JUDGMENT
S.K. Jha, J.
1. The petitioner seeks a writ of certiorari to quash the order dated 18.5.1979 passed by the District Judge, Madhubani, in Miscellaneous (Election) Appeal No. 4 of 1979, a copy of which has been incorporated in annexure 6 to this writ application. By that order the order passed by the Election Tribunal dated 9.3.79 under the Bihar Gram Panchayat Raj Act, 1947, 1947, in Election Petition No. 17 of 1978 has been set aside, a copy of the last mentioned order has been marked annexure 5 to this application.
2. The petitioner fought for the election of the office of Mukhiya of Salempur Panchayat under the Act. That election was held on 19.6.1978. The Returning Officer declared respondent No. 2 as the elected Makhaya.
3. Shorn of all details, the petitioner filed an application before the Election Tribunal making allegations of corrupt practices against respondent. The Election Petition, however, admittedly did not set forth full particulars of any corrupt or illegal practice which the petitioner alleged. Later on, in course of the proceedings before the Election Tribunal the plea of corrupt or illegal practice was given up and a prayer for recounting of the votes (ballot papers) was made. The Election Tribunal directed a recounting of the ballot papers to be done by the Block Development Officer of Madhwapur. In other words the Tribunal delegated the function of recounting to the B.D.O. After such a recounting having been made the petitioner was declared elected by the Election Tribunal on the basis of the report of the B.D.O.
5. Respondent No. 2 preferred an appeal before the District Judge who was the statutory authority to hear such appeals. By the impugned order (annexure 6) the learned District Judge set aside the order of the Election Tribunal both on the ground that the election petition was liable to be summarily dismissed for non-compliance with the requirement of Sub-rule 2(d) of Rule 75 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules) and that the power of recounting could not be delegated to the B.D.O. In the result while allowing the appeal of respondent No. 2 the election petition was dismissed summarily.
6. A two pronged attack was made to the impugned order before us (1) that all though the allegation of illegal and corrupt practices had been made in the election petition that was not meant to be seriously pressed which was indicated by the subsequent amendment petition filed by the petitioner before the Tribunal claiming merely a recounting of the votes and (2) the learned District Judge had erred in law in holding that the power of recounting could not be delegated by the Election Tribunal to the B.D.O.
7. Apropos the second point suffice it to say that although there may be some substance in it in view of the generality of the discretionary power of the Tribunal as laid down in Rule 87 of the Rules which authorises that in respect of any matter, not specifically provided in the Rules, the Election Tribunal shall proceed in such manner as it considers proper in the circumstances of the case, I do not think it is necessary to record any considered opinion on this point in the view that I propose to take in relation of the first point.
8. That at once brings us to the question as to whether it was the bounden duty of the Election Tribunal to dismiss the election petition of the writ petitioner summarily. Having given the matter my anxious consideration, I am firmly of the view that the mandates of the law did warrant a summary dismissal of the election petition by the Tribunal. Rule 75(2)(a) of the Rules reads thus:
75(2)(a). The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full statement as possible as to the names of the parties alleged to have committed any corrupt or illegal practice and the date and place of the commission of each such practice.
It is manifest that the aforesaid provision is mandatory in nature not only because the word “shall” has been used in it but also having regard to the consequences to follow from non-compliance with the aforesaid provision. The consequence is to be found in Rule 77 which lays down that “if there is any failure to comply with the provisions of…Clause (a) of Sub-rule (2) of Rule 75, the Election Tribunal shall summarily dismiss the election petition.” Rule 75(2) read with the further mandate of law envisage that any failure to comply with those provisions shall result in a summary dismissal of an election petition by the Tribunal. This leaves no manner of doubt that Rule 75(2)(a) is not meant to cover matter of form but must be read as a matter of substance. The cumulative effect of Rules 75(2)(a) and 77 nips the election petition in the bud and treats such an election petition as a still born child at the threshold. In other words these provisions ipso jure demand that such an election petition to be treated as non est leaving no scope for any amendment at any later stage. That which is dead cannot be revived by way of amendment.
8. For the reasons given above I do not find any infirmity in the order of the learned District Judge (annexure 6) holding that the election petition of the writ petitioner was liable to be summarily dismissed. This difficulty in the petitioner’s way is insurmountable and the writ petition must fail on this ground alone. As a result, the writ application is dismissed. There shall, however, be no order as to costs.