HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 5 Case :- WRIT - C No. - 40756 of 2016 Petitioner :- Devendra Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Narendra Kumar Pandey,Sudha Pandey Counsel for Respondent :- C.S.C. Hon'ble Pankaj Naqvi,J.
Heard Sri Narendra Kumar Pandey, learned counsel for the petitioner and Sri Rajeev Kumar Shukla, the learned Standing Counsel.
Sri Shukla, the learned Standing Counsel states that in view of the nature of the dispute, he does not propose to file any counter affidavit.
The election petition filed by the petitioner under Section 12-C of the U.P. Panchayat Raj Act, 1947 on 22.1.2016, did not accompany the stipulated treasury challan deposit which, was later furnished on 13.5.2016. A preliminary objection raised by the election-respondent/returned candidate that as the election petition did not accompany the stipulated deposit, the election petition was not maintainable, found favour with the Election Tribunal under the order dated 5.7.2016.
The issue thus which has fallen for consideration is as to whether a challan deposit contemplated under the proviso to Rule 3 of the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994, furnished subsequent to the presentation of the election petition would be valid or not.
Section 12-C of the Act provides the grounds on which an application for questioning the election of a Pradhan or a Member of the Gram Panchayat, etc. can be called in question. Rule 3 framed under the Act lays down a mechanism as to how an election petition is to be dealt with. Rule 3 is extracted hereunder:-
"3(1). An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Divisional Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground:
Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security."
The proviso provides that no such application, i.e., election petition shall be "entertained", unless it is accompanied by a treasury challan to show that an amount of Rs.50 has been deposited in the personal ledger account of Gram Panchayat concerned as security.
To find an answer to the issue, one would have to examine the import of the word "entertained" in the proviso to Rule 3.
The word "entertained" came up for consideration before the Apex Court in M/s Laxmi Ratan Engeineering Works vs. Assistant Commissioner (Sales Tax), AIR 1968 SC 488, wherein the Apex Court had an occasion to examine the word "entertained" in reference to Section 9 of the U.P. Sales Tax Act, 1948, which reads as under:
(1) Any dealer objecting to an order allowing 'or refusing an application for exemption certificate under cl. (b) of sub-section (1) of S. 4 or to an order refusing an application under s. .30 or to an order imposing a penalty under S. 15-A or to an assessment made under S. 7, 7-A, 7-B, 18 or 21, may within 30 days from the date of service of the copy of the order or notice of assessment, as the case may be, appeal to such authority as may be prescribed;
Provided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or of such instalments thereof as may have become payable The Apex Court in M/s Laxmiratan (supra) while interpreting the word "entertained" held in paragraphs- 7, 9 & 10 as under:
7. To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question thus arises what is the meaning of the word 'entertained' in this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? The dictionary meaning of the word 'entertain' was brought to our notice by the parties, and both sides agreed that it means either "to deal with or admit to consideration". We are also of the same opinion. The question, therefore, is at what stage can the appeal be said to be entertained for the purpose of the appllication of the proviso? Is it entertained when it is tiled or is it 'entertained' when it is admitted and the date is fixed for hearing or is it finally 'entertained' when it is heard and disposed of? Numerous cases exist in the -law reports in which the word 'entertained' or similar cognate expressions have been interpreted by the courts. Some of them from the Allahabad High Court itself have been brought to our notice and we shall deal with them in due course. For the present we must say that if the legislature intended that the word -'file' or 'receive' was to be used, there was no difficulty in using those words. In some of the statutes which were brought to our .notice such expressions have in fact been used. For example. under Order 41. rule I of the Code of Civil Procedure it is stated 'that a memorandum shall not be filed or presented unless it is accompanied etc.; in s. 17 of the Small Causes Courts Act, the expression is 'at the time of presenting the application'. In sec. 6 .of the Court Fees Act, the words are 'file' or 'shall be received'. It would appear from this that the legislature was not at a loss for words if it had wanted to express itself in such forceful manner as is now suggested by counsel for the State. It has used the word 'e entertain' and it must be accepted that it has used it advisedly. This word has come in for examination in some of the cases of -the Allahabad High Court and we shall now refer to them.
