1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. Bajrang Lal vs. Kanhaiya Lal & ors. S.B. Civil Misc. Appeal No.1334/2006 against the Judgment dated 22.8.2006 passed by the learned District Judge, Bikaner in Election Petition No.259/2005. Date of Judgment: December 14th, 2006. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. N.S. Acharya, for the appellant. Mr. Vikas Balia ) Mr. D.D. Chitlangi ) for the respondents. Mr. K.K. Bissa ) BY THE COURT: REPORTABLE Heard learned counsel for the parties. This appeal is under Section 46 of the Rajasthan Municipalities Act, 1959 (for short 'the Act of 1959' hereinafter) against the judgment of the trial court dated 22.8.2005 passed in Election Petition No.259/2005. 2 The election petitioners-respondents Kanhaiya Lal and Suresh Kumar submitted election petition under Section 34 read with Section 40 of the Act of 1959 to challenge the appellant-Bajrang Lal's election as Member of the Municipal Council, Nokha for Ward No.21 on the ground that the appellant Bajranglal non- petitioner no.4 before the court below was disqualified for being chosen as Member of the Municipal Council under sub-section (i-b) of Section 26 of the Act of 1959. The disqualification for being chosen as Member of the Municipal Council under sub-section (i-b) of Section 26 is that if a person is accused in criminal case and in which cognizance of the offence has been taken and the court has framed the charges against him of any offence punishable with imprisonment for five years or more. According to the allegations in the election petition, the appellant no.1-non-petitioner was facing trial of a Criminal Case No.171/2004 under Section 3/7 of the Essential Commodities Act, 1955 (for short 'the Act of 1955' hereinafter) and the court has already taken cognizance of the offence against the appellant accused and also framed the charges against him and according to the election petitioner respondent, the offence for which cognizance has been taken by the court against the appellant non- petitioner, was punishable with imprisonment for more than five years. The election petitioner respondent 3 submitted written objection before the Returning Officer at the time of scrutiny of the nomination paper but that objection was rejected by the Returning Officer by brief order, copy of which has been place on record by the election petitioner as Ex.1 (dated 6.8.2005). The Returning Officer took note of the allegation that the election petitioner Kanhaiya Lal submitted that the appellant Barjrang Lal is accused in criminal case under Section 3/7 of the Act of 1955 and wherein punishment provided is upto seven years' imprisonment and the court has already taken cognizance of the offence against the candidate Bajrang Lal. The Returning Officer sought guidance from the Election Commissioner but the Election Commissioner directed the Returning Officer to decide the objection in accordance with law at his own level. The Returning Officer rejected the objection simply on the ground that as per the provisions of Section 3 read with Section 7 of the Act of 1955, the punishment provided is from imprisonment of from three months to seven years, whereas as per sub-section (1-b) of Section 26 of the Act of 1959, a person is disqualified to contest the election in case he is facing trial of offence having punishment of imprisonment for five years or more and since the trial is going on, therefore, at this stage, it cannot be presumed that in case of conviction of the appellant, how much punishment will be given to the 4 appellant, as under Section 3/7 of the Act of 1955, the court can punish the accused with imprisonment from three months to seven years. Before the court below, the appellant elected candidate submitted reply to the allegations. The appellant submitted that under the provisions of Section 3 read with Section 7 of the Act of 1955, though the court has taken cognizance against him and has also framed the charge under Section 3/7 of the Act of 1955 but the charge is not clear. It is submitted that under different provisions of Section 3 read with Section 7, there are different punishments ranging from punishment from imprisonment for 3 months to 5 years. In sum of the provisions, the punishment provided is less than five years, therefore, the Returning Officer rightly did not reject the appellant's nomination paper. It is also submitted in para 3 of the reply that since there was some doubt for the punishment which could have been awarded to the appellant and since the criminal case was pending, therefore, the appellant was not disqualified to contest the election. The appellant-non-petitioner also submitted that there was no political influence over the Returning Officer and the Returning Officer accepted the candidature of the appellant on the basis of principle of natural justice and the procedure has not affected the election result. 5 It is also submitted by the appellant returned candidate that the non-applicant no.2 has been impleaded as party in the election petition by name and the Returning Officer has not been impleaded as party, therefore, also the election petition is not maintainable. Apart from contesting the election petition on merits, the appellant-non-petitioner submitted objection in writing before the court below and submitted that the applicants Kanhaiya Lal and Suresh Kumar have not deposited the security for the cost of the election petition as required under Section 53(1) of the Act of 1959. It is also submitted that the election petitioners have not signed the application dated 30.8.2005 by which permission was sought from the court for depositing the security amount. The applicants also did not sign the tender form for depositing the cost security under Section 53(1) of the Act of 1959. It is also alleged that on 30.8.2005, Shri G.K. Bajaj, Advocate, who deposited the security