RAJESAB Vs. KARNATAKA STATE

JUDGEMENT

(1.) MFA 5347/01 is directed against that portion of the common order pertaining to I. A. XI which was filed by the fourth respondent with a prayer to reject the petition for non-payment of fees of rs. 100/- on the Election Petition treating the same as a violation and non-compliance of a mandatory provision. The Trial Court has allowed the said application holding that in terms of rule 69 of the Karnataka Municipalities (Election of Councillors) Rules, 1977 ('the Rules', for short) read with Section 117 of the Representation of Peoples Act, 1951.

(2.) RULE 69 of the Rules reads as follows:

(3.) PER contra, the Counsel for the respondent would rely upon the judgment in the case of S. Shekhar v. Commissioner/returning Officer, Bangalore City Corporation AIR 1999 KANT. 174 wherein a Division Bench of this Court had held that Rule 70 of the Karnataka Municipal corporations (Election) Rules, 1979 requires the payment of a deposit of Rs. 200/- as security for costs which would have to be read as being mandatory. And if the rule is not complied with, a delayed deposit cannot be condoned. The intention of the legislature was that the deposit of security was mandatory. It is contended that the said rule is analogous to Rule 69 of the Rules with which we are concerned in the present case and hence the appeal should be dismissed as not maintainable. But, however, this Division Bench judgment has been referred to and distinguished by the learned Single Judge in ILR2003 KAR 3402 referred to herein above and it is held that though the Division Bench has held that Rule 70 was analogous to Section 117 of the Representation of Peoples Act, 1951, the requirement of Rule 69 of the Rules is somewhat different, for it prescribes a deposit of fee and not a deposit towards costs. The term 'fee' has a known legal connotation. A 'fee' is different from costs and so also should be different from a deposit that may be awarded to the successful party. The result is that the deposit made under Rule 69 will be a deposit of fee simplicitor which cannot be equated with a deposit for costs. Therefore the learned Single Judge concluded there is no similarity between the provisions of Rule 69 on the one hand and that of Rule 70 of the Municipalities Act and section 117 (1) of the Representation of Peoples Act, on the other. I am fully in agreement with this opinion and dictum and therefore the contention on behalf of the respondent has to be rejected. In the result, the appeal will have to be allowed.