Andhra HC (Pre-Telangana)
Sri Kotla Vijayabhaskara Reddy And Ors. vs Smt. Renuka Choudary on 2 November, 1993
Equivalent citations: 1993(3)ALT568
ORDER P.L.N. Sharma, J.
1. Application No. 356 of 1993 has been filed by the elected candidate (first respondent in the election petititon) for dismissing the election petition in limine on several grounds. Application Nos. 408 of 1993 and 531 of 1993 have been filed by the learned Advocate General and Sri Innaiah Reddy, learned Standing Counsel for Central Government for striking of the names of their respective clients viz., respondents 10 to 12 and 15 and 9th respondent from the array of parties in the Election Petition. Relevant facts are as follows:
Election Petition No. 1 of 1993 has been filed by one of the defeated candidates, in addition to claiming a declaration that the election of the first respondent from 184 Panyam Assembly Constituency to the Andhra Pradesh Legislative Assembly was void, also claims a further declaration that the election petitioner as having been duly elected to the Andhra Pradesh Assembly from the said Constituency.
2. An election notification was issued by the ninth respondent (Chief Election Commissioner) on 3-3-1993, notifying the process of of election to the Panyam Legislative Constitutency. According to the said notification, 10th March, 1993 was the last date for filing nominations. Scrutiny was to take place on 11th March, 1993. The date for withdrawal of the nominations was fixed as 13-3-1993. Polling date was fixed as 3-4-1993. The election petitioner as well as respondents 1 to 8 filed nominations and contested, seeking election from the said Panyam Constituency. The first respondent was declared as duly elected to the Legislative Assembly on 5-4-1993. The election petitioner filed the election petition for the reliefs mentioned above under the provisions of the Representation of the People Act, 1951, for short "The Act".
3. When the election petition was presented in the Registry, it raised the following objections, among others:-
(1) That the election petitioner should explain as to how the petition is in time as the last date for filing the application expired long back.
(2) The petitioner was called upon to state as to how respondents 9 to 28 are proper and necessary parties to the election petition as they are not candidates.
(3) Annexures said to have been filed along with the election petition, have not been filed with the required number of copies.
4. Election petitioner impleaded all the candidates apart from herself as respondents 1 to 8. She also impleaded the Chief Election Commissioner as ninth respondent and other officials as respondents 10 to 13 and some of the Cabinet Ministers as well as the son of first respondent and the Chief Whip of the Congress Party in the Legislative Assembly and others as respondents.
5. Pending determination of the election petition, Application No. 356 of 1993 was filed by the first respondent under Section 86 of "The Act" on the ground that the election petition is not in compliance with the provisions of Sections 81, 82 or even Section 83 of "The Act" and, therefore, it is liable to be dismissed in limine.
6. Sri C. Padmanabha Reddy, learned Counsel appearing for the elected candidate raised the following contentions in the above mentioned application.
(1) That Section 81 of "The Act" enjoins that the election petition should be presented within forty five days from the date of the declaration of the result of the election and failure to do so entails the dismissal of the election petition as per the mandatory provisions of Section 86(1) of "The Act". The contention is that forty fifth day viz., the last date for filing the election petition, fell during summer vacation, but the Registry was open with effect from 9-6-1993 and, therefore, the election petition ought to have been presented on 9-6-1993. The election petition having been presented on 14-6-1993, is liable to be dismissed on the ground that it is barred by limitation. For the said contention, the learned Counsel strongly relied upon the ultimate paragraph of the notification issued by the High Court notifying summer vacation.
(2) Even assuming that the election petition could be presented on 14-6-1993, it was not accompanied by annexures and the Video Cassette which form integral part of the election petition. Not a single annexure was filed along with the election petition on 14-6-1993. Same is the case with reference to Video Cassette. All those annexures and the Video Cassette were in fact filed in the Registry only on 19-6-1993. Therefore, the election petition is liable to be dismissed under Section 86(1) of "The Act" for non-compliance with Section 81(3) read with Section 83 of "The Act".
(3) That the election petitioner impleaded persons who are not at all necessary parties and who are not required to be added under Section 82 of "The Act". Therefore, the election petition is not in compliance with Section 82 of "The Act" and the same is liable to be dismissed in limine on that ground, under Section 86(1) of "The Act". In the alternative, the learned counsel contended that, the names of respondents 9 to 28 are liable to be struck off from the array of parties.
7. The contention regarding the striking out of the names of respondents 9 to 28, is supported by the learned Advocate-General who filed Application No. 408 of 1993 and Sri Innaiah Reddy, learned Standing Counsel for the Central Government who filed Application No. 531 of 1993 and it was also adopted by the other learned Counsel appearing for the respective respondents.
