# Lalaram v. The Supreme Court of llldia and Ors. A.LR

- **Citation:** [1974] 1 S.C.R. 294
- **Court:** Supreme Court of India
- **Decided:** 1973-08-01
- **Case number:** Civil Appeal No. 2411 of 1972
- **Bench:** P. Jaganmohan Reddy, S. N. Dwivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lalaram-v-the-supreme-court-of-llldia-and-ors-a-lr-5970
- **Pages:** 5

## Headnote

Representation of the People Act, 1951, Section 111-Failure to depostt
security at tim~ of presentarioti of election petition-Election petition dism;ssedHe/d, Provisions of S. 117 are mandatory.
The respondents \Vere elected as members of the Legislative
Council
of
Madhya Pradesh in the t:lections held in 1972. The appellant presented an elec·
tion petition on June 26, 1972 but did not deposit Rs. 2000/- security as required
under s. 117 of the Act. The High Court dismissed the election petition holding
that it was mandatory for the petitioner when filing an election petition to depo·
sit the amount of Rs. 2000 /- under s. 117 of the Act and there is no provision
under which a discretion was conferred on the H[gh Court to reduce the amount
of security deposit as prayed for by him.
On appeal, by special leave, to this
Court, the appell<int conrended that: (i) the petition could only
be
dismissed
after the trial commePced and the trial commences only after notices are issued
to the resporidents; and (fr) the provisions of s. 117 of the Act are directory and
not mandatory in character.
Dismissing the appeal,
HELD : (i} The reference tll trfal in section 86 is in a larger sense and deal<::
with the steps 1n a trial rather than in a narrower sense of a trial commencing
after the notice of the petition is directed to be served on the respondent. The
marginal note of s. ·86 namely, "Trial of election petitions'' does not indicate that
under s. 86 ( 1) an election petition cannot be dismissed for non-compliance with
the provisions set out therein, unless notice is issued to the respondent.
The
language of s. 86(1) is clear as to admit of no other meaning, and the marginal
no!e cannot be read to control that power. [2988-D]
(2) The provisions of s. 117 of the Act are mandatory in character. The
High Court is not competent to reduce the amount of security deposit or to dis~
pense with it. The non-deposit of the security along with the election petition
leaves no option to the court but to reject it.
The right conferred to challenge
an election being a statutory right, the terms of that statute have to be complied
with. [296C, D-El
K. Kamaraja Nadar v. Kun.ju Tli,,var and Others, [1959] S.C.R. 583 and
Lalaram v. The Supreme Court of llldia and Ors. A.LR.
1967 S.C. 847,
.distinguished.
N. P. Ponnuswami v. Returning Officer, Namakkal Constituence and Others
[19521 S.C.R. 218, referred to.

