- (1.) D. K. Seth, J. Sri M. D. Singh, learned counsel appearing on behalf of the petitioner has raised an interesting question of law, namely as to whether the time, for depositing the fees of Rs. 100 as security towards the cost of election petition, prescribed under Rule 7 (7) of U. P. Kshettra Panchayats (Removal of Disqualification and Settlement of Dispute Relating to Disqualification and Membership) Rules, 1994, can be extended even when the same was not tendered before presenting the petition, upon an application made subsequently.
(2.) IN the present case, it is alleged that simply by sheer mistake in the calculation, as pointed out in para 3 of the petition, supported by the records, the petitioner was shown to have been defeated. INasmuch as the petitioner had secured 158 votes against '24' votes secured by the respon dent No. 3 inward numbers to 4 of Gram Panchayat 'bagahi'. The petitioner had polled '145' votes and '143' votes respectively in booch number 130 and 131 against '262' and '145' respectively polled by respondent No. 3 in Gram Panchayat 'gangadharpur' of Ward No. 2 to 11. Therefore, the total votes polled by the petitioner come to '288' in Gangadharpur Panchayat aggre gating to '288' added with the votes polled in Gram Panchayat 'bagahi', the grand total comes to (158 + 145 + 143) 446. Whereas the respondent No. 3 polled (24 + 262 + 145) 431 votes. By mistake the sum total of votes 145+ 143 polled by the petitioner has been shown, as 268 instead of 288. The petitioner, then filed election petition No. of 4 of 1995 without the said security deposit. But however, on 20-7-1995, he sought for permission to deposit the said security upon condonation of delay. The said two applica tions have been dismissed by an order dated 3-8-1995 on the ground that the election petition filed without the security deposit is liable to be dis missed which is Annexure 7 to the writ petition. It is this order which is hereby challenged. The said order has been assailed on the ground that instead of paying the Court fees of Rs. 75 the petitioner had paid the Court fees of Rs. 150 upon an wrong impression and wrong advise of his learned counsel. He further contends that there being no provision similar to Section 86 of the Representation of People Act in U. P. Panchayat Election Rules, more particularly U. P. Kshettra' Panchayat (Removal of Disqualification and Settlement of Disputes Relating to Disqualification and Membership) Rules, 1994 (hereinafter referred to as 1994 Rules) Therefore, the provisions of Rule 7 (7) of the said 1994 Rules is not mandatory but is directory. He further contends that the said amount is the security for payment of cost of the petition. Rule 8 (c) of 1994 Rules provides for realisation of additional security. Therefore, according to him, the security could even be realised at a subsequent stage. He further contends that the deposit of Rs. 150 as Court fees in excess of the requisite court fee of Rs. 75 can also be treated to be deposit on account of security and, therefore, there was short deposit On these grounds he assails the said order and contends that time could be extended by reason of the provi sions contained in Section 148 of the Code of Civil Procedure, which is applicable while deciding such election dispute. Sri O. P. Pandey, learned counsel appearing on behalf of respon dents on the other hand contends that there cannot be any distinction with regard to the election dispute under the Representation of People Act or under the said 1994 Rules. According to him the conditions laid down in Rule 7 (7) of the said 1994 Rules is mandatory. Unless the election petition is accompanied by receipt showing the security deposit, the election tribunal cannot assume jurisdiction. The said condition can, therefore, not be overlooked. Neither the said period can be extended. According to him Code of Civil Procedure does not apply in a proceeding in such dispute and therefore, the court does not have any power to extend time under Sec tion 143 thereof.
(3.) IN order to appreciate the contentions of both the parties, it is necessary to refer to relevant provisions of the Representation of People Act, 1951 (hereinafter referred to R. P. Act, 1951) and the said Rules- which are being dealt with shortly hereinafter. The present election dispute is to be proceeded in the manner pro vided in the said Rules. Rule 7 prescribes the manner of raising question under Section 14 (2) of the U. P. Kshettra Pauchiyats, and Zila Panchayats Adhiniyam, 1961 (hereinafter rrferrad to as the said Act ). Sub-rule (7) of the said Rules provides as under : "manner of raising question under sub-section (2) of Section 14, (1 ). . . . . . . . . . . . . . . (2 ). . . . . . . . . . . . . . . . (7) Before the petition is presented an amount of Rs. 100 as a security towards the costs of the petition shall be deposited in the Government Treasury or the State Bank of India. Every petition shall be accompanied by a receipt showing that the aforesaid security has been deposited. There shall be paid on every petition made under Rule 6 a fee of Rs. 75 in court-fee stamps. " 7 Therefore, it appears that the said sum, is required to be deposited as security towards the cost of the petition and should remain deposited with the Government Treasury. It further contends that fee of Rs. 75 in court fee stamps is to be deposited. In the present case further amount of Rs 75 has been deposited in the form of court fee. The question raised in this case depends on the interpretation of the expression "before the petition is presented", the "security towards the costs of the petition shall be deposited. " 8 Rule 8 (1) (c) of the Rules provides for requiring "further cash security for the payment of the cost incurred or likely to be incurred by any respondent". Which shows that security is also required for the purposes of payment of cost to the respondents, if the petitioner is unsuccessful. 