SITARAM versus RADHEY SHYAM VISHNAV & ORS.
[2018] 3 S.C.R. 601, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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SITARAM
 v.
RADHEY SHYAM VISHNAV & ORS.
    (Civil Appeal No. 1200 of 2018)
MARCH 06, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR D.Y. CHANDRACHUD, JJ.]
Rajasthan Municipalities Election Petition Rules, 2009:
rr. 3(5)(d) and 7(3) – Election to the post of Chairperson of
Municipal Corporation – Challenged by filing election petition –
Application seeking rejection of election petition for non-compliance
of r. 3(5)(d) – Application dismissed by Election Tribunal – In writ
petition challenging order of Tribunal, High Court held that the
application was not maintainable – On appeal, held: R.3(5)(d)
mandates that election petition has to be accompanied by the treasury
challan and with the treasury challan, there has to be deposit in the
treasury – R.7(3) mandates dismissal of election petition for
non-compliance of rules – Therefore, the election Tribunal was
bound in law to reject the election petition – Election Laws.
Allowing the appeal, the Court
HELD: 1.  Rule 3(5) (d) of Rajasthan Municipalities Election
Petition Rules, 2009 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 to
co-exist or 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 there has to be a deposit in
the treasury. [Para 37] [625-B-C]
2. There is no 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.  [Para 37] [625-E]
[2018] 3 S.C.R. 601
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Gulab Singh v. The Munsif and Judicial Magistrate 1st
Class and Others 1981 WLN (UC) 78 ; Bajrang Lal  v.
Kanhaiya Lal and Others RLW 2007 (2) Raj 1551 –
relied on.
3. Rule 7 of Rajasthan Municipalities Election Petition
Rules, 2009 leaves no option to the Judge but to dismiss the
petition. Thus, regard being had to the language employed in
both the Rules, 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 Election Tribunal was bound
in law to reject the election petition. [Para 38] [625-H; 626-A]
Charan Lal Sahu v. Fakruddin Ali Ahmed and Others
(1975) 4 SCC 832 – followed.
Charan Lal Sahu v. Nandkishore Bhatt and Others
(1973) 2 SCC 530 ; Aeltemesh Rein v. Chandulal
Chandrakar and others (1981) 2 SCC 689 – relied on.
K. Kamaraja Nadar v. Kunju Thevar and Others
[1959] SCR 583 : AIR 1958  SC 687; Chandrika
Prasad Tripathi v. Shiv Prasad Chanpuria and Others
[1959] 2 Suppl. SCR 527 : AIR 1959 SC 827 ;
M. Karunanidhi v. Dr. H.V. Hande and Others (1983) 2
SCC 473 ; Om Prabha Jain v. Gian Chand and  Another
AIR 1959 SC 837 : [1959] 2 Suppl. SCR 516 ;
Budhi Nath Jha v. Manilal Jadav (1960) 22 ELR 86 ;
M.Y. Ghorpade v. Shivaji Rao M. Poal and Others
(2002) 7 SCC 289 ; T.M. Jacob v. C. Poulose and Others
(1999)
4 SCC 274 ; Dr. Shipra and Others v. Shanti
Lal Khoiwal and Others (1996) 5 SCC 181 ;
Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore and Others AIR 1964  SC 1545 : [1964] 3
SCR 573 ; G.M. Siddeshwar v. Prasanna Kumar
(2013) 4 SCC 776 ;  Anil Vasudev Salgaonkar  v. Naresh
Kushali Shigaonkar (2009) 9 SCC 310 – held
inapplicable.
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Case Law Reference
(1973) 2 SCC 530
relied on
Para 13
[1959] SCR 583
held inapplicable
Para 14
(1975) 4 SCC 832
followed
Para 16
(1981) 2 SCC 689
relied on
Para 17
[1959] 2 Suppl. SCR 527
held inapplicable
Para 19
(1983) 2 SCC 473
held inapplicable
Para 21
[1959] 2 SCR 516
held inapplicable
Para 23
(1960) 22 ELR  86
held inapplicable
Para 23
(2002) 7 SCC 289
held inapplicable
Para 24
(1999) 4 SCC 274
held inapplicable
Para 26
(1996) 5 SCC 181
held inapplicable
Para 26
[1964] 3 SCR 573
held inapplicable
Para 27
(2013) 4 SCC 776
held inapplicable
Para 28
1981 WLN (UC) 78
relied on
Para 35
(2009) 9 SCC 310
held inapplicable
Para 37
RLW 2007 (2) Raj 1551
relied on
Para 37
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1200
of 2018.
From the Judgment and Order dated 03.07.2017 of the High Court
of Judicature for Rajasthan at Jaipur Bench in S. B. Civil Writ Petition
No. 8238 of 2017.
Mahavir Singh, Sr. Adv., Aditya Singh, Rajiv Dalal, Awadhesh
Yadav, Gagandeep, Advs for the Appellant.
Sushil Kumar Jain, Sr. Adv., Puneet Jain, Praveen Choudhary,
Ms. Christi Jain, Abhinav Gupta, Ms. Priyal Jain, Ms. Yashika Sharma,
Harsh Jain, Ms. Pratibha Jain, Advs. for the Respondents.
