JUDGMENT
R.L. Anand, J.
1. Sugan Chand Saini petitioner has filed the present civil writ petition under Articles 226 and 227 of the Constitution of India for the issuance of a writ in the nature of certiorari for quashing the impugned order dated 21.1.1995 passed by respondent No. 1 vide which the Tribunal had allowed the withdrawal of the election petition filed by respondent No. 2 Shiv Hari instead of dismissing the same under Rule 79 of the Haryana Municipal Election Rules, 1978. The petitioner has further prayed that a writ in the nature of prohibition/mandamus be issued against respondent No. 1 from entertaining the second election petition filed by respondent No. 2 on the same cause of action.
2. The case set up by the petitioner is that in the month of December, 1994, election of various Municipal Committees was held in Haryana and on 28.12.1994 election of Municipal Committee, Mandi Ateli took place. Petitioner and respondent No. 2 contested the election of a Municipal Councillor from Ward No. 6 of the said Municipal Committee. There were only two candidates. The petitioner was declared elected while respondent No. 2 was defeated and the result was declared by the Returning Officer on 28.12.1994 itself. The petitioner further alleges that as per Rule 74 of the Haryana Municipal Election Rules, 1978 (hereinafter referred to as the Election Rules), no election can be called in question except by election petition presented in accordance with the Election Rules. Every such election petition is supposed to be filed within 30 days from the date of the declaration of the result and the election petition is to be presented before a Tribunal so appointed by Government. The State Government vide notification has conferred powers upon Subordinate Judge of 1st Class who belongs to the State Judicial Services to work as a Tribunal for the purposes of deciding these election petitions. On 17.1.1995, respondent No. 2 filed election petition against the petitioner in the Court of respondent No. 1 and summons were issued to the petitioner for 30.3.1995. Every election petition is supposed to accompany by a security of Rs. 250/- as required under Rule 77 of the said Rules but the respondent No. 2 did not pay the security amount while filing the election petition and in this manner disqualification is attached to such petition which is bound to be dismissed under Rule 79 of the Rules. In short, the petitioner alleges that if the petitioner had failed to deposit a security of Rs. 250/- at the time of filing of the petition, the Tribunal has no other option but to dismiss such election petition, but in the present case respondent No. 1 had in an illegal manner returned the petition to the petitioner instead of dismissing it. The petitioner alleges that by returning the petition respondent No. 1 acted without jurisdiction. Against the order of respondent No. 1, the petitioner filed an appeal before the Court of learned Additional District Judge, Narnaul under Section 273 of the Haryana Municipal Act but this appeal was dismissed on 11.9.1995 on the ground that the same was not maintainable on the reasoning that no appeal could be filed when the election petition was returned before the service of the respondent. With the above averments, the petitioner has prayed that the order dated 21.1.1995 passed by respondent No. 1 Annexure P-l be quashed being beyond jurisdiction and respondent No. 1 be further directed not to entertain any fresh petition giving challenge to the election of the petitioner by respondent No. 2.
3. Notice of motion was issued to respondent No. 2 vide Court order dated 16.10 1995. Shri R. P. Yadav, Advocate, gave appearance on behalf of respondent No. 2 in this Court on 27.11.1995 and the case was adjourned for arguments on 16.1.1996. Directions were also given to respondent No. 2 for filing reply in the Registry with an advance copy to the opposite party but directions Were not complied with by respondent No. 2 till date, when the case was being adjourned from time to time for filing reply and arguments. In these circumstances, we dispose of this petition without the return of respondent No. 2. However, we have heard Shri S. K. Mittal, Advocate, on behalf of the petitioner and Shri R. P. Yadav, on behalf of respondent No. 2 and with their assistance have gone through the record of this case.
4. The controversy in this case lies in a short compass as to whether the order Annexure P-l can be endorsed by this Court or not. Rule 77 of the Election Rules makes every petitioner who intends to give challenge to the election petitioner to deposit a sum of Rs. 250/- by way of security along with the election petition. This provision has been made mandatory. For the sake of our convenience Rule 77 of the Election Rules is reproduced as follows :
“77. Deposit to be made when petition is presented and return of deposit. – (1) Every election petition shall be accompanied by a receipt from the Government treasury for two hundred and fifty rupees or Government Promissory Notes of equal value at the market rate of the day as security for all costs that may become payable by him or them.
(2) If a petitioner, by whom the deposit referred to in Sub-rule (1) has been made, withdraws his election petition as provided in rule 82 and in any other case after final orders have been passed on the election petition the deposit shall, after deducting such amount as may be ordered to be paid as costs, charges and expenses be returned to the petitioner by whom it was made; and if such petitioner dies during the course of the enquiry into the election petition, any such deposit, made by him, shall after the amount of such costs as may be ordered to be paid have been deducted, be returned to his legal representative.
(3) All applications for the refund of a deposit shall be made to the Tribunal who shall pass orders thereon in accordance with these rules.”
5. The consequences are provided in Rule 79 of the said Rules, if there is a non-compliance of the provisions of Rule 77 and the only consequence is that such election petition which has been filed without requisite security is liable to be dismissed. Again we intend to reproduce Rule 79, which is as follows :-
“79. Petition to be dismissed for non-compliance with rules. – If any of the provisions of Sub-rule (1) of rule 75 or Sub-rule (1) of rule 77 have not been complied with, the Tribunal shall pass an order, dismissing the election petition and such orders shall be final.”
