M.Y. GHORPADEversusSHLVAJI RAO M. POAL AND ORS.

                            M.Y. GHORPADE                                      A
                                     V.

                  SHlVAJI RAO M. PqAL AND ORS.

                          SEPTEMBER 4, 2002

 [G.B. PATTANAlK, DORAISWAMY RAJU AND S.N. VARIAVA, JJ.]                       B


      Election Laws: Representation of People Act, 1951; Sections 81, 86 and
117: Election Petition-Section I 17-Security of cost of petition-Deposit of
amount by person other than Election Petitioner-Challenge of-Held, since C
cost of petition has been deposited, it could be considered as compliance of
provisions of Section 117-Thus Election Petitions maintainable.

      In connection with the maintainability of Election Petition, the
question that arose for consideration in this appeal was whether the deposit
of the amount by a person other than the Election Petitioner as security       D
for the costs of the petition, could be treated as compliance of Section 117
of the Representation of People Act.

     Answering the question in the affirmative and dismissing the appeal,
the Court
                                                                               E
      HELD: I.I Provision of Section 117 of the Representation of People
Act requires deposit of Rs. 2,000/- as security for the cost has to be made
at the time of presenting an Election Petition. The object of having the
aforesaid provision could be to discourage entertaining frivolous Election
Petitions and to make provision for cost in favour of the parties who
ultimately succeed in the Election Petition. Sub-section (2) of Section 117    F
authorises the High Court to call upon an Election Petitioner during the
course of the trial of an Election Petition, to give such further security
which may be necessary, depending upon the facts and circumstances of
the case. It would, therefore, be apparent that the requirement of making
a security deposit of Rs. 2,000 is mandatory and the same hi.s to be made      G
while presenting an Election Petition, but the mode of deposit as well as
the person who could make a deposit has to be complied with in
accordance with the rules of the High Court in question and, as such has
been held to be directory in several decisions of this Court.
                                                      1102-F, G, H; 103-Al
                                                                               H
                                    99
    100                       SUPREME COURT REPORTS (2002) SUPP. 2 S.C.R.

A          1.2. In the instant case, sin,ce the evidence of the Election Petitioner
    as well as the evidence of Respondent No.5 unequivocally point out that
    it is the Election Petitioner who deposited the requisite amount, there is
    no infirmity with the conclusion of the High Court that there has been
    compliance of Section 117 of the Act and consequently the Election Petition
B   has been rightly held to be maintainable and could not have been dismissed
    under Section 86 on the ground of non-compliance of Section 117 of the
    Act. 1105-A, Bl

         M. Karunanidhi etc. v. H. V. Hande and Ors. etc., 119831 2 SCR 629
    and K. Kamraja Nadar v. Kunju Thevar and Ors., I19591 SCR 583, relied on
c        Charan Lal Sahu v. Nandkishore Bhatt and Ors., 11974) 1 SCR, 294
    and Aeltmesh Rein v. Chandula/ and Ors., !198113 SCR 142, distinguished.

            Rajendra Singh and Ors. etc. v. Smt. Usha Rani and Ors. etc., 119841
    3 SCR 22, referred to.
D           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1734 of
    2001.

        -From the Judgment and Order dated 28.11.2000 of the Karnataka
    High Court in l.R. No. of 2000.
E        S.S. Javali, N.N. Rao. N. Reddy and H.D. Amaranathan, for the
    Appellant.

            Balaji Srinivasan, for the Respondents.

            The Judgment of the Court was delivered by
F
         PA TTANAIK, J. This appeal is directed against the order dated
  28.11.2000 of the Kamataka High Court passed in an Interlocutory Application
  No. 31 of 1999. The appellant was declared elected to the Kamataka Legislative
  Assembly from 35-Sandur Assembly Constituency in the Election held during
G September 1999. Respondent No. 5, Heroji Lad had also contested the said
  election and had secured the second highest number of votes. Shivaji Rao
  Poal, who was the Election Agent of said respondent no. 5, filed the Election
  Petition under Section 81 of the Representation of People Act. 1951
  (hereinafter referred to as 'The Act') challenging the election of the appellant
  on various grounds including the ground of commission of corrupt .practice.
H In accordance with the prescribed procedure. the appellant on being served
                 M.Y. GI-IORPADE v. SHIVA.Tl RAO M. POAL (PATTANAIK. J.]             ] OJ

      with the notice of the Election Petition, appeared before the High Court and A
      filed an application for dismissal of the Election Petition under Section 86 of
      the Act on the ground that there has been non-compliance of Section 117 of
      the Act. The High Com1 by the impugned order having rejected the preliminary
      objection and having held the Election Petition to be maintainable, the present
      appeal has been preferred. The only question that arises for consideration in B
      the appeal is whether there has been non-compliance of Section 117 of the
      Act? Section 86 of the Act in Chapter III deals with the trial of Election
      Petition and Section 86(1) states The High Court shall dismiss Election Petition
.     which does not comply with the provisions of Section 81 or Section 82 or
      Section 117. Section 117 of the Act deals with the security for cost and reads
      thus:-                                                                           C
             I I 7. Security for costs.(!) at the time of presenting an election petition,
             the petitioner shall deposit in the High Court in accordance with the
•            Rules of the High Court a sum of two thousand rupees as security for
             the costs of the petition.
                                                                                             D
             (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."

