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2021 DIGILAW 2091 (RAJ)

Karan Sharma v. Raghunath Agarwal

2021-11-10

SANJEEV PRAKASH SHARMA

body2021
JUDGMENT 1. This civil misc. appeal filed under Section 32 of the Rajasthan Municipalities Act, 2009 (hereinafter referred to as 'the Act of 2009') against the order dated 12.07.2021 whereby the application of the respondent moved under Order 1 Rule 10 (2) CPC was allowed and the names of defendant Nos.1 & 2 were deleted from the array of defendants. 2. Brief facts of the case are that the plaintiff-respondent filed an election petition before the Election Tribunal against the election of the petitioner as Member Ward No.134. An election petition was filed under Section 31 of the Act of 2009 and in accordance with Rajasthan Municipalities Election Petition Rules, 2009 (hereinafter referred to as 'the Rules of 2009'). At the time of filing of the election petition, he impleaded the Returning Officer and District Election Officer as the defendant nos.1 & 2 apart from the other defendant as well as the petitioner who participated in the election. 3. The petitioner submitted his written statement but did not object to the impleadment of the defendant nos.1 & 2 to the election petition, however, an application was moved by the Public Prosecutor before the Election Tribunal under Order 1 Rule 10 (2) read with Section 151 CPC for deleting the defendant nos.1 & 2 from the array of defendants. Consequent thereto, after hearing the parties, the application was allowed on 12.07.2021 and the name of defendant nos.1 & 2 was struck off from the array of defendants. Learned counsel for the petitioner submits that while deleting the defendant Nos.1 & 2, learned Tribunal has fallen in error in relying on judgment which were in relation to the Representation of People Act, 1951 (hereinafter referred to as 'the Act of 1951') and the provisions contained under the Act of 1951 are different from the Rajasthan Municipalities (Election) Rules, 1994 (hereinafter referred to as 'the Rules of 1994') and therefore there was no requirement to delete the said two defendant Nos.1 and 2. 4. Learned counsel has taken this Court to the provisions of the Act of 1951 and specially to Section 82 and other provisions of Chapter-II of Part VI of the Act of 1951 which lays down the presentation of election petition. 5. 4. Learned counsel has taken this Court to the provisions of the Act of 1951 and specially to Section 82 and other provisions of Chapter-II of Part VI of the Act of 1951 which lays down the presentation of election petition. 5. Learned counsel for the petitioner submits that so far as the provisions contained under Chapter-II of Part VI of the Act of 1951 is concerned, it specifically provides that in election petition the petitioner shall join as respondent to his petition all the contesting candidates where he is seeking declaration that he himself be treated to be duly elected or in cases where he is seeking any declaration to set aside the election of the Returned Candidate, he may also implead a candidate against whom allegations of corrupt practices are made. 6. However, he submits that if the election petition is filed under the Act of 1951 and if it does not comply with the provisions of Section 81 and 82 or Section 117, the High Court has to mandatorily dismiss the election petition but so far as the Rules of 2009 are concerned, he submits that as per Rule 3(4) while a similar provision as Section 82 has been incorporated but there is no such similar provision as provided under Section 86 and therefore he submits that it is not mandatory that only those candidates as mentioned in Rule 3(4)(a) and (b) should be the only defendants and other defendants can also be party in a municipal election petition. On account of their being parties, the election petition would not be liable to be dismissed and would not be termed as defective. Therefore, the learned Tribunal was not required to delete the Election Officer and Returning Officer from the array of defendants. It has thus committed an error, moreso as the issue involved in the election petition was of wrongfully rejecting the nominations of the election petitioner namely plaintiff-respondent. 7. Learned counsel for the petitioner submits that the persons who could have best answered to the issue raised in the election petition, could only be the concerned Returning Officer and he thus submits that the Tribunal has erred in passing the impugned order dated 12.07.2021. 8. 7. Learned counsel for the petitioner submits that the persons who could have best answered to the issue raised in the election petition, could only be the concerned Returning Officer and he thus submits that the Tribunal has erred in passing the impugned order dated 12.07.2021. 