Bombay High Court
Shivaji Laxman Sahane vs Election Commissioner & Ors on 26 July, 2013
Equivalent citations: AIR 2013 BOMBAY 168, 2013 (5) ABR 677, 2013 (5) ABR 826, (2014) 3 BOM CR 228, (2014) 1 BANKCAS 444, (2013) 5 MAH LJ 422, (2013) 3 CPR 662, (2014) 2 ALLMR 113 (BOM)
Author: Anoop V. Mohta
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ELECTION PETITION NO. 1 OF 2012
Shivaji Laxman Sahane ....Petitioner
Vs.
Election Commissioner & Ors. ....Respondents.
WITH
APPLICATION NO. 7 2012
igIN
ELECTION PETITION NO. 1 OF 2012
Election Commissioner,
Election Commission of India & Ors. ...Applicants.
Vs.
Shivaji Laxman Sahane & Ors. ...Respondents.
Mr. Mahesh Jethmalani, Senior Advocate with Mr. Pravin B. Gole with
Ms. Chaitra Pawar with Mr. S.S. Deshmukh for the Petitioner in
Election Petition No. 1 of 2012 and for Respondent No.1 in
Application No. 7 of 2012.
Mr. S.G. Aney, Senior Advocate with Mr. Vijay Nair i/by Mr. Prashant P.
Kulkarni for Respondent No.6 in Election Petition No. 1 of 2012 and
for Respondent No.2 in Application No. 7 of 2012.
Mr. Pradeep Rajgopal i/by Ms. Rekha Rajgopal for Applicant Nos. 1 to
5 in Application No. 7 of 2012.
CORAM: ANOOP V. MOHTA, J.
DATE : 26 JULY 2013
P.C.:-
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Heard on the following preliminary objection.
"(1) Whether the Election Petition is liable to be dismissed
for non compliance of provisions of Sections 82 and 86 of
the Representation of the people Act, 1951."
2 The Petitioner has invoked the provisions of
Representation of People Act, 1951 (for short "the Act"), basically
against Respondent No.6, the Returning Candidate, to the Legislative
Council of Maharashtra State in the Nashik Local Authorities
Constituency in the Biennial Election for the year 2012. Apart from
prayer to quash and set aside the Election, also prayed for declaration
that the Petitioner be declared as elected candidate. There are other
various connected and related prayers made including for interim
reliefs, by filing the Election Petition on 19 June 2012.
3 On 23 July 2012, the Court while admitting the matter,
issued notice of final disposal and made returnable on 3 September
2012. On 31 August 2012, Application No. 5 of 2012 was filed by
Respondent No.6 (Jaywantrao) and prayed for dismissal of the
Election Petition under Section 82 and 86 of the Act for non
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compliance.
Another Application No. 6 of 2012 filed on 17 September
2012 by the Petitioner (Shivaji Laxman Sahane) and prayed for
amendment to the Election Petition to the extent of correcting the
typographical error. This Court, after hearing both the parties, and
considering the provisions of the Act, dismissed Application No. 5 of
2012 filed by Respondent No.6 and allowed Application No. 6 of 2012
to carry out amendment by order dated 30 November 2012. The
Respondent's Special Leave Petition against this order was dismissed
by the Supreme Court on 8 January 2013.
4 Application No. 7 of 2012 filed on 16 October 2012 on
behalf of original Respondent Nos. 1 to 5 and prayed as under:-
(a) That this Hon'ble Court be pleased to declare that
Election Commission of India, Applicant No.1, the Chief
Electoral Officer, Applicant No.2, the Returning Officer,
Applicant No.3, Mr. P. Velarasu, IAS, who acted as
Returning Officer, Applicant No.4 and the Assistant
Returning Officer, Applicant No.5 herein, cannot be
made parties to the Election Petition.
(b) That this Hon'ble court be pleased to delete the names
of Election Commission of India, Applicant No.1, the
Chief Electoral Officer, Applicant No.2, the Returning
Officer, Applicant No.3, Mr. P. Velarasu, IAS, who acted
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as Returning Officer, Applicant No.4 and the Assistant
Returning Officer, Applicant No.5 herein, from the
Election Petition No. 1 of 2012."
Though by affidavit-in-reply, the Petitioner has opposed the
Application initially but ultimately conceded the position and
submitted to the said Application and also prayed to delete those
Respondents.