8. Sri S. Ramachandra Rao, learned Counsel appearing for the election petitioner resisted these applications on the ground that the declaration of election was made on 5-4-1993 and the forty fifth day fell during summer vacation and the same was presented on the date the Court is open viz., 14-6-1993 as provided by Section 10 of the General Clauses Act (Central Act), which is applicable to the election petitions and that it cannot be said that the election petition is not presented within the time.
9. On the second point, the learned Counsel, while admitting that the annexures and the video cassette were not filed on 14-6-1993 along with the election petition, contended that the presentation of election petition and the procedure thereof are governed by "Rules to regulate the trial of election petitions under Representation of the People Act, 1951, for short "The Rules", framed by the High Court as well as the Code of Civil Procedure in view of Section 87 of "The Act". Election petition was filed on 14-6-1993 and the same was returned by the Registry on 16-6-1993 granting three days' time for filing all the annexures and the video cassette. Accordingly, within the time allowed by the Registry of the High Court, all the annexures and the video cassette were filed on 19-6-1993 which is in accordance with "The Rules" framed by the High Court and, therefore, it cannot be said that there is non-complaince with Section 81(3) of "The Act" and the election petition is not liable to be dismissed on that ground.
10. On the third point, the learned Counsel contended that the election petition contains specific allegations against each of the respondents 9 to 28 and the same cannot be gone into and decided in their absence. Any decision on the allegations of corrupt practice against each of the respondents 9 to 28 is rendered in their absence, it will amount to violation of principles of natural justice and, therefore, they are necessary or at any rate, proper parties to the election petition and it cannot be said that impleading respondents 9 to 28 is not in compliance with Section 82 of "The Act" and, therefore, the application is not liable to be dismissed on that ground. It is further contended by the learned Counsel that the names of respondents 9 to 28 are not liable to be struck off from the array of parties.
11. Point No. 1; Contention of M/s C. Padmanabha Reddy and K. Venkatramaiah, learned Counsel appearing for the elected candidate is that the election petition is barred by limitation in view of the fact that the same was not presented to the High Court within the prescribed period of forty five days and, therefore, it is liable to be dismissed in limine on that ground.
12. In this case, election notification was issued by the Election Commission on 3-3-1993 prescribing programme for the election. According to the said programme, polling was held on 3-4-1993 and the first respondent in the election petition was declared elected on 5-4-1993 in accordance with the provisions of "The Act". Contention now is that the election petition will have to be presented to the High Court within forty five days from the date of election of the returned candidate i.e., within forty five days from 5-4-1993, as provided by Section 81 of "The Act". It is further contended by the learned Counsel that even according to the ultimate paragraph of the notification issued by the High Court dated 29-4-1993 notifying summer vacation, election petition would have been accepted in the office of the Registry from 9th June, 1993 and the election petition presented on 14th June, 1993, instead of on 9th June, 1993 is barred by limitation.
13. On the other hand, Sri S. Ramachandra Rao, learned Counsel appearing for the election petitioner submitted that similar notification issued by the High Court for "Sankranti Vacation" in the year 1990 was construed by this Court holding that presentation of election petition on the re-opening day after the vacation is held to be not barred by limitation and the said view was confirmed by the Supreme Court in Civil Appeal No. 4532 (NCE) of 1990 dated 21-12-1990 and the matter is no longer res integra and it is covered by the authority of the Supreme Court and, therefore, it cannot be said that the election petition presented on 14th June, 1993 is barred by limitation.
14. To appreciate the rival contentions, it is necessary to refer to the relevant provisions of "The Act" as well as General Clauses Act and the decisions rendered thereunder.
15. It is well settled by a catena of decisions that "The Act" is a complete and self contained Code and it does not admit the introduction of the principles or the provisions of the Indian Limitation Act and that it is incumbent on the High Court to dismiss an election petition which does not comply with Section 81 as provided by Section 86(1) of "The Act" which are mandatory and will have to be implemented strictly. It is also well settled that even though principles or the provisions of Indian Limitation Act have no application, Section 10 of the General Clauses Act will apply. If an authority is needed, it is found in K.V. Rao v. B.N. Reddy, . It is also categorically held that in deciding the point raised, the Court will have to look into and be governed by the notification issued by the High Court declaring the vacation, read with Section 10 of the General Clauses Act.
16. Let us now consider the relevant provisions and the case law on the subject.
17. Section 81 of "The Act" insofar as it is relevant to the point under consideration is as follows:
"Section 81. Presentation of petitions:-
(1) An election petition calling in question any election may be presented .....................to the High Court........................within 45 days from, but not earlier than the date of election of the returned candidate................."
18. According to this section, election petition will have to be presented within forty five days from the date of election of the returned candidate.
19. Section 86 of "The Act" is to the effect that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or etc..................Therefore, a reading of Section 81 and Section 86 together make it incumbent on the part of the High Court to dismiss an election petition which is not presented within forty-five days from the date of declaration of the result of the election.
