JUDGMENT - SIRPUKAR V.S., J.:—Elections of Municipal Corporation were held somewhere in the year 1992. The petitioner herein was a contesting candidate from Ward No. 52. The petitioner was declared elected in the election, which took place on 25-2-1992. His election was challenged under section 428 of the Nagpur Corporation Act by the candidate who lost the election, who is none else but respondent No. 2 herein. The Election Petition was registered as Election Petition No. 732/92. While the said election petition was in progress respondent No. 1, Nagpur Municipal Corporation filed a preliminary objection challenging the tenability of the petition on the ground that all the persons, who had contested the elections were not joined as parties to the petition and the only parties were Corporation itself, the Returning Officer and the elected candidate. The objection raised by the Corporation seems to have been adopted by the respondent No. 3 to the election petition and the petitioner herein. The Additional District Judge before whom objection is raised considered the objection and rejected the application Exh. 39 by its order dated 10-2-1992. He held that since the petitioner had not sought declaration for himself or for anybody else as elected candidate in the impugned election, it was not necessary for the petitioner to join all the contesting candidates as parties. In short, the Court relied upon sub-section (1) of section 428 of Nagpur Municipal Corporation Act. 2. It is this order, which is challenged by the elected candidate in this petition. Shri Deshpande, learned Counsel appearing for the petitioner has contended that the trial Court had completely misread the provisions of section 428(1) and has not considered properly the provisions of section 428(2). According to him, if sub-sections (1) and (2) of section 428 are read together, it was bound to be held that all the contesting candidates in the election were bound to be joined as parties in the election petition. Shri Deshpande also challenged the reliance placed by the trial Court on the reported ruling of Supreme Court in A.I.R. 1979 S.C. 1084, (Manohar Nathusao v. Marotrao and others)1, as also on the ruling of Bombay High Court in 1977 Mh.L.J. 246, (Pyare Saheb v. Dashrath and others)2. According to Shri Deshpande, the learned trial Court has not been able to comprehend these rulings and law laid down thereunder. According to Shri Deshpande, the learned trial Court has not been able to comprehend these rulings and law laid down thereunder. Shri Marpakwar, learned Counsel for the respondent No. 2 opposed the petition and supported the order of the trial Court. He contends that the plain reading of section itself suggests that where the petitioner has not sought declaration of being elected in his own favour or in favour of some body else, it is not necessary to all to join all contestants as parties and the trial Court has taken correct view of the matter. In that view of the matter, it will have to be considered as to what is the true interpretation of section 428. Sub-sections (1) and (2) of section 428 are as under :— “(1) If the qualification of any person declared to be elected for being a Councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause any person enrolled in the municipal election roll may, at any time within fifteen days from the date on which the election of councillor is notified under section 16, apply to the District Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who, although not declared elected, had contested the election from the same word.” (emphasis supplied) “(2) If the District Court, after making such enquiry as it deems necessary, finds that the election was valid election and that the person whose election is objected to is not disqualified, it shall confirm the declared result of the election. If it finds that the person whose election is objected to is disqualified for being a Councillor, it shall declare such person's election null and void. If it finds that the election is not valid election, it shall set aside. If it finds that the person whose election is objected to is disqualified for being a Councillor, it shall declare such person's election null and void. If it finds that the election is not valid election, it shall set aside. In either case it shall direct that the candidate, if any, in whose favour next highest number of valid votes is recorded after the said person or after all the persons who were returned as elected at the said selection, and against whose election no cause of objection is found, shall be deemed to have been elected.” (emphasis supplied) Relying on the language and more particularly on the emphasized portion in sub-section (2), the contention of Shri Deshpande is that in fact, where the election of a candidate is found to be null and void on the ground of any disqualification and secondly where the election itself is not held to be valid election, then in both these cases, the Court has to apply its mind and the decide as to whether any other candidate, who has secured the next highest number of votes could be declared as elected at the said election and while considering this, the Court will also consider if there is no objection in law Shri Deshpande relied upon the positive language of this particular part of sub-section (2) and contends that the language of this sub-section is of a mandatory nature. His contention is that if language alone is the criteria, then the Court, which has set aside the election of a person on the ground of disqualification or has held a particular election, then it becomes the duty of the Court to further probe into the question as to whether some other candidate can be declared to be elected and in that eventuality it will be necessary that all the contesting candidates should be before the Court. 