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2002 DIGILAW 131 (KER)

Chintha Dharmarajan v. Mary Anto

2002-02-22

N.KRISHNAN NAIR

body2002
Judgment :- N. Krishnan Nair, J. Is an election petition filed under the Kerala Panchayat Raj Act liable to be dismissed on the ground that parties other than those who are necessary parties under Sec. 90 of the Act have been made parties to the election petition? That is the question involved in this revision. 2. Ms. Chintha Dharmarajan, the President of the Porathissery Panchayath challenges the maintainability of the election petition filed against her by Mrs. Mary Anto, the respondent herein before the Principal Munsiff, Irinjalakuda. Ms. Chintha Dharmarajan was elected to the Panchayath from Ward No. 1. The respondent filed O.P. No. 21/2000 before the court below praying that the election of Ms. Chintha Dharmarajan be declared void. The Returning Officer was also impleaded as one of the respondents in the election petition. According to the petitioner impleadment of the Returning Officer amounts to contravention of the provisions of Sec. 90 of the Act and therefore the election petition is not maintainable. The learned Munsiff by the impugned order rejected the preliminary objection. Hence this revision. 3. The learned counsel for the petitioner strongly contended that the order of the court below is clearly illegal and cannot be sustained in law. According to the learned counsel, the court below ought to have held that the election petition is not maintainable since it does not comply with the provisions of Sec. 90 of the Act. On the other hand the learned counsel for the respondent supported the order of the court below and urged that there is no ground for interference. 4. No doubt. Returning officer is neither a necessary nor a proper party to an election petition. Sec. 90 of the Act mentions the persons who are to be joined in an election petition as respondents. Sec. 90 of the Act reads as : "90. 4. No doubt. Returning officer is neither a necessary nor a proper party to an election petition. Sec. 90 of the Act mentions the persons who are to be joined in an election petition as respondents. Sec. 90 of the Act reads as : "90. Parties to the petition :- A petitioner shall join as respondents to his petition - (a) Where the petitioner, in addition to claiming a declaration that the election of the returned candidate 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, and where no such further declaration is claimed, the returned candidate; and (b) any other candidate against whom aligations of any corrupt practice are made in the petition." Thus as per Sec. 90 of the Act, Returning Officer is not a necessary party to an election filed under the Kerala Panchayat Raj Act. But the question is whether impleadment of the Returning Officer amounts to non-compliance with Sec. 90 of the Act. There can be no doubt that those who are required to be joined as necessary parties under Sec. 90 of the Act must be made parties to the election petition and if they are not joined, the petition must be dismissed . But merely because a person who is not a necessary party under Sec. 90 of the Act has also been impleaded it cannot be said that the petition is liable to be dismissed for non-compliance of Sec. 90 of the Act. In such a situation the court can strike out the party who is not necessary. An identical question under the Representation of the People Act came up for consideration before a Constitution Bench of the Supreme Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore (A.I.R. 1964 S.C. 1545). In that case all the parties required to be joined as necessary parties under Sec. 82 of the Representation of the People Act, 1951, were made parties to the election petition but parties other than those who were necessary were also impleaded. It was contended before the Supreme Court that sec. 82 of the Representation of the People Act could be read as if it lays down that only those mentioned in the section and no others should be joined as respondents. It was contended before the Supreme Court that sec. 82 of the Representation of the People Act could be read as if it lays down that only those mentioned in the section and no others should be joined as respondents. The Supreme court rejected the contention and held that if all the necessary parties had been joined to the petition merely because a person who was not a necessary party had also been impleaded did not amount to contravention of the provisions of Sec. 82 of the Representation of the People Act and no question of dismissing the election petition arose. Again the Supreme Court had to consider the question in B.S. Yadiyurappa v. Mahalingappa ({2002}) SCC 301). In that case the appellant filed an election petition praying that the election of respondent No. 1 be declared void and the appellant be declared duly elected. Two other contesting candidates and the Returning Officer and the District Election Commissioner were also impleaded as respondents 4 and 5. Respondent No. 1 moved an application praying that the election petition be dismissed because of impleadment of respondents 4 and 5. The Supreme Court held that even if in an election petition parties other than those who are necessary parties under sec. 82 of the Act have been impleaded it cannot be said that the election petition is one that does not comply with the provisions of Sec. 82. According to the Supreme Court, such a petition can be amended by striking out from the array of parties those additionally impleaded. Thus it is settled position that impleadment of an unnecessary party to an election petition would not result in dismissal of the election petition. In this case the petitioner has no case that those who are required to be joined as necessary parties under Sec. 90 of the Kerala Panchayat Raj Act have not been made parties to the election petition. The petitioner challenges the maintainability of the election petition because of the impleadment of the Returning Officer as one of the respondents. Therefore, it cannot be said that there is non-compliance with Sec. 90 of the Act. The court below was fully justified in dismissing the petition filed by the petitioner challenging the maintainability of the election petition. I see no infirmity in the order. This revision is groundless and is dismissed.