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2014 DIGILAW 75 (CHH)

HEMLAL JAISWAL v. CHAKRADHAR

2014-02-20

MANINDRA MOHAN SHRIVASTAVA

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ORAL ORDER 1. With the consent of learned counsel appearing for the parties, the matter is heard finally. 2. This petition under Article 227 of the Constitution of India is directed against the order dated 24.8.2013 passed by the Election Tribunal by which petitioner's prayer for framing additional issues has been rejected. 3. Respondent No.1 filed an election petition against the petitioner and other contesting candidates in the matter of election to the office of Sarpanch of Gram Panchayat-Khajri. Though Election Tribunal framed certain issues on 9.7.2013, the petitioner dis-satisfied, moved an application for framing additional issues as below: "(a) Whether election petitioner had moved an application for recounting and assurance was given by respondents No.6 & 7 before closing ballot box that vote would be recounted on 30.1.2010 at Sarangarh? (b) Whether application for recounting was moved by election petitioner before the appropriate authority? (c) Whether non-issuance of notice and not calling reply from arrayed Assistant Returning Officer would lead to dismissal of election petition? (d) Whether Assistant Officer of polling booth No.219, Presiding Officer and other employees counted the votes and its counters two times and found the counting correct?" Thus the petitioner prayed that the aforesaid issues are required to be decided because the specific objection with regard to maintainability of the election petition has been raised in the written statement on account of non-joinder of a particular Assistant Returning Officer. The Election Tribunal, however, rejected the application by impugned order, observing that these issues are implicitly involved in the issues which have already been framed. 4. Assailing the correctness and validity of the impugned order, learned counsel for the petitioner submits that the basis on which the Tribunal has 'rejected the application is, on the face of it, perverse. The three issues which have been framed earlier, by no stretch of imagination, can be said to include an issue with regard to maintainability of the election petition on account of non-joinder of a particular Assistant Returning Officer. He submits that as the particular Assistant Returning Officer was involved in the process of election, therefore, it was necessary party, particularly in view of specific allegation made in the election petition. 5. On the other hand, learned counsel for respondent No.1, relying upon the several authorities of the Supreme. Court, namely- Jyoti Basu Vs. Debi Ghosal, (1982) 1 SCC 691 , B. Sundara Rami Reddy Vs. 5. On the other hand, learned counsel for respondent No.1, relying upon the several authorities of the Supreme. Court, namely- Jyoti Basu Vs. Debi Ghosal, (1982) 1 SCC 691 , B. Sundara Rami Reddy Vs. Election Commission of India and Ors., 1991 Supp. (2) SCC 624 and Michael B. Fernandes Vs. C.K. Jaffer Sharief and Ors., (2002) 3 SCC 521 , submits that framing of an issue with regard to maintainability of the election petition on account of non-joinder of Assistant Returning Officer would be an exercise in futility, because it has been authoritatively held by the Supreme Court in the judgments as referred to above that the Assistant Returning Officers are neither necessary nor proper party under any circumstance and they need not be joined in an election petition as one of the parties. 6. The legality and validity of the election to the office of Sarpanch can be challenged only by way of filing of election petition under Section 122 of Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as "the Act of 1993"). The procedure governing the conduct of election petition is laid down in the rules known as Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as "the Rules of 1995"). The provision contained in Section 122 of the Act of 1993 read with the relevant Rules of 1995 constitutes in itself a complete code in 'so far as filing and disposal of the election petition is concerned. Rule 4 of the Rules of 1995 makes provision as to who may be impleaded as party, which is extracted as below. "4. Parties to the petition - Where the petitioner in addition to claming a 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 he shall join as respondents to his petition all the contesting candidates at the election." 7. The aforesaid rule un-mistakably shows as to who can be joined as party in election petition. In the matter of election petitions under the Representation of the People Act, 1951 (for Short "the Act of 1951") in the backdrop of similar provisions contained under Section 82 thereof, the Supreme Court has authoritatively pronounced that only those can be joined as party in the election petition as are mentioned in the provision. In the matter of election petitions under the Representation of the People Act, 1951 (for Short "the Act of 1951") in the backdrop of similar provisions contained under Section 82 thereof, the Supreme Court has authoritatively pronounced that only those can be joined as party in the election petition as are mentioned in the provision. 