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2000 DIGILAW 705 (KAR)

K. S. ESHWARAPPA v. H. M. CHANDRASHEKARAPPA

2000-10-25

P.VISHWANATHA SHETTY

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VISHWANATHA SHETTY, J. ( 1 ) IN this Interlocutory Application-I. A. II, the first respondent has prayed for the dismissal of the Election Petition (hereinafter referred to as "the petition") on the ground that the petitioner has not complied with the provisions of Section 82 of the Representation of the People act, 1951 (hereinafter referred to as "the Act" ). The said application is resisted by the petitioner. ( 2 ) THE minimal facts that may be required for the disposal of this application may be stated as hereunder: (A) The petitioner in the Petition, is the unsuccessful candidate in the election held to 162-Shimoga Assembly Constituency. He contested as a candidate of Bharatiya Janata Party. The first respondent is the successful candidate in the said election. He contested the election as a candidate of the Indian National congress. Respondents 2 to 8 in the petition are other unsuccessful candidates, who contested the election. (b) The elections both to 152-Shimoga Legislative Assembly constituency and the 21st Shimoga Parliamentary Constituency were simultaneously held on 11th of September 1999 and the results of the election to 162-Shimoga Legislative Assembly Constituency were declared on 6th of October 1999. While the petitioner secured 52,916 votes, the first respondent had secured 59,419 votes. (c) The substance of the grievance of the petitioner in the petition is that at the behest of the candidate for the Lok Sabha one Sri S. Bangarappa, who is also a candidate from the Indian National congress Party, respondents 9 and 10, who were the Returning officer and the District Election Officer respectively, were responsible for the substitution of Ballot Boxes, and on account of that, the result of the Election has been materially affected. Therefore, the petitioner has sought for a declaration of the election of the first respondent as void in terms of Section 100 (b) and (d) of the Act and for a further declaration that the petitioner is the returned candidate in respect of 162-Shimoga Assembly Constituency in terms of Section 101 (b) of the Act. However, for the purpose of the disposal of this application, I am of the view that it is unnecessary to refer to the details of the allegations made in the petition and also the objections filed by the respondents to the allegations made in the petition. However, for the purpose of the disposal of this application, I am of the view that it is unnecessary to refer to the details of the allegations made in the petition and also the objections filed by the respondents to the allegations made in the petition. (d) It is the case of the first respondent/applicant in the application that since respondents 9 and 10 were wrongly impleaded as party respondents to the petition, the petition is liable to be dismissed on the ground of misjoinder of parties and as being contrary to Section 82 of the Act. ( 3 ) SRI Suman, learned Counsel appearing for the first respondent-applicant, in support of the prayer that the petition is liable to be dismissed, strongly submitted that the petition is liable to be dismissed in terms of sub-section (1) of Section 86 of the Act as the petition does not comply with the provisions of Section 82 of the act. Elaborating this submission, he pointed out that since respondents 9 and 10 are not required to be joined as party respondents in terms of Section 82 of the Act, the joinder of respondents 9 and 10 as parties to the petition must be held as not complying with Section 82 of the Act and, therefore, the petition is liable to be rejected in terms of sub-section (1) of Section 86 of the act. According to him, since Section 82 of the Act, in express terms, provides as to who can be joined as respondents to the petition, it is not permissible for the petitioner to join any person other than those referred to in Section 82 of the Act and consequently, joinder of persons other than those referred to in Section 82 of the Act is fatal to the petition in view of sub-section (1) Section 86 of the Act. He submitted that the provisions of Section 82 and 86 of the Act are mandatory in nature and for non-compliance of Section 82 of the Act, the petition is liable to be rejected at the threshold itself. He also submitted that the defect in the petition cannot even be waived by a party to the petition; and that being the principle governing the election Law, the provisions of Sections 82 and 86 must be strictly construed. He also submitted that the defect in the petition cannot even be waived by a party to the petition; and that being the principle governing the election Law, the provisions of Sections 82 and 86 must be strictly construed. In support of his submissions, Sri Suman relied upon the decisions of the Hon'ble Supreme Court in the cases of MOHAN raj vs SURENDRA KUMAR; UDHAV SINGH vs M. R. SCINDIA; b. SUNDARA RAMI REDDY vs ELECTION COMMISSION OF INDIA; subhan KHAN vs J. H. PATEL; and V. NARAYANASWAMY vs C. P. THIRUNAVUKKARASU. ( 4 ) HOWEVER, Sri Ashok Haranahalli, learned Counsel appearing for the petitioner, seriously countering the submissions of the learned counsel for the first respondent, submitted that while non-joinder of parties referred to in Section 82 of the Act could be fatal for the petition and could be construed as non-compliance of Section 82 of the Act and, therefore, the petition may have to be dismissed in terms of sub-section (1) of Section 86 of the Act, the joinder of additional parties other than those referred to in Section 82 of the act, cannot be treated as fatal to the petition; and on that ground, the