JAGAT NARAYAN, J - (1.) THIS is a petition under Art. 226 of the Constitution by one Ram Pratap against an order of Munsif Kota acting as Tribunal under rule 78 of the Rajasthan Panchayat and Nyay Panchayat Election Rules, 1960.
(2.) RAM Pratap petitioner and Chhitar Lal respondent No. 2 were candidates at the election to the office of Sarpanch of Balaheda Panchayat. RAM Pratap secured 373 votes and Chhitar Lal secured 398 votes. Chhitar Lal was accordingly declared as duly elected. Yasin Mohammed respondent No. l filed an election petition contest the election of Chhitar Lal inter alia on the ground that he committed various corrupt practices. Issues were framed and 24. 8. 61 was fixed for recording the evidence. Before the date of hearing Yasin Mohammed appeared before the Tribunal on 31. 7. 61 accompanied by Chhitar Lal's lawyer and filed an application under Order 23 Rule 1 (1) C. P. C. withdrawing the petition. On this application the petition was dismissed. Ram Pratap petitioner appeared before the Tribunal on 20. 9. 61 and filed an application purporting to be under Order 47, Rule 1 and under sec. 151 C. P. C. praying that the order passed by it on 31. 7. 61 dismissing the petition be set aside and the trial of the petition may be continued after transposing him as the election petitioner. This application was rejected by the Tribunal on the ground that it had no power to do so. On behalf of the petitioner it is contended that an election petition is not a matter in which the only persons interested are the candidates who strove against each other at the election that the public of the constituency also is substantially interested in it as an election is an essential part of the democratic process and that they are interested in seeing that the elections are fair and free and not vitiated by corrupt or illegal practices as held by their Lordships of the Supreme Court in K. Kamaraja Nadar vs. Kunju Thevar (1 ). It is argued that on account of the nature of an election dispute the Tribunal should not have dismissed the petition without giving notice of the application for withdrawal to the other parties so that they may have an opportunity of applying for being transposed as petitioners in place of the original petitioner who no longer wanted to prosecute the petition. Reliance was placed on Bal Mukand vs. Baksa Singh (2 ). In that case an election petition relating to municipal elections had been dismissed for default by the Tribunal and the application filed by the petitioner for setting aside the dismissal had been rejected. On the strength of the observations made by their Lordships of the Supreme Court in Inamati Mallappa Basappa vs. Desai Basavaraj Appappa (3) and on the strength of the observations made in Rawat Man Singh vs. Roop Chand Sogani (4) it was held that the Tribunal should have been liberal in setting aside an order dismissing an election petition for default in view of the special nature of election dispute. The order dismissing the election petition for default was accordingly set aside on appeal by this Court. In my opinion it is one thing to construe a particular provision of an enactment narrowly or widely depending on the nature of the proceedings to which it is being applied but quite another thing to import in the enactment provisions which do not exist in it. There is no provision in the Panchayat Act corresponding to the provisions contained in secs. 108 to 116 of the Representation of the People Act, 1951. The election petitioner was therefore entitled as of right to withdraw the election petition under O. 23, R. 1 C. P. C. at any time without the leave of the Tribunal. The Tribunal was accordingly bound to dismiss the election petition as soon as Yasin Mohammed filed an application under R. 1 (1) of O. 23 withdrawing it - See Bijayananda vs. Satrughna Sahu (5 ). It was not necessary for the Tribunal to give notice of the withdrawal application to the parties before dismissing the petition. For there is no provision in the Panchayat Act laying down such a procedure. In Rawat Man Singh vs. Roopchand (4) it was held as follows by a Division Bench of this Court - "a dismissal of an election petition for default of appearance by the petitioners to the election is not contemplated by the scheme of the Representation of the People Act and the Tribunal has been armed with ample powers to make a suitable arrangement for the prosecution of an election petition in case the petitioners for any reason decline to proceed with it. The provisions of secs. 89, 92 and 98 make it quite clear that the Election Tribunal has to record its decision as provided under sec. 98 and cannot merely dismiss an election petition for default. In order that a decision on the merits may be made, the Tribunal is armed with power to examine any person 'suo motu' and to direct the Advocate General of the State to take part as the tribunal may direct. This is further clear by reference to the provisions of Chapter IV. " One of the reasons given by the learned Judges for arriving at the above conclusion was that an election petition can only be withdrawn by the leave of the Tribunal after notice to the parties to the petition and to the public in general by publication of the application for withdrawal in the Official Gazette. Here again the provisions of section 98 of the Representation of the People Act, 1951 as it stood at that time were construed in the back-ground of the special nature of an election dispute. In any case the above decision can no longer be considered as laying down good law as a result of the ruling given by their Lordships of the Supreme Court in Bijayananda's case (5 ). In the absence of any provision either in the Panchayat Act or in the Civil Procedure Code requiring the Tribunal not to dismiss the petition before giving an opportunity to the other parties to apply for transposition it cannot be said that there was any error - legal, factual or clerical - in the order passed by the Tribunal on 31. 7. 61 dismissing the petition. The Tribunal could not therefore have set aside its order either under O. 47, R. 1 or under sec. 151 C. P. C. This Court also cannot interfere with that order in the exercise of its extra-ordinary jurisdiction under Art. 226 or 227 of the Constitution as there is no error in the order passed by the Tribunal. I accordingly dismiss the writ petition. In the circumstances of the case, I direct that parties shall bear their own costs of this writ petition. .;