5
On 14 December 2012, issued summons to the
Respondents pursuant to Rules 9 and 10 (Appendix-II) (Election
Petition) of the Bombay High Court (Original Side) Rules, returnable
on 1 February 2013. On 1 February 2013, Respondent No. 6 sought
time to file written statement. The time was accordingly granted. The
time was also sought to file reply to Application No. 7 of 2012. As
written statements were filed, the matter was listed for framing issues
and accordingly, issues were framed including the above issue, on 21
June 2013.
6 The learned Senior Counsel appearing for Respondent No.
6 read and referred paragraph Nos. 1 and XVII, XVIII, XIX and 26 of
the Election Petition, wherein averments/reasons are made for joining
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Respondent Nos. 1 to 5, and by referring to the provisions of the Act,
submitted to dismiss the Election Petition at this stage itself.
7 Sections 82, 86 of the Act read as under:-
"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."
"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 section
82 or section 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.
8 The reliance has been placed on various
judgments/authorities to explain the scheme, purpose and object of
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the provisions of the Act and its mandate. Those are as under:-
(A) T.A. Ahammed Kabeer Vs.A.A. Azeez & Ors.1-
Scope of enquiry under Section 100 (1)
(a) Finding out any votes improperly cast in
favour of returned candidates.
(b) Any votes improperly refused or rejected in
regard to returned candidate.
(B) Patangrao Kadam Vs. Prithviraaj Sayajirao Yadav
Deshmukh2-
Person after withdrawal is still candidate
ought to be impleaded..... Not joining
candidate petition liable to be dismissed.
(C) Comrade Kallappa Laxman Malabade Vs. Prakash
Kallappa Awade3-
Section 82 and Section 85 Court bound to
dismis Petition for non-joinder of parties.
(D) Mohan Raj Vs. Surendra Kumar Taparia4-
Court bound to dismiss petition under Section
86(1) whenever brought to notice non-
compliance of Sections 81, 82 or 117.
(E) Michael B. Fernandes Vs. C.K. Jaffar Sharief & Ors.5-
1 AIR 2003 SC 2271
2 AIR 2001 SC 1121
3 AIR 1996 Bom. 5
4 AIR 1968 Raj. 28
5 AIR 2002 SC 1041
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If persons other than permitted joined then
that would be a unending disorderly election
dispute.
(F) B. Sundra Rami Reddy Vs. Election Commission of
India & Ors.6-
Election Commissioner not to be joinded as
party Section-82 governs.
(G) K. Kamaraja Nadar Vs. Kunju Thevar & Ors.7-
All contesting candidates to be joined.
(H) Inamati Mallappa Basappa vs. Desai Basavraj
Ayyappa8-
Election contest is properly a statutory
proceeding.
(I) Jaganath Rahane Vs. Manisha Nimkar9-
Preliminary issue of maintainability can be
considered at any stage.
9 The learned senior counsel appearing for the Petitioner
has opposed the preliminary objections so raised but conceded that
Respondent Nos. 1 to 5 be deleted as they are not seeking specific
reliefs against them. The adverse averments even if made against
Respondent No.4 in his individual capacity, and the averments against
6 1991 Supp. (2) SCC 624
7 AIR 1958 SC 687
8 AIR 1958 SC 698
9 1996(5) Bom. C.R. 451
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other Respondent Nos. 1 to 5, they are not pressing it. It is also made
clear that, if necessary, the concerned officers/ officials, will be called
as witnesses. The learned senior counsel appearing for the Petitioner
also opposed that joining of such excess and/or additional parties
other than "contesting candidates", itself is sufficient to dismiss the
Election Petition.
10 The reliance has been placed on Murarka Radhey Shyam
Ram Kumar Vs. Roop singh Rathore and Ors.
10
(Constitutional
Bench Judgment) (5 Judges) and also on B.S. Yadiyurappa Vs.
Mahalingappa and Ors. ,
11
whereby it is declared after taking note of
Sections 82 and 86 of the Act that the person who was not "contesting
candidate" and/or "other than contesting candidate" though
impleaded to the Election Petition, does not amount to breach of
provisions of the Act. The Petition cannot be dismissed on that
ground. The Petitioner can amend the Petition by striking them out
from the array. The declaration is clear that unnecessary party even
if joined, there is no non-compliance of Section 82 of the Act.
10 AIR 1964 SC 1545
11 AIR 2001 SC 4041
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11 The relevant observations in Murarka (Supra) are as
under:-
"All the parties whom it was necessary to join under the
provisions of S.82 were joined as respondents to the
petition; but Ballu or Balji was joined in excess of the
requirements of S. 82. The question before us is, does
this amount to non-compliance with, or contravention of,
the provisions of S.82? Learned counsel for the appellant
wishes us to read S. 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 S. 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 S. 82 and no
question of dismissing the petition under sub-s. (3) of S.