## Text

294
CHARAN LAL SAHU
t,
NANDKISHORE BHATI & ORS.
August 1, 1973
[P. JAGANMOHAN REDDY AND S. N. DWIVEDI, JJ,]
Representation of the People Act, 1951, Section 111-Failure to depostt
security at tim~ of presentarioti of election petition-Election petition dism;ssedHe/d, Provisions of S. 117 are mandatory.
The respondents \Vere elected as members of the Legislative
Council
of
Madhya Pradesh in the t:lections held in 1972. The appellant presented an elec·
tion petition on June 26, 1972 but did not deposit Rs. 2000/- security as required
under s. 117 of the Act. The High Court dismissed the election petition holding
that it was mandatory for the petitioner when filing an election petition to depo·
sit the amount of Rs. 2000 /- under s. 117 of the Act and there is no provision
under which a discretion was conferred on the H[gh Court to reduce the amount
of security deposit as prayed for by him.
On appeal, by special leave, to this
Court, the appell<int conrended that: (i) the petition could only
be
dismissed
after the trial commePced and the trial commences only after notices are issued
to the resporidents; and (fr) the provisions of s. 117 of the Act are directory and
not mandatory in character.
Dismissing the appeal,
HELD : (i} The reference tll trfal in section 86 is in a larger sense and deal<::
with the steps 1n a trial rather than in a narrower sense of a trial commencing
after the notice of the petition is directed to be served on the respondent. The
marginal note of s. ·86 namely, "Trial of election petitions'' does not indicate that
under s. 86 ( 1) an election petition cannot be dismissed for non-compliance with
the provisions set out therein, unless notice is issued to the respondent.
The
language of s. 86(1) is clear as to admit of no other meaning, and the marginal
no!e cannot be read to control that power. [2988-D]
(2) The provisions of s. 117 of the Act are mandatory in character. The
High Court is not competent to reduce the amount of security deposit or to dis~
pense with it. The non-deposit of the security along with the election petition
leaves no option to the court but to reject it.
The right conferred to challenge
an election being a statutory right, the terms of that statute have to be complied
with. [296C, D-El
K. Kamaraja Nadar v. Kun.ju Tli,,var and Others, [1959] S.C.R. 583 and
Lalaram v. The Supreme Court of llldia and Ors. A.LR.
1967 S.C. 847,
.distinguished.
N. P. Ponnuswami v. Returning Officer, Namakkal Constituence and Others
[19521 S.C.R. 218, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2411 of 1972.
Appeal under s. 116-A of the Representation of the People Act
from the judgment and order dated September 22,
1972 of the
Madhya Pradesh High Court at Jabalpur in Election Petition No. 49
of 1972.
Pramodh Swarup, for the appellant.
G. N. Dikshit and R. N. Dikshit, for respondents Nos. 1 & 5.
S. K. Gambhir, for respondent No. 4
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-This appeal is against an order of the
High Court of Madhya Pradesh by which the election petition filed
by the appellant was dismissed for failure to deposit the security as
required under s. 117 of the Representation of the People Act, 1951A
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E
F
G
H
C. L. SAHU v. N. K. BHATT (laganmohan Reddy, !.)
295
hereinafter called 'the Act'.
The facts in brief are, that for the elections held in 1972 respondents 1 to 5 were elected as members of
Legi~lative c.ouncil of Madhya Pradesh. . The appella~t presented a~
elecllon pet11ton on June 26, 1972, but did not deposit Rs. 2000isecurity as required under s. 117 of the Act, which inter alia provides
as follows :
"117. Security for costs.-(1) At the time of presenting
an election petition, the petitioner shall depesit 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.
(2) During the course of the trial of an election petition, the High Court may, at any time, call upon the peti·
tioner to give sach further security for costs as it may direct."
It was contended before the High Court by the petitioner/appellant
that the trial had not started; that s. 117 of the 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, as such dismissal of the petition for non-compliance with it 1s a penalty which is
not one of the penalties prescribed under s. 118 of the Act.
The High
Court rejected all these contentiol)s holding that it was mandat01y for
the petitioner when filing an election petition to deposit the amount of
Rs. 2000 /- under s. 117 of the Act and there is no provision under
which a discretion was conferred on the High Court to reduce the
amount of security deposit as prayed for by him. The High Court
referred to sub-s. (2) of s. 117 under which the High Court has been
empowered to call upon the petitioner to give such further security for
costs as it may direct, which dearly indicates that while there is a provision empowering the High Court to call upon the petiticner to give
such further security for costs, there is no provision similarly e]P.powering it to absolve the petitioner from making any security deposit or to
reduce the amount required to be deposited under the Act.
We think
the High Court was right in holding that it is not competent to reduce
the amount of security deposit or to dispense with it.
It was contended before us that the petition can only be dismissed
after the trial commenced and the trial commences only after notices
a~e issued to the respondents. In support of this proposition, provis10ns of the repealed s. 85 of the Act are referred to.
We are uuable
to appreciate how the repealed s. 85 of the Act furthers the submission
of the petitioner or has any relevance. It is apparent that prior to
repeal by Act 47 of 1966, s. 81 provided for the presentati6n of the
election petition by any candidate aggrieved by the result of the election to the Election Commission; s. 83 prescribed what the contents of
the petition should be; and s. 85 provided :
"If the ·provisions of section 81, section 83 or section
117 are not complied with, the Election Commission shall
dismiss the petition :
P!ovided th~t · ~ a person ma~ing the petition satisfies the
Election Commission that sul!ic1ent cause existed for his
7-L373Supci/74
296
SUPREME COURT REPORTS
[1974] l s.c.R.
failure to present the petition within the period prescribed
therefor, the Election Commission may in its discretion condone such failure."
Presentation of the petition under the repealed s. 81', beyond the period
prescribed for its presentation could be condoned by the Election Commission in its discretion under the proviso to the repealed s. 85 of the
