Karnataka High Court
B.S. Yadiyurappa vs Mahalingappa And Others on 3 November, 2000
Equivalent citations: AIR2001KANT61, ILR2000KAR4449, 2001(2)KARLJ577, AIR 2001 KARNATAKA 61, (2000) ILR (KANT) 4449 (2001) 2 KANT LJ 577, (2001) 2 KANT LJ 577
ORDER Hari Nath Tilhari, J.
1. By this petition, the petitioner has sought a declaration to the effect that declaration of election of the respondent 1 vide Annexure-A declaring respondent 1 as returned candidate from 167, Shikaripura Assembly Constituency, as illegal, null and void as per Section 100 (b) and (d)(ii) and (iv) of the Representation of the People Act, 1951 and for declaration that the petitioner is the returned candidate from the said constituency as per Section 101(b) of the Representation of the People Act, 1951.
2. The election to the eleventh Karnataka Legislative Assembly from 167, Shikaripura Constituency and to the 13th Lok Sabha for 21 Shimoga Parliamentary Constituency were held simultaneously on 11-9-1999. The result of that election was declared on 6-10-1999. The 1st respondent in the petition namely Mahalingappa was declared elected to the Legislative Assembly from this constituency. The petitioner has sought the declaration of election to be null and void.
3. The grounds of election and the allegations made thereunder in the election petition are said to be under Section 100 (b) and (d). The election petitioner in the petition has impleaded the returned candidate as respondent 1 and the other candidates namely as respondents 2 and 3. The respondent 1 is the returned candidate having been elected on the ticket of the Indian National Congress and belongs to the Indian National Congress. In addition to these candidates, the petitioner has impleaded the returning officer as respondent 4 and the District Election Officer as respondent 5. Among other grounds, one of the ground is that the respondents 4 and 5 i.e., the Returning Officer and the District Election Officer were responsible to conduct elections strictly in accordance with the Constitution of India and the Representation of the People Act, 1951 as well as the rules and various orders issued by the Election Commission. These respondents, according to the petitioner, were involved in certain irregularities and illegalities including the Rectified Spirit Scandal, as alleged in paragraph 4 of the election petition and in paragraph 10 etc., it was alleged that the respondents 1 and 4 devised an elaborate scheme by which the ballot boxes were wreaked and there were alteration and fabrication of records and according to the petitioner, the alleged practices were done with the help of the District Election Officer, the Returning Officer and the Assistant Returning Officer functioning under the 1st respondent to further the prospects of the election of the 1st respondent. It appears in the context of the above pleadings, the Returning Officer, 167, Shikaripura Assembly Segment and District Election Commissioner (District Commissioner), Shimoga Parliamentary Constituency, Shimoga, were impleaded as respondents 4 and 5.
4. After the G.O. Notification of filing of the election petition, respondents filed their written objections as well as raised a preliminary objection. An application was also moved on behalf of the respondent 1 as well as respondents 4 and 5. The respondents 4 and 5 moved the application for deletion and striking out of their names from the array of the parties. The respondent 1 moved two applications namely, one for removal and striking of names of respondents 4 and 5 on one hand and on the other hand, for the dismissal of the election petition under Section 86(1) of the Representation of the People Act. According to the respondent/applicant, the petition was liable to be dismissed as respondents 4 and 5 has been impleaded as the parties to the election petition. I mean to say the objection was taken to the effect that the Returning Officer and the District Election Officer could not be impleaded as parties in view of Section 82 of the Representation of the People Act. In paragraphs 3 and 4 of the affidavit to the application under Section 82 read with Section 86 of the Representation of the People Act, 1951, for dismissal of the election petition, it has been stated as under:
"3. I submit that the 4th respondent was appointed as the Returning Officer for No. 167, Shikaripura Assembly Constituency for the elections held on 11th September, 1999. In the present election petition, he has been arrayed as respondent 4. The Deputy Commissioner, Shimoga District was the District Election Officer and Returning Officer for the Shimoga Parliamentary Constituency. In the present election petition, he has been arrayed as respondent 5.
4. I am advised to submit that Section 82 of the Representation of People Act, 1951 (hereinafter referred to as the 'Act') provides that a petitioner shall join as respondent to his petition (a) all the contesting candidates other than the petitioner 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 and where no such further declaration is claimed, all the returned candidates, and (b) any other candidate against whom allegations of corrupt practice are made in the petition. Section 87 of the Act provides 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. It is submitted that the application of the provisions of the Code of Civil Procedure is subject to the provisions of the Act. Since Section 82 of the Act provides for parties to the petition, the provisions of the Civil Procedure Code have no application so far as parties to the election petition is concerned".
In paragraph 7 of the affidavit, it has been further stated as under.-
"7. I submit that the impleading of the 4th and 5th respondents who are neither proper parties nor necessary parties to the above election petition is certainly fatal to the petition as the same is contrary to Section 86(1) of the Representation of People Act. In fact, the Hon'ble Supreme Court has clearly laid down that under Section 86(1), this Hon'ble Court shall have to dismiss the application which does not comply with the provisions of Section 82".
In paragraph 8 of the affidavit, it has been stated as under:
"8. I submit that I can raise the objection as to misjoinder at any point of time and the Hon'ble Supreme Court has further categorically held that when non-compliance with Section 82 was brought to the notice of this Hon'ble Court, then no matter in what manner and at what stage, during the pendency of the election petition, this aspect is brought to the notice of this Hon'ble Court, then this Hon'ble Court is bound to dismiss the petition in unstinted obedience of the commands of Section 86. The Hon'ble Supreme Court has further held that when the Acts makes a person a necessary party and provides that the petition shall be dismissed, if such a party is not joined, the power to add or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of Representation of People Act and the rules made thereunder. When Section 86 of the Act enjoins the penalty of dismissal of the petition for non-compliance with Section 82, the provisions to Civil Procedure Code cannot be used as a curative means to save the election petitioner. The election petitioner is liable to be dismissed".
