NIWAS JHANWAR Vs. JETHMAL

JUDGEMENT

(1.) This special appeal preferred by Shri Niwas Janwar is directed against a judgment and order dated 28th April, 1997 passed by a learned single Judge of our Court in S.R. Civil Writ Petition No. 1713/97, whereby the learned single Judge dismissed the writ application holding inter alia that the Tribunal adjudicating the election petition was right in observing that the question whether the amount of security deposit was deposited in the treasury by both the election petitioners or not while filing the election petition is a mixed question of law and fact and should be decided at the time of final adjudication of the election petition.

(2.) In the writ application itself, the present appellant as writ petitioner challenged an order dated 10th March, 1997 as passed by the learned District Judge acting as the Election Tribunal observing inter alia that the issue as to whether the security for costs has not been deposited as per law and the election petition is liable to be dismissed on this count could only be decided after taking evidence because this was a matter involving mixed question of law and fact and, as such, this could not be decided at the preliminary stage by treating it as an issue of law. The writ petitioner appellant in view of the amended pleadings took up the question as to whether the security for costs was deposited on behalf of Jethmal alone and not on behalf of Kailash. The contention of the writ petitioner appellant inter alia was to the effect that Section 53 of the Rajasthan Municipalities Act, 1959 requires that the person filing election petition should enclose with the election petition a Government treasury receipt showing that the deposit has been made by him in the Government treasury in favour of the Judge as security for the cost of the petition of a sum of Rs. 200/- in case of a city and of Rs. 100/- in any other Municipality. The learned advocate appearing for the writ petitioner-appellant contended that on an analysis of the statutory provision it would be revealed that the provision is mandatory and not directory and the deposit of the required amount has to be made first and it was to be made by the petitioners filing the election petition themselves and not that the deposit could be made in his/their name. The amount has to be deposited in the Government treasury in favour of the Judge and it would be by way of security by way of cash deposit for the cost of the petition and all these ingredients should be clear from the cash challan itself and the receipt should be enclosed with the election petition.

