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RAJ KUMAR SAHI versus ADJ III & OTHERS

High Court of Judicature at Allahabad

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Raj Kumar Sahi v. Adj III & Others - WRIT - C No. 46650 of 2000 [2003] RD-AH 458 (23 November 2003)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

? IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

+  Civil Misc. Writ Petition No. 46650 of 2000

# Rajkumar Sahi

    Petitioner

$ III ADJ

Respondent

! Sri N.K. Padney

Sanjay Sharma

Advocate for Petitioner

^ Sri PP Srivastava

Sri KR Singh

Advocate for Respondent

* Coram

Hon'ble Yatindra Singh, J

% Date of Judgment 23.11.2000

: Judgment

INTRODUCTION

1. This case deals with purpose, reason, and place of security deposit towards the cost of an election petition challenging an election in a local body. Are the rules relating to security deposit mandatory? Unlike Representation of Peoples Act, 1951 (the Representation Act) the rules dealing with challenge to an election in a local body do not prescribe the consequence of non-deposit, still, 'Is non-deposit of the security or non-accompaniment of receipt showing the security deposit fatal to an election petition?'   Should the security amount be deposited in the government treasury or in the State Bank of India (SBI) situate within the district in which that local body is situate and where election is challenged or can it be deposited in another district. While considering these questions it is also recommended that the State Government may consider reframing the Rules regarding deposit of security detailed in paragraph 4 of the judgement (Heading: Few Recommendations, Paragraph 28 and 29 of the judgement).

2. Geographically, the State of Uttar Pradesh is divided into districts.  A district is broadly categorised into urban and rural area. The urban area of a district is governed by a local body under the UP Municipal Corporation Act (the Corporation Act) or under the UP Municipality Act (the Municipality Act) depending upon its population. The local body of urban area in a district is known by different names and amongst the others has one person as a Chairperson; Deputy Chair-person; and elected members.

3. Rural area of a district is divided into Blocks, which in turn consist of villages. A gram Panchayat is a local body governing a village; it could comprise more than one village also. Pradhan is its Chairperson. It is governed by the UP Panchayat Raj Act, 1947 (the Panchayat Raj Act).  Kshettra Panchayat and Zila Panchayat govern a block and a district under UP Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (the Zila Panchayat Act).  Kshettra Panchayat amongst the others consists of all Pradhans of Gram Panchayats in that Block and some elected members. It is chaired by a Pramukh.  Zila Panchayat amongst the others consists of all Pramukhs of Kshettra Panchayat in that district and some elected members. An Adhyaksha chairs it.  

4. These local bodies are broadly dealt by four Acts (mentioned in paragraphs 2 and 3 of the judgement) and have a chairperson, deputy Chairperson, elected members, nominated member, and ex-officio members. Election of these persons and settlement of election dispute is dealt by these Acts and the rules framed there under.  The State Government has framed following rules for settlement of election disputes in different local bodies. In this writ petition we are concerned with security deposit and I have also indicated relevant rule for the same after the Rules.

(i)Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994. (The Panchayat election Rules) (Rule 3).

(ii)Uttar Pradesh Kshettra Panchayats (Election of Pramukhs and Up Pramukhs and Settlement of Election Disputes) Rules, 1994. (The Kshettra Panchayat Pramukh Rules) (Rule 38).

(iii)Uttar Pradesh Kshettra Panchayats (Removal of Disqualification and Settlement of Disputes Relating to Disqualification and Membership) Rules, 1994 (The Kshettra Panchayat member Rules) [sub rule 7 of rule 7 {Rule 7(7)}].

(iv)Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up Adhyaksh and Settlement of election Disputes) Rules, 1994. (the Zila panchayat Adhyaksha Rules) (Rule 36).

(v)Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994. (the Zila Panchayat member Rules)(Rule 7).

(vi)U.P. Municipalities (Conduct of Election of Presidents and Election petitions) Order, 1983. (The Municipality Rules) (Rule 63).

