Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 135 (GAU)

Dasanglu Pul v. Er. Lupalum Kri

2021-02-16

NANI TAGIA

body2021
ORDER : Nani Tagia, J. 1. Heard Mr. P.K. Tiwari, learned Sr. counsel assisted by Mr. K. Saxena, learned counsel for the applicant and Mr. H. Lampu, learned counsel for respondent No. 1 as well as Mr. A. Apang, learned Sr. counsel for the respondent No. 2. 2. This is an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 read with Section 86 (1) of the Representation of the People Act, 1951 (for short, 'Act of 1951') seeking dismissal of the Election petition for non-compliance of the provisions of Sections 81 & 82 of the Act of 1951. 3. At the outset, it is submitted by the learned Senior counsel Mr. P.K. Tiwari that though this application under Section 86 (1) of the Act of 1951 has been filed seeking dismissal of the election petition for non compliance of provisions of Section 81 & 82 of the Act of 1951, the applicant would not press this application for dismissal for non compliance of Section 81; rather the applicant would seek dismissal of the election petition under Section 86 (1) for non compliance of Section 82 of the Act of 1951 only. 4. The applicant is a returned candidate as Member of Legislative Assembly (for short, 'MLA') from 45th Hayuliang (ST) Assembly Constituency in the election held in the year, 2019 in the State of Arunachal Pradesh. The respondent No. 1 has filed a Election Petition being Election Petition No. 03 (AP) 2019 calling in question the election of the applicant as an MLA of 45th Hayuliang (ST) Assembly Constituency and seeks declaration that the election of the applicant as an MLA, 45th Hayuliang (ST) Assembly Constituency be declared as void on the ground of improper acceptance of her nomination as provided under Section 100(1)(d)(i) of the Act of 1951. In the Election petition filed, apart from the applicant who is the returned candidate, the Returning Officer of 45th Hayuliang (ST) Assembly Constituency have also been arrayed as respondent No. 2. In the Election petition filed, apart from the applicant who is the returned candidate, the Returning Officer of 45th Hayuliang (ST) Assembly Constituency have also been arrayed as respondent No. 2. The applicant, therefore, has filed this instant application for dismissal of the Election Petition under Section 86 (1) of the Act of 1951 for non-compliance of Section 82 which provides that the petitioner shall join as respondent to his petition 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. 5. In the light of the above, the applicant contends that since the respondent No. 1/Election Petitioner, apart from seeking a declaration that the election of the applicant as an MLA from 45th Hayuliang (ST) Assembly Constituency is void has further sought for a declaration that the respondent No. 1/Election petitioner be declared duly elected from the said Assembly Constituency, the Election petitioner in his Election petition ought to have made only the contesting candidates of 45th Hayuliang (ST) Assembly Constituency as respondent(s). By making the Returning Officer of 45th Hayuliang (ST) Assembly Constituency as respondent No. 2 in the Election Petition, the Election Petition filed by respondent No. 1 does not comply with the provisions of Section 82 of the Act of 1951 and the same is liable to be dismissed under Section 86(1) of the Act of 1951. In support of his contention, the learned Sr. counsel for the applicant has relied on a decision rendered by Hon'ble Supreme Court in the case of B. Sundara Rami Reddy Vs. Election Commission of India & Ors., reported in 1991 Supp (2) SCC 624. In Paragraph-3 & 4 thereof, it has been held as follows:- "3. ....Section 82 of the Representation of the People Act, 1951 specifies the persons who are required to be joined as respondents to any election petition. Under this provision the returned candidate is a necessary party as a respondent and where relief for a declaration is claimed that the election petitioner, or any other candidate be duly elected, all the contesting candidates are necessary to be impleaded as respondents to the petition. Under this provision the returned candidate is a necessary party as a respondent and where relief for a declaration is claimed that the election petitioner, or any other candidate be duly elected, all the contesting candidates are necessary to be impleaded as respondents to the petition. No other person or authority except as aforesaid is required to be impleaded as a respondent to an election petition under the Act. The Election Commission of India is therefore not a necessary party to an election petition". "4. ....Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents". 6. The respondent No. 1/Election petitioner has filed an affidavit stating that as the nomination paper of the applicant/returned candidate was improperly received/accepted by the Returning Officer, the Returning Officer has been made as respondent No. 2 in the Election petition for effective adjudication of the Election petition. 7. The learned counsel for respondent No. 1/the Election petitioner, however, contends that even if the Returning Officer is found to be not a necessary party as per Section 82 of the Act of 1951, the same would not entail dismissal of the Election Petition itself as sought for by the applicant but such a petition can be amended by striking out the Returning Officer from the array of respondents. In support of his contention, the learned counsel has relied on a decision rendered by the Hon'ble Supreme Court in the case of B.S. Yadiyurappa Vs. Mahalingappa & Ors., reported in (2002) 1 SCC 301 and attention of this Court have been drawn to Parapgraphs 7 & 8 thereof, which have been reproduced hereinbelow:- "7 In Jyoti Basu v. Debi Ghosal, this Court dealt with Section 82 of the said Act, and it is this judgment which the High Court principally relied upon. The ratio of this judgment, is that a person who is not a candidate cannot be joined as a respondent to an election petition. The High Court, however, failed to notice that, having so held, this Court ordered the deletion of the superfluous party from the array of parties". The ratio of this judgment, is that a person who is not a candidate cannot be joined as a respondent to an election petition. The High Court, however, failed to notice that, having so held, this Court ordered the deletion of the superfluous party from the array of parties". "8 It is, therefore, clear, on the authorities of this Court, that those who are mentioned in Section 82 of the said Act must be made parties to an election petition and, if they are not, the election petition is one which does not comply with the provisions of Section 82 and must, therefore, be dismissed by reason of the terms of Section 86(1). It does not, however, follow that if to an election petition parties other than those who are necessary parties under Section 82 have been impleaded, the election petition is one that does not comply with the provisions of Section 82 and must be dismissed. Such a petition can be amended by striking out from the array of parties those additionally impleaded". 