It had been prayed that the election petition be dismissed on the ground of misjoinder of parties namely, on the ground of impleadment of Returning Officer and the District Election Officer as respondents 4 and 5 in the election petition. The respondent 1 had also made an application for striking out the names of respondents 4 and 5.
5. This application for dismissal of the election petition on the ground based on Sections 82 and 86(1) has been hotly contested.
6. I have heard Sri K. Suman, learned Counsel for the respondent 1, Sri H.J. Sundar Kumar, learned Government Advocate for respondents 4 and 5 and Sri Ashok Harnahalli on behalf of the election petitioner.
7. On behalf of the respondent 1, Sri K. Suman submitted that the election petition is bad for non-compliance with Section 82 of the Representation of the People Act. Sri Suman submitted that under Section 82, who are to be made parties has been indicated. He submitted that the election is a statutory law and the rules and provisions made for challenging the election petition have to be followed strictly. He submitted that Section 80 of the Representation of the People Act provides that the election of a candidate can be challenged only by filing an election petition prepared and presented in accordance with the provisions of Sections 81, 82, 83 etc. The learned Counsel contended that Section 86(1) very clearly provides that an election petition which does not comply with the requirements of Sections 81, 82 and 117 has to be dismissed by this Court. When Section 82 specifies the persons to be impleaded, then it by necessary implication forbids impleadment of any other person than one required to be impleaded under Section 82 or the persons who may be impleaded under the directions of the Court under Section 86(4).
The learned Counsel submitted that Section 80 of the Act provides that no election can be challenged or be called in question except by an election petition presented in accordance with the provision of this part and the learned Counsel further contended that as persons, other than those referred to and required are made as parties in the present election petition, the election petition cannot be said to have been framed and presented in accordance with the provisions of this part concerned and in view of Section 86(1) of the Act, this Court should dismiss this election petition under 86(1) of the Representation of the People Act.
8. In support of his contentions, the learned Counsel made reference to certain cases which I shall refer to hereinafter.
9. On behalf of the election petitioner, this preliminary objection and the application for dismissal of the election petition have been hotly contested by Sri Ashok Harnahalli, learned Counsel for the election petitioner.
Sri Ashok Harnahalli, learned Counsel for the election petitioner, contended that the impleadment of the Returning Officer, and the District Election Officer was necessary and if not necessary at least proper in view of the allegations made against the District Election Officer and the Returning Officer such as those contained in paragraphs 14, 15, 16 and 17 of the election petition to the effect that the District Election Officer was conniving with the returned candidate and therefore, he concocted, fabricated and altered the records of election with the intention to cover up his lapses so as to benefit the 1st respondent and it was further alleged that the respondent 4 jointly with the respondent 1 devised an elaborate scheme by which the ballot boxes were wreaked, altered and fabricated the election records and there were allegations also against the respondent 4 and the District Election Officer that these respondents 4 and 5 along with the respondent 1 committed acts of corrupt practice only to further the chances of the respondent 1, in the election, being elected to the Legislative Assembly. The learned Counsel contended that, as such, the respondents 4 and 5 were necessary and at least proper parties to be impleaded in the election petition. Therefore, the election petition cannot be said to be hit by Section 82 read with Section 86 of the Representation of the People Act. The learned Counsel contended that there is no bar against the impleading of any person as a respondent in addition to those who are required to be impleaded as the respondents. There being no bar, nor there being any expressing indicating that no other person can be impleaded, therefore, there cannot be said to be any breach or non-compliance with the provisions of Section 82 of the Representation of the People Act and as such, Section 86(1) does not come into play. Sri Ashok Harnahalli contended that even if there is any defect of misjoinder of parties in the petition, the petition cannot be dismissed, though there is in fact no case of misjoinder at all. Here if there is any misjoinder, which he does not admit, the Court can order striking out of the names of those persons who have been mis-joined or who have been wrongly arrayed as respondents in the petition and there is no case for dismissal of the election petition under Section
86. Sri Ashok Harnahalli made reference in this connection to the following decisions namely to the decision of their Lordships of the Supreme Court in the case of Murarka Radhey Shyam Ram Kumar v Roop Singh Rathore and Others. He also made a reference to the decision of the Calcutta High Court in the case of Dwijendra Lal Sen Gupta v Harekrishna Konar. He further submitted that in no case, so far, on the subject, any of the Courts followed Section 86(1) nor has given effect to the dismissing of the election petition. Instead in all cases on the subject, the Courts have directed striking out or deletion of the name of the person or parties wrongly impleaded in the election petition. He submitted at the most the Court may strike down and direct deletion of names of respondents 4 and 5 to the election petition.
10. I have applied my mind to the contentions raised by the learned Counsels for the parties.
Following are the questions to be considered in the case:
(1) Whether on account of impleadment of the respondents 4 and 5 namely the Returning Officer and the District Election Officer of the constituency concerned in addition to the candidates namely respondents 1 to 3, the election petition can be said to have been filed and presented in breach of the law?
or in other words, Whether it is a petition filed not in accordance with the provisions of law and Section 82 and is bad for misjoinder of parties?
(2) If the answer to question No. (1) is in affirmative and if it is found that the petition is bad for misjoinder of the parties by the impleading of respondents 4 and 5 as parties, what is its effect? Whether petition is liable to be dismissed under Section 86(1) of the Representation of the People Act?
11. Before we proceed to examine this aspect of the matter, it will be appropriate to refer to certain provisions of law.
