- (1.) S. R. Singh, J. Petitioner was elected as Pradhan, Gram Panchayat Taria, Vikas Khand Chandauli, District Varanasi. The 2nd respondent, who was also in the reckon ing in the election of Pradhan, canvassed the legality of petitioner's election by means of election petition under Section 12-C of the U. P. Panchayat Raj Act (In short the Act' ). On receipt of notice of the election petition, the petitioner filed a written statement, inter-alia on the ground that the election petition was not maintainable in that it was not accompanied by a Treasury challan showing that the amount of Rs. 50 had been deposited in the personal Ledger Account of the Gram Panchayat concerned as security. The petitioner posited the issue regarding maintainability of the application under sub-section (1) of Section 12-Cofthe Act, to be decided as a preliminary issue. The Prescribed Authority by means of the impugned order dated 27-3-97 held that ini tially when the election petition was filed, a sum of Rs. 5/- was deposited towards security, but later on, the election petitioner deposited Rs. 50/- towards security and therefore, it was considered not feasible to dismiss the election petition.
(2.) SRI Sankatha Rai, appearing for the petitioner, canvassed that the deposit of Rs. 5/- vide treasury challan (Annexure 4 to the writ petition) was not in the Personal Ledger Account of the concerned Gram Panchayat, rather, it was in the Personal Account No. 8443 of the District Gaon Fund and the subsequent Treasury Challan (Annexure 5 to the writ petition) also does not bespeak that the deposit of Rs. 50/- was made in the Personal Ledger Account of the Gram Panchayat. Rather, it would appear, it was made in Gaon Fund Account No. 8443. It is urged by the learned counsel that in view of the first proviso to Rule 3 (1) of the U. P. Panchayat Raj (Settlement of Election Dispute) Rules, 1994 (In short the 'rules'), the application under Section 12 (C) (1) of the Act was not liable to be 'entertained' in the absence of a treasury challan showing that the amount of Rs. 50/- had been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security. The learned counsel urged that in view of clause (vi) of Rule 4 of the Rules, the application on merits to be dismissed. The learned counsel placed credence upon a decision of this Court in Ramesh Chand Tiwari v. Addl. District Judge, Basti and others, 1986 Revenue Judgment 106. SRI Wajahat Hussain appearing for the respon dent, repudiated the submissions made by SRI Sankatha Rai and urged that the Treasury Challan (Annexures 4 and 5) reflect unmistakably that the amount was deposited towards security account in rela tion to the election petition relating to the office of Gram Pradhan of the Gram Panchayat concerned. The learned counsel further urged that the account number 8443 in the treasury challan was mentioned by the officials of the office the District Panchayat Raj Officer, Varanasi and no blame can at tach to the election petitioner if the account number mentioned in the treasury challan is not the Personal Ledger Account of the concerned Gram Panchayat. The learned counsel also urged that even if Gaon Fund Account No. 8443 is not the Personal Ledger Account of the concerned Gram Panchayat, the election petition would not be liable to be dismissed in that the provisions contained in Clause (vi) of Rule 4 (1) of the Rules, partake of the nature of being directory and not mandatory. Having devoted my thoughtful con siderations to the submissions advanced at the Bar, I am of the firm view that an elec tion petition under Section 12 (C) (1) of the Act, which is unattended by the Treasury Challan as required under sub-rule (1) of Rule 3 is not liable to be dismissed at the threshold of the institution of the election petition in that what is comprehenqed by Proviso to sub-rule (1) of Rule 3 of the Rules, is that no such application shall be "entertained" unless it is accompanied by Treasury Challan to show that the amount of Rs. 50/- has been deposited in the Per sonal Ledger Account of the Gram Panchayat concerned as security. The word 'entertained' has not been used in the literal sense of 'presented', 'moved', or 'filed'. Rather, it carries connotation of the con sideration on merit. It necessarily implies that if the application under Section 12-C (1) is accompanied with the treasury challan showing that the security amount has been deposited in the Personal Ledger Account of the Gram Panchayat concerned, the ap