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REPORTABLE   

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO. 1200 OF 2018  (@ S.L.P. (C) No. 20768 of 2017)  

Sitaram                 Appellant (s)  

VERSUS  

Radhey Shyam Vishnav & Ors.   Respondent(s)  

J U D G M E N T  

Dipak Misra, CJI  

The singular issue that arises for consideration in this  

appeal by special leave is whether the High Court of Judicature  

for Rajasthan at Jaipur Bench is justified in dismissing S.B.  

Civil Writ Petition No. 8238 of 2017 thereby affirming the order  

dated 23.05.2017 passed by the learned Additional District  

Judge, Kishangarh, District Ajmer (herein after referred to as  

“the Election Tribunal”) in Election Petition No. 55 of 2016  

whereunder the Election Tribunal had rejected the application  

preferred under Order VII Rule 11(d) and (e) read with Order

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XIV Rule 2 read with Section 151 of the Code of Civil Procedure  

(CPC) seeking rejection of the election petition on the  

foundation that there had been non-compliance of the  

Rajasthan Municipalities Election Petition Rules, 2009 (herein  

after referred to as “the 2009 Rules”) which are mandatory in  

character.   

2. Bereft of unnecessary details, the facts requisite to be  

stated are that the appellant and the 1st respondent were  

elected to Municipal Ward Nos. 28 and 45 respectively of  

Municipal Council, Kishangarh. The election to the post of  

Chairperson of the Municipal Corporation is to be made from  

amongst the 45 Ward Members and the said post has been  

reserved for the OBC category.  There is no dispute that both  

the appellant and the 1st respondent belong to the OBC  

category. The election was held on 21.08.2015. The appellant,  

as per the votes counted by the returning officer, received 23  

votes and the 1st respondent secured 18 votes as a  

consequence of which the appellant was declared elected.  

Challenging the election, Election Petition No. 180 of 2015 was  

filed by the 1st respondent alleging that the votes in favour of  

the elected candidate had been erroneously counted though

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they deserved to be rejected on the ground that 11 voters had  

left such marks on the ballot papers that could identify them.  

Apart from the said allegation, certain other aspects were also  

pleaded.  It was also set forth in the petition that a sum of Rs.  

1,000/- had been deposited before the Election Tribunal as per  

law.  

3. After filing a reply to the election petition, the appellant  

filed an application under Order VII Rule 11 read with Section  

151 CPC for rejection of the election petition because of              

non-compliance of Rule 3(d) of the 2009 Rules. In addition to  

the aforesaid, certain other grounds were also urged to reject  

the election petition but as the said grounds have not been  

canvassed before us, we need not dwell upon the same.  

4. It was contended before the Election Tribunal that as  

required by the 2009 Rules, an election petition may be filed by  

a candidate who has been defeated or whose nomination has  

been rejected to challenge the election by filing an election  

petition which is required to be accompanied by a treasury  

challan of Rs. 1,000/- and the Judge hearing the election  

petition as per Rule 7(3) of the 2009 Rules is obligated to  

dismiss the election petition which does not comply with the

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provisions of the said Rules. It was pleaded that though the 1st  

respondent had filed the election petition on 09.09.2015, yet it  

was not accompanied by treasury challan of Rs. 1,000/- and to  

substantiate the same, reliance was placed on the order dated  

16.09.2015 passed by the Election Tribunal wherein it had  

allowed the election petitioner to deposit the amount.  The  

same is also perceptible from the order dated 17.9.2015.  The  

application for rejection was resisted by the election petitioner  

on the ground that he had filed an application before the court  

to file the receipt of challan of Rs. 1,000/- and the amount was  

subsequently deposited and, therefore, the application for  

rejection of the election petition did not merit consideration.  

5. The Election Tribunal took note of the fact that the  

amount was deposited on 16.08.2015 and further as the  

election petitioner had filed an application in the court and  

had, under the direction of the court, deposited the said  

amount and filed the receipt thereof in the court, the ground  

raised under Order VII Rule 11 was sans substratum and did  

not deserve acceptance.  

6. Aggrieved by the aforesaid order, the appellant filed Writ  

Petition before the High Court and reiterated the grounds urged

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before the Election Tribunal. The High Court, as is discernible  

from the impugned order, did not advert to the question of  

nature of the provision as engrafted in the 2009 Rules and  

noted that the issue whether the election petition was liable to  

be rejected despite the subsequent submission of the challan  

within the period of limitation was not required to be gone into  

as the application under Order VII Rule 11(d) CPC on the  

ground agitated therein was not maintainable and                         

mis-directed.  Being of this view, the High Court dismissed the  

Writ Petition. The High Court further directed that the writ  

petitioner would be free to agitate all the defences in his written  

statement as available to him in law against the election  

petition including its maintainability.  

7. We have heard Mr. Mahavir Singh, learned senior counsel  

for the appellant, and Mr. Sushil Kumar Jain, learned senior  

counsel for the 1st respondent.  

8. As the controversy rests upon the interpretation of the  

2009 Rules, it is necessary to scan and understand the nature  

and character of the said Rules. Rule 3 of the 2009 Rules deals  

with the election petition.  Rule 3(3) provides the grounds on  

which the election of any person as Chairperson or                       

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Vice-Chairperson or member of a municipality can be  

questioned. Rule 3(5) of the said Rules provides for the  

requirements of an election petition.  The said Rule, being  

pertinent, is extracted below:-  

“Rule 3(5). An election petition –  

(a) shall contain a concise statement of the material  

facts on which the petitioner relies;  

(b) shall set forth full particulars of any corrupt  practice that the petitioner alleges, including names  of the person alleged to have committed such  corrupt practice and the date and place of the  

commission of such practice;  

(c) shall be signed by the petitioner and verified in  the manner laid down in the Code of Civil  Procedure, 1908 (Central Act V of 1908) for the  verification of pleadings. Any schedule or annexure  to the petition shall also be signed by the petitioner  and verified in the same manner as the petition,  

and   

(d) shall be accompanied by a treasury challan of  

rupees one thousand.”   

