ORDER
C.K. Prasad, J.
1. Petitioner, who is an elected Sarpanch, of Gram Panchayat Goriya Kheda, has preferred this Writ Application under Article 227 of the Constitution of India, for quashing the order dated 23-12-1994 passed by the Sub-Divisional Officer, in Case No. 8-C/144/93-94. By this order, petitioner’s election as Sarpanch of the Gram Panchayat has been set aside on an election petition filed by Respondent No. 3 Under Section 122 of the M.P. Panchayat Raj Act, 1993, and the latter has been declared elected as the Sarpanch as contained in Annexure P/9 of the Writ Petition.
2. Short facts giving rise to the present application are that election to the office of Sarpanch of Gram Panchayat Goriya Kheda was held on 7th May, 1994, and petitioner having secured 148 votes and Respondent No. 3 that is election-petitioner having secured 141 votes, the former was declared elected. Respondent No. 3 challenged the election of petitioner by filing an election petition as provided Under Section 122 of the M.P. Panchayat Raj Act, 1993. The S.D.O. by its order dated 16-3-1994 directed for recounting of the votes and ultimately, as stated earlier, set aside the election of petitioner and declared Respondent No. 3 elected as Sarpanch of the Gram Panchayat. It is relevant here to state that along with the election petition filed on 22-6-1994, security cost of Rs. 50/- only has been deposited.
3. Shri K. G. Maheshwari, appearing on behalf of the petitioner, contended that the order passed by the S.D.O. for recounting of votes has been given in most casual and routine manner and in that view of the matter passing of the impugned order on the basis of such a casual and routine order is illegal and on this ground alone the impugned order is fit to be set aside.
4. However, in the present case as the Writ Application deserves to be allowed on a short ground that the election-petitioner did not deposit security cost of Rs. 250/-, which has been held to be mandatory, I am not inclined to adjudicate, the aforesaid submission of the learned counsel.
5. In view of the authority of this Court dated 1-12-1995 passed in W. P. No. 1585/94, Bhagirath v. Kpilash, it is to be held that the election petition shall be governed by the provisions of M.P. Panchayat (Election Petitions, Corrupt Practices, Disqualification of Membership) Rules, 1991 (for short ‘the Rules’). Rule 7 of the aforesaid rules provides for deposit of security cost and the same reads as follows :-
“Rule 7. At the time of presentation of election petition, the petitioner shall deposit with the prescribed authority a sum of Rs. 250/- as security for costs of petition. Where the election or co-option of more than one candidate is called in question, a separate deposit of an equivalent amount shall be required in respect of each such returned candidate.”
The effect of non-compliance of Rule 7 of the Rules besides other rules has been provided under Rule 8 of the Rules which reads as follows :-
“Rule 8. If the provisions of Rule 3 or Rule 4 or Rule 7 have not been complied with, the prescribed authority shall dismiss the petition :
Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.”
6. The effect of non-compliance of Rule 7 of the Rules as provided under Rule 8 of the Rules came up for consideration before a Division Bench of this Court in the case of Babulal v. State of M.P., 1985 MPLJ 411 = 1985 JLJ 644, and the Division Bench held as follows :-
“11. In Rule 8, the expression used is ‘the prescribed authority shall dismiss the petition’. This clearly means that duty is cast on the Tribunal to dismiss the petition on the non-compliance of the provisions enumerated in Rule 8. It is an important provision. The Tribunal has no option, but to dismiss the petition, on being satisfied about non-compliance, the non-compliance may come to its knowledge in any manner. From the language of Rule 7 it appears that as a petition being presented, the Tribunal should verify before taking its cognizance and proceeding with the trial, whether security amount is deposited along with it or not. The proviso to Rule 8 of the Election Rules can be read to mean the Tribunal has the jurisdiction to dismiss for non-compliance of the provisions mentioned in the parent provision of Rule 8 only when an objection is raised by the respondent To hold that the Tribunal can dismiss for non-compliance only when objection is raised by respondent, would mean adding something which is not there in the rule and taking out the jurisdiction of the Tribunal. The proviso is nothing but express overbis incorporation of the audi alterant pattern rule of natural justice. To uphold the argument of the learned counsel for respondents Nos. 3 and 4 would tantamount to holding that a petition though suffering from the non-compliance of the rules referred to in parent Rule 8 of the Election Rules can never be dismissed when no one appears to oppose the petition and it is proceeding ex parte. Further the question of waiver also does not arise in view of the fact that we have held that provision is mandatory and a compulsion on the petitioner based on public policy.
12. In the above view of the matter, we hold that even when no objection is raised about the non-compliance of Rule 7 of the Election Rules, it is incumbent on the Tribunal to dismiss the petition on being satisfied about the non-compliance of that rule. It has no jurisdiction to proceed with its trial.”
7. Again the aforesaid point was considered by this Court in W. P. No. 1585/94, Bhagirath v. Kailash and by order dated 1-12-1995 the aforesaid question has been answered in the following words :-
“In an Election Petition filed Under Section 122 of the Adhiniyam, 1994, it is mandatory for the Election Petitioners to deposit a sum of Rs. 250/- together with the Election Petition. Non-compliance of the same proves fatal to the Election Petition and the same is liable to be dismissed on this ground only.”
8. In view of the aforesaid authoritative pronouncements of this Court, I have no hesitation in holding that the deposit of sum of Rs. 250/- as security cost is mandatory. The record suggests that only Rs. 50/- was deposited and the balance amount of security cost has not been deposited at all, much less within the period of limitation of presentation of the election petition.
9. However, the S.D.O. by its order dated 22-6-1994 took cognizance of the election petition, which suffered from fatal defects on deposit of required security cost and directed for issuance of notice to respondents of the election-petition. As the election petition was suffering from fatal defect, the S.D.O. had no option than to dismiss the same. However, he proceeded with the trial of election petition and passed the impugned order.
10. In my opinion, the election petition presented, being suffering from fatal defects, the S.D.O. exceeded in its jurisdiction in taking cognizance of the same and directing recounting of the votes and ultimately passing the impugned order. In my considered opinion, in view of the aforesaid defect the S.D.O. had no option than to dismiss the petition and as such entire proceedings before the S.D.O. is non est in the eye of law.
11. In the result the application is allowed. The order impugned (Annexure P/9) is quashed. However, in the facts and circumstances of the case, there shall be no order as to costs.