RASOJA HARIDAS Vs. BALACHANDRAN K V

JUDGEMENT

(1.) The question which arises for a decision in this civil revision is:

(2.) The above question is required to be decided in the matter of an election petition filed by the first respondent before learned Munsiff, Kodungallur challenging election of petitioner from Ward 22 of Kodungallur Municipality in the election held on October 25, 2010. First respondent challenged election of petitioner under Sec.165 of the Act on the ground that details regarding property owned by the petitioner furnished along with her nomination as required under Sec.108(1A) of the Act is incorrect and hence her election is void under Sec. 178(1)(a) of the said Act. Petitioner contended that the election petition is not maintainable for reasons that provision regarding deposit of security amount at the time of filing the election petition is not complied, no affidavit is filed along with the election petition in support of the allegation regarding corrupt practice and that copy of petition given to the petitioner was not properly attested. Learned Munsiff considered the objections as a preliminary point as it related to the maintainability of the petition and overruled the objections as per the impugned order. Learned counsel on both sides submitted that the only issue that this Court is required to consider in this proceeding is maintainability of the election petition on the ground of non- deposit of entire sum of Rs. 1,000/- along with election petition as required under Sec.191 of the Act. As per the said provision a person challenging the election is to deposit at the time of presenting the petition in the court of Munsiff Rs. 1,000/- as security or enclose with the petition a Government treasury receipt showing that deposit of the said amount has been made by him in a Government treasury in favour of the Munsiff as security for costs of the petition. In this case, first respondent while presenting the petition deposited in court only Rs. 500/-. Later, on an application preferred by the first respondent he was allowed to make good the deficit by depositing the balance sum of Rs. 500/- also.

(3.) Learned counsel for petitioner has contended that compliance of Sec.191 of the Act is mandatory and that the said provision cannot be diluted in any way, whatever be the reason thereof. It is contended that learned Munsiff has taken the view that Sub-sec.(2) of Sec.191 of the Act enabled the court to direct election petitioner to produce "further" security and hence it is within the power of learned Munsiff to allow any deficit in the initial deposit to be made good by depositing the balance sum of Rs. 500/- after the election petition is received. It is pointed out by the learned counsel that when there is non- compliance of Sec.191 of the Act it should result in a dismissal of the election petition as provided under Sec.169 of the Act. Reliance, in support of the said argument is placed on the decisions of the Supreme Court in Charan Lal Sahu v. Nandkishore Bhatt and others, 1973 2 SCC 530, Aeltemesh Rein v. Chandulal chandrakar and others, 1981 2 SCC 689 and M.Y. Ghorpade v. Shivaji Rao M. Poal and others, 2002 7 SCC 289. It is contended by learned counsel that though, it is within the power of the learned Munsiff to direct the election petitioner to furnish "further" security (ie, security in addition to the security deposit which election petitioner is mandatorily required to deposit under Sec.191(1) of the Act), that did not enable the court allow the election petitioner to cure the fatal defect in not complying with the mandatory requirement of Sec.191(1) of the Act.