            There cannot be any dispute that if the High Court comes to the
      conclusion that the Election Petition had not complied with the provisions of          E
      Section 117, then that Election Petition has to be dismissed.

            The appellant alleged that a sum of Rs. 2,000 had been deposited in the
      High Court of Karnataka by Heroji Lad, Respondent No.5, and not by Shivaji
      Rao Poal, the Election Petitioner and, therefore, there has been non-compliance
      of Section 117 of the Act, inasmuch as under the aforesaid provision the F
...   requirement of law is that the petitioner shall deposit in the High Court in
      accordance with the Rules of the High Court a sum of Rs. 2,000 as security
      for the cost of the petition. The High Court considered the averments made
      in the Election Petition to the effect that the petitioner had deposited the cost
      of Rs. 2,000 in the name of respondent no.5 and also the evidence of G
      respondent no. 5 indicating that he had never deposited the security amount
      of Rs. 2,000, and it is the Election Petitioner who had deposited, and considered
      the provisions of the Rules of Karnataka High Court as well as the document
      Exhibit P-5, which had been enclosed to the Election Petition, and ~ame to
      hold that the deposit in question had been made by the Petitioner and the
      same has to be taken as security for the cost of the Election Petition, and as H
    102                       SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A such there has been compliance of Section 17 of the Act. In coming to this
    conclusion the.High Court relied upon the decisions of the Court in the cases
    of Chandrika Prasad. Budhinath .Jha. Kamraja Nadar and M. Karunanidhi.

        Mr. S.S. Javali. learned senior counsel appearing for the appellant
  contended with force tnat the conclusion. of the High Court is wholly erroneous
B and by no stretch of imagination the amount deposited as cost under Exhibit
                                                                                     -
  P-5 can be construed to be a deposit made by the Election Petitioner Shri
  Shivaji Ra.o· Poal, and therefore, the Election Petition ought to have been
  dismissed for non-compliance of the mandatory requirements of Section 117
  of the Act as provided in Section 86(1). Mr. Javali, the learned senior counsel
C relied upon the decisions of this Court in the case of Aeltemesh Rein v.
  Chandula/ Chandrakar and Ors., [1981] 3 Supreme Court Reports 142, Charan
  Lal Sahu v. Nandkishore Bhatt and Ors., [1974] I Supreme Court Reports
  294, Rajendra Singh and Ors. etc. v. Smt. Usha Rani and Ors. etc., [1984].
  3 Supreme Court Reports 22 and M Karunanidhi etc. v. H. V. Hande and
  Ors. etc, [1983] 2 Supreme Court Reports 629. Mr. Srinivasan, learned
D counsel appearing for the respondent, on the other hand contended, that the
  Act having provided for deposit of Rs. 2,000 as security for the cost with the
  sole purpose of discouraging frivolous Election Petition and for compensating
  the parties on the basis of the result of the Election Petition, and there being
  no requirement of law as to who could deposit the said amount, in the case
E in hand the amount having been deposited by the Election Petitioner himself
  the High Court rightly came to the conclusion that there has been compliance
  of Section 117 of the Act, and therefore, the same need not be interfered with
  by this Court. According to the learned counsel the conclusion of the High
  Court is fortified by the evidence of respondent no. 5 who unequivocally
  indicated that he had never deposited the sum of Rs. 2,000 though ostensibly
F his name appears to be on the receipt Exhibit P-5.
         Before examining the different decisions of this Court on which the
  parties have relied upon and looking at the provision of Section 117 of the
  Act, it is crystal clear to us that the aforesaid provision requires deposit of
G Rs. 2,000 as security for the cost has to be made at the time of presenting an
  Election Petition. The object of having aforesaid· provision could be to
  discourage entertaining frivolous Election Petitions and to make provision
  for cost in favour of the parties who ultimately succeed in the Election
  Petitio11. Sub-section (2) of Section 117 authorises the High Court to call
  upon an Election Petitioner during the course of the trial of an Election
H Petition, to give such further security which may be necessary, depending
           M.Y. GHORPADE r. SHIVAJI RAO M. POAL [PATTANAIK. J.]            ] 03

upon the facts and circumstances of the case. It would, therefore, be apparent     A
that the requirement of making a security deposit of Rs. 2,000 is mandatory
and the same has to be made while presenting an Election Petition. but the
mode of deposit as well as the person who could make a deposit l)lls to be
complied with in accordance with the rules of the High Court in question
and, as such has been held to be directory in several decisions of this Court.     B
       Jn Charan Lal Sahu v. Nandkishore Bhatt and Ors., (1974) I Supreme
Court Reports 294, the appellant while presenting the Election Petition had
not deposited the cost of Rs. 2,000, as required under Section 117 of the Act.
The Election Petition having been dismissed hy the High Court on that ground,
the matter had been carried to this Court and this Court held that the provisions C
of Section 117 of the Act 1;1re mandatory and the High Court is not competent
to reduce the amount of security deposited or to dispense with it, and
consequently the· non-deposit of security amount along with the Election
Petition leaves no option to the Court but to reject the Election Petition. We
fail to understand how this decision is of any assistance to the case in hand
where it is not disputed, that a sum of Rs. 2,000 had been deposited by the D
Election Petitioner, as is apparent from the evidence of the Election Petitioner
as well as the evidence of respondent no.5.

