether it is a part of the pleadings
The photograph which gives a visual description of the fancy banner the cost of which at a mere look would show that the expenditure in setting up each such banner would be Rs 1000 or more was not merely a document accompanying the election petition but was a part and parcel of the pleading contained therein
The averment contained in the election petition would be incomplete as regards the allegation of the corrupt practice committed by the appellant without a 632 copy of the photograph being supplied with a copy of the election petition
Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan
The failure to supply a copy of the photograph along with a copy of the election petition to the appellant amounted to non compliance of sub section
3 of section 81661 B C 654 C 655 D 663 A B F G Sahodrabai Rai vs Ram Singh Aharwar   held inapplicable Ch
Subbarao vs Member Election Tribunal Hyderabad   Jagat Kishore Prasad Narayn Singh vs Raj Kumar Poddar  Ors
1971 1 SCR 821 Satya Narain vs Dhuja Ram  Ors  and Kamalam M vs Dr VA Syed Mohamad   referred to
Sharif ud din vs Abdul Gani Lone1980 1 SCR 1176 distinguished
It is always important to bear the distinction between mandatory and directory provisions of 3 statute
The general rule of interpretation is well known and it is but an aid for ascertaining the true intention of the legislature which is the determining factor and that must ultimately depend on the context
The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed
The meaning and intention of the legislature must govern and these must be ascertained not only from the words used but also by considering its object and consequences which would follow from construing it one way or the other
An absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially
An enactment in form mandatory might in substance be directory and the use of the word shall does not conclude the matter
645 E H 646 A C NP Ponnuswami vs Returning Officer Namakkal   Wolyerhampton New Water Works Company vs Hawkesford  at 356 Jagan Nath vs Jaswant Singh  Ors   Maxwell on the Interpretation of Statutes 12th Edn
p 314 Crawford on Statutory Construction  p 516 State of UP vs Manbodhan Lal Srivastva   State of UP  ors vs
Babu Ram Upadhya   Raza Buland Sugar Co Ltd vs Municipal Board Rampur and Montreal Street Railway Company vs Normandin LR   referred to