SITARAM v. RADHEY SHYAM VISHNAV & ORS.
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The Judgment of the Court was delivered by
DIPAK MISRA, CJI. 1. The singular issue that arises for
consideration in this appeal by special leave is whether the High Court
of Judicature for Rajasthan at Jaipur Bench is justified in dismissing
S.B. Civil Writ Petition No. 8238 of 2017 thereby affirming the order
dated 23.05.2017 passed by the learned Additional District Judge,
Kishangarh, District Ajmer (herein after referred to as “the Election
Tribunal”) in Election Petition No. 55 of 2016 whereunder the Election
Tribunal had rejected the application preferred under Order VII Rule
11(d) and (e) read with Order XIV Rule 2 read with Section 151 of the
Code of Civil Procedure (CPC) seeking rejection of the election petition
on the foundation that there had been non-compliance of the Rajasthan
Municipalities Election Petition Rules, 2009 (herein after referred to as
“the 2009 Rules”) which are mandatory in character.
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 of non-compliance of 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.
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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 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.
SITARAM v. RADHEY SHYAM VISHNAV & ORS.
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7. We have heard Mr. Mahavir Singh, learned senior counsel for
the appellant, and Mr. Sushil Kumar Jain, learned senior counsel for the
1st respondent.
8. As the controversy rests upon the interpretation of the 2009
Rules, it is necessary to scan and understand the nature and character
of the said Rules. Rule 3 of the 2009 Rules deals with the election petition.
Rule 3(3) provides the grounds on which the election of any person as
Chairperson or Vice-Chairperson or member of a municipality can be
questioned. Rule 3(5) of the said Rules provides for the requirements of
an election petition.  The said Rule, being pertinent, is extracted below:-
“Rule 3(5). An election petition –
(a) shall contain a concise statement of the material facts on which
the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the
petitioner alleges, including names of the person alleged to have
committed such corrupt practice and the date and place of the
commission of such practice;
(c) shall be signed by the petitioner and verified in the manner laid
down in the Code of Civil Procedure, 1908 (Central Act V of
1908) for the verification of pleadings. Any schedule or annexure
to the petition shall also be signed by the petitioner and verified in
the same manner as the petition, and
(d) shall be accompanied by a treasury challan of rupees one
thousand.”
     [Emphasis added]
9. Rule 7 of the 2009 Rules deals with
the decision of the Judge.
As we are only concerned with sub-rule (3) of Rule 7, it is reproduced
below:-
“Rule 7. Decision of the Judge.-
(3) The Judge shall dismiss an election petition, which does not
comply with the provisions of these rules.”
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10. It is submitted by Mr. Singh, learned senior counsel appearing
for the appellant, that as per Rule 3(5)(d), it is mandatory that an election
petition is required to be accompanied by a treasury challan of
Rs. 1,000/- and if the said requirement is not complied with, it is obligatory
on the part of the Judge to dismiss the election petition. He would urge
that the factum of non-deposit is a matter of record and the language
employed in the relevant Rule is mandatory in character and, therefore,
the Election Tribunal completely erred in rejecting the petition and the
High Court failed to exercise the jurisdiction vested in it by not correctly
adverting to the same.
11. Mr. Jain, learned senior counsel appearing for the 1st respondent,
would contend that the 2009 Rules stipulate filing of treasury challan for
the making of a deposit and there is a distinction between filing of a
treasury challan and making the deposit. He would submit that the order
of the Court is necessary to make a deposit in the court as per the
General Rules (Civil), 1986 (hereinafter referred to as “the 1986 Rules”)
which is prevalent in the State of Rajasthan. Apart from other decisions,
he has commended us to the judgment dated 08.08.2016 passed by the
learned single Judge of the High Court of Rajasthan in Civil Writ (CW)
No. 7637 of 2016.
12. Before we proceed to deal with the manner of deposit and the
mode provided under the 1986 Rules, it would be apt to refer to certain
authorities that have dealt with the prescriptions pertaining to the
presentation of an election petition.
13. In Charan Lal Sahu v. Nandkishore Bhatt and others1, the
Court was dealing with the provisions contained in Section 117 of the
Representation of People Act, 1951 (for short, “the 1951 Act”) which
requires that at the time of presenting an election petition, the petitioner
shall deposit in the High Court in accordance with the rules of the High
Court a sum of two thousand rupees as security for the costs of the
petition and it also confers power on the High Court to call upon the
election petitioner to give such further security for costs as it may direct.
It was contended before the High Court that Section 117 of the 1951
Act is only directory and not mandatory and that the deposit of Rs.
2000/- is only to secure the costs in the course of the trial of the election
petition. The said plea was negatived by the High Court. The two-Judge
1(1973) 2 SCC 530
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Bench referred to Article 329(b) of the Constitution of India which
provides that no election to either House of Parliament or to the House
or either House of the Legislature of a State shall be called in question
except by an election petition presented to such authority and in such
manner as may be provided for by or under any law made by the
appropriate Legislature. Proceeding further, the Court observed:-
“3. … The right conferred being a statutory right, the terms of
that statute had to be complied with. There is no question of any
common law right to challenge an election. Any discretion to
condone the delay in presentation of the petition or to absolve the
petitioner from payment of security for costs can only be provided
under the statute governing election disputes. If no discretion is
conferred in respect of any of these matters, none can be exercised
under any general law or on any principle of equity. This Court
has held that the right to vote or stand as a candidate for election
is not a civil right but is a creature of statute or special law and
must be subject to the limitations imposed by it. In N.P.
