Karnataka High Court
Shreedhar Shanai vs Chief Electoral Officer on 11 June, 1990
Equivalent citations: ILR1990KAR2622
ORDER K.A. Swami, J.
1. This is an application filed by the petitioner for impleading the Election Commissioner of India as respondent No. 5. In the application, it is stated that the petitioner has alleged in the petition "Chemicalisation of Ballot Papers" against the respondents and that the Court also indicated that the Election Commission should be impleaded as respondent.
2. In the Election Petition, the petitioner has averred in paras 7 to 11 thus:
"7. At the time of counting of votes on 26-11-1989, the petitioner noticed that the stamp marks on 'Hand' symbol on nearly 30% of the ballot papers of each booth appeared to be uniform, fresher and brighter than the stamps on other symbols.
8. The petitioner also noticed at the time of counting that the colour of nearly 30% of the ballot papers of each booth with stamp mark on 'Hand' symbol was somewhat different from other ballot papers.
9. The petitioner contacted immediately over phone his friend, who is a Professor of Chemistry and explained him the points noticed by him at the time of counting. The Professor of Chemistry explained that a chemical treatment could be given to the papers with invisible marks on it and even if visible marks were made on it subsequently, the same will disappear and the invisible marks made on it originally will become visible after some days and he also stated that the chemical treatment will change the colour of the paper slightly. Therefore, he advised the petitioner to inspect the unpolled ballot papers to ascertain this point.
10. The petitioner Immediately contacted the 3rd respondent and brought to his notice the points noticed by him and requested to allow him to inspect the unpolled ballot papers. But the third respondent refused the request made by the petitioner.
11. The first respondent being the person responsible for printing of ballot papers the second and third respondents being responsible for distribution of ballot papers to all the polling booths, have all joined hands with the 4th respondent in inducting 30% of the chemicalised ballot papers for all the booths in the constituency with an invisible stamp on 'Hand' symbol, and by this arrangement the stamp put by the voters on 24-11-1989 had disappeared totally and the invisible stamp on 'Hand' symbol became visible on 26-11-1989 at the time of counting and all these ballot papers were received by the third respondent to declare that the fourth respondent won the election by securing 3,13,849 votes, in spite of the protests of the petitioner."
In the light of the averments contained in the petition, when the petition came up for orders before the Court on 21-2-1990, the Court passed the following order:
"Call on 2-3-1990 as requested by the learned Counsel for the petitioner to produce a certified copy of the declaration of result of the election and also to state as to whether the Election Commission is or is not a necessary party having regard to the averments made in the petition."
Thereafter, the present application came to be filed on 16-3-1990 and notice was ordered on the application as well as on the Main Petition to all the respondents and also to the Election Commission of India. Pursuant to that, the respondents have put in appearance through their respective Counsels and the Election Commission of India has put in appearance through the learned Standing Counsel for the Central Government.
3. It is contended on behalf of the respondents that as the Election Commission does not fall either under Section 82 or 86(4) of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') it cannot be impleaded as a Party to the Election Petition having regard to a decision of the Supreme Court in JYOTI BASU AND ORS. v. DEBI GHOSAL AND ORS . Sri B.T. Parthasarathy, learned Counsel appearing for the 4th respondent has also placed reliance on the two other decisions of the Supreme Court in K. VENKATESWARA RAO AND ANR. v. BAKKAM NARASIMHA REDDU AND ORS AIR l969 SC 873. and UDHAV SINGH v. MADHAVA RAO SCINDIA .
4. In K. Venkateswara Rao's case one Sri V.K. Reddy, who filed his nomination paper to contest the election to Andhra Pradesh Legislative Assembly from Kollapur Constituency, withdrew the nomination paper. In the Election Petition it was averred that Sri V.K. Reddy who had filed his nomination paper had been made to withdraw his candidature by the 1st respondent on payment of an illegal gratification of Rs. 10,000/-. However, V.K. Reddy was not impleaded as one of the respondents in the Election Petition. Subsequently, an application was filed by the election petitioner during the course of the trial of the election petition to implead Sri V.K. Reddy, but that application was dismissed. Thereafter an application was filed by the contesting respondent that as allegations of corrupt practice were made against Sri V.K. Reddy who had filed his nomination paper and as he had not been made a party to the petition, the Election Petition was liable to be dismissed under Section 82(b) of the Act. The Supreme Court upheld this contention. During the course of the Judgment, it was observed in para 13 as follows:
"...no addition of parties is possible in the case of an election petition except under the provisions of Sub-section (4) of Section 86. Section 82 shows who are necessary parties to an election petition which must be filed within 45 days from the date of election as laid down in Section 81. Under Section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82. Again the High Court must dismiss an election petition if security for costs be not given in terms of Section 117 of the Act."
It was further observed in para 14 of the Judgment thus:
"In our opinion, however, the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act."
