@JUDGMENTTAG-ORDER
Kuranga, J.@mdashThis election petition (hereinafter referred to as ''the Petition'') has been filed by the petitioner viz., Shivaji Rao M. Poal (hereinafter referred to as ''the Petitioner'') for declaring that the declaration of result of Respondent No. 1 from No. 35 Sandur Assembly Constituency as null and void; declaring that respondent No. 1 has committed corrupt practices under Sections 123(6) read with Section 100(1)(b) and 100(1)(d)(ii) of the Representation of the People Act, 1951 (for short ''the Act''); declaring that the result of the election of respondent No. 1 as having been materially affected u/s 100(1)(d)(iii)& (iv) of the Act; declaring that the fifth respondent has procured the maximum valid votes; and to order for recount of all the votes including rejected votes and name respondent No. 1 as having committed corrupt practices u/s 98 of the Act and such other persons who have committed the corrupt practices.
2. After service of summons on respondent No. 1 he has come up with this application - I.A. I for dismissal of the petition on the ground that there has been non-compliance with the mandatory provision of Section 117 of the Act and hence the Petition is liable to be dismissed u/s 86 of the Act and the petition filed by the petitioner on behalf of Respondent No. 5 as an election agent is not maintainable.
3. The learned Counsel for the petitioner and the Counsel for respondent No. 1 after submitting their arguments, filed written submission and additional written submissions on behalf of the petitioner and respondent No. 1.
4. After addressing the arguments, both the counsel on 26.5.2000 submitted that the question whether the petition is liable to be dismissed u/s 86 of the Representation of People Act for non-compliance of Sections 81 and 117 of the Act may be decided in the first instance. Accordingly, the question whether the election petition is liable to be dismissed u/s 86 of the Representation of People Act for non-compliance of Sections 81 and 117 of the Act was raised and both the parties submitted that they would lead evidence on this point. Accordingly they led evidence.
5. Petitioner was examined as P.W. 1 and respondent No. 5 in the petition was examined as P.W. 2. Five documents were marked in the evidence of P.W. 1. Exs.P6 and P7 were marked in the evidence of P.W.2. The doctor who treated P.W.2 was examined as P.W.3. Exs. P8 to P10 were marked in his evidence.
6. The gist of the arguments of the learned Counsel for both the parties and the written submission and Additional written submissions submitted by them are as follows:
The learned Senior Counsel for respondent No. 1 submitted that Sub-Section 1 of Section 117 of the Act provides that at the time of presenting the Election Petition, the petitioner shall deposit in the High Court a sum of Rs. 2000/- as security for costs and Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117 of the Act. He submitted that in the present case, the petitioner has not deposited a sum of Rs. 2000/- but respondent No. 5 (in the Petition) has deposited the said amount according to Exhibit P5, the receipt produced along with the Petition. In Para 13 of the Petition it is stated that the Petition is filed for and on behalf of respondent No. 5 and that the security amount has been deposited in his name. It is also stated that the petitioner is an Election Agent of respondent No. 5. The receipt, Exhibit P5 shows that the cost has been deposited in the Petition of Heroji Lad, i.e., respondent No. 5. No such petition is filed by Heroji Lad. No doubt, Rule 22 of the High Court Rules does not provide that the Certificate should be in the name of the petitioner, but according to Section 117 of the Act, the petitioner shall deposit the cost. In this case, the petitioner has not deposited the cost, but according to Exhibit P5 only respondent No. 5 has deposited the cost and therefore it has to be held that the petitioner has not complied with Section 117 of the Act.
