'S>CT IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION f C 1 N0. OF 2010 PETITIONER : VERSUS ShantaBai W/0 Siyaram Patel, aged about 3^ years R/0 Village and Post- Kon'ari, Police Station and Tahsil Palari, District- Raipur, (C.G.). RESPONDENTS 0\'^o...-- ^A^>-.. f>(f^s^ ^^^" .0,.' N6.- .A--" <L/'' ^' 1. Bhuneshwari SahuW/0 Netram Sahu, aged about 27 years, R/0 Village- Konari, Police Station and Tahsil Palari, District- Raipur, (C.G.) 2; Kartik Bai W/0 Bishambhar Rajak, aged about 35 years. 3. Ganeshiya W/0 Gajendra Patel,aged about 25 years. 4. Champa Bai Wd/o Amar Das Manikpuri, aged about 53 years. 5. Firtin Bai W/0 Hira Das Manikpuri, aged about 53 years. ^v^ 6. Bimla Bai W/0 Ramesh Patel, aged about 34 years. 7. Birjha Bai W/0 Uma Shankar Kannauje, aged about 35 years. 8. Rukmani W/0 Bhagwati Yadu, aged about 28 years. Respondent No. 2 to 8 are R/0 Villageand Post- Konari, Polise Station and Tahsil- Palari, District- Raipur, (C.G.). 9. Shanti Bai, W.O Shiv Charan Yadav, aged about 25 years, R/0 Village- Sirsahi, Post- Konari, Police Station and Tahsil- Palari, District Raipur, (C.G.), "•». py?."?.s?R^* ^ .'-n i.'T^'^'? 3-'? <- ^.s PS'M,"? S ^). ^ \'''9l^^..^V'^' '^l$'?:°S3|!rfal'y ^8^sy 10. D.S. Dhruv, Teacher at Government Higher Secondary School, Risda, Police Station and Tahsil Baloda Bazar, District- Raipur, (C.G.). (Prescribed Officer Booth No. 199) 11. B.P. Verma. Upper Division Teacher High School, Marda, Tahsil- Baloda Bazar, District- Raipur, (C.G.) Prescribed Officer Booth No. 199 "A". 12. Padum Kumar Banjare, Upper Division Teacher High School Marda, Tahsil- Baloda Bazar, District- Raipur, (C.G.). (Prescribed Officer of Booth No. 200). 13. S.K. Gupta, Shikshakarmi Class- I, at Government Higher Secondary School. Arjuni Police Statlon and Tahsil- Bhatapara, District- Raipur, (C.G.) (Prescribed Officer of Booth No. 200). 14. C.M. Dhritlahra, Shikshakarmi Class-I, Government Higher Secondary School/Arjuni, Police Station and Tahsil Bhatapara,, District- Raipur, (C.G.). (Prescribed OfRcer of Booth No. 201). 15. Election Officer, Janpad Panchayat Palari, District Raipur, (C.G.). WRIT PETITION UUNDER ARTICLES 226 and22ZJ3E THE CONSTITUTION OF INDIA. /AF/< HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (-C) No. 2461 of2010 PETITIONER Shanta Bai. VERSUS RESPONDENTS Bhuneshwari Sahu & Others. Post for pronouncement oforder on'W'. day ofJuly, 2010. Sd/- SatishK.AgnihoW Judge l'T*>.\ HIGH COURT OF CHHATTISGAKH AT BILASPUR PETITIONER WRIT PETITION (0 No. 2461 of2010 Shanta Bai. RESPONDENTS VERSUS Bhuneshwari Sahu & Others. WRIT PETITION UNDER ARTICLE 226 AND_227_QF, THE CO_NSTH;UTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present: Shri Sunil Sahu, Advocate for the petitioner. Shri Deepak Jain, Advocate for th respondent No. 1. Shri N.N.Roy, Panel Lawyer for the State. ORDER (Delivered on A6'7day of July, 2010) Heard leamed counsel for the parties. 1. Challenge in this petition is to the order dated 05.05.2010 (Annexure P/l) whereunder the application of the petitioner filed under the provisions of rule 3(2) of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification from Membership) Rules, 1995 (for short 'the Rules, 1995') for dismissal ofthe election petitibn at the threshold, was dismissed. 2. The indisputable facts, relevant for adjudication ofthe dispute involved in this case are that the petitioner was declared elected as Sarpanch of Gram Panchayat, Konari, Police Station and Tehsil Palari, District Raipur, on 03.02.2010. A certificate to that effect was issued on the same date (Annexure P/2). The respondent No. 1, being aggrieved, presented an election petition under the provisions of section 122(1) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short, the Adhiniyam, 1993'), before the Sub Divisional Officer, Baloda Bazar, /;' -§ -\: & ^. -\ ^-.iS^ S 3. Raipur, (the Election Tribunal) on 15.02.2010. The requisite security deposit ofRs. 500/- under the provisions ofRule 7 ofthe Rules, 1995 was deposited later on 17.02.2010. The petitioner (respondent No. 1 therein) preferred an application under Rule3(2) of the Rules, 1995 (Annexure P/4 and P/5), seeking dismissal ofthe election petition on the ground that the copy supplied to the petitioner herein was not duly attested and signed on each page. Further, an affidavit in support ofthe same has also not been presented. Secondly, on the ground that the security deposit was not deposited under the provisions ofRule 7 ofthe Rules, 1995 at the time of presentation of the election petition. The election tribunal dismissed the said application on 05.05.2010 on the ground that if the security deposit has