(3.) It was contended in the first place by the learned advocate appearing for the writ petitioner appellant that the learned District Judge acting as the Election Tribunal has not considered the important aspect of the matter that the deposit has not been made by the election-petitioners Jethmal and Kailash themselves and it would be manifest enough from the receipt itself which clearly showed that the security deposit was not made by both the election-petitioners personally, but it was deposited on behalf of both the election-petitioners Jethmal and Kailash. Since some of the essential ingredients by way of essential pre-requisites to the filing of an election petition were not complied with, the election petition was liable to be dismissed. The learned advocaate for the writ petitioner-appellant also focused our attention to Section 38 of the Act for the purpose of highlighting the contents of the election petition specially with regard to the provisions of signing the petition and verification thereof including signing the schedule or annexure to the election petition which is to be verified in the same manner as in the petition. Taking a cue from the provisions Mr. Shishodia, learned Senior Advocate appearing for the writ petitioner appellant contended that there was no signature or verification as regards the receipt. The election-petitioners in this case ought to have filed separate challan because both the them belong to separate category and both of them had separate causes of action and they could not be joined in the election petition for a common cause. Drawing our attention to Section 36 of the Act regarding presentation of petition, Mr. Shishodia contended that the election petition might be presented by any candidate at such election or by way of an elector of the ward who was entitled to vote at the election. It was in the fitness of things that the filing of the security deposit should be made by the election petitioner himself or if there be more than one election petitioner, by all of them acting together and the money has also to be tendered by them conjointly and not any of them acting for the other or even a tender by their authorised advocate would not be good enough for a proper compliance of the statutory provision in this regard. It is already laid down under Section 44(3) of the Act by way of a mandatory provision that if the requirements of Section 53 are not complied with then the Tribunal Judge is duty bound to dismiss the election petition. Any infringement of the requirements under Section 36 or 37 or 53 of the Act would make it mandatory for the Election Tribunal Judge to dismiss the election petition. Unless the election petitioner or if there may be more than one election petitioner all of them conjointly deposit the amount in favour of the Judge as security for the cost of the petition, the election petition is liable to be dismissed on that ground alone. Mr. Shishodia further contended that no evidence is required for this purpose either to explain the meaning or to clarify as to how the tender was made and it was completely erroneous on the part of the Election Tribunal Judge to hold on a specific issue being raised that whether the security money has been deposited on behalf of Jethmal or was not deposited on behalf of Kailash, could not be decided without taking evidence. It was submitted that this order was per se illegal and without jurisdiction because the mandate of Section 53 was to the effect that the receipt itself should show that the person filing the election petition should enclose the Government treasury receipt revealing that the deposit has been made by himself or themselves and not on his or their behalf and the deposit must be made in favour of the Judge as security for the cost of the petition. There is no requirement that any evidence has to be tendered in this regard to prove in what manner the deposit has been made since the receipt itself would manifestly show how the deposit was made and who by and on a mere look of the receipt itself, the Court would come to conclusion as to whether the provisions as laid down under Section 53 of the Act have been complied with or not. Hence, the decision to defer an adjudication on this issue and to seek specific evidence on the point, as was so done by the Election Tribunal Judge, was contrary to law and has caused a failure of justice. Mr. Shidhodia further contended that the Election Tribunal Judge himself has accepted the proposition that the person on whose behalf the security has been deposited is mentioned as only Jethmal and the word 'Aadi' is written after it which would clearly reveal that the receipt does not show that the amount was deposited on behalf of both the persons and hence, no hence, no evidence could be adduced to explain the ambiguous character of the document, more so when the language used in the document itself plainly revealed a state-of-affairs which was contrary to law and no evidence could be tendered by way of rebuttal thereof under the provisions of Section 93 and 94 of the Indian Evidence Act. It was contended that when the language used in document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defect and when the language used in a document is plain in itself and applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. Hence, Mr. Shishodia contended that the decision as arrived at by the Election Tribunal Judge to take evidence with regard to the meaning of the document is clearly per se illegal and without jurisdiction. In this context, the learned District Judge acting as the Election Tribunal has not even looked into the other aspect of the matter as to whether the amount has been deposited by any of the election petitioners personally or it was in favour of the Election Tribunal Judge and not giving any finding on the two important facets of the case was clearly illegal. Instead of continuing with the proceedings he ought to have decided the preliminary objection as raised by the present writ petitioner-appellant who was an elected candidate and ought not to have gone into for vexatious and continued proceedings in order to harass him. If the amount of security deposit has to be made on behalf of one person then, the deposit ought to have been made on behalf of only one person and the question would arise as to whether Jethmal himself has deposited the amount or not and unless it is shown that the amount was deposited by Jethmal personally, it could not be a sufficient compliance of the mandatory provisions of Section 53. A bare perusal of the receipt itself showed that in the column 'signature of actual payee' there is no signature of Jethmal and even it may be presumed for the sake of argument that the amount has been deposited on behalf of Jethmal only or even on behalf of both, then the further requirement is whether any one of them severally or jointly have deposited the amount personally and this ought to be clear from the fact whether they have put their signature on the column of actual payer because the cash challan presumes two things; (i) the name of the party on whose behalf the money has been tendered; and (ii) who is the actual payer. The Election Tribunal Judge by looking at the case challan could have been convinced that there is no signature of either Jethmal or Kailash on the column of actual payee and this non-compliance of Section 53 would have clinched the issue that none of the election petitioners personally deposited the amount. Hence, no evidence could have been allowed to be given by the election petitioners so as to explain as to how the money was deposited and the receipt was obtained and who by and in what manner, moreso when the receipt has neither been signed nor enclosed by any of the election petitioners, but they stated in the election petition that the cash challan has been enclosed with the election petition. It has further been contended that a combined reading of Sections 36, 42 and 53 of the Rajasthan Municipalities Act, 1959 would show that the election petition could be presented by the person who is filing the election petition or by the person duly authorised in writing by the person making the election petition and that person himself has to deposit the security money in the name of the election petitioner himself. The learned Advocate is excluded from exercising any function either in the act of depositing security money or in presenting the election petition because the action by way of deposit of the security money precedes even the presentation of the election petition. The election petition on the other hand should contain an averment to the effect that the receipt is being enclosed with it after the security money has been deposited and the appointment of the Advocate is to be done only before the Judge for the purpose of representing the election petitioners and for conducting the election petition itself. It was furthermore reiterated that the receipt clearly showed that the deposit has been made by a single election petitioner or by both the election petitioners and there was no scope for evidence to supplement the receipt. It was furthermore contended that the order of the learned District Judge acting as the Election Tribunal is per se void and without jurisdiction. The learned District Judge acting as the Election Tribunal cannot entertain an election petition unless and until it is presented in the manner provided in accordance with law and in due compliance of the provisions of Section 53 of the Act and he is duty bound to dismiss the election petition under Section 44(3) of the Act. The receipt did not show that it was the security for the post of the petition and it was made in favour of the Judge. This aspect of the matter has been over looked by the learned District Judge functioning as the Election Tribunal, who failed to appreciate as to whether the provision of Section 44(3) was itself mandatory in character.