Ponnuswami v. Returning Officer, Namakkal Constituency2
it was pointed out that strictly speaking, it is the sole right of the
Legislature to examine and determine all matters relating to the
election of its own members, and if the Legislature takes it out of
its own hands and vests in a special tribunal
an entirely new and
unknown jurisdiction, that special jurisdiction should be exercised
in accordance with the law which creates it.”
14.  The command in the provision, the Court opined, of the deposit
of the security along with the election petition as required under Section
117 of the 1951 Act leaves no option with the court but to reject the
election petition. It is worthy to note here that the Court distinguished
the authority in K. Kamaraja Nadar v. Kunju Thevar and others3
where the election petitioner under the unamended provision of Section
117 of the 1951 Act had deposited the amount in Government treasury
but had neither mentioned the complete head of account in the
Government treasury receipt nor was the deposit made in favour of the
Secretary to the Election Commission as provided in the aforesaid Section.
The Court in K. Kamaraja Nadar (supra), interpreting the unamended
Section 117, had expressed thus:-
2 1952 SCR 218 : AIR 1952 SC 64
3 1959 SCR 583 : AIR 1958 SC 687
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“31.
… It would be absurd to imagine that a deposit made
either in a Government Treasury or in the Reserve Bank of India
in favour of the Election Commission itself would not be sufficient
compliance with the provisions of Section 117 and would involve
a dismissal of the petition under Section 85 or Section 90(3). The
above illustration is sufficient to demonstrate that the words “in
favour of the Secretary to the Election Commission” used in Section
117 are directory and not mandatory in their character. What is of
the essence of the provision contained in Section 117 is that the
petitioner should furnish security for the costs of the petition, and
should enclose along with the petition a Government Treasury
receipt showing that a deposit of one thousand rupees has been
made by him either in a Government Treasury or in the Reserve
Bank of India, is at the disposal of the Election Commission to be
utilised by it in the manner authorised by law and is under its
control and payable on a proper application being made in that
behalf to the Election Commission or to any person duly authorised
by it to receive the same, be he the Secretary to the Election
Commission or any one else.
32. If, therefore it can be shown by evidence led before the Election
Tribunal that the Government Treasury receipt or the chalan which
was obtained by the petitioner and enclosed by him along with his
petition presented to the Election Commission was such that the
Election
Commission could on a necessary application in that behalf
be in a position to realise the said sum of rupees one thousand for
payment of the costs to the successful party it would be sufficient
compliance with the requirements of Section 117. No such literal
compliance with the terms of Section 117 is at all necessary as is
contended for on behalf of the appellant before us.”
15. As stated earlier, the said decision was distinguished and the
distinction is vivid from the analysis made in the above quoted paragraphs.
16. In this context, reference to the decision by the Constitution
Bench in Charan Lal Sahu v. Fakruddin Ali Ahmed and others4 is
instructive.  In the said case, the nomination of the petitioner was rejected
on the ground of non-compliance with Sections 5-B and 5-C introduced
in the Presidential and Vice-Presidential Elections Act, 1952 by an
4 (1975) 4 SCC 832
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amendment made by Act 5 of 1974.  Section 5-C(1) requires that a
candidate shall not be deemed to be duly nominated for election unless
he deposits or causes to be deposited a sum of two thousand five hundred
rupees.  Section 5-C(2) lays down that the sum required to be deposited
under sub-section (1) shall not be deemed to have been deposited under
that sub-section unless at the time of presentation of the nomination
paper under sub-section (1) of Section 5-B, the candidate has either
deposited or caused to be deposited  that sum with the Returning Officer
in cash or enclosed with the nomination paper a receipt showing that the
said sum has been deposited by him or on his behalf in the Reserve
Bank of India or in a Government Treasury.  The petitioner in the said
case had sent a cheque for Rs. 2500/- to the Returning Officer along
with his  nomination paper. Interpreting Section 5-C, the Court held that
enclosing a cheque for Rs. 2500/- did not comply with the mandatory
requirement of sub-section (2) of Section 5-C.  The Court took note of
the fact that the provision expressly states that a candidate has to either
deposit in cash or enclose with the nomination paper a receipt showing
that the said sum had been deposited by him or on his behalf in the
Reserve Bank of India or in a Government Treasury. Relying on the said
decision, Mr. Mahavir Singh, learned senior counsel, would submit that
the concept of treasury
challan would clearly mean deposit in the treasury
and filing the receipt of the amount that has been deposited at the time
of presentation of the election petition but not to file a challan before the
Court seeking permission to deposit. The said submission has been
controverted by Mr. Jain, learned senior counsel, on two counts, namely,
seeking permission is imperative and as long as there has been a deposit,
the election petition cannot be rejected treating it as not maintainable.
We shall deal with the said facet at a later stage.
