ZAINAL ABEDIN v. KUMAR MUKHERJEE — 1997 DIGILAW 342 (CAL)

S. K. SEN, J. ( 1 ) THIS is an application by the respondent no. 1, returned candidates for dismissal of the Election Petition U/s. 86 (1) read with S. 82 of the Representation of the People Act, 1951 (hereinafter REFERRED TO as the said Act ). The contention of the respondent No. 1, the applicant, herein is that the election petition was filed on 21-6-96 and one of the contesting candidates was not joined as a respondent. It has been submitted that it was obligatory on the part of the petitioner to join all the contesting candidates as required U/s. 82 (1) of the said Act in as much as the applicant also prayed that he should be declared duly elected. It has been alleged in the petition that the trial of Election Petition is deemed to have commenced on 6th August, 1996, being the date fixed for respondent to appear before the High Court and to answer the claim made in the petition. It has also been alleged in paragraph 4 of the petition that the time to file Election Petition in accordance with S. 81 (1) of the said Act expired on 21st August, 1996. It has further been alleged in paragraph 5 of the said application "that one of the contesting candidates who was not joined as a party by the petitioner in the Election Petition as stated above namely Md. Mostafa Molla made an application on 27-8-96 four or three days after the dates fixed for parties to answer the claim made in the election petition and His Lordship allowed him to be joined as the Respondent No. 8 by order dated 27-8-96". It is further allegation in the application that the said Order was passed in violation of S. 86 (4) read with Explanation to S. 86 of the said Act. It has also been submitted that there is non-compliance of S. 82 (a) of the said Act and, accordingly, learned Advocate for the petitioner has submitted that the Election Petition should be dismissed under mandatory provisions of S. 86 (1) of the said Act. ( 2 ) LD. Advocate for the petitioner has submitted that u/s. 86 (4) any candidate not being made a party in the Election Petition may be entitled to join as a respondent within 14 days from the date of commencement of the trial. ( 2 ) LD. Advocate for the petitioner has submitted that u/s. 86 (4) any candidate not being made a party in the Election Petition may be entitled to join as a respondent within 14 days from the date of commencement of the trial. According to him, in the instant case, the 14 days time already expired when the addition was made on the application of Md. Mostafa one of the contesting candidates. In support of his contention Mr. Chakraborty, learned Advocate for the petitioner has relied upon the following decisions :-a) Mohan Raj v. Surendra Kumar Taparia reported in AIR 1969 SC 677 ;b) K. Venkateswara Rao v. Bekkam Narasimha Reddi reported in AIR 1969 SC 872 ;c) Shiv Chand v. Ujagar Singh reported in AIR 1978 SC 1583 ;d) Mohan Singh v. Bhanwarlal reported in AIR 1964 SC 1366 . ( 3 ) MR. Ajit Panja, learned Advocate for the petitioner has disputed the allegations and submissions made on behalf of the petitioner. He has submitted that the instant application is not maintainable. He has also submitted that allegations in paragraphs 3 and 4 of the petition are inconsistent with each other. On 27th August, 1996 an order was passed by me for addition of the said candidate Md. Mustafa Molla, who was originally not made a party in his own application. The said Order was passed without any objection of any of the parties as already recorded. It has been submitted by Mr. Panja that in view of the fact that the said order is already on record, there is no question of non-compliance with S. 86 (1) and of the dismissal of the Election Petition. 1 No challenge was made of the said Order by preferring any appeal. The application, at this stage for dismissal of the Election Petition, cannot be sustained. He has further submitted that the said Order dated 27th August, 1996, being already in the record of the Election proceeding of this Court, there is no defect in the Election Petition as such and the respondent no. 1 is not entitled to make any prayer for dismissal at this stage on the plea that the effect of non-joinder of said Md. Mostafa Mulla by the Election petitioner when the Election Petition was filed is fatal. The said contention, according to Mr. Panja, is barred by the principle of res judicata. Mr. 1 is not entitled to make any prayer for dismissal at this stage on the plea that the effect of non-joinder of said Md. Mostafa Mulla by the Election petitioner when the Election Petition was filed is fatal. The said contention, according to Mr. Panja, is barred by the principle of res judicata. Mr. Panja has also relied upon the judgment and decision of the Supreme Court in the case of Shiv Chand v. Ujagar Singh reported in AIR 1978 SC 1583 . Relying upon the said decision, he has submitted what is required under Section 82 is the presence of every candidate, not how or at whose instance he has been joined as a respondent and in the instant case the Court should