JUDGMENT
M.G. Mukherji, C.J.
1. This special appeal preferred by Shri Niwas Janwar is directed against a judgment and order dated 28th April, 1997 passed by a learned single Judge of our Court in S.R. Civil Writ Petition No. 1713/97, whereby the learned single Judge dismissed the writ application holding inter alia that the Tribunal adjudicating the election petition was right in observing that the question whether the amount of security deposit was deposited in the treasury by both the election petitioners or not while filing the election petition is a mixed question of law and fact and should be decided at the time of final adjudication of the election petition.
2. In the writ application itself, the present appellant as writ petitioner challenged an order dated 10th March, 1997 as passed by the learned District Judge acting as the Election Tribunal observing inter alia that the issue as to whether the security for costs has not been deposited as per law and the election petition is liable to be dismissed on this count could only be decided after taking evidence because this was a matter involving mixed question of law and fact and, as such, this could not be decided at the preliminary stage by treating it as an issue of law. The writ petitioner appellant in view of the amended pleadings took up the question as to whether the security for costs was deposited on behalf of
Jelhmal alone and not on behalf of Kailash. The contention of the writ petitioner appellant inter alia was to the effect that Section 53 of the Rajasthan Municipalities Act, 1959 requires that the person filing election petition should enclose with the election petition a Government treasury receipt showing that the deposit has been made by him in the Government treasury in favour of the Judge as security for the cost of the petition of a sum of Rs. 200/- in case of a city and of Rs. 100/ in any other Municipality. The learned advocate appearing for the writ petitioner-appellant contended that on an analysis of the statutory provision it would be revealed that the provision is mandatory and not directory and the deposit of the required amount has to be made first and it was to be made by the petitioners filing the election petition themselves and not that the deposit could be made in his/their name. The amount has to be deposited in the Government treasury in favour of the Judge and it would be by way of security by way of cash deposit for the cost of the petition and all these ingredients should be clear from the cash challan itself and the receipt should be enclosed with the election petition.
3. It was contended in the first place by the learned advocate appearing forthe writ petitioner appellant that the learned District Judge acting as the Election Tribunal has not considered the important aspect of the matter that the deposit has not been made by the election-petitioners Jethmal and Kailash themselves and it would be manifest enough from the receipt itself which clearly showed that the security deposit was not made by both the election-petitioners personally, but it was deposited on behalf of both the election-petitioners Jethmal and Kailash. Since some of the essential ingredients by way of essential prerequisites to the filing of an election petition were not complied with, the election petition was liable to be dismissed. The learned advocaate for the writ petitioner-appellant also focused our attention to Section 38 of the Act for the purpose of highlighting the contents of the election petition specially with regard to the provisions of signing the petition and verification thereof including signing the schedule or annexure to the election petition which is to be verified in the same manner as in the petition. Taking a cue from the provisions Mr. Shishodia, learned Senior
Advocate appearing for the writ petitioner appellant contended that there was no signature or verification as regards the receipt. The election-petitioners in this case ought to have filed separate challan because both the them belong to separate category and both of them had separate causes of action and they could not be joined in the election petition for a common cause. Drawing our attention to Section 36 of the Act regarding presentation of petition, Mr. Shishodiacontended that the election petition might be presented by any candidate at such election or by way of an elector of the ward who was entitled to vote at the election. It was in the fitness of things that the filing of the security deposit should be made by the election petitioner himself or if there be more than one election petitioner, by all of them acting together and the money has also to be tendered by them conjointly and not any of them acting for the other or even a tender by their authorised advocate would not be good enough for a proper compliance of the statutory provision in this regard. It is already laid down under Section 44(3) of the Act by way of a mandatory provision that if the requirements of Section 53 are not complied with then the Tribunal Judge is duty bound to dismiss the election petition. Any infringement of the requirements under Section 36 or 37 or 53 of the Act would make it mandatory for the Election Tribunal Judge to dismiss the election petition. Unless the election petitioner or if there may be more than one election petitioner all of them conjointly deposit the amount in favour of the Judge as security for the cost of the petition, the election petition is liable to be dismissed on that ground alone. Mr. Shishodia further contended that no evidence is required for this purpose either to explain the meaning or to clarify as to how the tender was made and it was completely erroneous on the part of the Election Tribunal Judge to hold on a specific issue being raised that whether the security money has been deposited on behalf of Jethmal or was not deposited on behalf of Kailash, could not be decided without taking evidence. It was submitted that this order was per se illegal and without jurisdiction because the mandate of Section 53 was to the effect that the receipt itself should show that the person filing the election petition should enclose the Government treasury receipt revealing that the deposit has been made by
