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1995 DIGILAW 320 (KAR)

SUBHAN KHAN v. J. H. PATEL

1995-07-24

P.KRISHNA MOORTHY

body1995
P. KRISHNA MOORTHY, J. ( 1 ) THIS is an application filed by the first respondent in the main Election Petition to strike out Respondents 2 and 3 from the array of parties in the Election Petition. Respondents 2 and 3 in the Election Petition are the Returning Officer, 158 Channagiri Legislative Assembly Constituency, Channagiri and the District Election Officer and the Deputy Commissioner, Shimoga District, Shimoga, respectively. ( 2 ) THE main prayer in the Election Petition is to declare that the declaration of the election of first respondent is void on the ground of Section 100 (1) (c) of the Representation of the People Act, 1951 in respect of 158, Channagiri Legislative Assembly Constituency and for an order for repoll in the constituency and pass such other orders as deems fit to grant under the circumstances of the case. In I. A. I. , it is alleged that respondents 2 and 3 are not necessary parties to the Election Petition as it is in violation of Section 82 of the Representation of the People Act (hereinafter referred to as 'the Act' ). Section 82 specifies as to the persons required to be joined as Respondents to an Election Petition. Under this provision, the returned candidate is a necessary party as Respondent and in certain other circumstances, all other contesting candidates are also necessary to be impleaded as Respondents to the Petition. No other person or authority except as aforesaid is required to be impleaded as Respondent in an Election Petition. Accordingly, Respondents 2 and 3 are not necessary parties. It is further stated that Section 87 of the Act provides that, subject to the provisions of the Act and any rules made thereunder, every election shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the Suit. According to the first Respondent, the provision of the Code of Civil Procedure are subject to the provisions of Section 82 of the Representation of the People Act which mentions necessary parties to the proceedings. It is further alleged that, under Section 82 of the Act, respondents 2 and 3 are not necessary parties. According to the first Respondent, the provision of the Code of Civil Procedure are subject to the provisions of Section 82 of the Representation of the People Act which mentions necessary parties to the proceedings. It is further alleged that, under Section 82 of the Act, respondents 2 and 3 are not necessary parties. ( 3 ) SECTION 82 of the Act is to the following effect:"parties of the petition: A petitioner shall join as respondents to his petition - (a) where the petitioner, in addition to claiming 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; (b) any other candidate against whom allegations of any corrupt practice are made in the petition. "the aforesaid provision provides that where the petitioner claims a relief that the election of all or any of the returned candidates is void, claims a further declaration that the himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, shall be impleaded and where no such further declaration is claimed, all the returned candidates shall be impleaded. In this case, there no prayer for a further declaration that the petitioner or any other candidate has been duly elected and accordingly, the returned candidate alone is a necessary party. The further provision of impleading of a party is provided for in Section 86 (4) of the Act which allows any candidate not already a respondent, may be entitled to be joined as a Respondent as provided for, in that Section. Respondents 2 and 3 do not come under the category of persons mentioned in Section 86 (4), because, they are only Returning Officer and District Election Officer. Accordingly, it is contended that Respondents 2 and 3 are not necessary parties. ( 4 ) OBJECTION has been raised by the learned Counsel for the Election Petitioner that the first Respondent has no locus standi to move such an application. I am not inclined to accept this contention, for, the Court has power in an Election Petition to remove parties who are unnecessary to the proceedings and who are not to be impleaded under the provisions of the Act. I am not inclined to accept this contention, for, the Court has power in an Election Petition to remove parties who are unnecessary to the proceedings and who are not to be impleaded under the provisions of the Act. By filing such an application, the first respondent is only bringing the fact to the notice of the Court and the Court is satisfied, that the Respondents 2 and 3 are not necessary parties, the Court can, in exercise of its power under Order 1, Rule 10 of the Code of Civil Procedure, can certainly remove them from the array of parties. ( 5 ) THE question to be decided is as to wheather Respondents 2and 3 are necessary parties to the Election petition. As stated earlier, there is no prayer for a declaration hat the petitioner has been duly elected. On a reading of Section 82 and Section 86 of the Act, it is clear that Section 82 is final and conclusive in so far as the parties to be impleaded in an Election Petition is concerned. ( 6 ) IN Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983 , in paragraph 13, it was observed:"in view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86 (4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. " ( 7 ) IN B. Sundara Rami Reddy v. Election Commission of India, 1991 Supp (2) SCC 624: (1991 AIR SCW 772) the question was as to whether a proper party can be impleaded in a petition under the Representation of the People Act. It was held in that decision (Para 3);section 82 of the Representation of the People Act, 1951 specifies the persons who are required to be joined as respondents to an election petition. "it was further held in paragraph 4 of the aforesaid Judgment thus:"the concept of joinder of a proper party to a suit or proceeding ungerlying Order 1 of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. "it was further held in paragraph 4 of the aforesaid Judgment thus:"the concept of joinder of a proper party to a suit or proceeding ungerlying Order 1 of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self-contained Code which does not contelmplate joinder of a person or authority to an election petition on the ground of proper party. "from the aforesaid decisions of the Supreme Court, it is clear that, only persons mentioned in Section 82, viz. , the returned candidate and in certain other circumstances, all the contesting candidates alone can be impleaded as a party / parties to the Election Petition. The applicability of the civil procedure code to that extent is limited by the combined provisions of Sections 82 and 87 of the act. Respondents 2 and 3 do not come under the categories mentioned above and accordingly, they are not necessary parties to he petition. ( 8 ) LEARNED counsel for the