(vii)U.P. Nagar Palika Nirvachan Yachikaon Ki Niyamawali, 1959 (the Nagar Mahapalika Rules) (Rule 11).

5. The first rule in the preceding paragraph is for settlement of election dispute of Pradhan, Up Pradhan and members of a Gram Panchayat and is framed under the Panchayat Raj Act. Rules at serial nos. 2 and 3 deal with election disputes relating to Pramukh, Up-Pramukh, and members of Khsettra Panchayat. The Rules mentioned at serial nos. 4 and 5 deal with election disputes of Adhyaksha, Up-Adhyaksha, and members of a Zila Panchayat. These four rules (at serial number 2 to 5) have been framed under the Zila Panchayat Act.  The Rules mentioned at serial no. 6 and 7 govern election disputes in a Municipality and in a Municipal Corporation.  These rules have been framed under the Municipalities Act and the Municipal Corporation Act. They broadly deal with settlement of election dispute in the local bodies in the State. These rules do not provide consequence of non-deposit of security towards the cost of an election petition as is provided under section 86 of the Representation Act. There are some differences in the Rules regarding deposit of security. I have mentioned these rules in the judgement as I have made few recommendations in that regard (see heading Few Recommendations paragraphs 28 and 29 of the judgement) The dispute here is governed by the Zila Panchayat member Rules mentioned at serial no. 5 and it arises on the following facts.

THE FACTS

6. One of the constituencies of members in the Zila Panchayat Deoria is 32, Bhatpar Rani North territorial Constituency. Election for member of this constituency was held on 20th June 2000; the votes were counted on 24th June 2000; the result was declared on 27th June 2000; and Raj Kumar Shahi (the petitioner) was declared elected. Smt. Vibha (the contesting respondent) was also a candidate in the election; she filed an election petition against the petitioner on 24.7.2000.  She claims that one Shri Prem Prakash got a Chalan passed on her behalf from the Zila Panchayat on 15.7.2000 and deposited the security for the cost of election petition in the State Bank of India at Gorakhpur (SBI Gorakhpur) under the head meant for Panchayat elections. The petitioner took a preliminary objection that election petition should be dismissed for following two reasons:

(i)Security amount has to be deposited by the person challenging the election personally.  The contesting respondent has not deposited security herself. She cannot claim benefit on the basis of deposit made by Sri Prem Prakash.

(ii)The election petition is filed in Deoria.  It is about elections in district Deoria.  The security should be deposited at Deoria and not at Gorakhpur.

The court below rejected these objections on 5.10.2000; hence the present writ petition.

POINTS FOR DETERMINATION

7. I have heard Sri NK Pandey, Sri Sanjay Sharma, counsel for the petitioner; Sri PP Srivastava, Senior Advocate assisted by Sri Rajan Srivastava, counsel for the contesting respondent; and Sri KR Singh, standing counsel as a friend of the court. The writ petition is being decided at admission stage with consent of the parties. Following points arise for determination in this case:

(i)A Security of Rs. 200/- towards cost of an election petition is to be deposited in the government treasury or SBI under rule 7 of the Zila Panchayat member Rules. They do not provide consequence of non-deposit of security amount.  Is this rule 7 mandatory? Can security be deposited after filing of the election petition beyond the time prescribed for filing the election petition?

(ii)The Chalan shows that one Sri Prem Prakash deposited the amount.  According to the contesting respondent Sri Prem Prakash was her agent and has deposited money on her behalf. Should the person challenging the election deposit security personally or can it be deposited on their behalf?

(iii)The petitioner was elected in the election for a member in the Zila Panchayat Deoria.  Election petition is being tried in Deoria but the security amount was deposited in SBI Gorakhpur. Is security deposit in another district valid?

(iv)Is the order of the court below correct? Has the court below correctly decided the preliminary objections?