6. A perusal of the combined reading of Rules 77 and 79 gives no option to the Tribunal-respondent No. 1 but to pass an order of dismissal of election petition and the impugned order Annexure P-l to the effect that “the plaint and documents be returned to the petitioner” was passed in an illegal manner and such an order could not be passed by respondent No. 1 being beyond its jurisdiction. The learned counsel for respondents while justifying the order Annexure P-l submitted that this order could be passed by respondent No. 1 as the petitioner had not been served in the main petition on 21.1.1995 and there was no notice of the petition to him. He further submitted that Rule 82 of the said Rules permitted the petitioner to move an application to the Tribunal for withdrawal of the petition. The argument raised by the learned counsel for respondent No. 2 to our mind is without any force. Rule 82 would come into play only if a petition is filed along with the security and thereafter a notice is issued to the opposite party. When a petition has been filed without deposit of the requisite security, it is not a valid presentation of the petition and the non-deposit of the security entails fatal consequence as provided under Rule 79. Rule 82 we also intend to reproduce as follows in order to appreciate the argument which has been raised by the learned counsel for respondent No. 2 :-
“82. Withdrawal of petition. – (1) An election petition may be withdrawn only by leave of the Tribunal. (Ins. vide notification dated 19.8.1994)
(2) If there are more petitioners than one, no application to withdraw a petition shall be made except with the written consent of all the petitioners.
(3) No application for withdrawal shall be granted if in the opinion of the Tribunal such application has been induced by any bargain or consideration which ought not be allowed. (Ins. vide notification dated 19.8.1994)
(4) When an application for withdrawal is made, to the Tribunal. (Sub. vide notification dated 19.8.1994)
(a) a notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published by being posted at the office of the Tribunal, the Deputy Commissioner and the Committee ; (Sub. vide notification dated 19.8.1994)
(b) any person who might himself have been a petitioner may, within fourteen days from the date of such publication, apply to be substituted as petitioner in place of the party withdrawing. Upon compliance with the conditions as to the security under rule 77, shall be entitled to be so substituted and to continue the proceedings upon such terms as the Tribunal may think fit; (Sub. vide notification dated 19.8.1994)
(c) the petitioner shall be ordered to pay the costs of the respondent thereof incurred or such portion thereof as the Tribunal may think fit. (Sub. vide notification dated 19.8.1994)
(5) When an election petition is allowed by the Tribunal to be withdrawn the file of the proceedings shall be forwarded to the State Government for information. (Sub. vide notification dated 19.8.1994)”
7. A perusal of the above would show that discretion has been conferred upon the Tribunal to allow the withdrawal of the petition with its permission and this can be done only when the original petition has been filed in a proper manner. Even in this eventuality, there is a limitation upon the Tribunal when it cannot allow any application for the withdrawal of the petition if in the opinion of the Tribunal, the application for its withdrawal has been induced by any bargain or consideration which ought not to be allowed. The Legislature has introduced these provisions by keeping in view that the election offences are in fact offences against the public at large. If a candidate has manipulated his success in an election by corrupt or illegal means, such election can be enquired into by the Tribunal on its own level, and keeping in view this object the Legislature has not given an unlimited powers to a petitioner of a election petition to withdraw it on his sole whim. A rider has been legitimately placed under Rule 82(3) where it has been interpreted that no application for withdrawal of election petition can be granted if in the opinion of the Tribunal such application has been induced by any bargain or consideration which ought not to be allowed being against the public policy.
8. The controversy in hand as we stated above lies in a short circle, i.e. to consider the effect of non-deposit of the security. We have already stated above that it was mandatory on the part of the petitioner to deposit a sum of Rs. 250/- at the time of filing of the election petition by virtue of Rule 77 and its non-compliance entails the consequences as mentioned in Rule 79. Rule 79 is mandatory in character and leave no discretion to the Tribunal but to dismiss the petition which further entails the consequence that no second election petition by the same person can be entertained giving challenge to the election of an elected candidate. The learned counsel for the petitioners has drawn our attention to the case law cited as Charan Lal Sahu v. Nand Kishore, AIR 1973 Supreme Court 2464, wherein it was held that if there is a non-compliance of the provisions of Section 117 by non deposit of security along with the election petition as required by Section 117 of the Representation of the People Act, the Court has no option but to reject the petition.
9. Our attention has also been invited to Aeltemesh Rein v. Chandulal Chandrakar and Ors., AIR 1981 Supreme Court 1199 wherein it was “held that if the provisions of Section 117 of the Act have not been complied with by the petitioner challenging the election, such election petition is liable to be dismissed by virtue of Section 86 of the Representation of People Act. The provisions of Sections 86 and 117 of the Representation of People Act have to be read analoguously while interpreting Rules 77 and 79 of the said Rules. Following these principles it was obligatory on the part of the Tribunal to dismiss the petition instead of returning to the petitioner of the election petition.
10. We derive force from the two authorities. There is no provision in the Haryana Municipal Act brought to our notice empowering us to absolve the petitioner from giving any security deposit or reduce the amount required to be deposited under the Rules. We do not agree with the argument raised by the learned counsel for the respondent that the Tribunal was justified in returning the petition to respondent No. 2 because the trial in the main election petition had not commenced as the powers have not been conferred upon the Tribunal under the Haryana Municipal Act.
11. In the light of the discussion held above we allow this writ petition by quashing the order Annexure P. 1 dated 21.1.1995 and further issue directions to respondent No. 1 not to entertain second election petition, if any, filed by respondent No. 2 on the same cause of action. No order as to costs.