3. Now as a matter of fact, if this election petition is see, the only prayer in the election petition is for setting aside the election of respondent No. 3 therein. The prayer runs somewhat like this: “It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to— (I) declare that election of respondent No. 3 is illegal and set aside the election results of Ward No. 52, Mahal, Nagpur declared on 27th February, 1992 and direct the respondents Nos. The prayer runs somewhat like this: “It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to— (I) declare that election of respondent No. 3 is illegal and set aside the election results of Ward No. 52, Mahal, Nagpur declared on 27th February, 1992 and direct the respondents Nos. 1 and 2 to hold a fresh election of ward No. 52, Mahal, Nagpur. (II) declare that the results declared on 27-2-1992 in respect of ward No. 52 are null and void. (III) grant any other or further relief including the cost as may be deemed fit in the circumstances of the case.” This prayer clause in a most certain manner shows that the petitioner himself has not prayed for a relief that any particular candidate should be declared to have been elected. The prayer clause in this case is utmost importance as emphasized part of section 428(1) sepcifically gives a rider that if the application i.e. election petition is for a declaration that any particular candidate shall be taken to have been elected, then the applicant i.e. Election Petitioner should make parties to his application all candidates who although not declared elected had contested the election from the same ward. The learned Counsel for the respondent, therefore, emphasized on this part of the sub-section (1) and stated that the law itself provides that it is only when a relief of declaration in favour of a particular candidate is prayed for, then alone it is necessary that all the contesting candidates should be joined as parties to the petition. Otherwise, all the contesting candidates need not be joined as parties to the petition. In short, the contention of the learned Counsel for the respondent is that from the very presence of this emphasized portion of sub-section (1), it can be presumed that were no such declaration for being declared elected is sought for in the election petition, all the contesting candidates need not be joined as parties. 4. However, the argument of Shri Deshpande is that sub-section (1) of section 428 and more particularly the emphasized portion therein cannot be read in isolation and has to be read in the light of sub-section (2) and more particularly the emphasized portion therein. He submits that there is no provision either in the Act or in the Rules providing for the necessary parties to the election petition. He submits that there is no provision either in the Act or in the Rules providing for the necessary parties to the election petition. He submits that even if this provision in sub-section (1) is made, it could be only by way of emphasis. However, that would not absolve the petitioner from joining all the contesting candidates as parties to the petition, particularly because of the firm language in sub-section (2) and the mandate given therein that in case where the election is set aside as not being a valid election or where election of a candidate is set aside on the ground that he was disqualified and the election itself is held to be null and void, the Court is bound to consider further question as to whether any other candidate who has secured the next best number of votes could be declared elected or not. Shri Deshpande further points out that in sub-section (2) there is no such condition that such consideration by the Court would depend upon the prayer clause made in the election petition. He submits that sub-section (2) and more particularly the emphasized portion thereof would apply to election petition necessarily whether declaration for the elected candidate is sought for there or not. He submits that if it is held that the emphasized portion of sub-section (2) applies only to petition where such declaration is specifically made, then the words in the emphasized portion “in either cases” would be rendered meaningless. He points out that in both cases where election of elected candidate is set aside on the ground that he was disqualified and secondly where it is held that the election was not valid election at all, the Court had to consider the further aspects as to whether any body else could be declared elected or not and, therefore, according to him, nothing would depend on the facts as to whether the prayer to that effect is made or not. 5. Section 428 fell for consideration in the reported decision of the Supreme Court in the case of (Manohar v. Marotrao), A.I.R. 1979 S.C. 1084. 