7. He further submitted that Sections 79(b), 81, 86, 117 of the Act and Rule 22 of the Election Petition Procedure Rules of Karnataka (hereinafter referred to as ''the Rules'') make the position clear that an election petition can be filed only by a contesting candidate or an elector and that the petitioner shall deposit the security amount. However, the mode of payment or the procedure can be regulated by each High Court. The High Court of Karnataka, by Rule 22 of the Rules has prescribed that the costs shall be paid in cash and the certificate issued shall be accompanied along with the election petition. The first part of Sub-section (1) of Section 117 provides that " at the time of presenting an election petition, the petitioner shall deposit in the High Court a sum of Rs. 2,000/- as security for the costs of the petition" and it is mandatory. He has relied upon the Judgment of the Supreme Court in
8. The learned Counsel also relied upon the Judgment of the Supreme Court in
9. The learned Senior Counsel submitted that the election agent is appointed u/s 40 of the Act. Section 45 of the Act provides that an election agent may perform such functions as are authorised by or under the Act. The functions of an election agent authorised under the Act are as provided under Sections 36(1), 37(1), 43, 46, 47, 50, 64 and 77(1) of the Act. He submitted that an election agent can perform only such of the functions as are authorised by or under the Act. Filing of an election petition is not one of the functions authorised to an election agent under the Act. The election agent being the alter ego of the candidate can perform such functions in connection with the ''election''. The process of election comes to an end with the declaration of results in Form 21-C. Once there is declaration of result in Form 21-C the process of election comes to an end and the agency of the election agent comes to an end. The Act does not authorise the election agent any function after the process of election is over.
10. The learned Counsel relied upon the Judgment of the Supreme Court in
"As we have seen, the most important question for determination is the meaning to be given to the word ''election'' in Article 329(b) of the Constitution. That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected."
11. He also relied upon the Judgment of the Supreme Court in
"We are of the opinion that the process of election came to an end only after the declaration in Form 21C was made and the consequential formalities were completed."
12. He further submitted that Section 81(1) of the Act provides that the Election Petition can be filed either by a candidate or an Elector. The candidate is defined in Section 79(B) of the Act to mean a contesting candidate. The Elector has been defined in Section 2(e) of the Act. For the purpose of presentation of Election Petition, Elector is defined to mean a person who was entitled to vote at the Election to which the petition relates. Right to challenge an election conferred by Article 329 of the Constitution is a statutory right and hence the terms of that statute has to be complied with. The general law and principles of equity have no application to election law. Section 81 requires an Election Petition to be filed by a candidate or an Elector candidate is defined u/s 28(a) to mean a contesting candidate. An explanation to Section 81 defines the Elector for the purpose of Sub-section 1 of Section 81 to mean a person who was entitled to vote. The Act does not contemplate filing of an Election Petition by any other person other than a candidate or an Elector. The present petition field by the petitioner for and on behalf of respondent No. 5 who is a contesting candidate is no Election Petition in the eye of law.
13. He further submitted that Section 40 of the Act provides for appointment of Election Agents. Section 45 of the Act provides that an Election Agent may perform such functions in connection with election as are authorized by or under the Act. An Election Agent appointed u/s 40 of the Act can perform only such of those functions in connection with the election as are authorized by the Act. Filing of Election Petition is not one of the functions of an Election Agent. The function of an Election Agent ceases upon the declaration of the results of the election since the process of election lasts only from the date of filing of the nomination to the declaration of results. His appointment terminates automatically with the declaration of results. He submitted that the functions and duties of the Election Agents are enumerated in the Book of Chawla''s Elections Law and Practice at Page 1.194 which are as follows:
"An election agent may perform such functions in connection with the election as are authorised by or under the Act (Section 45, Act 1951). These are:
(a) to attend at the time of scrutiny of nominations and examine objections, if any, thereto; (Section 36(1), Act 1951)
(b) to deliver withdrawal of the candidature of the candidate, if authorized in this behalf by him in writing; (Section 37(1), Act 1951)
(c) to appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of the candidate at each polling station; (Section 46, Act 1951)
(d) to appoint counting agent or agents to be present at the time of counting; (Section 47, Act 1951)
(e) to revoke the appointment of a polling agent or counting agent and to appoint another polling agent in his place, or in the place of a deceased polling or counting agent; (Section 43, Act 1951)
(f) to attend at polling station and if necessary, to perform the functions of a polling agent; (Section 50, Act 1951)(g) to attend at the time of counting and, if necessary, to perform the functions of a counting agent; (Section 64, Act 1951)
(h) to keep a separate and correct account of expenditure in connection with the election, incurred to authorized by him or by the candidate; (Section 77(1), Act 1951)."
14. Hence, the petition filed by the petitioner as an Election Agent of respondent No. 5 is not maintainable and it is liable to be dismissed.
