SUGAN CHAND SAINI Vs. SENIOR SUB JUDGE

JUDGEMENT

(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.) 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 :