Show cause Notice No.553 of 1995,Election Petition No.14 of 1995

7th July, 1995

Petitioner Counsel: Mr. S. G. KUDLE with Mr. N. B. PATIL
Respondent Counsel: Mr. A. S. BOBDE, Mr. TEJPAL S. INGLE and Mr. M. L. PATIL

Cases Cited:
AIR 1954 Nag 26 [Para 3]
AIR 1969 S.C. 677 [Para 3]
AIR 1958 S.C. 698 [Para 6,7]
AIR 1958 S.C. 687 [Para 6]
AIR 1965 S.C. 1243 [Para 9]
AIR 1954 S.C. 210 [Para 9]
1994(2) S.C.C. 579 [Para 9]
1991(3) S.C.C. 375 [Para 9]

JUDGMENT

JUDGMENT : In this matter, earlier when it was taken up for admission, it was found that the Petitioner has joined, as party respondent to the Petition, only the returned candidate, whereas as a matter of fact at the election to the Maharashtra Legislative Assembly for Ichhalkaranji Constituency No.278 held in February 1995 which is the subject matter of this Petition, in all 7 persons contested. The Petitioner was one of them and the returned candidate was the other of them. The remaining five candidates have not been joined as parties to this Petition.

2. Prima facie, at the admission stage of the Petition, it appeared that by virtue of Section 86 of the Representation of Peoples Act, 1951 (for short "the Act"), the Court was obliged to dismiss the petition for section 82 of the Act required the petitioner to join to this Petition as parties, all contesting candidates other than the Petitioners, in view of the fact that the petitioner, in addition to claiming a declaration that the election of the returned candidates is void has also claimed a further declaration that he be declared as duly elected. That being the clear position the Petitioner through his learned counsel made a request that he be permitted to delete the prayer contained in paragraph 33(b) of the Petition by which the Peti¬tioner also prayed for a declaration that he is duly elected.

3. In support of this request, Mr. Kudle, the learned Counsel for the Petitioner relied upon a decision of a Division Bench of Nagpur High court in the case of Mahadeo Murlidhar Vs. Jwalapra¬sad Mishra & Ors. to support the argument that in an election petition, the election petitioner can withdraw a particular relief in order to get out of the rigours of the provisions of the election law. That view was expressed by Nagpur High Court, ofcourse, after hearing the other side. Therefore, it was thought fit to issue a notice to the respondent on the question whether the Petitioner should be permitted to withdraw the relief con¬tained in clause (b) of paragraph 33 of the Election Petition. In response to the notice, the Respondent has entered appearance. I have heard Mr.Bobde, the learned Counsel appearing for Mr. Ingle and Mr. Patil for the Respondent. Mr. Bobde drew my attention to certain Supreme Court judgments which clearly posit that the Election Tribunal, and for that matter, even the High Court hearing election petition would have no power to permit the withdrawal or abandonment of a relief, which, as it stands of the Petition, would entail the dismissal of the Petition. Mr. Bobde, firstly, relied upon a decision in the case of Mohan Raj V. Surendra Kumar Taparia and others, In that case, alongwith the other candidates at the election, one Mr. R.D.Periwal was also a person who had filed his nomination, ofcourse, later on, he had withdrawn his nomination. However, he acted as an Election Agent of the returned candidate. In the Election Petition that came to be filed, this R.D. Periwal had not been joined as party respond¬ent though ofcourse certain allegations of corrupt practices were made against Periwal to the effect that he, as the election agent of the returned candidate had indulged in certain corrupt prac¬tices. On behalf of the returned candidate, it was canvassed that the Petition was liable to be dismissed. At that stage, on behalf of the Petitioner, the allegations of corrupt practices levelled against Periwal as also the references to his name in the peti¬tion were sought to be withdrawn, and in that context, their Lordships of the Supreme Court considered the applicability of Order 6 Rule 17 and Order 1 Rule 10 of the Code of Civil Proce¬dure to the election Petition under the Act. On behalf of the Petitioner, it was submitted that by Order 6 Rule 17 and Order 1 Rule 10 of the Code of Civil Procedure, the High Court had power to permit an amendment and to strike out parties, and in that case, that power should have been exercised. Negativing that argument, the Supreme Court posited as follows :

"No doubt the power of amendment is preserved to the Court and 0.1 R. 10 enables the Court to strike out parties but the Court cannot use O.6 R.17 or O.1 R.10 to avoid the conse-quences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the Petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Proce¬dure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder. When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the Petition."

4. The aforesaid holding of the Supreme Court leaves no room for doubt that the provisions of the Code of Civil Procedure could not be resorted to in order to save a petition which other¬wise is liable to be dismissed for non-joinder of the parties, which section 82 of the Act says must be joined.