5. Section 428 fell for consideration in the reported decision of the Supreme Court in the case of (Manohar v. Marotrao), A.I.R. 1979 S.C. 1084. That a case was where election of elected candidate was challenged on the ground that he had incurred disqualification under section 15(g) of the Corporation Act inasmuch as the elected candidate at the relevant time was an employee of Life Insurance Corporation and the Rules of Life Insurance Corporation prohibited its employees from taking part in election to any legislature or Local Authority. It was contended that since the elected candidate was as such prohibited by law to be a member of any local authority like Life Insurance Corporation, his election was bound to be set aside by the Election Tribunal. It was then that the question whether the next candidate could be declared elected automatically by force of section 428(2) fell for consideration. The Election Tribunal i.e. Assistant Judge then relying on section 428(2) granted further declaration that since election petitioner had secured second highest votes, he would be taken to have been elected as a Councillor from that ward and gave declaration to that effect. This decision came to be challenged by the returned candidate before the High Court. The High Court though confirmed the view of the Election Tribunal regarding disqualification of returned candidate however, quashed the declaration granted in favour of the election petitioner on the ground that though he had secured next highest votes, there was no material on record from which it could be inferred that had the disqualification been known to the voters, they would have returned him as their Councillor to the Municipal Corporation from their ward. The High Court, in that view of the matter directed fresh election. The elected candidate then appealed to the Supreme Court on the question as to whether he was really a disqualified candidate. The Supreme Court after consideration of the Rules and Regulations of the Life Insurance Corporation as also the provisions of Nagpur Corporation Act held that in fact the returned candidate had not incurred any disqualification. There was a difference of opinion. The Supreme Court after consideration of the Rules and Regulations of the Life Insurance Corporation as also the provisions of Nagpur Corporation Act held that in fact the returned candidate had not incurred any disqualification. There was a difference of opinion. However, majority verdict was in favour of the returned candidate — petitioner before the Supreme Court to the effect that he could not be covered under disqualification clause merely because he was a Life Insurance Corporation employee and Life Insurance Corporation Regulations prohibited him from taking part in election. The Apex Court, however, did not stop there and commented upon further aspect of section 428. Justice Krishna Iyer in para 18 held that in view of the finding that the returned candidate had not incurred any disqualification, it was not necessary to consider the further aspect as to whether there could be automatic declaration under section 428(2) in favour of the election petitioner merely because he was a candidate having secured second highest number of votes. He, however, expressed very specifically that the view in this respect expressed by the Bombay High Court in case of Pyare Saheb v. Dashrath cited supra was a correct view. This is what Justice Krishna Iyer has to speak about the language of section 428 :— “I am constrained to state that the draftsmanship of the provision is dubious and the Court in this decision has had to salvage sense out of alternative absurdity flowing from fidelity to pedantry.” It is further said in the same para : “The reasoning of the Bombay High Court not merely accords with the well known criteria incorporated in the Representation of the People Act, 1950 as well as in the rulings thereon by this Court but also is in consonance with the election sense. It is true that there is no common law rule applicable in this area and election statues have to be strictly constructed but that does not doctrinally drive the Court to surrender to bizarre verbalism when a different construction may inject reasonableness into provision.” (emphasis supplied) In para 19 thereafter the learned Judge proceeded to hold section 428 of the Corporation Act aims at sense and when a plurity of contestants are in the run other than the one whose election is set aside, predictability of the next highest becomes a misty venture. The rule in section 428 contains the corrective in such situations and the pregnant expression “against whose election no cause or objection is found gives jurisdiction to the Court to deny the declaration by the next highest and to direct a fresh election when the constituency will speak. We concur in the reasoning of Masodkar, J., in the said ruling 1977 Mh.L.J. 246 : A.I.R. 1977 Bom. 91.” In short, on the aspect of section 428, there was no difference of opinion between the two learned Judges viz. Justice Krishna Iyer and Justice V.D. Tulzapurkar. This is what Justice Tulzapurkar said in para 32: “Turning to the election-petitioner's appeal (C.A. No. 356/78), I am in complete agreement with the view expressed by the High Court that the declaration granted to him by the learned Assistant Judge under section 428(2) of the Corporation Act, 1948 should never have been