Act, but there is nothing in s. 85 which permits the Election Commission to condone the· non-compliance with the provisions of s.
117.
Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it
under s. 85 for non-c9mpliance with the requirements of ss.
81, 83
and 117, it has to appoint an Election Tribunal for the trial of the petition.
The trial by the Tribunal therefore is only after compliance with
the mandatory provisions prescribed in ss. 81, 83 and 117 so that the
trial is unrelated to the non-compliance by the petitioner with the requirements of s. 117.
After the amendment, the jurisdiction of both
the Election Commission and the Tribunal in respect of election disputes has been abolished and the High Courts of respective States have
been vested with the jurisdiction in this regard.
But the conferment
of jurisdiction to entertain, try and determine an election petition has
not in any way materially affected the position stated by us, as will be
presently indicated.
·The right to challenge an election is a right provided by Art. 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.
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 presentaticm 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 ccnferred in respect of any of
these matters, none can be exercise!l 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, Namekkal Constituency
and Others(!) 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 he exercised in
accordance with the Jaw which creates it.
On behalf of the appellant the case of K.
Kamaraja Nadar v.
K unju Thevar and Others(2 ) has been relied upon in support of the
submission that the provisions of s. 117 of the Act are directory and
not mandatory in their character.
An examination of this decision
(!) [1952) 5.C.R. 218
(2) [1959] S.C.R, 583
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c. L. SAHU v. N. K. BHATT (Jaganmohan Reddy, J.)
297
does not support this contention of the appellant.
That was a case
under the unamended s. 117 of the Act under which the petitioner was
required to enclose with the petition a Government Treasury receipt
showing that a deposit of one thousand rupees had been made by him
either in a Government Treasury or in the Reserve Bank of India in
favour of the Secretary to the Election Commission as security for the
costs of the petition.
The petitioner therein had deposited Rs. 1000/·
but had not 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 laid down in the aforesai(l section.
The Election Commission discussed this defect and left the question to
the Tribunal to dec"tde after hearing the parties whether the defect
could be treated as fatal or one that could be cured by fresh deposit or
otherwise so as to secure the costs of the candidate if
eventually
awarded to him. The Tribunal held that there was no defect in the
matter of the head of acoount and was further of opinion that nonmention of the fact that the deposit was made in favour of the secretary
to the Election Commission was immaterial in that it was
taken to
have been made in favour of the Election Commission at whose disposal the fund was placed, and accprdingly
there
was
sufficient
compliance with the requirements of s. 117 of the Act. In that case
this Court after examining in detail the procedure relating to
the
filing of the election petition observed at p. 606 :
"It would be absurd to imagine that a deposit made either
iA 'II Government Treasury or in the Reserve Bank of India
in favour of the Election Commission itself would not be
sufficient oompliance with the
provisions of
s. 117
and
would involve a dismissal of the petition under s.
85 or
s. 90 ( 3). The above illustration is sufficient to demonstrate
that the words "in favour of the Secretary to the Election
Commission" used in s. 117 are directory and not mandatory
in their character.
What is of the essence of the provision
contained in s. 117 is thaf the 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
l!(ilised by it in the manner authorised by law and is under
its control and payable on a proper appliaction being made
in that behalf to the Election Commission or to any person
duly authorised by it to receive the same, b~ he the Secretary to the Election Commission or any one else."
This decision, therefore, cannot come to the rescue of a petitioner who
has failed to deposit the security as required under s. 117 of the Act
or has paid less than the amount specified therein.·· The decision in
Lalaram v. The Supreme Court of India and Others('') has no rele•
vance to the matter in issue because as pointed out by the High Court
that case relates to security being furnished for filing a review petition
under the Supreme Court Rules, which stands on a .different footing.
(l) AIR 1967 SC 847
298
SUPREME COURT REPORTS
[ 1974] 1 S.C.R.
The argument of the appellant's advocate that in view of the margiMl note to s. 86 election petition can only be dism(ssed after the trial
has commenced by the issue of a notice to the respondent is equally
without substance.
Amended s. 86 apart from sub-s. (1)
proyides
for several matters in sub ss. (2) to (7) such as for reference of the
election petition or election petitions, where there is more than one in
respect of the same election, to a Judge, the ordering of security far
costs in case of the application by a candidate who is not already a
respondent being made a respondent, the permission to amend or
amplify particulars of any corrupt practice alleged in the petition, the
continuance of the trial of the election petition from day to day and its
expeditious trial to be cbncluded as far as possible within six months
from the presentation of the petition to the High Court. The reference
to trial is in a larger sense and deals with the steps in a trial rather
than in a narrower sense of a trial commencing after the notice of the
petition is directed to be served on the respondent. The marginal note
of s. 86, namely, "Trial of election petitions" does not indicate that
under sub-s. ( 1) of s. 86 an election petition clannot be dismissed for
non-compliance with the provisions set out therein, unless notice is
issued to the respondent. Where the language is clear and can admit
of po other meaning such as is evidence from sub-s. ( 1) of s. 86, the
marginal cannot be read to control that power.
We are clearly of the view that the non-deposit of the security along
with the election petition as required under s. 117 of the Act leaves no
option to the Court but to reject it.
The appeal is accordingly dismissed with costs.
S.B.W.
Appeal dismissed.
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