Calcutta High Court
Madhusudan Bag vs Aparupa Poddar (Afrin Ali) And Ors on 12 November, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
EP 1 of 2014
GA 2990 of 2014
IN THE HIGH COURT AT CALCUTTA
Election Petition Jurisdiction
ORIGINAL SIDE
IN THE MATTER OF: MADHUSUDAN BAG
Versus
APARUPA PODDAR (AFRIN ALI) AND ORS
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 12th November, 2014.
Mr.Kumar Jyoti Tewari, Adv.
Mr. Tarun Jyoti Tewari, Adv.
..for the petitioner.
Mr.R.Hossain, Adv.
..for the respondent no.5.
Mr.Dipayan Choudhury, Adv.
Mr.Soumya Bhattacharya, Adv.
..for the respondent no.6/ Election Commission The Court:- The respondent no.6 in an election petition has applied for deletion of its name on the ground that, it is neither a necessary nor a proper party.
The respondent no.6 is the Election Commission of India. Learned Counsel for the respondent no.6 relies upon section 82 of the Representation of People Act, 1951 and submits that, the respondent no.6 cannot be made a party to the proceedings.
2
It is submitted on behalf of the respondent no.1 that, in view of Sections 82, 86(1) and 98 of the Representation of People Act, 1951, the main Election Petition should be dismissed since two persons who cannot be made parties in view of Section 82 of the Act of 1951 has been made parties in the proceedings. It is submitted that, section 86 of the Act of 1951 mandates the High Court to dismiss an election petition which does not comply with the provisions of Section
82. Section 82 of the Act of 1951 specifies the persons who can be arranged as respondents in an election petition. The respondent no.1 has filed written statement and has taken the point of the election petition being not maintainable in view of breach of section 82 of the Act of 1951. In the event the respondent no.6 or the respondent no.5 are allowed to be deleted as party respondents, the point taken in the written statement by the respondent no.1 in this regard will no longer be available to the respondent no.1. Reliance is placed on section 98 of the Act of 1951 and it is submitted that, at the conclusion of the trial the High Court can make an order dismissing the election petition.
On behalf of the petitioner it is submitted that, arranging the respondent nos.5 and 6 to the election petition is not fatal to the election petition. Both of the respondent nos.5 and 6 can be deleted. In support of the contention that, array of the respondent nos.5 and 6 as respondents in the election petition is not fatal, reliance is placed on 2002 volume-1 Supreme Court cases page-301 (B.S. Yadiyurappa versus Mahalingappa and Others) and 2002 volume- 3 Supreme Court cases page-521 (Michael B.Femandes versus C.K.Jaffer Sharief and Others) " On behalf of the respondent no.1 it is submitted that, the provisions of section 98 and the explanation to Section 86 of the Act of 1951 were not brought to the notice of the Supreme Court in Yadiyurappa (Supra) and Femandes 3 (Supra) and therefore those two judgements are sub-silentio on this aspect. Provisions of Order 1 Rule 3A, 4, 9 and 10 of the Code of Civil Procedure, 1908 were contrasted with Sections 86 and 98 of the Act of 1951. It is contended that, the Representation of People Act, 1951 is a special statute and that, the provisions as to parties is a proceedings in the Act of 1951 will prevail over order 1 of the Code of Civil Procedure, 1908. The provisions of the Code of Civil Procedure 1908 does not make wrong arrangement of parties in a proceeding governed thereby fatal whereas section 86 of the Act of 1951 mandates dismissal of an election petition which is not in terms section 82. Section 82 specifies the persons who were to be made parties.
I have considered the rival contentions of the parties and the materials made available on record.
The petitioner of Election Petition no.1 of 2014 seeks reliefs with regard to an Election of the Aarambag Parliamentary Constituency held on April 30, 2014. In such election petition respondent nos.5 and 6 being the Sub Additional Officer, Serampore and the Election Commission of India respectively have been made party respondents. GA No.2990 of 2014 is an application at the instance of the respondent no.6 being the Election Commission of India for deletion of its name from the proceeding. The respondent no.6 seeks deletion of its name from the proceedings on the ground of Section 82 of the Act of 1951.
In view of the provisions of Section 82 of the Act of 1951, the respondent no.5 also cannot remain as a party respondent to the election petition. The petitioner of the Election Petition no.1 of 2014 agrees to have the respondent no.5 deleted also.
I am unable to accept the contentions of the respondent no.1 that, arrangement of persons other than those specified in section 82 of the Act of 4 1951, in the facts of this case is such that, it must warrant a dismissal of the election petition itself in view of section 86 read with section 98 of the Act of 1951. In Yadiyurappa (Supra) the Supreme Court was of the view that :-
" 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 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."
Femandes (Supra) expressed a similar view. Sections 82 and 86 of the Act of 1951 were considered in Yadiyurappa (supra). The provisions of the Code of Civil Procedure together with Sections 82 and 86 of the Act of 1951 were considered in Femandes (supra). It cannot be said that, the aforesaid two judgments are sub-silentio on the matter as contended on behalf of the respondent no. 1.
Section 98 of the Act of 1951 enables the High Court to either dismiss the election petition or to declare the election of all or any of the returned candidates to be void or declare the elution of all or any of the returned candidates to be void and the petitioners or any other candidate to be duly elected at the conclusion of the trial. The trial of the election petition in this case has not commenced. Before the commencement of the trial, the respondent no.6 has applied for its deletion.
It is contended on behalf of the respondent no. 1 that, the explanation to Section 86(1) of the Act of 1951 clarifies that an order of the High Court 5 dismissing the election petition under the sub-section to be deemed to be an order made under clause (a) of Section 98.
In the fact scenario at hand, I am called upon to delete two respondents who by virtue of Section 82 cannot be added as respondents to the election petition. I am not dismissing the election petition on the ground of breach of Section 82 in view of the ratio laid down in Yadiyurappa (supra) and Femandes (supra).
The respondent nos. 5 and 6 admittedly cannot remain party respondents in view of Section 82 of the Act of 1951 to the election petition.
In such circumstances, the respondent no. 6 is struck off from the cause title of Election Petition no. 1 of 2014. On the prayer of the petitioner in Election Petition no. 1 of 2014, the respondent no. 5 is also struck off from such election petition.
The department is directed to strike out the respondent nos. 5 and 6 from the election petition no. 1 of 2014. The department will carry out the amendment within three weeks from the date of communication of the order by the petitioner upon them.
GA No.2990 of 2014 is allowed accordingly. No order as to costs.
(DEBANGSU BASAK, J.) dg2/TR