A. N. Grover, J. ( 1 ) THIS is a petition under Article 226 of the Constitution challenging the order of the Chief Election Commissioner dated 7th August 1962 of which intimation was sent to the petitioner No. 1 by letter dated 9th August 1962 dismissing his election petition in limine. ( 2 ) THE facts briefly are that the petitioners and respondents 1 to 6 were the candidates for election to the Council of States which was to be held as per notification dated 7th March 1962. The last date for filing the nomination papers was 14th March 1962. The scrutiny of nomination papers was to be held on 16th March 1962. The date for withdrawal of candidature was 19th March 1962 and the date of poll was 29th March 1962. After the election had been hgld on 29th March 1962, respondents I to 6 were declared elected from the State of Maharashtra to the Council of Stated. Respondeht No. 7, who was a voter at the above election and had cast his vote in favour of the elected condidates, it is alleged, was not qualifted to be chosen to fill a seat for the Maharashtra Legislative Assembly for the reasons given in paragraph 3 of the petition. Indeed, it has been pointed out now that his election was set aside vide Punjab Rao v. D. f. Mashram. According to the petitioners, if that vote had been excluded petitioner No. 1 would have been declared elected. Petitioner No. 2 had been duly nominated for the election but had not actually contested the same and it is alleged that his party had supported the candidature of petitioner No. 1. Petitioner No. 1 filed an election petition before the Election Commission an 12/l4th May 1982. He also made certain supplementary submissions dated 18th Juns 1962 and 28th June 1962,. (copy Annexure "a. " ). The Election Commission wrote a letter dated 28th June, 1562 informing petitioner No. 1 that the provisions of section 81 (1) and clause (a) of section 82 of the Representation of the People Act, 1951 (hereinafter called the Act) had not been complied with and, therefore, the petition was liable to be dismissed under section 85 of the Act. Petitioner No. 1 was called upon to present his case before the Election Commission on 16th July 1962. Petitioner No. 1 was called upon to present his case before the Election Commission on 16th July 1962. Petitioner No l sent reply: dated 30th July 1962 on which date petitioner No. 2 also filed an affidavit for being added as a party. On 4th August 1962 petitioner No. 2 sent an application making a specific prayer that he be impleaded as a party. By an order dated 7th August 1962 the Chief Election Commissioner dismissed the election petition under section 85 for failure to join a constesting candidate as a respondent contrary to the requirement of section 82 (a ). Another order was made by the Chief Election Commissioner on 7th August 1962 on the application of petitioner No. 2 saying that after the order in the case of petitioner No. 1 had been passed, the application of petitioner No. 2 and his affidavit were received by post. This application was dismissed on the ground that the Commissioner had no power under the law to permit any alteration in the list of persons joined as respondents to the election petitions. ( 3 ) NOW, section 80 of the Act provides for filling of election petitions and says that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. Section 81 relates to presentation of petitions. Section 82- runs as follows : -. . . "a petitioner shall join as respondents to his petition. (a) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates ; and (b) Any other candidate against whom allegations of any corrupt practice are made in the petition. " Section 85 is to the effect that if the provisions of section 81 or section 82 or section 117 have not been complied with, the Election Commission shall dismiss the petition but the petition shall not be dismissed with out giving the petitioner an opportunity of being heard. " Section 85 is to the effect that if the provisions of section 81 or section 82 or section 117 have not been complied with, the Election Commission shall dismiss the petition but the petition shall not be dismissed with out giving the petitioner an opportunity of being heard. Section 90 deals with the procedure before the Tribunal after such an Election Tribunal has been appointed under section 86, Sub-section (1) of that section also provides that if the petition is not dismissed under section 85, the Election Commission shall cause a aopy thereof to be published in. the Official Gazette and a copy to be served by post on each respondent, and shall then refer the petition to the Election Tribunal for trial. Sub-section (4) of section 90 lays down that any candidate not already a respondent shall, upon application made by him to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of section 119, be entitled to be joined as a respondent. Section 119 says that no person shall be entitled to be joined as a respondent under sub-section (4) of section 90 unless he has given such security for costs as the Tribunal may direct. ( 4 ) THE principal question which has been canvassed in the present petition is whether the Chief Election Commissioner was justified in dismissing the election petition on the ground that petitioner No. 2 Shri Peter Augustus Alvares, who had been nominated as a candidate, had not been joined as a respondent. The Chief Election Commissioner relied on the decision of the Supreme Court in K. Kamaraja Nagar v. Kunju Thevar", in which it was held that a candidate whose name was included in the list of contesting candidates but who had