Smt. Kehkashan vs State Of U P And 5 Others
2023 Latest Caselaw 6137 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- WRIT - C No. - 6665 of 2023
 

 
Petitioner :- Smt. Kehkashan
 
Respondent :- State Of U P And 5 Others
 
Counsel for Petitioner :- Siddharth Nandan,Imtiaz Husain
 
Counsel for Respondent :- C.S.C.,Siddharth Khare,Sr. Advocate
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Petitioner is a returned candidate for post of Gram Pradhan, Gram Panchayat Mohammadpur Kashi, Tehsil Chandausi, District Sambhal, whereas Respondent-6 remained runner up.

2. Respondent-6 filed an election petition under Section 12-C of Uttar Pradesh Panchayat Raj Act, 1947. In paragraph No.16, thereof it was declared that he has deposited Court fee of Rs.50/- through treasury challan.

3. It appears that petitioner filed an application raising preliminary objection of maintainability of election petition that essential requirement of submitting a treasury challan alongwith election petition was not complied with, therefore, election petition shall be rejected.

4. At this stage, petitioner has approached this Court by way of filing Writ-C No. 35836 of 2022 (Smt. Kehkashan vs. State of U.P. and others) which was disposed of vide order dated 03.12.2022 with following directions:-

"It is argued by the counsel for the petitioner that order impugned namely 17.08.2022 passed by the respondent no.2 is without consideration of the law laid down by this Court in the case of Lokendra Singh vs. State of U.P. & 2 others passed in Writ C No.13760 of 2022 decided on 16.05.2022. The operative portion of the aforesaid judgment is reproduced below:-

"9. In view of the above, the present petition is disposed of with a direction, in case, the petitioner files a copy of this order before the respondent no.2 within a period of two weeks from today, the said respondent shall first proceed to deal and decide the issue nos. 12, 15 and 16, as expeditiously as possible, preferably within a period of three months therefrom. Only in the event of those issues being decided against the petitioner, the matter may proceed on merits."

It is admitted between the parties that controversy involved in the present case is absolutely identical, hence the petitioner is also entitled for the same relief as has been granted by this Court in the case of Lokendra Singh (Supra).

In view of the above, the present writ petition is disposed of finally with the direction that in case the petitioner files a copy of this order before the respondent no.2 within a period of two weeks from today, the respondents shall first proceed and decide the application dated 17.08.2022 strictly in accordance with law and also observations made by this Court in the case of Lokendra Singh (Supra), as expeditiously as possible and preferably within a period of one month thereafter. Only in the event of those issues being decided against the petitioner, matter may proceed on merits."

5. It appears that Prescribed Authority decided aforesaid contentions after hearing parties, without framing a preliminary issue and rejected the application so filed by the petitioner. The Prescribed Authority, on basis of report submitted by Senior Treasury Officer, Sambhal, held that petitioner has deposited Rs.50/- in Treasury Head 8443-00-121-06, therefore, mandatory condition was complied with.

6. Sri Siddharth Nandan, learned counsel for petitioner, submits that election petitioner has deposited Rs.50/- under Head ''8448' i.e. "deposit of local funds" whereas it ought to have been deposited under head ''8443', therefore report was not correct. Learned counsel refers a copy of challan submitted by election petitioner (Annexure-03 to this writ petition). Learned counsel has disputed the report. He further submits that since mandatory compliance was not made, the election petition was liable to be dismissed.

7. Learned counsel placed reliance on Sitaram vs. Radhey Shyam Vishnav and others (2018) 4 SCC 507 that:

"39. The discussion hereinabove can be categorized into three compartments. First, the deposit is mandatory and the mode of deposit is directory; second, the non-deposit will entail dismissal and irregular deposit is curable and third, in other areas like verification, signature of parties, service of copy, etc., the principle of substantial compliance or the doctrine of curability will apply. In the case at hand, Rule 3(5)(d) commands that the election petition shall be accompanied by the treasury challan. The word used in the Rule is ''accompanied' and the term ''accompany' means to co-exist or go along. There cannot be a separation or segregation. The election petition has to be accompanied by the treasury challan and with the treasury challan, as has been understood by this Court, there has to be a deposit in the treasury. The 2012 Rules, when understood appropriately, also convey that there has to be deposit in the treasury. Once the election petition is presented without the treasury challan, the decisions of this Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein (supra) pertaining to non-deposit will have full applicability. The principle stated in M. Karunanidhi (supra), K. Kamaraja Nadar (supra), Chandrika Prasad Tripathi (supra) and other decisions will not get attracted. The interpretation placed on the 1986 Rules by the learned single Judge in Ashok Kumar (supra) cannot be treated to lay down the correct law. We arrive at the said conclusion as we do not find that there is really any Rule which prescribes filing of treasury challan before the Election Tribunal in election petition after seeking permission at the time of presenting an election petition. Permission, if any, may be sought earlier. Such was the case in Bajrang Lal v. Kanhaiya Lal and others 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.

40. 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 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."

