Sitaram vs Radhey Shyam Vishnav

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 3 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.

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 4 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 5 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 and mis-directed. Being 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.

30. We may immediately clarify that the aforesaid cases dealt with substantial compliance relating to ‘true copy’, ‘verification’, ‘affidavit’ and applicability of the principle of curability. In G.M. Siddeshwar (supra), the Court made a difference between total and complete non-compliance with the provision of Section 83 of the 1951 Act whereupon the election petition cannot be described as an election petition and may be dismissed at the threshold. In the instant case, we are concerned with the deposit by treasury challan which shall accompany the election petition. The Rule prescribes in categorical terms that the tribunal shall dismiss the petition in case of non-compliance. We have referred to the authorities relating to security deposits under Section 117 of the 1951 Act. The present rules refer to municipal election. It is worthy to note that the election petition in para 15 has stated thus:-

31. As stated earlier, the petition was filed on 09.09.2015 but the treasury challan was not filed on that day. The Election Tribunal had passed an order on a later date permitting the deposit. It is submitted by Mr. Jain that the election petitioner could not have deposited the amount without obtaining the permission of the Court. To substantiate the said stand, he has placed reliance on the 1986 Rules. We have been commended to Rules 252, 253, 260, 261 and 262. We think it appropriate to reproduce the said Rules:-

I. Sale proceeds of unclaimed and escheated property

(i)….

(ii) Civil and Sessions & other Judicial Courts. II. Legal Aid to poor.

(i)……

(i)….

(d) Stamp duties and penalties.

xxx xxx xxx Rule 56: Signing of Challan by Departmental Officer: When money is paid by a private person into 31 a treasury located in the same place as the departmental officer concerned with the payment, the challan shall before presentation to the Bank, Treasury or Bank be signed by the officer to whose account the money is to be credited. The departmental officer shall particularly check classification before it is given to the depositor. Such challans shall be received direct at the Bank without the intervention of Treasury Officer.

2. The entry in the columm “Nature of deposit” should be sufficient to explain why the amount is deposited.

3. In system driven environment, the treasury officer shall create new account for each revenue deposit received. The unique deposit ID shall be generated at the time of creation of account which will provide link to original deposit at the time of refund of deposit.”

38. 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 22 RLW 2007 (2) Raj 1551 38 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.

39. In view of the aforesaid analysis, we allow the appeal and set aside the order passed by the High Court that has affirmed the order of the Additional District Judge as a result of which the election petition shall stand rejected. There shall be no order as to costs.

(D.Y. Chandrachud) New Delhi;

March 06, 2018