       In Aeltmesh Rein v. Chandulal and Ors., (1981) 3 Supreme Court
Reports 142 the Election Petitioner had stated in the Petition that the security
amount of Rs. 2,000 was being deposited, but in fact no such deposit had           E
been made and on that score the High Court dismissed the Petition for non-
compliance of the provisions of Section 117. On an appeal being carried, this
Court upheld the order of the High Court on a conclusion that under Section
86(1) there is no option left for the High Court but to dismiss an Election
Petition which does not comply with the provisions of Section 117. In our          p
considered opinion, this decision also is of no application to the case in hand
unless it is held that even though the amount was deposited by the Election
Petitioner yet that would not enure to his benefit since the deposit had been
made in the name of somebody else.

        The next decision relied upon by Mr. Javali is the case of Rajendra G
Singh and Ors. etc. v. Smt. Usha Rani and Ors. Etc., [1984] 3 Supreme Court
Reports 22. In this case the provisions of Section 117 of the Representation
of People Act had not come up for consideration and on the other hand the
allegation was that there has been an infraction of Section 81 (3) of the Act
since the copy of the petition served upon the applicant was neither attested H
    104                        SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A to be a true nor a correct copy of the original petition. Since this contention
    had not been raised by Mr. Javali, learned counsel appearing for the appellant
    we need not delve into the ratio of the aforesaid case.

         In M. Karzmanidhi etc. v. H V. Hande and Ors. etc., [ 1983] 2 Supreme
  Court Reports 629, provisions of Section 117( I) of the Representation of
B People Act directly came up for consideration. In this case the Assistant
  Registrar of the High Court directed that the amount of security be deposited
  to the credit of the Registrar of the High Court in the Reserve Bank of India
  and in pursuance to the direction, the Election Petitioner deposited the sum
  of Rs. 2,000 with a pre-receipted challan issued by the Accounts Department
C to the credit of the Registrar of the High Court and the Reserve Bank of India
  had made the endorsement that it has received in cash. The contention of the
  applicant assailing the maintainability of the Election Petition was that there
  has been non-compliance of Section 117(1) of the Act inasmuch as Rule 8
  of the Election Petition's Rules provides that money should be deposited in
  the High Court in cash and that Rule must be held to be forming a part of
D sub-section (I) of .Section 117. It was thus contended that the deposit of
  money to the Reserve Bank of India to the credit of the Registrar High Court
  cannot be construed to ·be a compliance of the mandatory requirements of
  Section 117(1) of the Act. This contention was repelled by this court and it
  was held that there was nothing wrong in the procedure adopted in making
E the deposit and when the amount so deposited with a pre-receipted challan
  issued by the Accounts Department to the credit of the Registrar High Court
  and the Reserve Bank of India made the endorsement (received in cash), it
  must be ·regarded that the paymeni was made in the High Court and the pre-
  receipted challan bearing the endorsement must be treated as the receipt of
  the Registrar. This Court relied upon the earlier decision of this Court in the
F case of K. Kamraja Nadar v. Kunju Thevar and Ors., (1959] Supreme Court
  Reports 583, which was a case under the provisions of Section 117 of the
  Act, as it stood prior to its amendment, wherein also the receipt showed that
  the deposit had been made but did not show that the deposit had been made
   in favour of the Secretary to the Election Commission. One of the question
G that arose was whether the expression 'in favour of the Election Commission',
  contained in Section 117, as it stood then, were mandatory in character or
   not, and this Court held that the first part of Section I I 7 though mandatory,
   but not the later pait. It is not necessary to multiply authorities on the point,
   but suffice it to say, that the sum of Rs. 2,000 must be deposited while filing
   an Election Petition and that is undoubtedly mandatory, but through whom
H the amount will be deposited etc. cannot be held to be mandatory. That being
          M.Y. GHORPADE v. SHIVAJI RAO M. POAL [PATT ANAIK. J]        105

the position, and in the case in hand the evidence of the Election Petitioner A
as well as the evidence of Respondent No. 5 unequivocally pointing out that
it is the Election Petitioner who deposited the amount of Rs. 2,000, we see
no infirmity with the conclusion of the High Court that there has been
compliance of Section 117 of the Act and consequently the Election Petition
has been rightly held to be maintainable and could not have been dismissed B
under Section 86 on the ground of non-compliance of Section 117 of the Act.~
We, therefore, do not find any merit in the appeal, which is accordingly
dismissed. There will be no order as to costs.

S.K.S.                                                  Appeal dismissed.
                                                                             c