retired from the contest continued to be a constesting candidtion for the purpose of the Act. The. be fore, such a candiate would be covered by the expression "all the contesting candidates" under section 82 (1) and must be joined as a respondent to an election petition. The Chief Election Commissioner, held that since Shri Alvares, who must be regarded as a contesting candidate, had not been joined as a respondent, the election petition had to be dismissed under section 85. The Chief Election Commissioner, held that since Shri Alvares, who must be regarded as a contesting candidate, had not been joined as a respondent, the election petition had to be dismissed under section 85. He was further of the view that there was no difference between the language of section 85 and that of section 90 (3) and, therefore, section 85 must be treated as mandatory provision because section 90 (3) has been held to be a mandatory provision in K. Kama- raj Nadar s case. ( 5 ) SECTION 90 (3) provides that the Tribunal shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 notwithstanding that it had not been dismissed by the Election Comunissioner under section 85. As has been noticed before, the language of section 85 is couched in equally mandatory terms and on a parity of reasoning the Chief Elandcti ( n Commissioner would be prima fade right in saying that if the provisions of section 82 had not been complied with, the Election Comn iission is bound to dismiss the election petition under section 85. The argument, however, which has been addressed on behalf of the petitioners is that since sub-section (4) of section 90 allows a candidate to be joined who has already not been. made a respondent and who has applied for being joined as such within the period. specified therein by an application made by him to the Tribunal it could never be inteided that the Election Commission at the preliminary stage should be held bound under section 85 to dismiss the petition for non-compliance with the provisions of section 82 (a ). . It does appear anomalous that the statute should make provisions andf a mandatory nature in the first. instance as contained-in section 85 and still contemplate the impk ading of a candi -. date as a respondent on b s application before the Tribunal. If the petition is bound to be dismissed at the initial stage by the Election Commission, no question can ever arise Of invoking the. provision contained in sec- tion 90 (4 ). instance as contained-in section 85 and still contemplate the impk ading of a candi -. date as a respondent on b s application before the Tribunal. If the petition is bound to be dismissed at the initial stage by the Election Commission, no question can ever arise Of invoking the. provision contained in sec- tion 90 (4 ). Indeed, mjogittder Singu v. Harchani Singh" the Election Tribunal of Kapurthala held that the word "shall" in section 85 should not be taken as mandatory because if it were so take-n there could arise no occasion for the Legislature to enact sub-section (4) of section 90. This led to the conclusion that the Legislature conceived certain circumstances under which the Election Commission shall not dismiss petition under section 85. In the view of the Election Tribunal the word "shall" in section 82 was not mandatory in nature. This decision was, however, given in 1953. As has been pointed out by the Chi^f. Election Commissioner, their Lordships in -K. Kamayaja ffadar s case* held that the provision^ of section 90 (3) were of a mandatory nature and the Election Tribunal was bound to dismiss an election petition wwch did not. comply with the provisions of section 82 (a), lthfts been clearly stated in this decision that if the provisions of section 82 which prescribes who shall be joined as respondents to the petition are not complied with, the Election Commission is jenjoined under section 85 of the Act to dismiss the petition. In this view of the matter it must be held that there is no error in the order of the Chief Election Commissioner which would jttstify interference under Article 226. ( 6 ) IT has been urged on behalf of the petitioners that-an application had been made before the order was passed by the Chief, Election Commissioner by petitioner No. 2 for being impleaded as a party and that even his affiidavit had been. . filled at an earlier stage to the same effect but I cannot see how that cure the defect in the petition which had to be presented within a specified period and which when presented suffered from the infirmity mentioned before. . filled at an earlier stage to the same effect but I cannot see how that cure the defect in the petition which had to be presented within a specified period and which when presented suffered from the infirmity mentioned before. ( 7 ) EVEN if it be assumed for the sake of argument that in certain circumstances the Election Commission is not bound to dismiss an election petition under section 85 for non-compli3c with the provisions of section 82, it is not disputed that the Commission would still have the power though discretionary to dismiss a petition which suffered from the defects of the nature from which the petition filed in the present case suffered. A writ of mandamus cannot be issued to the Election Commission when an order has been made in exercise of discretionary powers. ( 8 ) THE net result is that whether the provisions of section 85 are treated as mandatory or not the petitioners are not entitled to succeed and this petition must fail. It is dismissed but as there is no appearance on behalf of the Respondent 1 make no order as to costs.