9 In order to appreciate the situation the scheme of the Rules in comparison with the provision of the R. P. Act 1951 are to be looked into. For the present purpose, reference may be made to Rule 8 of the Rules which runs as follows: "8 Procedure before the Judge.- (I) Except as may be otherwise provided the Act or by these rules, the procedure provided in the Civil Procedure Code in regard to suits shall so far as it is not inconsistent with the Act or any provisions of the said rules and so far as it can be made applicable be followed in the hear ing of petition : Provided that- (a) any two or more petitions relating to record the membership of the same person may be heard together ; (b) the Judge shall not be required to record the evidence in full but shall make memorandum of the evidence sufficient in his opinion for the purpose of deciding the case ; (c) the Judge may, at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent ; (d) for the purpose of deciding any issue, shall not be bound to order production of or to receive only so much evidence oral or documentary as he considers necessary ; (e) any person considering himself aggrieved by the decision may apply for review to the Judge within 15 days from the date of the decision and the Judge may thereupon review the decision on any point. (2) The provisions of the Indian Evidence Act 1872 (Act No. 1 of 1872) shall, subject to the provisions of the Act and these rules be deemed to apply in all respects in the proceedings for the disposal of the petition. " 10. The above rule shows that the Code of Civil Procedure has been made applicable while dealing with the election petition where provisions are not inconsistent with the Act or any provisions of the said rules. The provision relating to realisation of further cost, clearly shows that in case the sum of Rs. 100 is not sufficient to meet the cost further cost in addition to the said sum of Rs. 100 required to be deposited while presenting the petition, can be realised. 11. In the absence of any provision a like Section 86 of the R. P. Act 1951 in the present rule read with Rule 8 above, it appears that the deposit under Rule 7 (7) of the Rules was never intended to be placed at the same footing as that of Section 86 of the R. P. Act, 1951. The same is deterent or for preventing speculative application. Even if in my view if the said amount is not paid alongwith the election petition, by reason of clause (c) of sub-rule (1) of Rule 8 of the Rules the same can be realised at any stage. It is the discretion of the court not to proceed any further without such security being deposited and may impose time limit within which unless the security is deposited the petition would stand dismissed. 12. In order to substantiate the distinction it is necessary to refer to Sections 86, 87 and 117 of the Representation of the People Act, 1951 (hereinafter referred to as R. P. Act, 1951 ). The said Sections 86, 87 and 117 provide as under : "86. Trial of election petition.- (I) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Explanation.-An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section 98. " "87. Procedure before the High Court.- (I) Subject to the pro visions of this Act and of any rules made thereunder every election petition shall be tried by the High Court, as nearly as. may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits : Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing to examine any witness or wit nesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witness is doing so on frivolous grounds or with a view to delay the proceedings. (2) The provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition. 117. Security for costs.- (1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with rules of the High Court a sum of two thousand rupees as security for the costs of the petition. (2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct. " 13. Thus Section 117 (1) is pari materia same with Rule 7 (7) of the 1994 Rules. While Section 117 (2) is pari materia same with Rule 8 (l) (c) of the said 1994 Rules. But there is no provision under the rule similar to that of Section 86 which creates a mandate with the use of expression "shall dismiss". Though it has been provided that the said security deposit is to be deposited before presenting the petition. But nothing has been provided as to the consequence of non-deposit of such security. 