Ist POINT: VIEWS DIFFER IF RULE REGARDING SECURITY DEPOSIT IS MANDATORY

8. The security is to be deposited under rule 71 of the Zila Panchayat member Rules (mentioned at serial no. 5 in paragraph 4 of the judgement). The wording of the Panchayat Raj Rule regarding security deposit mentioned at serial no. 1 in paragraph no. 4 of the judgement is different than the other Rules regarding security deposit at serial numbers 2 to 7 of that paragraph.  The wording of the Rules at serial numbers 2 to 7 is similar to section 1172 of the Representation Act.  But none of the Rules at serial no. 1 to 7 in that paragraph provide consequence of non-deposit as provided in section 86(1)3 of the Representation Act. The courts have held that:

Section 117 of the Representation Act is mandatory;

Security has to be deposited;

Non deposit of security is fatal to an election petition; and

Court cannot extend time to deposit security.

Though the courts have made distinction between substantial compliance and no compliance. Should the same principles be applied to an election petition challenging an election in a local body under different rules mentioned in paragraph no. 4 of the judgement? Does absence of a provision providing consequence of non compliance, like section 86(1) of the Representation Act, make any difference?

9. The counsels for the petitioner cited a full bench decision of our court reported in Ram Adhar Singh vs. DJ Ghazipur4 to show that while challenging an election of a Pradhan same principles as applicable under the Representation Act are to be applied, and submitted that  non-deposit of security  has been held to be fatal under the Representation Act, it should also be so held in the present case. In the full bench case application for recount was allowed. It is in this light that the full bench said that same principles regarding proof or other general principles would apply.  But if there is statutory provision then its effect is to be seen.  It is to be determined whether the provision requiring deposit of securityin absence of provision providing consequence of non-depositis mandatory or directory.  

General Principles Relating To Election: Electoral Rights Are Statutory Rights

10. Right to elect or stand in an election though fundamental to democracy, anomalously enough, is neither a fundamental right nor a common law right. It is statutory right, subject to statutory limitations.5  In absence of statutory provisions neither a citizen has a right to elect nor has right to be elected.6 Similarly right to challenge an election is neither a fundamental right nor a common law right; it is simply a statutory right.  An election petition is to decided in terms of the statute conferring that right.  There is no discretion in respect of any matter unless it is so provided by the statute.  If discretion is not provided then it cannot be exercised under general law or any principle of equity.7 These are some general principles applicable to elections regarding:

Who can contest an election?

Who can vote in an election? And

How can an election be challenged?  

It is in this light that we have to determine whether rule 7 is mandatory or directory.

Rule 7 Of The Zila Panchayat Rule Is Mandatory

11. Rule 7(1)(a) says that an amount of Rs. 200/-as security towards cost of an election petition shall be deposited in the government treasury or in the SBI before the election petition is presented and this is again emphasized by rule 7(1)(b) by stating that even election petition is to be accompanied by a receipt showing that security is deposited.  Use of the words ''shall' and the fact that security is to be  deposited before election petition is presented, seen in the light of general principles of election show that the provision regarding deposit of security is a condition precedent.  It is a substantive requirement and is mandatory.  The fact that the rules do not provide the consequence of non-deposit of security money as in the Representation Act does not mean that rule 7 is not mandatory.

Cases Cited By The Contesting Respondent

12. It is true that Supreme Court in Jagarnath vs. Jashwat Singh8 held that:

'None of [the propositions applicable to election law] has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it.

... In case where the election law does not prescribe the consequences or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected.'

But this observation of the Supreme Court is for procedural requirement of law. It does not apply to the provision regarding deposit of security amount contemplated under rule 7(1) of the Rules which is condition precedent before filing an election petition.  It is substantial and not procedural requirement, though the annexing of Challan to prove that deposit has been made is a procedural requirement to prove that amount has been deposited.  Rule 7(1)(b) of the Rules may be directory but rule 7(1)(a) is mandatory.

13. The counsel for the contesting respondents cited two single Judge decisions Yashwant Singh yadav vs. PA Chandauli (Yashwant Case)9 and Ramjeet Prasad vs. DJ Sidharthnagar (Ramjeet case)10 to show that Rule 7 of the Zila Panchayat Rules is not mandatory. Let's consider them.

