1. This is a miscellaneous appeal under Section 19(2) of the Rajasthan Town Municipalities Act 1951 (Act No. 23 of 1951).
2. In connection with the election of the members of the Town Municipal Board of Doug, the appellant. Ram Swarup, filed two nomination papers one on 13-1-1954, and the other one on 16-1-1954. His nomination papers were rejected by the Returning Officer on 20-1-1954, and when the elections were held on the 31-1-1954, Kapoorchand and Devidas were returned by Ward No, 3 for which the appellant also had been a candidate. The result of the election was declared on 1-2-1954, and an election petition was filed under Section 19 of the Act on 10-2-1954, in the Court of the District Judge, Bharatpur, on the allegations that his nomination paper had been wrongly rejected & the returning officer had committed a breach of Rule 17(1) of Rajasthan Town Municipal Election Rules 1951, in not including his name in the list of persons eligible to stand for election and in this manner he was debarred from contesting the elections.
The contesting respondent, Kapurchand, took several objections to this petition. It was urged that a candidate was not entitled to file two nomination papers and so the Returning Officer had rightly rejected them. It was submitted that the petitioner had supplied electric bulbs to the municipal Board and was, therefore, disqualified under Section 12(1)(viii) of the Act. A further objection was taken that a sum of Rs. 50/- as security for costs required to be deposited under Section 19 along with the application was not so deposited by the petitioner The learned District Judge by his judgment of 30-9-1954, held that there was no bar to the filing of two nomination papers and both ofthem could not be rejected by the Returning Officer on that ground alone.
He held that the petitioner did supply some bulbs to the Municipal Board but he did not incur the disqualification mentioned in Section 12(1) (viii). On the last point he held that the deposit was made on the 12-2-1954, two days after the application was submitted and compliance was not made of Section 19 which required the deposit to be made along with the petition. He accordingly dismissed the petition but directed the parties to bear their own costs.
3. The petitioner, Ram Swarup, has come in appeal under Section 19(2) as stated above. A perusal of the record shows that the appellant filed an application along with his election petition on the 10-2-1954, expressing his desire to deposit Rs. 50/- and requesting the Court to accept the amount. The Court noted an order on the application that deposit be made according to rules. The rules applicable for deposit are the Civil Rules (Rule No. 255). The appellant obtained a tender form, filled it up on the 11th and the foil which is to be kept by the petitioner and produced for perusal today shows that the Munsarim of the Court dealt with it on the same day it was presented. The signature of the District Judge, however, on the order directing the treasury officer to receive the money is dated 12-2-1954. The money was deposited in the Bank of Jaipur which was the treasury for the Court on the 12-2-1954.
It was argued by the learned counsel for the appellant that his client had tendered the money to the Court on the 10-2-1954, but it was not accepted on that day and he was directed to make the deposit according to rules. He then filed up the tender form and produced the same to the Court on the 11th and the deposit in the treasury was made on receipt of the order of the Court on the 12th, and that in the circumstances of this case the deposit should be deemed to have been made along with the application. Learned counsel for respondent, Kapurchand, urges that there was no proof of the fact that the money was actually produced before the Court on the 10th, The mere filing of an application was not sufficient if the petitioner had no money with him for deposit in Court on that day.
It is, however, conceded on the authority of Kishanchand Sharma v. Bishabh Kumar AIR 1950 Nag 208 (A) that if the deposit could be made by a petitioner within the time within which an application could be filed application filed earlier should be deemed to be regularised on the day when the deposit was made. In the present case the result of the election was declared on 1-2-1954, and any such election could be challenged till the 11-2-1954.
What is contended by the respondent is that the deposit was actually made on 12th when the election petition had become barred by time. The appellant examined himself as also Nazir, Premchand Singh, but none of them to have been questioned as to whether the money was ready with the petitioner-appellant to be deposited in court on the 10th. The mere application for permission to deposit on the 10th does not, therefore, amount to a deposit in Court on the 12th. On the next day the petitioner-appellant filled up the tender form.
The foil on the record of the case shows that the tender form was produced in court on the 11th because the office report of the Munsarim bpars that date. It does not show when this tender form was given back to the appellant but the original foil to be retained by the depositor has beenproduced today and it shows that the Judge's order to the treasury officer on the tender is dated 12-2-1954. It is obvious that this tender form which was presented on the 11th to the Court was returned to the appellant after proper orders on the next day. The appellant could not, therefore, deposit the amount earlier than the 12th and for no neglect or fault of the appellant. When a litigant proceeds to comply with the rules or direction of law but is unable to comply with the terms strictly owing to some delay not attributable to him, but to the court, it is but just to keep out of consideration the delay which is made by the court and applying that principle to the present case, the deposit by the appellant made on the 12th on the very day when he received the tender form back from the court would be deemed to have been made on the day when he produced the tender form in court, i.e., 11th of February, 1954.