20. In the present case, declaration that the first respondent in the election petition, was elected was made on 5-4-1993. The last date for presenting the election petition was 20th May, 1993.
21. It is also necessary to note the relevant portion of Rule 3 of "The Rules" framed by the High Court to regulate the trial of the Election Petitions which insofar as it is material, is extracted below:
"3. Every Election Petition shall contain, in addition to the particulars required by Section 83 of the Act, information as to the date of election of the returned candidate or if there be more than one returned candidate at the election and the dates of their election are different, the later of the two dates and shall also show that the Election Petition is within the time prescribed by Section 81 of the Act.
It shall be filed in the office of the Registrar by the petitioner...............;"
The above mentioned rule also is to the effect that the petitioner in the election petition shall show that the election petition is within the prescribed period and the presentation of the election petition is in the office of the Registrar.
22. One other provision which requires to be looked into is Section 10 of the General Clauses Act (Central Act) which is as follows:
"10. Computation of Time:
(1) Where, by any (Central Act) or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day after wards on which the Court or office is open; Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1887 applies:
(2) This section applies also to all (Central Acts) and Regulations made on or after the fourteenth day of January, 1887".
23. Now a combined reading of Section 81 which prescribes period of limitation for the presentation of election petition and Section 10 of the General Clauses Act (Central Act), indicate that the election petition will have to be presented to the High Court within a period of forty-five days from the date of declaration of the result of the election and if on the forty fifth day the Court is closed, election petition can be presented on the next day after-wards on which the Court is open.
24. Sri S. Ramachandra Rao, learned Counsel for the election petitioner contended that in view of Section 10 of the General Clauses Act, the election petition which has to be presented on 20th May, 1993, on which day the Court is closed, is presented on the day the Court is open after summer vacation i.e., 14-6-1993 and, therefore, it is within time. In support of his contention, he relied upon the notification issued by the High Court notifying summer vacation.
25. Supreme Court in Civil Appeal No. 4532 (NCE) of 1990 dated 21-12-1990 arising out of the Judgment of a learned single Judge of this Court reported in Y. Krishna Murthy v. M. Sivannnidu, as well as the Judgment in K. Jayamma v. E. Venkateswarlu, 1990 (2) ALT 454 of this court, held that the notification issued by the High Court alone governs the situation and the Court will have to, on a construction of the said notification, come to a conclusion one way or the other. In fact, in Civil Appeal No. 4532 (NCE) of 1990 dated 21-12-1990 the learned Judges of the Supreme Court stated as under:
"It is the notification notifying the Sankranthi vacation which would indicate the manner and extent of functioning of the High Court during the vacation. Whether the registry was open, if so, to what extent and for what type of work, can only be spelled-out from the contents of the Notification."
26. Sri S. Ramachandra Rao, learned Counsel for the election petitioner strongly relied upon the above Judgments (supra 2 and 3) and the Judgment in Civil Appeal No. 4532 (NCE) of 1990 dated 21-12-1990 and contended that this matter is squarely covered by those Judgments. While on the other hand, M/s. C. Fadmanabha Reddy and K. Venkatramaiah, learned Counsel appearing for the elected candidate contended that the ultimate paragraph of the notification makes all the difference and according to the language of the notification contained in the last paragraph, the election petition is beyond time and, therefore, it is liable to be rejected in limine.
27. It is necessary to look at the notification issued by the High Court notifying the summer vacation for the year 1993 in R.O.C.No. 4522/92-C3 dated 29-4-1993 which is in the following terms:
"High Court of Andhra Pradesh : At Hyderabad.
Abstract Vacations -Summer Vacation, 1993 -High Court of Andhra Pradesh - Arrangements - Notified.
Notification:
ROC.No. 4522/92-C3 Dated 29-4-1993.
It is hereby notified that the High Court of Andhra Pradesh will remain closed for the Summer vacation, 1993 from Saturday the 1st May to Friday the 11th June, 1993 (both days inclusive).
The Hon'ble Sri Justice N.D. Patnaik and the Hon'ble Sri Justice Eswara Prasad will be the Vacation Judges from 1st May, 1993 to 21st May, 1993. The Hon'ble Sri Justice Reddeppa Reddi and the Hon'ble Sri Justice Ramakrishnam Raju will be the Vacation Judges from 22nd May, 1993 to 11th June, 1993.
The Vacation Judges will sit in Court during the vacation at 10.30 A.M. on every Tuesday in the month of May, 1993 and on Wednesday the 2nd June, 1993 to dispose of urgent applications unless otherwise notified. Whenever necessary, a Bench will be formed for the disposal of urgent work.
The mid-Vacation Bench will be constituted for the disposal of Referred Trials and other urgent work, if any, from 18th May, 1993 (Tuesday).