not go into hypertechnicality of the matter since the said unsuccessful candidate has already been joined and is on record. Mr. Panja has further submitted that the respondent no. 1, returned candidate, has always taken an obstructive attitude to the hearing of the Election Petition. As it appears from the record of proceedings and the instant petition has been filed only to delay the hearing of the petition. ( 4 ) I have considered the respective submissions of the learned Advocates for the parties. It is not disputed that the unsuccessful candidate, Md. Mostafa Molla, was added as a respondent in the Election Petition on the basis of his application filed on 23rd August, 1996 and it was also recorded in the Order dated 3rd September, 1996, that the parties had no objection to the said Order. The Advocate for respondent No. 1 i. e. the applicant in the instant application herein has not disputed the same. He has further submitted even if the Court has passed an Order without any objection of the parties, the Court was not correct in passing the said order since the time fixed U/s. 86 (4) of the said Act has already expired. Accordingly, Mr. Chakraborty, learned advocate for the returned candidate respondent No. 1 has submitted that the Election Petition should be dismissed. It appears, however, that there is no prayer in the instant application for recalling of the said order dated 27th August, 1996, whereby the said Md. Mostafa Molla was added as a respondent on his own application, nor there is any prayer for review of the said Order. It appears, however, that there is no prayer in the instant application for recalling of the said order dated 27th August, 1996, whereby the said Md. Mostafa Molla was added as a respondent on his own application, nor there is any prayer for review of the said Order. The said Order exists on record of the Election Proceeding. Without any application for recalling or setting aside the said Order or review the prayer made in the instant application, in my view, cannot be granted. No challenge has been thrown to the said Order. On record, as of today, the unsuccessful candidate, Md. Mostafa Molla, is a respondent in the Election Petition. No appeal has also been filed and as such no dispute with regard to the said Order can be made or entertained at this stage and the contention of the respondent No. 1, has become barred by principle of res judicata. There is also no merit in the contentions of the applicant. The applicant has strenuously contended that 6th August, 1996 is the date of appearance and as such on the basis of Explanation of S. 86 (4) of the said Act, the said date should be deemed to be the date of commencement of trial. However, he has also mentioned in paragraph 4 of the petition that the last date for filing of the Election Petition is 21st August, 1996. If it is the last date that itself shows that the date of commencement of trial cannot be 6th August, 1996. There is inconsistency in the averments in paragraphs 3 and 4 of the petition. Paragraphs 3 and 4 of the instant application are set out hereunder :-"3. That the trial of the Election Petition deemed to commence on 6-8-96 being the date fixed for Respondents to appear before the High Court and to answer the claim made in the petition. ""4. That the time to file the Election Petition in accordance with Section 81 (1) of the R. P. Act, 1951 expired on 21-8-96. " ( 5 ) THE applicant has not taken any step, even assuming there is an accidental omission or inadvertence in mentioning the correct dates. The applicant has not taken any step for correction of the petition. That the time to file the Election Petition in accordance with Section 81 (1) of the R. P. Act, 1951 expired on 21-8-96. " ( 5 ) THE applicant has not taken any step, even assuming there is an accidental omission or inadvertence in mentioning the correct dates. The applicant has not taken any step for correction of the petition. It also appears from the records of the proceedings that the Election Petition was presented on 21st June, 1996 and it appeared for the first time on 2nd July, 1996 when on an interlocutory application Special Officer was appointed who was directed to bring on records, ballot papers and boxes relating to election. Respondent No. 1 entered appearance on 9th December, 1996. The application was made by Md. Mostafa Molla for addition of himself as he 2 was a contesting candidate on 26th August 1996. On 27th August, 1996, Md. Mostafa Molla was added as a respondent. On 3rd September, 1996, correction was made in the Order recording that the parties had no objection to such order made on 27th August, 1996. On 1st October, 1996, time to file written statement was extended till 3rd December, 1996. Second time prayer for extension of time to file written statement was allowed till 9th December, 1996. Respondent No. 1 filed written statement on 10th December, 1996. On 7th January, 1997, on the prayer of the respondent No. 1, time was taken for inspection of documents by respondent No. 1 and on 8th January, 1997, evidence of the petitioner was