Part 15 of the Constitution of India, which contains the Articles 323 to 329, deals with and provides for election. Article 329 of the Constitution provides and reads as under.-
"Article 329. Notwithstanding anything in this Constitution-
(a) the validity of any law relating to the delimitation of constituencies, or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or 328, shall not be called in question in any Court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to suck authority and in such manner as may be provided for by or under any law made by the appropriate Legislature".
(emphasis supplied)
12. Clause (b) of Article 329 clearly provides for specific instrumentality and the manner in which an election to either House of Parliament or to either House of State Legislature can be called in question and this instrumentality and mode is specific. It provides that "except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature". A reading of this Article clearly reveals that election to either House of Parliament or to the House or either House of the Legislature cannot be called in question and cannot be challenged except by an election petition prepared and presented in the manner as may be prescribed by the law made by the competent Legislature and it cannot be presented in any other manner than the one provided by the law made by the Legislature or Parliament nor can it be presented before any authority other than the one specified under the law relating to election made by the competent Legislature. Section 80 of the Representation of the People Act, 1951 is very specific and it very clearly provides and reads as under.-
"Section 80. Election petitions.--No election shall be called in question except by an election petition presented in accordance with the provisions of this part".
Section 80-A provides for the authority or instrumentality before which the election petition has to be presented as well as it specifies the instrumentality through which the jurisdiction vested in the High Court in the matters of trying the election petition has to be exercised. It will be appropriate to quote Section 80-A of the Representation of the People Act. It reads as under.-
"Section 80-A. High Court to try election petitions.--(1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a Single Judge of the High Court, and the Chief Justice, shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interest of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court".
13. In the case of Krishan Gopal v Shri Prakashchandra and Others, at page 213, their Lordships of the Supreme Court laid it down as under:
"12. An election petition calling in question any election has under Section 81 of the Act to be presented to the High Court.
Sub-section (1) of Section 80-A of the Act makes it clear that the Court which has jurisdiction to try an election petition shall be the High Court. 'High Court' has been defined in clause (e) of Section 79 of the Act to mean a High Court within the local limits of whose jurisdiction the election to which the election petition relates has been held. Sub-section (2) of Section 80-A of the Act provides that the jurisdiction, which the High Court has to try an election petition, shall be exercised ordinarily by a Single Judge of the High Court and the Chief Justice shall from time to time assign one or more Judges for the purpose. It is plain that sub-section (2) does not confer jurisdiction to try an election petition. Such jurisdiction is conferred by sub-section (1) of Section 80-A upon the High Court. Sub-section (2) merely specifies the instrumentality through which the jurisdiction which is vested in the High Court shall be exercised. The sub-section thus relates to the procedure for the exercise of the jurisdiction and provides that the jurisdiction shall be exercised ordinarily by a Single Judge of the High Court who has been assigned for the purpose by the Chief Justice. Perusal of sub-section (2) of Section 80-A makes it manifest that it is only a Judge of the High Court assigned for the purpose by the Chief Justice who can exercise the jurisdiction which is vested in the High Court to try an election petition by sub-section (1) of that section. The provisions of sub-section (2) are mandatory and a person who is not a Judge of the High Court concerned and who has not been assigned for the purpose by the Chief Justice cannot exercise the jurisdiction which is vested in the High Court by sub-section (1) of Section 80-A of the Act. The word "ordinarily" does not indicate that the provisions of sub-section (2) of Section 80-A are not mandatory and that relaxation in compliance with those provisions is permissible. The word "ordinarily" only qualifies the number of Judges who can exercise the jurisdiction which is vested in the High Court to try an election petition. The said word indicates that normally it would be a Single Judge of the High Court who can exercise the jurisdiction which is vested in the High Court, but in appropriate cases, such jurisdiction can also be exercised by two or more Judges".
(emphasis supplied)
14. A reading of this decision and the law laid down by their Lordships of the Supreme Court clearly reveals, that an election petition can be tried by a Judge of a High Court provided he has been nominated by the Chief Justice to try the election petition and no other Judge i.e., no Judge other than the Judge nominated for the purpose, is entitled to try the election petition, unless he has been so nominated for the purpose of trial of the election petition. This principle of Section 80-A that no Judge other than the Judge of a High Court nominated by the Chief Justice for the purpose of trying an election petition can try the election petition runs and follows the well-settled dictum and principle of law laid down to the effect that when law confers a power and prescribes a specific instrumentality for exercising of those powers, the powers can be exercised only by that instrumentality and by none else. From there it further follows and it is well-settled as well that when the law confers a power or right and prescribes the mode and manner for the exercise of that power, then that power can be exercised and the act prescribed can be done in exercise of said power only in the manner prescribed and specified by the law and other modes are closed. See Nazir Ahmad v King Emperor, as well as State of Uttar Pradesh v Singhara Singh and Others. When the law under Article 329 of the Constitution of India and the provisions of Section 80 clearly mandates that election cannot be challenged or election cannot be called in question except by an election petition presented in accordance with the provisions of this Act, it bars challenging of an election, by any other mode or a mode of election petition prepared and presented otherwise than the manner prescribed by law, as well as, before a person or authority or the Court otherwise than specified in the Representation of the People Act. Keeping this in view, I have to and do proceed further.
15. The right to elect, though it is fundamental to democracy, is anomalously neither fundamental right nor a common law right. It is a pure and simple statutory right. So is the right to be elected and so is the right to dispute an election. Outside the statute, there is no right to elect, no right to be elected and no right to dispute an election. An election petition is not an action under common law nor equity. It is a statutory proceeding to which neither common law nor principles of equity do apply. What applies to it is nothing but the rules and provisions of law which the statute makes and applies. It is a special jurisdiction and special jurisdiction has always to be exercised in accordance with the statute creating it and the concepts familiar to common law and equity must remain a stranger to election law unless statutorily embodied. A Court has no right to resort to that on consideration of alleged policies, because policy, in such matter as those relating to trial and disputes, is what the statute lays down. In the trial of an election dispute, the Court is put in a strait-jacket. Thus it is per se revealed that we have to examine whether the election petition in the present case has been filed and presented in accordance with the law made by the Legislature i.e., in accordance with the provisions of Part VI of the Representation of the People Act.