amount, was not competent person to deposit the cost security amount on behalf of the applicants because of the reason that Shri G.K. Bajaj was not the Advocate engaged by the election petitioners as the said advocate did not sign the Vakalatnama of the applicants. In sum and substance, firstly, the cost 6 security amount under Section 53(1) has not been deposited by the applicants themselves, secondly, the application for seeking permission to deposit the cost security amount has not been signed by the applicants, therefore, the deposit of security was not of applicants, thirdly, they did not sign the tender challan and fourthly, the amount deposited with signature of Shri G.K. Bajaj on 30.8.2005 is no valid deposit under Section 53(1) of the Act of 1959 as Shri G.K. Bajaj was not authorised to make deposit of cost security for the petition under Section 53(1) of the Act of 1959. Elaborating the objections, learned counsel for the appellant submitted that Section 53(1) of the Act of 1959 is very clear and it clearly provides that a person filing election petition shall enclose with petition the government treasury receipt showing that a deposit of Rs.200/- in case of city and Rs.100/- in case of any other Municipality, has been made “by him” in government treasury in favour of the Judge as security for the costs of the petition. The emphasis of the learned counsel for the appellant is on the words “by him” used in Section 53(1) of the Act of 1959. According to the learned counsel for the appellant, the election law is required to be construed strictly and the compliance of the provisions of Election Law is 7 mandatory and required strict proof of its compliance. According to him when under sub-section (1) of Section 53, it has been provided that the security for the cost is required to be deposited “by him”, then it is required to be deposited by the person, who wishes to file the election petition to challenge the election and no other person can deposit the security for the cost of the petition on behalf of the election petitioner. In the alternative, it is also submitted that even if it is held that any authorised person can deposit the security for the cost of the petition on behalf of the election petitioner, then in the present case, there is no proof on record that Shri G.K. Bajaj, Advocate, has been authorised by the election petitioners for depositing the security for the cost of the election petition. It is also submitted that on 30.8.2005 or even on 31.8.2005, the learned counsel Shri G.K.Bajaj was not given any Vakalatnama by the election petitioners and there is no other authority shown by the petitioners authorising Shri G.K. Bajaj to deposit the security of the cost of the election petition. It is submitted that the compliance of Section 53(1) is mandatory and consequence of non- compliance is provided under sub-section (2) of Section 53 of the Act of 1959 which provides that if the petitioner fails to deposit the security for the cost of the election petition, the court shall dismiss the 8 election petition. The learned counsel for the appellant vehemently submitted that when the consequence is provided by the statute itself for non- compliance of the mandatory provisions, the court has no option but to dismiss the election petition for non- compliance. It is submitted that right to challenge the election is a right given by the statute and not a general civil right and, therefore, the procedure provided for the general law may be directory in nature in given facts and circumstances but here in this case, firstly, it is a controversy in relation to the election dispute where the strict compliance of law is necessary and secondly, the provisions by its nature of pre-deposit of security for the cost of the election petition is mandatory and thirdly the consequence of non-compliance is only dismissal of the petition. The learned counsel for the appellant relied upon the judgment Charan Lal Sahu v. Nandkishore Bhatt & ors. (ELR(53) 284) as well as judgments of the Hon'ble Apex Court delivered in the cases of Aeltemesh Rein v. Chandulal Chandrakar and others (AIR 1981 SC 1199) and Uday Shaner Triyar v. Ram Kalewar Prasad Singh and anr. (AIR 2006 SC 269). On merits, the learned counsel for the appellant submitted that the court below has committed serious error of law in holding that the appellant was 9 disqualified for being chosen as Member of the Board under Section 26(1-b) of the Act of 1959. The learned counsel for the appellant vehemently submitted that it is is a case of no evidence and that the election petitioner did not appear in the witness box nor produced any evidence to prove their case against the appellant. It is also submitted that the election petitioner failed to plead sufficient material facts constituting any cause of action for getting the appellant declared disqualified under Section 26(1-b) of the Act of 1959. It is submitted that the allegation is absolutely vague and further it is clear from the charge framed against the appellant in the criminal case that the court has not mentioned which of the order passed by any competent authority under Section 3 of the Act of 1955, has been violated by the appellant- non-petitioner returned candidate. Under Section 3 of the Act of 1955, there are several clauses which empowers the Central Government to issue orders for control production, supply, distribution etc. Of essential commodities. The petitioners failed to produce any order of the Central Government, apart from the fact that he has not pleaded which of the order passed under Section 3 of the Act of 1955 has been violated by the appellant-non-petitioner. In absence of that it cannot be held that the appellant is facing trial of any offence for which punishment provided is 10 for more than five years. Learned counsel for the appellant further submitted that Section 3 of the