Yashwant Case: Rule 3 Of The Panchayat Raj Rule Is Different

14. The Court in Yashwant case was dealing with security deposit under rules 311 of the Panchayat election Rules (mentioned at serial no. 1 of paragraph 4). In these rules the words used therein are that no election petition shall be entertained unless it is accompanied by a treasury challan to show that the amount of Rs. 50/- is deposited.  This is different than the words used in the present rule, which states that before the election petition is presented an amount of Rs. 200/- as security towards cost shall be deposited. The court in Yashwant case went on to interpret the word 'entertain' and has held that it means no petition shall be heard on merit unless the security amount of Rs.  50/- has been deposited.

15. It is true that the word entertain has two meanings and in the broader sense it means decision on merit. But if security amount can be deposited before deciding the case on meritbeyond the period of limitation meant for election petitionthen the election petition may be competent from the date when the deposit was made. Courts do not have jurisdiction to extend time in filing election petitions.  There is no such provision. Can it still be said that election petition was filed within time? These are some stray observations. I leave it here, as the words used in the rule in question is different than  rule 3 interpreted in Yashwant case.  But in a suitable case this question may be considered.

Ramjeet Case Has Taken Contrary View

16. In Ramjeet case the court was interpreting rule 7(7) under the Kshettra Panchayat Members Rules. This rule is similar to rule 7 in this case.  The court in Ramjeet case pointed out that:

There is no provision like section 86(1) of the Representation Act;

Consequences of non-deposit of security are not provided;

The provision regarding deposit of security is not mandatory;

The time to deposit security can be extended under section 148 of the Code of Civil Procedure (the CPC).

With due respects I beg to differ.

17. I have already given my reasons (Paragraphs 8 to 11) for taking the view that provision regarding deposit of security is mandatory even if consequences of non-deposit are not provided. In my humble opinion section 148 of the CPC also does not apply in this situation.

18. Section 14812 of the CPC applies when following two conditions are fulfilled:

(i)The period to do an act is fixed or granted by the court;

(ii)The period is prescribed or allowed by the CPC.

In the present case none of these two conditions are present. An election petition can be filed within certain time; there is limitation provided.  The period to file an election petition cannot be extended. Security deposit has to be filed before filing of an election petition. The time to deposit security amount is fixed by the Rules. It is neither fixed nor granted by the court. The procedure prescribed under the CPC applies while trying an election petition. It does not mean that period to deposit security is prescribed or allowed by the CPC. The law governing election petitions fixes the period. Time for deposit security amount cannot be extended under section 148 of the CPC.

19. Ramjeet case is on interpretation of similar rules.  I have taken a view contrary to it. I would have referred this question to the larger bench for determination but I refrain from doing so at this stage for the following reasons:

(i)The writ petition arises from an order in an election petition, which is to be decided at its earliest.

(ii)The case can be decided on other points and there is possibility that this point may not ultimately arise in this case.(Paragraph 27 of the judgement).

(iii)This point if necessary may be adjudicated upon after the election petition is decided on merits.

(iv)I have also taken sufficient precaution (Heading: How the Court below should proceed with the case Paragraph 27) while proposing final order that the contesting respondent should not miss the benefit of Ramjeet case if this question has to be decided by the larger bench and the bench decides that Ramjeet case is correct.

2nd POINT: SECURITY DEPOSIT CAN BE MADE ON BEHALF OF THE PERSON CHALLENGING THE ELECTION

20. The Rule 7 merely states that security amount should be deposited in the government treasury or the SBI. It does not say that whether it can be deposited on behalf of the person challenging the election or not. The counsels for the petitioner brought to my notice rules 38 and 36 of the Rules at serial number (ii) and (iv) in paragraph 4 of the judgement to show that the words used therein are 'deposit by him or on his behalf'.  He also pointed out that rule 3 of the Panchayat Election Rules and Rule 7(7) of the Khesttra Panchayat Member Rules also do not use words  'on his behalf'. He submits that absence of the words 'on his behalf' shows that security under the Rules has to be deposited by the person challenging the election personally.