granted. It is true that the election-petitioners' secured the next highest number of votes but that by itself would not entitle him to get a declaration in his favour that he be deemed to have been duly elected as a Councillor from Ward No. 34. I may point out that section 428(2) is not that absolute as was suggested by Counsel for the election-petitioner, for, the relevant sub-section (2) provides that if the election of the returned candidate is either declared to be null and void or is set aside, the District Court, “shall direct that the candidate, if any, in whose favour next highest number of valid votes is recorded after the said person or after all the persons who have returned at the said election and against whose election no cause of objection is found shall be deemed to have been elected.” The emphasized words give jurisdiction to the District Court to deny declaration to the candidate who has secured the next best votes. The High Court has rightly taken the view that there was no material on record to show how the voters, who had voted for the returned candidate, would have cast their votes had they known about the disqualification.” In short, both the learned Judges were unanimous that the rule in section 428(2) was not in the absolute terms and was not as mandatory as was tried to be canvassed before the Supreme Court. I am afraid the same argument is being advanced before this Court also. I am afraid the same argument is being advanced before this Court also. No doubt that Shri Deshpande submits that the rule in section 428(2) is not absolutely mandatory in the sense that it does not provide an automatic declaration in favour of the candidate who has secured next highest number of votes in case of election of the elected candidate is set aside. However, Shri Deshpande submits that even Supreme Court has directed that there has to be an enquiry at the instance of the Election Tribunal after the election Tribunal sets aside the election. The argument is that if at least the consideration by the Election Tribunal in the direction of the emphasized portion of sub-section (2) is a must, then necessarily in all the election petitions all the persons contesting election have to be joined as parties as otherwise such consideration would be futile and the petition itself will suffer in the absence of the parties. Shortly stated, the contention of Shri Deshpande is that if all the contesting candidates are not joined as parties, then mandatory rules now watered down by the Supreme Court decision would be rendered nugatory and it will have to be held that this rule as if does not exist. He contends that in any case, the Election Tribunal after having set aside the election or after having held it null and void, under any circumstance has to consider whether the next best candidate has to be declared elected or not and it other such candidates are not parties, then there would be no occasion for the Election Tribunal to consider and such consideration being mandatory step, if the contesting candidates are not parties, election petition has to suffer fatally from such non-joinder. I am afraid such is really not the import of the Supreme Court's decision. It is undoubtedly true that the Supreme Court has in the above mentioned case has held that there has to be a consideration of the aspect as to whether any other candidate could be declared elected or not. However, it is not the meaning of the Supreme Court judgment that in each and every case where such declaration is sought or not such consideration of the Election Tribunal is a must. 6. However, it is not the meaning of the Supreme Court judgment that in each and every case where such declaration is sought or not such consideration of the Election Tribunal is a must. 6. It will have to be kept in mind that there is a specific mandate in sub-section (1) that where there is a prayer for declaration in favour of any particular candidate, then all contesting candidate have to be joined as parties. Now if the interpretation as put forth by Shri Deshpande were to be accepted, then it will have to be held that in each and every case and in each and every petition all the contesting candidates have to be joined as parties. If that position is accepted, then it will have to be held that the emphasized portion in sub-section (1) is nothing but surplusage because in that event even if emphasized portion in sub-section (1) is removed, there would be no difference. Merely relying upon emphasized portion in sub-section (2) it cannot be held that in each and every petition where relief of declaration is sought or not, all the contesting candidates are necessary parties, in the absence of which, election petition must fail. I am afraid if that is accepted then as has been pointed out earlier the emphasized portion in sub-section (1) becomes negative and reduntant because in that event, it is not at all necessary to provide specifically that where applicant contends a prayer of declaration, all the contesting candidates have to be joined as parties, because that is the result obtained solely because of the emphasized portion in Sub-section (2). Such interpretation will not be permissible. 