Appeal No 644 of 1964
Appeal by special leave from the judgment and order dated February 25 1964 of the Rajasthan High Court in D B Election Appeal No 93 of 1963
R K Garg for the appellant
B D Sharma for respondent No 1 117 The Judgment of the Court was delivered by Shah J
At the last general elections held in February 1962 the appellant Kumaranand contested a seat in the Rajasthan Legislative Assembly from the Beawar constituency and was declared elected
Brij Mohan Lal who was a candidate at the election then presented a petition challenging the election of the appellant on the ground that the appellant had in the course of the election committed corrupt practices within the meaning of section 1234 of the Representation of the People Act 1951 by publishing a poem containing false statements of fact relating to the personal character and conduct of the applicant Brij Mohan Lal and which were highly prejudicial to his election prospects
The Election Tribunal declared the appellant s election void under section 1 00  1  b of the Act
Against the order of the Tribunal the appellant appealed to the High Court of Rajasthan at Jodhpur
At the hearing of the appeal it was contended by the respondent Brij Mohan Lal inter alia that the appellant had failed to enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees had been made by him in favour of the Election Commission as security for the costs of the appeal and his appeal was on that account not maintainable
The High Court held that the appellant had failed to comply with the provisions of section 119A of the Act and on that account the appeal filed by him was incompetent
The High Court declined to accede to the request made by the appellant to condone the delay if any in the filing of the appeal under the proviso to section 116A3 and to rectify the defect arising from the appellant s failure to enclose a Government Treasury receipt for Rs 500 as required by section 119A and dismissed the appeal
With special leave this appeal has been preferred by the appellant
The facts bearing on the plea which has found favour with the High Court of Rajasthan and the relevant provisions of the Representation of the People Act in force at the material time may be briefly stated
Section 119A of the Act which was added by section 64 of Act 27 of 1956 and was further amended by Act 58 of 1958 reads as follows  Every person who prefers an appeal under Chapter IVA shall enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the appeal
118 Instead of enclosing with the memorandum of appeal a Govern ment Treasury receipt showing that a deposit of Rs 500 had been made in favour of the Election Commission the appellant through his Advocate Vijay Chandra Mehta tendered on October 21 1963 the amount of Rs 500 in the office of the Registrar of the High Court
The amount tendered was accepted and was duly credited in the name of the appellant as security deposit 
The tender form for payment into Court of the security for costs as completed by the office of the Registrar High Court Rajasthan was as follows Original tender  77121 10 63 RRD No 23931 10 63
In the High Court of Judicature for Rajasthan at Jodhpur Jaipur Bench Instruction to applicant
Fill up accurately columns 1 to 4
Name of party on whose Shri Kumaranand
behalf the money is tendered 2
Name of parties and num Kumaranand vs Brij Mohan ber of the suit Lal D B Election appeal63
Nature of payment Security Deposits
Amount tendered Rs 500 Rs Five hundred only
Office report May be deposited
Sd Vijay Chandra Mehta Sd Illegible 21 10 63 Signature of Cashier Stamp Dated Dated Receipt acknowledged in Register No RRD No 239 31 10 63 only by credited dated to SB Ch
No 15754 21 10 63
Sd Mohammed Haji 31 10 63 Signature of Receiving Officer 119 NB To be filed with the record
Sd Prem Raj 31 10 Signature of Accountant
 It is clear from the terms of the tender that the amount was deposited in the High Court on behalf of the appellant Kumaranand as security deposit in the proceeding Election appeal Kumaranand vs Brij Mohan Lal and the cashier endorsed on the tender form that the amount paid may be deposited
The receipt was then entered in the Register and it was ordered by the Accountant that it may be filed with the record
This deposit of Rs 500 in the High Court manifestly did not comply with the requirements of section 119A of the Act
The tender form did not indicate that the deposit was at the disposal of the Election Commission or that it was to be utilised in the manner authorised by law
Even it did not recite that the Election Commission had control over the amount or was payable on proper application being made in that behalf
Section 121 of the Act insofar as it is material by Subs
1 provides that if any direction for payment of costs by any party to any person is made under Part VI such costs shall be paid in full out of the security deposit and the further security deposit if any made by such party on an application made in writing in that behalf to the Election Commission by the person in whose favour the costs have been awarded
