Patna High Court
Md. Zakir Hussain vs Hareshwar Prasad Singh And Ors. on 5 November, 2001
Equivalent citations: 2002(1)BLJR102
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT R.S. Garg, J.
1. Heard the parties.
2. In an election petition filed under Section 140 of the Bihar Panchayat Raj Act, 1993 (hereinafter to be referred to as 'the Act') respondent No. 5/election petitioner joined certain persons as party, inter alia, pleading that as the respondent Nos. 6 to 15 had also contested the Election, they were necessary party. Subsequent to clause of the evidence of the parties the election petitioner filed an application for deletion of respondent Nos. 6 to 15 from array of defendants. The said application was allowed by the learned Munsif acting as Election Tribunal. Being aggrieved by the said order the present petitioner (returned, candidate) has come to this Court under Article 227 of the Constitution of India challenging the correctness, validity and propriety of the said order.
3. At the very outset, learned Counsel for the respondent No. 5 submits that the plaintiff being Dominus-litis cannot be asked to joint parties and if he had joined certain parties and at this stage he wants to delete certain persons from array of defendants, he cannot be compelled to continue with the said parties. He further submits that in accordance with the Rule 111 of Bihar Panchayat Nirwachan Rules, 1995 (hereinafter to be referred to as 'the Rules') the competent Court hearing election petition would be governed by the procedure under Civil Procedure Code, the writ petition is not maintainable and the only remedy available to the petitioner is to file civil revision under Section 115 of the Code of Civil Procedure.
4. Learned Counsel for the petitioner submits that in view of the relief claimed by the election petitioner in the said election petition respondent Nos. 6 to 15 were necessary parties and absence of those persons, a proper adjudication cannot be arrived at. Therefore, the order passed by the Munsif is bad is in law, Regarding the maintainability of the writ petition, he submits that only the procedure as provided in the Civil Procedure Code for trial of the suit is applicable therefore, civil revision to challenge the order passed by the Munsif shall not be maintainable. He submits that the election petitioner cannot be allowed to delted respondent Nos. 6 to 15.
5. I have heard the parties at length. Section 140 of the Act provides that the election to the office of Panchayat or a Gram Cutchery shall not be called in question except by election petition as prescribed. The proviso to Section 140 of the Act is not material at this stage, therefore, the same is not being referred to. From the very perusal of Section 140 of the Act, it would clearly appear that the election to any office shall be called in question by an election petitioner. An election petition is not a substitute of a title or a civil suit but it maintains its character of an election petition as provided under Section 140 or the Act. Rule 108 read with Rule 111 of Rules provide that an election petition is to be filed within 30 days from the date of declaration of the results and such a petition is to be tried in accordance with the procedure prescribed under the Code of Civil Procedure.
6. When certain procedure prescribed under the Code of Civil Procedure is applied to trial of an election petition, such trial does not become a Title Suit nor is subject to an appeal or revision. An election petition continues to be an election petition and the Munsif, in fact, acts as Election Tribunal though he is otherwise a Civil Court under the Civil Courts Act. Application of procedure as provided in the Civil Procedure Code would not make such an election petition a Title Suit and the final order to be passed by the Election Tribunal/Munsif shall not become a decree or an order which is subject to revision or appeal.
7. Section 115 of the Civil Procedure Code provides that when a Civil Court passed an order deciding an issue or when there is a 'case decided' then the High Court exercising its revisional jurisdiction may look into the correctness, validity and propriety of the order and at the same time look into the question of jurisdiction, i.e., whether the Court had jurisdiction to pass the order or it has failed to exercise the jurisdiction vested in it by law.
8. In an election petition, the provision of Section 115 of the C.P.C. would not apply for the simple reason because the Munsif does not act as Civil Court, but, in fact, as Election Tribunal. An Election Tribunal is altogether different entity than a Civil Court. A Civil Court while discharging the function delivers Judgments which are subject to appeal as provided in the Code of Civil Procedure or as provided in the statute governing the rights of the parties but in an election petition the Tribunal delivers a final order which is final subject to appeal, etc. as provided under the statute. In any case an order passed by an Election Tribunal cannot be equated with an order passed by Civil Court making it subject to appeal or Revision under C.P.C. The Election Tribunal cannot be equated with Civil Court.
9. It is further to be seen from Rule 108 onwards that such an election petition can be heard by a Court or by a competent authority. If the intention of the Legislature was to make the Election Tribunal a Civil Court and an election petition was to be deemed to be a Title Suit then instead of referring the words 'Election Petition', the Legislature in its wisdom could always say that the results of the election can be challenged in a duly-constituted suit.
10. The objection relation to the maintainability of this petition being misconceived, is rejected.
11. True it is that the general law says that the plaintiff is dominus-litis and is entitled to join the party of his own choice but this right of the plaintiff is not absolute. The opposite party in a civil suit can always raise an objection regarding mis-joinder or non-joinder of the party. The question relating to mis-joinder of the parties cannot be equated with non-joinder of the parties as the same does not affect the jurisdiction of the Court and the Court at the time of final disposal of the matter may not award any relief to the plaintiff against the persons unnecessarily joined. But in a case of non-joinder of a person required to be joined as a party, the Court would be left with no option but to dismiss the suit because no effective decree or order can be passed in such a matter.
12. In the present case, allegations of the election petitioner are that the results of the election were managed. Number of the votes which were undoubtedly case in favour of the election petitioner were not counted in this favour. It is trite law that in case of corrupt practices, and recounting of the votes, the persons who had contested the election are necessary parties.
13. True it is that according to the election petitioner, he is the nearest rival of the returned candidates but this submission is not sufficient for election of the parties who otherwise are necessary parties.
14. Once the plea of the election petitioner, that results of the election were adversely affected because of wrong counting or wrong rejection of the votes is accepted and the Court proposes to infringe the secrecy of the franchise, then, not only the votes cast in favour of the election petitioner are to be recounted but the votes cast in favour of the other candidates will also have to be seen. Today nobody knows about the final result of the election petition. In a case like present where the election petitioner has made allegation of corrupt practices and has also asked for recounting of the votes, in the opinion of this Court every person who contested the election would be necessary party.
15. The order passed by the Court below as far as it relates to the detection of respondent Nos. 6 to 15 is concerned deserves to and is accordingly quashed. The respondent Nos. 6 to 15 shall continue to be parties to the election petition.
16. The Election Tribunal shall proceed further in the matter in accordance with law and shall try to dispose of the election petition expeditiously.
17. The petition is allowed, but there shall be no order as to costs.