16. Section 82 of the Representation of the People Act provides for as to who has to be joined as respondent or who have to be joined as respondents. Section 82 specifies the persons who are to be joined as respondents and the first essential condition for a person to be joined or impleaded as a respondent in the election petition is that the said person must be or must have been a candidate in the concerned election, who is a candidate in the election, no doubt, has been defined in Section 79(b) of the Representation of the People Act. It will be appropriate to quote the relevant part of Section 79 as well as Section 82 of the Act.
"Section 79. Definitions.-- In this part and in Part VII unless the context otherwise requires-
(a). .....;
(b) 'Candidate' means a person who has been or claims to have been duly nominated as a candidate at any election;
(c). .....;
(d). .....;
(e). .....;
(f) 'Returned candidate1 means a candidate whose name has been published under Section 67 as duly elected".
Section 82 reads as under-
"Section 82. Parties of 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 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".
It will also be appropriate at this juncture to refer and quote Section 86, sub-section (1) and sub-section (4) which are material for our purpose.
"Section 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 82 or 117.
Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section 98.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.--For the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition".
Section 87 of the Representation of the People Act is also material for the purpose of consideration. It reads as under.-
"Section 87. Procedure before the High Court.--(1) Subject to the provisions of this Act and of 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 (5 of 1908), to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witness is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition".
17. A reading of Section 87 clearly indicates the general principle contained therein that 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 the suits. The general principle is subject to two conditions namely, where a special provision with respect to the realm of trial of election petition is provided under this Act or under any of the rules made under the Representation of the People Act, the provisions of the Code of Civil Procedure will not be applicable to the extent of inconsistency with the provisions of special law under the Representation of the People Act and the special provisions will apply. Where there is no special provision contained or made with reference to the procedure relating to trial or with any matter relating to the trial, then provisions of the Code of Civil Procedure can be applied and shall be applied and the trial shall be done, as nearly as possible, in accordance with the provisions of the Code of Civil Procedure. So where, as mentioned earlier, there is special provision dealing with a situation, then the special provision contained in the Representation of the People Act and the rules will prevail.
18. As regards the question who can be the parties to an election petition, the light is thrown by Sections 81(1) and 82 of the Act. Section 81 of the Representation of the People Act provides that an election petition challenging the election may be presented on one or more grounds specified in sub-section (1) of Sections 100 and 101 to the High Court. It further provides that such an election petition can be filed by any candidate at such election or any elector within the period of limitation of 45 days from the date of election of the returned candidate. It means that election of a candidate can be challenged by specified persons and by no one else namely, those persons can be either the candidate or candidates or the election can be challenged by an elector in the constituency. It means it cannot be challenged by one who is not an elector or who is or has not been a candidate in the said election. Who is an elector has been defined in explanation to Section 81 as under.-
" 'Elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not".
That such a person must be entitled to vote at the election to which the election petition relates. A person who is not an elector, with reference to the election which is sought to be challenged in the petition, cannot file the election petition and an election petition at his instance cannot be maintained, This is only because that person has been specified who can challenge the election under the election law namely the Representation of the People Act and no other person can challenge it as he has got no right to challenge it. Though Section 81 does not specifically provide that no other person can challenge the election, but it flows out from the language of Section 81 by necessary implication, otherwise the provision may be rendered redundant. This flows from the language of Section 80 of the Representation of the People Act and Article 329(b) of the Constitution of India, when these two provisions are read along with Section 81 of the Act. Similarly it may be said that who shall be the respondents in the petition. Section 82 specifies and specifically provides namely the returned candidate or candidates or any of the returned candidates, as the case may be, and in cases where the petitioner claims a further declaration that he himself or any other candidate has been duly elected, then in that case, all the contesting candidates other than the petitioner. But where no such declaration is sought, then only the returned candidates are to be joined as the respondents. Clause (b) of Section 82 specifies further that any other candidate against whom allegations of any corrupt practice are made in the petition shall also be made or shall also be joined as a respondent in the petition. Thus, Section 82 specifies and specifically provides that only those persons who are candidates in a election can be impleaded, according to the reliefs claimed and according to the contents of the petition, that is where the election petitioner only challenges the election of a returned candidate or returned candidates to be illegal, null and void and claims no further reliefs, then in that case, the returned candidate/returned candidates has/have to be made and joined as respondent/respondents. In any case if a further declaration is claimed and the petitioner claims declaration that he himself or any other candidate has been duly elected, then in that case, all the contesting candidates have also to be impleaded as respondents. In addition to this, any other candidate against whom the allegations of any corrupt practice are made, he shall also be impleaded. The impact of this provision appears to be that these are the persons who are the candidates who can be impleaded with reference to election to which the election petition relates and one who is neither nor has been a candidate in the said election, he cannot be impleaded or joined as a respondent. Section 86(4) further reveals that if any candidate, who has not been impleaded in the petition as a respondent, if he applies to the High Court within 14 days from the date of commencement of the trial, then he shall be, subject to any order as to security for costs which may be made by the High Court, entitled to be joined and be joined as a respondent in the petition on the order made by the High Court. Beyond that, the Acts and the Section does not provide for impleadment of any person as a party to the election petition. When I so opine, I find support for my view from the following decisions of the Supreme Court.
In the case of K. Venkateswara Rao and Another v Bekkam Narasimha Reddy and Others, their Lordships laid down, "It is well-settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act".