Act of 1955 itself is not a provision making any act or omission punishable but it provides that the Central Government may issue orders and violation thereof may be offence punishable with imprisonment. Therefore, mere mention of Section 3 read with Section 7 in the order taking cognizance and in the charge framed against the appellant, cannot be said to be violation of any of the order of the Central Government, passed under Section 3 of the Act of 1955. It is also submitted that Section 7 provides for punishment (penalties) in case any person contravenes any order made under Section 3. Here in this case, as submitted earlier, the election petitioners failed to produce any order made under Section 3, therefore, there cannot be any application of Section 7 of the Act of 1955. Learned counsel for the appellant further vehemently submitted that it is clear from the entire reading of Section 7 that it provides even punishment of one year only under sub-clause (i) of clause(a) of sub-section (1) of Section 7. Therefore, the election petitioners failed to prove that the court has taken cognizance of any offence against the appellant for contravention of any order passed under Section 3 of the Act of 1955 having only punishment for more than five years imprisonment. 11 It is also submitted that it was the duty of the election petitioners to specifically level allegations constituting cause for filing the election petition but in this case, not only the election petitioners have not specified how the appellant can be punished for more than five years' imprisonment by the criminal court but despite objection raised in reply to the election petition by the appellant-non-petitioner, the election petitioners did not produce any evidence nor produced any document or order of the competent authority, which according to the election petitioners has been violated by the appellant. The learned counsel for the appellant vehemently submitted that the court cannot presume existence of any order under Section 3 of the Act of 1955 nor any order can be used against the appellant which has not been even shown to the appellant by the election petitioners. Learned counsel for the appellant vehemently submitted that it is settled law that in case where both the parties failed to lead evidence, the only course open for the court is to dismiss the petition. The learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court delivered in the case of Laxman Siddapa Naik v. Kattimani Chandappa Jampanna & 0rs. reported in AIR 1968 SC 929 and the judgment of this Court delivered in the case of Smt. 12 Tara Devi v. Smt. Sudesh Chaudhary reported in 1997[2] RLR 141. It is also submitted that when plea is not specific about the alleged allegation of taking cognizance of offence having punishment of more than five years against the appellant then no evidence can be looked into to prove the said fact. However, at the cost of repetition, the learned counsel for the appellant vehemently submitted that there is no evidence as well as pleading in the present case about the disqualification of the appellant. Learned counsel for the appellant also feebly submitted that the Returning Officer has not been impleaded as party by designation and has been impleaded by name because of the personal allegations against the Returning Officer. Learned counsel for the respondents submitted that the facts, particularly of court's taking cognizance and framing of charge against the appellant, are not in dispute and, therefore, there was no need to produce any evidence by the appellant. It is submitted that the respondents/election petitioners are not relying upon the weakness of the defence of the defendant- appellant but have proved the fact by positive evidence and from the admitted documents. It is submitted that so far as the objection raised by the appellant on the ground of non-compliance of deposit of security for cost of 13 petition is concerned, it is wholly untenable and not supported by any law. The learned counsel for the respondents vehemently submitted that the words “by him” mentioned in sub-section (1) of Section 53 of the Act of 1959 cannot be read to mean that the security for the cost of the petition can be deposited only by the election petitioner himself personally. It is also submitted that it is also not provided under the Act of 1959 that there must be authorization in writing by the election petitioners authorizing the person to deposit the security for the cost of the election petition. It is submitted that the compliance of Section 53(1) can be made by the election petitioners by depositing security for the cost of the election petition either himself or through any of his person irrespective of fact whether any written authority has been given or not. It is also submitted that there is no provision of dismissal of the election petition in case of non- compliance of sub-section (1) of Section 53, whereas the Legislature knowingly and cautiously provided under sub-section (2) of Section 53 that in case during course of the trial of an election petition, the Judge may at any time can call upon a petitioner to give such further security for costs and in case that order is not complied with by the petitioner, the court may dismiss the petition. It is also submitted that the Legislature cautiously has not provided such 14 consequence in sub-section (1) of Section 53. Even under Section 53(2), it is not mandatory that the court shall dismiss the election petition as it provides that the court may dismiss the election petition in case of non-compliance of order passed by the court under Section 53(2) of the Act of 1959. Apart from above, according to the learned counsel for the respondents, it may be gathered from the totality of the facts and the circumstances whether the petitioner has deposited the security for the cost of the election petition