Case: Sitaram Vs. Radhey Shyam Vishnav &amp; Others

2. Bereft of unnecessary details, the facts requisite to be stated are that the appellant and the 1st respondent were elected to Municipal Ward Nos. 28 and 45 respectively of Municipal Council, Kishangarh. The election to the post of Chairperson of the Municipal Corporation is to be made from amongst the 45 Ward Members and the said post has been reserved for the OBC category. There is no dispute that both the appellant and the 1st respondent belong to the OBC category. The election was held on 21.08.2015. The appellant, as per the votes counted by the returning officer, received 23 votes and the 1st respondent secured 18 votes as a consequence of which the appellant was declared elected. Challenging the election, Election Petition No. 180 of 2015 was filed by the 1st respondent alleging that the votes in favour of the elected candidate had been erroneously counted though they deserved to be rejected on the ground that 11 voters had left such marks on the ballot papers that could identify them. Apart from the said allegation, certain other aspects were also pleaded. It was also set forth in the petition that a sum of Rs. 1,000/had been deposited before the Election Tribunal as per law.3. After filing a reply to the election petition, the appellant filed an application under Order VII Rule 11 read with Section 151 CPC for rejection of the election petition because ofof Rule 3(d) of the 2009 Rules. In addition to the aforesaid, certain other grounds were also urged to reject the election petition but as the said grounds have not been canvassed before us, we need not dwell upon the same.4. It was contended before the Election Tribunal that as required by the 2009 Rules, an election petition may be filed by a candidate who has been defeated or whose nomination has been rejected to challenge the election by filing an election petition which is required to be accompanied by a treasury challan of Rs. 1,000/and the Judge hearing the election petition as per Rule 7(3) of the 2009 Rules is obligated to dismiss the election petition which does not comply with the provisions of the said Rules. It was pleaded that though the 1st respondent had filed the election petition on 09.09.2015, yet it was not accompanied by treasury challan of Rs. 1,000/and to substantiate the same, reliance was placed on the order dated 16.09.2015 passed by the Election Tribunal wherein it had allowed the election petitioner to deposit the amount. The same is also perceptible from the order dated 17.9.2015. The application for rejection was resisted by the election petitioner on the ground that he had filed an application before the court to file the receipt of challan of Rs. 1,000/and the amount was subsequently deposited and, therefore, the application for rejection of the election petition did not merit consideration.5. The Election Tribunal took note of the fact that the amount was deposited on 16.08.2015 and further as the election petitioner had filed an application in the court and had, under the direction of the court, deposited the said amount and filed the receipt thereof in the court, the ground raised under Order VII Rule 11 was sans substratum and did not deserve acceptance.6. Aggrieved by the aforesaid order, the appellant filed Writ Petition before the High Court and reiterated the grounds urged before the Election Tribunal. The High Court, as is discernible from the impugned order, did not advert to the question of nature of the provision as engrafted in the 2009 Rules and noted that the issue whether the election petition was liable to be rejected despite the subsequent submission of the challan within the period of limitation was not required to be gone into as the application under Order VII Rule 11(d) CPC on the ground agitated therein was not maintainable andBeing of this view, the High Court dismissed the Writ Petition. The High Court further directed that the writ petitioner would be free to agitate all the defences in his written statement as available to him in law against the election petition including its maintainability.

Reasoning:
Mr. Jain, learned senior counsel appearing for the 1st respondent, has advanced the contention with regard to substantialcompliance. To bolster the said submission, immense inspiration has been drawn from aBench decision in Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria and others,. On a perusal of the aforesaid dictum, we are inclined to state that the aforesaid decision has to be distinguished on the principle laid down by this Court in Charan Lal Sahu (I) (supra).The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, thewill entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is `accompanied and the term `accompany means toor go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining towill have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier.Mr. Jain would submit that this is not an incurable defect as the deposit has been made within the period of limitation. The said submission leaves us unimpressed inasmuch as Rule 7 leaves no option to the Judge but to dismiss the petition. Thus, regard being had to the language employed in both the Rules, we are obligated to hold that the deposit of treasury challan which means deposit of the requisite amount in treasury at the time of presentation of the election petition is mandatory. Therefore, the inevitable conclusion is that no valid election petition was presented. In such a situation, the learned Additional District Judge was bound in law to reject the election petition.