Telangana High Court
Raghavendra Raju Chaluvagali vs A. Anand Kumar Goud on 9 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
C.M.A.No.474 of 2023
JUDGMENT:
This appeal is filed challenging the order and decree dated
16.08.2023, passed by the Principal District Judge, Mahabubnagar,
in I.A.No.1155 of 2022 in E.O.P.No.2 of 2020.
2. The facts of the case, in brief, are that the appellant herein
filed Election Petition in E.O.P.No.2 of 2020 under Section 233 of
the Telangana Municipality Act, 2019, to declare the election of
the respondent No.1 as Ward Member (Municipal Councilor)
from 21st Ward of Mahabubnagar Municipality, as void and set
aside the same, and further declare him as returned candidate.
The respondent No.1 has filed counter in the Election Petition
stating that the appellant has not complied with the required
procedure for filing the Election Petition and that the Election
Petition is not maintainable on the said ground.
3. Pending adjudication of the Election Petition, the
respondent No.1 filed I.A.No.1155 of 2022 under Order 7 Rule 11
(a)(d) CPC r/w Section 151 CPC and Rule 8(2) of the Telangana
Municipalities (Electing Petitions) Rules, 2020 (for short, 'the
Rules'), to reject and dismiss the Election Petition filed by the
appellant.
4. It is stated by the respondent No.1 that the appellant filed
the Election Petition without complying with the mandatory
provisions; that the appellant was required to deposit an amount
of Rs.5,000/- towards Security Deposit at the time of presenting
the Election Petition before the Tribunal as per Rule 8 (2) of the
Rules and that in case of non-deposit of the said amount on the
date of presentation of the Election Petition, the Election Petition
has to be dismissed. It is further stated that the Election Petition
was filed on 22.02.2020 without depositing Rs.5,000/- towards
Security Deposit before the Tribunal, along with the Election
Petition. The appellant filed Lodgment Schedule along with the
Election Petition without tendering or paying cash and without
submitting any Demand Draft, but sought to issue Lodgment. As
per the Lodgment issued by the Tribunal, the appellant has
deposited the amount in the Bank on 25.02.2020 i.e., three days
after presenting the Election Petition.
5. It is further stated that the appellant shall pay cash of
Rs.5,000/- to the Tribunal at the time of presentation of the
Election Petition towards Security Deposit or obtain a Demand
Draft for Rs.5,000/- in the name of the Tribunal on the date of
presentation of the Election Petition in compliance of Rule 8(2) of
the Rules. But, the appellant neither paid the cash nor submitted
Demand Draft for Rs.5,000/- in the name of the Tribunal on the
date of filing the Lodgment Schedule along with the Election
Petition on 22.02.2020.
6. The appellant filed counter in the said Interlocutory
Application denying the averments made therein and stating that
the election for Mahabubnagar Municipality was held on
22.01.2020 and the election was declared on 25.01.2020; that the
Rules relating to disposal of Election Petitions were framed on
11.02.2020 and that the Election Petition was presented on
22.02.2020, but, by that time, the Rules were not available. The
Rules and the Act are silent with regard to the mode and manner
of payment.
7. It is further stated that the appellant came to know that in
an Election Petition filed by one Md. Imran, at the time of
presentation of his Election Petition, he deposited the security
amount in the District Court Account and counterfoil thereof was
filed in the Court. It is also stated that as the office has raised an
objection with regard to the payment of Security Deposit and
advised the appellant to deposit the same through lodgment
schedule, he filed lodgment schedule along with the Election
Petition and the office of the Court issued the lodgment schedule
and accordingly, he deposited the amount on 25.02.2020. It is
further stated that as the Rules do not prescribe the manner of
deposit of Security Deposit amount, he followed the Court orders
and deposited the said amount. It is also stated that when the
Election Tribunal was satisfied with his compliance as prescribed
under Rule 8(3) of the Rules and proceed with the trial, the
respondent No.1 is precluded from raising issue of Security
Deposit and seeking the relief of dismissal of the Election
Petition. Therefore, he prayed to dismiss the I.A.
8. The trial Court, after hearing both sides and considering
the entire material available on record and also the judgment of
the Hon'ble Supreme Court in Sitaram v. Radhey Shyam
Vishnav 1, held that there cannot be a separation or segregation of
the Election Petition and deposit and they have to be filed
simultaneously and accordingly allowed the I.A by rejecting the
Election Petition vide impugned order dated 16.08.2023. Hence,
this appeal.
9. The learned counsel for the appellant has stated that the
trial Court ought to have seen that there is no mode of payment
prescribed under the Rules; that the trial Court erred in rejecting
the Election Petition on the ground that the Security Deposit
amount was not deposited within the time and that the trial
Court ought to have seen that the Election Petition was at the
stage of cross-examination of P.W.1. It is further stated that the
new Rules were framed on 11.02.2020 i.e., just 11 days prior to the
filing of the Election Petition and thus, the appellant was
unaware of the same, as much as, the Office did not take any
AIR 2018 SC 1298
objection and numbered the Election Petition. Therefore,
rejection of the Election Petition three years after its filing is
contrary to law, and thus, prayed to set aside the impugned
order.