Section 119A is enacted with a view to secure the costs of the successful party and for that purpose the Legislature has enacted that the deposit should be made in a Government Treasury in favour of the Election Commission so that the Election Commission would pay the amount to the person entitled to the costs
But failure to comply with the requirements of section 119A does not necessarily result in the dismissal of the appeal for the Act imposes no express penalty for non compliance with the requirements of that section
Under section 903 the Tribunal is bound to dismiss an election petition which does not comply with section 81 or section 82 notwithstanding that it had not been dismissed by the Election Commission under s 85
No similar penalty is prescribed by the Legislature in the matter of failure to comply with the requirements of section 119A
It may also be observed that by cl
4 of section 90 as originally enacted for failure to comply with the provisions of section 117 of the Act which required a petitioner to enclose with an election petition a Government Treasury receipt showing that a deposit of two thousand rupees bad been made by him either in a Govern 120 ment Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the petition it was provided that the Tribunal may dismiss an election petition This clause was later modified and renumbered as cl
3 by Act 27 of 1956 and it was enacted that the Tribunal shall dismiss an election petition which does not comply amongst others with the provisions of section 117
By the amendment made by Act 40 of 1961 reference to section 117 was however omitted
The Legislature therefore has deliberately made a distinction between failure to comply with certain requirements of the statute
In respect of certain defaults the Election Tribunal is obliged to dismiss the election petition but for default in complying with the provisions of section 119A no such penalty is imposed
As observed in Jagan Nath vs Jaswant Singh and Ors1 by Mahajan CJ  The general rule is well settled that the statutory requirements of election law must be strictly observed and that 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 the Court possesses no common law power
It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law
None of these propositions however have any application if the special law itself confers authority on a tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequence of non compliance with certain procedural requirements laid down by it
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 The question which then has to be considered is whether in case of failure to comply with the requirements of section 119A the High Court had jurisdiction to rectify the mistake committed in making the deposit for costs
There can be no doubt that an amount of Rs 500 was intended to be and was in fact deposited by the appellant as security for costs of the respondent though it was described in the tender by the somewhat inappropriate caption security deposit
It appears that the Advocate appearing for the appellant in the High Court did not properly appreciate the scope 1 1954 1SCR892 895
121 of the amendment made in the Act by Act 56 of 1956 which incorporated section 119A
He proceeded as if this was an ordinary civil appeal in which security for costs was required by law to be deposited in Court
In not acquainting himself with the statutory provisions applicable to the due lodgement of the memorandum of appeal the Advocate undoubtedly acted negligently and if that was the only circumstance governing the disposal of the appeal we would not be justified in interfering with the order of the High Court
There are however certain other considerations which have not been given due effect by the High Court before dismissing the appeal
In the absence of any penalty prescribed by the Legislature for failure to comply with the requirements of section 119A the jurisdiction of the High Court to entertain the appeal is not affected or jeopardised
The appellant was it is true not entitled on that account to ignore the statutory provision requiring that a Government Treasury receipt for the requisite amount in favour of the Election Commission as security for the costs of the appeal shall be enclosed
But when there is default in complying with the requirement it is for the Court in each case to consider whether it will exercise its discretion to proceed with the appeal after rectifying the mistake committed or it will decline to proceed with the appeal
In the present case as observed earlier the Advocate failed to acquaint himself about the provisions of section 119A
It is also somewhat unfortunate that the office of the Registrar of the High Court shared the ignorance of the Advocate
The tender form which was produced before the High Court clearly discloses that the amount of Rs 500 was intended to be deposited as security for costs of the respondent in the Election appeal Kumaranand vs Brij Mohan La
Instead of depositing that amount in a Government Treasury or in the Reserve Bank the amount was deposited in the High Court
The amount was accepted and the receipt was filed with the record and this was regarded as sufficient compliance with the requirements of section 119A
The Deputy Registrar of the High Court accepted the presentation and numbered the appeal without raising any objection to the procedure followed