17. In Aeltemesh Rein v. Chandulal Chandrakar and others5,
the Court opined that Section 117 of the 1951 Act has been enacted
having the source of power under Article 329(b) of the Constitution
which provides that an election petition has to be presented to such
authority and in such manner as may be provided for by or under law
made by the appropriate legislature.  In the said case, admittedly, the
appellant stated in the election petition that he had deposited the security
amount of Rs. 2000/- along with the petition as required under Section
117 of the 1951 Act but, in fact, no such deposit was made. Dealing with
the same, the Court expressed:-
5 (1981) 2 SCC 689
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“3. The only question which survives is as to what is the
consequence of non-compliance with Section 117 of the Act. That
question has been settled by the decision of this Court in Charan
Lal Sahu v. Nandkishore Bhatt (supra) 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) of the Act provides
that the High Court shall dismiss an election petition which does
not comply with the provisions of Section 81, 82 or 117. In that
view of the matter, the High Court was right in dismissing the
election petition summarily.”
18. From the aforesaid authority, it is clear as crystal that there
has to be compliance with the provision relating to deposit failing which
the Court has no option but to reject an election petition.  Be it noted
with profit that the said decision dealt with a situation where the election
petition had to be accompanied by payment of security deposit.
19. Mr. Jain, learned senior counsel appearing for the 1st
respondent, has advanced the contention with regard to substantial
compliance. To bolster the said submission, immense inspiration has been
drawn from a three-Judge Bench decision in Chandrika Prasad
Tripathi v. Shiv Prasad Chanpuria and others6. In the said case, the
Court was dealing with the unamended provision of Section 117 of the
1951 Act.  The Court referred to the earlier decision in
K. Kamaraja
Nadar (supra) and opined that Section 117 should not be strictly or
technically construed and that wherever it is shown that there has been
a substantial compliance with its requirement, the Tribunal should not
dismiss the election petition on technical grounds. Scanning the language
employed in Section 117, the Court ruled:-
“… Indeed it is clear that the receipt with which this Court was
concerned in the case of Kamaraj Nadar,   (supra) was perhaps
slightly more defective than the receipt in the present case. The
argument based on the use of the word “refundable” ignores the
fact that the security in terms has been made in respect of the
election petition in question and it has been duly credited as towards
the account of the Election Commission. Therefore, there can be
no doubt that if an occasion arises for the Election Commission to
6 1959 SUPP (2) SCR 527 : AIR 1959 SC 827
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make an order about the payment of this amount to the successful
party, the use of the word “refundable” will cause no difficulty
whatever. We hold that the security has been made by Respondent
1 as required by Section 117 of the Act and would be at the disposal
of the Election Commission in the present proceedings.”
20. 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).
21. In M. Karunanidhi v. Dr. H.V. Hande and others7, a two-
Judge Bench was interpreting Section 117 of the 1951 Act wherein the
question arose as to whether the High Court was justified in expressing
the view that the factum of making deposit of Rs. 2,000/- as security for
costs in the High Court was mandatory and the manner of making the
deposit was directory. It was contended before this Court that the
provisions of sub-section (1) of Section 117 of the 1951 Act are mandatory
and, therefore, non-compliance with the same has to entail dismissal of
the election petition in limine under sub-section (1) of Section 117 of the
1951 Act.  The Court adverted to the issue as to whether the provision is
mandatory or not and, in that context, held:-
“20. It is well established that an enactment in form mandatory
might in substance be directory and that the use of the word “shall”
does not conclude the matter. The general
rule of interpretation is
well-known and it is but an aid for ascertaining the true intention
of the legislature which is the determining factor, and that must
ultimately depend on the context. The following passage from
Crawford on Statutory Construction at p. 516 brings out the
rule:
‘The question as to whether a statute is mandatory or directory
depends upon the intent of the legislature and not upon the
language in which the intent is clothed. The meaning and
intention of the legislature must govern, and these are to be
ascertained, not only from the phraseology of the provision,
but also by considering its nature, its design, and the
consequences which would follow from construing it the one
way or the other.’
7 (1983) 2 SCC 473
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This passage was quoted with approval by the Court in State of
U.P. v. Manbodhan Lal Srivastava8, State of U.P. v. Babu Ram
Upadhya9 and Raza Buland Sugar Co. Ltd. v. Municipal
Board, Rampur10. The Court in Manbodhan Lal case where
Article 320(3)(c) of the Constitution was held to be directory and
not mandatory, relied upon the following observations of the Privy
Council in Montreal Street Railway Company v. Normandin11:
‘The question whether provisions in a statute are directory or
imperative has very frequently arisen in this country, but it has
been said that no general rule can be laid down, and that in
every case the object of the statute must be looked at. The
cases on the subject will be found collected in Maxwell on
Statutes, 5th Edn., p. 596 and following pages. When the
provisions of a statute relate to the performance of a public
duly and the case is such that to hold null and void acts done in
neglect of this duty would work serious general inconvenience,
or injustice to persons who have no control over those entrusted
with the duty, and at the same time would not promote the
main object of the Legislature, it has been the practice to hold
such provisions to be directory only, the neglect of them, though
punishable, not affecting the validity of the acts done.’”