21. It is true that in some of the rules mentioned in paragraph 4 of the judgement words 'on his behalf' are used and in some they are not used.  This does not mean that even if such words are not used then an act cannot be done on behalf of election petitioner; though this causes some confusion.   Mandatory condition is to deposit the amount but not necessarily by the person challenging the election personally. In case it was so, then the Rules would have provided for deposit of security personally by such person. The fact that Sri Prem prakash has deposited the security in this case does not mean that it is illegal. It is another question, if Sri Prm Prakash has deposited it on behalf of the contesting respondent towards the cost of the election petition. I will discuss it while discussing the fourth point.

3rd POINT: IF DEPOSIT CAN BE MADE IN ANOTHER DISTRICT

22. Rule 7(1)(a) specifies that the amount of Rs. 200/- is to be deposited in the government treasury or SBI but does not specify the place where it has to be so deposited.  It is true that:

The area of Zila Panchayat Deoria is the geographical area of District Deoria.

The election relates to a constituency, within district Deoria.

Rule 913 also states that election petition will be heard at the head quarter of the district in which Zila Parishad is situate ie district Deoria.

But this does not mean that security is to be deposited in the same district.

The Representation Act Is Differently Worded

23. Section 117 of the Representation Act specifies that security is to be deposited in the High Court.  In Section 79(e)14 of the Representation Act defines 'High Court' to mean the High Court within the local limits of whose jurisdiction the election to which election petition relates, has been held. It if for this reason that security is to be deposited in the same High Court where the election petition is filed under the Representation Act. This analogy may not be applicable here as place is defined in the Representation Act. Let's find out the purpose for deposit of security amount. This will help in answering our problem.

Purpose Of Security Deposit

24. Rule 1315 of the Zila Panchayat member Rules empowers a Judge to dismiss the election petition and award cost at his discretion. Under rule 1616 he is to send a copy of the order and refer the case to the District Magistrate for dealing with it in accordance with law. Rule 1717 clarifies that cost awarded by the Judge will be recoverable out of the security deposited under rule 7 and the remaining amount from the security is to be refunded to the person who challenges the election.  Under sub rule (3) of rule 17 the District Magistrate is to carry out the order regarding costs. It is clear from these rules that the purpose of deposit of security is to pay cost of the election petition. The security amount should be available to the District Magistrate of that district to carry out the order regarding cost of the election petition. In case the amount is deposited in the government treasury or the SBI of the same district it is undoubtedly available to the District Magistrate of that district and he can carry out the order easily. If it is deposited in another other state then it is in treasury of the other state ie unavailable. But if it is deposited in the same state but in different district then, ''Is it available to him?' The purpose of security deposit under the Representation Act is the same.  It is for this reason also that it is to be deposited in the same High Court where election petition is filed.

25. In this case it is admitted case that the amount has been deposited under the correct head but in the different district. It is not clear whether the amount deposited in another district (namely district Gorakhpur) is also available to the District Magistrate Deoria to carry out the order of the Judge or not. In case it is available then the deposit in another district would be valid deposit otherwise it would be not.

4TH POINT: THE ORDER OF THE JUDGE IS ILLEGAL

26. In deciding point number 2, I have already held that security can be deposited on behalf of the person challenging the election. In discussing point number 3, I have held that the security can be deposited in another district within the State provided it is available to the District Magistrate of the district where the election petition is filed. It is not clear whether the amount deposited in Gorakhpur is available to District Magistrate Deoria or not. The court below has also not applied its mind in the correct perspective, if Sri Prem Prakash has deposited security on behalf of the contesting respondent. The impugned order is illegal.

HOW THE COURT BELOW SHOULD PROCEED

27. In view of my discussion the court below may frame following two additional issues and proceed to decide them along with other issues.

(i)Whether the security deposited in Gorakhpur is available to the District Magistrate Deoria to carry out the order of the Judge towards the cost in the election petition?