taken which continued upto 21st January, 1997. It may be noted that after Examination-in-Chief of the said witness of the election petitioner was concluded, cross-examination was made at length and when it was going to be concluded on 5th February, 1997, at that time Mr. It may be noted that after Examination-in-Chief of the said witness of the election petitioner was concluded, cross-examination was made at length and when it was going to be concluded on 5th February, 1997, at that time Mr. Chakraborty, learned Advocate for the respondent No. 1 stated that he had not been served with the original Election Petition and made his prayer for filing of written statement and submitted written statement was filed by him on the basis of the interlocutory application filed and served upon him as he was under impression that the said interlocutory application is the Election Petition itself and as such made such representation to Court earlier that he has been served with the Election Petition and obtained time for filing of written statement and also obtained extension of time from time to time. Be that as it may, on the basis of the prayer, direction was against made for effecting fresh service of Election Petition upon the respondent No. 1 on 5th February, 1997. According to the Ld. Advocate for the respondent No. 1 he could not be served with the Election Petition upto now, but his advocate obtained a copy of the Election Petition from the Registrar, O. S. of this Court although it is on record that the Election Petition was also served upon him at his Office, at Writers' Building. The respondent No. 1 is a Minister of State of West Bengal. In fact, Director of G. P. O. , West Bengal, was called and he submitted a report to that effect that an employee namely Kedar Maity at Writers' Building was duly authorised to accept service and in fact Election Petition was served upon him on 2-8-96. In any event, on the basis of the suggestion of learned Advocate Mr. Chakraborty, fresh three copies of Election Petition were submitted before the Registrar, Original Side by petitioner's Advocate on 20th February, 1997 pursuant to order dated 5th February, 1997 and the learned Advocate for the applicant/respondent No. 1 took one copy from the Office of the Registrar, O. S. on 21st February, 1997 and again prayed for time for filing written statement and for discovery and inspection on 8th April, 1997, and, accordingly, directions were issued and the matter appeared in the list for hearing after necessary formalities were duly complied with. In my view, the contention of the learned Advocate for the respondent No. 1 cannot be accepted and this application is a mala fide attempt on the part of the respondent No. 1 to thwart election proceeding and there is no merit in the contention of the respondent No. 1. Decisions cited by respondent No. 1 have no application to the facts of the instant case. In all the said decisions, applications were made by the election petitioner. The said decisions have no application to the facts of the instant case. In the case of Mohan Raj v. Surendra Kumar, reported in AIR 1969 SC 677 , one of the contesting candidates, R. D. Periwal against whom corrupt practices had been alleged was not joined as a party and as such objection was taken in the written statement filed by the returned candidate that the Election Petition was liable to be dismissed u/s. 86 (1) of the Act. The said preliminary objection was heard by the Judge on August 29, 1967. On the same day, an application for amendment of the Election Petition was filed. It was stated in the Election Petition that the Election Petitioner had gathered an impression that Inder Kumar Lunia was the election agent from a telegram sent by Lunia that the name of R. D. Periwal in paragraph 16 appeared because of 'uncertainty and inadvertence' and the reference to election agent came to be made in an omnibus manner. It was urged on behalf of the petitioner that there was no intention to make any allegation against R. D. Periwal, but two or three allegations of corrupt practices were imputed to Lunia. An application, therefore, was made that reference to 'election agent' in all paragraphs charging corrupt practices should be deleted and specifically prayed that the name of the R. D. Periwal in paragraph 16 should also be deleted, in short, against R. D. Periwal. This application was not separately considered by the High Court but the Election Petition itself was dismissed u/s. 86 (1) 3 since Periwal who was a duly nominated candidate (who withdrew later) had to be compulsorily joined u/s. 82 (b) because allegations of corrupt practices against him were made, said Order. The unsuccessful candidate preferred an appeal before the Supreme Court. The unsuccessful candidate preferred an appeal before the Supreme Court. It was noted by the Supreme Court that in the original election petition allegations were made against the returned candidate or his election agent. Two of the allegations of corrupt practice were against the returned candidate and his election agent. They