A.D.Koshal, J. - (1.) THE facts giving, rise to this petition under Articles 226 and 227 of the Constitution of India are not in dispute and may be shortly stated. The seven petitioners and respondent No 2 (hereinafter referred to as the respondent) were candidates for election as Panches to the Gram Panchayat in village Seenkh, Tahsil Panipat, District Karnal. All of them deposited the requisite amount of security with the village Lambardar, who however did not issue any receipt to any one of them, and on that account no such receipt was attached to any of the nominate on papers filed by them with the Returning Officer, before whom no objection was taken by any of the contestants that any nomination paper was invalid for the reason that the receipt for the security deposit was not appended thereto. All the eight nomination papers were accepted by the Returning Officer and in the resultant contest of the ballot which was held on the 29th June, 1971, the seven petitioners were declared elected while the respondent remained unsuccessful.
(2.) THE respondent filed an election petition under Section 13 -B of the Punjab Gram Panchayat Act, 1952 (hereinafter referred to as the Act). The same was allowed by, the Executive Magistrate 1st Class, Panipat (respondent No. 1) on the ground that the election of the petitioners was, void inasmuch, as none of them had attached the receipt for the deposit of security with his nomination paper in accordance with the requirement of Rule 7(1) of the Haryana Gram Panchayat Election Rules, 1971 (hereinafter referred to as the Rules). Reliance by the learned Magistrate was placed on Nasib Singh v. J.S. Puri, (1960) 71 PLR 240 in which Tuli, J., interpreted Rule 7(1) of the Gram Panchayat Election Rules, 1960, which is in terms identical, with Rule 7(1) of the Rules, to mean that if the, receipt evidencing the deposit of security was not produced along with a nomination paper, such paper must be rejected. 2. The case was originally laid before Sandhawalia, J., who on a detailed consideration of Rule 7(1) of the Rules and the judgment in Nasib Singh's case. (supra), expressed the, opinion that the law laid down in that case was not correct and that the, production of the receipt evidencing the deposit of security by a candidate along, with his nomination paper could at best be regarded as a direction, son compliance with which would not be fatal to the validity of the nomination paper it was at his instance that the case was referred to a larger Bench, and is before us. Rules 6 and 7(1) of the Rules may be reproduced here with advantage : - - 6. Nomination of Candidates. (1) Any person who is not disqualified under sub -section (5) of Section 5 of the Act may nominate himself as a candidate for election as Panch ; provided that on the date, time and place fixed under rule 3, he delivers in person to the Returning Officer a nomination paper completed in the prescribed form. (2) The nomination of each candidate shall be made on a separate nomination paper in Form I and must be subscribed by the candidate himself as assenting to the nomination. (3) The nomination papers of a member of the Scheduled Castes shall also be accompanied by a declaration verified by a Magistrate, Kanungo, Patwari, Lambardar or a member of a local authority or the Haryana State Legislature that the candidate is a member of the Scheduled Castes, specifying the particular caste to which the candidate belongs. 7. Deposits. (1) Each candidate nominated under the provisions of rule 6, shall, at or before the time of delivery of his nomination paper, deposit or cause to be deposited, a sum of Rs. 50/ - and in the case of a Scheduled Caste candidate a sum of Rs. 20/ - either in the treasury or sub treasury or with the local Lambardar or the Returning Officer and produce a receipt obtained from the treasury or sub -treasury or from the Lambardar, or the Returning Officer, as the case may be, and no candidate shall be deemed to be duly nominated unless such deposit has been made. In holding that the production of the receipt along with the nomination paper was a sine qua non for the letter's validity under the corresponding rule 7(1) of the Gram Panchayat Election Rules, 1960, Tuli, J., observed in Nasib Singh's case : The question arises whether the provisions of Rule 7 are mandatory or merely directory. The bare reading of this rule shows that its provisions are mandatory. The receipt has to be appended to the nomination paper in order to prove that the security deposit has been made and the only mode to prove that fact has been prescribed in this rule, that is, the production of the receipt obtained from the person with whom the deposit is made and no other mode of proof of deposit of security is allowed. Since admittedly no receipt proving the deposit of security had been produced with the nomination papers by Respondents 2 and 3, their nomination papers Were improperly accepted and the improper acceptance of their nomination papers has prejudicially affected the result of the election. With all respect, we cannot subscribe to this view. It is to be noted that the form in which a nomination paper is to be filed and the documents which must accompany it are the subject -matter of Rule 6. Rule 7(1) does not talk of any such documents. On the other hand, it requires that each candidate shall, at or before the time of delivery of his nomination paper - - (i) make a deposit, and (ii) produce a receipt evidencing the deposit, and further declares that - - no candidate shall be deemed to be duly nominated unless such deposit has been made. It is clear that despite the use of the words "shall, at or before the time of delivery of his nomination paper" in relation to both the, requirements of making the deposit and producing the receipt, these two requirements have been placed by the rule -making authority on two different pedestals in so far as the consequences flowing from a noncompliance with them are concerned. A failure to make the deposit results in the serious consequence of the nomination being invalidated. No such penalty is, however, stated to be the desert of a candidate who merely fails to produce the receipt. Obviously, the requirement of making the deposit was regarded as the substance of what the rule seeks to accomplish and a non -compliance with it as a material irregularity entailing a serious penalty ; while the requirement of the production of the receipt was not considered to be of any real importance that no penalty was declared to flow from its non -observance. The former must, therefore, be held to be a mandatory requirement of the rule and the latter only a directory one. Had the rule -making authority intended not to make any such distinction and to invalidate the nomination in the event of non -compliance with either requirement it would have stated so in explicit terms, and the relevant clause in Rule 7 would have been - - and no candidate shall be deemed to be duly nominated unless such deposit has been made and such receipt has been produced.
(3.) WE are further of the opinion that there are good reasons for a failure to produce the receipt not being declared to be a ground for the invalidity of the nomination. While it is the deposit which the rule seeks to ensure, the production of the receipt is provided for merely as a method of proof of the deposit. Now if a deposit is made but for one reason or the other the candidate making it is careless enough not to obtain or is not given a receipt or having obtained it misplaces it and on that account cannot produce it, it would not be just to visit him with the same consequences as would follow from a failure to make the deposit itself. Again, if the deposit is made to the Returning Officer as the time of delivery of the nomination paper, he would have personal knowledge of the deposit having been made and the production of the receipt would be a surplusage and serve no useful purpose. The distinction appears to have been advisedly made.;