Sri T.G. Krishnamachari, Deputy Registrar and Sri A. Eswaraiah, Assistant Registrar will be the vacation Officers from 1st May, 1993 to 21st May, 1993 and Sri T.G. Krishnamachari, Deputy Registrar and Smt. S. Subbalakshmi, Assistant Registrar will be vacation Officers from 22nd May, 1993 to 11th June, 1993.
Except Appeals under Section 383 of the Code of Criminal Procedure, 1973 from the Appellants, who are in jail, no application other than of urgent nature will be received during the Vacation. No appeal or other proceedings will be received during the Vacation, unless accompanied by an urgent application.
Notice of Urgent applications shall be given to the Vacation Officer of the High Court before 1.30 P.M. on the working day preceding the Court Day.
Cases which are to be presented on the re-opening day after the summer, vacation will be accepted in the office of the Registrar from 9th June, 1993 onwards for the convenience of the parties, though for purposes of limitation the Court re-opens only on Monday the 14th June, 1993.
Sd/-
Registrar (Admn.)
28. All the Counsel agreed that without the ultimate paragraph of the notification, the notification is similar to the notifications issued by the High Court which were considered by the Supreme-Court in Civil Appeal No. 4532 of 1990 and the High Court in the Judgments referred to supra (2 and 3) and those decisions govern the situation. But the contention of Sri C. Padmanabha Reddy, learned Counsel for the first respondent is that the ultimate paragraph makes all the difference and that indicates that the office of the Registry is open with effect from 9-6-1993 for accepting the petitions which are required to be presented on the re-opening day i.e., 14-6-1993. Having regard to the fact that the office of the Registry is accepting the cases which are to be presented on the re-opening day, election petitioner ought to have presented the election petition on 9-6-1993 and the same, not having been presented on 9-6-1993, is barred by limitation and liable to be dismissed as per Section 86 of "The Act".
29. Let us see the notification. Notification clearly mentioned that the High Court of Andhra Pradesh will remain closed for the summer vacation, 1993 from Saturday 1st May to Friday 11th June, 1993 (both days inclusive). Therefore, the High Court, according to the notification, will remain closed from 1-5-1993 to 11th June, 1993. 12th June, 1993 is Second Saturday and notified to be a holiday for the Court. 13th June, 1993 being Sunday is also notified by the Court as holiday. Therefore, the High Court re-opens on 14-6-1993 after summer holidays. Notification also says that except appeals under Section 383 of the Code of Criminal Procedure, 1973 from the appellants who are in jail, no application other than of urgent nature will be received during the vacation. Therefore, during summer vacation notified by the High Court viz., from 1st May, 1993 to 13th June, 1993, no application shall be received, except appeals under Section 383 of the Code of Criminal Procedure, 1973 from the appellants who are in jail. There can be no difficulty about this.
30. Now, let us consider the ultimate paragraph of the notification. Ultimate paragraph says that cases which are to be presented on the re-opening day after the Summer vacation will be accepted in the office of the Registry from 9-6-1993 onwards for the convenience of the parties, though for the purpose of limitation the court re-opens only on Monday the 14th June, 1993. In this connection, it is necessary to remember the provisions of Section 10 of the General Clauses Act (Central Act). It says that if any proceeding is directed or allowed to be done or taken in any Court on a certain day or within a prescribed period, if the Court is closed on that day, it shall be considered as done or taken in due time if it is taken on the next day afterwards on which the Court is open. When we apply Section 10 of the General Clauses Act to the present case, it is clear that for the purpose of limitation the Court is re-opening only on Monday, the 14th day of June, 1993. Representation of the People Act directs that the election petition shall be presented within forty five days from the date of election and if the last day for presenting the election petition fell during the period when the High Court is closed for Summer vacation, the same can be presented on the next day the Court is open. On a reading of Section 10 of the General Clauses Act and applying the same to the present notification, I have no doubt in my mind that the presentation of the election petition on 14-6-1993, on which date the Court is open after the Summer vacation is perfectly valid and it is within the time.
31. Sri C. Padamanabha Reddy strenuously contended that the Registry was accepting cases presented with effect from 9-6-1993 and that date should be taken as the last date for presentation of the election petition, and the election petition presented on 14-6-1993 is barred by limitation. In support of this contention, the learned Counsel relied upon the following words in the ultimate paragraph of the notification viz., "cases which are to be presented on the reopening day after the summer vacation will be accepted in the office of the Registry from 9th June, 1993 onwards....................."
32. The above quoted words of the notification will have to be understood in the light of the entire notification and not in isolation. I have already considered, the fore-going paragraphs, the entire notification together with Section 10 of the General Clauses Act. I am of the opinion that the High Court for the purpose of limitation opens only on 14-6-1993 and the filing of the election petition on that day is in time.
33. Further it was held in Venkateswarlu's case (supra 3) by my learned brother V. Neeladri Rao J that the vacation is for the High Court and that the office of the Registry is part of the High Court, Though the office may remain open for other purposes, it cannot be said that the High Court means only Judges of the High Court. It also includes office for the purpose of receiving appeals and other proceedings.