(emphasis supplied) In paragraph 13, their Lordships have laid down as under.-
"With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1, Rule 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, 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".
19. In the case of Jyoti Basu and Others v Debi Ghosal and Others, their Lordships of the Supreme Court considered the matter in detail and laid down the law as under.-
"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. Section 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 Section 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 clause (b) of Section 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 correct 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 Section 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 Sections 82 and 86(4) and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents.
10. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court 'effectually and completely to adjudicate upon and settle all questions involved' may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only 'as far as may be' and 'subject to the provisions of the Representation of the People Act, 1951 and the rules made thereunder'. Section 87(1) expressly says no. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked. In Mohan Raj v Surendra Kumar Taparia, this Court held that the undoubted power of the Court (i.e., the Election Court) to permit an amendment of the petition cannot be used to strike out allegations against a candidate not joined as a respondent so as to save the election petition from dismissal for non-joinder of necessary parties. It was said, The Court can order an amendment and even strike out a party who is not necessary. But where 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 Procedure 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 a curative means to save the petition'. Again in K. Venkateswara Rao's case, supra, it was observed:
"With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1, Rule 10, subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, no addition of parties is possible in the case of an election petition except under the provisions of sub-section (4) of Section 86".
11. The matter may be looked at from another angle. The Parliament has expressly provided that an opportunity should be given to a person who is not a candidate to show cause against being 'named' as one guilty of a corrupt "practice. Parliament, however, has not thought fit to expressly provide for his being joined as a party to the election petition either by the election petitioner or at the instance of the very person against whom the allegations of a corrupt practice are made. The right given to the latter is limited to show cause against being 'named' and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause why he should not be 'named'. The right does not extend to participation at all stages and in all matter, a right which he would have if he is joined as a party at the commencement. Conversely the election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged trial of an election petition with all its intricacies and ramifications. One may well imagine how mischievous minded persons may harass public personages like the Prime Minister of the country, the Chief Minister of a State or a political leader of a national dimension by impleading him as a party to election petitions, all the country over. All that would be necessary is a seemingly plausible allegation, casually or spitefully made, with but a facade of truth. Everyone is familiar with such allegations. To permit such a public personage to be impleaded as a party to an election petition on the basis of a mere allegation, without even prima facie proof, an allegation which may ultimately be found to be unfounded, can cause needless vexation to such personage and prevent him from the effective discharge of his public duties. It would be against the public interest to do so. The ultimate award of costs would be no panacea in such cases, since the public mischief cannot be repaired. That is why public policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of person other than those mentioned in Sections 82 and 86(4). It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under Section 99 and proceed with further action. In our view the legislative provision contained in Section 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be 'named' is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.
12. There is yet another view point. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, Section 97 enables the returned candidate or any other party to 'recriminate' i.e., to give evidence to prove that the election of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined as a party to the petition then, by virtue of his position of a party, he would also be entitled to 'recriminate' under Section 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert the petition into a 'free for all' fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Section 86(6) of the Act that the trial of the election petition should be concluded in six months. It is just as well to remember that 'corrupt practice' as at present defined by Section 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly 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".
(emphasis supplied)
20. Similar view has been expressed in the case of B. Sundara Rami Reddy v Election Commission of India and Others. Their Lordships laid down in paragraphs 3 and 4 as under:
"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 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 trial of an election petition the concept of proper party 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, as with the procedure applicable under the Code of Civil Procedure, 1907 to the trial of suits. Provision 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 joining of a proper party to a suit or proceeding underlying Order 1 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's case, supra, this Court while discussing the application of Order 1, 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's case, supra, 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 Sections 82 and 86(4) and no others. However desirable and expedient it may appear to be none-else shall be joined as respondents".
(emphasis supplied)
21. From the above decisions of their Lordships of the Supreme Court it follows that no person other than those specifically referred to in Section 82 of the Representation of the People Act can be impleaded or joined as a party to the petition. That any one not covered by Section 82 or 86(4), and a person who is not a candidate cannot be joined as a respondent in the election petition. This appears from the perusal of the decisions mentioned in the above cases and the mandate of the law is that the candidates referred to in Section 82 (a) and (b) as the case may be, have to be impleaded and beyond that, leaving aside the candidate who may be impleaded under Section 86(4), no one can be impleaded as a party or respondent in the election petition.
22. The learned Counsel Shri Ashok Harnahalli for the election petitioner, as mentioned earlier, submitted that there is no such expression as "and no other" has been used in Section 82 and therefore it is permissible to add or implead any person, who is a proper party, as the respondent. The learned Counsel placed reliance in the case of Murarka Radhey Shyam Ram Kumar's case, supra, (and connected appeal) in support of his contention and submitted that there being no expression as "no other person" in Section 82 having been used, it is not open to the Court to lay down that no other person can be made a party as it will tantamount to addition of an expression in the Act. He submitted that it is the well-established principle of law of interpretation that omissions cannot be filled up by the Court in the process of interpretation of statute by making addition of any expression. It will be appropriate to quote the following observations from the above mentioned judgment of their Lordships of the Supreme Court:
"6. Let us now examine the preliminary objections which have been urged before us on behalf of the appellant, in the light of the provisions to which we have just now referred. We take first the objection based on the joinder of Ballu or Balji to Election Petition No. 269 of 1962. The argument on this part of the case is the following: Learned Counsel for the appellant has contended that the provisions of Section 82 of the Act are mandatory provisions and any failure to comply with those provisions is fatal in the sense that it is obligatory on the Tribunal to admission election petition which does not comply with the provisions of Section 82. He has relied for this purpose on sub-section (3) of Section 90. He has further contended that in view of the aforesaid provisions of the Act, namely, the provisions in Section 82 and sub-section (3) of Section 90, it is not open to an Election Tribunal to apply the principles of the Code of Civil Procedure and treat a nonjoinder or misjoinder as not fatal to the maintainability of the petition.
