Saidalavi K v Abdul Azeez T.A & others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938 ## CRP.No. 164 of 2016 ----------------------AGAINST THE ORDER/JUDGMENT IN.ELE.O.P100/2015 of PRL.MUNSIFF COURT, PALAKKAD DATED 15-03-2016 PETITIONER/1ST RESPONDENT IN E.O.P. ---------------------------------------------------------- SAIDALAVI K, S/O.KADER MOLLA, AGED 56, 31/67, NAHANAS MANZIL, MASJID STREET, POOLAKKAD, NOORANI POST, PALAKKAD-678 004 BY ADVS. SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL) RESPONDENTS/ PETITIONER & RESPONDENTS 2 TO 7 IN E.O.P: ------------------------------------------------------------------------------------------- 1. ABDUL AZEEZ. T.A, S/O.LATE T.M. ABDULKAREEM, AGED 51, 32/332, SAINABA MANZIL, PUDUPPALLI STREET, PALAKKAD-678 004 2. KAJA HUSSAIN, S/O.MOHAMMED, AGED 50, 31/439(1), SHALU MANZIL, POOLAKKAD, NOORANI POST, PALAKKAD-678 004 3. JALEEL, S/O.MOHAMMED, AGED 43, 31/910, VAYANA SHALA ROAD, POOLAKKAD, NOORANI POST, PALAKKAD-678 004 4. NOUSHAD T.K, S/O.LATE T.H.KAMAL, AGED 52, ADVOCATE, SALAMATH NAGAR, NEAR CIVIL STATION, PALAKKAD-678 001 5. LAKSHMANAN.K, S/O.LATE KRISHNA MOOTHAN, APARNA NIVAS, SIVAJI ROAD, VADAKKANTHARA, PALAKKAD-678 012 2 CRP.No. 164 of 2016 6. SATHEESH.S, S/O.LATE SUNDARAN, AGED 25, 27/764, SAKTHI NAGAR, MELAMURI, VADAKKANTHARA, PALAKKAD-678 012 7. THE RETURNING OFFICER, WARD NO.31, PUDUPPALLY THERUVU, PALAKKAD, SAJEEV, EXECUTIVE ENGINEER, PWD BUILDINGS DIVISION, PALAKKAD-678 001 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.S.ANANTHAKRISHNAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04-04-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: cms ## **K.ABRAHAM MATHEW J.** -------------------------------------------------------C.R.P.No.164 of 2016 -------------------------------------------------------Dated this the 4[th] day of April, 2016 ## **ORDER** The petitioner and respondents 1 to 6 were candidates at the election held for the reconstitution of Municipalities in Kerala on 5.11.2015. They contested from Ward No.31 in Palakkad Municipality. The petitioner was declared elected by a margin of 19 votes. Challenging the election on various grounds the first respondent filed E.O.P No.100 of 2015 in Prl Munsiff Court, Palakkad. He deposited Rs.1,000/- in the Munsiff Court. One of the contentions raised by the petitioner is that the Election Petition is not maintainable because the first respondent deposited the amount of Rs.1,000/- as security subsequent to the filing of the petition, and not at the time of its presentation as provided in Sub Section (1) Section 191 of the Kerala Municipality Act (hereinafter called the Act). This was heard as preliminary question. The learned Munsiff found that the first respondent deposited Rs.1000/- in the Munsiff Court when the election petition was presented. This is questioned in this Civil Revision Petition. 2. Heard. 3. The first respondent presented the election petition on 2.1.2016 to the Munsiff, who made the following endorsement on the petition. 'Petitioner present. Check and call. Petitioner permitted to deposit Rs.1,000/- which is the security amount'. Thereupon, the C.R.P.No.164 of 2016 2 first respondent deposited Rs.1,000/- in the Munsiff Court on the very same day. 4. The submission of the learned counsel for the petitioner is that the deposit was made subsequent to the filing of the election petition, which is evident from the endorsement of the learned Munsiff. He also has brought to my notice that in the election petition there is no averment that the amount has already been deposited or it is being deposited along with the petition. According to him, the deposit should have been made along with the election petition when it was presented to the learned Munsiff. 5. Section 167 of the Act mentions the details the election petition should contain. There is no requirement that it should contain a statement that the amount mentioned in Section 191(1) has been deposited or is being deposited along with the petition. 6. Sections 169(1) and 191(1) of the Kerala Municipality Act require notice. They are as follows: **169. Trial of election petitions** -(1) The court shall dismiss an election petition which does not comply with the provisions of section 165 or section 166 or section 191. **==> picture [128 x 8] intentionally omitted <==** **191. Security for costs** -(1) At the time of presenting an election petition, the petitioner shall deposit in the Munsiff's Court a sum of one thousand rupees as security or enclose with the petition a government treasury receipt showing that the deposit of the said amount has been made by him in a C.R.P.No.164 of 2016 3 government treasury in favour of the Munsiff as security for the costs of the petition. 