On that day the application challenging the validity of the election was within time. The deposit made by the appellant if considered to have been validly presented on the 11th as aforesaid was still within lime and the application challenging the validity of election does not, therefore, suffer from any defect as aforesaid.
4. The lower court had thus committed an error in throwing out the petition on The ground that the money was not deposited along with the application. The deposit made on the 12th will be deemed to have been made on the 11th and the application which was presented on the 10th will be deemed to have been validly made on the 11th of February, 1954.
5. It was next contended by the learned counsel for the respondent, Kapurchand, that the filing of the two nomination papers was bad in law and the Returning Officer was right in refecting them. Rule 15 of the Rajasthan Town Municipal Election Rules, 1951 lays down that
'every person who intends to stand for election in any ward shall not less than fifteen days before the date fixed for election, signify his intention by applying in writing to the Returning Officer in the form mentioned in Schedule I'.
Rule 16 provides for deposit of Rs. 25/- in respect of the application. The scrutiny is to be done by the Returning Officer on the last day fixed for receiving the applications. He has to read the names of the candidates whose applications are received and a list of such candidates is to be forthwith posted in the municipal office inviting objections within a period specified in Rule 17.
The objections are then heard on the appointed day and a list of persons eligible to stand for election is then prepared by the Returning Officer and their names are announced. If the applications are taken in the order they are received and if any person has made two applications on different dates and there are no defects in either of them, the one filed earlier will automatically become acceptable and the next one ran either be rejected as being redundant, or what is more probable the candidate himself will ask the Returning Officer to disregard it.
It was wrong for the Returning Officer to take the two applications filed, on different dates together and then to proceed to reject both of them simultaneously. The finding of the lower court that a nomination paper cannot be rejected merely on the ground that the appellant had filed the second nomination paper is correct.
6. In respect of the disqualification of theappellant to become a member of the Municipal Board, the relevant provision as contained in Section 12(1) (viii) is as follows:
'No person may be a member of a Municipal Board who, save as hereinafter provided, has directly or indirectly, by himself or his partner, employer or employee, any share or interest in any work done by order of such municipal board, or, in any contract or employment with or under or by or on behalf of such municipal board.'
The allegation of the respondent was that the appellant had supplied one dozen bulbs on 4-12-1953, and another dozen on 16-12-1953, to the Municipal Board. Deeg, and he thereby became interested in the contract of supply of bulbs. The learned District Judge has not accepted the evidence produced by the respondent regarding supply of bulbs on these two dates but has nevertheless found that some bulbs had been supplied by the appellant.
In order that the disqualification may apply there must be either any work done by order of the municipal board or any contract by or on behalf of such municipal board or employment with or under such municipal board. No such contract has been produced.' Sub-clause (c) of Sub-section (1) of Section 12 mentions among other things that a person shall not be deemed to have incurred disqualification under Clause (viii) by reason of his having an interest in the occasional sale of any article in which he regularly trades to the municipal board to a value not exceeding in any official year such amount as the municipal board, with the sanction of the Government, may fix in this behalf.
Such value has not yet been fixed and therefore the saving clause does not come into operation. Nevertheless there must be strict proof of the disqualification. The finding of the learned District Judge is that no contract with or by or on behalf of the municipal board was proved and, therefore, on the very wording of Clause (viii) of Sub-section (1) of Section 12, the appellant did not in our any disqualification.
7. As a result of the above discussion the lower court was wrong in rejecting the election petition. Further in view of the finding that the appellant's nomination paper was wrongly rejected and this action must be held to have materially affected the election from Ward No. 3, the election from Ward No. 3 to the Municipal Board, Deeg, held on 31-1-1954, is set aside.
8. The appeal is, therefore, allowed, the judgment of the learned District Judge, dated 30-9-1954, is set aside and the election from Ward No. 3to the Municipal Board, Deeg, held on 31-1-1954,is declared invalid and a date shall now he fixedfor a fresh election. The contesting respondent.Kapurchand, will pay costs of this appeal and ofthe petition in the lower court to the appellant.