Himachal Pradesh High Court
Ram Lal vs . Randhir Sharma & Ors. on 20 March, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
Ram Lal vs. Randhir Sharma & Ors.
Election Petition No.1 of 2022 .
20.03.2024 Present: Mr. Peeyush Verma, Advocate, for the petitioner.
Mr. A.K. Bansal, Advocate, for respondent No.1.
Respondents No.2 to 4 ex parte.
Mr. Pushpinder Jaswal, Additional Advocate General, for applicant/respondent for No.5, in EMP No.4 of 2023.
Mr. Ankush Dass Sood, Senior Advocate, with Mr. Arjun Lall, Advocate, for applicant/respondents No.5 and 7, in EMP No.7 of 2023.
CMP No. 7 of 2023 By way of this application filed on behalf of respondents No.5 to 7, a prayer has been made to strike off the name of the said respondents from the array of respondents in the Election Petition on the ground that in the light of the statutory provisions of the Representation of the People Act, 1951 (hereinafter referred to as 'the 1951 Act'), more so, Sections 80 and 86(4) thereof, the said respondents cannot be impleaded as party respondents.
Learned Senior Counsel for the applicants has argued that the Election Petition has been filed by impleading seven respondents. Four of them were the candidates in the process of the Election, however, respondents No.5 to 7 were ::: Downloaded on - 05/04/2024 20:36:46 :::CIS not the candidates and, therefore, they could not have been .
impleaded as respondents in the Election Petition.
By referring to Section 82 of the 1951 Act, learned Senior Counsel has submitted that in terms thereof, there is no mention in the said Section that anyone else other than "candidates" can be impleaded as party respondents for any reason whatsoever or on account of any allegations whatsoever in an election petition by the petitioner.
Learned Senior Counsel has also referred to the provisions of Section 86 of the Act and submitted that in terms thereof, the High Court is bound to dismiss an Election Petition which does not complies with the provisions of Sections 81 or 82 of the 1951 Act or Section 117 thereof, as the word used in sub Section (1) is "shall" and in terms of this Section also, it is only a "candidate", who can join as a respondent, on his application, provided, it is filed within the statutory period envisaged therein.
Learned Senior Counsel has also relied upon the judgment of the Hon'ble Coordinate Bench of this Court in EMP No.7 of 2018 in Election Petition No.1 of 2018, titled as Ramesh Chand versus Mahender Singh and others and submitted that, in fact, this issue is no more res-integra and accordingly, a prayer has been made that the application be ::: Downloaded on - 05/04/2024 20:36:46 :::CIS allowed and the names of respondents No.5 to 7 be deleted .
from the array of the respondents.
Learned counsel for the non-applicant/election petitioner has submitted that the reason as to why respondents No.5 to 7 have been impleaded as respondents is that there are allegations levelled against them and, therefore, they are necessary parties.
rWhile referring to the judgment of the Hon'ble Coordinate Bench of this Court being relied upon by learned Senior Counsel for the applicants, he has submitted that a perusal thereof would demonstrate that there is no bar for impleadment of anyone as a party, if he or she happens to be a necessary or proper party. Accordingly, he has submitted that as there is no merit in the present application, the same be dismissed.
I have heard learned Senior Counsel for the applicants as also learned counsel for the non-
applicant/election petitioner and Mr. A.K. Bansal, learned counsel representing respondent No.1.
In the Election Petition, the election petitioner has indeed impleaded seven respondents. Respondents No.1 to 4 happen to be the candidates, who contested the Assembly election for Assembly Constituency No.49, Shri Naina Devi Ji ::: Downloaded on - 05/04/2024 20:36:46 :::CIS alongwith the petitioner. Respondent No.1 happens to be the .
returned candidate.
Returning Officer/SDM Swarghat of the Assembly Constituency No.49 has been impleaded as respondent No.5, the Election Commission of India has been impleaded as respondent No.6 and the General Observer appointed by the Election Commission of India, namely, Sh. Ajay Gupta, has been impleaded as respondent No.7.
Part-6 of the Representation of the People Act, 1951 deals with disputes regarding elections. Section 79(b) thereof defines a "candidate" and the same reads as under:-
"79....(b) "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election."
Section 81 of the 1951 Act, deals with the presentation of petitions and the same reads as under:-
"81. Presentation of petitions(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of Section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates]."
Explanation-In this sub-Section "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.
