Chamber Summons No. 165 of 2000,Election Petition No.4 of 1999

15th March, 2000

Petitioner Counsel: Mr. A. S. OAK i/by PURANIK & CO.
Respondent Counsel: Dr. D. Y. CHANDRACHUD with Mr. J.F. POCHKHANWALA & Mr. G. S. KULKARNI i/by Mrs. M. G. KULKARNI, Mr. D. K. AILAWADI

Cases Cited:
Jyoti Basu and others V. Debi Ghosal, AIR 1982 SC 983 [Para 2]
B. Sundara Rami Reddy vs. Election Commission of India, 1991 Supp (2) SCC 624 [Para 2]
Murarka Radhey Shyam Ram Kumar, AIR 1964 SC 1545 [Para 3]
S.B. Adityan v. S. Kandaswami, AIR 1958 Mad 171 [Para 7]
Dwiendra Lal Sen Gupta v. Harekrishna Konar, AIR 1963 Cal 218 [Para 7]
H. R. Gokhale V. Bharucha Noshir C, AIR 1969 Bom 177 [Para 7]
S.Iqbal Singh V. S. Gurudas Singh Badal, AIR 1973 Punj & Har 163 (FB) [Para 7]

JUDGMENT

JUDGMENT :- This order shall dispose of the chamber summons taken out by respondent nos. 10, 11 and 12 in the election petition for deletion of their names from the election petition.

2. Dr. Chandrachud, the learned Additional Solicitor General appearing for the said respondent nos. 10, 11 and 12 submits that the said respondents are not necessary parties in the election petition. According to the learned Additional Solicitor General, section 82 of Representation of Peoples Act makes the provision about the parties to the election petition and he submits that the respondent nos. 10, 11 and 12 do not fall in that category. In support of his submission, he relied upon the judgment of the Apex Court in Jyoti Basu and others V. Debi Ghosal and others, AIR 1982 SC 983 and B. Sundara Rami Reddy vs. Election Commission of India and others, 1991 Supp (2) SCC page 624.

3. The chamber summons is opposed by the learned counsel for the election petitioner and he submits that in view of the averments made in paragraphs 5, 6, 7, 8 and 10 of the election petition, the respondent nos. 10, 11 and 12 have rightly been impleaded as parties in the election petition and they do not deserve to be deleted from array of parties. In support of his submission, Mr. Oak, the learned counsel for the election petitioner relied upon the judgment of the Apex Court in Murarka Radhey Shyam Ram Kumar, AIR 1964 SC 1545.

4. Section 82 of Representation of Peoples Act reads thus :

"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."

5. The aforesaid provision contained in section 82 makes it incumbent upon the election petitioner to join as respondents to the election petition the returned candidate/s and where the petitioner claims a further declaration that he himself or any other candidate has been duly elected, then all contesting candidates are required to be impleaded. In a case where there are allegations of corrupt practice, the candidate against whom allegations of corrupt practices are made in the petition is required to be impleaded in the election petition. In Murarka Radhey Shyam Ram Kumar (supra), the Apex Court held that when all the necessary parties have been joined to an election petition, merely because a party who is not a necessary party has been impleaded, it cannot be said that there is breach of the provisions of section 82 and on that ground question of dismissing the election petition does not arise.

6. In Jyoti Basu (supra) the Apex Court has ruled that no one will be joined as a party to the election petition otherwise as provided by section 82 and 86(4) of the Representation of People Act. The Apex Court further held that the person who is not a candidate may not be joined as respondent to the election petition.

7. In paragraphs 9 and 13 of the report the Apex Court held thus:

"9. Section 81 prescribes who may present an election petition. It may be any candidate at such election: it may be any elector of the constituency: it may be none else. Sec.82 is headed "Parties to the petition" and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of S.82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86(4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while cl.(b) of S.82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under S.86(4), any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in S.82 and S.86(4) and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents."

"13. In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. The appeal is, therefore, allowed with costs and the names of the appellants and the seventh respondent in the appeal are directed to be struck out from the array of parties in the election petition. We may mention that in arriving at our conclusion we have also considered the following decisions cited before us: S.B. Adityan v. S.Kandaswami, AIR 1958 Mad 171, Dwiendra Lal Sen Gupta v Harekrishna Konar, AIR 1963 Cal 218, H.R. Gokhale v. Bharucha Noshir C, AIR 1969 Bom 177 and S.Iqbal Singh v. S.Gurdas Singh Badal, AIR 1973 Punj & Har 163 (FB)."

8. The Apex Court has, thus, in unequivocal terms laid down that in the election petition since the dispute is required to be resolved between the candidates at the election, all parties other than the candidates are excluded.

9. The question whether the Election Commission of India can be impleaded as party respondent in election petition came up for consideration before the Apex Court in B. Sundara Rami Reddy (cited supra). That was a case in which the election of a member of the Andhra Pradesh Legislative Assembly was challenged by an unsuccessful candidate by filing election petition before the Andhra Pradesh High Court. The Election Commission was impleaded as party Respondent No.2 since in the election petition the petitioner challenged the validity of the order of the Election Commission declaring polling at a particular polling station as void and directing re-polling at the polling station. Upon an application being made by the Election Commission for its deletion from array of parties on the ground that it was not necessary party, the Apex Court held thus:-

"3. After hearing learned counsel for the petitioner we do not find any merit in the petition. Section 82 of the Representation of the People Act, 1951 specifies the persons who are required to be joined as respondents to an 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. 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. Learned counsel for the petitioner urged that even if the Election Commission may not be a necessary party, it was a proper party since its orders have been challenged in the election petition. He further urged that since Civil Procedure Code, 1908 is applicable to the trial of election petition. We find no merit in the contention. Section 87 of the Act lays down that subject to the provisions of the Act and any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provisions of the Civil Procedure Code have thus been made applicable to the trial of an election petition to a limited extent as would appear from the expression "subject to the provisions of this Act." Since Section 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not necessary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self-contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of proper party. In K. Venkateswara Rao v. Bekkam Narasimha Reddi, this Court while discussing the application of Order I Rule 10 of the Civil Procedure Code to an election petition held that there could not be any addition of parties in the case of an election petition except under the provisions of sub-section (4) of Section 86 of the Act. Again in Jyoti Basu v. Debi Ghosal, this Court held that the concept of 'proper party' is and must remain alien to an election dispute under the Representation of the People Act,1951. 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, no one else shall be joined as respondents."

10. The aforesaid observations made by the Apex Court squarely apply to the facts and circumstances of the present case. Merely because there are certain allegations against respondent nos. 10, 11 and 12 who are the Returning Officer, The Electoral Registration Officer and the Election Commission of India respectively, they do not become necessary party in election petition. The Supreme Court has already held that concept of a proper party to an election petition is alien to the provisions of Representation of People Act.

11. I am, therefore, satisfied that the chamber summons deserves to be made absolute and respondent nos. 10, 11 and 12 deserve to be deleted from array of parties.

12. Accordingly, the chamber summons is made absolute in terms of prayer (a). Prayer (a) reads thus:

(a) that this Hon'ble Court be pleased to delete the above named Applicants from the aforesaid Election Petition:

13. No costs.

14. Necessary amendments be carried out by the petitioner in the election petition within two weeks from today.

15. Office is directed to post the election petition for direction on 31.3.2000.

16. Certified copy expedited.

Transcribed on 22.3.2000.

Chamber summons allowed.