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PETITIONER: KUMARANAND

       Vs.

RESPONDENT: BRIJ MOHAN LAL

DATE OF JUDGMENT: 24/08/1964

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GAJENDRAGADKAR, P.B. (CJ) AYYANGAR, N. RAJAGOPALA

CITATION:  1965 AIR  628            1965 SCR  (1) 116  CITATOR INFO :  D          1968 SC 300  (10)

ACT: Representation of the People Act, 1951 (43 of 1951), s. 119- A-Election  Petition-Appeal-Security  deposit-Deposit   with Registrar’s  Office of the High Court Instead of  Government Treasury-Whether appeal to be dismissed.

HEADNOTE: On a petition by the respondent, challenging the election of the  appellant  to  the  State  Legislative  Assembly,   the Election  Tribunal  declared  the  election  void  under  s. 100(1)(b) of the Representation of the People Act.   Against the  order  of the Tribunal, the appellant appealed  to  the High  Court.   Instead of enclosing with the  memorandum  of appeal a Government Treasury receipt showing that a  deposit of  Rs.  500  had  been  made  in  favour  of  the  Election Commission, the appellant through his Advocate tendered  the amount in the office of the Registrar of the High Court  The amount  tendered was accepted and was duly credited  in  the name of the appellant as "security deposit".  At the hearing of  the  appeal it was contended by  the  respondent,  inter alia,  that  the appellant had failed to  enclose  with  the memorandum  of appeal a Government Treasury Receipt  showing that  a deposit of five hundred rupees had been made by  him in  favour  of the Election Commission as  security  of  the costs  of the appeal, and his appeal was, on  that  account, not  maintainable.  The High Court held that  the  appellant had failed to comply with the provisions of s. 119-A of  the Act  and  on  that  account the  appeal  filed  by  him  was incompetent, and dismissed the appeal.  In appeal by special leave : HELD  :  The failure to comply with the requirements  of  s. 119-A  does not necessarily result in the dismissal  of  the appeal,  for  the Act imposes no express  penalty  for  non- compliance with the requirements of that section.  The Court had  therefore  jurisdiction having regard  to  the  circum- stances,  either to permit rectification of the mistake,  or to  decline to proceed with the appeal which did not  comply with  the  statutory requirements. In the present  case  the High  Court  erred  in not  taking  into  consideration  the

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conduct  of  the office of the Registrar  in  accepting  the deposit  of costs and also a defective presentation  of  the appeal   which  contributed  to  the  irregularity  of   the procedure adopted by the appellant. [122B-D]. Jagan Nath v. Jaswant Singh, [1954] S.C.R. 892, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 644 of 1964. Appeal  by special leave from the judgment and  order  dated February  25,  1964, of the Rajasthan High Court  in  D.  B. Election Appeal No: 93 of 1963. R.   K. Garg, for the appellant. B.   D. Sharma, for respondent No. 1. 117 The Judgment of the Court was delivered by Shah J. At the last general elections held in February  1962 the  appellant Kumaranand contested a seat in the  Rajasthan Legislative  Assembly from the Beawar constituency  and  was declared elected.  Brij Mohan Lal who was a candidate at the election then presented a petition challenging the  election of the appellant on the ground that the appellant had in the course  of the election committed corrupt  practices  within the meaning of s. 123(4) of the Representation of the People Act, 1951, by publishing a poem containing false  statements of  fact relating to the personal character and  conduct  of the   applicant  Brij  Mohan  Lal  and  which  were   highly prejudicial   to  his  election  prospects.   The   Election Tribunal  declared the appellant’s election void under s.  1 00 ( 1 ) (b) of the Act.  Against the order of the Tribunal, the  appellant  appealed to the High Court of  Rajasthan  at Jodhpur.   At the hearing of the appeal it was contended  by the  respondent  Brij  Mohan  Lal,  inter  alia,  that   the appellant  had  failed  to enclose with  the  memorandum  of appeal a Government Treasury receipt showing that a  deposit of five hundred rupees had been made by him in favour of the Election Commission as security for the costs of the appeal, and his appeal was, on that account, not maintainable.   The High Court held that the appellant had failed to comply with the provisions of s. 119A of the Act and on that account the appeal  filed  by  him  was  incompetent.   The  High  Court declined  to accede to the request made by the appellant  to condone the delay, if any, in the filing of the appeal under the proviso to s. 116A(3) and to rectify the defect  arising from  the  appellant’s  failure  to  enclose  a   Government Treasury  receipt  for Rs. 500 as required by s.  119A,  and dismissed  the appeal.  With special leave, this appeal  has been preferred by the appellant. The  facts bearing on the plea which has found  favour  with the  High Court of Rajasthan and the relevant provisions  of the  Representation  of  the  People Act  in  force  at  the material  time may be briefly stated.  Section 119A  of  the Act  which  was  added by s. 64 of Act 27 of  1956  and  was further amended by Act 58 of 1958 reads as follows :               "Every  person  who prefers  an  appeal  under               Chapter IVA shall enclose with the  memorandum               of   appeal  a  Government  Treasury   receipt               showing that a deposit of five hundred  rupees               has  been made by him either in  a  Government               Treasury  or in the Reserve Bank of  India  in               favour of the Election Commission as  security               for the costs of the appeal. 118 Instead of enclosing with the memorandum of appeal a Govern-