22. After so stating, the two-Judge Bench referred to Rule 8 of
the Madras High Court (Election Petitions) Rules, 1967.  Be it noted, the
said Rule prescribes the mode of deposit.  The
contention was advanced
before the Court that it is paradoxical to say that deposit of money into
the Reserve Bank to the credit of the Registrar, High Court, Madras is a
sufficient compliance of sub-section (1) of Section 117 when Rule 8
provides that the money should be deposited in the High Court in cash,
and that is the only mode prescribed under sub-section (1) of Section
117.
23. Repelling the said submission, the Court held:-
“We are afraid, we are unable to accept this line of argument. A
literal and mechanical interpretation of Rule 8 would lead to
manifest absurdity as it would imply that in every case the election
8 AIR 1957 SC 912
9 AIR 1961 SC 751
10 AIR 1965 SC 895
11 1917 AC 170
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petitioner shall have to pay to the Registrar a sum of Rs 2000 in
cash towards security for costs as required by sub-section (1) of
Section 117 of the Act and obtain a receipt from him therefor.
Rule 8 is silent as to how the cash is to be handled. It cannot
ordinarily be expected that the Registrar of a High Court would
accept the amount of security deposit in cash. The procedure
adopted by II Assistant Registrar in directing that the money be
deposited to the credit of the Registrar of the High Court in the
Reserve Bank of India was in conformity with the requirements
of Rule 8 of the Election Petitions Rules. Inasmuch as Rule 8
does not lay down the procedure regulating the manner of deposit
of cash, the matter falls to be governed by Rule 2 of Order 31 of
the Madras High Court (Original Side) Rules, 1956 by reason of
Rule 12 of the Election Petitions Rules. Although Order 31 Rule 2
does not in terms apply because Order 31 relates to “Payment
into Court of moneys to the credit of civil court deposits and account
of suitors’ money”, and though no lodgment schedule can be
prepared under Rule 2 except in pursuance of a decree or order
passed by the High Court i.e. in relation to some proceeding
pending, or disposed of, by the High Court, still by virtue of Rule
12 of the Election Petitions Rules that is the procedure to be
adopted for deposit of Rs 2000 in the High Court in cash i.e. by
crediting the amount on the
strength of a pre-receipted challan
prepared by the Accounts Department on the basis of a lodgment
schedule. That was the only procedure applicable and there was
nothing wrong in the procedure adopted in making the deposit.
When the amount was so deposited with a pre-receipted challan
issued by the Accounts Department to the credit of the Registrar
of the High Court and the Reserve Bank of India made the
endorsement “Received in Cash”, it must be regarded that the
payment was made in the High Court and the pre-receipted challan
bearing the endorsement of the Reserve Bank of India must be
treated as the receipt of the Registrar in terms of Rule 8, the
Reserve Bank acting as an agent of the High Court.”
Be it noted, the Court relied on the authorities in K. Kamaraja
Nadar (supra), Chandrika Prasad Tripathi (supra), Om Prabha Jain
v. Gian Chand and another12 and Budhi Nath Jha v. Manilal Jadav13
12 AIR 1959 SC 837 : 1959 SUPP (2) SCR 516
13 (1960) 22 ELR 86
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to opine that Section 117 of the 1951 Act should not be strictly or
technically construed and substantial compliance with its requirement
shall be treated as sufficient.  The decisions in Charan Lal Sahu (I)
(supra) and Aeltemesh Rein (supra) were discussed.  The two-Judge
Bench took note of the fact that there is no provision to absolve the
election petitioner of payment of security for costs.
24. As we are only concerned with the deposit, we may usefully
refer to a three-Judge Bench decision in M.Y. Ghorpade v. Shivaji
Rao M. Poal and others14.  In the said case, the security as required
under Section 117 of the 1951 Act was deposited in the High Court by
the Respondent No.5 and not by the election petitioner who was the 1st
respondent before this Court.  The High Court came to hold that as the
deposit in question had been made by the petitioner, and the same had to
be treated as security for the costs of the election petition. For the said
purpose, the High Court had placed reliance on the decision in Chandrika
Prasad Tripathi (supra) and other decisions and the authority in M.
Karunanidhi (supra).  It was urged before this Court that on the
foundation of Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra),
the view expressed by the High Court was absolutely erroneous, for the
deposit made by the Respondent No.5 could never be construed as the
deposit by the election petitioner. The three-Judge Bench, analyzing the
object of Section 117 of the 1951
Act, held that the purpose of Section
117 is to discourage entertaining frivolous election petitions and make
provision for costs in favour of the parties who ultimately succeed in the
election petition.  The Court further observed that sub-section (2) of
Section 117 authorises the High Court to call upon an election petitioner
during the course of the trial of an election petition to give such further
security which may be necessary depending upon the facts and
circumstances of the case.  The decision in Charan Lal Sahu (I) (supra)
was distinguished as it was a case of non-deposit. The authority in
Aeltemesh Rein (supra) was also distinguished as no such deposit had
been made though it was stated in the petition that the security amount
was being deposited.  The Court placed reliance on M. Karunanidhi
(supra) and eventually ruled:-
“This Court relied upon the earlier decision of this Court in the
case of K. Kamaraja Nadar v. Kunju Thevar which was a case
under the provisions of Section 117 of the Act, as it stood prior to
14 (2002) 7 SCC 289
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its amendment, wherein also the receipt showed that the deposit
had been made but did not show that the deposit had been made
in favour of the Secretary to the Election Commission. One of the
questions that arose was whether the expression “in favour of the
Election Commission”, contained in Section 117, as it stood then,
was mandatory in character or not, and this Court held that the
first part of Section 117 though was mandatory, but not the later
part. It is not necessary to multiply authorities on the point, but
suffice it to say, that the sum of Rs 2000 must be deposited while
filing an election petition and that is undoubtedly mandatory, but
through whom the amount will be deposited etc. cannot be held to
be mandatory.”