This would justify an inference that the office of the Registrar of the High Court was misinformed as the Advocate was as to the staturory requirements imposed by the Representation of the People Act in the matter of deposit of security for costs of the appeal
If the memorandum of appeal had not been accepted by the Registrar s office because it was not accompanied by a Government Treasury receipt as required by the statute the defect could have been cured by the appellant
But the memorandum of appeal 122 was accepted and was numbered as an appeal and notice of the appeal was issued to the respondent
The objection to the regularity in the procedure was it appears brought to the notice of the Court only at the hearing
That the Advocate for the appellant was negligent cannot be gainsaid
But the conduct of the office of the Registrar of the High Court in accepting presentation of the appeal which did not comply with the requirements of section 119A has largely contributed to the irregularity of the procedure followed
It is a trite saying that it is duty of the Court to take care that the act of the Court does no injury to any suitor
The Court is by statute not obliged to dismiss the appeal for failure to comply with the requirements of section 119A  it has therefore jurisdiction having regard to the circumstances either to permit rectification of the mistake or to decline to proceed with the appeal which does not comply with the statutory requirements
In the present case we think that the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation of the appeal which contributed to the irregularity of the procedure adopted by the appellant
In our view the High Court should have directed that the amount which had been deposited under the tender form on October 21 1963 be deposited in the Government Treasury in the name of the Election Commission and a Government Treasury receipt be obtained in favour of the Election Commission as security for costs of the appeal preferred before the High Court
Accordingly we set aside the order passed by the High Court and direct that the High Court do give an opportunity to the appellant to rectify the error committed in the matter of securing the costs of the appeal in the manner already set out and that the High Court do proceed to hear the appeal on the merits after the Government Treasury receipt in favour of the Election Commission as security for the costs of the appeal has been obtained and filed in the record
We do not think that because of the failure to file the Government Treasury receipt the jurisdiction of the High Court is affected or that the appeal may be regarded as otherwise barred by the law of limitation
The appeal is allowed
The appellant had acted irregularly and somewhat negligently and the respondent was justified in bringing to the notice of the High Court the defect in the presentation of the appeal
Even at the hearing of the appeal he tried to justify his action
In the circumstances the appellant must pay the costs of the respondent of this appeal
Costs in the High Court will be costs in the appeal
Appeal allowed


Summary:
On a petition by the respondent challenging the election of the appellant to the State Legislative Assembly the Election Tribunal declared the election void under section 1001b of the Representation of the People Act
Against the order of the Tribunal the appellant appealed to the High Court
Instead of enclosing with the memorandum of appeal a Government Treasury receipt showing that a deposit of Rs 500 had been made in favour of the Election Commission the appellant through his Advocate tendered the amount in the office of the Registrar of the High Court The amount tendered was accepted and was duly credited in the name of the appellant as security deposit
At the hearing of the appeal it was contended by the respondent inter alia that the appellant had failed to enclose with the memorandum of appeal a Government Treasury Receipt showing that a deposit of five hundred rupees had been made by him in favour of the Election Commission as security of the costs of the appeal and his appeal was on that account not maintainable
The High Court held that the appellant had failed to comply with the provisions of section 119 A of the Act and on that account the appeal filed by him was incompetent and dismissed the appeal
In appeal by special leave  HELD  The failure to comply with the requirements of section 119 A does not necessarily result in the dismissal of the appeal for the Act imposes no express penalty for non compliance with the requirements of that section
The Court had therefore jurisdiction having regard to the circum stances either to permit rectification of the mistake or to decline to proceed with the appeal which did not comply with the statutory requirements
In the present case the High Court erred in not taking into consideration the conduct of the office of the Registrar in accepting the deposit of costs and also a defective presentation of the appeal which contributed to the irregularity of the procedure adopted by the appellant
122B D
Jagan Nath vs Jaswant Singh   referred to