14. That apart while the Code of Civil Procedure is applicable under Rule 8 (1) of the Rules to an extensive extent under Section 87 of the R. P. Act, 1951 the same is applied as nearly as may be by the High Court and subject to the provisions of R. P. Act. Thus the distinction is that the High Court has discretion to follow the procedure as nearly as may be in accordance with the procedure provided under the Code of Civil Procedure, applicable to the trial of suits. Therefore, the Code of Civil Procedure, as such has not been made applicable while deciding the election petition under the R. P. Act. On the other hand by virtue of Rule 8 (1) of the rule except as provided in the Act or by the rules the procedure provided in the Code of Civil Procedure in regard to suits shall be applicable except in so far as it is inconsistent with the Act and the Rules. Therefore, the entire procedure laid down in the Code of Civil Procedure has been made applicable except the provisions which are inconsistent with the provisions of the Act and the Rules. 15. Then again Rule 10 of 1994 Rules provide as under : "10. Orders of the Judge.- (1) (a) If the petition is found to be frivolous the Judge shall dismiss the petition and award costs at his discretion. (b) An order for costs passed by the Judge shall be executed by him on application made in that behalf in the same manner as if it were a decree passed by him in a suit. (2) If the Judge finds them that member against whom the petition has been filed was wrongly chose or has ceased to remain eligible for membership of the Kshettra Panchayat he shall either- (a) declare a casual vacancy to have occurred, or (b) declare another candidate to have been duly chosen. " 16. The above rule shows the Judge may dismiss the petition and award costs at his discretion. Though the question of dismissal is thought of but non-compliance of Rule 7 (7) has not been included as ground for dismissal alike Section 86 of the R. P. Act, 1951. It may exceed even to Rs. 100. It further provides that such an order of costs can be executed by him on an application made in that behalf as if it were a decree passed by him in a suit. 17. Rule 14 of 1994 Rules provides as under : "14. Disposal of security deposited and recovery of costs.- (I) Sub ject to the provision of sub-rule (1) of Rule 10 cost if any, awarded to any respondent by the Judge shall be recoverable out of the security deposited under sub-rule (',) and Rule 8 and the balance of the security deposit, if any shall be refunded as soon as may be after the disposal of the petition to the petitioner. (2) The costs, of any portion thereof, awarded to any respondent and not recovered from the security deposit referred to in sub-rule (1) and costs payable to a petitioner from any respondent shall be recoverable in accordance with the provisions of clause (b) of sub-rule (1) of Rule 10. " (3) While making his orders under Rule 10, the Judge shall also pass orders about the recovery of cost and the refund of security deposit in accordance with the provisions of the rule and the District Magistrate, shall carry out the orders accordingly on receipt of a copy of the Judge's orders under Rule 13. " 18. This rule shows that the cost deposit are to be adjusted. Similar provisions relating to cost and security are indicated under Sections 199* 121 and 122 of the R. P. Act, 1951 which runs as follows : "119. Costs.-Costs shall be in the discretion of the High Court: Provided that where a petition is dismissed under clause (a) of Sec tion 98 the returned candidate shall be entitled to the costs incurred by him in contesting the petition and accordingly the High Court shall make an order for costs in favour of the returned candidate. 121. Payment of costs out of security deposits and return of such deposits.- (I) If in any order as to costs under the provision of the part there is a direction for payment of costs by any party. to any person, such costs shall, if they have not been already paid, be paid in full, or so far as possible, out of the security deposit and the further security deposit, if any, made by such party under this part, on an application made in writing in that behalf within period of one year, from the date of such order to the High Court by the person in whose favour the costs have been awarded. (2) If there is any balance left of any of the said security deposits after payment under sub-section (1) of the costs referred to in that sub-section, such balance, or where no costs have been awarded or no application as aforesaid has been made within the said period of one year, the whole of the said security deposits may, on an application made in this behalf in writing to the High Court, by the person by whom the deposits have been made, or if such person dies after making such deposits by the legal representative of such person, be returned to the said per son or to his legal representative, as the case may be. '' 122. Execution of orders as to costs.