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 S. 82 of the Act. The position will
be different if a person who is required to be joined as a
necessary party under S. 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."
12 In B.S. Yadiyurappa (Supra), it is observed that:-
"3. 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 who was not a necessary party had also been
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impleaded did not amount to a breach of provisions of
Section 82 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."
"6. In Mohan Raj v. Surendra Kumar Taparia )(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 reasons of the
provisions of the said Act, the power of impleadment
cannot be used if a necessary party has not been joined."
"8. It is, therefore, clear, on the authorities of this
Court, that those who are mentioned in Section 82 of the
said Act must be made parties to an election 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 term of
Section 86(1). It does not, however, follow that if to an
election petition parties other than those who are
necessary parties under Section 82 have been impleaded,
the election partition 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.
13 The Constitutional Bench Judgment Murarka (Supra)
binds all- which is further followed in B.S. Yadiyurappa (Supra) also.
The conclusions as crystalized in these Judgments, in my view,
clinches and concludes the issue in favour of deleting the names of
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Respondent Nos. 1 to 5 from the array of the parties by allowing the
Application filed by Respondent Nos. 1 to 5 themselves. There is no
reason to postpone the hearing on the said Application and as there is
specific submission made, as recorded, by the learned Senior Counsel
appearing for the Petitioner, on instructions, that they are not pressing
any relief against Respondent Nos. 1 to 5. Their names required to be
deleted. Respondent No. 6, "the contesting candidate"/"the returning
candidate", being the necessary party is the mandate. The facts and
circumstances so cited by the learned senior counsel appearing for
Respondent No.6 are different and distinguishable. The cases so cited
in fact, support the proposition to proceed with the Election Petition
as necessary party is already on record. The objection is too technical.
Respondent Nos. 1 to 5, themselves also want this Court to delete
their names. Respondent No. 6 can not object to it. The presence of
"returning candidate" is only requirement for effective and complete
adjudication upon and to settle all points involved in the Election
Petition. All others are not necessary party. The Court even
otherwise, can delete such unnecessary parties to expedite the matter.
In Murarka Radhey Shyam Ram Kumar (Supra) as Application for
deleting the extra/excess Respondent from the array of parties, was
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allowed and therefore, the challenge was raised, but rejected in the
Appeal before the Supreme Court. The observations with regard to
the provisions of the Act need no further discussion.
14 Even otherwise, considering the clear observations made
in Murarka (Supra) and followed further in B.S. Yadiyurappa
(Supra) and as in Michael B. Fernandes (Supra) , the Constitutional
Bench Judgment Murarka (Supra) was nor referred and as in the
present case Respondent Nos. 1 to 5 themselves prayed for deletion of
their names and considering the scope and purpose as well as
mandate of the provisions, they are not necessary parties and as
Respondent No.6, a necessary party, as contemplated under the Act is
made party and considering the fact that the Petitioner is not pressing
and or seeking any relief against those Respondents and reserve the
right to call the officers/officials if necessary as witnesses, to support
their case, I am also of the view that no case is made out by
Respondent No. 6 to dismiss the Election Petition as objected for
joining of excess/unnecessary party other than "the returning
candidate" and/or "contesting candidate".
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15 The issue of joining excess and/or unnecessary party, is
nowhere dealt with and/or referred in any of the provisions of the Act.
Once the mandate is complied with by joining the necessary party, the
objection that additional and excess party would in breach of the
mandate of any of the provisions so referred, is unacceptable. Such
objection is not sufficient to dismiss the Election Petition at this stage
itself. The defects, even if any, in my view is curable.
16 All the judgments cited by the learned Senior counsel
appearing for the parties shows that the Supreme Court in all such
matters either maintain the order of deletion of such excess party
and/or permit the Petitioner to delete other parties. In view of above
reasons, I am inclined to accept the submission made by the learned
Senior counsel appearing for the Petitioner to reject the objection so
raised. The preliminary objections so raised, in view of above, are
therefore, rejected, as there is no non-compliance of the provisions of
Sections 82 and 86 of the Act.
17 Resultantly, the following order:-
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ORDER
a) Application No. 7 of 2012 filed in Election Petition No. 1 of 2012 is allowed.
b) The Petitioner to carry out the amendment within one week.
c) The preliminary objection is rejected.
d) The issue is answered in negative.
e) There shall be no order as to costs.
f) Election Petition be placed on board on 16 August 2013, for further hearing.
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