2(3) Every election petition shall be accompanied by as many copies thereof as ::: Downloaded on - 05/04/2024 20:36:46 :::CIS there are respondents mentioned in the petition 3 [***], and every such copy shall be attested by .
the petitioner under his own signature to be a true copy of the petition.]"
Section 82 of the 1951 Act refers to the parties to the petition and the same reads as under:-
"82. Parties to 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.]"
Similarly, Section 83 of the 1951 Act deals with the contents of the petition, which reads as under:-
83. Contents of petition.- (1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908(5 of 1908) for the verification of pleadings;2
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] ::: Downloaded on - 05/04/2024 20:36:46 :::CIS (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in .
the same manner as the petition.] Section 86 of the 1951 Act, which is part of Chapter-3 thereof, deals with the trial of Election Petition, which reads as under:-
86. Trial of election petitions.- 1[(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.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (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.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the ::: Downloaded on - 05/04/2024 20:36:46 :::CIS petition to be amended or amplified in such manner as may in its opinion be necessary for .
ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
The fact of the matter thus remains that the statutory provisions which deal with "parties to the petition", only contemplate a "candidate" to be impleaded as respondents. The word, "candidate" has already been defined in Section 79(b) of the 1951 Act and it means, a person who has been or claims to have been duly nominated as a candidate at any election.
A glance at Section 83 of the 1951 Act, which deals with the contents of petition, demonstrates that the same inter alia provides that in the contents of petition if allegation of corrupt practice is there, then, full statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of ::: Downloaded on - 05/04/2024 20:36:46 :::CIS commission of each such practice has to be mentioned .
therein, but, there is no contemplation that such party is to be impleaded as a respondent.
Now in this background, when one peruses Sub-
section (1) of Section 86 of the 1951 Act, the same provides that the High Court shall "dismiss" an election petition which does not comply with the provisions of Sections 81 or Section 82 or Section 117. Sub-section (4) thereof envisages that any candidate not already a respondent shall, upon application made by him to the High Court within 14 days from the date of commencement of the trial and subject to any order as to security for cost which may be made by the High Court, be entitled to be joined as a respondent. Incidentally, Sub-
section (4) of Section 86 only confers a right upon a candidate who has been left out to move an application for his impleadment, but no right stands conferred upon the election petitioner to move a subsequent application for impleadement of a left out "candidate".
Be that as it may, fact of the matter remains that in terms of the provisions of the Act referred to hereinabove, no other conclusion except this, that it is only a "candidate" who can be impleaded as a party respondent can be drawn. That being so, as respondents No.5 to 7, admittedly are not the "candidates" as defined in Section 79(b) of the ::: Downloaded on - 05/04/2024 20:36:46 :::CIS Representation of the People Act, 1951, they could not have .
been impleaded as respondents in the Election Petition.
Hon'ble Coordinate Bench of this Court in EMP No.7 of 2018 in Election Petition No.1 of 2018 while deciding a similar issue, wherein also, an application for deletion was moved by a party who was impleaded as a respondent, but was not a "candidate" within the meaning of Section 79(b) thereof, allowed the said application by holding that Section 82 did not contemplate the impleadment of said person as respondent to the Election Petition.
Accordingly, in view of the findings returned hereinabove, this application is allowed and the names of respondents No.5 to 7 are ordered to be deleted from the array of respondents on the ground that they could not have been impleaded as party respondents, as they were not the candidates within the meaning of Section 79(b) of the Act.
At this stage, Mr. Anushal Bansal, learned counsel appearing for respondent No.1 submits that the order passed in this application should not be construed as it has rendered an application filed by respondent No.1 i.e. EMP No.6 of 2023 as infructuous wherein an objection has been raised with regard to maintainability of the Election Petition. It is observed that the findings returned in this application are only for the purpose of the adjudication of this EMP and the application ::: Downloaded on - 05/04/2024 20:36:46 :::CIS filed by respondent No.1 shall be adjudicated upon on its own .
merit.
EMP No.4 of 2023In view of the order passed in EMP No.7 of 2023, this application is disposed of by ordering that the reply filed on behalf of applicant/respondent No.5 in EMP No.4 of 2023 be taken off the record.
El. Petition No.1 of 2022As prayed for, list after four weeks.
(Ajay Mohan Goel) Judge March 20, 2024 (Vinod) ::: Downloaded on - 05/04/2024 20:36:46 :::CIS