15. The learned Counsel relied upon Judgment in M. Karunanidhi''s case and submitted that the Election must be challenged in accordance with Representation of People Act which is a special law and a complete code in itself. The Election Petition filed by the petitioner as an Election Agent of respondent No. 5 is not maintainable. The Supreme Court in the said case held that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. 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. The Representation of the People Act having furnished a complete Code for challenging an election, the election must be challenged in the manner provided. The pleadings of the petitioner in this petition show that the petitioner has filed this petition as an Election Agent of respondent No. 5. He has not stated that he has filed the Election Petition as an Elector.
16. The learned Senior Counsel after referring to the statements made in para -13 of the petition and the statement made by respondent No. 5 in Ex.P6, the counter affidavit filed by him to the application filed by R1 for dismissal of the election petition and some sentences in the evidence of P.W.1 and the documents Exs. R1 to R3 submitted that from the pleadings and the evidence it becomes clear that the petitioner and respondent No. 5 have been taking inconsistent position, the evidence of one contradicts the other. After referring to the evidence of R.W.1 and Exs. R1 to R3, he submitted that the procedure followed by the Registry in issuing certificate Ex.R5 is in accordance with law. He further submitted that the pleadings of the petitioner and the evidence adduced on his behalf establish that initially respondent No. 5 wanted to file the election petition and accordingly instructed his counsel to obtain the receipt order in his name and for filing the election petition. Subsequently, for the reasons best known to him, he asked the present petitioner to file his election petition. While doing so, he appears to have instructed the petitioner to use the same receipt order instead of obtaining a fresh receipt order in his name and accordingly, the petitioner has filed the election petition by enclosing the certificate issued by the Registry in favour and for filing the election petition of Respondent No. 5 and thus the entire testimony on the petitioner''s side affirms the attempt to resile from the position of facts categorically stated in the petition and constitutes an attempt to present a new case unrelated to the pleadings clearly with a view to overcome the case set by Respondent No. 1 in opposition to the petition. This attempt is spurious, contrary to established facts and cannot be countenanced.
17. The learned Counsel for the petitioner submitted that though the receipt, Exhibit P5 is in the name of respondent No. 5, the petitioner himself has deposited the costs in this petition. Hence there is substantial compliance of Section 117 of the Act. Therefore, the petition is not liable to be dismissed at this stage on the ground that the petitioner has not deposited the costs. She submitted that according to Section 117 of the Act, the petitioner has to deposit the cost, but the High Court Rules do not provide as to who would deposit the cost and in whose name receipt is to be obtained.
18. The learned Counsel for the petitioner has relied upon the Judgment of the Supreme Court in M. Karunanidhi''s case and submitted that the amount of costs has to be deposited by the petitioner in accordance with Rules of the High Court and it is directory. The mode of making deposit is an internal matter of the concerned High Court. The High Court Rules do not provide as to who should deposit the cost. The Supreme Court in the said case has held that the second part of Section 117(1) of the Act regarding the requirement of deposit in the High Court in accordance with the Rules of the High Court is directory. The Court observed that there are different sets of rules framed by different High Courts under Article 225 of the Constitution regulating the practice and procedure to be observed in all matters coming before the High Court in exercise of its jurisdiction u/s 80-A of the Act. The words "in accordance with the rules" in Section 117(1) of the Act connote "according to the procedure prescribed by the High Court." She submitted that the petitioner has stated in para 13 of the Election Petition that the petitioner has deposited the amount in the name of respondent No. 5. In his evidence also he has stated that he has deposited the amount. She further submitted that respondent No. 5 has stated in the counter affidavit filed by him to the application filed by the first respondent for dismissal of the Election Petition that the petitioner has deposited the amount in his name i.e., Respondent No. 5 as the relief claimed by him was to the effect that respondent No. 5 should be declared elected. The money had been paid by the petitioner and the same is towards the security for costs that would be available for the Court to award to the successful party on disposal of the election petition. He has stated that though respondent No. 5''s name is shown in the R.O. deposit, he had not deposited the money and it is the petitioner who has deposited the amount in his name. In his evidence also he has stated that the petitioner has deposited the amount and that he has not deposited the amount. This shows that the security for costs has been deposited by the petitioner and not by respondent No. 5. Hence, the petition filed by the petitioner cannot be dismissed on the ground that he has violated Section 117 of the Act.