  (Underlining is ours)
From the aforesaid passage, it is luculent that deposit at the time
of presentation is mandatory but not the mode.
25. Many an authority has been commended to us with regard to
substantial compliance and the doctrine of curability. We may refer to
some of them.
26. In T.M. Jacob v. C. Poulose and others15, the Constitution
Bench was dealing with the defects pertaining to true copy of the affidavit
as has been held to be mandatory in Dr. Shipra and others v. Shanti
Lal Khoiwal and others16.  The larger Bench expressed thus:-
“40. In our opinion it is not every minor variation in form but only
a vital defect in substance which can lead to a finding of non-
compliance with
the provisions of Section 81(3) of the Act with
the consequences under Section 86(1) to follow. The weight of
authority clearly indicates that a certain amount of flexibility is
envisaged. While an impermissible deviation from the original may
entail the dismissal of an election petition under Section 86(1) of
the Act, an insignificant variation in the true copy cannot be
construed as a fatal defect. It is, however, neither desirable nor
possible to catalogue the defects which may be classified as of a
vital nature or those which are not so. It would depend upon the
facts and circumstances of each case and no hard and fast formula
can be prescribed. …”
15 (1999) 4 SCC 274
16 (1996) 5 SCC 181
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27. Be it stated, the Court in the said case referred to the
Constitution Bench decision in Murarka Radhey Shyam Ram Kumar
v. Roop Singh Rathore and others17 and opined that the tests laid down
therein are sound and did not require a repetition.
28.  In G.M. Siddeshwar v. Prasanna Kumar18, the three-Judge
Bench after referring to T.M. Jacob (supra) came to hold that the defect
in verification of affidavit is not fatal to the election petition and it could
be cured. Reference was made to a passage from Anil Vasudev
Salgaonkar v. Naresh Kushali Shigaonkar19 wherein it has been held:-
“50. The position is well settled that an election petition can be
summarily dismissed if it does not furnish the cause of action in
exercise of the power under the Code of Civil Procedure.
Appropriate orders in exercise of powers under the Code can be
passed if the mandatory requirements enjoined by Section 83 of
the Act to incorporate the material facts in the election petition
are not complied with.”
29. After so stating, the three-Judge Bench ruled :-
“52. The principles emerging from these decisions are that although
non-compliance with the provisions of Section 83 of the Act is a
curable defect, yet there must be substantial compliance with the
provisions thereof. However, if there is total and complete non-
compliance with the provisions of Section 83 of the Act, then the
petition cannot be described as an election petition and may be
dismissed at the threshold.”
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
17 AIR 1964 SC 1545 : 1964 (3) SCR 573
18 (2013) 4 SCC 776
19 (2009) 9 SCC 310
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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:-
“15. That necessary Court fee has been paid with this petition.
Rs. 1000/- has been deposited before this Hon’ble Court as per
Law. A copy of this petition has already been sent to the District
Returning Officer.”
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:-
“252. Appointment of a Receiving Officer.- (1) Every civil
court or where two or more courts have a single account with the
Treasury, every such group of courts, shall have an official
entrusted with the receipt of money deposited in the Court.
(2) Such official shall be called as the Receiving Officer and shall
be appointed by the presiding officers of the Civil Court or where
two or more courts have single account with the Treasury, he
shall be appointed by the presiding officer of the highest court
subject to instructions if any, of the District Judge
concerned.
(3) In a court where no official is appointed specifically to perform
the duties of the Receiving Officer or during the absence on leave
or otherwise of the person appointed as the Receiving Officer,
the presiding officer of the civil court or the presiding officer of
the high court as the case may be, shall appoint any other official
of his court to carry on the duties of the Receiving Officer.
253. Head of account.- The following are the head of account
under which the money received and paid under these Rules are
classified:-
(1) Deposits;
(a) Civil Court deposits, including:
(i) sums paid under decrees and orders;
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(ii) sums deposited under Order XX, Rule 14 and Order XXIV,
Rule 1 of the Civil Procedure Code and Section 83 of the Transfer
of Property Act;
(iii) Sums deposited under Order XXII, Rule 84 or paid under
Order XXI, Rule 85 of the Code;
(iv) Sums deposited under Section 379(1) of the Indian Succession
Act;
(v) Sums deposited in lieu of security;
(vi) Sums deposited under any law relating to the Land Acquisition;
(b) petty cash deposits, including deposits for:-
(i) Travelling and other expenses of witnesses;
(ii) Subsistence money for judgment debtors;
(iii) Incidental charges of Commissions, Amins and Arbitrators
etc.;
(iv) Commission fees;
(v) Postage and registration fees;
(vi) Cost of publication of proclamation and orders;
(2) Other Administrative Services.