himself or themselves and not on his or their behalf and the deposit must be made in favour of the Judge as security for the cost of the petition. There is no requirement that any evidence has to be tendered in this regard to prove in what manner the deposit has been made since the receipt itself would manifestly show how the deposit was made and who by and on a mere look of the receipt itself, the Court would come to a conclusion as to whether the provisions as laid down under Section 53 of the Act have been complied with or not. Hence, the decision to defer an adjudication on this issue and to seek specific evidence on the point, as was so done by the Election Tribunal Judge, was contrary to law and has caused a failure of justice. Mr. Shidhodia further contended that the Election Tribunal Judge himself has accepted the proposition that the person on whose behalf the security has been deposited is mentioned as only Jelhmal and the word ‘Aadi’ is written after it which would clearly reveal that the receipt does not show that the amount was deposited on behalf of both the persons and hence, no hence, no evidence could be adduced toexptain the ambiguous character of the document, more so when the language used in the document itself plainly revealed a state-of-affairs which was contrary to law and noevidence could be tendered by way of rebuttal thereof under the provisions of Section 93 and 94 of the Indian Evidence Act. It was contended that when the language used in document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defect and when the language used in a document is plain in itself and applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. Hence, Mr. Shishodia contended that the decision as arrived at by the Election Tribunal Judge to take evidence with regard to the meaning of the document is clearly per se illegal and without jurisdiction. In this context, the learned District Judge acting as the Election Tribunal has not even looked into the other aspect of the matter as to whether the amount has been deposited by any of the election petitioners personally or it was in favour of the Election Tribunal Judge and not giving any finding on the two important facets of the case was clearly illegal. Instead of continuing with the proceedings he ought to have decided
the preliminary objection as raised by the present writ petitioner-appellant who was an elected candidate and ought not to have gone into for vexatious and continued proceedings in order to harass him. If the amount of security deposit has to be made on behalf of one person then, the deposit ought to have been made on behalf of only one person and the question would arise as to whether Jethmal himself has deposited the amount or not and unless it is shown that the amount was deposited by Jethmal personally, it could not be a sufficient compliance of the mandatory provisions of Section 53. A bare perusal of the receipt itself showed that in the column ‘signature of actual payee’ there is no signature of Jethmal and even it may be presumed for the sake of argument that the amount has been deposited on behalf of Jethmal only or even on behalf of both, then the further requirement is whether any one of them severally or jointly have deposited the amount personally and this ought to be clear from the fact whether they have put their signature on the column of actual payer because the cash challan presumes two things; (i) the name of the party on whose behalf the money has been tendered; and (ii) who is the actual payer. The Election Tribunal Judge by looking at the case chaltan could have been convinced that there is no signature of either Jethmal or Kailash on the column of actual payee and this non-compliance of Section 53 would have clinched the issue that none of the election petitioners personally deposited the amount. Hence, no evidence could have been allowed to be given by the election petitioners so as to explain as to how the money was deposited and the receipt was obtained and who by and in what manner, moreso when the receipt has neither been signed nor enclosed by any of the election petitioners, but they stated in the election petition that the cash challan has been enclosed with the election petition. It has further been contended that a combined reading of Sections 36, 42 and 53 of the Rajasthan Municipalities Act, 1959 would show that the election petition could be presented by the person who is filing the election petition or by the person duly authorised in writing by the person making the election petition and that person himself has to deposit the security money in the name of the election petitioner himself. The learned Advocate is excluded from exercising
any function either in the act of depositing security money or in presenting the election petition because the action by way of deposit of the security money precedes even the presentation of the election petition. The election petition on the other hand should contain an averment to the effect that the receipt is being enclosed with it after the security money has been deposited and the appointment of the Advocate is to be done only before the Judge for the purpose of representing the election petitioners and for conducting the election petition itself. It was furthermore reiterated that the receipt clearly showed that the deposit has been made by a single election petitioner or by both the election petitioners and there was no scope for evidence to supplement the receipt, it was furthermore contended that the order of the learned District Judge acting as the Election Tribunal is per se void and without jurisdiction. The learned District Judge acting as the Election Tribunal cannot entertain an election petition unless and until it is presented in the manner provided in accordance with law and in due compliance of the provisions of Section 53 of the Act and he is duty bound to dismiss the election petition under Section 44(3) of the Act. The receipt did not show that it was the security for the post of the petition and it was made in favour of the Judge. This aspect of the matter has been overlooked by the learned District Judge functioning as the Election Tribunal, who failed to appreciate as to whether the provision of Section 44(3) was itself mandatory in character.