19. The learned Counsel for the petitioner further submitted on the basis of the Judgment of the Supreme Court in K. KAMARAJA NADAR v. KUNJU THEVAR AND ORS. 14 ELR 270 that literal compliance with the terms of Section 117 is not necessary. Substantial compliance of Section 117 is sufficient so long as the money is available for awarding the costs to the respondent it is sufficient compliance of Section 117 of the Act.
20. The learned Counsel for the petitioner further relied upon the Judgment of the Supreme Court in BUDHINATH JHA v. MANILAL JADAV 22 ELR 86 and submitted that even in a case in which the petitioner has a Government Treasury receipt showing that a sum of Rs. 1,000/-has been deposited as security for the costs of the petition, the Supreme Court held that the mere fact that the deposit receipt does not expressly show on the face of it that the deposit is made in favour of the Secretary, Election Commission, is no ground for summarily dismissing the petition u/s 90(3) of the Act on the ground of non-compliance with Section 117 of the Act. She further submitted that in the said case the Supreme Court held that the deposit must evidently be taken to be security for the costs of the election petition to which the receipt is attached.
21. The learned Counsel for the petitioner relied upon the Judgment in KESHAO PRASAD v. A.D. MANI AND ORS. M.P. High Court 23 ELR 171 and submitted that the deposit of the costs can be made not only by the petitioner, but also by some other person. She submitted that in the said case the amount of costs was deposited in the name of the counsel and the Madhya Pradesh High Court while referring to the Judgments of the Supreme Court in CHANDRIKA PRASAD AND KAMARAJA NADAR supra held that the amount of deposit made by respondent No. 1 in that case was in accordance with law.
22. She further submitted that Section 78 of the Act provides that every contesting candidate at the election or his Election Agent shall within 30 days from the date of election of the candidate lodge an account of his election expenses with the Election Officer.
23. She submitted that Rule 86 of the Conduct of Elections Rules, 1961 provides that the details of the outstanding amount of expenditure should be given not only by the candidate, but also by his Election Agent. The arguments of the learned Counsel for respondent No. 1 that the Election Agent ceases to be the Election Agent after the declaration of the results of the Election is accepted, the Election Agent cannot give the details of the outstanding amount of expenditure after the election is over as required by Rule 86 of the Conduct of Elections Rules, 1961. Hence this argument of the learned Counsel for respondent No. 1 cannot be accepted.
24. She further submitted that the Proforma issued by the Election Commissioner and in the Note below says if it is lodged by the Agent it should be countersigned by the candidate. Instructions issued by the Election Agent are the laws. Section 100(d)IV provides that any orders made under the Act by the Election Commissioner are the laws. Article 324-A gives the powers to the Election Commissioner to issue instructions. If the instructions given by the Election Commissioner are violated, the Election Agent is also liable for prosecution. She further submitted that an Election Agent is the alter ego of the candidate as held by the Supreme Court in
25. She further submitted that Section 81 provides the presentation of the petition by the candidate or Elector. The petitioner is an Elector and he has stated in Para 13 of the petition that he is the voter of Sandur Constituency. Therefore the petitioner being an Elector can maintain the petition. Even if it is held that the Election petition filed by the petitioner as an Election Agent of respondent No. 5 is not maintainable for any reasons, the petition filed by the petitioner as an Elector is certainly maintainable. She submitted that the petition filed by the petitioner can be treated as petition filed by the Voter and the same cannot be dismissed. She submitted that respondent No. 1 has not disputed that the petitioner is an Elector and hence the application, I.A.I filed by respondent No. 1 for dismissal of Election Petition is liable to be dismissed.
26. The learned Counsel for the petitioner submitted that para-13 of the petition has to be read along with the prayers in the petition. One of the prayers in the petition is to declare that the 5th respondent has procured the maximum valid votes. Therefore the petitioner has stated in para-13 that the petition is filed on behalf of respondent No. 5.