[Emphasis added]  

9. Rule 7 of the 2009 Rules deals with the decision of the  

Judge. As we are only concerned with sub-rule (3) of Rule 7, it  

is reproduced below:-  

“Rule 7. Decision of the Judge.-  (3) The Judge shall dismiss an election petition,  which does not comply with the provisions of these  rules.”  

[Underlining is ours]  

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10. It is submitted by Mr. Singh, learned senior counsel  

appearing for the appellant, that as per Rule 3(5)(d), it is  

mandatory that an election petition is required to be  

accompanied by a treasury challan of Rs. 1,000/- and if the  

said requirement is not complied with, it is obligatory on the  

part of the Judge to dismiss the election petition. He would  

urge that the factum of non-deposit is a matter of record and  

the language employed in the relevant Rule is mandatory in  

character and, therefore, the Election Tribunal completely erred  

in rejecting the petition and the High Court failed to exercise  

the jurisdiction vested in it by not correctly adverting to the  

same.   

11. Mr. Jain, learned senior counsel appearing for the 1st  

respondent, would contend that the 2009 Rules stipulate filing  

of treasury challan for the making of a deposit and there is a  

distinction between filing of a treasury challan and making the  

deposit. He would submit that the order of the Court is  

necessary to make a deposit in the court as per the General  

Rules (Civil), 1986 (hereinafter referred to as “the 1986 Rules”)  

which is prevalent in the State of Rajasthan. Apart from other  

decisions, he has commended us to the judgment dated

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08.08.2016 passed by the learned single Judge of the High  

Court of Rajasthan in Civil Writ (CW) No. 7637 of 2016.   

12. Before we proceed to deal with the manner of deposit and  

the mode provided under the 1986 Rules, it would be apt to  

refer to certain authorities that have dealt with the  

prescriptions pertaining to the presentation of an election  

petition.  

13. In Charan Lal Sahu v. Nandkishore Bhatt and  

others1, the Court was dealing with the provisions contained in  

Section 117 of the Representation of People Act, 1951 (for  

short, “the 1951 Act”) which requires that 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 and it also confers power on the High Court to call  

upon the election petitioner to give such further security for  

costs as it may direct. It was contended before the High Court  

that Section 117 of the 1951 Act is only directory and not  

mandatory and that the deposit of Rs. 2000/- is only to secure  

the costs in the course of the trial of the election petition. The  

                                                           1 (1973) 2 SCC 530

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said plea was negatived by the High Court. The two-Judge  

Bench referred to Article 329(b) of the Constitution of India  

which provides that no election to either House of Parliament  

or to the House or either House of the Legislature of a State  

shall be called in question except by an election petition  

presented to such authority and in such manner as may be  

provided for by or under any law made by the appropriate  

Legislature. Proceeding further, the Court observed:-   

“3. … The right conferred being a statutory right,  the terms of that statute had to be complied with.  There is no question of any common law right to  challenge an election. Any discretion to condone the  delay in presentation of the petition or to absolve  the petitioner from payment of security for costs can  only be provided under the statute governing  election disputes. If no discretion is conferred in  respect of any of these matters, none can be  exercised under any general law or on any principle  of equity. This Court has held that the right to vote  or stand as a candidate for election is not a civil  right but is a creature of statute or special law and  must be subject to the limitations imposed by it. In  N.P. Ponnuswami v. Returning Officer, Namakkal  Constituency 2  it was pointed out that strictly  speaking, it is the sole right of the Legislature to  examine and determine all matters relating to the  election of its own members, and if the Legislature  takes it out of its own hands and vests in a special  tribunal an entirely new and unknown jurisdiction,  that special jurisdiction should be exercised in  

accordance with the law which creates it.”  

                                                           2 1952 SCR 218 : AIR 1952 SC 64

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14.  The command in the provision, the Court opined, of the  

deposit of the security along with the election petition as  

required under Section 117 of the 1951 Act leaves no option  

with the court but to reject the election petition.   It is worthy  

to note here that the Court distinguished the authority in K.  

Kamaraja Nadar v. Kunju Thevar and others3 where the  

election petitioner under the unamended provision of Section  

117 of the 1951 Act had deposited the amount in Government  

treasury but had neither mentioned the complete head of  

account in the Government treasury receipt nor was the  

deposit made in favour of the Secretary to the Election  

Commission as provided in the aforesaid Section.  The Court in  

K. Kamaraja Nadar (supra), interpreting the unamended  

Section 117, had expressed thus:-   

“31. … It would be absurd to imagine that a deposit  made either in a Government Treasury or in the  Reserve Bank of India in favour of the Election  Commission itself would not be sufficient  compliance with the provisions of Section 117 and  would involve a dismissal of the petition under  Section 85 or Section 90(3). The above illustration is  sufficient to demonstrate that the words “in favour  of the Secretary to the Election Commission” used  in Section 117 are directory and not mandatory in  their character. What is of the essence of the  provision contained in Section 117 is that the  

                                                           3 1959 SCR 583 : AIR 1958 SC 687

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petitioner should furnish security for the costs of  the petition, and should enclose along with the  petition a Government Treasury receipt showing  that a deposit of one thousand rupees has been  made by him either in a Government Treasury or in  the Reserve Bank of India, is at the disposal of the  Election Commission to be utilised by it in the  manner authorised by law and is under its control  and payable on a proper application being made in  that behalf to the Election Commission or to any  person duly authorised by it to receive the same, be  he the Secretary to the Election Commission or any  one else.  32. If, therefore it can be shown by evidence led  before the Election Tribunal that the Government  Treasury receipt or the chalan which was obtained  by the petitioner and enclosed by him along with his  petition presented to the Election Commission was  such that the Election Commission could on a  necessary application in that behalf be in a position  to realise the said sum of rupees one thousand for  payment of the costs to the successful party it  would be sufficient compliance with the  requirements of Section 117. No such literal  compliance with the terms of Section 117 is at all  necessary as is contended for on behalf of the  

appellant before us.”  

