LAWS(BOM)-1965-6-1

S W V FREDRICKS Vs. KRISHNA SOPANRAO KAMBLE

Decided On June 28, 1965
S.W.V.FREDRICKS Appellant
V/S
KRISHNA SOPANRAO KAMBLE Respondents

JUDGEMENT

(1.) THESE two petitions arise out of elections to the Cantonement Board, Kirkee, held on 9th February 1964. Results of the elections were declared on 10th February 1964 at which the petitioners in both the cases were declared elected in respect of their respective Wards. The opponent in each case, who was a candidate in his respective Ward, filed on 17th February 1964 an election petition challenging the election of the respective petitioner. At the time of presenting the election petition, the deposit which is required to be made under R. 44 of the Election Rules framed under the Act, was not made. Ultimately, on the 4th September 1964, the learned Judge framed the issues in the presence of both the sides and at that time it was brought to the notice of the learned Judge by the respective petitioners that deposits as required by R. 44 were not made. The respective Advocates of Opponent No. 1 in each case then made an application that they should be allowed to make the deposit, and they were allowed to do so even though the petitioners opposed. After the deposit was made, the petitioners insisted that the learned Judge should decide the preliminary issue as to whether the election petitions were competent, inasmuch as the Opponents had not complied with R. 44. The learned Judge returned the finding in opponent's favour. These petitions seek to challenge this finding. The question now before us is whether or not the election petition can be heard as there is a breach of R. 44 in view of the Opponent not having deposited the security deposit as required by it.

(2.) WE may refer to the relevant Rules viz Rules 42, 43, 44 and 45, in this connection. They are as follows:

(3.) IT is to be noticed that under R. 42 the election petition is to be presented in accordance with the Rules. The Rules prescribe the manner in which it is to be presented and the condition which has to be complied with. the condition being that there shall be a deposit as required by R. 44. The language of R. 44 is mandatory, and unless there is any indication in the body of the Rules read as a whole or in the Rule itself that the word "shall" was not intended to have the mandatory meaning. the Court would not be justified in construing the word "shall" as "may" If at all, the provisions of Rule 45 indicate that the direction is mandatory inasmuch as it provides that the District Judge shall enter into the inquiry, "where a petition has been presented and the security deposited as required by R. 44. " If the word "shall" in R. 44 was not intended to be mandatory the wording would have been "after a petition has been presented under R 43 and the security deposited as required R. 44". This is the only Rule which has a bearing on the construction of Rule 44, and the only construction to which it can lead is the one indicated by us.