were charges of taking assistance of Government servants and bribing voters. In connection with the bribery charges, no names were mentioned. In his reply to the petition the returned candidate denied the charges in respect of himself and his election agent (using the plural ). In the amended petition, in one place, the returned candidate and his election agent were, mentioned with Lunia as the election agent and in another, which we have quoted earlier, two election agents, Lunia and Periwal were mentioned by name. The returned candidate in reply denied that Lunia was the election agent. In the second application for amendment filed on August 29, 1967 attempt was made to withdraw allegations against the election agent and to delete all references to Periwal. This was resisted and it was stated that periwal was the only election agent appointed by the returned candidate. The question is whether the election petitioner was liable to be dismissed for not joining Periwal who was a duly nominated candidate and against whom charges of corrupt practice were made? It was urged on behalf of the Election Petitioner that Periwal was not a candidate at the election since he had withdrawn and as such S. 82 (b) of the Act cannot apply. The Supreme Court, however, rejected the said contention. Referring to its several earlier decisions that a candidate who is a duly nominated candidate continues to be a candidate for the purpose of S. 82 (b) in spite of withdrawal. The Supreme Court held that the Election Petition was accordingly rightly dismissed u/s. 82 (b ). The candidate against whom allegations of corrupt practices is made must be joined as a party and the effect of non-joinder is dismissal of the application. The Supreme Court also clarified the position in paragraph 11 of the said judgment. It was made clear that the application in the said decision was for amendment by deletion of the charges of corrupt practices against Periwal and, there was no prayer for joining Periwal as a respondent. The Supreme Court also clarified the position in paragraph 11 of the said judgment. It was made clear that the application in the said decision was for amendment by deletion of the charges of corrupt practices against Periwal and, there was no prayer for joining Periwal as a respondent. The Supreme Court observed that by the process of amendment, if the amendment is, allowed, every Election Petition can be saved which cannot be the policy of law. It was held in an application for amendment for better particulars amendment cannot be allowed to enable the Election Petitioner to remove the defect in the petition. In the said decision, the question of addition was also not there. The said decision, accordingly can have no application in the instant case. The other decision is the case of K. Venkateswar Rao v. Bekkam Norasima Reddy, reported in AIR 1969 SC 872 . In the aforesaid decision, it was held by the Supreme Court that the trial of Election Petition is not the same thing as trial of a suit. The Supreme Court REFERRED TO its earlier decision in Kamraj Nadar v. Kunju Thevar, 1959 SCR 583 at page 596 : AIR 1958 SC 687 at page 693 wherein it was observed that the provisions of the Act-"go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law. . . . . . ". The Supreme Court also mentioned about the peculiar character of an Election Petition by quoting from observations of A. Sreenivasan v. Election Tribunal, Madras, (1955) 11 ELR 278 at p. 293. Reference was also made to the Tipperary Case, (1875) 3 O'm and H 19, 25 where Morris, J. said :". . . . . . . a petition is not a suit between two persons, but is a proceeding in which the consistency itself is the principal party interested. "the Supreme Court, further, held and observed in paragraph 14 of the said judgment at page 877 of the said report which is as follows :-"it is well settled that amendments to a petition in a Civil Proceeding and the addition of parties to such a proceeding are generally possible subject to law of limitation. But an Election Petition stands on a different footing. But an Election Petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The Provisions of this Act will apply to all Civil Proceedings and some Special Criminal Proceedings which can be taken in a Court of law unless the application thereof 4 has been excluded by any enactment; the extent of such application is governed by Section 29 (2) of the Limitation Act. In our opinion however the Limitation Act cannot apply to proceedings like an Election Petition inasmuch as the Representation of the People Act is a complete and self-contained Code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act. "it is quite true as held by the Supreme Court that an Election Petition is liable to be dismissed, if the provisions of S. 81 or 82 or S. 117 are not complied with. It may be noted that in the aforesaid decision, the allegation relating to corrupt practice was made against the candidate who was not made a party. In the instant case, however, under the provisions of S. 86 (4), an application was made by the