7. Indeed, it will be better to consider the judgment given by the Division Bench of this Court in the case of (Pyare Saheb v. Dashrath and others), 1977 Mh.L.J. 246 : A.I.R. 1977 Bom. 91 by Masodkar, J. It will have to be kept in mind that this judgment has been approved by the Supreme Court in so far as it pertains to declaration of second highest candidate under the provisions of section 428(2) is not mandatory or automatic. While considering the provisions of section 428, it is held as under :- “If the Court finds that the returned candidate was disqualified, then, it has to declare that his election is null and void. While considering the provisions of section 428, it is held as under :- “If the Court finds that the returned candidate was disqualified, then, it has to declare that his election is null and void. If the Court finds that the election is not valid on any other ground, it has to make an order setting it aside. The Election Court is enabled in nay of these cases to make a further declaration in favour of the candidate in whose favour the next highest number of valid votes is found, to be elected candidate at such an election subject to any cause not permitting such a declaration. Obvious it is that this further declaration could be made only in application seeking such a relief and clearly making of such a declaration is the matter of adjudication and cannot be mechanical or automatic.” (Emphasis supplied). The emphasized portion will show that it is only where the prayer of declaration is made and that relief is sought that the Court will be bound to undertake further journey indicated by section 428(2). The Division Bench has observed from the specific language of section 428(1) that it is 'permissible' for the petitioner to pray that after the election is found to be null and void or invalid, any particular candidate should be declared to have been duly elected. The Division Bench goes on to hold further that when the candidates at the election should be joined as parties to that petition. It further holds that if the declaration is only in regard to the validity of the election and no consequential prayer of declaration is made, this requirement is not necessary to be followed. When such a clear mandate is given by the Division Bench in para 15, one fails to follow as to how the petitioner could insist upon seeking dismissal of the petition on the ground that all contesting candidates were not joined as parties. Shri Deshpande, however, submits that the observations made by the Division Bench in Pyare Saheb's case are only obiter and not binding. I am afraid this contention cannot be accepted. The observations come in the wake of interpretation of section 428 as to whether the course to be adopted under section 428(2) was absolutely mandatory or not. In that, the Division Bench has interpreted the whole section. I am afraid this contention cannot be accepted. The observations come in the wake of interpretation of section 428 as to whether the course to be adopted under section 428(2) was absolutely mandatory or not. In that, the Division Bench has interpreted the whole section. It cannot be said that the observations are obiter only because the present question was not directly involved in that case. The observations have been made for bringing out the true import of section 428(2) and as such were extremely essential. It has been held that the petitioner has a 'choice' of claiming a further declaration of deemed election and, therefore, the question of parties to the petition depended upon this 'choice' having been exercised or not. Similarly the course to be adopted by the Court also depended upon whether this choice was adopted by the petitioner. The observations by the Court could not be read in isolation, bereft of the controversy and branded as 'obiter'. 8. Considering all this, it will have to be held that the course suggested by the latter part of sub-section (2) of the section 428 for consideration is not necessary where there is no prayer for a declaration of being elected in favour of a particular candidate. If that is not mandatory, then as a necessary sequator, it will have to be held that in petition where there is no such relief sought, it is not necessary for the petitioner to join all the contesting candidates as parties. The latter part of section 428(2) provides further guidance that it is only where such relief is sought that all the contesting candidates would have to be joined as parties to the petition. In the view of the matter, the order of the trial Court is perfectly right and will have to be confirmed. Shri Deshpande took an exception to the phraseology used in the trial Court's order to the effect that 'at this stage' the application was not maintainable. It is clarified that there is no question of any stage in making application since relief of declaration is not sought for at all. In that view of the matter, in the present case at least there would be no occasion for the trial Court to embark into the enquiry as to whether any other candidate should be declared elected. With these observations, petition is dismissed. In that view of the matter, in the present case at least there would be no occasion for the trial Court to embark into the enquiry as to whether any other candidate should be declared elected. With these observations, petition is dismissed. However, under the circumstance of the case, there will be no order as to cost. Petition dismissed. -----