 15.  As stated earlier, the said decision was distinguished and  

the distinction is vivid from the analysis made in the above  

quoted paragraphs.   

16. In this context, reference to the decision by the  

Constitution Bench in Charan Lal Sahu v. Fakruddin Ali

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Ahmed and others 4  is instructive.  In the said case, the  

nomination of the petitioner was rejected on the ground of non-

compliance with Sections 5-B and 5-C introduced in the  

Presidential and Vice-Presidential Elections Act, 1952 by an  

amendment made by Act 5 of 1974.  Section 5-C(1) requires  

that a candidate shall not be deemed to be duly nominated for  

election unless he deposits or causes to be deposited a sum of  

two thousand five hundred rupees.  Section 5-C(2) lays down  

that the sum required to be deposited under sub-section (1)  

shall not be deemed to have been deposited under that sub-

section unless at the time of presentation of the nomination  

paper under sub-section (1) of Section 5-B, the candidate has  

either deposited or caused to be deposited  that sum with the  

Returning Officer in cash or enclosed with the nomination  

paper a receipt showing that the said sum has been deposited  

by him or on his behalf in the Reserve Bank of India or in a  

Government Treasury.  The petitioner in the said case had sent  

a cheque for Rs. 2500/- to the Returning Officer along with his   

nomination paper. Interpreting Section 5-C, the Court held that  

enclosing a cheque for Rs. 2500/- did not comply with the  

                                                           4 (1975) 4 SCC 832

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mandatory requirement of sub-section (2) of Section 5-C.  The  

Court took note of the fact that the provision expressly states  

that a candidate has to either deposit in cash or enclose with  

the nomination paper a receipt showing that the said sum had  

been deposited by him or on his behalf in the Reserve Bank of  

India or in a Government Treasury. Relying on the said  

decision, Mr. Mahavir Singh, learned senior counsel, would  

submit that the concept of treasury challan would clearly mean  

deposit in the treasury and filing the receipt of the amount that  

has been deposited at the time of presentation of the election  

petition but not to file a challan before the Court seeking  

permission to deposit. The said submission has been  

controverted by Mr. Jain, learned senior counsel, on two  

counts, namely, seeking permission is imperative and as long  

as there has been a deposit, the election petition cannot be  

rejected treating it as not maintainable.  We shall deal with the  

said facet at a later stage.  

17. In Aeltemesh Rein v. Chandulal Chandrakar and  

others5, the Court opined that Section 117 of the 1951 Act has  

been enacted having the source of power under Article 329(b) of  

                                                           5 (1981) 2 SCC 689

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the Constitution which provides that an election petition has to  

be presented to such authority and in such manner as may be  

provided for by or under law made by the appropriate  

legislature.  In the said case, admittedly, the appellant stated  

in the election petition that he had deposited the security  

amount of Rs. 2000/- along with the petition as required under  

Section 117 of the 1951 Act but, in fact, no such deposit was  

made. Dealing with the same, the Court expressed:-   

“3. The only question which survives is as to what  is the consequence of non-compliance with Section  117 of the Act. That question has been settled by  the decision of this Court in Charan Lal Sahu v.  Nandkishore Bhatt (supra) wherein it was held  

that the High Court has no option but to reject an  election petition which is not accompanied by the  payment of security amount as provided in Section  117 of the Act. Section 86(1) of the Act provides  that the High Court shall dismiss an election  petition which does not comply with the provisions  of Section 81, 82 or 117. In that view of the matter,  the High Court was right in dismissing the election  

petition summarily.”  

18. From the aforesaid authority, it is clear as crystal that  

there has to be compliance with the provision relating to  

deposit failing which the Court has no option but to reject an  

election petition.  Be it noted with profit that the said decision

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dealt with a situation where the election petition had to be  

accompanied by payment of security deposit.  

19. Mr. Jain, learned senior counsel appearing for the 1st  

respondent, has advanced the contention with regard to  

substantial compliance. To bolster the said submission,  

immense inspiration has been drawn from a three-Judge  

Bench decision in Chandrika Prasad Tripathi v. Shiv  

Prasad Chanpuria and others6.  In the said case, the Court  

was dealing with the unamended provision of Section 117 of  

the 1951 Act.  The Court referred to the earlier decision in K.  

Kamaraja Nadar (supra) and opined that Section 117 should  

not be strictly or technically construed and that wherever it is  

shown that there has been a substantial compliance with its  

requirement, the Tribunal should not dismiss the election  

petition on technical grounds. Scanning the language employed  

in Section 117, the Court ruled:-  

“… Indeed it is clear that the receipt with which this  

Court was concerned in the case of Kamaraj Nadar,    (supra) was perhaps slightly more defective than the  receipt in the present case. The argument based on  the use of the word “refundable” ignores the fact  that the security in terms has been made in respect  of the election petition in question and it has been  duly credited as towards the account of the Election  

                                                           6 1959 SUPP (2) SCR 527 : AIR 1959 SC 827

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Commission. Therefore, there can be no doubt that  if an occasion arises for the Election Commission to  make an order about the payment of this amount to  the successful party, the use of the word  “refundable” will cause no difficulty whatever. We  hold that the security has been made by  Respondent 1 as required by Section 117 of the Act  and would be at the disposal of the Election  

Commission in the present proceedings.”  