10. On the other hand, the learned counsel for the respondent
No.1 vehemently argued that the appellant has not deposited the
Security Deposit amount of Rs.5,000/- with the Election Tribunal,
as prescribed under Rule 8(2) of the Rules, which is mandatory
and therefore, the trial Court has rightly allowed the I.A by
rejecting the Election Petition. He further contended that the
appellant is not a voter in the constituency, in which election was
held. In support of the said contentions, the learned counsel has
relied upon the judgments of the Hon'ble Supreme Court in
Sitaram v. Radhey Shyam Vishnav (1 supra), the composite High
Court of Andhra Pradesh in Anjamma v. S. Pushpamma 2 and
Bangaru Sankaraih v. Talari Pothalaih3 and the judgment of the
2001 (1) ALD 77 (DB)
2015 (4) ALD 394
Bombay High Court in Satyanarayan Shrivallabh v.
Bhagwantrao Marotirao 4.
11. Before dealing with the appeal, it is apt to refer to Rule 8 of
the Rules, which reads as under:
"8. Deposit of Security: (1) At the time of presentation of the
petition, the petitioner shall deposit with the Election Tribunal, as
security for the cost of the same,-
(i) a sum of ten thousand rupees in the case of election of Chair
person or Vice Chairperson or Mayor or Deputy Mayor; and
(ii) a sum of five thousand rupees in the case of ward member.
Explanation: Where the election of more than one returned
candidate is called in question, a separate deposit shall be made in respect
of each such returned candidate.
(2) If the provisions of sub-rule (1) are not complied with, the
Election Tribunal shall dismiss the petition.
(3) Upon compliance with the provisions of sub-rule (1), the
Election Tribunal shall proceed to inquire into the petition."
12. In Sitaram v. Radhey Shyam Vishnav (1 supra), which was
taken into consideration by the trial Court while allowing the
I.A., the Hon'ble Supreme Court held that firstly, the deposit is
mandatory and the mode of deposit is directory; secondly, the
non-deposit will entail dismissal and irregular deposit is curable
and thirdly, in other areas like verification, signature of parties,
AIR 1965 BOMBAY 58
service of copy, etc., the principle of substantial compliance or the
doctrine of curability will apply. There cannot be a separation or
segregation of the Election Petition and the deposit.
13. In Anjamma v. S. Pushpamma (2 supra), a Division Bench
of the erstwhile High Court of Andhra Pradesh had referred to
the judgments of the Hon'ble Supreme Court in Aeltemesh Rein
v. Chandulal 5, Narayanaswamy v. C.P. Thirunavukkarasu 6 and
Karunanidhi v. H.V. Hande 7 and ultimately held that an Election
Petition filed without depositing the Security Deposit, as required
under Rule 5(i) of the Rules, 1955, is liable to be dismissed in
limine.
14. In Bangaru Sankaraih v. Talari Pothalaih (3 supra), a
learned Singh Judge of the composite High Court of Andhra
Pradesh, had followed the judgment in Anjamma v.
S.Pushpamma (2 supra) and reiterated the above principle.
15. In Satyanarayan Shrivallabh v. Bhagwantrao Marotirao
(4 supra), the Bombay High court held that an Election Petition
AIR 1981 SC 1199
(2000) 2 SCC 294
(1983) 2 SCC 473
can be filed only by a voter in the electoral division in which
election is held, by referring to Section 27(1) of the Maharashtra
Zilla Parishads and Panchayat Samities Act, 1961.
16. A perusal of Rule 8(1) of the Rules clearly discloses that at
the time of presentation of the Election Petition, the petitioner
shall deposit the prescribed Security Deposit along with the
Election Tribunal. Rule 8(2) of the Rules clearly discloses that if
the provisions of sub-rule (1) are not complied with, the Election
Tribunal shall dismiss the petition. Therefore, Rule 8(2) of the
Rules is mandatory in nature and the same has to be complied
with while filing the Election Petition.
17. In the instant case, the Election Petition was presented on
22.02.2020, whereas, the security deposit was paid on 25.02.2020
i.e., subsequent to the filing of the Election Petition, which is in
clear violation of Rule 8(2) of the Rules.
18. In the light of the above discussion, more particularly, Rule
8(2) of the Rules, and the above legal position, the Election
Petition filed by the appellant is not maintainable. Therefore, the
trial Court is right in allowing the I.A. rejecting the Election
Petition filed by the appellant and this Court finds no irregularity
in the impugned order passed by the trial Court. In the
considered opinion of this Court, the appellant failed to make out
any case warranting interference by this Court with the
impugned order dated 16.08.2023.
19. Hence, the appeal is liable to be dismissed and the same is
accordingly dismissed. There shall be no order as to costs.
Pending miscellaneous applications, if any, shall stand
closed.
__________________________________
LAXMI NARAYANA ALISHETTY, J
Date: 09.01.2024
va
