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2004 DIGILAW 806 (MP)

Narendra Birthre v. Hariballabh Shukla

2004-09-30

SUBHASH SAMVATSAR

body2004
Judgment ( 1. ) THIS petition is filed by the petitioner who was an official candidate of the Bhartiya Janata Party in the Assembly Election held in December, 2003 for constituency No. 23, Pohri, District Shivpuri, challenging the election of the respondent, who was official candidate of Rashtriya Samanata Dal, on the ground that the nomination of Hariballabh s/o Ramhit and Shambhu Dayal s/o Vishnu Prasad are wrongly rejected. ( 2. ) AFTER issuing notice of this petition the respondent filed his written statement wherein some preliminary objections were raised about the maintainability of the election petition. On the basis of preliminary objection this Court has framed following issues and these issues were heard as preliminary issues which are as follows:- (1) Whether the Returning Officer, Hariballabh s/o Ramhit and Sambhudayal are necessary and proper parties to the petition ? (2) Whether the election petition suffers from defect of nonjoinder of necessary parties ? (3) Whether the petitioner has no right to challenge the election of respondent on the ground of rejection of nomination papers of Shri Hariballabh s/o Ramhit and Sambhudayal s/o Vishnu Prasad ? If so, its effect ? (4) Whether, nomination papers of Sarva Shri Hariballabh s/o Ramhit and Shambhudayal s/o Shri Vishnu Prasad were improperly and wrongfully rejected by the Returning Officer ? If so, its effect ? (5) Costs and relief. ( 3. ) THE gist of these issues is whether the persons whose nomination papers are alleged to be wrongly rejected are necessary parties and whether this petition can continue without joining the Returning Officer, Hariballabh and Shambudayal as a parties to the petition. ( 4. ) THE main contention raised by the Counsel for the respondent is that in absence of joining the persons whose nomination papers were wrongly rejected this petition is not maintainable. ( 5. ) TO decide this question it is necessary to refer some of the provisions of the Representation of the People Act, 1951 (for short, the Act ). Section 81 of the Act provides for presentation of petitions, which reads as under:- "81. ( 5. ) TO decide this question it is necessary to refer some of the provisions of the Representation of the People Act, 1951 (for short, the Act ). Section 81 of the Act provides for presentation of petitions, which reads as under:- "81. Presentation of petitions.-- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation :-- In this Sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. As per the said section the election petition can be filed on any of the grounds specified in Sub-section (1) of Section 100 and under Section 101 by any candidate at such election or any elector. 3. Section 82 of the Act deals with the parties to the petition, which reads as under :-82. Parties to 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. As per this section the loosing candidate can file an election petition declaring the election of returning candidate as void and further claim that he may be declared elected. In case he claims for declaration that he be declared elected then it is necessary to join all the candidates of the election as parties. As per this section the loosing candidate can file an election petition declaring the election of returning candidate as void and further claim that he may be declared elected. In case he claims for declaration that he be declared elected then it is necessary to join all the candidates of the election as parties. But, when he files a petition merely for declaration that election of a winning candidate as void then it is not necessary to join all the candidates as parties. Clause (b) of Section 82 of the Act provides that where allegations are made against any other candidate about corrupt practice then he should also be joined as a party. 4. As regards the Returning Officer is concern in view of Section 82 of the Act he is not a necessary party particularly when there are no allegations against him for corrupt practices. 5. In the present case the petitioner has not claimed for a relief for declaration that he may be declared as elected but has merely prayed for declaration of result of the winning candidate, i. e. , respondent as void. In such circumstances it is not necessary for the present petitioner to join all candidates to the election petition as parties. The sole basis of the petition in the present case is that the nomination papers of Hariballabh s/o Ramhet and Shambhu Dayal s/o Vishnu Prasad are wrongly rejected. In such circumstances, the only question before this Court is whether it is necessary to join them as parties or not?" ( 6. ) THE Apex Court in the case of B, Sundara Rami Reddy V. Election Commissioner of India, 1991 SCC (Supp) (2) 624, has held that in view of the special provisions of the Act the provisions of Order 1 Rule 9 or Order 1 Rule 10, CPC are not applicable to the election petition. ( 7. ) AN election petition can be filed under Section 100 (1) (c) of the Act on the ground that the nomination of a candidate has been improperly rejected. The Counsel for the petitioner submitted that it is not necessary to join the persons whose nomination papers are rejected as parties to the petition. For this purpose he has relied upon the decision of the Apex Court in