Charan Lal Sahu Vs. Nandkishore Bhatt & Ors [1973] INSC 126 (1 August 1973)

REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN DWIVEDI, S.N.

CITATION: 1973 AIR 2464 1974 SCR (1) 294 1973 SCC (2) 530

CITATOR INFO:

R 1973 SC2513 (10) R 1974 SC 480 (23) RF 1974 SC1185 (16) R 1981 SC1199 (3) RF 1983 SC 558 (26) R 1984 SC 135 (8) F 1984 SC 309 (24)

ACT:

Representation of the People Act, 1951,Section 117-Failure to deposit security at time of presentation of election petition-Election petition dismissed Held, Provisions of S.

117 are mandatory.

HEADNOTE:

The respondents were elected as members of the Legislative Council of Madhya Pradesh in the elections held in 1972.

The appellant presented an election petition on June 26, 1972 but did not deposit Rs. 2000/security as required ,under s. 117 of the Act. The High Court dismissed the election petition holding that it was mandatory for the petitioner when filing an election petition to deposit the amount of Rs. 2000/under s. 117 of the Act and there is no provision ,under which a discretion was conferred on the High Court to reduce the amount of security deposit as prayed for by him. On appeal I by special leave, to this Court, the appellant contended that : (i) the petition could only be dismissed ,after the trial commenced and the trial commences only after notices are issued to the respondents;

and (ii) the provisions of s. 117 of the Act are directory and not mandatory in character.

Dismissing the appeal,

HELD : (i) The reference to trial in section 86 is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent.

The marginal note of s. 86 namely, "Trial of election petitions" does not indicate that ,:under s. 86(1) an election petition cannot be dismissed for non-compliance with the provisions set out therein, unless notice is issued to the respondent. The language of s. 86(1) is clear as to admit of no other meaning, and the marginal ,note cannot be read to control that power. [298B-D] (2)..The provisions of s. 117 of the Act are mandatory in character. The ,High Court is not competent to reduce the amount of security deposit or to dispense with it. The nondeposit of the security along with the election petition leaves no option to the court but to reject it. The right conferred to challenge an election being a statutory right, the terms of that statute have to be complied ,with. [296C, D-E] K . Kamaraja Nadar v. Kunju Thevar and Others, [1959] S.C.R. 583 and Lalaram v. The Supreme Court of India and Ors.

A.I.R. 1967 S.C. 847, distinguished.

N. P. Ponnuswami v. Returning Officer, Namakkal Constituence and Others [1952] S.C.R. 218, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2411 of 1972.

Appeal under s. 116-A of the Representation of the People Act from the judgment and order dated September 22, 1972 of the Madhya Pradesh High Court at Jabalpur in Election Petition No. 49, of 1972.

Pramodh Swarup, for the, appellant.

G. N. Dikshit and R. N. Dikshit, for respondents Nos. 1 & 5.

S. K. Gambhir, for respondent No. 4 The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-This appeal is against an order of the High Court of Madhya Pradesh by which the election petition filed by the appellant was dismissed for failure to deposit the security as required under s. 117 of the Representation of the People Act, 195129 5 hereinafter called 'the Act'. The facts in brief are, that for the elections held in 1972 respondents 1 to 5 were elected as members of Legislative Council of Madhya Pradesh. The appellant presented an election petition on June 26, 1972, but did not deposit Rs. 2000/'security as required under s. 117 of the Act, which inter alia provides as follows "117. Security for costs.-(1) 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.

(2)...During the course of the trial of an election petition, the High Court may, at any time, call upon the, petitioner to give such further security for costs as it may direct." It was contended before the High Court by the petitioner/appellant that the trial had not started; that s.

1 1 7 of the 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, as such dismissal of the petition for non-compliance with it is a penalty which is not one of the penalties prescribed under s. 1 1 8 of the Act. The High Court rejected all these contentions holding that it was mandatory for the petitioner when filing an election petition to deposit the amount of Rs. 2000/under s. 117 of the Act and there is no Provision under which a discretion was conferred on the High Court to reduce the amount of security deposit as prayed for by him.

The High Court referred to sub-s. (2) of s. 117 under which the High Court has been empowered to call upon the petitioner to give such further security for costs as it may direct, which clearly indicates that while there is a provision empowering the High Court to call upon the petitioner to give such further security for costs, there is no provision similarly empowering it to absolve the petitioner from making any security deposit or to reduce the amount required to be deposited under the Act. We think the High Court was right in holding that it is not competent to reduce the amount of security deposit or to dispense with it.

