KAMALESHWARI PRASAD YADAV Vs. ELECTION TRIBUNAL

JUDGEMENT

(1.) This application by the sole petitioner under Articles 226 and 227 of the Constitution of India is directed against the preliminary order dated the 22nd "April, 1971, passed by the Election Tribunal refusing to reject the election petition filed by respondent No. 2 under Rule 77 of the Panchayat Election Rules, 1959--hereinafter referred to as the Rules.

(2.) In order to appreciate the point involved in this application it will be necessary to state briefly the facts. The petitioner was the elected Mukhia of Kataiya Jibechhpur Gram Panchayat, Saharsa. As against his election, respondent No. 2 filed an election petition before the Election Tribunal. In the said election petition respondent No. 2 did not comply with the provisions contained in Clause (2) (a) of Rule 75 of the Rules. On that ground the petitioner filed an application before the Election Tribunal, respondent No. 1 that the entire election application of the petitioner, due to the non-compliance of Clause (2) (a) of Rule 75, has got to be summarily dismissed under Rule 77 of the Rules. The Election Tribunal, however, by the impugned order, refused to summarily dismiss the election petition on the ground that respondent No. 2 had intimated the Tribunal that he would not lead evidence on the allegation contained in paragraph 26 of the election petition. In that view of the matter, the Election Tribunal thought that it was no more necessary for respondent No. 2 to have complied with the provisions contained under Clause (2) (a) of Rule 75 of the Rules.

(3.) In my opinion, the Election Tribunal erred in holding that as defects in the election petition have to be judged as they stood at the time when the election petition was filed by respondent No. 2. Subsequent amendments or assertions on behalf of respondent No. 2 would be of no avail. It has been held in a series of cases of this Court that the provisions contained in R. 77 are mandatory and in the circumstances mentioned in R. 77, the Election Tribunal had no option but to dismiss the election petition summarily vide the case of Phani Bhusan Singh v. The Election Tribunal, Dhanbad and others (Civil Writ jurisdiction case No. 98 of 1971, disposed of on 28th of June 1971). The Election Tribunal on that ground ought to have dismissed the election petition gummarily under Rule 77 of the Rules.