27. The learned Counsel further submitted that in Para 14 of the petition the petitioner has stated that he has deposited a sum of Rs. 20007- as security deposit as per Certificate dated 12.11.99 and the same is marked as Exhibit P5. and this statement has not been denied on behalf of respondent No. 1. Therefore, it has to be held that the petitioner has deposited Rs. 2000/- as security deposit.
28. it is further submitted that in Para 2 of the Writ Petition No. 40569/99 filed by the petitioner earlier, the copy of which is marked as Ex. P3, the petitioner has stated that in view of various corrupt practices and certain illegalities and irregularities committed by the winning candidate the petitioner is filing an election petition calling in question the election of the winning candidate. This also shows that the petitioner wanted to file the election petition calling in question the election of respondent No. 1 and accordingly he has filed the present petition.
29. The learned Counsel further submitted that in the pleadings the petitioner has also stated that he has filed the petition and deposited the security deposit of Rs. 2000/- in the name of respondent No. 5. Therefore, merely because Exhibit P5 stands in the name of respondent No. 5, it cannot be said that the petitioner has not deposited the amount. The learned Counsel also submitted that the security deposit of Rs. 2000/- is available for awarding the same to the winning party. Thus, the petitioner has complied with Section 117 of the Act and the petition cannot be dismissed on the ground that the petitioner has not complied with this Section.
30. The point raised for consideration is, whether the election petition is liable to be dismissed u/s 86 of the Representation of the People Act for non-compliance of Sections 81 and 117 of the Act.
31. For considering this question, the relevant provisions in the Act are, Sections 181, 84, 86 and 117 of the Act and Rule 22 of the Election Petitions Procedure Rules, Karnataka.
32. Section 81 provides that an Election Petition calling in question any election may be presented on one or more of the grounds specified in Sub-section 1 of Sections 100 and 101 to the High Court by any candidate at such election or any elector...... Explanation says ''Elector'' means a person who was entitled to vote at the election to which the election petition relates. Whether he has voted at such election or not.
33. Section 84 provides that a petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.
34. Section 86 provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or 82 or 117 of the Act.
35. Section 117 provides that at the time of presenting an election petition the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the cost of the petition.
36. Rule 22 of the High Court Rules reads thus:
"The security for cost shall be paid in cash. Every petition shall be accompanied by a memorandum with a certificate from the Accounts branch of the High Court that an amount of Rs. 2000/- has been deposited as security."
37. The relevant statement made by the petitioner in the petition for considering this question are as follows;
Para-13 of the election petition filed by the petitioner reads thus:
"It is submitted that the petitioner is filing this petition on behalf of 5th respondent who is unwell and has been medically advised to take rest. The petitioner is an election agent of the 5th respondent and as such he has deposited the amount in the name of 5th respondent and is a voter of the Sandoor Constituency."
38. The prayers in the petition are as follows:
(a) Declare that the declaration of result of respondent No. 1 from 35th Sandoor Assembly Constitutency is null and void.
(b) Declare that respondent No. 1 has committed corrupt practices u/s 123(6) read with Sections 100(1)(b) and 100(1)(d)(ii) of the Act.
(c) Declare that the result of the election of respondent No. 1 as having been materially affected u/s 100(1d)(iii) and (iv) of the Act.
(d) Declare that respondent No. 5 has procured the maximum valid votes.
39. The learned Senior Counsel for respondent No. 1 submitted that Ex.P5, the receipt produced along with the petition shows that Heroji Lad ie., respondent No. 5 herein remitted a sum of Rs. 2000/-towards security deposit. This shows that it is deposited in the election petition of respondent No. 5. But, respondent No. 5 has not presented the election petition. If the petition is to be treated as the one filed by respondent No. 5 since he has furnished the security deposit according to Ex.P5 then, there has been non-compliance with the provision of Section 81 of the Act inasmuch as respondent No. 5 has not presented the petition, if on the other hand, the petition is to be treated as the one filed by the petitioner since he has presented the petition then there has been non-compliance with the provisions of Section 117 because he has not furnished the security deposit. Therefore, there is non-compliance of the provision of Section 81 or 117 of the Act and therefore the election petition is liable to be rejected u/s 86(1) of the Act.
