ORDER
Dhirendra Mishra, J.
1. Heard the petitioner on I.A. No. 2, application for taking documents on records.
2. Not opposed. Allowed.
3. The petitioner, by this petition under Article 226 of the Constitution of India, has questioned the legality, validity & correctness of the order of Annexure P-1, dated 14-9-2006, passed by the respondent No. 1, whereby election petition of the respondent No. 2 under Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short 'Act of 1993') has been allowed and election of the petitioner to the post of Member, Janpad Panchayat, Katghora has been set aside.
4. Petitioner was elected as member of Janpad Panchayat, Katghora from Constituency No. 18, defeating the respondent No. 2, Respondent No. 2 presented election petition under Section 122 of the Act of 1993 on 10-2-2005 on the ground that the petitioner had given birth to third child namely Ku. Renuka, on 12-9-2001. She had filed her nomination paper deliberately suppressing the above fact. Her date of birth was fabricated as 12-9-2000 in place of 12-9-2001 in Kotwari Register. An ineligible lady contested the election and won from the constituency No. 18. The respondent, election petitioner, stood 2nd after counting and therefore, she be declared elected as member of the Janpad Panchayat after allowing the petition.
5. The Election Tribunal/respondent No. 1 called for report from Station House Officer, City Kotwali, Korba regarding birth of the third child of the petitioner. Learned Additional Collector, on the basis of report and birth certificate submitted by the S H.O., City Kotwali, Korba held that the third child of the petitioner was born after 26th of January, 2001 on 12-9-2001. In view of Section 36(1)(m) of the Act of 1993, she was not qualified to be office bearer of the Panchayat. She contested the election by suppressing her actual date of birth and submitting false information in her nomination paper and accordingly her election was set aside.
6. Learned Counsel for the petitioner argued that the election petition was filed under Section 122 of the Act of 1993 read with Rule 3 of the Chhattisgarh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1995(for short 'Rules of 1995'). From perusal of the order sheet of the Election Tribunal, which has been annexed alongwith application for taking documents on record, it would be evident that the petition was filed on 10th February 2005 without depositing any security deposit. The Tribunal allowed the petitioner time to deposit security amount. Thereafter, the petitioner deposited only Rs. 50/- as security deposit on 24-2-2005. Thus, election petition was filed without complying with the mandatory provisions of Rule 7. The Tribunal ought to have dismissed the petition under Rule 8.
7. Reliance is placed on Babulal Kaluram Kirar and Anr. v. State of M.P. and Ors. 1985 MPLF 411, Uday Singh v. Himmat Singh and Ors. 1999 (1) JLJ 200, Amarsingh v. Sub-Divisional Officer, Khilchipura 1997 (2) MPLJ 192, Charan Lal Sahu v. Nandkishore : [1974]1SCR294 & Aeltemesh Rein v. Chandulal : [1981]3SCR142 .
8. On the other hand, Mr. N.K. Agrawal, learned Dy. Advocate General appearing on behalf of respondent No. 1 submitted that the petitioner was not eligible to be an office bearer of the said Panchayat as per Section 36(1)(m) of the Act of 1993 as she had more than two living children and the third child was born on 12-9-2001 i.e., after 26th day of January 2001. It was further argued that no objection was raised that requisite security deposit as per Rule 7 of the Rules of 1995 has not been deposited by the election petitioner alongwith election petition. The petitioner also did not adduce any documentary or oral evidence in support of her defence. In these circumstances, the order passed by the Election Tribunal can not be faulted.
9. The other respondent Nos. 3 to 5 did not cause their appearance though they have been served with the notices. The respondent No. 2, in her return, has not disputed non-compliance of Rule 7, as alleged above.
10. From perusal of the pleadings of the respective parties and the order sheets of the Election Tribunal, it is evident that respondent No. 2/election petitioner did not deposit security amount at the time of presentation of the petition. The Tribunal allowed her time for depositing security amount. However, respondent No. 2/election petitioner deposited only Rs. 50/- as security deposit in place of Rs. 500/-.
11. Election under the Act of 1993 can be called into question only by filing election petition under Section 122 which reads as under:
122. Election petition.--(1) An election [xxx] under this Act shall be called in question only by a petition presented in the prescribed manner:
(i) in case of Gram Panchayat to the Sub-Divisional Officer (Revenue);
(ii) in case of Janpad Panchayat to the Collector; and
(iii) in case of Zila Panchayat to *[Director, Panchayat] and not otherwise.