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ment Treasury receipt showing that a deposit of Rs. 500  had been  made  in  favour  of  the  Election  Commission,   the appellant through his Advocate Vijay Chandra Mehta  tendered on October 21, 1963, the amount of Rs. 500 in the office  of the  Registrar of the High Court.  The amount  tendered  was accepted and was duly credited in the name of the  appellant as  "security  deposit’.  The tender form for  payment  into Court of the security for costs, as completed by the  office of the Registrar, High Court, Rajasthan, was as follows "Original tender : 771/21-10-63  R.R.D. No. 239/31-10-63.   In the High Court of Judicature for Rajasthan at Jodhpur                    ---------------------------                         Jaipur Bench ------------------------------------------------------------ Instruction to applicant. Fill up accurately columns 1 to 4. ------------------------------------------------------------ 1.  Name of party on whose        Shri Kumaranand. behalf the money is tendered 2.  Name of parties and num-     Kumaranand v. Brij Mohan  ber of the suit              Lal D. B. Election appeal/63. 3.  Nature of payment          Security Deposits. 4.  Amount tendered            Rs. 500 (Rs. Five hundred                                           only). 5 .  Office report               May be deposited. Sd./-Vijay Chandra Mehta          Sd/- Illegible                                     21-10-63                                 Signature of Cashier                              Stamp Dated                                            Dated Receipt acknowledged in Register No. R.R.D. No. 239/  31-10- 63  only by credited, dated to S.B. Ch.  No. 157/54/  21-10- 63. Sd/- Mohammed Haji 31-10-63 Signature of Receiving Officer 119 N.B.-To be filed with the record. Sd/- Prem Raj 31-10 Signature of Accountant." It is clear from the terms of the tender that the amount was deposited  in  the  High Court on behalf  of  the  appellant Kumaranand as "security deposit" in the proceeding "Election appeal  Kumaranand  v.  Brij Mohan  Lal",  and  the  cashier endorsed  on  the tender form that the amount paid  "may  be deposited".   The receipt was then entered in  the  Register and  it was ordered by the Accountant that it may  be  filed with the record.  This deposit of Rs. 500 in the High  Court manifestly did not comply with the, requirements of s.  119A of  the  Act.   The tender form did not  indicate  that  the deposit  was at the disposal of the Election  Commission  or that it was to be utilised in the manner authorised by  law. Even  it  did not recite that the  Election  Commission  had control over the amount or was payable on proper application being made in that behalf. Section 121 of the Act, insofar as it is material, by  Subs. (1)  provides that if any direction for payment of costs  by any  party  to any person is made under Part VI  such  costs shall  be paid in full out of the security deposit  and  the further security deposit, if any, made by such party, on  an application  made in writing in that behalf to the  Election Commission by the person in whose favour the costs have been awarded.  Section 119A is enacted with a view to secure  the costs  of  the  successful party and for  that  purpose  the