34. Similarly in Y. Krishna Murthy v. M. Sivannaidu (supra 2), another learned Judge stated that no distinction can be drawn between the closure of the Court and office viz., Registry of the High Court and the preamble of the notification declaring that the High Court will remain closed for summer vacation doesn't make any distinction between the High Court and the Registry. I respectfully agree with the observations made by the learned single Judges in the above two decisions, one of which was confirmed by the Judgment of the Supreme Court in Civil Appeal No. 4532 of 1990 dated 21-12-1990.
35. In my opinion, the last paragraph also indicates that for the purpose of computing the prescribed period of limitation, re-opening of the Court is only 14-6-1993. Ultimate paragraph of the notification in so far as it is relevant for the present purpose is as follows:
"Cases which are to be presented on the re-opening day after the summer vacation will be accepted in the office of the Registrar from 9th June, 1993 onwards for the convenience of the parties, though for the purposes of limitation the Court re-opens only on Monday the 14th June, 1993".
36. In this connection, it is necessary to note the meaning of the word "Limitation" from Judicial Dictionary by K.J. Aiyar (10th edition) which is as follows:
"The word 'limitation' denotes the period within which, according to the statutes, actions ought to be brought in a Court of law".
37. I have no doubt in my mind that accepting the cases with effect from 9-6-1993 is only for the convenience of the parties and not for the purpose of computing the prescribed period of limitation. It is open to the election petitioner to present the election petition on 9-6-1993 in accordance with the notification, which is applicable to all cases. But failure to present the election petition on 9-6-1993 will not amount to presenting the application beyond the prescribed period of limitation. Presentation in the Office of the Registrar on 9-6-1993 of any case will only be a physical presentation in contra distinction with legal presentation. Suppose, an appeal or revision has to be filed on the re opening day i.e., 14-6-1993 and if it is not filed on 9-6-1993 can it be said that the appeal/revision is barred by limitation?. The answer is an emphatic "NO". Similarly, the election petition may be presented on 9-6-1993. But that doesn't mean that the election petition presented on 14-6-1993 is barred by limitation. Presentation of election petition on 14-6-93 is a legal presentation in accordance with the notification read with Section 10 of the General Clauses Act.
38. To test the logic behind the contention of Sri C. Padmanabha Reddy, learned counsel for the elected candidate, let us take an illustration as under. Supposing the notification issued by the High Court stated in the ultimate paragraph that cases which are to be presented on the re-opening day after the vacation will be accepted in the office of the Registrar from 1st June, 1993, while the re-opening day is 14th June, 1993. If an election petition is to be filed on 1st June, 1993, according to "The Rules", the application will have to be presented in the Registry of the High Court and that the Registry will have to return the same if any objections are found for removing the defects within a period of three days and the petitioner or the Counsel for the petitioner will have to rectify the defects pointed out by the office of the Registry and re-present it within a period of three days and thereafter it has to be posted before the Judge nominated to take up and dispose of the election petition. The schedule fixed by "The Rules" cannot be adhered to, if the election petition is presented on 1st June, 1993 since the Judges are not sitting till 14th June, 1993 and the question of return by the office of the memorandum of election petition will not arise till 14th June, 1993, the re-opening day for the purpose of limitation. Then what is to happen to such an election petition. While considering an analogous situation, the Supreme Court in Hari Shankar Tripathi v. Shiv Harsh and Ors., 1976 Unreported Judgments of S.C. 242 stated thus, after referring to the rules framed by the Allahabad High Court for the trial of election petitions:
"These rules clearly refer to a situation where the Court is open, because the Registrar has to take legal steps namely, the placing of the petition immediately before the Chief Justice for reference to the Bench concerned and the assignment of a Judge. This could not be done when the Court was observing a closed holiday. The presentation before the Registrar is required by Rule 3 of the aforesaid rules must be a legal presentation and not a physical presentation".
Presentation of case for convenience sake is for the purpose of avoiding rush and the availability of stamps and for other allied purposes and not for the purpose of limitation.
39. In fact before the Supreme Court as well as this Court in Civil Appeal No. 4532 of 1990, it was contended that twenty five election petitions were received by the Registry and, therefore, it cannot be said that the Registry is closed. That was repelled by this Court in Krishnamurthy's case (supra 2) in the following words:
"It is submitted by the learned Counsel for the petitioners that the High Court Registry was open during the vacation and received as many as 25 election petitions. It is not necessary in these applications to consider whether the Registry was competent to receive those 25 election petitions , during the vacation. That is not a relevant consideration for the disposal of these applications.
What all is necessary to consider in these applications is whether, in the light of the wording contained in the notification dated 29-12-1989. the High Court remained closed between 2-1-1990 and 12-1-1990 so as to enable the election petitioners to invoke Section 10 of the General Clauses Act..................".
