1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1200 OF 2018
(@ S.L.P. (C) No. 20768 of 2017)
Sitaram Appellant (s)
VERSUS
Radhey Shyam Vishnav & Ors. Respondent(s)
J U D G M E N T
Dipak Misra, CJI
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
2
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
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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.
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
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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
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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.
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
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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.”
[Underlining is ours]
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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
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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
1 (1973) 2 SCC 530
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said plea was negatived by the High Court. The two-Judge
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
Constituency 2 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.”
2 1952 SCR 218 : AIR 1952 SC 64
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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:-
“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
3 1959 SCR 583 : AIR 1958 SC 687
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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
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Ahmed and others 4 is instructive. In the said case, the
nomination of the petitioner was rejected on the ground of noncompliance
with Sections 5-B and 5-C introduced in the
Presidential and Vice-Presidential Elections Act, 1952 by an
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 subsection
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
4 (1975) 4 SCC 832
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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
5 (1981) 2 SCC 689
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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:-
“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
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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
6 1959 SUPP (2) SCR 527 : AIR 1959 SC 827
16
Commission. Therefore, there can be no doubt that
if an occasion arises for the Election Commission to
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
7 (1983) 2 SCC 473
17
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 wellknown
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.’
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
8 AIR 1957 SC 912
9 AIR 1961 SC 751
10 AIR 1965 SC 895
11 1917 AC 170
18
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:-
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“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 petitioner shall
have to pay to the Registrar a sum of Rs 2000 in
cash towards security for costs as required by subsection
(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 prereceipted
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
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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 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 twoJudge
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
12 AIR 1959 SC 837 : 1959 SUPP (2) SCR 516
13 (1960) 22 ELR 86
14 (2002) 7 SCC 289
21
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
22
Sahu (I) (supra) was distinguished as it was a case of nondeposit.
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 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.
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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 others 15 , 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. …”
27. Be it stated, the Court in the said case referred to the
Constitution Bench decision in Murarka Radhey Shyam Ram
15 (1999) 4 SCC 274
16 (1996) 5 SCC 181
24
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 threeJudge
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
17 AIR 1964 SC 1545 : 1964 (3) SCR 573
18 (2013) 4 SCC 776
19 (2009) 9 SCC 310
25
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 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.”
26
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.
27
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;
(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;
28
(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)……
(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
29
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.
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.”
30
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 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
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.
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
32
Register. Each item of revenue deposit, other than
security deposit relating to election of Lok Sabha
received, 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
33
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 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
20 Civil Writ (CW) No.7637 of 2016 decided on 8.8.2016
34
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
21 1981 WLN (UC) 78
35
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.
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
36
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
37
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 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.
……………………………,CJI
(Dipak Misra)
……………………………...,J.
(A.M. Khanwilkar)
……………………………...,J.
(D.Y. Chandrachud)
New Delhi;
March 06, 2018
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1200 OF 2018
(@ S.L.P. (C) No. 20768 of 2017)
Sitaram Appellant (s)
VERSUS
Radhey Shyam Vishnav & Ors. Respondent(s)
J U D G M E N T
Dipak Misra, CJI
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
2
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
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.
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.
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.
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
6
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.”
[Underlining is ours]
7
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
8
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
1 (1973) 2 SCC 530
9
said plea was negatived by the High Court. The two-Judge
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
Constituency 2 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.”
2 1952 SCR 218 : AIR 1952 SC 64
10
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:-
“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
3 1959 SCR 583 : AIR 1958 SC 687
11
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
12
Ahmed and others 4 is instructive. In the said case, the
nomination of the petitioner was rejected on the ground of noncompliance
with Sections 5-B and 5-C introduced in the
Presidential and Vice-Presidential Elections Act, 1952 by an
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 subsection
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
4 (1975) 4 SCC 832
13
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
5 (1981) 2 SCC 689
14
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:-
“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
15
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
6 1959 SUPP (2) SCR 527 : AIR 1959 SC 827
16
Commission. Therefore, there can be no doubt that
if an occasion arises for the Election Commission to
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
7 (1983) 2 SCC 473
17
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 wellknown
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.’
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
8 AIR 1957 SC 912
9 AIR 1961 SC 751
10 AIR 1965 SC 895
11 1917 AC 170
18
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:-
19
“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 petitioner shall
have to pay to the Registrar a sum of Rs 2000 in
cash towards security for costs as required by subsection
(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 prereceipted
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
20
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 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 twoJudge
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
12 AIR 1959 SC 837 : 1959 SUPP (2) SCR 516
13 (1960) 22 ELR 86
14 (2002) 7 SCC 289
21
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
22
Sahu (I) (supra) was distinguished as it was a case of nondeposit.
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 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.
23
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 others 15 , 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. …”
27. Be it stated, the Court in the said case referred to the
Constitution Bench decision in Murarka Radhey Shyam Ram
15 (1999) 4 SCC 274
16 (1996) 5 SCC 181
24
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 threeJudge
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
17 AIR 1964 SC 1545 : 1964 (3) SCR 573
18 (2013) 4 SCC 776
19 (2009) 9 SCC 310
25
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 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.”
26
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.
27
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;
(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;
28
(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)……
(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
29
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.
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.”
30
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 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
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.
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
32
Register. Each item of revenue deposit, other than
security deposit relating to election of Lok Sabha
received, 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
33
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 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
20 Civil Writ (CW) No.7637 of 2016 decided on 8.8.2016
34
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
21 1981 WLN (UC) 78
35
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.
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
36
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
37
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 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.
……………………………,CJI
(Dipak Misra)
……………………………...,J.
(A.M. Khanwilkar)
……………………………...,J.
(D.Y. Chandrachud)
New Delhi;
March 06, 2018
