Election Commission of India; Union of India, Ministry of Home Affairs v. Bhanulal Saha
1988-12-07
S.HAQUE
body1988
DigiLaw.ai
The election far the 15-Bishalgarh Assembly constituency was held on 2.2.1988 and the respondent No. 1 Sri Samir Ranjan Barman was declared elected. The petitioner Sri Bhanulal Saha and the respondent No. 2 Sri Sushil Kr. Das were defeated, The election of the returned candidate Sri Samir Ranjan Barman has been challenged in the Election Petition No. 3 of 1988. The Election Commission of India, the Chief Electoral Officer of Agartala, the Returning Officer of 16-Bishalgarh Assembly Constituency, the Union of India (Ministry of Home Affairs ) and the Chief Secretary. Government of Tripura are also made parties as respondent No. 3, 4, 5, 7 and 8 respectively in the Election Petition. These 5 (five) respondents have filed applications under the provision of Order 1 Rule 10 (2) of the Code of Civil Procedure for striking out their names. The Election petitioner has also filed objection against each of these applications contending that although they are not candidates in the Election but are proper and necessary parties in the Election Petition because there are specific allegations of committing corrupt practices by each of them. 2. The only point for consideration is whether these 5 (five) respondents, not being candidates in the Election, can be joined parties as respondents in the Election Petition. Learned Advocate General, Tripura Mr. Sujit Kr. Barman on behalf of the respondent Nos. 3,4, 5, and 8 and learned Additional Senior Central Government Standing Counsel Mr. S. N. Chetia on behalf of the respondent No. 7 submit that these respondents not being candidates in the Election cannot be joined as respondents and their names are liable to be struck out. In support of submissions, the provisions of section 82, 86 (4) and 99 of the Representation of the People Act, 1951 have been referred. The decision on this point in the case Jyoti Basn and others vs. Debi Ghosal and others, reported in AI.R. 1982 S.C.983 is cited. 3. Learned counsel Mr. Ashok Chakraborty on behalf of the Election Petitioner submits that the specific allegations of corrupt practices have been stated in the Election Petition against each of these respondents and their presence as parties in the proceeding would help for proper adjudication of the matters incontroversy relating to corrupt practices instead of taking recourse of the provisions of section 99 of the Representation of the People Act 1951 at the closing stage.
It is further submitted that the consideration for striking out may be taken up after framing the issues in the Election case. As regards the citation of the case law reported in A.I.R. 1982 S-C. 983 Mr. Chakraborty submits that the facts relating to the parties as respondents in that case are different in the instant case. 4. Section 82 is entitled 'parties to the Election petition' and reads as follows:- 82. Parties to the petition-A petitioner shall join as respondent 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 in claimed, all the returned candidates and (b) any other candidate against whom allegations of any corrupt practice are made in the petition." Section 86 (4) provides for an application by a candidate who is not already a respondent to be joined as a respondent. It is in this terms :- "86. (4)-Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any orders to security for costs which may be made by the High Court, be entitled to be joined as a respondent." Section 99 enables the High Court to make, at the time of making an order under section s 8 regarding a finding whether any corrupt practice has or has not been proved to have been committed at the Election, and the nature of corrupt practice, and the name of all persons, if any, who have been proved at the trial to have been guilty of corrupt practice and the nature of that practice.
The proviso to section 99 (1), however, prescribes that no person who is not a party ' to the petition shall be named in the order unless he has been given notice to appear before the High Court to show cause as to why he should not be so named and he had also been given an opportunity to cross-examine any witness who had already been examined by the High Court and had given evidence against him and an opportunity of calling evidence in his defence and on being heard. 5. Section 81 prescribes that any candidate at the election or any elector of such election may present an Election Petition. Section 82 (a) provides that the Election Petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of section 82 requires the petitioner to join as respondents any other candidates against whom allegations of corrupt practice are made in the petition. Section 86 (4) enables any candidate not already a respondents to be joined as a respondent. There is no other provisions dealing with the question as to who may be joined as respondents in the Election Petition. It is significant that while clause (b) of section 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practices are made, it does not oblige the petitioner to join as a respondent any other person against whom also allegations of corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under section 86 (4), any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. All these provisions made it clear that the contest in the Election Petition must be confined to the candidates at the election. 6.
All these provisions made it clear that the contest in the Election Petition must be confined to the candidates at the election. 6. Statements of corrupt practices in the Election Petition against a person or office, not being a candidate, do not entitle the petitioner to make such person or office as respondents in view of the clear provisions under section 82 and 86 (4). As regards such person or office, the provisions of section 99 have been specifically made for application by the High Court. 7. The consideration of striking out the name of respondent, not being a candidate in the election, cannot be dragged until settlement of issues. Adoption of such procedure would mean that the improperly impleaded respondents are allowed to be in record in contravention of the provisions of section 82 and 86(4) of the Representation of the People Act, 1951. Striking out of improper parties must be done at the initial stage of the proceeding if detected or pointed out. The High Court can suo moto struck out such a person or office impleaded as respondent at any stage of the proceeding of the Election Petition. 8. Besides the clear provisions of the relevant sections of the Representation of the People Act, 1951 referred to above with regard to the subject matter, namely parties to Election Petition, the law has been well enunciated and settled by the decision of the Supreme Court in the case Jyoti Bose and others vs. Debi Ghosal and others, reported in A I.R. 1982 S.C. 933. It was held that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951, and only those may be joined as respondents to an Election Petition who are mentioned in section 82 and section 86 (4) and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents. The ring as to the parties to the Election Petition is closed to all except the petitioner and the candidates at the election. 9. This decision of the Supreme is relied upon for deciding the question at hand. 10. The respondent Nos. 3, 4, 5, 7 and 8 have been improperly joined as respondents. The applications for striking out their names are allowed.
9. This decision of the Supreme is relied upon for deciding the question at hand. 10. The respondent Nos. 3, 4, 5, 7 and 8 have been improperly joined as respondents. The applications for striking out their names are allowed. Accordingly, the names of respondents No. 3, 4, 5, 7 and 8 are struck out. Office to delete their names from the Election Petition. 11. All the 3 (three) Misc. Cases being numbered as 234, 235 and 384 of 1988 are allowed and disposed of by this order.