candidate himself who was not made a party and the petition was allowed without any objection. Moreover, in the instant petition, there is no prayer for recalling the said Order or for setting aside the said Order. The said Order was passed on the basis of an application made by the unsuccessful candidate who was not made a party and the said application was allowed. It is not open to the Court to dismiss the Election Petition since all the candidate have already been made parties. In the aforesaid case an application was made by the petitioner for his addition. Subsequently, the said application was withdrawn. Then an application was made by returned candidate for dismissal of Election Petition for non-joinder of the said V. K. Reddy. Thereafter, an application was made for deletion of the charges of corrupt practice by way of amendment alternatively for addition of the said unnecessary candidate V. K. Reddy. An application was also made for condonation of delay. Then an application was made by returned candidate for dismissal of Election Petition for non-joinder of the said V. K. Reddy. Thereafter, an application was made for deletion of the charges of corrupt practice by way of amendment alternatively for addition of the said unnecessary candidate V. K. Reddy. An application was also made for condonation of delay. In the aforesaid context, the Supreme Court held and observed that the Election Petition is not like a trial of a suit and the amendment cannot be so easily allowed so as to cure the defect after the expiry of the period and the party cannot be added after that expiry of period of 45 days within which the Election Petition is required to be presented. The question of addition of party on the basis of the application by the unsuccessful candidate who has not been joined u/s. 86 (4) has not been considered in the said decision. Accordingly, the said decision of the Supreme Court, in my view, does not apply to the facts of the instant case. In the case of Mohan Singh v. Monohar Lal, AIR 1964 SC 1366 , it was held in the facts of the case that the allegation made against one of the candidates whom it is alleged should have been joined in the Election Petition does not really constitute corrupt practice and as such, it was, therefore, not necessary on the allegations made to implead such unsuccessful candidate as a respondent in the petition. This case really goes against the applicant/respondent No. 1. In the instant, case also, there is no allegation of corrupt practice against Md. Mustapa Mulla, unsuccessful candidate. Be that, as it may, he was also impleaded by an Order, dated 27th August, 1996 and the same has not been challenged, in any proceedings. The other decision cited by both the parties is that of Shiv Chand v. Pujagar Singh, reported in AIR 1978 SC 1583 . In the aforesaid decision, the question arose as to the effect of an Election Petition when unsuccessful candidate against whom allegation of corrupt practice has been made has not been made a respondent. It was held that the Election Petition is liable to be dismissed. It was further held that S. 86 (4) of the Act itself entitles such candidate to be joined as respondent and such a right cannot be defeated. It was held that the Election Petition is liable to be dismissed. It was further held that S. 86 (4) of the Act itself entitles such candidate to be joined as respondent and such a right cannot be defeated. Once he comes on record as a party, the petition, therefore, was held to be in order and cannot be dismissed for non-joinder. The fact, that there are suspicious features suggestive of collusion between the petitioner and such unsuccessful candidate who has been added as a party will not take away the right. In this connection, the relevant portion of the judgment of the Supreme Court appearing in paragraph 5 at pages 1584-85 of the report may be taken note of :"we are satisfied that if he is impleaded as a respondent, the Election Petition cannot be dismissed u/s. 86 (1) of the Act. That provision states that the High Court shall dismiss an Election Petition which does not comply with the provisions of S. 82. The test is whether the Election Petition complies with S. 82, not whether the Election Petition has failed to comply with S. 82. The substance of the matter must govern because of hyper-technicality, when the public policy of the Statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely investigation into the merits of the Election Petitions. " ( 6 ) THE said case, in my view, does not, in any way, assist the applicant. On the contrary, this decision is an authority for the proposition that although an Election Petition is liable to be dismissed for non-joinder of a candidate against whom allegation of corrupt practice has been made, once, however, he is brought on record, the hyper technicality of the matter cannot be allowed to defeat the judicial process for investigation into merits of Election Petition. Considering all aspects of the matter, the application filed by the respondent No. 1 stands dismissed. Application dismissed.