plicant may be given an opportunity to deposit the amount and in case the ap plicants till fails to do so, the application may be rejected under clause (vi) of sub-rule (1)ofrule4of the Rules. In Dhoom Chand v. Chaman Lal, AIR 1962 Alld. a Division Bench of this Court was considering the meaning of the word 'entertain' occurring in the proviso to Order XXI, Rule 90 of the C. P. C. The Division Bench held as under: "the dictionary meaning of the word 'entertain' is to deal with; to admit to considera tion. In its application to clause (a), the word bears the meaning of admitting to consideration. That clause enjoins the Court to consider the applica tion on any ground which could have been taken on or before drawing up the sale proclamation. In its application to clause (b) the word would bear the same sense. Accordingly, while the Court can not refuse to take an application which is not backed by deposit of security, it cannot judicially consider it. It is expected that the Court would ordinarily give an opportunity to the applicant to comply with clause (b) and would reject the ap plication if the clause (b) were still not complied with. " Relying upon the said decision, another Division Bench of this Court in Kundan Lal v. Jagan Nath, AIR 1962 All 547; has held that the expression "entertain" occuring in Order XXI,, Rule 90, C. P. C. does not mean the same thing as the filing of the application or admission of the applica tion by the court and that a court hearing an application under Order XXI, Rule 90 can only be said to entertain the application when it is actually disposing of the applica tion on merits and the mere filing of the application by the judgment-debtor would not be its entertainment by Court. The view aforesaid has been upheld by the Supreme Court in Hindustan Commr. Bank Ltd. v. Punnu Sahu (dead) represented through Legal Representatives (1971) 3 SCC 124, wherein it has been held that expression "entertain" in proviso to clause (b) of Order XXI, Rule 90 (as amended by Allahabad High Court) means to "adjudicate upon" or "proceed to consider on merits" and not "initiation of proceeding". The same mean ing has been given to the word "entertain" occurring in different Acts which came up for consideration in Mahendra Pal Singh v, 2ndaddl District Judge, (1993) 1 ARC 210 and Mis Lakshmi Ratan Engineering Works Ltd v. Asstt. Commr. (Judicial) Sales Tax, AIR 1968 SC 488.
(3.) RULE 24 of the U. P. Panchayat Raj RULEs which has since been omitted by RULE 6 of the U. P. Panchayat Raj (Settlement of Election disputes) RULEs 1994, came up for consideration in Shamsher Singh v. 7thaddl. District Judge Varanasi and others, 1991 Revenue Decisions 439. It has been held therein that in case the deposit of security amount is made before expiration of the period of limitation, prescribed for filing election petition, it would amount to sub stantial compliance of the related provisions. Accordingly, the Court found no force in the arguments that the election petition would be defective merely because, it was not accompanied with a treasury challan testifying to the deposit of Rs. 5/- towards security. In M. Karunanidhi v. H. V. Handa, AIR 1983 SC 558, the Supreme Court was considering the scope and ambit of sub-sec tion (1) of Section 117 of the Repre sentation of People Act 1951, which provides that at the time of presentation of election petition, the petitioner shall deposit in the High Court a sum of Rs. 2000/- as security for the cost of the petition and that such deposit shall be made in the High Court according to the Rules of the High Court. The Supreme Court held that the requirement regarding making of security deposit of Rs. 2000/- in the High Court is mandatory and non-compliance of which entails dismissal in limine of the elec tion petition under sub-section (1) of Sec tion 86 of the Representation of People Act 1951 but the requirement of its deposit in the High Court in accordance with the Rules of the High Court was held to be directory. In that case the deposit of security was made with the Reserve Bank to the credit of the Registrar, High Court Madras. The argument was that according to the rules, the security amount ought to have been deposited in cash with the Registrar. The Court repelled the contention and held that the deposit in the Reserve Bank to the credit of the Registrar, High Court Madras was substantial compliance of the 2nd Part of sub-section (1) of Section 117 of the Rep resentation of People Act.;