A. Administration of Justice.
(a) Services and Service fees;
(i)…..
(ii) Civil and Sessions and Judicial Courts;
(b) Fines and forfeitures;
(i)…..
(ii) Civil and Sessions & other Judicial Court.
(c) Other Receipts.
I. Sale proceeds of unclaimed and escheated property
(i)….
(ii) Civil and Sessions & other Judicial Courts.
II. Legal Aid to poor.
III. Recoveries of over payments.
(i)……
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(ii) Civil and Sessions & Other Judicial Court.
IV. Other Receipts.
(i)….
(ii) Civil and Sessions & Other Judicial Court.
(d) Stamp duties and penalties.
Note:- Sub-heads (a),(b) &(c) have been classified in the State
Account under the major head “065” Other Administrative Services
and sub-head(d) under the major head “0.30” Stamps &
Registration fees”. These major heads and sub-heads will
automatically be deemed to have changed whenever they are
changed in the Budget,
(3) Departmental cash including:-
(i) Salary of establishment.
(ii) Travelling allowance.
(iii) Contingencies.
260. Mode of payment of money into court. - Payment of
money into court shall ordinarily be made by means of a tender
upon a printed triplicate form. The applicants shall enter in the
court language the particulars required in columns 1 to 4 of the
triplicate form of tender (F. 23). The applicant shall then hand
over the tender to the Munsarim or the Reader of the Court
concerned, as the case may be.
261. Office report by the official-in-charge of the record. -
The Munsarim or the Reader of the court concerned, as the case
may be, shall then call upon the official-in-charge of the record of
the case for an office report as to whether the amount and nature
of the payment tendered and the number of the suit, or proceeding,
if any are correct, and whether the payment is due from the person
on whose account it is tendered. Any necessary corrections
shall
be made and the munsarim or the Reader of the Court concerned,
as the case may be, shall then sign the tender and enter it in the
register of challans prior to the order for receipt of payment being
passed.
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262. Preparation of the order for payment. – The order to
receive payment shall be prepared in the office of the Court and
shall be enfaced upon the duplicate and triplicate forms of the
tender, and shall run in the name of or Receiving Officer as
prescribed in Rules 255, 256, 257.  The order shall be signed by
the presiding officer for all amount payable under Head of Account
(1)(a) and (2) of Rule 253 and by the Munsarim or the Reader of
the court concerned; as the case may be for all amounts payable
under shall send the tender forms to the Munsarim or the Reader
of the Court concerned, as the case may be. The third form of
tender shall be retained in custody by the Munsarim or the Reader
of the court concerned, as the case may be, and then he shall
return the second copy of the tender to the applicant and the
original copy shall be sent to the concerned court for keeping it in
the concerned case file.”
32. In this regard, our attention has also been invited to the  General
Financial and Accounts Rules Volume I & Volume II. Rule 54 of the
said Rules deals with the payment into treasury. Rule 56 deals with
Signing of Challan by Departmental Officer. The said Rules read as
follows:-
“Rule 54:  (1) Payments of money into the treasury or bank may
be made in cash, by E-payment, cheques, bank draft, Banker’s
cheque and Postal Orders.
(2) Challan : Subject as otherwise provided in these Rules, or
unless the Government in relation to any particular class of
transactions direct otherwise any person paying money into a
treasury or the Bank on Government accounts shall present a
challan in Form G.A. 57 showing distinctly the nature of the
payment, the person or Government officer on whose account it
is made, and all the information necessary for the preparation of
the receipt to be given in exchange, for the proper account
classification of the credit and, where necessary for its allocation
between Government and departments concerned. Separate
challans shall be used for moneys creditable to different head of
accounts.
Note: However, in case of E-payment, physical challan will not
be required. Instead, prescribed details usually received through
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physical challan, will be incorporated into a scroll of E-payments
which will be provided by the Bank duly authenticated on each
page to the treasury for classification of credit and preparation of
accounts of the Government.
xxx
xxx
xxx
Rule 56: Signing of Challan by Departmental Officer: When
money is paid by a private person into 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.
Note: Challans may also be signed by non-Gazetted Government
servants as may be authorized by the Government.  Presently
Excise Inspector, Balotra and Insurance Assistants are authorized
to sign challan for excise revenue and for deposits by the
Panchayat Samiti or local bodies on account of State Insurance,
etc.”