-Any order as to costs under the provisions of this part may be produced before the principal civil court of original jurisdiction within the local limit of whose jurisdiction any person directed by such order to pay any such of money has a place of residence or business or where such place is within a presidency town before the court of small causes having jurisdiction there and such court shall execute the order or cause the same to be executed in the same manner and by the same procedure as if it were a decree for the pay ment of money made by itself in a suit. Provided that where any such costs or any portion thereof may be recovered by an application made under sub-section (1) of Sec tion 121, no application shall lie under this section (within a period of one year from the date of such order) unless it is for the recovery of the balance of any costs which has been left unrealised after an application has been made under that sub-section owing to the insufficiency of the amount of the security deposits referred to in that sub-section. " 19 Thus it appears that though there are certain similarities but in absence of the specific provisions as contained Section 86 it is difficult to import self-same principle in the present case as is applied in the election dispute under the R. P. Act, 1951. While enacting the present rue provisions seems to have been borrowed from the R. P. Act, 1951. But the same has not been borrowed as it is. While incorporating almost similar provisions the Legislature in its wisdom has molded the same to suit the purpose of the present dispute. While borrowing almost similar provision, certain deviation has been made in the present rule from the R. P. Act, 1951. This deviation expresses the intention of the Legislature that it never intended to place the election dispute under this Act at par with that of the R. P. Act, 1951 so far as the consequence provided in Section 86 of the R. P. Act, 1951. The Legislature while enacting the present rule were aware of the provisions of the R. P. Act, 1951 Provision similar to Section 86 of the Act has been omitted. Such omission is deliberate and wilful. The Legislature never intended that the election petition should be dismissed only on non-compliance of Rule 7 (7) of the rules. Had it been so in that event it could have incorporated similar provision. Had it been the intention of Legislature in that event it would have expressed the same within the ambit of legislation itself. From a comparison of the two Statutes, as indicated above, I do not find anything to hold that provision similar to Section is implied and implicit in Rule 7 (7) of the Rules. Rule 7 (7) read with Rule 8 (1) and Rules 10 and 14 makes it clear that in absence of the provision similar to Section 86 that non-deposit would result in the dismissal of position. Inasmuch as even if the cost is not deposited the same can be recovered, for which provision has been pro vided. The court may insist that unless cost is deposited the application may be dismissed. 20. As observed earlier Rule 8 (1) make the provision of the Code of Civil Procedure applicable for being followed so far as the provisions of the Code are not inconsistent with the said rule while the provisions of the Code were made subject to the provision of the rules which overrides in the case of inconsistency alone. A reading of Rules 7 (7) and 8 (1) in the absence of any provision akin to Section 86 of the R. P. Act, 1951, it appears, that provision relating to cost as provided in Section 35 of the Code is appli cable. A reading of the scheme of the entire rule does not show that the provision of Section 35 of the Code are inconsistent with any of provision contained in the rules. In absence of any provision similar to Section 86 of the R. P. Act, it does not appear that application of Sections 148 and 149 of the Code could be precluded. The provisions of Sections 148 and 149 does not appear to be inconsistent with the rules. On the other hand there is some similarity with Rule 10 of the said rule with those of Section 35 of the Act. The rule is silent with regard to the consequence of non-deposit of the said sum of Rs. 100 while (before) presenting the petition. There is also no provision as to what would be the effect of payment of deficit court fees while presenting such petitions. Therefore, it cannot be said that Section 149 is precluded in its application to a dispute under the present rule. Therefore by no stretch of imagination it can be said that while Section 149 would be applicable in respect of payment of court fee, which is one part of Rule 7 (7 ). Section 148 of the Code cannot be applied for the other part of the said rule 7 (7) relating to deposit of the security at the time of presentation of the petition. 21. In the case of Mohant Ramdas v. Ganga Dass, AIR 1961 SC 882 the jurisdiction of the court to extend time under Sections 148 and 149 of the Act even after expiry of the period fixed peremptorily has been recognised on the ground that these procedures are though peremptorily but are in essence in terrorem. It was further held that provisions of Sections 148 and 149 were inserted to clothe the Court with ample power to do justice to a litigant, if such cause was made out in the explanation. Drawing inspir ation from the said judgment in the present case, it can be said that the security to be deposited under Rule 7 (7) is intended to use as a deferent Incorporation of the provision for realisation of cost in the absence of specification of the consequence of non-deposit does not make Sections 148 and 149 of the Code inconsistent with the rules. 