The foundation of the argument is that there has been a non-compliance with the provisions of Section 82. If that foundation is absent, then the whole argument disappears. Now, it is admitted that Ballu or Balji was not a contesting candidate within the meaning of Section 82 because his nomination paper had been rejected. The admitted position further is that all the contesting candidates were joined to the petition as required by Section 82. Therefore, what happened was this. All the parties whom it was necessary to join under the provisions of Section 82 were joined as respondents to the petition; but Ballu or Balji was joined in excess of the requirements of Section 82. The question before us is, does this amount to non-compliance with, or contravention of, the provisions of Section 82? Learned Counsel for the appellant wishes us to read Section 82 as though it said that the persons named therein and no others shall be joined as respondents to the petition. He wants us to add the words 'and no others' in the section. We find no warrant for such a reading of Section 82. We agree with the High Court that if all the necessary parties have been joined to the election petition, the circumstance that a person who is not a necessary party has also been impleaded does not amount to a breach of the provisions of Section 82 and the question of dismissing the petition under sub-section (3) of Section 90 arises. It is open to the Election Tribunal to strike out the name of the party who is not a necessary party within the meaning of Section 82 of the Act. The position will be different if a person who is required to be joined as a necessary party under Section 82 is not impleaded as a party to the petition. That however is not the case here and we are of the view that the learned Counsel for the appellant has failed to make out the very foundation on which his argument on this part of the case is based. In the view we have taken it is unnecessary to consider further the legal effect of a contravention of the provisions of Section 82. It is perhaps necessary to add that learned Counsel for the respondents relied on the decision of this Court in Jagan Nath v Jaswant Singh, where it was held that Section 82 of the Act as it then stood was not mandatory. Section 82 then provided as follows:
'A petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated.
Sub-section (4) of Section 90 then provided that notwithstanding anything contained in Section 84, the Tribunal may dismiss an election petition which does not comply with the provisions of Section 81, 83 or 117. There has been a change of law since that decision. Section 82 has been recast and sub-section (3) of Section 90 now states that the Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 notwithstanding that it has not been dismissed by the Election Commission under Section 85. Therefore we do not think that the decision in Jagan Nath's case, supra, is determinative of the problem before us. We need not however pursue this question any further, because we have held that in present cases there was no contravention of the provisions of Section 82".
23. This decision may by itself not be taken to be declaring the law to the effect that any person who is not or has not been a candidate in the election concerned namely the election the result of which is subject-matter of challenge in the election petition, can be impleaded by the election petitioner under Section 82, or be allowed to be impleaded by Election Tribunal (under Section 90(3) prior to its amendment by Act of 1966) or by the High Court under Section 86(4) of the Representation of People Act (as it stands today) as a respondent in the election petition. In the case of Murarka Radhey Shyam (referred to above) before their Lordships of the Supreme Court, it appears that Ballu alias Bali was a candidate, though he was not a contesting candidate and he was so impleaded as a respondent in the election petition along with others i.e., contesting candidates. It is not and has not been a case of impleadment of a person who has not been a candidate at all in the election, the result of which has been subject-matter of challenge by the election petition. The aforesaid decision, as such, is on its own facts and as is distinguishable and in my humble view and opinion it does not appear to lay down the law to the effect that election petitioner is free to implead as per his desire any person or persons (even though such person or persons (natural or juristic) has not or have not been candidate or candidates) in the concerned election and impleadment of such person even if it may have tendency and motive to delay the disposal of election petition will always be taken to be in compliance of Section 82 and that it cannot be dismissed under Section 90(3) old or 86(1) of the Representation of the People Act.
This decision in Murarka Radhey Shyam's case, supra, is to be taken to be confined to the facts of that case. As suck with all due respects, in my view, is not applicable to the present case.
24. The mandate of Sections 82 and 86(4) appears to be that only candidates in such an election can be impleaded. When section directs who has to be impleaded as a party, it has to be given effect to. Section 80 requires that the election petition shall be presented in accordance with the provisions of the Act and not in breach of the provisions of the Act or adopting a mode otherwise than prescribed by the Section for impleading a person as a party in a election petition particularly a person who has not been a candidate in the election, cannot be said to be an act keeping pace with and in accordance with the requirements of Section 82. It is well-settled that question of proper or necessary party is alien to the scheme of the election petition specifically when provisions of the Act specify the persons by describing them as candidates in the election to be impleaded. It clearly mandates as such that no person, other than a candidate in the concerned election, has to be impleaded, as laid down in earlier cases and provisions of Order 1, Rule 10(2) of the Code of Civil Procedure which is supplementary and complementary to Order 1, Rule 9 of the Code of Civil Procedure cannot be applied to the case of election petition because if it is applied, it will run counter to the mandate of the provisions of Sections 82 and 86(1). That Order 1, Rule 9 of the Code of Civil Procedure directs that a suit is not to be dismissed on account of non-joinder or misjoinder of parties and then Order 1, Rule 10(2) confers power on the Court to add or to allow the impleading of a necessary or proper party not already impleaded in the suit as well as confers power on the Court to strike off the name of party improperly or illegally impleaded in the suit. That as per mandate of Section 86(1) of the Representation of the People Act if a candidate who ought to have been impleaded in the election petition has not been impleaded, the petition, no doubt, has to be dismissed in such a case under Section 86(1) for omission to comply with the requirements of Section 82. The petitioner, in such a case, cannot take resort to the provisions of Order 1, Rule 9 or Order 1, Rule 10 of the Code of Civil Procedure, as giving effect to the provisions of Order 1, Rule 9 or Order 1, Rule 10 of the Code of Civil Procedure or deeming it to be applicable to the matters of election cases would be rendering the provisions of Sections 82 and 86(1) to be nugatory and when special law specifies and makes a special provision and gives a specific direction as to who is to be impleaded, it wilt mean that no other persons that those required by the law have to be impleaded and general provisions of Order 1, Rule 9 or Order 1, Rule 10 of the CPC will not apply to