5. In the present case, as indicated hereinabove, besides the Petitioner and the Respondent there were 5 others in the fray. There were in all 7 contesting candidates. In view of the prayer in para 33(b) of the Petition, Section 82 of the Act mandates that, all of them should have been joined in the Petition, at the time when it was instituted, and by virtue of Section 86 of the Act, the Court has no option but to dismiss a petition which does not comply with the requirements of section 82 of the Act. If the provisions of Code of Civil Procedure, viz., Order 6 Rule 17 or even Order 23 Rule 1 are permitted to be resorted to with a view to save the petition from being dismissed which otherwise is liable to be dismissed that would be using the provisions of the Code of Civil Procedure solely with a view to defeating the provisions of the Act. In other words, such an exercise would be exercise in fraud on the provisions of the Act. I do not think detailed discussion is needed in the order to say that none of the provisions of the Code of Civil Procedure could be invoked with a view to defeating the provisions of the Act.

6. Mr. Bobde further buttressed his argument by relying upon a decision in the case of K.Kamaraja Nadar V. Kunju Thevar and others reported in AIR 1958 S.C. 687. In paragraphs 33 of that report, this is what their Lordships have observed :

"As regards the amendment of a Petition by deleting the averments and the prayer regarding the declaration that either the petitioner or any other candidate has been duly elected, so as to cure the defect of non-joinder of the necessary parties as respondents, we may only refer to our judgment about to be deliv¬ered in Mallappa Basappa V. Basavraj Ayyappa, Civil Appeal No.76 of 1958 : (AIR 1958 S.C. 698) where the question is discussed at considerable length. Suffice it to say here that the Election Tribunal has no power to grant such an amendment be it by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commission claiming such further declaration."

7. This decision makes it clear that the Court has to examine the question of applicability of Section 86 of the Act at the time Election Petition presented to the Court, is liable to be dismissed on account of non-compliance of section 82 of the Act, no amount of subsequent exercise either by resorting to provi¬sions of the Code of Civil Procedure or otherwise can save the Petition from being dismissed. This case of K. Kamaraja Nadar V. Kunju Thevar (Supra) puts beyond the pale of doubt the position that the Petitioner cannot be allowed to delete any prayer in the Petition with a view to avoid the consequences following from section 86 of the Act. In that case, their Lordships have made a reference to the decision in the case of Mallappa Basappa V. Basavraj Ayyappa, Civil Appeal No.76 of 1958 : (AIR 1958 S.C. 698). That judgment also holds that there is no power in the Election Commission to allow a petitioner to withdraw or abandon a part of his claim either by having resort to the provisions of Order 23 Rule 1 of the Code of Civil Procedure or otherwise.

8. The aforesaid three judgments relied upon by Mr. Bobde clearly posit that the petitioner cannot be permitted to save his petition by withdrawing or abandoning the relief about declara¬tion that he is duly elected.

9. Mr. Kudle, the learned Counsel for the Petitioner, in his turn, relied upon the following judgments;

(i) Jagan Nath V. Jaswant Singh & Ors. reported in AIR 1954 S.C. 210;

(ii) Amin Lal V. Hunna Mal, reported in AIR 1965 S.C. 1243;

(iii) Sethi Roop Lal V. Malti Thaper (Mrs.) and others, reported in (1994) 2 Supreme Court Cases 579; and

(iv) F.A. Sapa and others V. Singora and others, re¬ported in (1991) 3 Supreme Court Cases 375.

After having gone through those judgments, I do not think any of them lay down a proposition of law, even remotely contrary to what emerges from three judgments relied upon by Mr. Bobde to which I have made a reference hereinabove.

10. Having heard the Counsel on both sides at some length, I think the request made on behalf of the Petitioner that he be permitted to withdraw or abandon the relief contained in para¬graph 33(b) of the Election Petition cannot be granted for the court has no power to grant such a request in view of the facts of the case and the law applicable. That request for deletion of the prayer contained in paragraph 33(b) of the Petition is re¬jected.

11. I have just now rejected the request of the Petitioner to permit him to withdraw or abandon the prayer contained in para¬graph 33(b) of the Petition, viz. that it be declared that he is duly elected as a member of the legislative assembly from Ichhal¬karanji Constituency No. 278, District Kolhapur. That prayer, therefore, stands as it is. As the Petitioner has not joined the remaining five contesting candidates, there is non-compliance of the provisions of Section 82 of the Act. Section 86 of the Act, therefore, requires this Court to dismiss this petition. The Election Petition is, therefore, dismissed, with no order as to costs.

12. The Election Commission and the Speaker of the State Legis¬lature may be informed and copy of the order be sent in terms of Section 103 of the Act read with Rule 19 of the High Court Origi¬nal Side Rules 1980.

13. Issuance of certified copy be expedited.

Petition dismissed.