Himachal Pradesh High Court
Anil Dhiman vs . Suresh Kumar on 11 October, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
Anil Dhiman vs. Suresh Kumar .
Election Petition No.1 of 2023 11.10.2023 Present Mr. R.K.Sharma, Senior Advocate with Ms. Anita Kashyap, Advocate, for the petitioner.
Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rajesh Kumar, Advocate, for respondent No.1.
of Respondent Nos. 2 to 4 ex-parte.
Mr. Ankush Dass Sood, Senior Advocate with Mr. rt Arjun Lal, Advocate, for respondent No.5.
EMP No.14 of 2023 By way of instant application filed under Section 82 and 87 of the Representation of the People Act, 1951 read with Order 1 Rule 10(2) of CPC, prayer has been made on behalf of applicant/respondent No.5 for deletion of her name as she is not necessary party.
Though, reply to the application has been filed, but learned Senior counsel representing the non-applicant/ petitioner fairly states that prayer made on behalf of the applicant/respondent No.5 deserves to be allowed.
Having heard learned counsel for the parties and perused the material available on record, this Court finds that Co-ordinate Bench of this Court vide order dated 11.12.2018 in similar circumstances has categorically held that election commission of India and its Officer are not necessary party in an election petition, wherein it has been held as under:-
"The legal position is, therefore, well settled that election disputes are strictly statutory proceedings. The Representation of the People Act, 1951 is a complete Code and election disputes are ::: Downloaded on - 13/10/2023 20:34:45 :::CIS strictly statutory proceedings which are to be .
regulated by the Act. The persons who may be joined as respondents in an election petition are governed exclusively by Sections 82 and 86(4) of the Act, which are reproduced hereinbelow for ready reference:
"82. Parties to the petition. A petitioner of 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, rt claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
"86 (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 subsection 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."
The aforesaid provisions came up for consideration before the Hon'ble Supreme Court in Jyoti Basu case (supra), wherein it was held that no one may be joined as a party to an election petition otherwise than as provided under Sections 82 and 86(4) of the Act. It follows ::: Downloaded on - 13/10/2023 20:34:45 :::CIS that a person who is not a candidate may .
not be joined as a respondent to the election petition.
In B. Sundara Rami Reddy vs. Election Commission of India and others 1991 Supp of (2) SCC 624, the Hon'ble Supreme Court categorically held that Election Commission is not to be impleaded as a respondent in an election rt petition as it is neither a necessary nor a proper party. It is further held that it is Section 82 of the Act which governs such situation, whereas the CPC applies only to a limited extent i.e. subject to the provisions of the Representation of the People Act. It is yet further held that the concept of 'proper party' is and must remain alien to an election dispute under the Act and only those may be joined as respondents to an election petition, who were 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 parties.
Complete answer to both the questions i.e. who are necessary parties to an election petition and what is the effect of joining of a person(s) who are not necessary parties is to found in B.S. Yadiyurappa vs. Mahalingappa and others AIR 2001 SC 4041, wherein after placing reliance on the ::: Downloaded on - 13/10/2023 20:34:45 :::CIS judgments, as referred to above, it was observed .
by the Hon'ble Supreme Court as under:
"2. Respondent Nos. 4 and 5 moved an interim application in the election petition praying that their names be deleted from the array of parties thereto. An application to the same effect was made by the of first respondent; he also moved an application praying that the election petition be dismissed because of the impleadment of respondent nos. 4 and rt
5. By the judgment and order under challenge, a learned single Judge of the High Court allowed the latter application. He dismissed the election petition under the provisions of Section 86(1) of the Representation of the People Act, 1951 ("the said Act") because parties other than those mentioned in Section 82 of the said Act had been impleaded thereto.
3. The election petitioner is in appeal.
4. Our attention has been drawn to the judgment of this Court in Maraka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Ors., [1964] 3 SCR 573. A Constitution Bench considered the very situation with which we are now concerned. It noted that the foundation of the argument before it was that there had been noncompliance with the provisions of Section 82. What had happened there, as here, 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 other respondents, in excess of the requirements of Section 82, were also Joined. The question, therefore, was did this amount to non¬compliance with, or contravention of, the provisions of Section 82. Learned counsel for the appellant in that case wanted the Court to read ::: Downloaded on - 13/10/2023 20:34:45 :::CIS Section 82 as though it said that the persons .
named therein and no others should be joined as respondents to the petition. He wanted the Court to add "and no others" to the Section. The Court found no warrant for such a reading of Section 82. It held that if all the necessary parties had been joined to the election petition, the circumstance that a person of who was not a necessary party had also been impleaded did not amount to a breach of provisions of Section 82 rt and no question of dismissing the election petition arose. It was open to the Tribunal (or, here, the Court) to strike out the name of the party who was not a necessary party within the meaning of Section 82. The position, it was noted, would be different if a person who was required to be joined as a necessary party under Section 82 was not impleaded as a party to the petition.
