HI^H COURT OF CHHATTCS0ARH AT BILASPUft Ciyjl Revision No.2l of 20Q9 APPLICANT NON- APPUCANTS Deepak Sharmo allas Bunty, Versus Dinesh Dewangan <& others. Post for pronouncement of Judgment and Orders on j 708/2009 Sd/- N. K. Agarwal Judge 1 UP HI<5H COURT OF CHHATTESeARH AT BILASPUR Ciyjl Revision No.21of2009 APPUCANT APPUCANTS 7. Deepok Sharma altas Bunty, son of Late Mohan Prosad Sharma, aged about 34 years, resident of Nouse No.853, Gaya Nagar, Ward No.4, Tahsjl ond District Durg (Chhattisgarh) Versus Dmesh Dew<OTgan, re^dent of @aya Nagar, Ward No.5, Near 6oy®Bal Dharamshala, burg (Chhattisgarh) Umokant ©upta,resident of Ward No. 4, ^aya Nagar, burg, House No.700, Dur9 (Chhattisgarh) Kamalnanayan Smha alic^ Bworasi AAithaiwala, resident of 6cya Nagar, Mukti Dham. Wcrd No. 4, burg (Chhattisgarh) Tularam alias Baba Sinha, resident of <?aya Nagar, Near Dewflmgon DharamshQla, Ward No. 4, Durg (Chhafrtjsgarh) Dinesh 6upta, resident of ^aya Nagar, Near Manas Mandir, Durg (Chhattisgarh) Nitesh Oeshmukh, resident of 6aya Nagar, Behind Santoshtji Mandir, burg (Chhattisgarh) Balram yadav, re^dent of Goyo Nagar, Ward No. §,Near @aya ©ai Dharamshaja, Durg (Chhattj^crh) ^. 8. Dr. Motital Sinha, resident <yf GvsfQ. Nagar, Near Manas McBidir, Durg (Chhattisgarh) 9. Roshan Soni, resident of @aya Nagar, Necr Dewcmgan bhapamshala. Ward No. 4, Durg (Chhattisgarh) 10. Laxmikant Vishwdkarmaalio®Ldlu, resident of Near Manas AAandir, Prabhat Ganesh Chowk, Gaya Nagor, burg (Chhattisgarh) 11. Shivkumar Sinha, resident of Ward No. 3, 6aya Nagar, burg (Chhattisgarh) 12. Registration Officer, Nagar Palik Nigam, Durg (Chhattisgarh) 13. Retuming Officer, Shri Jcwahar Shrivflistava, Nagar Palik Nigeim, burg (Chhattisgarh) Civil Revision Under Section 441-F of the C.@. Municipal Corporation Act, 1956. ^Sinale Bench: I'ble Mr N.K. Aaarwal J.^ Present : Shri H.B. Agrawal, Senior ^dvocote with Shri bhiraj Womkhede, counsel for the applicant. Shri Sonjay K. Agrawal, counsel with Shri Saurabh Sharma, Advocates for the Non- applicant No.l. ORbER (Passed on (2. day of August, 2009) By this order,preliminary ob^ction taken by non-appljcaait No.l is being disposed of. 2. The instant revision is directed against the order dated 01-09-2007 pasaed by District Jud9e, &ur9 in M.J.C. (Election Petjtion) No. 15/2005 whcreby and whereunder. the election petjtion hos been dismissed as time barred. 3. The brief facts necessary for deciding the majntajnability of revision are that the appiicont preferred the instant revisipn on 22-07-2008 along with an appljcation for condonation of delay under Section 5 Read with Sect-ion 14 of the Limitation Act. However, on 27-08-2008, permission was sought to deposit the amount of Rs.250/- as security, which was granted by this Court- and thereafter, the said amount was depositect on 04-09-2008. 4. Leamed counsel for non-applicant No. 1 pre-ferred a preljminary objection that under ftule 19(2) of the Chhattisgarh Municipal Corporation Act (Election Petition) ftutes, 1963 (for short 'Rutes of 1963"), the applicant is required to depodit with the High Court a sum of Rs.250/- as security for 1fie cost of revjsion along with the revision and the Rule being mandalory in nature, its non-compliance is fatal to the revision arad as the sakl amount has not been deposrted atong with the revision, therefore. the revision is liabfe to be dismissed on this count* 5. Shri Sanjay K. Agrawal, learned counsel for ncwi-appticant No.l pladng reliance upon the judgment of High Court of M.P. in cases of Radheshyaw NoawS Lal Ji vs.Jagdish 6wya Ram; reported in 1995 MPLJ 909, Babu Laf vs. State of M.P.: reported in 1986 MPLJ 128. and judgment of this Court fei ca^ of Santoshi vs. Addl. Collector. Korba: reported in 2008 (4) MPHT 20 submitted that the compliance of Rule 19(2) of ftules. 