Shah, J. - (1.) 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.100(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. l19A 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.
(2.) Thc 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 prefer 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." 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 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 duty credited in the name of the appellant as "security deposit". The tender form for payment into Court of the security for costs, as competed by the office of the Registrar, High Court, Rajasthan, was as follows: "Original tender:77 1/ 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 behalf money is tendered:Shri Kumaranand. 2. Name of parties and number of the suit:Kumaranand vs. Brij Mohan Lal D. B. Election Appeal 1963. 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 Stamp. Signature of Cashier Dated Dated Receipt acknowledged in Registrar 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. N.B. -To be filed with the record Sd/- Prem Raj, 31-10-63 Signature of Account. 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 vs. 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.
(3.) Section 121 of the Act insofar as it is material, by sub-s. (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 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.l19A 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 Section 119-A. It may also be observed that by cl.,(4) of Section 90 as originally enacted for failure to comply with the provisions of Section l17 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 had 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 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. l17. By the amendment made by Act 40 of 1961, reference to S. l17 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 is obliged to dismiss the election petition but for default in complying with the provisions of S. l19A no such penalty is imposed. As observed in Jagan Nath vs. Jaswant Singh, (1954) SCR 892 at page No. 895 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 it law or a suit in equity but is a purely statutory proceeding unknown to the 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.";