TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) 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. 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 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 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. 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 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 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 noncompliance 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 election petition. The learned counsel for the appellant vehemently submitted that when the consequence is provided by the statute itself for noncompliance of the mandatory provisions, the court has no option but to dismiss the election petition for noncompliance. 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 vs. 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 vs. Ram Kalewar Prasad Singh and Anr. (AIR 2006 SC 269 ).
(3.) 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 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 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. 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. ;