8. Per contra, Sri Ashok Khare, learned Senior Advocate assited by Ms. Neha Roy Chaudhary, Advocate for Respondent-6, submits that it was specifically declared in writ petition that treasury challan of Rs.50/- was deposited. The dispute with regard to ''head' was clarified by a report of Treasury Officer that it was deposited under correct head i.e. ''8443'. Therefore, mandatory condition was complied with. Dispute of report, if any, cannot be considered under writ jurisdiction. Learned Senior Advocate has placed reliance on this Court's decision in Arun Kumar vs. Prescribed Authority/Sub-Divisional Magistrate, Meerut and Others, 2007 SCC OnLine All 949 that:

"10. The issue arising in this writ petition is fully covered by the judgement of the apex Court in AIR 1983 Supreme Court 558 M.Karunanidhi Versus H. V. Handa and others. Section 117 (1) of the Representation of People Act as quoted above came for consideration before the apex Court . In the case before the apex Court security deposit of Rs. 2000/- was made but the said deposit was made by a treasury Challan in Reserve Bank of India to the credit of Registrar High Court. The question raised was that the amount having not been deposited in the High Court there is non compliance of Rule 117 and the writ petition was liable to be dismissed. The apex Court after considering the submission laid down that the requirement of deposit of Rs. 2000/- is mandatory and non compliance of it must entail dismissal of the writ petition. However, the deposit in the High Court in accordance with the rules of the High Court is clearly directory. Following was laid down by the apex Court in paragraph 19 :-

"19. The submissions advanced by learned counsel for the appellant cannot be accepted as they proceed on the assumption that no distinction can be drawn between the requirement as to the making of a deposit in the High Court under Sub-section (1) of Section 117 and the manner of making such deposit. There was considerable emphasis laid by learned counsel that Sub-section (1) of Section 117 cannot be dissected into two parts, one part being treated as mandatory and the other as directory. The contention is wholly misconceived and indeed runs counter to several decisions of this Court. It is always important to bear the distinction between the mandatory and directory provisions of a statute. Sub-section (1) of Section 117 is in two parts. The first part of Sub-section (1) of Section 117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court a sum of Rs. 2000/- as security for the costs of the petition and the second is that such deposit shall be made in the High Court in accordance with the rules of the High Court The requirement regarding the making of a security deposit of Rs. 2000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under Sub-section (1) of Section 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory. As Maxwell on the Interpretation of Statutes, 12th Edn. At p. 314 puts it" " An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." The rule of construction is well settled and we need not burden the judgement with many citations."

9. Thus following the same analogy Rule 3 (1) proviso in so far as it provides that the election petition shall not be entertained unless it is accompanied by the treasury challan to show that the amount of Rs. 50/- has been deposited is mandatory whereas the manner of deposit cannot be said to be mandatory failure of which may entail dismissal of the election petition. In case the deposit is shown for the purposes of the election petition for the Gaon Sabha in question substantial compliance is fully proved and the election petition need not be dismissed on the ground that the deposit is not in the particular account i.e. personal ledger account of the Gaon Sabha. The petitioner himself has filed treasury challan by which the amount was deposited in the State Bank of India by the petitioner for the purposes of election petition of village Mohinipur. The aforesaid deposit clearly makes out substantial compliance of rule 3 and the election petition is fully entertained on the strength of such deposit."

10. Heard learned counsel for parties and perused the material available on record.

11. Relevant Rule 3(1) of Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994 is mentioned hereinafter:

"3. Election Petition.--(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."

12. There is no dispute that election petitioner has declared in election petition that he has complied above referred precondition and a receipt was also filed. It is also not in dispute that the election petition has to be accompanied by a treasury challan of deposit of requisite fee, which is a mandatory condition. [See, Sitaram (supra)]

13. Only dispute in present case for consideration is that, if such deposit is in different head, whether it would amount to non compliance of above referred mandatory condition and election petition can be dismissed though in present case, there is a report of Treasury Officer that it was deposited under correct head.

14. In Arun Kumar (supra) this Court has held that in case the deposit is shown for the purpose of election petition, it need not to be dismissed on the ground that deposit is not in the particular account or head.

15. In the present case, challan submitted alongwith election petition shows that it was deposited under head "8448-00-120-06' i.e., "deposit of local funds", therefore, it was not deposited under correct head. However, report of Treasury Officer states that it was actually deposited in correct head, i.e., "8443-00-121-06". Any dispute to said report, cannot be adjudicated under writ jurisdiction and there is no reasonable ground to disbelieve the report of Treasury Officer or to declare it to be an incorrect report.

16. The pre-condition of filling a treasury challan alongwith election petition was complied with, therefore, according to Sitaram (supra) also there was compliance of provision.

17. The outcome of above discussion on fact and law is that there is no illegality in impugned order.

18. In view of above, writ petition is disposed of with direction that parties shall exchange pleadings within three weeks from today and Prescribed Authority thereafter shall frame issues and call parties for evidence and conclude proceeding expeditiously keeping in view the directions issued by this Court vide judgment dated 31.03.2016 passed in Writ-C No. 14277 of 2016 (Mrs. Anita Devi vs. Prescribed Authority Panchayat Raj and others) and Circular dated 06.07.2016 issued by State Government.

Order Date :- 27.02.2023

AK