4. It was further contended that the burden of proceeding with the election petition has wrongly been shifted on the election candidate i.e. the appellant-writ-petitioner specifically with regard to the issue as to whether the respondents No. 1 and 2 could show by way of production of the receipt that the amount of security money has been deposited by any one of them individually or collectively and in the absence of a specific proof in this regard which would be revealed from the deposit challan itself accompanying the election petition, the election petition has to be dismissed. It is the inherent statutory duty of the respondents No. 1 and 2 to prove their case to the hilt from a prima facie examination of the security receipt itself and the burden of proof is on the respondents No. 1 and 2 show that they have complied with the Section 53 of the Act. An
ultimate prayer was made by the appellant writ petitioner that by an appropriate writ, order or direction the order dated 10th March, 1997 passed by the Election Tribunal Judge be quashed and the election petition filed by the respondents No. 1 and 2 pending before the Election Tribunal might be dismissed with costs.
5. The respondents No. 1 and 2 contested the writ application by filing a reply wherein certain preliminary objections were taken to the effect that the order impugned dated 10th March, 1997 was an interlocutory order which could not be challenged in a writ application in the manner it was so done and on the other hand, if at all a remedy under Section 115 of the Code of Civil Procedure was maintainable. Moreover, when no writ application was maintainable on facts, no special appeal was also entertainable against an order dismissing the writ application. The conduct of the writ petitioner appellant also disentitles him to any relief in the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. Right from the very beginning of his appearance in the election petition he has been trying to avoid the trial and is taking frivolous objections one after another so as to avoid the trial of the election petition itself. That apart, an objection regarding submission of a proper security was taken by the appellant writ-petitioner and on 21-9-1996 the Election Tribunal framed additional issue No. 1 and held that the same could be decided only after taking evidence. The appellant writ petitioner did not challenge the said order dated 21-9-1996 passed by the Election Tribunal, but raised a frivolous objection regarding security deposit and has now challenged the order of the Election Tribunal when it held that the question would be decided after taking evidence. Section 41(1) the Rajasthan Municipalities Act provides that the election petition should be decided expeditiously and endeavour should be made to conclude the trial within six months from the date of the service of the copy of the petition. In the present case, the election petition was filed in 1995 and a copy of the same was served on the appellant writ petitioner before 20-9-1995. A considerable time has elapsed in deferring the trial raising frivolous objections. The stay of trial runs contrary to the provisions of Section 41(11) of the Act and hence, this Court ought not to interfere so as to
invoke extraordinary constitutional writ jurisdiction at the instance of the appellant-writ petitioner.