*Subs. By C.G. Act No. 8 of 2003, for 'the Divisional Commissioner'.
(2). No such petition shall be admitted unless it is presented within thirty days from the date on which the election [xxx] in question was notified.
(3) Such petition shall be enquired into or disposed of according to such procedures as may be prescribed.
12. In the exercise of powers, conferred by Sub-section (1) of Section 95 read with Sub-sections (1) & (3) of Section 122 of the Act of 1993, the State Government has framed 'Madhya Pradesh Panchayats (Election Petition, Corrupt Practices and Disqualification for Membership) Rules, 1995 ('Rules 1995'). Relevant rules for the present purpose are reproduced as under:
3. Presentation of election petition.-- (1) An Election Petition shall be presented to the specified Officer during the office hours by the person making the petition, or by a person authorized in writing in this behalf by the person making the petition.
(2) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
7. Deposit of security.--At the time of presentation of an election petition, the petitioner shall deposit with the specified officer a sum of Rs. Five Hundred as security. Where the election of more than one candidate is called in question, a separate deposit of an equivalent amount shall be required in respect of each such returned candidate.
8. Procedure on receiving petition.--If the provisions of Rule 3 or Rule 4 or Rule 7 have not been complied with, the petition, shall be dismissed by the specified officers.
13. In the matter of Babulal (supra), the Division Bench of M.P. High Court, referring to pari materia provisions contained in the Representation of the People Act, 1951 (for short 'Act of 1951') and provisions contained in Rules 3, 4, 7 & 8 of the Rules of 1995, has held that provisions of Rule 7 is mandatory and even if no objection is raised about the non-compliance of Rule 7 of the Election Rules, it is incumbent on the Tribunal to dismiss the petition on being satisfied about the non-compliance of the Rule. It has no jurisdiction to proceed with its trial.
14. In the matter of Uday Singh (supra) also, the High Court of M.P. referring to the judgment of Babulal v. State of M.P., has held that provisions of Rules 7 & 8 of the Rules 1995 are mandatory. Where security amount is not deposited alongwith election petition, such petition is liable to be dismissed summarily. Similar view is expressed in Amarsingh (supra) also and it was held that where the deposit of security for costs not made in compliance of mandatory provision of Rule 7, election petition suffered from fatal defect under Rule 7 and the Sub-Divisional Officer has no option than to dismiss the petition.
15. The Hon'ble Supreme Court in the matter of Charan Lal Sahu (supra), while dealing with the non-compliance of Section 117 of the Act of 1951, has held that non-deposit of security amount alongwith election petition as required by the Section 117 by the petitioner, the High Court has no option but to reject the petition.
16. Similar view has been taken in the matter of Aeltemesh Rein (supra) and it has been held that non-compliance of Section 117 leads to dismissal of the election petition by virtue of Section 86(1) of the Act of 1951.
17. Relying upon the principles of law laid down in the above referred judgments, I am of the opinion that there is total non-compliance of Rule 7 of the Rules of 1995 by the election petitioner/respondent No. 2, as no security amount was deposited at the time of filing election petition. Later on, only Rs. 50/- was deposited as against requisite security deposit of Rs. Five hundred. In these circumstances, the Election Tribunal had no option but to dismiss the election petition in view of Rule 7 & Rule 8 of the Rules of 1995. Submission of learned Counsel for the State that no written or oral objection was taken by the petitioner before the Election Tribunal is concerned, as held in the judgments cited above a duty is cast upon the Election Tribunal to verify the election petition, whether the same has been filed in accordance with the election petition rules before entertaining the petition. Since no security amount was deposited by the election petitioner at the time of filing election petition and only Rs. 50/- was deposited as security amount later on, there was no validly constituted election petition before the Tribunal and the Tribunal ought to have dismissed the election petition under Rule 8 in limine.
18. In view of the above analysis, the order of Annexure P-1 passed by the Election Tribunal, whereby the election petition preferred by the respondent No. 2 has been entertained and allowed, can not be sustained and the same deserves to be set aside and is accordingly set aside. Consequently, the election petition of the election petitioner/respondent No. 2 is hereby dismissed. No order as to costs.