It was contended before us that the petition can only be dismissed after the trial commenced and the trial commences only after notices are issued to the respondents. In support of this. proposition, provisions of the repealed s.85 of the Act are referred to. We are unable to appreciate how the repealed s. 85 of the-Act furthers the submission of the petitioner or has any relevance. It is apparent that prior to repeat by Act 47 of 1966, s. 81 provided for the presentation of the election petition by any candidate aggrieved by the result of the election to the Election Commission; s. 83 prescribed what the contents of the petition should be; and s. 85 provided:

"If the provisions of section 81, section 83 or section 117 are not complied with the Election Commission shall dismiss the petition :

Provided that if a person making the petition satisfies the Election possession that sufficient cause existed for his 296 failure to present the petition within the period prescribed there for, the Election Commission may in its discretion condone such failure." Presentation of the petition under the repealed s. 81, beyond the period prescribed for its presentation could be condoned by the Election Commission in its discretion under the proviso to the repealed s. 85 of the Act, but there is nothing in s. 85 which permits the Election Commission to condone the non-compliance with the provisions of s. 117.

Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it under s. 85 for non-compliance with the requirements of ss. 81, 83 and 117, it has to appoint an Election Tribunal for the trial of the petition. The trial by the Tribunal therefore is only after compliance with the mandatory provisions prescribed in ss. 81, 83 and 117 so that the trial is unrelated to the non-compliance by the petitioner with the requirements of s. 117. After the amendment, the jurisdiction of both the Election Commission and the Tribunal in respect of election disputes has been abolished and the High Courts of respective States have been vested with the jurisdiction in this regard. But the conferment of jurisdiction to entertain, try and determine an election petition has not in any way materially affected the posit on stated by us, as will be presently indicated.

The right to challenge an election is a right provided by Art. 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.

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, Namekkal Constituency and Others(1) 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.

On behalf of the appellant the case of K. Kamaraja Nadar v. Kunju Thevar and Others (2 ) has been relied upon in support of the submission that the provisions of s. 117 of the Act are directory and not mandatory in their character. An examination of this decision (1) [1952] S.C.R 218 (2) [1959] S.C,R, 583 297 does not support this contention of the appellant. That was a case under the unamended s. 117 of the Act under which the petitioner was required to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. The petitioner therein had deposited Rs. 1000/but had not 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 laid down in the aforesaid section. The Election Commission discussed this defect and left the question to the Tribunal to decide after hearing the parties whether the defect could be treated as fatal or one that could be cured by fresh deposit or otherwise so as to secure the costs of the candidate if eventually awarded to him. The Tribunal held that there Was no defect in the matter of the head of account and was further of opinion that non mention of the fact that the deposit was made in favour of the secretary, to the Election Commission was immaterial in that it was taken to have been made in favour of the Election Commission at whose disposal the fund was placed, and accordingly there was sufficient compliance with the requirements of s. 117 of the Act. In that case this Court after examining in detail the procedure relating to the filing of the election petition obesrved at p.606:

"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 s. 117 and would involve a dismissal of the petition under s. 85 or s. 90(3). The above illustration is sufficient to demonstrate that the words "in favour of the Secretary to the 'Election Commission" used in s. 117 are directory and not mandatory in their character. What is of the essence of the provision contained in s. 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly autborised by it to receive the same, be he the Secretary to the Election Commission or anyone else." This decision, therefore, cannot come to the rescue of a petitioner who has failed to deposit the security as required under s. 117 of the Act or has paid less than the amount specified therein. The decision in Lalaram v. The Supreme Court of India and Others(',) has no relevance to the matter in issue because as pointed out by the High Court that case relates to security being furnished for filing a review petition under the Supreme Court Rules, which stands on a different footing.

(1) AIR 1967 SC 847 298 The argument of the appellant's advocate that in view of the marginal note to s. 86 election petition can only be dismissed after the trial has commenced by the issue of a notice to the respondent is equally without substance.

Amended s. 86 apart from sub-s. (1) provides for several matters in sub ss. (2) to (7) such as for reference of the election petition or election petitions, where there is more than one in respect of the same election, to a Judge, the ordering of security for costs in case of the application by a candidate who is not already a respondent being made a respondent, the permission to amend or amplify particulars of any corrupt practice alleged in the petition, the continuance of the trial of the election petition from day to day and its expeditious trial to be concluded as, far as possible within six months from the presentation of the petition to the High Court. The reference to trial is in a larger sense and deals with the steps in a trial rather than in a narrower sense of a trial commencing after the notice of the petition is directed to be served on the respondent.

The marginal note of s. 86, namely, "Trial of election petitions" does not indicate that under sub-s. (1) of s. 86 an election petition cannot be dismissed for non-compliance with the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evidence from sub-s.

(1) of s. 86, the marginal cannot be read', to control that power.

We are clearly of the view that the non-deposit of the security along with the election petition as required under s. 117 of the Act leaves no option to the Court but to reject it. The appeal is accordingly dismissed with costs.

S.B.W.

Appeal dismissed.

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