been made within the limitation period after presentation ofthe election petition, it is not violative ofthe provisions ofRule 7 ofthe Rules, 1995. With regard to attestation on the copy of the documents supplied to the respondent No. 1 therein (Petitioner herein) it was found that the petition was duly verified and signed on each page. Thus, this petition. Shri Sunil Sahu, leamed coimsel appearing for the petitioner would submit that the scheme of election petition contemplates deposit of security fee at the time of presentation of the election petition. Indisputably, the election petition was presented on 15.02.2010 and the security deposit was made on 17.02.2010 not at the time ofpresentation of the election petition. The delay was fatal. Notice on the election petition was issued on 16.02.2010 (Annexure P/2) when the security deposit was not made, the tribunal ought to have examined the petition dated 15.02.2010 before the issuance ofthe notice to the petitioner and others on 16.02.2010. On receipt of the notice, an application was ^ ^ ^- ''>.- ^' immediately made under the provisions ofsub-rule (3) ofRule 7 ofthe Rules, 1995 for dismissal ofthe petition at the threshold. 4. On the other hand, Shri Deepak Jain, leamed counsel appearing for the respondent No. 1 (election petitioner) would submit, inter alia, that the election petition was filed on 15.02.2010 and the security deposit was made on 17.02.2010, within the period of limitation. The security deposit was made within the period of limitation. The petition does not suffer &om any fatal defect. In the case on hand, cognizance of the petition was taken only after security cost was deposited. There is no merit in the case and the same deserves to be dismissed. 5. There is no challenge with regard to non-verification or attestation and signature on each page of the petition in this petition before this Court. Thus, the election petition deserves to be dismissed at the threshold under Rule 8 ofthe Rules, 1995. 6. Without expressing any opinion on the merits ofthe case, on perusal of the pleadings and documents appended to the petition, it appears that the Election Tribunal issued a notice on 16.02.2010 (Annexure P/3) intimating the respondents therein including the present petitioner that the date ofhearing has been fixed on 15.03.2010. Admittedly, there was no security deposit made at the time of presentation of the election petition on 15.02.2010. Thus, on 15.02.2010, before taking cognizance by issuing notice, provisions of Rule 7 of the Rules, 1995 which is mandatory in nature, was not complied with. Thus, for want of compliance ofthe provisions ofRule 7 ofthe Rules, 1995, the petition is required to be dismissed under the provisions ofRule 8 ofthe Rules, 1995. 7. Rule 7 and 8 ofthe Rules, 1995, reads as under: 10. "7. Deposit of security. - At the time of presentation of the election petition, the petitioner shall deposit with the specified officer a sum of Rs. five Hundred as security. Where the election of more than one candidate is called in question, a separate deposit of an equivalent amount shall be required in respect ofeach such retumed candidates. 8. Procedure on receiving petition.—Ifthe provision of mle 3 or rule 4 or rule 7 have not been complied with, the petition, shall be dismissed by the specified officers: Provided that the petition shall not be dismissed under this mle without giving the petitioner an opportunity of being heard." The question of limitation asto whether the petitioner has made the security deposit within the limitation period or beyond that, is not required to be considered in this petition as cognizance of the election petition was taken before deposit ofthe security. Reliance of learned counsel for the petitioner on Santosh (Smt.) v. AddMonal Collector, Korba & Others , rendered by this Court is not applicable to the facts of this case as in that case, there was total non compliance of the provisions of Rule 7 of the Rules, 1995 as the election petitioner did not deposit security amount at the time of filing of the election petition. Later on, he deposited only Rs. 50/- instead of Rs. 500/- as against requisite security deposit. Rules, 1995 were framed by the erstwhile State of Madhya Pradesh. These rules have been adapted by this State after carving out of State of Chhattisgarh under the provisions of the Madhya Pradesh Reorganization Act, 2000. The question asto whether Rule 7 of the Rules, 1995 is directory or mandatory, came into consideration before a Division Bench of the High Court of Madhya Pradesh in Babulal Kaluram Kirar & another v. State of M.P. & Of/zers , wherein it was '2009(II)MPJR-CG15 