6. It was contended by the respondents Nos. 1 and 2 through their learned Advocate Mr. M.S. Singhvi that even on merits, the appellant-writ petitioner does not have any case. The order passed by the Election Tribunal Judge is a discretionary order and no illegality has been committed, much less an error apparent on the face of the record so as to warrant any interference in exercise of the extraordinary constitutional writ jurisdiction of this Court. There is no provision like Section 86 of the Representation of the People Act, 1951 in the Rajasthan Municipalities Act, 1959 and hence, an election petition under the Rajasthan Municipalities Act cannot be dismissed for an alleged non-compliance of Section 53. That apart, in the present context, there is a full compliance of Section 53 of the Rajasthan Municipalities Act, 1959. The mandatory part of Section 53 of the Act is the deposit of security, the manner of deposit is not a mandatory requirement and this has been consistently held by the Apex Court in various decisions beginning from K. Kamraj Nadar v. Kunju Thevar, AIR 1958 SC 687.
7. Various cases under the Representation of the People Act which contained similar provisions to that of the Rajasthan Municipalities Act, 1959 with regard to the filing of the election petition have been cited from the Bar. Mr. Shishodia, the learned Senior Advocate appearing for the writ petitioner-appellant drew our special attention to paragraph 29 of the additional written statement. He drew our attention to the decision of the Supreme Court in Sharif-ud-Din v. Abdul Gani Lone, AIR 1980 SC 303, for the proposition that where a particular provision in the statute with regard to the filing of an election petition which is intended for the service on the respondent has not been complied with, the non-compliance of the said requirement should result in the dismissal of the election petition. In the reported decision, the requirement was as to every copy of the election petition being attested by the petitioner under his own signature which was taken to be a mandatory requirement under the law, the non-compliance of which led to the dismissal of the election petition. It was held in the facts of the reported case that the attestation by the advocate
for the petitioner could not be treated as the equivalent to attestation by the petitioner under his own signature. The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition is that the petitioner should take full responsibility for its contents and that the respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed in the Court. It was observed in the reported case that the difference between a mandatory rule and a directory rule is that white the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. Certain broad propositions which could be deduced from several decisions of Courts regarding the rules of construction that should be followed in determining whether a provision is directory or mandatory may be summarised thus: The fact that the statute uses the word ‘shall’ while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where, however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another
provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it, can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be thereby contravened. Whenever when a statute prescribes that a particular act is to be done in a particular manner and also lays down that a filure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.
8. In Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, it was observed that the contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence and not at the threshold was thoroughly misconceived and untenable. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil Procedure Code and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. It was further observed in the reported case that even in an ordinary civil litigation, the Court readily exercises the power to reject a plaint if it does not disclose any cause of action or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the proceedings. Such being the position in regard to matters pertaining to ordinary civil litigation, there is a greater reason why in a democratic set up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the Nation, the controversy is set at rest at the earliest if the facts of the case and the law so warrant.
9. In Manohar Joshi v. Nitin Bhaurao Patil, AIR 1996 SC 796, it was observed that as regards the presentation of an election petition, the non-compliance of Section 83 is no ground for dismissal of the election petition under Section 86. It was observed that the compliance of Sections 81, 82 and 117 of Representation of the People Act is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation and this is a ministerial act. There is no scope for any further enquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 which is ajudicial function. For this reason, the non-compliance of Section 83 is not specified as a ground for dismissal of the election petition under Section 86. Thus, the plea that if the contents of the election petition which has been filed and the copy accompanying it do not satisfy the requirement of Section 83(1), there is non-compliance of Section 81(3) attracting Section 86 for dismissal of the election petition, would not be tenable particularly when Section 86 being in the nature of a penal provision has to be construed strictly confined to its plain langauge.
10. What is mandatory and what is directory as regards the Rules have sufficiently been elucidated in the decision in M. Karunanidhi v. H. V. Handa, AIR 1983 SC 558. That was the case where the election petition was preceded by the deposit of security for costs made by achallan in the Reserve Bank and not in cash in the High Court. It was held that there was sufficient compliance with the Section 117(1) and Rule 8. The first part of Section 117(1) of the Representation of the People Act, 1951 as to making deposit is mandatory, but the second part relating to manner of making deposit is, however, directory.