petition is not liable to be dismissed at the threshold. He pointed out that a distinction is required to be made between a case of non-joinder of parties referred to in Section 82 of the Act and joinder of additional parties in addition to the persons referred to in Section 82 of the Act. He submitted that in the instant case, while, according to him, respondents 9 and 10 are necessary and proper parties in the back-drop of the serious allegations made against them, at the most the addition of the said respondents could be considered only as joinder of parties who are not proper and necessary parties for adjudication of the dispute in the petition. According to him, the joinder of any additional parties to the petition, even if such parties are unnecessary to the petition, is not fatal to the petition and on that ground the petition cannot be dismissed. According to him, the joinder of any additional parties to the petition, even if such parties are unnecessary to the petition, is not fatal to the petition and on that ground the petition cannot be dismissed. He pointed out that in the instant case, since serious allegations are made against respondents 9 and 10 that they, at the behest of the candidate for the Shimoga Parliamentary Constituency, were responsible for substitution of Ballot Boxes, which has materially affected the results of the election, they are arrayed as party respondents to the petition with a view to give them as opportunity to have their say in the proceedings and for the purpose of just and proper adjudication of the dispute between the parties. In support of his submission that joinder of additional parties would not give any cause for the dismissal of the petition, he relied upon the decision of the Supreme Court in the case of JYOTI BASU AND OTHERS vs DEBI GHOSAL AND others. ( 5 ) IN the light of the rival submissions made by the learned counsel appearing for the parties, the only question that would arise for consideration is, whether the petition is liable to be dismissed on the ground of non-compliance of the provisions of Section 82 of the act? ( 6 ) SINCE the arguments are founded by the learned Counsel appearing for the parties based on Sections 82 and 86 (1) of the act, it is useful to extract the said provisions, which read as hereunder:"82. 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; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition. 86 (1 ). Trial of election petitions - (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 82 or Section 82 or Section 117. " ( 7 ) PART VI of the Act provides for adjudication of disputes regarding election. 86 (1 ). Trial of election petitions - (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 82 or Section 82 or Section 117. " ( 7 ) PART VI of the Act provides for adjudication of disputes regarding election. Section 79 (b) of the Act defines a candidate thus:" "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election". Section 79 (f), which defines 'returned candidate', reads as hereunder:" returned candidate' means a candidate whose name has been published under Section 67 as duly elected. "section 80 of the Act provides 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 80-A of the Act provides that the petition is required to be tried by the High Court and the same shall be exercised by a single Judge of the High Court to whom the petition is assigned for disposal by the Chief Justice of the High Court. Section 82 of the Act provides for parties to the petition. Section 83 of the Act provides for the contents of the petition. Section 84 of the Act provides of the relief that could be claimed in the petition. Section 86 of the Act provides for the trial of the petition. From Part-VI of the Act, it is clear that the provisions contained therein are self-contained in the matter of the contents of the petition, parties of the petition and the procedure to be followed by the High court in the matter of trial of the petition. ( 8 ) HAVING adverted to the salient provisions contained in Part-VI of the Act, let me now examine whether joining of respondents 9 and 10 to the petition can be treated as non-compliance of Section 82 of the Act. As it could be seen from Section 82 of the Act, the said provision, in unmistakable terms, provides as to who shall join as respondents to the petition. It is not in dispute that all the persons, who are required to be joined as respondents, have been arrayed as parties to the petition. As it could be seen from Section 82 of the Act, the said provision, in unmistakable terms, provides as to who shall join as respondents to the petition. It is not in dispute that all the persons, who are required to be joined as respondents, have been arrayed as parties to the petition. The only contention raised by the learned counsel appearing for the first respondent, as noticed by me earlier, is that respondents 9 and 10 not being the contesting candidates to the election, they could not have been arrayed as party respondents to the petition and, therefore, it must be held as non-compliance of section 82 of the Act. However much the argument may appear attractive, I am unable to accede to the said submission. As noticed by me earlier, Section 82 of the Act provides as to who are required to be arrayed as party respondents to the petition. The said Section does not prohibit joining of any person other than those referred to in that Section as respondents. Sub-section (1) of Section 86 of the act strongly relied upon by Sri Suman, no doubt, makes it obligatory on the High Court to dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117 of the Act. In my view, under Section 86 of the Act, a petition can be dismissed for non-compliance of the provisions of Section 82 of the Act only