Thus it was a case in which an election petition was filed under the Act without impleading a necessary party inasmuch as under Section 82(b) 'any other candidate against whom allegations of any corrupt practice are made in the petition, he shall be Joined as one of the respondents in the election petition.' While interpreting this clause in MOHAN SINGH v. BHANWARLAL the Supreme Court held thus:
"If therefore, the petition contained any imputation of corrupt practice made against Himmat Singh it could not be regarded as properly constituted unless he was impleaded as a respondent, for by the definition of 'candidate' in Section 79(b), the expression 'any other candidate' in Section 82(b) must include a candidate who had withdrawn his candidate."
Similar view was expressed by the Supreme Court in AMIN LAL v. HUNNA MAL .
Therefore, even though V.K. Reddy had withdrawn his nomination, as there was an allegation of corrupt practice made against him in the election petition, he was a necessary party to be impleaded in the election petition. But the case on hand, does not involve the question as to whether a necessary party to the petition has been impleaded or not. In this case, it is not in dispute that all the necessary parties have been impleaded. Therefore, the principles laid down in Venkateswara Rao's case cannot be made applicable to the instant case.
5. In Udhav Singh's case the question was as to whether Shiv Pratap Singh who had filed his nomination and withdrew it later, against whom allegations of corrupt practice were made was a necessary party to the election petition. It was held that Shiv Pratap Singh was a necessary party having regard to the provisions contained in Section 82(b) of the Act. It was also further held that in view of the provisions contained in Section 86 of the Act, the Election Petition was liable to be dismissed as it did not comply with the provisions of Section 82 of the Act. Therefore, Udhav Singh's case also was a case in which a necessary party was not impleaded to the election petition.
6. In Jyoti Basu's case the Supreme Court was called upon to consider whether a person who was not concerned with the election in any manner and who did not fall within the description of the parties as contained in Section 82 of the Act, could be made a party to the Election Petition. It was the 7th respondent in that case who was impleaded though he was not concerned with the election in any manner. The 7th respondent in that case was not a candidate nor he had filed the nomination and withdrew it later on nor he was concerned with the election in that case in any manner. Therefore, it was held that the 7th respondent was not at all a necessary party to the election petition. It was also further held that no other person other than those described in Section 82 of the Act could be made as parties to the election petition. Therefore, the Supreme Court directed that the name of the 7th respondent in that case should be struck-off from the array of respondents.
7. On the basis of the aforesaid decisions, it is contended that the Election Commission of India does not fall within any one of the clauses contained in Section 82 of the Act; therefore, it cannot be impleaded.
8. It is relevant to bear in mind that in the instant case, we are not concerned with the impleading of a citizen or a person who was not concerned with the election. In this case we are also not concerned with the question as to whether necessary parties are to be impleaded as required by Section 82 of the Act. It has already been pointed out that necessary parties have been impleaded to the Election Petition. As such the election petition does not suffer from the defect of not impleading the necessary parties.
9. The allegations in the Election Petition are with regard to the printing and using of the ballot papers. The case of the petitioner is that 30% of the ballot papers used in the polling stations in the constituency in question were chemically treated in such a manner that as a result thereof, the votes cast in favour of the contesting candidates disappeared and appeared in favour of the Congree (I) candidate. These averments in the Petition cover some of the functions' of the Election Commission of India viz., printing and using of the ballot papers in the election and conducting fair and free election in accordance with law. At this stage, we are not concerned whether the Election Petition is entitled to succeed or not.
10. No doubt, the Chief Electoral Officer and Secretary to Government of Karnataka (D.P.A.R), and the District Election Officer and also the Returning Officer are made parties to the Election Petition. Though all these authorities discharge their duties and perform their functions under the provisions of the Act, nevertheless they work under the control and supervision of the Election Commission of India. Therefore, in the light of the averments contained in paras 7 to 11 of the Election Petition, it would be just and appropriate to have the Election Commission of India impleaded as a respondent to the Election Petition so that there could be fair and proper trial of the case, if the case were to go for trial. The aforesaid decisions were rendered in the context as to whether an Election Petition can be maintained continued and decided on merits in the absence of a necessary party to the petition as required by Section 82 read with Section 86 of the Act. Jyoti Basu's case was concerned with the question whether a stranger unconcerned with the election could be arrayed as a respondent. It was in this context the Supreme Court observed that no other reason other those described in Section 82 of the Act could be made a party to the Election Petition. Such a situation does not arise in the instant case. I would also make it clear that I should not be understood as laying down that in every case where there is an allegation against the authorities like respondents-1 to 3, Election Commission should be made a party because they work under the control and supervision of the Election Commission. It depends on the nature of the allegations made in the petition. Hence I am of the view that the aforesaid decisions of the Supreme Court cannot be applied to the case on hand.
11. For the reasons stated above, I allow the application I.A.No. l and direct that the Election Commission of India be impleaded as respondent-5. The petition be amended. The learned Standing Counsel for the Central Government submits that he has been served with a copy of the petition. The Election Commission is granted four weeks, as requested by the learned Standing Counsel for the Central Government, to file its written statement, if any.