11. In Samar Singh v. Kedar Nath, AIR 1987 SC 1926, it was observed that if an election petition does not disclose the cause of action it can be dismissed summarily at the threshold of the proceeding under Order 7, Rule 11 of the Code of Civil Procedure. If an election petition can be summarily rejected at the threshold of the proceeding the same can also be rejected at any stage of subsequent proceeding. If after framing of issues, basic defect in the election petition persists, it is always open to the contesting respondent to insist that the petition be rejected under Order 7, Rule 11, CPC and the Court would be acting within its jurisdiction in considering the objection. Order 7, Rule 11, CPC does not place any restriction or limitation on the exercise
of Court’s power, it does not either expressly or by necessary implication provide that the power under Order 7, Rule 11, CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the Court to exercise that power at any stage. While it is true that ordinarily preliminary objection as to maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection cannot be ignored. If the election petition does not disclose any cause of action, the respondent’s right to raise objection to the maintainability of the petition, or the Court’s power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The Court would be acting within its jurisdiction in exercise of its power under Order 7, Rule 11, CPC in rejecting the same even after settlement of issues.
12. In K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687, it was observed that it was absurd to imagine that a deposit made either in the 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 Section 117 and would involve a dismissal of the petition under Section 85 or 90(3). The illustration is sufficient to demonstrate the words ‘in favour of the Secretary to the Election Commission’ used in Section 117 are directory and not mandatory in their character. What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition and should enclose alone 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, which is at the disposal of the Election Commission and it is to be used by the Election Commission 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 any one else. If, therefore, it can be shown by evidence led before the Election Tribunal that the Government treasury receipt or the challan which was obtained by the petitioner and enclosed by him along with his
petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance with the requirements of Section 117. No such literal compliance with the terms of Section 117 is at all necessary as was contended for and on behalf of the appellant before the Supreme Court. As was observed in paragraph 42 of the judgment at page 698, the Supreme Court expressed the opinion that the orders passed by the High Court and the Election Tribunal were erroneous and ought to be set aside and the Election Tribunal was directed to decide the preliminary objection with regard to the non-compliance with the provisions of Section 117 by the 2nd respondent in the light of the observations made by the Supreme Court and deal with the same according to law. The parties were given the liberty to lead such further evidence before the Election Tribunal as they may be advised. The provisions of Section 53 of the Rajasthan Municipalities Act, 1959 are almost akin to the provisions of Section 117 of the Representation of the People Act.
13. In N. T. Veluswami Thevar v. G. Raja Nainar, AIR 1959 SC 422, it was observed that the jurisdiction of the High court to issue writs against the orders of the-Tribunal is undoubted, but then it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Article 226 of the Constitution of India. It was further observed that it should be remembered that under the Election Law as it stood prior to 1956, the election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Article 226 and further appeals to the Supreme Court with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. It is to remedy these defects that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court and its intention is obviously that the proceedings before the Tribunal should go on with expedition and without interruption and that any error in its
decision should be set aright in an appeal. In this view, it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders.
14. Regard being had to the facts and circumstances of the present case, we are of the considered view that no interference is called for at the interlocutory stage as in the present one. Appeals do lie against the final order as provided under the provisions of Section 46 of the Rajasthan Municipalities Act, 1959. That apart, we are of the view that the provision as contained in Section 53 regarding filing of an election petition which should enclose with it a Government treasury receipt showing a deposit of Rs. 200/- in the facts of the present case, is mainly a provision which is somewhat directory as regards the manner of deposit. It would indeed be open for the Tribunal to probe into the question as to whether the money has been deposited by either of the election petitioners in the Government treasury in favour of the Judge as security for the cost of the petition or by some other person on his behalf and whether such deposit by some other person on his behalf disentitles him for filing a valid election petition in accordance with law. But as the matter stands at the present moment, we do not think that any interference at the present stage specially in the constitutional writ jurisdiction is at all called for. It was in the fitness of things that orders were passed in the right direction by the Election Tribunal Judge as also by the learned single Judge dismissing the writ application. The Election Tribunal is directed to decide the election petition as expeditiously as possible, preferably within six months.
15. The present special appeal stands dismissed accordingly. There will be no order as to costs.