election cases. It is the statutory provision in the election law in that regard will have to operate and when a situation is covered by the special provisions of the Act, even recourse to inherent powers cannot be had. It cannot be held that recourse to Order 1, Rule 10 can be taken where there is impleadment of a person otherwise than a candidate in the election petition, while holding that recourse cannot be had to provisions of Order 1, Rule 10 when there is omission to implead a person who ought to have been impleaded as to say and hold otherwise will be really contradiction in terms. Order 1, Rule 10 will not apply to cases of either non-joinder or misjoinder of parties/in view of Section 86(1) and 86(4) as the provisions of the Representation of the People Act, namely Sections 81, 82 and 86 clearly reveals that firstly at initial stage the law makes it very clear that a candidate or an elector in the concerned election can only file an election petition. Secondly it specifically provides who are the persons who can be only impleaded as the respondents vide Section 82. Then Section 86(4) provides who can be impleaded at a later stage under Section 86(4). But in all cases about whose impleadment as respondent, the Act provides and it requires that he has to be a candidate as use of expression in Sections 82 and 86(4) indicate. The Legislature appears to have used this expression with utmost clarity beyond doubt to indicate that only candidates in an election may be impleaded as to respondents or the petitioner and none else. I so opine because it cannot be said that under Section 81 any person other than the elector or the candidate in the said election can file an election petition though no doubt, Section 81 does not use the expression "candidate or elector only and no other", but because of the doctrine of necessary implication, that when law confers a power and specifies the person who may exercise that power or right and against whom it may be exercised and before whom the petition should be filed, when all these are specified, then it has to be held that no person other than those mentioned can exercise that right or the power and the said power cannot be exercised in any other mode. So, the doctrine of necessary implication will also operate in the case of interpretation of Section 82 of the Representation of the People Act and by necessary implication it will mean and follow that no person, other than a candidate as per Sections 82 (a) and (b) and 86(4), can be impleaded as a respondent in the election petition. When the mandate of law is like this or when the provisions of the Act are like this, it cannot be said to be an act of addition of any expression in or of omission of any expression in the provisions of Section 82 of the Act. There is no question of addition of any expression. It is nothing but what follows as a necessary implication from the provisions. No doubt there are certain cases where defects may be curable by having recourse to the Code of Civil Procedure. But in situations such as the present one where Section 86(1) mandates the High Courts to dismiss the petition which does not comply with the provisions of Section 81, 82 or 117, the High Court shall and shall have to dismiss the petition. It obliges the High Court to dismiss the petition in such cases and there is no other recourse available to the High Court in such cases. When I so observe, I further find support from the Full Bench decision of the Punjab and Haryana High Court, as regards interpretation of Sections 82 and 86, in the case of S. Iqbal Singh v S. Gurdas Singh Badal and Others. In this case, Hon'ble Mr. Justice D.K. Mahajan, as he then was, observed as under: (para 9) "9. Section 82 is in the Chapter dealing with presentation of election petitions and indicates the parties to such a petition. But this section has to be read with Section 81 for it cannot be envisaged that the petitioner is not a party to an election petition. In fact, Section 82 merely tells us the respondents to the petition. It is not so worded as to permit any other parties being added as respondents, besides those mentioned therein. If there could be other parties to the petition that those mentioned in the Section, it would have been worded as: 'A petitioner may join as respondent to his petition all persons interested in the decision of the petition'; or 'A petitioner shall join respondents to the petition those mentioned in Section 82 and any other persons interested in the decision of the election petition'. If the intention was not to make Section 82 exhaustive, its non-compliance would not have resulted in the dismissal of the petition. The legislature was well 'aware' of Section 99 which much of the argument has been founded for the inclusion of proper parties. Can it be said that any person besides those mentioned in Section 81 can present an election petition? If the Code of Civil Procedure is to control Section 81, then any person interested in an election dispute can come and present an election petition but Section 81 restricts the right to present an election petition to any candidate at such election or any elector, and the explanation restricts the meaning of the word 'elector' to one who is entitled to vote in the constituency with regard to which the election dispute has arisen. It is significant that an elector who is not an elector in the constituency can come and contest the election in the constituency, but such an elector is not given the right to present an election petition in the constituency in which he is not recorded as an elector. But, if he is a candidate in that constituency, by virtue of his being a candidate, he has a right to present the election petition. It appears to me that Sections 81 and 82 read together, tell us the parties to an election petition and wherever the legislature though fit to make a departure it specifically provided for it in clear terms".
(emphasis supplied) In paragraph 11, Hon'ble Mr. Justice D.K. Mahajan further observes:
"11. The scheme of the Act is that only those persons can be parties who are expressly mentioned in the Act".
In paragraph 14, Hon'ble Mr. Justice D.K. Mahajan further observes:
"14. The proper way to ascertain the true import of Section 82 is to read this Section not in an isolated manner but in the entire set up of the election trial and if this is done, it will appear that whenever the framers of the Act thought fit to permit an addition of a party or to admit substitution of a party, they specifically provided for it. I have no hesitation in holding that the entire field as to parties is an occupied field so far as election petition is concerned and it is not open to the Court to resort to Section 87(1) and under its cover hold that anyone besides those mentioned in Sections 86(4), 110, 112 and 116 can be impleaded as parties to the petition. In fact, the notion of 'necessary and proper parties' is not germane to the election dispute. The dispute is between the petitioner on one hand and the respondents on the other. The mere fact that this dispute visits someone who is not a party to the petition with the consequences mentioned in Section 99, does not necessarily make him a party to the petition. If the intention of the legislature was that such a person should be party to the petition, nothing could have prevented the legislature from framing Section 82 in that manner. In terms of Section 87, the provisions of the Code of Civil Procedure are excluded on matters for which provision has been made in the Act itself. So far as the array of the parties is concerned, a specific provision has been made and, therefore, it is idle to suggest that anyone other than those who have been mentioned in the Act can be parties in an election petition".