1963 is mandatory, and, therefore, revjsion is liable to be djsmissed. He would further submit 1+iat the Djvision Bench of the M.P. High Court in case of Bharfi Botham vs. State of M.P. ancf wfother (2006) 3 MPLJ 487: has held that that Rule 19(2) of Rules, 1963 prescribing deposit of Rs.250/- for cost of revision Is jntra-vires. 6. Per contra. Shri H.B. Agrawal, learned Senior Advocate cppearjng for the applicoint would submit that there is nothing in the main Act requjrjn9 the applicant to deposit such amount while filing the revision and, therefore, RuJe 19(2) of RuieS.1963 Js not inconsonance with the Act and can be ignor-ed. He would ftrriier aAmit-rtTot.lhe amourl-of Rs.250/- has been deposrhed by Ihe cppfioont vwth permission cf Ihis Cajrt-, ord, Ihercforc, defouh-if ory hcs been ared aid 1he prelimino»yobjection rcused bynorhopplkxant No. 1 is liobte to be djsmissed. ^ 7, The following question arises for decision makJng in the case: (t) Whether under Rule 19(2) of Rules. 1963. the requirement of deposjt of Rs.250/- along with revision cxppjication is mandatory in nature and its non-compJJonce js fatal. CH) Whether the Rule 19(2) of Rules. 1963 is not In conformity with the provisions contained in Section 441-F of the Chhatl-JS9arh Municipal Coiyoration Act, 1956. (EEI) Whether the applicant can be permitted to deposit the said security deposit on a date subsequent to 1+ie filjng of revision petition? To appreciate the revatised submissions advanced by the counsel for -Hie parties, it is appropriate to refer certain provisions of Act and ftules. 8- Section 441-F(2) pravides for remedy of nevidion ayilnst the decision of the Court to be filed within 30 days from the date of such decision befor®the Hi9h Court-. In Exercise of powers conferred by sub-section (1) of Section 433 read with Section 441(c) of the Chhatt'isg<xrh Municipal Corporatjon Act, 1956 (for short 'the -Act'). Jhe State 6ovemment franied ^ie rules known as Chhattisgarh Munjcipal Corporation (Election Petition) Rules, 1963. Rule 19(2) of the Kutes of 1963 reads as under: \}? URulel9(l) Rule 19(2) - At the time of pre«ntation of petition for revision under sub-section (2) of Secl-ion 441-F against th® decision of -riie Court, -tihie petitioner ^iall depositwith the High Court a sum of Rs.250/- as security for the cost of the revision. If the provisions of the Rule are r»otcomplied with, the Hi9h Court shall dismiss the petition." 9. Section 441 (3)reads-riius:- "(3) No petition presented under siA section (2) ^tall be admitted unless:- (i) it is presented within thirty days from -rtie date on which -Hie result of such eiection or [nomination] was notified in the gazette; and (ii) It is accompanied by a fiovemnient Treasury receipt showin9 a deposit of tuvo hunclred and fifty rupees." 10. Section tl7 of the Representation of the People Act, 1951 reads: "117. Security for Costs.- (i) At the lime of presenting an election petjtion; the petitioner diall deposit in tiie Hi9h Court in accordance with the rules of 1+ie High Court a sum of two thousand rupees as security for ^ie costs of the petitjon. (2) buring course of the trial of an election petition, Ihe High Court may, at any time, call upon the petitioner to yve such further secunty for costs as It may direct." 11. Rute 7 and 8 of the ChhatKsgarh Panchoyats (Election Petitions, Corrupt Practices and DJsquatification for Membership) RuJes. 1995, (for shorl- "Rules 1995") reads as under; "7. Deposit of security. - At the time of pre^ntation of an election petition. the petitioner shall deposit with -t+ie 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 ^iall be requjred in respect of each such returned candidates. 8. Procedure on receiving petition.- If 1+ie provisions of rule 3 or rule 4 of rule 7 have not been complied wiltt, the petition, shall be dismis^d by the specified officers: Provided that -riie petition shad not be djsmissed under this rule without giving the petitioner an opportunity of being heard." 12. A bare reading of rule 19(2) of the Rules. 1963 would reveal that the rule is para materia of Section 117(i) of the Act, 1951 ond Rules 7 and 8 of Rules. 