The provision in Rule 3 (b) of the Municipal Election Petition Rules, 1947, regarding joinder of parties is not mandatory and the petition could not, therefore, have been dismissed for non-joinder of a candidate who has withdrawn from the contest.

( 1 ) THIS petition under Articles 226 and 227 of the Constitution has been filed by the petitioners for a writ of ccrtiorari quashing the order dated 28-11-1960 passed by the respondent No. 3 as an Election Tribunal under Section 20-A of the M. P. Municipalities Act.

( 2 ) PETITIONER No. 1, Goverdhanlal was duly elected as a member of the Municipal committee, Bilaspur, on 25-5-1959, from Ward No. 10. Respondent No. 1, ramcharan who had contested the election, filed an election petition before the respondent No. 3, challenging the validity of the election and also praying that in case the election was set aside, he should be declared as properly elected. The petitioner No. 2, Laxmi, who was also a candidate at the election, raised a preliminary objection that respondent No. 2 Kanhaiyalal, who was a duly nominated candidate for the election but had withdrawn from the contest, was a necessary party. The Election Tribunal passed the impugned order dated 28-111960, holding that Kanhaiyalal was not a necessary party.

( 3 ) THE only question which arises for decision in this petition is whether a candidate who has been duly nominated for election but has withdrawn from the contest is a necessary party and the failure to implead him is fatal to the application under Rule 3 (b) of the Municipal Election Petition Rules, 1947, printed on page 292 of the M. P. Municipal Manual.

( 4 ) WE may here refer to the relevant rules under Section 176 (2) (i) of the M, P. Municipalities Act. Rule 3 (b) reads thus: "3 (a ). . . . . " "3 (b) The petitioner may, if he so desires in addition to calling in question the election or selection of a returned candidate, claim a declaration that he himself or any other candidate has been duly elected or selected; in which case he shall join as respondents to his petition. all other candidates who were nominated at the election or selection. " rule 4 requires that a deposit of Rs. 250/- shall be made by the petitioner as security for the costs of the petition. Rule 5 then provides that if the provisions of rule 4 are not complied with the Judge shall dismiss the petition. It is pertinent to observe that this rule, which is the only one providing for dismissal of the petition for non-compliance with the rules, does not refer to Rule 3 (b ).

( 5 ) IT is necessary here to refer to the relevant provisions of the Representation of the People Act, 1951 and the amendments made thereto in 1955 as the decisions relied on by the learned counsel on both sides relate to election under that Act. Section 82 of the said Act, as it stood in 1951, provided that a petitioner shall join as respondent to his petition all the candidates who were duly nominated at the election, other than himself if he is so nominated. Section 85 provided that if the provisions of Sections 81, 83 or 117 are not complied with, the petition shall be dismissed. Here also there was no reference to Section 82, which provided for joinder of parties. The Act, was amended in 1955 and Section 82 was added to the list of sections, non-compliance of which rendered the petition liable to dismissal.

( 6 ) SHRI Dharmadhikari for the petitioner relies upon the decision of the Supreme court in Kamaraja Nadar v. Kunju Thevar, ATR 1958 SC 687 in which it was held that failure to implead a candidate who had retired from the contest entailed a dismissal of the petition and the Tribunal had no power to permit joinder of such a candidate as a party during the pendency of the proceedings. It will be noted that this decision was given when the Act had been amended in 1955 and is, therefore, based on the amended provision in Section 85 of the Act which is materially different.

( 7 ) THE decision of the Supreme Court in Jagan Nath v. Jaswant Singh, AIR 1954 sc 210, is more appropriate to the provisions of the M. P. Municipalities Act. That decision was given under the Representation of the People Act, 1951, when section 85 of the Act did not provide for the