20. On a perusal of the aforesaid dictum, we are inclined to  

state that the aforesaid decision has to be distinguished on the  

principle laid down by this Court in Charan Lal Sahu (I)  

(supra).  

21. In M. Karunanidhi v. Dr. H.V. Hande and others7, a  

two-Judge Bench was interpreting Section 117 of the 1951 Act  

wherein the question arose as to whether the High Court was  

justified in expressing the view that the factum of making  

deposit of Rs. 2,000/- as security for costs in the High Court  

was mandatory and the manner of making the deposit was  

directory. It was contended before this Court that the  

provisions of sub-section (1) of Section 117 of the 1951 Act are  

mandatory and, therefore, non-compliance with the same has  

to entail dismissal of the election petition in limine under             

sub-section (1) of Section 117 of the 1951 Act.  The Court                                                              7 (1983) 2 SCC 473

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adverted to the issue as to whether the provision is mandatory  

or not and, in that context, held:-  

“20. It is well established that an enactment in form  mandatory might in substance be directory and that  the use of the word “shall” does not conclude the  matter. The general rule of interpretation is well- known and it is but an aid for ascertaining the true  intention of the legislature which is the determining  factor, and that must ultimately depend on the  

context. The following passage from Crawford on  Statutory Construction at p. 516 brings out the rule:  

‘The question as to whether a statute is  mandatory or directory depends upon the  intent of the legislature and not upon the  language in which the intent is clothed. The  meaning and intention of the legislature must  govern, and these are to be ascertained, not  only from the phraseology of the provision, but  also by considering its nature, its design, and  the consequences which would follow from  construing it the one way or the other.’  

This passage was quoted with approval by the Court  in State of U.P. v. Manbodhan Lal Srivastava8, State  of U.P. v. Babu Ram Upadhya9  and Raza Buland  Sugar Co. Ltd. v. Municipal Board, Rampur10. The  Court in Manbodhan Lal case where Article 320(3)(c)  of the Constitution was held to be directory and not  mandatory, relied upon the following observations of  

the Privy Council in Montreal Street Railway  Company v. Normandin11:  

 ‘The question whether provisions in a  

statute are directory or imperative has very  

                                                           8 AIR 1957 SC 912  9 AIR 1961 SC 751  10 AIR 1965 SC 895  11 1917 AC 170

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frequently arisen in this country, but it has  been said that no general rule can be laid  down, and that in every case the object of the  statute must be looked at. The cases on the  

subject will be found collected in Maxwell on  Statutes, 5th Edn., p. 596 and following pages.  When the provisions of a statute relate to the  performance of a public duly and the case is  such that to hold null and void acts done in  neglect of this duty would work serious general  inconvenience, or injustice to persons who  have no control over those entrusted with the  duty, and at the same time would not promote  the main object of the Legislature, it has been  the practice to hold such provisions to be  directory only, the neglect of them, though  punishable, not affecting the validity of the  

acts done.’”  

22. After so stating, the two-Judge Bench referred to Rule 8 of  

the Madras High Court (Election Petitions) Rules, 1967.  Be it  

noted, the said Rule prescribes the mode of deposit.  The  

contention was advanced before the Court that it is paradoxical  

to say that deposit of money into the Reserve Bank to the credit  

of the Registrar, High Court, Madras is a sufficient compliance  

of sub-section (1) of Section 117 when Rule 8 provides that the  

money should be deposited in the High Court in cash, and that  

is the only mode prescribed under sub-section (1) of Section  

117.   

23. Repelling the said submission, the Court held:-

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“We are afraid, we are unable to accept this line of  argument. A literal and mechanical interpretation of  Rule 8 would lead to manifest absurdity as it would  imply that in every case the election petitioner shall  have to pay to the Registrar a sum of Rs 2000 in  cash towards security for costs as required by sub- section (1) of Section 117 of the Act and obtain a  receipt from him therefor. Rule 8 is silent as to how  the cash is to be handled. It cannot ordinarily be  expected that the Registrar of a High Court would  accept the amount of security deposit in cash. The  procedure adopted by II Assistant Registrar in  directing that the money be deposited to the credit  of the Registrar of the High Court in the Reserve  Bank of India was in conformity with the  requirements of Rule 8 of the Election Petitions  Rules. Inasmuch as Rule 8 does not lay down the  procedure regulating the manner of deposit of cash,  the matter falls to be governed by Rule 2 of Order  31 of the Madras High Court (Original Side) Rules,  1956 by reason of Rule 12 of the Election Petitions  Rules. Although Order 31 Rule 2 does not in terms  apply because Order 31 relates to “Payment into  Court of moneys to the credit of civil court deposits  and account of suitors’ money”, and though no  lodgment schedule can be prepared under Rule 2  except in pursuance of a decree or order passed by  the High Court i.e. in relation to some proceeding  pending, or disposed of, by the High Court, still by  virtue of Rule 12 of the Election Petitions Rules that  is the procedure to be adopted for deposit of Rs  2000 in the High Court in cash i.e. by crediting the  amount on the strength of a pre-receipted challan  prepared by the Accounts Department on the basis  of a lodgment schedule. That was the only  procedure applicable and there was nothing wrong  in the procedure adopted in making the deposit.  When the amount was so deposited with a pre- receipted challan issued by the Accounts  Department to the credit of the Registrar of the High  Court and the Reserve Bank of India made the  endorsement “Received in Cash”, it must be

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regarded that the payment was made in the High  Court and the pre-receipted challan bearing the  endorsement of the Reserve Bank of India must be  treated as the receipt of the Registrar in terms of  Rule 8, the Reserve Bank acting as an agent of the  High Court.”  