1995. 13. Hon'bte the Supreine Court in case of ^. Kamrajei Nadar ys. Ktff^u Thevar; reported in /l.I.R 1958 SC 687 (698) has observed that an ob^ction as to non-complkince with the provisions of Section 117 of ftepresentation of Peopjes' Act, 1951 should be entertained and decided as a preliminary issue, 14. Hon'ble 1+ie Supreme Court in case of Aeltemesh Reh vs.Chevidulal Chandrakar and Ofhers: repor-ted jn AIR 1981 SC ll99(1200) has observed that election petition is liable to be dismissed for non-compliance of Section 117 of Representation of Peoples' Act, 1951 by virtue of Section 86(1) of the Act. 15. Hon'ble the Supreme Courf in case of Chdfwnlal ys. Namf Kishore; reported in ASK 1973 SC 1264 has observed that non- deposit of security along with the petition as requlred by Section •^ JP;CJ! ;t 1 '"^&%^. j 117 of Representatjon of Peoples' Act, the High Court has no option but to reject the petition. 16. In case of K KafWfan/dhi vs, H.« Handa wvd ol^ers; reported in (1983) 2 SCC 473. Hon'ble the Supreme Court has observed in para 19 <xs under: "19. The submissions advanced by leamed counsel for the appellcxnt cannot be accepted as they proceed on the as^jmption that no distinction oan be drawn between the requirement as to the mokin9 of a deposit sn the High Court under sub-section (1) of Section 117 and the manrwtr of making such deposit. There was considerable eniphasjs bid by learned counsel ti^at sub-section (1) of Section 117 cannot be dissected into two par^s, one part being treated as mandatory and the other as directory. The contention is whoiiy misconceived and indeed runs counter to several decisions of this Court. It Js alwoys importont to bear the distinctjon between -riie mandatory <md directory provisions of a statute, Sub-section (1) of Section 117 is in two parts. The first part of sub-section (1) of Section 117 proyides that at the time of presenting an election petition, the petitioner ^iall deposit in the High Court a sum of Rs.2000 as security for The costs of the petition, ond the second is that such deposit ^iall be made in the Hi9h Cairt in accordoyice with the rules of the High Court. The requirement regardjng Ihe making of a security deposit of Rs,2000 in the High Court is manckxtory/'t+ie non-compliance of which must entail dismissal in limine of 1+ie election petition under sub-section (1) of Section 86 of the Act.. 17. The DivJsion Bench of Madhya Pradesh High Court jn ccxse of Babulaf Kalwwn Klfw and aiwlw Vs. Sta^e ef M.P. and others: reported in 1986 MPLJ 128. While dealing wN-h the provisions of Madhya Panchayats (Electjon Petition, Corrupt Practices and Disqualification for A^ember^iip) Rules, 1962 (for short "the ftules, 1962), rute 7 and 8 has observed -riiat in paragraph 10.01 as under: "lO.Ol, On a plain reading of Rute 7 the requinement of making the deposit of security amount is along with the petition. The oqaression: "At the time of pre^ntcrtiora of an ^lection petition'1/in ftyte 7 is very sjgnificant Thvs, 1+ie requirement of deposit of security ameunt along wirti the petition is cn essentiat link in the chain of pre%ntation of the petition. Therefore, if this link is missing, tiier®is no valid presentation of the petition, The TriburNal has a jurisdiction only when Itiere is a validly pre^nted petition before it." 18. Hon'ble the Supreme Court in case of f^sektwr Gogot vs. State of Assaw rf others; neporTed in (2001) 6 SCC 46 has observed that whenever a statute prescribes that a part'icytor Act is to be done in a part'icular manrwr and also (ays doiwi 1+iat failure to comply with said requirement ^eads to a specific con^squences, Jt would be dlifficult to hold that 1+ie requirement te not mandatory, and the specified consequence ^hould not follow the sin9le bench of High Court^ of M.P. dealing with simitar provision contained in Madhya Practesh Municjpalities (Etection Petitton) Kules, 1962; Rute 19 of M.P. Municipalities Act. Section 26 (2) in