8. Rival submission advanced at the Bar have received due consideration of this Court. 9. Section 82 and 86 of the Act of 1951 insofar it is relevant for the purpose of adjudication of this case is reproduced hereinbelow:- "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, any 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 Trial of Election petitions-(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117"...... 10. Section 86 of the Act of 1951 provides that the High Court shall dismiss an Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. 10. Section 86 of the Act of 1951 provides that the High Court shall dismiss an Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. As the dismissal of Election Petition is sought for under Section 86 by the applicant for non-compliance of Section 82 of the Act of 1951, what has been prescribed under Section 82 of the Act of 1951 may be noticed herein. Section 82 of the Act of 1951 deals with the parties to the petition and provides that where the Election 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 (as in the instant case) or any other candidate has been duly elected, all the contesting candidates other than the petitioner is required to be joined as respondents in the Election Petition. 11. In the instant case, the respondent No. 1/Election petitioner, apart from seeking a declaration that the election of the applicant/returned candidate be declared as void has also sought for a declaration that he himself be declared as duly elected as an MLA from 45th Hayuliang (ST) Assembly Constituency. The respondent No. 1/the election petitioner in his election petition has arrayed the Returning Officer of the 45th Hayuliang (ST) Assembly Constituency as respondent No. 2 which apparently appears to be not in compliance of Section 82 of the Act of 1951. 12. In that view of the matter, what requires to be determined by this Court is whether the election petition filed by the respondent No. 1/election petitioner ought to be dismissed by this Court as mandated under Section 86 (1) of the Act of 1951 for not having complied with Section 82 of the Act of 1951. 13. In the decision rendered by the Hon'ble Supreme Court in the case of B. Sundara Rami Reddy (Supra), relied on by the applicant, it has been held by the Hon'ble Supreme Court that under Section 82 of the Act of 1951 where apart from seeking a declaration of the returned candidate as void, relief for declaration is claimed that the election petitioner or any other candidate be declared duly elected, all the contesting candidates are necessary to be impleaded as respondents in the petition. No other person or authority except as aforesaid is required to be impleaded as respondent(s) to an election petition under the Act of 1951. Neither the Returning Officer nor the election commission or any other authority other than the person indicated above is a necessary party to an election petition. 14. While there is no dispute to the proposition of law laid down by the Hon'ble Supreme Court in the case of B. Sundara Rami Reddy (Supra) in respect of necessary party in the election petition in the context of section 82 of the Act of 1951 what remains to be further examined is whether for making of Returning Officer as a respondent in the election petition, as in the instant case, which apparently is not in compliance of Section 82 of the Act of 1951, should the election petition be dismissed for non compliance of Section 82 as mandated under Section 86 (1) of the Act of 1951. 15. In the case of B.S. Yadiyurappa-vs-Mahalingappa and Others (Supra) referred to and relied on by the learned counsel for the respondent No. 1/election petitioner, it is noticed that the Hon'ble Supreme Court while in agreement with the law laid down in the case of B. Sundara Rami Reddy (Supra), insofar as parties to be made in the election petition under Section 82 of the Act of 1951, it has been laid down that those who are mentioned in Section 82 of the Act of 1951 must be made parties to an election petition and, if they are not, the election petition is one which does not comply with the provisions of Section 82 and must therefore, be dismissed in terms of Section 86(1) of the Act of 1951. But if the election petition is one where parties other than those who are necessary parties under Section 82 have been impleaded, it does not necessarily follow that the election petition be dismissed for not complying with the provisions of Section 82 of the Act of 1951. Such a petition, held the Hon'ble Supreme Court, can be amended by striking out the respondent from the array of parties those who have been additionally impleaded. 16. Such a petition, held the Hon'ble Supreme Court, can be amended by striking out the respondent from the array of parties those who have been additionally impleaded. 16. Thus, it has been laid down by the Hon'ble Supreme Court in the case of B.S. Yadiyurappa (Supra) that though Section 86 (1) provides for dismissal of the election petition for non compliance of Section 82 of the Act of 1951, for not joining as respondents that have been named in Section 82, yet, if in an election petition, more person(s) are joined as respondent(s), in addition to the person(s) named in Section 82 of the Act of 1951, such a petition filed by not complying with Section 82 can still be amended by striking out from the array of parties, those additionally impleaded. 17. In view of the law laid down by the Hon'ble Supreme Court in the case of B.S. Yadiyurappa (Supra) as above, I am of the considered view that election petition filed by respondent No. 1/election petitioner may not be dismissed, at this stage of the proceeding. Considering the matter in its entirety, this application for dismissal of the election petition under Section 86 (1) of the Act of 1951 for non compliance of Section 82 stands dismissed. 18. At this stage, Mr. Apang, learned Sr. counsel appearing for respondent No. 2/re-turning officer prays for striking out the name of the Returning Officer of 45th Hayuliang (ST) Assembly Constituency from the array of respondents. As prayed for by learned Senior counsel Mr. Apang, the name of respondent No. 2/the Returning Officer of 45th Hayuliang (ST) Assembly Constituency shall stand deleted from the array of the respondents. Affidavits filed by the respondent No. 2/Returning Officer, if any, shall also be taken back. Registry shall do the necessary corrections in the cause title of the election petition in terms of the order passed hereinabove. I.A. stands disposed of in terms of the directions contained as above.