8. The Supreme Court in the case of Michael B.Fernandes (supra), after survey of its earlier decisions, reiterated the principles that the concept of "proper party" is and must remain alien to an election dispute and only those may be joined as respondents to an election petition who are mentioned under the provisions and no others. The Supreme Court further observed that however desirable and expedient it may appear to be, none else shall be joined as respondents. Even in a case where allegations of malafide are leveled, the Supreme Court held that none of those circumstances would justify impleadment of any party other than those enumerated in the provision to be made as respondents. It is apt to reproduce the observations made by the Supreme Court in the case of Michael B.Fernandes (supra) as under: "4....An argument had been advanced in that case that even if somebody may not be a necessary party under Section 82 of the Act, but yet he could be added as a proper party as provided in Order 1 Rule 10 of the Code of Civil Procedure. But the Court rejected that contention on a finding that the provisions of the Civil Procedure Code apply to election disputes only as far as may be and subject to the provisions of the Act and any rules made thereunder and the provisions of the Code cannot be invoked to permit that which is not permissible under the Act. It was in that context the Court further observed that the concept of "proper parties" is and remains alien to an election dispute under the Act. This decision was followed in B. Sundara Rami Reddy case referred to supra and it 'was reiterated that the concept of "proper party" is and must remain alien to an election dispute under the Act and only those may be joined as respondents to an election petition, who are mentioned in Sections 82 and 86(4) of the Act and no others. The Court in this case added that however desirable and expedient it may appear to be, none else shall be joined as the respondents. Mr. Venkataramani, the learned Senior Counsel appearing for the appellant, contended that the law enunciated in the two decisions and the observations made are too wide and while Section 82 casts an obligation on an election petitioner to join those mentioned in clauses (a) and (b) as party-respondent, it does not put an embargo for addition of any other person in an appropriate case, depending upon the nature of allegation made and consequently, the expression "any other" in the two decisions referred to above, must be held not to have been correctly used. Mr. Venkataramani relied upon the observations made by this Court in M.S. Gill case wherein the Court had observed that the Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances and submitted that the basis of electoral democracy being a free and fair election and fairness imports an obligation to see that no wrongdoer candidate benefits from his own wrong. In case where allegations are made against the Returning Officer or the Chief Electoral Officer with regard to the conduct of the election, there should be no bar to array them as parties and according to Mr. Venkataramani in Gill case the Chief Election Commissioner was a party and, therefore, this Court in Jyoti Basu as well as the subsequent case, having not noticed the aforesaid judgment of the larger Bench, the latter decision will be of no assistance. We are not in a position to accept the submission of Mr. Venkatammani inasmuch as in Gill case an order of the Election Commissioner was under challenge by filing a writ petition and it was not an election petition under the provisions of the Representation of the People Act. There is no dispute with the proposition that a free and fair electoral process is the foundation of our democracy, but the question for consideration is, whether by indicating in the Act as to who shall be arrayed as party, the court would be justified in allowing some others as parties to an election petition. There is no dispute with the proposition that a free and fair electoral process is the foundation of our democracy, but the question for consideration is, whether by indicating in the Act as to who shall be arrayed as party, the court would be justified in allowing some others as parties to an election petition. For the aforesaid proposition, Gill case is no authority" .......... 9. In view of the parity of the provisions under the Act of 1951 and the Rules of 1995 in the present case as noticed above, I have no hesitation to hold that even if issues, as prayed for by the petitioner, are framed, the result would be forgone. In other words, it would be a futile exercise. 10. In view of the above, the petition is liable to be dismissed and is accordingly dismissed. 11. Learned counsel for respondent No.1 submits that the trial of the election petition could not proceed because of the interim order passed by this Court, therefore, a direction may be issued to the Election Tribunal to expedite the trial. 12. It goes without saying that the election petition shall be decided by the Election Tribunal as early as possible. Petition Dismissed.