case of {^KSheshyam ^tomilhiljf Paivdw vs. ^'eigdish Sfwyeawm Petfdw eml oth«rs; reported in 199S M.P.t.J. 909 hos h&Jd that Rule is mandatory, it is mandatory for such petitioner to jdeposit security amount of Rs,290/- at the time of presCTitation of revision petition before this Court and if he fails to do so, -rtie only result would be dismissal of his petition. A Singte Bendi of 10 this Court in case of Smt. Santoshi vs. Af/i/Monal Cotteefor, Korba and others: reported in (2008) 4 M.P.H.T. 20 (C^ wWle dealing with the ChhattiS9arh Pancheyats (Election Petition, Corrupt Practices and Di^Lialification for Membwshjp) Rutes, 1995, Rules 7 <& 8 held that non-deposit of security amoynt along witii the election petition is fatal, 19, TTierefore/relying upon the princjptes of law laid down in 1+»eabove referred judgments, I am of -tfie opinion 'riiat previsions contained in Kul& 19(2) of the Rules. 1963 are mandatory in nalur® and it5 non-compliance is fatal to 1+ie revision fited by the applicant. 20, Whjte dealing wi1ii the election petition the law in this regard has to be construed strictly. The Supreme Court in case of Seidashiv N. Patil vs. yithaf 0. Teke rf otfiers; reported in (2000) 8 SCC 82, in para 14 has observed as under: "14. A finding as to disquaJification uncter the Act hoas the effect of unseating a person from an elected office held by him pursuant to his victory Qt the polls jn accordonce with the democratic procedure of constituting a tecaUiul+iority. The consequences behalf not only him ous w individual but -'so theeonstituency represented by him which would oeoss ro be represented on account of his having been disqualifjed. Looking at the penal consequences flowing from an elected councilor being ^ibjected to di.squaljfication and its repercussion on the functioning of the local body as also the city or town^iipgovemed by the local body the provisions have to be construed strictty. A n^orous compliance with the provisions of the Act and the Rules must be shown to hwe taken phce while dealing with a refer-ence under Section 7 of the Act." 11 21. A bare perusal of the provisjon contained in Section 441 (iii) of the Chhattjsgarh Municipat Corporation Act, 1956 and Rute 19(2) of the Rules/1963, framed in exerdse of powers conferned by the Chhatt-iS9arh Municipal Corporation Act. There is no1+itng which can suggest that the rules framed are not inconformity with the provisions of the Act. There was an occasion wi1+i the High Court of M.P. to deal with the validity of Rute 19(2) of the ,.> Municipal Corporation (Election Petjtion) Rules, 1963, The DivJsion Bench of Hi9h Cour-t of Madhya Pradesh in case of ffhoFti Be^iew vs. State of M.P. md wwther; reported in 2006 (3) M.P.L.J. 487, has observed in para 21 as un<ter: tt21. Submission of Mr. Sharma is that 1+ie Act cbes not provide for making rules for deposit as securitf for the costsof revision. It is his submission that the relevant rule does not flow from the enactment and in fact it is a supplant. On a perusal of the Act we do not notice any provision to which Itie present rule runs counter to. As has been indicated earlier becoiuse of enumeration of certain particulars there cannot be restriction because of certain facets have been particularized. We do not pepceive that the said provision has been utilized to extend the ®copeof the general operation of the Act. It is not such a proviffl&n by which what has been excluded in the Act has been included in the Rules. The Statu-te provides for filjng of a revision uncfer Section 441-F/ Rule i9(2) only provides for deposit of security for the costs of the revisiwi. Such a stipulation does not run contrary to the provisions of the statute. There is a purpose behind the same. It hos nexus with the statute. It is, in a way, necessary to ensure nQt to have .frivolous revisions, It cannot be said 1+iat it 'iS unnecessary for 9iving effect to the purposes of the Act. It is extremely difficult to opine that the said condition is alien to the enactment, Indubitably such a condition, a requisite postulate, oan be postulated within the ambit and sweep of the power that has been conferred on the ^•^ -^-^- •^ i: f ^ i f: \^:^/ '%4^s^"' 12 c"-. authority under Section 433 of the Act. Ergo, we Iwve no hesitation in holding that ftule 19(2) of the Rules js intra vires/ 22- I am in respectful a9reenient with the above referred dictum of the Hjgh Court of Madhya Pradesh and 1+ierefore, it is not correct to soiy that the provJsion of Rule 19(2) of Rules. 