J.1985MPU411 11. held that "the irresistible conclusion is that the provision of Rule 7 is mandatory". Thereafter, this issue was considered in the matter of Ravi Thakur v. Shiv Shankar Patel & Others , the leamed Judge, relying on Kailash Narayan v. Namdar & Others , observed that "security cost can be deposited within the period oflimitation and ifthe cognizance is not taken before the deposit of security cost, the election petition does not suffer from fatal defect". In Charan Lal Sahu v. Nandkishore Bhatt & Others , security deposit as provided under section 117 ofthe Representation ofPeople Act, 1951 (for short 'the Act, 1951 ') came into consideration before the Supreme Court, wherein it was observed as under: "It was contended before the High Court by the petitioner/appellant that the trial had not started; that Section 117 of the Act is only directory and not mandatory and that the deposit ofRs. 2,000 is only to secure the costs in the course of the trial of the election petition, as such dismissal of the petition for non-compliance with it is a penalty which is not one of the penalties prescribed under Section 118 ofthe Act. The High Court rejected all these contentions holding that it was mandatory for the petitioner when filing an election petition to deposit the amount ofRs. 2,000 under Section 117 of the Act there is no provision under which a discretion was conferred on the High Court to reduce the amount of security deposit as prayed for by him. The High Court referred to sub-section (2) of Section 117 under which the High Court has been empowered to call upon the petitioner to give such further security for costs as it may direct, which cleariy indicates that while there is a provision empowering the High Court to call upon the petitioner to give such further security for costs, there is no provision similarly empowering it to absolve the petitioner from making any security deposit or to reduce the amount required to be deposited under the Act. We think the High Court was right in holding that it is not competent to 1997(1)JLJ89 1996 JU 391 (1973) 2 SCC 530 '^ /y^ ^'^ i .~~~~E1: reduce tfie amount of security deposit or to dispense with it. 6. We are clearly of the view that the non-deposit of the security alongwith election petition as required under Section 117 of the Act leaves no option to the court but to reject it. The appeal is accordingly dismissed with costs." 12. Subsequently, the Supreme Court, in Aeltemesh Rein v. Chandulal Chandrakar & Others , relying on Charan Lal Sahu (supra) observed as under: "3. The only question which survives is as to what is the consequence of non-compliance of Section 117 ofthe Act. That question has been settled by the decision of this Court in Charan Lal Sahu v. Nand Kishore Bhatt wherein it was held that the High Court has no option but to reject an election petition which is not accompanied by the payment of security amount as provided in Section 117 of the Act. Section 86(1) ofthe Act provides that the High Court shall dismiss an election petition which does not comply with the provisions ofsection 81, 82 or 117. In that view of the matter, the High Court was right in dismissing the election petition summarily." 13. Provisions of section 117 of the Act, 1951 is pari materia to the provision ofRule 7 ofthe Rules, 1995. 14. Applying the well settled proposition of law as aforestated, the security deposit must be made at the time ofpresentation ofthe election petition. The security deposit may be made within the period of limitation if cognizance of the election petition has not been taken, before security deposit. In that event, non-deposit of security becomes fatal to the election petition. In the case on hand, the election petition was filed on 15.02.2010 and the Election Tribunal took cognizance ofthe petition by issuing notice to the respondents including the petitioner on 16.02.2010. The security deposit was made one day thereafter. Thus, it became fatal (1981) 2 SCC 689 ^•- />- ^- fr'r- r. '<. 'i?.^ \^^^ '*.;---.—«f^ 15. 16. 17. and there was no other option for the Tribunal other than to dismiss the election petition, summarily and allow the application of the petitioner (respondent No. 1 therein) under the provisions ofRule 8 ofthe Rules, 1995. In view of the foregoing and for the reasons stated hereinabove, the impugned order dated 05.05.2010 (Annexure P/l) is quashed. Resultantly, the election petition filed before the Election Tribunal is also dismissed for want of compliance ofthe provisions ofrule 7 ofthe Rules, 1995. Accordingly, the writ petition is allowed. No order asto costs. , ^ Sd/- SatishK.Agnihom Judge Amit