Gurdev Singh, J. - (1.) THE main question, arising for decision in this petition under Articles - 226 and 227 of the Constitution is whether in an election petition brought by more than one person jointly, a deposit of Rs, 2,000, as security for costs of the petition is. not proper compliance with the provisions, of Section 117 of the Representation of the People Act, 43 of 1951. The matter has arisen in the following manner: In the last General Elections to the Punjab Legislative! Assembly held in February, 1962, the Petitioner, Net Ram, Jat, was elected from the Hissar Saddar Constituency. Indraj Singh, Respondent No. 3, one of the defeated candidates , and Raghbir Singh, Respondent No. 4, an elector of the constituency, challenged his election by means of a joint election petition under Sections 80 and 81 of the Representation of the People Act, 43 of 1951. This petition, when presented to the Election Commission was accompanied by a receipt for Rs. 2,000 deposited by the said Indraj Singh and Raghbir Singh (Petitioners in the election petition) as security for the costs of the petition. In accordance with the provisions of Section 86 of the Representation of the People Act (hereinafter called the Act), this election petition was entrusted for trial to the Election Tribunal at Rohtak. After the filing of the written statement and other necessary proceedings, the Tribunal framed issues and evidence in the case commenced. No issue regarding the adequacy of the security deposit was claimed.
(2.) ON 17th April, 1963, after the proceedings had been going on before the Tribunal for nearly a year, Net Ram made an application to the Tribunal praying for the dismissal of the election petition against him without trial on merits on the sole ground that the provisions of Section 117 of the Act had not been properly complied with inasmuch as a sum of Rs. 2,000 only had been deposited as security for costs of the petition. It was contended before the Tribunal that since the petition was made by two persons, it was necessary for each one of them to deposit, Rs. 2,000 as security for costs of the, petition, and in absence of the full deposit of Rs. 4,000 the Election Commission was not competent to entrust the petition for trial to an Election Tribunal, Finding no force in this contention, the learned Tribunal rejected the application on 29th April, 1953, leaving the parties to bear their own costs. Net Ram has now invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution praying that the order of the Election Commission (Respondent No. 1) entrusting the election petition for trial to the Election Tribunal (Respondent No. 2) and all proceedings taken subsequent thereto be quashed and a writ of certiorari be issued to the Respondents. Section 81 of the Act provides that where an election to the State Legislature or the Parliament is challenged, it shall be done by means of an election, petition presented to the Election Commission by any elector or candidate at such an election. Section 82 of the Act refers to the persons that have to be joined as Respondents, while Section 83 lays down what the petition for election should contain. Section 84 relates to the relief that can be claimed. Then comes Section 85, which empowers the Election Commission to dismiss an election petition for non -compliance with the provisions of Section 81 or 82 or Section 117 of the same Act. If the Election Commission does not dismiss the election petition under this provision of law, then in accordance with Section 86 the Election Commission has, after publication of the petition and serving a copy of the same upon each of the Respondents, to refer it for trial to an Election Tribunal appointed for the purpose. The procedure that has to be followed by the Tribunal for trial of the petition is laid down in Section 90 of the Act, Sub -section (1) whereof provides that subject to the provisions of this Act and any of the rules made thereunder, every ejection petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. Sub -section (3) of Section 90 of the Act empowers the Tribunal to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 notwithstanding that it has not been dismissed by the Election Commission under Section 85 -It may be mentioned that non -compliance with the provisions of Section 117 of the Act empowers the Election Commission to dismiss the petition, but if it does not do so, no such power vests in the Election, Tribunal.
(3.) THE first contention raised on behalf of the petitioner is that since Section 85 of the Act provides that if the provisions of Section 117 of the Act are not complied with, the Election Commission shall dismiss the petition, the failure of the Commission to pass such an order is a violation of the mandatory provision of law, and the Election Commission has no power or jurisdiction to refer the petition for adjudication to an Election Tribunal.;