This passage was specifically referred to and confirmed by the Supreme Court. In this case also, merely because the cases which are to be presented on the reopening day are accepted in the office of Registry from 9-6-1993, the legal effect of the vacation notification read with Section 10 of the General Clauses Act will not be lost viz., presenting the election petition on the day; the Court opens after Summer vacation being valid. Simple question to be asked is when is the High Court re-opening after Summer vacation. The answer is 14-6-1993. If it is so, having regard to the language of Section 10 of the General Clauses Act, it is clear that the presentation of the election petition on the day the Court re-opens after the summer vacation viz., 14-6-1993 is in time.
40. Therefore, the contention of M/s. C. Padmanabha Reddy and K. Venkatramaiah, learned Counsel appearing for the elected candidate that the election petition should be dismissed as barred by limitation has no substance and it is accordingly rejected.
41. Point No. 2: It is contended by Sri C. Padmanabha Reddy, learned Counsel appearing for the elected candidate, that the election petition which was presented on 14-6-1993 was not accompanied by annexures and video cassettes which form integral part of the election petition. All those annexures and video cassesttes were filed only on 19-6-1993. Therefore, the election petition is liable to be dismissed on that ground only in view of the provisions of Section 86(1) read with Section 81 of "The Act". Learned Counsel drew my attention to the return endorsement made by the Registry on 16-6-1993. The Registry raised several objections including the one regarding filing of annexures. It is as follows:
"3. Annexures said to be filed, along with the petition, have not been filed with required number of copies, accompanied by English translation". The Registry gave three days time for complying with the objections including the one mentioned above requiring the petitioner to file annexures noting the annexure number at the top of the annexure etc. On 19-6-1993, within the time given by the Registry, 156 annexures as well as 29 video cassettes were filed into Court. This is stated in the letter of the learned Counsel appearing for the election petitioner dated 19-6-1993. In fact, in the letter, copies of election petition, copies of 156 annexures and video cassettes were mentioned as enclosures and there is no dispute with regard to the same.
42. The point that is argued before me is that non-filing of annexures which form integral part of the election petition along with the election petition on 14-6-1993 entails dismissal of the election petition.
43. Learned Counsel for the election petitioner, Sri S. Ramachandra Rao, contended that presentation of the election petition and the procedure thereof are governed by "The Rules" framed by the High Court and the Code of Civil Procedure in view of Section 87 of "The Act" itself. On the date of presentation of the election petition, it need not be effective or full-fledged election petition. The Registry of the High Court granted time on 16-6-1993 to the election petitioner to file the annexures and video cassettes within a period of three days and they were duly filed within the time allowed by the Registry of the High Court on 19-6-1993 itself, well before it came up for admission before this Court and before any notice is ordered to the respondents and it is sufficient compliance of the provisions of "The Act" and the election petition is not liable to be dismissed on that ground.
44. To appreciate this point, it is necessary to refer to certain basic principles settled by the decisions regarding election petitions.
45. It is well settled that "the right to challenge an election is not a common law right, but a special right as conferred by the Act............" The procedure prescribed by "The Act" for challenging any election must be strictly followed. If there be any deviation from or non-compliance with the provisions of Section 81(3), the Court will have no alternative but to dismiss the election petition. (Vide U.S. Sasidharan v. K. Kamnakaran, ).
46. An election contest is not an action at law or a suit in equity but is purely a statutory one and governed only by the statute. If the presentation of the petition does not comply with the requirements of the statute, the Court has no alternative but to dismiss the election petition in limine.
47. To understand as to what constitutes an "election petition" and which annexure or schedule forms integral part of the election petition and as to why it is stated that an annexure or a schedule forms integral part of the election petition, one has to necessarily refer to the relevant provisions of "The Act" which are as under:
"Section 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 candidates at the election and dates of their election are different, the later of those two dates.
Explanation: xx xx xx (2) xx xx xx xx
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
Section 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 Had down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
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.
(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.
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".
48. Section 83 of "The Act" prescribes as to what an election petition shall contain. It says that an election petition shall contain a concise statement of material facts on which the petitioner relies and also shall set forth full particulars of corrupt practice 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. This provision was referred to and considered by the Supreme Court in Karunakamn's case (supra 5). Learned Judges of the Supreme Court held that Clauses (a) and (b) of Section 83 make it imperative that an election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice alleged by the petitioner. This is the requirement of pleading which shall contain in the election petition. Taking into consideration that in a given case even if concise statement of material facts and full particulars of corrupt practice alleged by the petitioner in respect of each of the corrupt practices may run into a bulky election petition, two methods or modes are conceived to satisfy the requirements of Section 83. One is to give full particulars in the election petition itself and in support thereof documents may be filed as annexures. The other is not to give any concise statement of material facts or full particulars in the election petition, but the annexures containing full particulars and the statement of corrupt practices may be incorporated in the election petition by reference. In either event, it will be in the pleading viz., the details .and concise statement will form part of the pleading itself. In the former case, since the concise statement or full particulars of any corrupt practice is already mentioned in the election petition itself, the document filed in support thereof will be treated as a piece of evidence in support of the pleading. In the later case, for the purpose of knowing the pleading, one has to look to the annexure, which forms part of the pleading. Since no details are given in the election petition and document was incorporated into the pleading by reference, such document will be treated as forming integral part of the pleading i.e., forming integral part of the election petition.