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Legislature has enacted that the deposit should be made in a Government Treasury in favour of the Election Commission  so that  the  Election Commission would pay the amount  to  the person  entitled to the costs.  But failure to  comply  with the  requirements of s. 119A does not necessarily result  in the dismissal of the appeal, for the Act imposes no  express penalty  for  non-compliance with the requirements  of  that section.  Under s. 90(3) the Tribunal is bound to dismiss an election petition which does not comply with s. 81 or s.  82 notwithstanding  that  it  had not  been  dismissed  by  the Election  Commission  under s,. 85.  No similar  penalty  is prescribed  by the Legislature in the matter of  failure  to comply  with  the requirements of s. 119A.  It may  also  be observed that by cl. (4) of s. 90 as originally enacted  for failure  to comply with the provisions of s. 117 of the  Act which  required  a petitioner to enclose  with  an  election petition  a  Government  Treasury  receipt  showing  that  a deposit  of two thousand rupees bad been made by him  either in a Govern- 120 ment  Treasury or in the Reserve Bank of India in favour  of the  Election  Commission as security for the costs  of  the petition,  it was provided that the Tribunal may dismiss  an election  petition  This  clause  was  later  modified   and renumbered as cl. (3) by Act 27 of 1956, and it was  enacted that  the Tribunal shall dismiss an election petition  which does  not comply, amongst others, with the provisions of  s. 117.  By the amendment made by Act 40 of 1961, reference  to S. 117 was, however, omitted.  The Legislature therefore has deliberately  made a distinction between failure  to  comply with  certain  requirements of the statute.  In  respect  of certain defaults the Election Tribunal is obliged to dismiss the election petition, but for default in complying with the provisions  of  s.  119A no such  penalty  is  imposed.   As observed  in  Jagan  Nath v. Jaswant Singh  and  Ors.(1)  by Mahajan, C.J. :               "The  general  rule is well settled  that  the               statutory requirements of election law must be               strictly observed and that an election contest               is  not an action at law or a suit  in  equity               but  is a purely statutory proceeding  unknown               to  the common law and the Court possesses  no               common  law  power.  It is also  well  settled               that  it  is  a  sound  principle  of  natural               justice  that the success of a  candidate  who               has  won at an election should not be  lightly               interfered with and any petition seeking  such               interference  must  strictly  conform  to  the               requirements  of  the  law.   None  of   these               propositions  however have 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  consequence  of   non-               compliance     with     certain     procedural               requirements laid down by it.               In  cases  where  the election  law  does  not               prescribe the consequence 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." The  question which then has to be considered is whether  in case  of failure to comply with the requirements of s.  119A the  High  Court  had jurisdiction to  rectify  the  mistake