in cases where the persons referred to in Section 82, have not been arrayed as party respondents to the petition and not in other cases. As rightly pointed out by Sri Haranahalli, a distinction is required to be made while considering non-compliance of Section 82 of the Act, in cases where the persons referred to in Section 82 of the Act, have not been arrayed as party respondents; and in cases where some other persons have been made as party respondents in addition to the respondents who are required to be made as party respondents under Section 82 of the Act. In my considered view, in the case of the former i. e. , in cases where the persons who are referred to in Section 82 of the Act are not made party respondents, the petition is required to be dismissed in terms of the mandate of sub-section (1) of Section 86 of the Act; and in cases where certain persons are joined as party respondents in addition to the those who are referred to in Section 82 of the Act, it would not give any cause for the dismissal of the petition in terms of sub-section (1) of section 86 of the Act. In the former case, it is necessary to point out that the election petition cannot be proceeded with and the relief sought for by the petitioner therein cannot be granted for want of proper and necessary parties to the partition which Section 82 of the Act itself sets out. If certain persons, who are not required to be made as parties, are made as party respondents, it is not fatal to the petition even if such persons can be termed as unnecessary respondents. In such a situation, it is open to the parties to the proceedings to request the Court to delete such persons from the array of respondents; or even the Court itself, in exercise of its power, can strike out such persons. In the case of Jyoti Basu (supra) relied upon by Sri Haranahalli, the Hon'ble Supreme Court, while considering the question as to whether Mr. Jyoti Basu and few others against whom allegations corrupt practice were made, were required to be joined as party respondents when they were not the candidates to the election held, took the view that they cannot be joined as party respondents to the election petition; and in that view of the matter, while reversing the judgment of the High Court wherein the high Court had refused to strike out them as parties to the petition, ordered striking out of Sri Jyoti Basu and others from the array of parties in the election petition. If, as a matter of fact, the Court were to hold that joining of Sri Jyoti Basu and few others as party respondents to the petition, had resulted in non-compliance of Section 82 of the Act, there would have been an indication that the petition was required to be dismissed for non-compliance of Section 82 of the Act. ( 9 ) IT is necessary to point out that while the petitioner, who calls in question the election of the successful candidate, is required to strictly comply with the Election Law and non-compliance of the requirements of the provisions of Sections 81, 82 and 117 of the act would result in dismissal of the petition, the Court, while considering the question whether the requirement of Sections 81, 82 and 117 of the Act has been complied with or not, will have to place a fair and reasonable construction on the said provisions. Therefore, if Section 82 of the Act is examined in that background, in my view, the joining of respondents 9 and 10 by the petitioner cannot be held as non-compliance of the provisions of Section 82 of the Act as contended by the learned Counsel appearing for the first respondent. This Court, in the case of P. A. SREEDHARA shanai vs CHIEF ELECTORAL OFFICER, has taken the view that the Election Commission is a necessary party. It is useful to refer to paragraph-10 of the said judgment, which reads as hereunder:"10. No doubt, the Chief Electoral Officer and Secretary to government of Karnataka (DPAR) and the District Election Officer and also the Returning Officer are made parties to the Election petition. Though all these authorities discharge their duties and perform their functions under the provisions of the Act, nevertheless they work under the control and supervision of the election Commission of India. Therefore, in the light of the averments contained in paras 7 to 11 of the Election Petition, it would be just and appropriate to have the Election 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. . . . "in the said case, the Chief Electoral Officer and Secretary to government of Karnataka (DPAR) and the District Election Officer and also the Returning Officer were arrayed as parties to the Election petition. . . . "in the said case, the Chief Electoral Officer and Secretary to government of Karnataka (DPAR) and the District Election Officer and also the Returning Officer were arrayed as parties to the Election petition. If the contention of the learned Counsel for the first respondent is accepted as right, for the very reasons urged by the learned Counsel for the first respondent, the said Election Petition also should have been dismissed on the ground that the joining of the said persons as party respondents to the Election Petition has resulted in violation of the provisions of Section 82 of the Act. On the other hand, as noticed by me earlier, this Court, on an application filed for impleading, permitted the impleading of the Election commission. This Court, also, while permitting the impleading of the Election Commission, had taken into consideration that the averments made in the Election Petition related to some of the functions of the Election Commission of India; and therefore directed the impleading of the Election Commission. As noticed by me earlier, in this petition also, the petitioner has made serious grievance against respondents 9 and 