1963 not bein9 inconformity with the provisions contained in the Chhattis9arh Municipal Corporation Act are liable to be ignored, 23. Third question arises for consideration is that whether the applicant can be permitfred to deposit the said security deposit on a date subsequent to the filing of the revision petitton? 24. It is crystat clear that the provisions contained in Rute 19(2) of Rules,1963 requ'ires the petitioner to deposit the amount of Rs,250/- as security deposit at the time of presentortion ^f the petition and not subsequent thereto. As held «xrlier, the provisjons are mandatory jn nature and its non-cotnpliance is fatal^ therefore. if the revision has been filed without depositing the amount of security. then it is fatal to the revision and ^ie defect cannot be cured by depositing the same on a date subs^uent to the filing of the revision. Hon'bte the Supreme Court jn the aise of Chcwid^akant Uftam Chodankev vs.£>ayanev«{Rayu Mw«SrwilQaw and otfiers; reported in (200S) 2 SCC 188 has observed h para 68 as under: 13 "68. In Ch. Subbarao v. Member, Electjon Tribynat; AIft 1964 SC 1027: (1964) 6 SCR 213, the Constitution Bench accepted the submission of the leamed counsal Gppearing for the appeilant therein to the effect that the eiection petition was not to be equated to an electiQn at law or in equity, but <xs the rights are purely creature of the statute, if the statute renders any part'icuhr requirement mandatory, the courts possess ond can exerdse no dispensing power of waive non-campliance* The Constitution Bench foliowing Murarka ftadhe Shyam CGSC hetd: (AIR pp, 1033-34, para 26). "We do not however consider that there is ready need for so much refinement when one has to look at whether there is a substantiaj compliance with 'l+ie requirement of this provision, If the signatures naw found on the copies were intended to oyuithenticQts the docurBent to which it is appended yiz. the copy, it would only mean •Hiat the copy did not reproduce 1fie signatur® in the original. There is no compelling necessity to hoSd thst the signatures were merely intended to be a copy of 1+iose 011 the ori9inal in order to speii out a non-compfiance with Section 81(3), seeing that a signature in origirral was not needed on the copy and a writin9 copym9 out the rName of the signatory would suffice." 25. Applying the ratio of above referred coses in the facts of thepresent case indisputably, the instant revision petition has been filed atong with an appliaition for condonation of deloy. Meaning thereby even beyond Itte period of IJmJtation ta fiie revision prescribed under the law and that too without depositing the requisite amount of security deposit along wil+i the revision/ which connot be cured by depositing the sajd amount subasquaitly. 26. Matter ccxn be tooked from other angle there may be a case in which although deposit was not made along wjth revisron (wtjtion 14 but made subsequently but before expiration of period of limitation. then it may have been said 1+iat the petitjon does not suffer froni fatal defect but here in the instomt case, the revision itself has been filecl along with an application for condonation of delay without depositing the requisite amount and, therefore, non- compliance is fatal. 27. The preliminary objection preferred by tiie non-applicant No»l is allowed and the revision is djsmissed accordingly. 28. No order asa to costs. Sd/- N. K. Agarwal Judge