33. In this context, we may also refer to Rule 83 and Rule 86 of
the Rajasthan Treasury Rules, 2012 (hereinafter referred to as “the 2012
Rules”) . They read as follows:-
“83. No item should be credited as a deposit save under the formal
order of a Competent Authority. Besides, no sum shall be credited
in any deposit register which can be carried to any
other head of
account, for example, revenue paid to Government on account of
a demand not yet due should at once be credited to the proper
revenue head, instead of treating it as a deposit.
xxx
xxx
xxx
86. All kinds of revenue deposits under this category shall be
separately paid into treasury linked agency bank with challans/
System Generated Challans and other prescribed documents
setting forth all the particulars necessary for entries to be made in
Revenue Deposit Register. Each item of revenue deposit, other
than security deposit relating to election of Lok Sabha received,
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should at once be properly entered with unique identification
number. There should be a separate series of numbers for each
register, beginning afresh each year. All deposits must be separately
paid into the treasury with challans or other documents setting
forth all the particulars necessary for the entries to be made in the
register of deposit receipts. The treasury officer should carefully
check the amount and particulars of each entry and then set his
initials   in the proper column against each. The format for Revenue
Deposit Register is appended in form No. TY-2.
Notes: 1. Revenue deposit registers need not necessarily be opened
every year but if there are a sufficient number of pages available
in the old registers, they should be utilized, a separate series of
numbers being given every year for each class of deposit.
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.”
34. Mr. Jain has referred to Form G.A.-57.  The said form relates
to cash challan. It provides for the signature of the person who deposits
and in whose favour the deposit is being made and the permission for
deposit. The Form also provides for the amount and
certain heads or
categories. The submission, in essence, is that the cumulative reading of
the 1986 Rules and the 2012 Rules clearly show that there cannot be
any deposit without the permission of the concerned Court or authority.
Support has been drawn from the judgment passed by the learned Single
Judge in Ashok Kumar v. Learned A.D.J. No. 2 Chittorgarh and
others20 wherein the High Court was dealing with Rule 85 of the election
of Sarpanch of Gram Panchayat. The action was challenged under
Section 43 of the Rajasthan Panchayati Raj Act, 1994 and the issue
arose with regard to the interpretation of the provisions contained in the
Rajasthan Panchayati Raj Election Rules, 1994 (for short, “the 1994
Rules”).  Rule 81(2) of the 1994 Rules provides that no petition shall be
deemed to have been presented under the election rules unless the
20 Civil Writ (CW) No.7637 of 2016 decided on 8.8.2016
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petitioner deposits a sum of Rs. 50/- along with the petition by way of
security deposit for the costs of the opposite party. In the said case, the
election petition was filed on 28.02.2015 but costs were not deposited
along with the petition and the same were deposited on 12.03.2015. It
was contended before the learned single Judge that the election petitioner
had submitted the challan/tender for the deposit on 28.02.2015 itself but
the Election Tribunal had not passed any order for depositing the costs
with the treasury and, therefore, the same could not have been deposited
on that day and the deposit was made after the order was passed.  The
learned single Judge took note of Rule 85 of the Election Rules which
provides that the procedure provided in the CPC with regard to suits is
made applicable in so far as can be made applicable and came to hold
that if the deposit exceeds Rs. 25/-, the same can only be deposited in
the treasury if an order is passed by the Court or by the Munsarim or the
Reader of the Court concerned, as the case may be.
35. In this regard, Mr. Singh has placed reliance on an earlier
decision of the Rajasthan High Court in Gulab Singh v. The Munsif
and Judicial Magistrate 1st Class and others 21. In the said case, the
learned single Judge was dealing with the security deposit as provided
under Rule 79(2) & (3) of the Rajasthan Panchayat and Nyaya Panchayat
Election Rules, 1960. In the said
case, the deposit was made subsequently.
It was contended that the same was fatal to the case as the provision is
mandatory. Rule 79(2) of the said Rules read as follows:-
“79(2) No petition shall be deemed to have been presented under
these rules unless the petitioner deposits a sum of Rs.50/- along
with the petition by way of security for the costs of the opposite
party.”
36. The learned single Judge placed reliance on Charan Lal Sahu
(II) (supra) and came to hold that Rule 79(2) in relation to the deposit of
the security along with the petition is mandatory and since on facts it is
not in dispute that on 21st February, 1978 when the election petition was
filed, it was not presented along with a deposit of Rs. 50/- as required
for the costs of the opposite party, the legal and logical consequences
would be that the election petition could not be deemed to have been
presented under the Rules as per the mandate of Rule 79(2) of the
Rajasthan Panchayat and Nyaya Panchayat (Election) Rules,1960. Being
of this view, the learned single Judge opined that there was no valid
election petition before the Election Tribunal.
21 1981 WLN (UC) 78
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37. The discussion hereinabove can be categorized into three
compartments. First, the deposit is mandatory and the mode of deposit is
directory; second, the non-deposit will 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
to co-exist or 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 to non-deposit will 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.  Such was the case in Bajrang Lal v. Kanhaiya Lal
and others22 where the election petition was submitted on 31.8.2005
and an application was submitted before the court below on 30.8.2005
under Section 53 of the Act of 1959 with the signature of the advocate
and an order was passed by the court on the same application itself on
30.8.2005 allowing the advocate to deposit the security amount under
Section 53 of the Act of 1959 for election petition.  The election petition
was submitted on 31.8.2005.  In such a fact situation, the High Court
found that there was compliance with the provision.
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
22 RLW 2007 (2) Raj 1551
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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.
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.
Kalpana K. Tripathy
 Appeal allowed.