(emphasis supplied) Hon'ble Mr. Justice R.S. Manila, as he then was, in the same case observes in paragraph 98 of the judgment as under:
"The above quoted observations of the Supreme Court which were made in connection with a case arising under the amended Act, leave in my opinion, no doubt about the proposition that the only persons who can be impleaded as respondents to an election petition are either those mentioned in Section 82 or those referred to in sub-section (4) of Section 86, except of course in the case covered by Section 116".
In paragraphs 105 and 106, Hon'ble Mr. Justice R.S. Narula further observes:
"Secondly, I am of the opinion that strictly speaking, no reference can be made to Order 1, Rule 10(2) of the Code for deciding as to who is a proper party to be impleaded as a respondent to an election petition. The opening words in Section 87 of the Act prohibit the invoking of Order 1, Rule 10(2} of the Code for adding a respondent not provided for in the Act. No other law can be looked into for deviating from the course provided in the Act. Authority for this proposition is found in the judgment of the Supreme Court in K. Venkateswara Rao's case, supra. The observations of the Supreme Court in its earlier judgment in Amin Lal's case, supra, must, in ray opinion, be confined to the facts and circumstances of that case, and have to be read subject to the subsequent pronouncement of their Lordships in K. Venkateswara Rao's case, supra.
106. Thirdly, it appears to me that there is an implied bar in the Act to the impleading of persons not mentioned in the Act as respondents, this bar has been created by making a specific provision about the persons who can be impleaded as respondents. The question as to whether the subject of parties to an election petition has or has not been dealt with by the Act was also referred to by the Supreme Court in Amin Lal v Hunna Mal. It was observed (at page 402) in connection with the power of the Tribunal to permit an election petitioner to remedy the defect caused by the non-impleading of a necessary-party or the non-presentation of the petition in the manner prescribed by Section 81 that the Tribunal had not enabled 'the appellant to remove a defect pertaining to the presentation of a petition or joinder of parties (which are matters dealt with by Sections 81 and 82)'. It is clear from the above quoted observations that -their Lordships of the Supreme Court were expressly of the opinion that matter of joinder of parties has been specifically covered by the Act. Whenever such a special provision is made in a statute, which is self-contained Code, the general provision on that subject contained in the general law stands ousted by implication. The judgment of the Supreme Court of Alabama in Hutto et al v Walker Country, is also an authority for the proposition that where an election statute makes adequate provision for parties to that extent at least the procedure provided by the Code is rendered inapplicable".
In paragraph 115, Hon'ble Mr. Justice R.S. Narula observes:
'The policy of the Legislature appears to be that persons other than candidates against whom corrupt practices are alleged should not be dragged into election contests till the last stage when on evidence adduced before an election Court a prima facie case is made out against them. This is the object of Section 99. The scheme of the Act is that Section 82(b) which makes it obligatory on the part of an election-petitioner to implead a candidate who is alleged to have committed a corrupt practice does not extend its scope to any one who is not a candidate. Even if it may be said that Section 82 relates only to necessary parties, it cannot be said about sub-section (4) of Section 86. That provision deals with proper parties. It is significant that even that section is restricted to candidates. If the Parliament had to permit non-candidates (against whom corrupt practices were alleged) to be impleaded as respondents the word "person" would have been used in place of the word "candidate" in sub-section (4) of Section 86".
25. The trend of the Supreme Court decisions indicates that no person other than the candidate can be impleaded in an election petition. It is only the candidates or the candidate who can be impleaded as respondents or respondent as per Sections 82 and 86(4) of the Act. The impleadment of a person other than the person who is ordained and permitted to he impleaded or added, in my opinion, amounts to an act in breach of the mandate of Section 82 which directs that petitioner shall implead the candidates referred therein as the parties as per the cases covered by clauses (a) and (b) of Section 82. The impleadment of the Election Commissioner or impleadment of the Returning Officer or of District Election Officer as a party to the election petition runs counter to the scheme of the provisions of the Act and impleadment of such persons can be said to be an act not in accordance with the provisions of Section 82, instead it may be said to be in breach of the provisions of Section 82 which mandates as to who is to be impleaded and which means, by necessary implication, who other person can be impleaded as a respondent in the election petition as laid down by the Supreme Court in the case of Jyoti Basu, supra and in other cases as quoted above. When there is a breach of or violation of Section 82, then it means that there is no option to the High Court either to allow the deletion or striking out the name of the party or impleadment of a party which ought to have been impleaded, but not have been impleaded. In other words, whether it is a case of non-joinder of necessary party or of mis-joinder of a party which ought not to have been impleaded as respondent, recourse cannot be had either to Order 1, Rule 9 or Order 1, Rule 10 of the CPC or to inherent powers, because election law and law relating to election dispute is codified one and it is a special Code in itself and when a special Code mandates, as per Section 86(1), and directs the High Court to dismiss such a petition, the petition has to be dismissed under Section 86(1) of the Representation of the People Act for having been filed in breach or in violation of the mandate of Section 82 and the petition being not in accordance with the requirements of Section 80 read with Section 82, it has to be dismissed and it is hereby dismissed with proportionate legal costs payable by the petitioner to respondent 1.