40. The learned Counsel, relying upon the Judgment of the Supreme Court in M. Karunanidhi''s case submitted that Section 117 of the Act contains two parts. The first part of this Section is mandatory and the second part is directory. If there is non-compliance of the first part of Section 117 of the Act which is mandatory then the petition is to be dismissed as the same has not been complied with by the petitioner.
41. The learned Counsel relying upon the Judgment in Charan Lal Sahu''s case submitted that the non-deposit of security along with the election petition as required u/s 117 of the Act leaves no option to the Court but to reject it.
42. The learned Counsel for the petitioner submitted that though the receipt Ex.P5 is in the name of respondent No. 5, the petitioner himself has deposited the cost in this petition. Thus, the petitioner has complied with the requirement of the said Section.
43. Further she submitted that according to the said Section, the petitioner has to deposit the cost but the High Court Rules do not provide as to who should deposit the cost and in whose name receipt is to be obtained.
44. Relying upon the Judgment in M. Karunanidhi''s case she submitted that the amount of cost is to be deposited by the petitioner in accordance with Rules of the High Court and it is directory.
45. The learned Counsel further submitted that in Para-13 of the petition the petitioner has stated that he has deposited the cost of Rs. 2000/- in the name of respondent No. 5. Respondent No. 5 has also stated in his counter-affidavit filed by him to the application filed by respondent No. 1 for dismissal of the election petition that as he was still an inpatient he asked the election agent to file the petition and to take steps to deposit the required amount and the petitioner has deposited in his name as the relief claimed by the petitioner was to the effect that respondent No. 5 should be declared elected. She also submitted that even in his evidence the petitioner has stated that he has paid the security amount of Rs. 2000/- and respondent No. 5 also stated that he has not deposited the amount.
46. The learned Counsel relying upon the Judgment of Karunanidhi''s case submitted that literal compliance with the terms of Section 117 is not necessary. Substantial compliance of Section 117 is sufficient so long as the money is available for awarding the costs to the respondents it is sufficient compliance of Section 117 of the Act. Further relying upon the Judgment of Budhinath Jha''s case she submitted that the deposit must evidently be taken to be security for the costs of the election petition to which the receipt is attached.
47. Both the Counsel relied upon the Judgment of the Supreme Court in M. Karunanidhi''s case. In the said Judgment the Supreme Court held that Sub-section (1) of Section 117 of the Act is in two parts. The first part that the petitioners should deposit a sum of Rs. 2000/- as security for the cost of the petition is mandatory and the requirement of deposit in the High Court in accordance with the rules of the High Court is directory. Rule 22 of the High Court rules does not provide as to who should deposit the cost and whose name the receipt is to be obtained. In the present case the petitioner has stated in the petition as well as in his evidence that he has deposited Rs. 2000/- towards the cost of the petition. Even respondent No. 5 who has been examined as P.W.2, in whose name the certificate Ex.P5 stands has also stated in his evidence that he has not deposited the cost in this petition.
48. The petitioner has stated in his evidence that the money paid by him is his own money. Even in the cross-examination he has stated that he only paid the money towards the cost.
49. P.Ws-1 and 2 have stated that the money deposited may be paid as cost to the successful party. Thus, it is clear that the amount deposited is available to the Court for awarding the same as cost to the successful party. There is no other evidence to show that P.W.2 has paid or deposited the cost in this petition.
50. Though the receipt Ex. P5 is in the name of respondent No. 5, the averments in the petition filed by the petitioner and the evidence adduced on behalf of the petitioner show that the amount deposited towards the security deposit has been made by the petitioner only. Thus, there is sufficient compliance of the mandatory provision of Section 117 of the Act in this case.
51. The Supreme Court in Kamaraja Nadar''s case held thus:
"What is of the essence of the provision contained in Section 117 is that 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 utilized by it in the manner authorized by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorized by it to receive the same, be he the Secretary to the Election Commission or any one else."
52. P.Ws. 1 and 2 have stated that they have no objection for utilizing the money for awarding the cost for the person who succeeds in the case. Thus, the money in deposit is available to the Court for awarding the cost to the successful party in this case.