the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. The Counsel for the petitioner submitted that it is not necessary to join the persons whose nomination papers are rejected as parties to the petition. For this purpose he has relied upon the decision of the Apex Court in the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. ( AIR 1964 SC 1545 ). In this case the Apex Court has held that it is not necessary to join the candidates whose nomination papers are rejected as a party to the election petition. ( 8. ) FROM the perusal of the aforesaid decision it appears that the facts of that case were entirely different. In that case two election petitions were filed. One of these was filed by Ridmal Singh, who was an elector of the constituency. The second petition was filed by one Balji who was an elector and whose nomination paper was rejected by the Returning Officer. In the petition filed by Ridmal Singh preliminary objection was raised that Balji whose nomination paper is rejected is not a necessary party to the petition. Under Section 82 only the contesting parties to the petition are necessary parties. Hence, Balji whose nomination paper is rejected is not a necessary party in view of Section 82 of the Act. In that case the Apex Court has held that Balji was not a necessary party. In Para 7 of the judgment the Apex Court has held that in the circumstances of the case a person who is a necessary party has been implcaded does not amount to a breach of the provisions of Section 82 and the petition can not be dismissed under Sub-section (3) of Section 90. It is open to the Election Tribunal to strike out the name of the party which is not a necessary party within the meaning of Section 82 of the Act. The position will be different if a person who is required to be joined as a necessary party under Section 82 is not impleaded as a party to the petition. Thus, the Apex Court has held that if the necessary party is not joined in an election petition then the petition will have to be dismissed for non-joinder of party under Section 82 of the Act. ( 9. Thus, the Apex Court has held that if the necessary party is not joined in an election petition then the petition will have to be dismissed for non-joinder of party under Section 82 of the Act. ( 9. ) A similar situation arose in case of Saligram Shrivastava V. Naresh Singh Patel, (2003) 2 SCC 176 , in which a question was raised as to whether the election petition could be entertained in view of the fact that Bhagwansingh, whose nomination paper was rejected neither approached the Court nor he had raised any objection to the rejection of his nomination paper. But, as this point was not raised before the High Court the Apex Court did not decide the same. ( 10. ) THE Apex Court in the case of Gadnis Bhawani Shankar V. Faleiro Eduardo Martinho ( AIR 2000 SC 2502 ) has held that a candidate indulged in corrupt practice shall be made a party under Section 82 (b) of the Act even if he had withdrawn his candidature on a date prior to holding election. The Apex Court in case of Patangrao Kadam V. Prithviraj Sayajirao Yadav Deshmukh and Ors. ( AIR 2001 SC 1121 ) has held that a person even after withdrawal of his nomination paper is still a candidate and ought to have impleaded as a party to the election petition. In that case the candidate after withdrawal of his nomination after acceptance of the same has acted as an election agent of the returning candidate and dismissed the petition for failure to join the withdrawing candidates as a necessary party to the petition and dismissed the election petition by holding it to be non-maintainable. ( 11. ) THUS the question whether a particular person is a necessary party or not depends upon the facts and circumstances of each case. In the present case the very basis of filing the election petition is that nomination papers of two persons who are not parties before this Court, were rejected by the Returning Officer. The Returning Officer is not a party before this Court. Considering the peculiar situation in the present case that the sole basis of filing the election petition is that the nomination papers of two persons are wrongly rejected. These two persons have not approached the court or have raised any objection about rejection of their nomination papers. The Returning Officer is not a party before this Court. Considering the peculiar situation in the present case that the sole basis of filing the election petition is that the nomination papers of two persons are wrongly rejected. These two persons have not approached the court or have raised any objection about rejection of their nomination papers. The present petitioner who is a defeated candidate can not and is not permitted to raise the grievance of those persons whose nomination papers are said to be wrongly rejected. It is for them to challenge the election on the ground of their wrongful rejection of nomination papers but, when they have not raised any objection the present petitioner has no locus standi to file the petition. The two candidates whose nomination papers are rejected are in any event necessary parties to the petition and the petition filed without joining them as a party contrary to the mandatory requirement of Section 82 and Section 86 (1) of the Act does not leave any option to this Court except to dismiss the petition for non-compliance of Sections 81 and 82 of the Act. ( 12. ) IN the result, this petition is not maintainable and is dismissed.