(ii)Whether the amount deposited by Sri Prem Praksh was on behalf of election petitioner?

If the abovementioned issues are decided in favour of the contesting respondent then the question whether rule 7 is mandatory or not will not arise in this case. But in case any one of them is decided against him then according to my view rule 7 being mandatory, the election petition is to be dismissed. But another single Judge has taken a contrary view that these rules are not mandatory and the court can grant further time to deposit the security.  I have not referred this question to larger bench and left it to be adjudicated upon after the trial of election petition is over.  In order to cover this eventuality,

the contesting respondent may file an application before the court below to permit him to deposit security under rule 7 in district Deoria;

the court below may grant him permission; and

security may be deposited by the contesting respondent in Deoria.  

The court below may decide the case on merit.  If the need be then the question whether Rule 7 is mandatory or not may be decided by the larger bench in proceeding taken after final order is passed in the election petition.

FEW RECOMMENDATIONS

28. In paragraph 4 of my judgement I have mentioned the rules for challenging elections in different local bodies. The phraseology of the rules mentioned at serial number 1 in that paragraph regarding the security deposit is different (paragraph 14 of the judgement) than other Rules. They may be same unless the State purposely wished to give different meaning to them. I see no reason for the State to give different meaning.  But it is matter for the State to consider. In case it wishes to convey the same meaning then different words for the same are not proper.  They create confusion; it should be avoided.  

29. None of the rules provide consequence of non-deposit of security.  There is difference of opinion if the Rule regarding security deposit is mandatory (Heading Ist point: View differs if Rule regarding security deposit is mandatory; paragraphs 8 to 19). This question may require consideration by larger bench in an appropriate case. This may be time consuming.  In order to avoid this the State Government may consider

(a) bringing rules regarding challenge to elections in local bodies in tune with each other ie employing same language regarding security deposit. These rules have been indicated in paragraph 4 of the judgement.

(b) providing if security amount is to be deposited in the same district or can be deposited in any other district in the State.

(c) providing consequence of  non deposit of security amount,

(i)whether it will be fatal to an election petition (like section 86 of the Representation Act) or

(ii) if the court can grant further time to deposit    security as held in Ramjeet case

CONCLUSION

30. My conclusions are as follows:

(i)The security amount can be deposited on behalf of the person challenging the election.

(ii)The security amount can be deposited in another district provided it is available to the District Magistrate for disposal in accordance with the order of the Judge trying the election petition.

(iii)The court below has not correctly decided preliminary objections.

(iv)The court below may frame two additional issues and decide the election petition (heading ''How the court below should proceed: Paragraph 27).

(v)The requirement for deposit of security under rule 7 is mandatory but this view is contrary to the view of another single Judge in Ramjeet case. I have not referred this question to larger bench at this stage because this writ petition can be decided on other points. If the need be, this point may be adjudicated at later stage after final decision in the election petition.

(vi)The contesting respondent may file an application before the court below to grant him time to deposit Rs. 200/- as security in district Deoria and he may do so. This is being provided so that he may not be prejudiced in case view in Ramjeet case is upheld at a later stage.  

In view of my conclusions, the writ petition is allowed. The order-dated 5.10.2000 is quashed.  The court below may proceed and decide election petition in accordance with law.

Dated: Nov. 23, 2000

BBL

Let a copy of this judgement be sent to the following authorities to consider the recommendations made in this judgement   (Kindly see heading INTRODUCTION; paragraphs numbers 1 to 5 and heading FEW RECOMMENDATIONS; paragraphs number 28 and 29).

1.The Principal Secretary Legislation, Parliamentary affairs, Sachivalya, Lucknow.

1.The Chairman UP Law Commission Gomti Nagar, Lucknow.

1.The Legal Remembrances, State of UP, Sachivalaya, Lucknow.

1.The Secretary, Nagar Vikas, UP Government, Lucknow.

1.The Secretary, Panchayatiraj, UP Government, Lucknow.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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