9. The word 'entertain' is explained by a Divisional Bench of the Allahabad High Court as denoting the point of time at which an application to set aside the sale is heard by the court. The expression 'entertain', it is stated, does not mean the same thing as the filing of the application or admission of the application by the court. A similar view was again taken in Dhoom Chand Jain v. Chamanlal Gupta & Anr.(2) in which the learned Chief Justice Desai and Mr. Justice Dwivedi gave the same meaning to the expression 'entertain'. It is observed by Dwivedi J. that the word 'entertain' in its application bears the meaning 'admitting to consideration', and therefore when the court cannot refuse to take an application which is backed by deposit or security, it cannot refuse judicially to consider it. In a single bench decision of the same court- reported in Bawan Ram & Anr. v. Kunj Beharilal(1) one of us (Bhargava, J.) bad to consider the same rule. There the deposit had not been made within the period of limitation and the question had arisen whether the court could entertain the application or not. It was decided that the application could not be entertained because proviso (b) debarred the court from entertaining an objection unless the requirement of depositing the amount or furnishing security was complied with within the time prescribed. In that case the word 'entertain' is not interpreted but it is held that the Court cannot proceed to consider the application in the absence of deposit made within the time allowed by law. This case turned on the fact that the deposit was made out of time. In yet another case of the Allahabad High Court reported in Haji Rahim Bux & Sons and Ors. v. Firm Samiullah & Sons(2) a division bench consisting of Cheif Justice Desai and Mr. Justice S. D. Singh interpreted the words of 0. 21, r. 90, by saying that the word 'entertain' meant not"receive' or 'accept' but 'proceed to consider on merits' or 'adjudicate upon'.
10. In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the court in the proviso to S. 9 is that the court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the court for, the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C.J.) holds that the words 'accompanied by' showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under 0. 41 of the Code of Civil Procedure. the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the decisions by a hi-her Court of the decision of an inferior court. The appeal is the judicial examination; the memorandum of appeal contains the rounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.
A perusal of the aforesaid would indicate that the Apex Court after placing reliance on the dictionary meaning of the word "entertained" held that the court shall not proceed to admit to consideration an appeal which is not accompanied by a satisfactory proof of the payment of the admitted tax as contemplated under Section 9 of the U.P. Sales Tax Act, 1948. It further held in the context that when the proviso speaks of the entertainment of the appeal, it means that the appeal which was filed, will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of the admitted tax. The view taken in M/s Laxmi Ratan (supra) was again reiterated in subsequent decisions of the Apex Court in Hindustan Commercial Bank Limited vs. Punnu Sahu, AIR 1970 SC 1384, Axis Bank vs. S.B.S. Organics Private Limited, AIR 2016 SC 2024 and M/s Pushpa Sahkari Avas Samiti vs. M/s Gangotri Sahkari Avas,2012 (4) SCC 751.
There is no plausible reason as to why the meaning and interpretation of the word "entertained" as propounded by the Apex Court in M/s Laxmiratan (supra), followed in above judgements, would not fit in the present context too. In the absence of anything to the contrary in the language of the statute, there is no impediment for the Election Tribunal to accept a belated challan deposit before it proceeds to apply judicial mind.
The election petition has been dismissed only on the ground that the stipulated treasury challan deposit, came to be furnished on 22.7.2016 subsequent to the filing of the election petition. The view taken by the Election Tribunal runs contrary to the judgements of the Apex Court and that of the learned Single Judge in Yashwant Singh Yadav vs. Prescribed Authority / Sub-Divisional Officer, Chandauli, Varanasi and another, 1997(3) AWC 1864.
The writ petition is allowed. The order dated 5.7.2016, passed by the Prescribed Authority, is set aside/quashed.
Order Date :- 5.10.2017Chandra