Gujarat High Court
Deputy District Development Officer vs Nathabhai Prabhudas Patel on 20 December, 2021
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/EA/9/2020 ORDER DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION APPLICATION NO. 9 of 2020
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DEPUTY DISTRICT DEVELOPMENT OFFICER
Versus
NATHABHAI PRABHUDAS PATEL
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Appearance:
MR. SAHIL M SHAH(6318) for the Applicant(s) No. 1,2
for the Respondent(s) No. 10,11,12,13,14,3,4,5,6,7,8,9
MR. RAHUL R DHOLAKIA(6765) for the Respondent(s) No. 2
MR RAHUL SHARMA(8276) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 20/12/2021
ORAL ORDER
1. Looking to the issue involved in the matter and with the consent of the learned advocates for the respective parties, the matter is taken up for final disposal today.
2. By preferring this application, it is prayed to delete the applicants and to strike out their names from the array of the parties in the main Election Petition No.22 of 2018 for the reasons, as averred in the application.
3. Heard learned advocates appearing for the parties.
3.1 Learned advocate for the applicants submitted that challenging the election to the Gujarat Legislative Assembly from 26 - Vijapur Assembly Constituency held on 14.12.2017, Election Petition No.22 of 2018 is filed. The present applicants are Page 1 of 7 Downloaded on : Wed Jan 12 12:44:45 IST 2022 C/EA/9/2020 ORDER DATED: 20/12/2021 impleaded amongst others as respondents in the said election petition. It is further submitted that under Section 82 of the Representation of the People Act, 1951, a petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. The the contest of the election petition is designed to be confined to the candidates at the election and all others are excluded. In support of his arguments, learned advocate has relied upon a decision in the case of Michael B. Fernandes Vs. C.K.Jaffer Sharief and Others reported in (2002) 3 SCC 521 and a decision of the Punjab and Haryana High Court in the case of Iqbal Singh Vs. Gurdas Singh Badal and Others, reported in (1972) 1 ILR 554 and in the case of Jyoti Basu & Ors. Vs. Debi Ghosal & Ors., reported in (1982) 1 SCC 691.
3.2 Learned advocate for the applicants have also placed reliance upon the order dated 26.02.2019 passed by this Court in Election Application No.12 of 2018 and the order dated 15.11.2019 passed by this Court in Election Application No.18 of 2018. It is therefore prayed to delete the present applicants as party respondents, as the applicants cannot be made parties to the election petition under the Civil Procedure Code, 1908.
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4. From the other side, learned advocate Mr.Rahul Sharma for respondent No.1 has submitted that the applicants are the necessary parties in the election petition. The presence of the applicants are required in the election petition and, therefore, they cannot be deleted as party respondents as prayed for. In similar facts of the case, this Court has passed an order in Election Application No.41 of 2018 in Election Petition No.3 of 2018 and hence, it was requested by the learned advocate for the respondent No.1 to dismiss the application.
5. Learned advocate for respondent No.2 has submitted that the question of deleting the parties as prayed for by the applicants is between respondent No.1 and the applicants. The observations made by this Court in the aforesaid Election Application No.41 of 2018 in Election Petition No.3 of 2018 would not be applicable to the facts of this case and, therefore, he has objection to apply the order in the present proceedings. He has further requested to pass necessary orders.
6. Having considered the facts of the case and the submissions made by the learned advocates for the respective parties and the record of Election Petition No.22 of 2018, it appears that the present applicants are the respondents impleaded amongst other in the said election petition. Applicant No.1 is the Deputy District Development Officer, Mehsana and Returning Officer and applicant No.2 is the Page 3 of 7 Downloaded on : Wed Jan 12 12:44:45 IST 2022 C/EA/9/2020 ORDER DATED: 20/12/2021 Election Commission of India. If we refer Section 82 of the Representation of the People Act, 1950, it reads 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."
6.1 The Hon'ble Supreme Court in the case of Jyoti Basu & Ors.(supra) has observed as under:
"9. Section 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Sec. 82 is headed "Parties to the petition" and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause
(b) of S. 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86 (4) enables any Page 4 of 7 Downloaded on : Wed Jan 12 12:44:45 IST 2022 C/EA/9/2020 ORDER DATED: 20/12/2021 candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while cl. (b) of S. 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under S. 86 (4), any other person cannot, under that provision seek to be joined as a respondent, even if, allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election.
All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951, Only those may be joined as respondents to an election petition who are mentioned in S. 82 and S. 86 (4) and no others. However, desirable and it may appear to be, none else shall be joined as respondents.
10. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court 'effectually and completely to adjudicate upon and settle all questions involved' may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only 'as far as may be and subject to the provisions of the Representation of the People Act, 1951 and the rules made thereunder. Section 87 (1) Page 5 of 7 Downloaded on : Wed Jan 12 12:44:45 IST 2022 C/EA/9/2020 ORDER DATED: 20/12/2021 expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked. ... ... ...
11. xxx xxx xxx
12. xxx xxx xxx
13. In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86 (4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition."
6.2 From the reading of the decisions as relied upon by the applicants except the candidates to election, no one else can be joined as party respondents. Therefore, it can be said that an election petition, which does not make the persons enumerated in Section 82 of the Act, would be a party respondent and therefore, mere allegation in the petition filed by respondent No.1 would not suffice to continue him as a party respondents in the present proceedings as Section 82 is very clear that they cannot be joined as parties in the petition. In Election Application No.41 of 2018 in Election Petition No.3 of 2018, this Court allowed the application in terms of Paragraph No. 8(B) of the application with certain observations by order dated 19.12.2018. As the provision itself is very clear to be joined as a party in election petition by the petitioner, this Court is of the clear view that the present applicants, who are joined as respondents in Page 6 of 7 Downloaded on : Wed Jan 12 12:44:45 IST 2022 C/EA/9/2020 ORDER DATED: 20/12/2021 Election Petition No.22 of 2018, are not necessary parties and, therefore, they are deleted from the said proceedings.
7. This application is accordingly allowed.
(VIPUL M. PANCHOLI, J) piyush Page 7 of 7 Downloaded on : Wed Jan 12 12:44:45 IST 2022