election petitioner relied on a decision of Madras High Court reported in K. T. Kosalram v. Dr. Santhosham, AIR 1969 Madras 116. In this decision, a question arose as to whether the Returning Officer is a proper or necessary party to an Election Petition. It was held therein that:"section 82 of the Act provides for array of parties to an election petition. But it is not final and conclusive. The provisions of the Civil Procedure Code can be used and utilised either for impleading or for adding of parties to a petition. Further, the Act does not say that the Returning Officer is either a necessary part or a proper party in an appropriate case. "this decision can no longer be relied on in view of the subsequent decision of the Supreme Court referred to above and reported in AIR 1982 SC 983 , wherein, their Lordships have categorically said that :"no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86 (4) of the Act. "it was further held in that case that:" A person who is not a candidate may not be joined as a respondent to the election petition. "it was further held in that case that:" A person who is not a candidate may not be joined as a respondent to the election petition. "in the light of the aforesaid Supreme Court decision, I have no hesitation to hold that the Madras decision does not lay down the correct law and need not be followed. ( 9 ) IN P. A. Shreedhar Shanal v. Chie Electoral Officer, ILR 1990 Kant 2622, a question arose as to whether Election Commission is a necessary party to the Election Petition or not. The case of the petitioner there was, that 30% of the ballot papers used in the polling stations in the constituency in question were chemically treated in such a manner that as a result thereof, the votes cast in favour of the contesting candidates disappeared and appeared in favour of the Congress (I) Candidate. In the light of the above allegations, this Court held that:"the averments made in the petition cover some of the functions of the Election Commission of India viz. , printing and using of the ballot papers in the election and conducting fair and free election in accordance with law. "consequently, this Court held that, it would be just and appropriate to have the Election a Commission of India impleaded as a respondent to the Election Petition so that there could be fair and proper trial of the case, if the case were to go for trial. ( 10 ) FURTHER, distinguishing the decision of the Supreme Court in Jyoti Basu's Case, AIR 1982 SC 983 , it was further observed by this Court thus:"i would also make it clear that I should not be understood as laying down that in every case where there is an allegation against the authorities like respondents 1 to 3, Election Commission should be made a party because they work under the control and supervision of the Election Commission. Hence I am of the view that the aforesaid decisions of the Supreme Court cannot be applied to the case on hand. " ( 11 ) IT is to be noted that the aforesaid decision was rendered before the decision of the Supreme Court in B. Sundara Rami Reddy's Case, 1991 Supp (2) SCC 624: (1991 AIR SCW 772 ). Hence I am of the view that the aforesaid decisions of the Supreme Court cannot be applied to the case on hand. " ( 11 ) IT is to be noted that the aforesaid decision was rendered before the decision of the Supreme Court in B. Sundara Rami Reddy's Case, 1991 Supp (2) SCC 624: (1991 AIR SCW 772 ). In this Supreme Court decision, the question arose as to whether the Election Commission is a necessary party to an Election Petition or not. In that Election petition, the challenge was to the validity of the order of the Election Commission dated 22-11-1989 declaring the polling at Bhogasamudram polling station as void and directing re-poll at that polling station. In that case, the Election Commission of India impleaded as a Respondents. After considering the provisions of the Act, especially, Sections 82 and 87, the Supreme Court held that, no other person or authority except as mentioned in Section 82 is required to be impleaded as a respondent to an election petition under the Act. It was further held that the Election Commission of India is therefore not a necessary party to an election petition. The Supreme Court further considered the question as to whether the Election Commission of India is a proper party since its orders have been challenged in the Election Petition. It is in that context, their Lordships, as mentioned above, held (at p. 773 of AIR SCW):"the concept of joinder of a proper party to a suit or proceeding underlying Order 1 of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. " ( 12 ) IN the light of the subsequent decision if the Supreme Court mentioned above, it is doubtful as to whether the view by the learned single Judge of this Court in P. A. Shreedhar Shanal's case, ILR 1990 Kant 2622, lays down the correct law. That apart, even in the decision by this Court referred to above, it was held that, whether any person other than the person mentioned in Section 82 of the Act should be impleaded or not depends upon the nature of the allegations made in the petition. The allegation in this case is only to the effect that the Returning Officer improperly rejected the nomination paper submitted by the petitioner. The allegation in this case is only to the effect that the Returning Officer improperly rejected the nomination paper submitted by the petitioner. It is further alleged that the petitioner informed the Returning Officer that he had taken the oath of affirmation under Article 173 of the Constitution of India before the Authorised Officer of Davanagere Constituency. The act challenged in this petition is an act of rejection of the nomination paper and accordingly, on the principle laid down in this decision itself, Respondents 2 and 3 to this petition are not necessary parties. It is the rejection of the petitioner's nomination that is mainly challenged in this Election Petition. The only question to be decided in this case is as to whether the rejection of the nomination papers of the petitioners on the ground given by the Returning Officer is proper and legal. For deciding that question, Respondents 2 and 3 are not necessary parties. In this light of the two Supreme Court decisions, referred to above, it is clear that, only persons mentioned in Section 82 of the Act are to be impleaded in an Election Petition. Admittedly, Respondents 2 and 3 do not come within the category of persons mentioned in Section 82 of the Act nor the allegations made in the petition sufficient to implead them as parties to an Election Petition against the provision contained in Section 82 of the Act. In that view of the matter, I hold that Respondents 2 and 3 are not necessary parties to the Election Petition and they have to be removed from array of parties. In view of what is stated above, Respondents 2 and 3 are removed from the array of parties. Order accordingly. --- *** --- .