or not. It is vehemently submitted that the Vakalatnama is not a condition precedent for giving authority to the Advocate to deposit the security amount for the costs of the petition under Section 53. The learned counsel for the respondents pointed out that how the election petition can be presented, is provided under Section 36 of the Act of 1959 and as per Explanation-2 under Section 36, an election petition can be presented by the election petitioner himself or “by a person authorised in writing in this behalf by the person making the petition”. It is submitted that under Section 53(1) or even under sub-section (2) of Section 53, it has not been provided that the deposit is required to be made by a person authorised in writing by the election petitioner. Learned counsel for the respondents relied upon 15 the Division Bench Judgment of the Madhya Pradesh High Court delivered in the case of Kesheoprasad Hariharprasad vs. A.D. Mani and others reported in 1961 MPLJ 1021 wherein the fact in issue was whether the deposit made by the counsel for the petitioner mentioning it for security for election petition is sufficient compliance of Section 117 of the Representation of People Act, which is the provision pari materia to Section 53(1) of the Act of 1959 and the same words “by him” have been used under Section 117. The Division Bench of the Madhya Pradesh High Court held that “the said requisite deposit can be made by any person directed by the election petitioner to pay the amount. All that is necessary it to indicate clearly that the deposit is from the person filing the election petition.” The learned counsel for the respondents further submitted that Hon'ble the Apex Court in the case of Uday Shanker Triyar v. Ram Kalewar Prasad Singh and anr. reported in AIR 2006 SC 269 clearly held that the procedural provision should not be allowed to defeat the substantive rights or to cause injustice. In the said case, Hon'ble the Apex Court even after holding that the requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) is no doubt, mandatory. But it does not mean that non-compliance 16 should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. Hon'ble the Apex Court further held that if and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the defect by either signing the memorandum of appeal or by furnishing the Vakalatnama. The Hon'ble Apex Court also in the above case noticed that the Registry should properly check and verify the Vakalatnama. Advancing the argument further, the learned counsel for the respondents submitted that Hon'ble the Apex Court in the case of Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar reported in (2005) 2 SCC 188, after considering several earlier decisions of the Hon'ble Apex Court in the matter of election law, clearly held that it is sufficient if the procedural law has been complied with substantially. On the main issue, learned counsel for the respondents submitted that the person incurs disqualification immediately when the competent court of law takes cognizance of offence and frames charge against the person of any offence punishable with imprisonment for five years or more. The requirement of law under Section 26(i-b) of the Act of 1959 is (i) taking cognizance of the offence, (ii) framing of charge against the person, (iii) of any offence 17 punishable with imprisonment for five years or more. It is absolutely irrelevant whether trial is going on in the criminal case or ultimately that person is acquitted. The Full Bench of this Court finally decided that persons suffers with the disqualification immediately when cognizance is taken of the offence, by the competent court of law and charge is framed against him of any offence punishable with imprisonment of five years or more. The Returning Officer or the court in the election petition need not to and cannot look into the legality, validity and correctness of the order of taking cognizance or framing of the charge. In the election petition, the civil court cannot even see whether there was sufficient material before the criminal court for taking cognizance of the offence or the charge has been framed by the criminal court on the basis of some material or not. It is submitted that as per sub-section (i-b) of Section 26 of the Act of 1959, even it is not necessary that there should be minimum sentence of imprisonment for five years. Even in a case imprisonment can extend to five years or beyond, the person is disqualified to contest the election. Therefore, according to the learned counsel for the respondents, from the admitted documents Ex.3 and Ex.2, it is clear that in criminal case the competent court took cognizance of the offence under Section 3/7 of the Act of 1955 and the charge has been framed against the 18 appellant under Section 3/7 of the Act of 1955. It is submitted that from bare reading of the charge it is clear that the charge against the appellant in criminal case is that he stored 58 litres. of the essential commodity Kerosene which was meant only for the distribution through public distribution system and was meant for the persons holding the Ration Cards and the appellant was found using the said commodity for his business purposes and the appellant had no valid licence to store the said essential commodity. The appellant also placed on record the certified copy of the order-sheet of the Criminal Case No.171/2004 as Ex.3 whereby the court took cognizance of offence under Section 3/7 by order dated 5.8.2004. These documents are admitted documents as admitted by the appellant. The learned counsel for the respondents submitted that the competent court, after taking cognizance of the offence, framed the charge and, therefore, by mere reading of the charge Ex.A.2, it is clear that the offence committed by the appellant is covered only by sub-clause (ii) of clause (a) of sub- section (1) of Section