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Judgment
Sabyasachi Bhattacharyya, J
Affidavit-of-service filed in Court today be taken on record.
Despite service, apart from opposite party no. 1 and opposite party no. 7, none appears on behalf of rest of the opposite parties.
The petitioner in an election petition under Section 79 of the West Bengal Panchayat Elections Act, 2003 has preferred the instant revisional application.
At the time of filing such petition raising an election dispute, the petitioner also made an application in the court below for a direction to make the deposit of Rs. 500/-(Rupees five hundred) only, statutorily payable under Section 79(2)(a) of the 2003 Act, either by way of challan or in the Nazarath department, Nazir Khana, or in any other manner as the trial court would be pleased to direct.
The said application was kept pending, but the trial court went on directing the security costs to be paid by the petitioner in terms of Section 79(2) of the 2003 Act by several orders.
Ultimately, the trial judge dismissed the election petition on the ground that the statutory security deposit had not been made by the petitioner, although such deposit was mandatory.
Learned counsel for the petitioner argues that this sort of petition was new to the court concerned and the petitioner as well as his advocate was unaware of the mode of making such deposit.
Learned counsel points out from Section 79 of the 2003 Act that although a deposit in court, as security for costs likely to be incurred, is stipulated in the said section, the mode of such deposit has not been specified therein or anywhere else in the 2003 Act.
As such, it is argued that the court below acted without jurisdiction in dismissing the election petition of the petitioner without directing the mode of making such payment.
The contention of the opposite party no. 7 is that the provision for putting in the costs, as contemplated in Section 79(2) of the 2003 Act, is mandatory in nature and there is no scope for condonation of delay in depositing the same late.
It is further submitted that Section 79(1) stipulates that any election dispute has to be complained against by way of an election petition before the court concerned within thirty days after the date of declaration of result of such election.
Section 79(2) of 2003 Act provides that, when filing a petition under sub-section(1) of Section 79, the petitioner shall deposit in court as security deposit likely to be incurred as stipulated therein, in this case being Rs.500/- (Rupees five hundred) only, since the petition was filed before a civil judge and not a district judge.
It is further argued that the Civil Rules and Orders specifically provide for the mode of deposit of such payments.
Learned counsel relies on Rules 643(A)(vii) of the Civil Rules and Orders and submits that government receipts under the heading 'miscellaneous' are covered by the said provision.
Learned counsel next relies on Rules 653 and 661 of the Civil Rules and Order in support of his submission that the said rules amply provide for the mode of deposit of any money under the miscellaneous head.
It is submitted that, although judicial orders are required for deposit of sums appearing under sub-heads - (i) to (v) of Head - (A) and under Head- (B) or Rules 643, no such order is required for a deposit under sub-head - (vii).
Rule 661 specifically provides that receipts under sub-head- (vii) of Head- (A), when any deposit payable in cash, shall be tendered in the first place to the accountant and noted by him in a special register.
As such, it is submitted that there was no ambiguity in the mode of payment, as made out by the petitioner to wriggle out of the liability to make a civil deposit.
Learned counsel for the opposite party no. 7 cites in this regard a judgment reported at AIR 1973 Supreme Court 2464 (Charan Lal Sahu Vs. Nandkishore Bhat and others). In the said judgment, it was held that in respect of Section 117 of the Representation of People Act 1951, time limit for deposit as per the said provision, along with an election petition, was held to be mandatory.
Learned counsel next cites a judgment reported at AIR 2002 SC 3105 (M. Y. Ghorpade Vs. Shivaji Rao M. Poal and others), wherein it was held that although irregular deposits made within time can be condoned, there is no such provision for condonation in the Act of 1951 for condonation of initial non-deposit of such amount.
Learned counsel for the opposite party no. 7 lastly relies on (2018) 4 SCC 507 (Sitaram Vs. Radhey Shyam Vishnave and others), a judgment rendered on the Rajasthan Municipalities Election Petition Rules, 2009, read with other ancillary Rules, in support of the proposition that the deposit contemplated in such Rules, accompanying election petitions, was mandatory and non-deposit of such stipulated amount would entail dismissal of the election petition itself.
Learned counsel for the opposite party no. 7 thus submits that the trial court was justified in rejecting the election petition itself for non-deposit of the stipulated amount, since several opportunities were given to the petitioner to make such deposit.
Learned counsel for the petitioner, in reply, seeks to distinguish the cited judgments on the ground that in all those cases, the relevant acts provided not only for the amount to be deposited but also the mode of deposit.
It is argued that, in the present case, no mode of payment is prescribed in the statute itself, that is, under the 2003 Act.
As such, it is argued that the doubt in the mind of the petitioner as regards the mode of payment was bona fide and the petitioner ought not to be penalized for the delay.