Be it noted, the Court relied on the authorities in K.  

Kamaraja Nadar (supra), Chandrika Prasad Tripathi  

(supra), Om Prabha Jain v. Gian Chand and another12 and  

Budhi Nath Jha v. Manilal Jadav13 to opine that Section 117  

of the 1951 Act should not be strictly or technically construed  

and substantial compliance with its requirement shall be  

treated as sufficient.  The decisions in Charan Lal Sahu (I)  

(supra) and Aeltemesh Rein (supra) were discussed.  The two-

Judge Bench took note of the fact that there is no provision to  

absolve the election petitioner of payment of security for costs.  

24. As we are only concerned with the deposit, we may  

usefully refer to a three-Judge Bench decision in M.Y.  

Ghorpade v. Shivaji Rao M. Poal and others14.  In the said  

case, the security as required under Section 117 of the 1951  

Act was deposited in the High Court by the Respondent No.5  

and not by the election petitioner who was the 1st respondent  

                                                           12 AIR 1959 SC 837 : 1959 SUPP (2) SCR 516  13 (1960) 22 ELR 86  14 (2002) 7 SCC 289

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before this Court.  The High Court came to hold that as the  

deposit in question had been made by the petitioner, and the  

same had to be treated as security for the costs of the election  

petition. For the said purpose, the High Court had placed  

reliance on the decision in Chandrika Prasad Tripathi  

(supra) and other decisions and the authority in M.  

Karunanidhi (supra).  It was urged before this Court that on  

the foundation of Charan Lal Sahu (I) (supra) and Aeltemesh  

Rein (supra), the view expressed by the High Court was  

absolutely erroneous, for the deposit made by the Respondent  

No.5 could never be construed as the deposit by the election  

petitioner. The three-Judge Bench, analyzing the object of  

Section 117 of the 1951 Act, held that the purpose of Section  

117 is to discourage entertaining frivolous election petitions  

and make provision for costs in favour of the parties who  

ultimately succeed in the election petition.  The Court further  

observed that 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 petition to give such further security  

which may be necessary depending upon the facts and  

circumstances of the case.  The decision in Charan Lal            

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Sahu (I) (supra) was distinguished as it was a case of non-

deposit.  The authority in Aeltemesh Rein (supra) was also  

distinguished as no such deposit had been made though it was  

stated in the petition that the security amount was being  

deposited.  The Court placed reliance on M. Karunanidhi  

(supra) and eventually ruled:-  

“This Court relied upon the earlier decision of this  

Court in the case of K. Kamaraja Nadar v. Kunju  Thevar 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  questions that arose was whether the expression “in  favour of the Election Commission”, contained in  Section 117, as it stood then, was mandatory in  character or not, and this Court held that the first  part of Section 117 though was mandatory, but not  the later part. It is not necessary to multiply  authorities on the point, but suffice it to say, that  the sum of Rs 2000 must be deposited while filing  an election petition and that is undoubtedly  mandatory, but through whom the amount will be  deposited etc. cannot be held to be mandatory.”  

(Underlining is ours)  

From the aforesaid passage, it is luculent that deposit at  

the time of presentation is mandatory but not the mode.  

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25. Many an authority has been commended to us with  

regard to substantial compliance and the doctrine of curability.  

We may refer to some of them.  

26. In T.M. Jacob v. C. Poulose and others 15 , the  

Constitution Bench was dealing with the defects pertaining to  

true copy of the affidavit as has been held to be mandatory in  

Dr. Shipra and others v. Shanti Lal Khoiwal and others16.    

The larger Bench expressed thus:-   

“40. In our opinion it is not every minor variation in  form but only a vital defect in substance which can  lead to a finding of non-compliance with the  provisions of Section 81(3) of the Act with the  consequences under Section 86(1) to follow. The  weight of authority clearly indicates that a certain  amount of flexibility is envisaged. While an  impermissible deviation from the original may entail  the dismissal of an election petition under Section  86(1) of the Act, an insignificant variation in the  true copy cannot be construed as a fatal defect. It  is, however, neither desirable nor possible to  catalogue the defects which may be classified as of a  vital nature or those which are not so. It would  depend upon the facts and circumstances of each  case and no hard and fast formula can be  

prescribed. …”  

27.  Be it stated, the Court in the said case referred to the  

Constitution Bench decision in Murarka Radhey Shyam Ram  

                                                           15 (1999) 4 SCC 274  16 (1996) 5 SCC 181

24    

Kumar v. Roop Singh Rathore and others17 and opined that  

the tests laid down therein are sound and did not require a  

repetition.   

28. In G.M. Siddeshwar v. Prasanna Kumar18, the three-

Judge Bench after referring to T.M. Jacob (supra) came to hold  

that the defect in verification of affidavit is not fatal to the  

election petition and it could be cured. Reference was made to  

a passage from Anil Vasudev Salgaonkar v. Naresh Kushali  

Shigaonkar19  wherein it has been held:-   

“50. The position is well settled that an election  petition can be summarily dismissed if it does not  furnish the cause of action in exercise of the power  under the Code of Civil Procedure. Appropriate  orders in exercise of powers under the Code can be  passed if the mandatory requirements enjoined by  Section 83 of the Act to incorporate the material  

facts in the election petition are not complied with.”  