8. Per contra, learned counsel appearing for the plaintiff- respondent submits that impleadment for a suit is in exclusive right of the plaintiff who is the dominus litis of the case and initially both the defendant Nos.1 & 2 had been impleaded as parties to the petition by way of abundant caution. However, so far as the plaintiff respondent is concerned he has not raised any objection to the application moved by the Public Prosecutor for deleting the concerned defendants No.1 & 2. Further, he submits that so far as provisions of Rule 3 (4) of the Section of 2009 are concerned, they are same in letter and spirit to Section 82 of the Act of 1951 and therefore, the principle laid down by the Apex Court in relation to an election petition filed under the Representation of the People Act, 1951 would have to be looked into and followed for the purpose of an election petition filed under Rules of 2009. 9. Learned counsel has also relied on Rule 2(l) the Rajasthan Municipalities (Election) Rules, 1994 to submit that the returning officer carries out the functions of the Presiding Officer and therefore the Presiding Officer need not be impleaded in any petition which is filed for setting aside election or for claiming of being elected. The only persons who are required to be impleaded are those who fall within the category of Rule 3(4) of the Rules of 2009. It is his further submission that the record relating to the election is already before the concerned Tribunal which can adjudicate on the basis of the record and take a decision at its own level whether the decision of the Returning Officer/ Presiding Officer is correct or not. For the said purpose, no hearing or evidence is required to be recorded of the Returning Officer and therefore, he was rightly deleted from the array of the defendants. 10. I have considered the submissions. 11. For the said purpose, no hearing or evidence is required to be recorded of the Returning Officer and therefore, he was rightly deleted from the array of the defendants. 10. I have considered the submissions. 11. Rule 3(4) of the Rajasthan Municipalities Election Petition Rules, 2009 reads as under:- '(4) 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 candidates is void, claims further that he himself or any other candidate be declared 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 allegations of any corrupt practice are made in the petition.' 12. Sections 82 & 86 of the Representation of People Act, 1951 read as under:- '82. 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 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. 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.' 13. Rule 2(l) of the Rajasthan Municipalities (Election) Rules, 1994 lays down the definition of the Presiding Officer as under :- '2(l) 'Presiding Officer' means a person appointed by the Returning Officer under these rules and includes any Polling Officer performing any of the functions of the Presiding Officer under these rules.' 14. A close notice to the aforesaid Rules shows that so far as the requirement of joining as respondent in the election petition are concerned both the Representation of the People Act, 1951 as well as Rajasthan Election Petition Rules, 2009 are same, there is no iota of difference between the language used in the two Rules. 15. The Supreme Court in the case of Jyoti Basu and Ors. Versus Debi Ghosal and Ors. 15. The Supreme Court in the case of Jyoti Basu and Ors. Versus Debi Ghosal and Ors. reported in AIR 1982 SC 983 , after considering Section 82 of the Representation of Peoples Act, 1951 held that a candidate may not be joined as a respondent to the election petition merely because provision of Section 86 are not incorporated in the Rules of 2009, it could not mean that a person who files election petition under the Rules of 2009 can implead any other person other than those mentioned under Rule 3(4) of the Rules of 2009. If such persons are impleaded they can always move appropriate application under Order 1 Rule 10(2) CPC seeking their deletion from the array of defendants. 16. Section 82, which has been examined at length in the aforesaid judgment by the Supreme Court, is pari materia to Rule 3(4) of the Rules of 2009. The absence of a similar provision as Section 86 of the Act of 1951, in the Rules of 2009 would only mean that an election petition may not be dismissed merely because some other persons have been impleaded as a party however, those persons can always move an application and get themselves deleted. The argument of learned counsel for the petitioner therefore, is liable to be rejected and is accordingly rejected. 17. The submission of learned counsel for the petitioner about the learned Tribunal relying upon the judgments of Supreme Court which were passed in relation to the election conducted under the Act of 1951 as erroneous is also found to be without basis. The judgments that have relevance to the similar provisions and who have examined the same language of the provision contained may be in another Rule or Act, can be always looked into and considered for the purpose of adjudication. The very basis of judgment writing involves interpretation of judgments. It is an inherent aspect of such a procedure. 18. In view thereof, the order passed by the learned District Judge-cum-Election Tribunal, Jaipur Metro-I does not warrant any interference and therefore, the appeal is accordingly dismissed. 19. All pending applications, if any, stand disposed of.