A composite reading of the relevant provisions of the Civil Rules and Orders framed by this Court, reveals that the deposits contemplated therein primarily pertain to civil courts. Although Rule 640 provides that the rules following the said rule prescribed the procedure for the receipt and payment of money and for keeping accounts to be observed by officers exercising judicial powers and dealing with money in that capacity and applied to all judges, there is no specific stipulation in the rules as regards deposits made under Section 79 of the 2003 Act. It is seen from Rule 643 that the money received and paid by the judicial officers, have been classified therein under two broad heads: A) government receipts and B) civil deposits.
A perusal of Rule 655 shows that a person desirous of paying the money, having filled up the forms of challan, shall present them to the chief ministerial officer of the court mentioned in Rule 653; the latter shall then ascertain by reference to the record of the case or register concerned, that the amount tendered is correct, and is due, from the person on whose account it is tendered, to the person to whom it is stated to be payable and, after correcting the forms of challan if necessary shall sign part 1.
It is further provided that if the money is to be paid into the treasury, the challan shall be taken direct from the chief ministerial officer of the Court to the accountant. When the money is to be received by the cashier, the chief ministerial officer shall obtain the order of the presiding judge directing the cashier to receive the amount entered in the challans.
The said Rule refers to Rule 653 of the Civil Rules and Order which, in turn, refers to payment of sums falling under sub-heads- (i) to (v) of Head- (A) and under Head- (B) of Rules 643, which could not be accepted either in court or at the treasury, unless the money be tendered with challans signed by the chief ministerial officer of the Court under whose decree or order, the money is tendered. As discussed above, Head- (A) relates to government receipts. The types of receipt falling under the category 'Government receipts' are indicated in sub-heads - (i) to (v) of the said head, being stamp duty and penalty, judicial fines and forfeiture, other general fees, fines and forfeiture, sale proceeds of unclaimed and escheated property and court-fees realized in cash.
As also discussed above, Head- (B) contemplates civil deposits, for which Rule 653 specifically provides for a prior order of the presiding officer and thereafter making all the deposits by challans.
A perusal of the scheme of Sections 78 and 79 of the 2003 Act reveal that costs as stipulated in Section 78(3) of the 2003 Act, contemplate all costs, charges and expenses, or incidental to the trial of an election petition.
It is thus doubtful as to whether the said costs can be directly classified as government receipts or civil deposits. Government receipts, as indicated in Rule 643 of Civil Rules and Orders, primarily envisage stamp duty, judicial fines, court-fees, sale proceeds and the like.
As such, there could have been a bona fide doubt in the mind of the petitioner as to the mode of deposit of the money contemplated in Section 79(2) of the 2003 Act.
That apart, it has been unilaterally held in the judgments cited, that when the statute provides for a particular deposit to be made, it has to be made as per the said statute only and not otherwise. The expression "as per the said statute" is not merely confined to the time limit for making the deposit but also the mode of payment.
Unfortunately, such mode has not been enumerated in the 2003 Act, therefore leaving the petitioner in a quandary as to how to deposit such money. Such doubt is undoubtedly bona fide and the petitioner showed his bona fides further by taking out an application simultaneously with the filing of the election petition and subsequently made a put up petition for the said application to be heard, but to no avail.
As such, the trial judge acted palpably without jurisdiction in taking the harsh step of dismissing the election petition without adverting to the merits of the application for ascertaining mode of deposit of the statutory amount, thereby adopting a short-cut without going into the dispute raised by the petitioner in the election petition, on a hyper-technical ground. Although the deposit, as envisaged in Section 79(2) of the 2003 Act, is mandatory, it is evident that there is no provision in the said statute as to the mode of such payment, which omission is sufficient to legitimately raise a doubt in the mind of the petitioner as to how the petitioner would make such payment.
Since, in the present case, the petitioner has sufficiently shown his bona fides by taking out an application at the inception for determining the mode of deposit, the trial court ought to have stipulated such mode and/or passed an order facilitating passing of a challan for such deposit.
The time stipulated ultimately for making the deposit would have to be deemed to relate back to the date of filing of the application. Since the application filed by the petitioner for determination of the mode of payment was not adjudicated by the trial court, whenever an order is passed on such application and the time is stipulated for making such deposit, such time would relate back to the date of filing of the election petition for the purpose of ascertaining the date of such deposit; otherwise gross injustice would occur without any fault of the petitioner, merely due to a lacuna in the relevant statute itself.
Accordingly, C. O. No. 1589 of 2019 is allowed, thereby setting aside the impugned order and directing the Civil Judge (Junior Division), Fourth Court at Howrah to take up the application filed by the petitioner, for determining the mode of making his deposit under Section 79(2) of the 2003 Act, afresh within three weeks from the date of communication of this order to the court below and to stipulate the mode of making such deposit and provide a reasonable time limit for making such deposit.
In the event the petitioner makes the deposit within such time, as granted by the trial court, the trial court will thereafter hear out the election petition and dispose of the same as expeditiously as the business of the said court permits. In the event, however, of default in making such security deposit within the period to be granted by the trial court, as directed above, the trial court will be free to dismiss the election petition on the ground of non-deposit.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.