29. After so stating, the three-Judge Bench ruled :-   

“52. The principles emerging from these decisions  are that although non-compliance with the  provisions of Section 83 of the Act is a curable  defect, yet there must be substantial compliance  with the provisions thereof. However, if there is total  and complete non-compliance with the provisions of  Section 83 of the Act, then the petition cannot be  

                                                           17 AIR 1964 SC 1545 : 1964 (3) SCR 573  18 (2013) 4 SCC 776  19 (2009) 9 SCC 310

25    

described as an election petition and may be  

dismissed at the threshold.”  

30. We may immediately clarify that the aforesaid cases dealt  

with substantial compliance relating to ‘true copy’,  

‘verification’, ‘affidavit’ and applicability of the principle of  

curability.  In G.M. Siddeshwar (supra), the Court made a  

difference between total and complete non-compliance with the  

provision of Section 83 of the 1951 Act whereupon the election  

petition cannot be described as an election petition and may be  

dismissed at the threshold. In the instant case, we are  

concerned with the deposit by treasury challan which shall  

accompany the election petition. The Rule prescribes in  

categorical terms that the tribunal shall dismiss the petition in  

case of non-compliance. We have referred to the authorities  

relating to security deposits under Section 117 of the 1951 Act.  

The present rules refer to municipal election. It is worthy to  

note that the election petition in para 15 has stated thus:-  

“15. That necessary Court fee has been paid with  this petition. Rs. 1000/- has been deposited before  this Hon’ble Court as per Law. A copy of this  petition has already been sent to the District  

Returning Officer.”

26    

31. As stated earlier, the petition was filed on 09.09.2015 but  

the treasury challan was not filed on that day.  The Election  

Tribunal had passed an order on a later date permitting the  

deposit. It is submitted by Mr. Jain that the election  

petitioner could not have deposited the amount without  

obtaining the permission of the Court.  To substantiate the said  

stand, he has placed reliance on the 1986 Rules.  We have  

been commended to Rules 252, 253, 260, 261 and 262. We  

think it appropriate to reproduce the said Rules:-  

“252. Appointment of a Receiving Officer.- (1)  Every civil court or where two or more courts have a  single account with the Treasury, every such group  of courts, shall have an official entrusted with the  receipt of money deposited in the Court.    (2) Such official shall be called as the Receiving  Officer and shall be appointed by the presiding  officers of the Civil Court or where two or more  courts have single account with the Treasury, he  shall be appointed by the presiding officer of the  highest court subject to instructions if any, of the  District Judge concerned.    (3) In a court where no official is appointed  specifically to perform the duties of the Receiving  Officer or during the absence on leave or otherwise  of the person appointed as the Receiving Officer, the  presiding officer of the civil court or the presiding  officer of the high court as the case may be, shall  appoint any other official of his court to carry on the  duties of the Receiving Officer.    

27    

253. Head of account.- The following are the head  of account under which the money received and  

paid under these Rules are classified:-  

(1) Deposits;  

(a) Civil Court deposits, including:  

(i) sums paid under decrees and orders;  

(ii) sums deposited under Order XX, Rule 14 and  Order XXIV, Rule 1 of the Civil Procedure Code and  

Section 83 of the Transfer of Property Act;  

(iii) Sums deposited under Order XXII, Rule 84 or  

paid under Order XXI, Rule 85 of the Code;  

(iv) Sums deposited under Section 379(1) of the  

Indian Succession Act;  

(v) Sums deposited in lieu of security;  

(vi) Sums deposited under any law relating to the  

Land Acquisition;  

(b) petty cash deposits, including deposits for:-  

(i) Travelling and other expenses of witnesses;  

(ii) Subsistence money for judgment debtors;  

(iii) Incidental charges of Commissions, Amins and  

Arbitrators etc.;  

(iv) Commission fees;  

(v) Postage and registration fees;  

(vi) Cost of publication of proclamation and orders;  

(2) Other Administrative Services.  

A. Administration of Justice.  

(a) Services and Service fees;  

(i)…..  

(ii) Civil and Sessions and Judicial Courts;

28    

(b) Fines and forfeitures;  

(i)…..  

(ii) Civil and Sessions & other Judicial Court.  

(c) Other Receipts.  

I. Sale proceeds of unclaimed and escheated  

property  

(i)….  

(ii) Civil and Sessions & other Judicial Courts.  

II. Legal Aid to poor.  

III. Recoveries of over payments.  

(i)……  

(ii) Civil and Sessions & Other Judicial Court.  

IV. Other Receipts.  

(i)….  

(ii) Civil and Sessions & Other Judicial Court.  

(d) Stamp duties and penalties.   

Note:- Sub-heads (a),(b) &(c) have been classified in  the State Account under the major head “065”  Other Administrative Services and sub-head(d)  under the major head “0.30” Stamps & Registration  fees”. These major heads and sub-heads will  automatically be deemed to have changed whenever  they are changed in the Budget,  

(3) Departmental cash including:-  

(i) Salary of establishment.   

(ii) Travelling allowance.  

(iii) Contingencies.  