22. It is accepted position that under Section 148 of the Act time can be extended even when it has expired. In the present case the court could have rejected the application on the date of its presentation on the ground of non-compliance of Rule 7 (7) but it had not done so. The court could have extended the time under Section 148 which it had also not done. Added with the fact that a sum of Rs. 75 is also paid in excess by way of court fee which goes to show that the petitioner has shown bona fide. 23. Sri M. D. Singh, learned counsel for the petitioner relied on the case of Jalilun Nishan v. Sardar Arjun Singh, 1986 AWC 1122, and contend ed that in the said case ex pane decree was set aside on the condition of deposit of certain cost. But the Civil Judge had dismissed the application on the ground that he did not comply with the order for depositing the costs. 24. It was held in the said case that the learned Judge failed to note the provision of Section 148 of the Act. Such proposition is an established proposition of law in case the provision of Rule 7 (7) is "not held mandatory to the extent of having the effect of dismissal of position, and if it did not attract the consequence as contained in Section 86 of the R. P. Act, in that event there is no doubt that Section 148 of the Code of Civil Procedure would be applicable. 25. The other decision cited by Sri M. D. Singh, in the case of Jogdhayan v. Babu Ram, AIR 1983 SC 57, in which delayed deposit was held to be acceptable on the ground that bona fide was shown by the person depositing the amount. 26. While interpreting the Statute it is necessary to harmonise the different provision contained therein. All the provisions are to be re conciled with each other so as to give consistent meaning. The intention of the Legislature is to be deciphered from the provision of the rule which may be expressed or implied. In the present case the Legislature in its wisdom omitted to incorporate the provision similar to Section 86 of R. P. Act, 1951, has impliedly expressed its intention to treat the election petition under the present rule at a different position from that of Sec tion 86 of R. P. Act, 1951. At the same time the Legislature has in its wisdom nor expressed its intention to have the petition dismissed upon non- compliance of Rule 7 (7) of the rules. To reconcile the harmonious inter pretation of Rule 7 (7) read with Rule 8 (1), as has been observed earlier clearly implies that the provision of Rule 7 (7) was not mandatory as com* pared to Section 117 of the R. P. Act, 1951 by reason of Section 86 of the R. P. Act, 1951. In my view because of the reasons given above, Rule 7 (7) is subject to Sections 35 to 138 and 149 of the Code read with Rules 8 (1) 10 and 14 of the said rules. 27. Therefore, while deciding the election dispute the Court has power to extend time for compliance of Section 7 (7) even though the same is not applied at the time of presentation of such petition provided bona fide is proved and sufficient cause is made out, it is the duty of the court at the threshold to see whether Rule 7 (7) has been complied with or not and in such event before issuing notice it should insist upon the compliance of the said rule by the petitioner and only upon default of steps under Sections 148 and 149 he may dismiss the same. In a case where the court has not taken care of the same, in that event it cannot dismiss the application at a later stage when notices were issued despite non- compliance of Rule 7 (7) of the rules inasmuch as it implies that the court has entertained the application despite non-compliance of Rule 7 (7) of the rules and therefore, before dis missing such application after such entertainment thereof unless opportunity to comply with Rule 7 (7) is given to the applicant, the court would fail to do justice. 28. In the present case it does not seem that there is want of bona fide on the part of the applicant. As contended by Sri M. D. Singh, it might be a case of wrong advise by the counsel. In India awareness of the legal procedure amongst the subject is altogether absent. The common people wholly rely upon their counsel. Therefore lapse in the procedure may not be stumbling block in the way of dispensing justice. The procedures are hand maids of justice and should be interpreted in the manner so that justice is ensured. 29. In view of the above observation in my view rejection of the application cannot be sustained and has to be considered on the basis of its merit. In case bona fide is shown and sufficient cause is made out in that event the court may exercise its power under Section 148 of the Code and direct deposit of such costs as it may in its discretion within the specified time, in default whereof he may dismiss the proceeding. 30. In the result the impugned order, dated 3-8-1995 is hereby set aside and the matter is remanded to the court below for deciding afresh. This writ petition is disposed of accordingly. 31. However, there will be no order as to costs. Petition disposed of. .;