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committed in making the deposit for costs.  There can be  no doubt  that an amount of Rs. 500 was intended to be and  was in fact deposited by the appellant as security for costs  of the respondent, though it was described in the tender by the somewhat   inappropriate  caption  "security  deposit".   It appears that the Advocate appearing for the appellant in the High Court did not properly appreciate the scope  (1) [1954] (1)S.C.R.892, 895. 121 of  the amendment made in the Act by Act 56 of  1956,  which incorporated  s.  119A.   He proceeded as  if  this  was  an ordinary  civil  appeal  in which  security  for  costs  was required   by  law  to  be  deposited  in  Court.   In   not acquainting himself with the statutory provisions applicable to  the  due  lodgement of the  memorandum  of  appeal,  the Advocate undoubtedly acted negligently, and if that was  the only  circumstance governing the disposal of the appeal,  we would not be justified in interfering with the order of  the High    Court.    There   are,   however,   certain    other considerations  which have not been given due effect by  the High Court before dismissing the appeal.  In the absence  of any  penalty  prescribed by the Legislature for  failure  to comply with the requirements of s. 119A the jurisdiction  of the  High Court to entertain the appeal is not  affected  or jeopardised.   The appellant was it is true not entitled  on that  account  to ignore the statutory  provision  requiring that a Government Treasury receipt for the requisite  amount in  favour  of the Election Commission as security  for  the costs  of the appeal shall be enclosed.  But when  there  is default  in  complying with the requirement, it is  for  the Court in each case to consider whether it will exercise  its discretion  to proceed with the appeal after rectifying  the mistake  committed  or it will decline to proceed  with  the appeal. In the present case as observed earlier the Advocate  failed to acquaint himself about the provisions of s. 119A.  It  is also  somewhat unfortunate that the office of the  Registrar of the High Court shared the ignorance of the Advocate.  The tender form which was produced before the High Court clearly discloses  that  the amount of Rs. 500 was  intended  to  be deposited  as  security for costs of the respondent  in  the Election  appeal: Kumaranand v. Brij Mohan La].  Instead  of depositing  that amount in a Government Treasury or  in  the Reserve  Bank, the amount was deposited in the  High  Court. The  amount was accepted and the receipt was filed with  the record, and this was regarded as sufficient compliance  with the  requirements of s. 119A.  The Deputy Registrar  of  the High Court accepted the presentation and numbered the appeal without  raising  any objection to the  procedure  followed. This  would  justify  an inference that the  office  of  the Registrar of the High Court was misinformed, as the Advocate was,  as  to  the  staturory  requirements  imposed  by  the Representation of the People Act in the matter of deposit of security  for  costs of the appeal.  If  the  memorandum  of appeal  had  not. been accepted by the  Registrar’s  office, because  it  was not accompanied by  a  Government  Treasury receipt  as required by the statute, the defect  could  have been cured by the appellant.  But the memorandum of appeal 122 was  accepted, and was numbered as an appeal, and notice  of the  appeal was issued to the respondent.  The objection  to the regularity in the procedure was, it appears, brought  to the  notice  of  the Court only at the  hearing.   That  the Advocate for the appellant was negligent cannot be gainsaid. But  the conduct of the office of the Registrar of the  High

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Court in accepting presentation of the appeal which did  not comply  with  the  requirements  of  S.  119A  has   largely contributed  to the irregularity of the procedure  followed. It  is a trite saying that it is duty of the Court  to  take care that the act of the Court does no injury to any suitor. The  Court is by statute not obliged to dismiss  the  appeal for failure to comply with the requirements of S. 119A :  it has   therefore   jurisdiction   having   regard   to    the circumstances,   either  to  permit  rectification  of   the mistake, or to decline to proceed with the appeal which does not comply with the statutory requirements.  In the  present case  we think that the High Court erred in not taking  into consideration the conduct of the office of the Registrar  in accepting  the  deposit  of  costs  and  also  a  ’defective presentation   of  the  appeal  which  contributed  to   the irregularity of the procedure adopted by the appellant.   In our view the High Court should have directed that the amount which  had been deposited under the tender form  on  October 21,  1963,  be deposited in the Government Treasury  in  the name  of the Election Commission, and a Government  Treasury receipt be obtained in favour of the Election Commission  as security  for costs of the appeal preferred before the  High Court. Accordingly we set aside the order passed by the High  Court and direct that the High Court do give an opportunity to the appellant  to rectify the error committed in the  matter  of securing  the costs of the appeal in the manner already  set out and that the High Court do proceed to hear the appeal on the  merits after the Government Treasury receipt in  favour of the Election Commission as security for the costs of  the appeal has been obtained and filed in the record.  We do not think  that  because of the failure to file  the  Government Treasury  receipt,  the jurisdiction of the  High  Court  is affected  or  that the appeal may be regarded  as  otherwise barred by the law of limitation. The appeal is allowed.  The appellant had acted  irregularly and somewhat negligently and the respondent was justified in bringing  to the notice of the High Court the defect in  the presentation  of  the appeal.  Even at the  hearing  of  the appeal he tried to justify his action.  In the circumstances the  appellant must pay the costs of the respondent of  this appeal.   Costs  in  the High Court will  be  costs  in  the appeal. Appeal allowed. 123