260. Mode of payment of money into court. -  Payment of money into court shall ordinarily be  made by means of a tender upon a printed triplicate

29    

form. The applicants shall enter in the court  language the particulars required in columns 1 to 4  of the triplicate form of tender (F. 23). The applicant  shall then hand over the tender to the Munsarim or  the Reader of the Court concerned, as the case may  be.    261. Office report by the official-in-charge of the  record. - The Munsarim or the Reader of the court  concerned, as the case may be, shall then call upon  the official-in-charge of the record of the case for an  office report as to whether the amount and nature  of the payment tendered and the number of the  suit, or proceeding, if any are correct, and whether  the payment is due from the person on whose  account it is tendered. Any necessary corrections  shall be made and the munsarim or the Reader of  the Court concerned, as the case may be, shall then  sign the tender and enter it in the register of  challans prior to the order for receipt of payment  being passed.    262. Preparation of the order for payment. – The  order to receive payment shall be prepared in the  office of the Court and shall be enfaced upon the  duplicate and triplicate forms of the tender, and  shall run in the name of or Receiving Officer as  prescribed in Rules 255, 256, 257.  The order shall  be signed by the presiding officer for all amount  payable under Head of Account (1)(a) and (2) of Rule  253 and by the Munsarim or the Reader of the court  concerned; as the case may be for all amounts  payable under shall send the tender forms to the  Munsarim or the Reader of the Court concerned, as  the case may be.  The third form of tender shall be  retained in custody by the Munsarim or the Reader  of the court concerned, as the case may be, and then  he shall return the second copy of the tender to the  applicant and the original copy shall be sent to the  concerned court for keeping it in the concerned case  

file.”

30    

32. In this regard, our attention has also been invited to the   

General Financial and Accounts Rules Volume I & Volume II.  

Rule 54 of the said Rules deals with the payment into treasury.  

Rule 56 deals with Signing of Challan by Departmental Officer.  

The said Rules read as follows:-  

“Rule 54:  (1) Payments of money into the treasury or  bank may be made in cash, by E-payment, cheques,  bank draft, Banker’s cheque and Postal Orders.    (2) Challan : Subject as otherwise provided in these  Rules, or unless the Government in relation to any  particular class of transactions direct otherwise any  person paying money into a treasury or the Bank on  Government accounts shall present a challan in  Form G.A. 57 showing distinctly the nature of the  payment, the person or Government officer on whose  account it is made, and all the information necessary  for the preparation of the receipt to be given in  exchange, for the proper account classification of the  credit and, where necessary for its allocation  between Government and departments concerned.  Separate challans shall be used for moneys  creditable to different head of accounts.     Note: However, in case of E-payment, physical  challan will not be required. Instead, prescribed  details usually received through physical challan,  will be incorporated into a scroll of E-payments  which will be provided by the Bank duly  authenticated on each page to the treasury for  classification of credit and preparation of accounts of  the Government.  

xxx   xxx   xxx    

Rule 56: Signing of Challan by Departmental  Officer: When money is paid by a private person into

31    

a treasury located in the same place as the  departmental officer concerned with the payment,  the challan shall before presentation to the Bank,  Treasury or Bank be signed by the officer to whose  account the money is to be credited. The  departmental officer shall particularly check  classification before it is given to the depositor. Such  challans shall be received direct at the Bank without  the intervention of Treasury Officer.    Note: Challans may also be signed by non-Gazetted  Government servants as may be authorized by the  Government.  Presently Excise Inspector, Balotra  and Insurance Assistants are authorized to sign  challan for excise revenue and for deposits by the  Panchayat Samiti or local bodies on account of State  

Insurance, etc.”   

33. In this context, we may also refer to Rule 83 and Rule 86  

of the Rajasthan Treasury Rules, 2012 (hereinafter referred to  

as “the 2012 Rules”) . They read as follows:-  

“83. No item should be credited as a deposit  save under the formal order of a Competent  Authority. Besides, no sum shall be credited in any  deposit register which can be carried to any other  head of account, for example, revenue paid to  Government on account of a demand not yet due  should at once be credited to the proper revenue  head, instead of treating it as a deposit.    

xxx   xxx   xxx    86. All kinds of revenue deposits under this  category shall be separately paid into treasury  linked agency bank with challans/System  Generated Challans and other prescribed  documents setting forth all the particulars  necessary for entries to be made in Revenue Deposit

32    

Register. Each item of revenue deposit, other than  security deposit relating to election of Lok Sabha  received, should at once be properly entered with  unique identification number. There should be a  separate series of numbers for each register,  beginning afresh each year. All deposits must be  separately paid into the treasury with challans or  other documents setting forth all the particulars  necessary for the entries to be made in the register  of deposit receipts. The treasury officer should  carefully check the amount and particulars of each  entry and then set his initials   in the proper  column against each. The format for Revenue  

Deposit Register is appended in form No. TY‐2.     Notes:  1.  Revenue deposit registers need not  necessarily be opened every year but if there are a  sufficient number of pages available in the old  registers, they should be utilized, a separate series  of numbers being given every year for each class of  deposit.     2. The entry in the columm “Nature of deposit”  should be sufficient to explain why the amount is  deposited.     3.     In system driven environment, the treasury  officer shall create new account for each  revenue  deposit received. The unique deposit ID  shall be generated at the time of creation of account  which will provide link to original deposit at the  

time of refund of deposit.”  

 34. Mr. Jain has referred to Form G.A.-57.  The said form  

relates to cash challan. It provides for the signature of the  

person who deposits and in whose favour the deposit is being  

made and the permission for deposit. The Form also provides

33    

for the amount and certain heads or categories. The  

submission, in essence, is that the cumulative reading of the  

1986 Rules and the 2012 Rules clearly show that there cannot  

be any deposit without the permission of the concerned Court  

or authority. Support has been drawn from the judgment  

passed by the learned Single Judge in Ashok Kumar v.  