10. Therefore, in the light of the decision of this court in the case of P. A. Shreedhar Shanai (supra) holding the field, if respondents 9 and 10 have been arrayed as party respondents, I am of the view that the petition cannot be dismissed on the ground that arraying the said respondents has resulted in violation of the provisions of Section 82 of the Act and as such, the petition is liable to be dismissed in view of Section 86 (1) of the Act. ( 10 ) NOW, let me consider the decisions strongly relied upon by the learned Counsel for the first respondent in support of his submissions. In my view, none of the decisions relied upon by the learned Counsel for the first respondent is of any assistance to him to support his submissions. (a) In the case of Mohan Raj (supra), the question which came up for consideration before the Hon'ble Supreme Court was with regard to the power of the Court to permit the parties to amend the election petition and also the power of the Court to strike out the parties. (a) In the case of Mohan Raj (supra), the question which came up for consideration before the Hon'ble Supreme Court was with regard to the power of the Court to permit the parties to amend the election petition and also the power of the Court to strike out the parties. In that context, no doubt, the Hon'ble Supreme Court observed that the provisions contained in Section 86 (1) of the Act is peremptory and admits of no exception; and the Court must enforce it strictly if there is a non-compliance with the requirements of Section 82 among others; and when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used by the Court. That is not the position in the present case. (b) Similar is the view expressed by the Hon'ble Supreme Court in the case of Udhav Singh (Supra ). In the said case, the question that had arisen for consideration was as to whether one Shiv Pratap singh who had filed his nomination and withdrew it later, against whom allegation of corrupt practice were made, was a necessary party to the Election Petition or not. It was held that Shiv Pratap singh was a necessary party having regard to the provisions contained in Section 82 (b) of the Act. It was also further held that in view of the provisions contained in Section 82 (b) of the Act, the election Petition was liable to be dismissed as it does not comply with the provisions of Section 82 of the Act. Therefore, Udhav Singh's case (supra) was a case in which a necessary party was not impleaded to the Election Petition. It was not a case where persons other than those referred to in Section 82 of the Act were arrayed as party respondents. This is clear from the observations made the hon'ble Supreme Court at paragraphs 19 and 20 of the judgment, which read as hereunder:"19. Behind this provision is a fundamental principle of natural justice viz. , that nobody should be condemned unheard. A charge of corrupt practice against a candidate, if established, entails serious penal consequences. It has the effect of debarring him from being a candidate at an election for a considerably along period. Behind this provision is a fundamental principle of natural justice viz. , that nobody should be condemned unheard. A charge of corrupt practice against a candidate, if established, entails serious penal consequences. It has the effect of debarring him from being a candidate at an election for a considerably along period. That is why Section 82 (b) in clear, peremptory terms, obligates an election-petitioner to join as respondent to his petition, a candidate against whom allegations of any corrupt practice are made in the petition. Disobedience of this mandate, inexorably attracts Section 86 which commands the High Court, in equallly imperative language, to - "dismiss an election petition which does not comply with the provisions of Section 82. " 20. The respondent cannot by consent, express or tact, waive these provisions or condone a non-compliance with the imperative of Section 82 (b ). Even in action, laches or delay on the party of the respondent in pointing out the lethal defect of non-joinder cannot relieve the Court of the statutory obligation cast on it by section 86. As soon as the non-compliance with Section 82 (b) comes or is brought to the notice of the Court, no matter in what manner and at what stage, during the pendency of the petition, it is bound to dismiss the petition in unstinted obedience to the command of Section 86. " (c) In the case of Subhan Khan (supra), no doubt, this Court has taken the view that the Returning Officer and the District Election officer are not proper parties. But, in the earlier decision in the case of P. A. Shreedhar Shanai's case (supra), this Court, as observed by me earlier, after considering the decision of the Supreme Court in the case of Jyoti Basu's Case (supra) and other decisions of the supreme Court, has taken the view that the Election Commission is a proper and necessary party in the light of the allegations made in the petition. Further, as observed by me earlier, even if respondents 9 and 10 are neither proper not necessary parties, it is not possible to take the view that the joining of respondents 9 and 10 to the petition has resulted in non-compliance of Section 82 of the Act. Further, as observed by me earlier, even if respondents 9 and 10 are neither proper not necessary parties, it is not possible to take the view that the joining of respondents 9 and 10 to the petition has resulted in non-compliance of Section 82 of the Act. ( 11 ) THEREFORE, in the light of the discussion made above, I do not find any merit in the application filed seeking dismissal of the election Petition. Accordingly, Interlocutory Application-I. A. II is hereby rejected. However, no order is made as to costs. --- *** --- .