53. In Budhi Nath Jha''s case the petitioner had enclosed a Government treasury receipt showing that a sum of Rs. 1000/- had been deposited as security for cost of the petition. But, it did not expressly show on the face of it that the deposit was made in favour of the Secretary, Election Commission. The Supreme Court held, the fact that the receipt does not in terms specify that the deposit is made for the cost of that particular election petition is also not a ground for dismissing the petition u/s 90(3) of the Act, for the deposit must evidently be taken to be security for the costs of the election petition to which the receipt is attached.
54. Ex.P5 has been enclosed to the present election petition filed by the petitioner. Therefore the deposit made by the petitioner in this case has to be taken as security for the cost of this election petition.
55. In CHANDRIKA PRASAD TRIPATHI v. SHIV PRASAD CHANPURIA AND ORS. 21 E.L.R. 1960, 172 the Supreme Court has held that Section 117 of the Act should not be strictly and technically construed and if the provisions of the Section are substantially complied with, an Election petition should not be dismissed u/s 90(3) of the Act. In the said case, the deposit receipt produced did not show that it was made in favour of the Secretary of the Election Commission but showed that the deposit was made as security deposit for the election of a particular Assembly Constituency and was refundable by the order of the election commission only. The Court held that there was sufficient compliance with Section 117 and the election petition could not be summarily dismissed u/s 90(3) of the Act.
56. The explanation of the petitioner for obtaining the receipt in the name of respondent No. 5 is that since he has prayed for in the election petition to declare respondent No. 5 as elected, he has deposited the amount towards the security deposit in the name of respondent No. 5. u/s 84 of the Act, the petitioner can ask for such a relief. In the circumstances, it is difficult to reject this explanation of the petitioner.
57. Accepting the evidence of RWs. 1 and 2, I hold that the petitioner has complied with the requirements of Section 117 of the Act in this Case.
58. In Charanlal Sahu and Aeltemesh Rein''s cases, the security deposit was not made and therefore the Supreme Court held in those cases that when there is non-deposit of the security along with the petition as required u/s 117 of the Act leaves no option to the Court but to reject it. Therefore, the said Judgments are not helpful to the case of respondent No. 1.
59. Section 81 of the Act provides that an election petition calling in question any election, may be presented on one or more grounds specified in Sub-section (1) of Sections 100 and 101 to the High Court by any candidate at such election or any elector. The explanation to Sub-section 1 shows ''elector'' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
60. There is no dispute in this case that the petitioner is a voter. The dispute is whether the petitioner has presented the petition on behalf of respondent No. 5 as his election agent or presented the petition as an elector.
61. The learned Counsel for respondent No. 1 pointed out some statements made by the petitioner and respondent No. 5 herein in their pleadings and their evidence and submitted that the petitioner and respondent No. 5 have been taking inconsistent positions.
62. The petitioner has not only stated in the petition that he has filed the petition on behalf of respondent No. 5 but he has also stated in para -13 that he is a voter of Sandoor Constituency. The statement that he is a voter of the said Constituency has not been denied by respondent No. 1. The petitioner in his evidence also stated that he is the voter from 35 Sandoor Assembly constituency. In the cross-examination also he has stated that since he is a voter he has filed the election petition. The petitioner has stated in the petition that He is a voter. He has also stated in his evidence that he is a voter. So far as this aspect is concerned thus there is consistency between the pleadings of the petitioner and his evidence.
63. Ex. P2 the voter list of Karnataka Assembly for the year 1995 shows that the petitioner is the voter of 35 Sandoor Assembly Constituency. Thus, it is clear that the petitioner is a voter of the said constituency and he has presented the petition. Therefore, the learned Counsel for the petitioner submitted that the petition may be taken as the one filed by the petitioner as a voter of the said constituency. Since the petitioner has stated in the petition as also in his evidence that he is a voter and has presented the petition as a voter it is difficult to reject this contention. Hence, the petition filed by the petitioner as a voter has to be accepted. Thus, the petitioner has complied with Sections 81 and 117 of the Act. Therefore, the election petition filed by the petitioner cannot be rejected at this stage and I.A.I, filed by respondent No. 1 is liable to be dismissed and it is accordingly dismissed,
64. In view of this finding, consideration of the other question whether the petition filed by the petitioner as an election agent of respondent No. 5 is maintainable or not, is not necessary.