49. Such of those annexures which form integral part of the election petition will have to accompany the election petition into the Court; otherwise the pleading will be incomplete. Unless one looks to the document, the pleading of the election petitioner will not be known. That is the reason why the Courts have held that failure to file annexures which form integral part of the election petition leaves the Court with no option except to dismiss the election petition as the pleading is incomplete, which amounts to non-compliance with Section 81 read with Section 83.
50. In M. Kamalam v. V.A.S. Mohammed, the learned Judges of the Supreme Court considered what is an "election petition" within the meaning of Section 81 of "The Act". The learned Judges held that "election petition" means the election petition proper as well as schedules or annexures which form an integral part of the election petition. If such a schedule or annexure does not accompany the election petition into Court, it will not be, in the eye of law, presentation of "election petition". This is on the basis that the allegations contained in the schedule or annexure are incorporated in the election petition as pleading by referince. The same view was reiterated in Karunakaran's case (supra 5).
51. For a proper appreciation of the principles as well as application thereof it will be useful to refer to the decisions in Sahodrabai v. Ram Singh, ; M. Karunanidhi v. H.V. Handa, and Karunakaran's case (supra 5).
52. In the case of Sahodrabai v. Ram Singh, an election petition was filed together with a pamphlet as annexure thereto. A true translation in English of the pamphlet was extracted in the body of the election petition itself and, therefore, it formed part of the pleading in the election petition. A preliminary objection was raised that a copy of the pamphlet had not been annexed to the copy of the election petition served upon the respondent and, therefore, the election petition is liable to be dismissed under Section 86 (1) of "The Act". While the High Court sustained the objection and dismissed the election petition, the Supreme Court reversed the said decision of the High Court and stated that since the election petition itself reproduced the whole of the pamphlet and it formed part of the pleading, the annexure is only a piece of evidence in support of the allegations contained in the election petition and therefore, the mandatory provision of Section 86(1) will not be attracted in the case. This is a clear case where the annexure filed was a piece of evidence in support of the allegations mentioned in the election petition.
53. In Karunanidhi's case* the allegations in para 18(b) of the election petition related to an expenditure of about Rs. 50,000/- in erecting fancy banners throughout the constituency and it was alleged that there were about 50 such fancy banners, the cost of each banner being not less than Rs. 1,000/-. It was further averred in para 18(b) that a photograph of one such banner was filed along with the petition. Admittedly, the election petitioner did not annex a copy of the same to the copy of the election petition furnished to the elected candidate.
54. The learned Judges while considering the point stated as follows:
"It is obvious that the photograph was a part of the averment contained in paragraph 18(b). In the absence of the photograph the averment contained in paragraph 18(b) would be incomplete. The photograph referred to in paragraph 18(b) was therefore an integral part of the election petition. It followes that there was total non-compliance with the requirements of Sub-section (3) of Section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Ch. Subbamo's case , supra, the Court held that if there is a total and complete non-compliance with the provisions of Sub-section (3) of Section 81, the election petition could not be treated an "election petition presented in accordance with the provisions of this Part" within the meaning of Section 80 of the Act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan."
55. Similarly in Karunakaran's case, (supra 5) the question raised was that a video cassette called "Malayudi Purogathi" which was referred to in the pleading in para 11 of the election petition formed an integral part of the election petition or not. In the said para it was only mentioned that at the instigation of the elected candidate, the video cassette has been used in the constituency and two Government servants named therein viz., Shri Jose P. George and Sri Thomas Thottapally spoke and the same is a corrupt practice. Question arose whether the cassette formed an integral part of the election petition or not.
56. Learned Judges categorically held that the cassette was incorporated in the pleading by reference and unless a copy of the video cassette was given to the elected candidate, he would not know how the speaches of the said Government servants could assist the furtherance of the prospects of his election. The relevant passage is as follows:
"15. We have already referred to Section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81 (3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81 (3) and, as such, the Court has to dismiss the election petition under Section 86(1) for non-compliance with Section 81(3)".
57. From the above three decisions of the Supreme Court, it is clear that an "election petition" within the meaning of Section 81(3) means "election petition proper together with the documents or annexures which form integral part of the election petition". Such of those documents which are made part of the election petition by reference, without giving the contents of the document in full in the election petition, are documents which form integral part of the election petition. Wherever it becomes necessary to refer to the annexure to find out the details regarding corrupt practices alleged, those annexures become integral part of the pleading in the election petition. Such of those annexures, which form integral part of the election petition, do not accompany the election petition into Court, then the Court will have no other alternative except to dismiss the election petition in limine in view of the mandatory and stringent provisions of Section 86 of "The Act".
