Satish vs Bhagwan Das & Ors.

Dilip Gupta, J.—The petitioner, who had been declared elected as a member of Municipality, has filed this petition for setting aside the order dated 12th November, 2009 passed by the Prescribed Authority in Election Petition No.4 of 2006 filed by respondent No.1Bhagwan Das under Section 19 of the Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as the ''Act'').

The dispute in the present petition is about the correctness of the treasury challan which accompanied the election petition that had been filed by respondent No.1 under Section 19 of the Act. Under Section 19 of the Act, the said treasury challan should show that the prescribed security amount had been deposited. In this regard Issue No.5 was framed in the election petition and the Prescribed Authority has decided this issue in favour of the election petitioner.

Sri P.K. Jain, learned counsel for the petitioner submitted that the security amount was required to be deposited under the head 8442 in terms of the Circular dated 28th November, 2006 issued by the State Election Commission but the election petitioner had deposited the security amount in a different head bearing no. 007002101. Thus, according to him, the election petition was not filed in accordance with the provisions of Section 20(5) of the Act and should not have been entertained. He, therefore, submitted that the Prescribed Authority committed an illegality in deciding issue No. 5 in favour of the election petitioner.

Sri V.P. Shukla, learned counsel appearing for respondent No.1Bhagwan Das, who had filed the election petition, submitted that the impugned order does not suffer from any infirmity and the petition should be dismissed.

I have carefully considered the submissions advanced by the learned counsel for the parties.

Section 19 of the Act provides that the election of any person as a member of a Municipality may be questioned by an election petition. Section 20 of the Act deals with form and presentation of election petitions. Subsection (5) of Section 20, which is relevant for the purpose of controversy involved in this petition, is as follows:

"20. Form and presentation of election petitions..(1)...............

(2).............

(3)............

(4)............

(5) The petition shall be presented to the District Judge exercising jurisdiction in the area in which the municipality, to which the election petition relates, is situate:

Provided that the petition shall not be entertained by the District Judge, unless it is accompanied by a treasury challan showing that the prescribed security has been deposited."

Order 63 of the U.P. Municipalities (Conduct of Election of Presidents and Election Petitions) Order, 1983 (hereinafter referred to as the ''1983 Order'') which deals with security is as follows:

"63. Security and Courtfee. (1) At the time of presenting an election petition the petitioner shall enclose with it a Treasury challan showing that a sum of five hundred rupees has been deposited by him or on his behalf in a Government Treasury or in the State Bank of India as security for the costs of the petition.

(2) There shall be paid on an election petition the courtfee prescribed in the Courtfees Act, 1870 or if no such courtfee is prescribed in that Act a fee of one hundred and twentyfive rupees in courtfee stamps."

In the present case, it is not in dispute that the election petition was accompanied by a treasury challan showing that the prescribed security had been deposited. What is in issue is whether the security amount had been deposited under the correct head in the treasury.

The election petition was filed on 5th December, 2006 just a week after the issuance of the Circular dated 28th November, 2006. It may be that the security amount was required to be deposited under the head 8442 but it is a fact that the election petitioner had deposited the amount in the treasury, though in a different head, and had obtained the treasury challan which was filed with election petition. Section 20(5) of the Act provides that the security amount should be deposited and the challan should accompany the election petition. This Section or Order 63 of the 1983 Order do not provide the head under which the amount should be deposited in the treasury. The Government for its own convenience has made different heads for deposit of the amount in the treasury and if the amount had been deposited in the treasury and a challan had been cleared on 4th December, 2006 by the Assistant District Election Officer, it cannot be said that there is any infirmity in the presentation of the election petition.

There is, therefore, no good reason to interfere with the impugned order under Article 226 of the Constitution.

The writ petition is, accordingly, dismissed.