7. There cannot be any doubt that the amount should have been deposited at the time of the presentation of the election petition. The learned counsel for the petitioner has brought to my notice the decisions of the Supreme Court in **K.Kamaraja Nadar v. Kunju Thevar and others (AIR 1958 SC 687), Charan Lal Sahu v. Nandkishore Bhatt and others [(1973)2 SCC 530], Gopi Ram and others v. State of Haryana and others, [(1983) 2 SCC 472], M.Y.Ghorpade v. Shivaji Rao M.Poal and others [(2002)7 SCC 289],** and of this court in **Rasoja Haridas v. Balachandran (2011(3) KLT 608)** . The consequence of non compliance with Section 191(1) of the Act is dismissal of the petition as provided in Sub Section 169(1). All the decisions cited above make it abundantly clear that the requirement of the deposit along with the petition is mandatory in nature and the court cannot grant time to cure the defect. In **Gopi Ram'** s case (supra) the apex court interpreting the provisions in Section 117 of the Representation of the People Act held that though the deposit is mandatory the mode of deposit is directory only. 8. The mode of deposit is mentioned in Section 191(1) of the Municipality Act itself. It can be either in cash or by way of treasury deposit. When the amount is deposited in treasury, the deposit shall C.R.P.No.164 of 2016 4 be made before the filing of the election petition. But if the deposit is made in court Section 191(1) only provides that it shall be made at the time of the presentation of the election petition. I cannot accept the interpretation of Sri.P.B.Krishnan that the amount shall be first handed over to the court and only thereafter the Original Petition can be presented. Money cannot be deposited in a proceedings which has not been instituted. It follows that what the law requires is that presentation of the election petition and the deposit of the amount shall be simultaneous. But it does not mean that both should take place at the same moment. It is immaterial which of the two was handed over to the court first. 9. It is seen from the endorsement of the learned Munsiff made on the Election Petition that the petition was presented to him by the first respondent in person. The learned Munsiff permitted the first respondent to deposit the amount of Rs.1,000/-. The judicial officer is not expected to receive the amount directly from the petitioner, nor is the petitioner expected to handover the amount to the judicial officer. The word permitted used by the learned Munsiff in his order should be read as directed. So it was only a direction to the petitioner to deposit the amount in the office of the court. This itself indicates that the petitioner was ready to tender the amount along with the petition. The argument of the petitioner that the court allowed the respondent to deposit the amount subsequent to C.R.P.No.164 of 2016 5 the filing of the Election O.P does not hold water. 10. It appears that in some courts there is a practice of presenting the election petition to the Munsiff and tendering the amount required to be deposited along with it. This is due to the misinterpretation of Sections 165 and 191 of the Act. Section 165 of the Act provides that the election petition should be presented to the Munsiff Court by the candidate or the elector who challenges the election. 11. Rule 29 of the Civil Rules of Practice prescribes how proceedings shall be presented in a court. It is as follows. **29. Presentation of proceedings and documents** -(1) All plaints, written statements, memoranda of appeal, applications and other documents may be presented to or filed in court by delivery of the same personally by the party, his pleader or pleader's registered clerk to the Chief Ministerial Officer of the court or any officer specially authorised in that behalf, at any time before 3 p.m or if the presiding officer so directs even after 3 p.m during office hours. The said officer shall at once initial the paper endorsing thereon the date of presentation, and, if a proceeding is thereby instituted, nothing thereon its serial number. It is sufficient to present the election petition to the Chief Ministerial Officer of the court. There is no requirement that it should be presented to the Munsiff. 12. In this connection Rule 355 of the Civil Rules of Practice, which is extracted below, was also referred to by learned counsel Sri.P.B.Krishnan in support of his argument that the amount should C.R.P.No.164 of 2016 6 be deposited before the election petition is received on the file of the court. **355. Lodgment schedule** -(1) A person desirous of paying money into court, hereinafter called the payer, shall file a lodgment schedule as in Form No.64. An order for lodgment and counterfoil receipt stating the date of issue, and bearing the serial number shall then be issued to the payer by the court as in Form No.65. (2) The payer shall deliver the money and the order and counterfoil receipt to the Treasury Officer mentioned therein, who will retain the order and return the receipt duly signed and dated to the payer. The latter shall return the said receipt to the court within a week of the remittance. (3) No lodgment shall be presented before the Treasury Officer after the expiry of 14 days from the date of issue. 13. But Section 191(1) of the Kerala Municipality Act enables the petitioner in an election petition to deposit the amount in the Munsiff Court. As observed above, the deposit of the amount cannot precede presentation of the petition. 14. I have no doubt that the first respondent complied with Section 191(1) of the Kerala Municipality Act. The learned Munsiff rightly held so. No interference is called for. In the result, this Original Petition is dismissed. **==> picture [33 x 11] intentionally omitted <==** ## **K.ABRAHAM MATHEW JUDGE** cms /True copy/ P.S.to Judge