5. This judgment in Maraka Radhey Shyam Ram Kumar was not noticed by the learned Single Judge in the judgment under challenge but was distinguished on the ground that it was confined to its own facts. We find it difficult to agree. This is not a judgment that is confined to its own facts but is an elucidation of the law set out in Section 82 of the said Act.
6. In Mohan Raj v. Surendra Kumar Taparia & Ors., [1969] 1 SCR 630 the same position was reiterated. It was held that in an election petition the court can strike out a party who is not necessary but, by reason of the provisions of the said Act, the power of impleadment, cannot be used if a necessary party has not been joined.
7. In Jyoti Basu & Ors. v. Debi Ghosal & Ors., [1982] 1 SCC 691, this Court dealt with Section 82 of the said Act, and it is this judgment which the ::: Downloaded on - 13/10/2023 20:34:45 :::CIS High Court principally relied upon. The ratio of this .
judgment, is that a person who is not a candidate cannot be joined as a respondent to an election petition. The High Court, however, failed to notice that, having so held, this Court ordered the deletion of the superfluous party from the array of parties.
8. It is, therefore, clear, on the authorities of this of Court, that those who are mentioned in Section 82 of the said Act must be made parties to an election rt petition and, if they are not, the election petition is one which does not comply with the provisions of Section 82 and must, therefore, be dismissed by reason of the terms of Section 86( 1). It does not, however, follow that if to an election patition parties other than those who are necessary parties under Section 82 have been impleaded, the election petition is one that does not comply with the provisions of Section 82 and must be dismissed. Such a petition can be amended by striking out from the array of parties those additionally impleaded."
Similar reiteration of law can be found in another Hon'ble three Judges Bench decision of the Hon'ble Supreme Court in Michael B. Fernandes vs. C.K. Jaffer Sharief and others (2002) 3 SCC 521, wherein it was observed as under:
"4. ....Mr. Venkataramani then relied upon the decision of Calcutta High Court in Dwijendra Lal Sen Gupta vs. Hare Krishna Konar, A.I.R. 1963 Calcutta 218, where the question came up for consideration directly and the Calcutta High Court did observe that the Returning Officer may nevertheless in an appropriate case be a "proper ::: Downloaded on - 13/10/2023 20:34:45 :::CIS party" who may be added as party to the election .
petition and undoubtedly, the aforesaid observation supports the contention of Mr. Venkararamani. Following the aforesaid decision, a learned Single Judge of the Bombay High Court in the case of H.R. Gokhale vs. Bharucha Noshir C. and Ors., A.I.R. 1969 Bombay 177, had also of observed that the observations of Shah, J in Ram Sewak Yadav's case, AIR 1964 SC 1249 in paragraph (6) is not intended to lay down that the rt Returning Officer can in no event be a proper party to an election petition. But both these aforesaid decisions of the Calcutta High Court and Bombay High Court had been considered by this Court in Jyoti Basu case and the Court took the view that the 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 persons other than those mentioned in Sections 82 and 86(4). The Court also in paragraph (12) considered the consequences if persons other than those mentioned in Section 82 are permitted to be added as parties and held that the necessary consequences would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Section 86(6) of the Act. In the aforesaid premises, we reiterate the views taken by this Court in Jyoti Basu's case and reaffirmed in the latter case in B. Sundara Rami Reddy and we see no infirmity with the impugned judgment, requiring our interference under Article 136 of the Constitution. This appeal accordingly fails and is dismissed."
Thus, what can be taken to be settled in view of the aforesaid exposition of law when read with Sections 82 and 86(4) of the Act is that the contest of the election ::: Downloaded on - 13/10/2023 20:34:45 :::CIS petition is designed to be confined to the candidates at .
the election and all others are excluded and, therefore, only those may be joined as respondents to an election petition, who are mentioned in Sections 82 and 86(4) and no others. The provisions of the Civil Procedure Code apply to election disputes only as far as may be and subject to the provisions of the Act and any rules made of thereunder and the provisions of the Code cannot be invoked to permit which is not permissible under the Act. It is in this context that the concept of 'proper parties' is rt and remains alien to an election dispute under the 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 Act 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. Therefore, the concept of joinder 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 view of the aforesaid law laid down by the Co-
ordinate Bench of this Court, which has been otherwise attained finality, prayer made in the instant petition deserves to be allowed.
Consequently, in view of the above, name of applicant/respondent No.5 is ordered to be deleted from the ::: Downloaded on - 13/10/2023 20:34:45 :::CIS array of the parties. Registry is directed to carry out necessary .
corrections in the memo of the parties on the basis of the amended memo to be filed by learned counsel for the petitioner within a period of one week. The application stands disposed of.
of Election Petition No.1 of 2023 Though, replication to the written statement filed on record.
rt by respondent No.1 is on record, but written statement is not Learned counsel representing respondent No.1 undertakes to remove the objection and re-file the same within a period of one week.
List on 6.11.2023 for framing of issues.
(Sandeep Sharma) Judge October 11, 2023 (Shankar) ::: Downloaded on - 13/10/2023 20:34:45 :::CIS