Learned A.D.J. No. 2 Chittorgarh and others20 wherein the  

High Court was dealing with Rule 85 of the election of  

Sarpanch of Gram Panchayat. The action was challenged under  

Section 43 of the Rajasthan Panchayati Raj Act, 1994 and the  

issue arose with regard to the interpretation of the provisions  

contained in the Rajasthan Panchayati Raj Election Rules,  

1994 (for short, “the 1994 Rules”).  Rule 81(2) of the 1994  

Rules provides that no petition shall be deemed to have been  

presented under the election rules unless the petitioner  

deposits a sum of Rs. 50/- along with the petition by way of  

security deposit for the costs of the opposite party. In the said  

case, the election petition was filed on 28.02.2015 but costs  

were not deposited along with the petition and the same were  

deposited on 12.03.2015. It was contended before the learned  

                                                           20 Civil Writ (CW) No.7637 of 2016 decided on 8.8.2016

34    

single Judge that the election petitioner had submitted the  

challan/tender for the deposit on 28.02.2015 itself but the  

Election Tribunal had not passed any order for depositing the  

costs with the treasury and, therefore, the same could not have  

been deposited on that day and the deposit was made after the  

order was passed.  The learned single Judge took note of Rule  

85 of the Election Rules which provides that the procedure  

provided in the CPC with regard to suits is made applicable in  

so far as can be made applicable and came to hold that if the  

deposit exceeds Rs. 25/-, the same can only be deposited in the  

treasury if an order is passed by the Court or by the Munsarim  

or the Reader of the Court concerned, as the case may be.    

35. In this regard, Mr. Singh has placed reliance on an earlier  

decision of the Rajasthan High Court in Gulab Singh v. The  

Munsif and Judicial Magistrate 1st Class and others 21. In  

the said case, the learned single Judge was dealing with the  

security deposit as provided under Rule 79(2) & (3) of the  

Rajasthan Panchayat and Nyaya Panchayat Election Rules,  

1960. In the said case, the deposit was made subsequently. It  

was contended that the same was fatal to the case as the  

                                                           21 1981 WLN (UC) 78

35    

provision is mandatory. Rule 79(2) of the said Rules read as  

follows:-  

“79(2) No petition shall be deemed to have been  presented under these rules unless the petitioner  deposits a sum of Rs.50/- along with the petition by  

way of security for the costs of the opposite party.”   

 36. The learned single Judge placed reliance on Charan Lal  

Sahu (II) (supra) and came to hold that Rule 79(2) in relation to  

the deposit of the security along with the petition is mandatory  

and since on facts it is not in dispute that on 21st February,  

1978 when the election petition was filed, it was not presented  

along with a deposit of Rs. 50/- as required for the costs of the  

opposite party, the legal and logical consequences would be  

that the election petition could not be deemed to have been  

presented under the Rules as per the mandate of Rule 79(2) of  

the Rajasthan Panchayat and Nyaya Panchayat (Election)  

Rules,1960. Being of this view, the learned single Judge opined  

that there was no valid election petition before the Election  

Tribunal.    

37. The discussion hereinabove can be categorized into three  

compartments. First, the deposit is mandatory and the mode of  

deposit is directory; second, the non-deposit will entail

36    

dismissal and irregular deposit is curable and third, in other  

areas like verification, signature of parties, service of copy, etc.,  

the principle of substantial compliance or the doctrine of  

curability will apply. In the case at hand, Rule 3(5)(d)  

commands that the election petition shall be accompanied by  

the treasury challan. The word used in the Rule is  

‘accompanied’ and the term ‘accompany’ means to co-exist or  

go along. There cannot be a separation or segregation. The  

election petition has to be accompanied by the treasury challan  

and with the treasury challan, as has been understood by this  

Court, there has to be a deposit in the treasury. The 2012  

Rules, when understood appropriately, also convey that there  

has to be deposit in the treasury. Once the election petition is  

presented without the treasury challan, the decisions of this  

Court in Charan Lal Sahu (I) (supra) and Aeltemesh Rein  

(supra) pertaining to non-deposit will have full applicability.  

The principle stated in M. Karunanidhi (supra), K. Kamaraja  

Nadar (supra), Chandrika Prasad Tripathi (supra) and other  

decisions will not get attracted.  The interpretation placed on  

the 1986 Rules by the learned single Judge in Ashok Kumar  

(supra) cannot be treated to lay down the correct law. We arrive

37    

at the said conclusion as we do not find that there is really any  

Rule which prescribes filing of treasury challan before the  

Election Tribunal in election petition after seeking permission  

at the time of presenting an election petition.  Permission, if  

any, may be sought earlier.  Such was the case in Bajrang Lal  

v. Kanhaiya Lal and others22 where the election petition was  

submitted on 31.8.2005 and an application was submitted  

before the court below on 30.8.2005 under Section 53 of the  

Act of 1959 with the signature of the advocate and an order  

was passed by the court on the same application itself on  

30.8.2005 allowing the advocate to deposit the security amount  

under Section 53 of the Act of 1959 for election petition.  The  

election petition was submitted on 31.8.2005.  In such a fact  

situation, the High Court found that there was compliance with  

the provision.   

38. Mr. Jain would submit that this is not an incurable defect  

as the deposit has been made within the period of limitation.   

The said submission leaves us unimpressed inasmuch as Rule  

7 leaves no option to the Judge but to dismiss the petition.  

Thus, regard being had to the language employed in both the  

                                                           22 RLW 2007 (2) Raj 1551

38    

Rules, we are obligated to hold that the deposit of treasury  

challan which means deposit of the requisite amount in  

treasury at the time of presentation of the election petition is  

mandatory. Therefore, the inevitable conclusion is that no valid  

election petition was presented. In such a situation, the learned  

Additional District Judge was bound in law to reject the  

election petition.   

39. In view of the aforesaid analysis, we allow the appeal and  

set aside the order passed by the High Court that has affirmed  

the order of the Additional District Judge as a result of which  

the election petition shall stand rejected. There shall be no  

order as to costs.   

……………………………,CJI  (Dipak Misra)     

……………………………...,J.  (A.M. Khanwilkar)    

……………………………...,J.  (D.Y. Chandrachud)    

   New Delhi;  March 06, 2018