58. To the same effect is the Judgment of this Court rendered by P.A. Choudary J in Election Petition No. 23 of 1983 dated 23-9-1993. The relevant passage is as under:
"Applying the above reasoning of the Supreme Court in M. Karunanidhi's case (supra) to the facts of this case, I hold that documents 1 and 2 are part of the pleadings in this case and that the failure of the election petitioner to file copies of those documents into the Court is fatal to the maintainability of the election petition. That failure renders the election petition liable to be dismissed under Section 86 of the Act".
59. Let us apply the above principles laid down by the Judgments of the Supreme Court and this Court to the facts of the present case.
60. Allegations of corrupt practices are contained from para 11 at page 13 of the election petition. The heading of para 11 is given as "corrupt practices by Ministers and officials to help the first respondent". At page 16 in para 11 (iv), the averments made in the election petition are as follows:
"In reality, Home Minister came there to organise the police force in collusion with Sri Chandra Sekhara Reddy, Superintendent of Police, Respondent No. 15, for the purpose of organising transportation of the outsiders to impersonate as voters and facilitate rigging. Various vehicles so used and permitted by the police are mentioned in the letters of the petitioner and her compliants vide letter dated 17-3-1993, 2-4-1993, 3-4-1993 and 4-4-1993 are filed as Annexures 18, 19, 20, 20-A and 21 respectively. The fax message to the ninth respondent in this regard is marked as Annexure 22."
61. Now the contention is that these annexures are made part of the election petition by reference. Details are not mentioned in the election petition nor even a gist of the same is given. For the purpose of knowing the details and the contents i.e., the details of the vehicles, voters and whether there are any persons at all in the vehicles, if so who they are, one has to look to the annexures only. In view of the above, the annexures form integral part of the election petition and admittedly, the same did not accompany the election petition when it was filed into Court on 14-6-1993 and, therefore, the election petition is liable to be dismissed.
62. I am of the opinion that this contention is sustainable. A perusal of the allegations extracted above indicate that no details are given regarding various vehicles used for transportation of the outsiders to impersonate as voters and facilitate rigging. The allegations merely say that the vehicles so used and permitted by the police are mentioned in the letters and the complaints referred to therein are filed as Annexnres 18,19,20,20-A and 21. The fax message to that effect was also filed as Annexure 22. For knowing the details of the complaint and to find out as to who are the outsiders transported in the vehicles to impersonate as voters and facilitate rigging, one has to necessarily look into the annexures. The pleading is incomplete and in fact not even a gist of what is contained in those annexures is given in the pleading. On the facts and in the circumstances, I am of the opinion that the above mentioned annexures form an integral part of the election petition. Having regard to the well-settled principles of law, failure to file such annexures along with the election petition into Court, entails dismissal of the election petition.
63. At the same page, the following allegations are also referred to.
"Dr. Geetha Reddy, the Minister, officially travelled in car A.P. 21. 2121 and was escorting by Bus Number TAN 2333 in which bogus voters were transported to Panyamtownatabout8-30 A.M. (Banaganapally to Panyam Road) to impersonate as voters and rig the elections. This incident was reported by the petitioner to the Panyam Police Station (Annexure 23) and also videographed".
64. Contention is that the videograph and the complaint, Annexure 23, are made part of the election petition by reference and that gist or details contained therein have not been given in the election petition and one has to look to the videograph and Annexure 23 for finding out whether there are any persons at all in the bus and whether such a bus was actually being escorted and whether the persons in the bus are genuine voters or not, and if not whether those persons were brought to impersonate at the polling etc. Failure to file the annexures which form integral part of the election petition is fatal to the maintainability of the election petition.
65. A perusal of the allegations extracted above indicate that the petitioner has given the name of the Minister, car number in which she travelled and the bus which was being escorted in which the alleged bogus voters were being transported to Panyam Town at about 8.30 A.M. The incident was reported by the petitioner which is filed as Annexure 23. Sincedetails regarding the Minister and the car in which she was travelling as well as the bus, which was being escorted are given in the election petition, I am of the opinion that the annexure and the video are only pieces of evidence supporting the allegations. If that is so, the same will not form integral part of the election petition and it is not necessary to file the same along with the election petition. Failure to file Annexure 23 along with the election petition will not entail dismissal of the election petition in limine.
66. Reference is made to the allegations in page 26 which are as follows:
"Further, as already stated, agents were kidnapped by Ravi Kumar Goud at Veldurthi Mandal on the night of 2-4-1993. As a consequence of which the persons mentioned in letter dated 3-4-1993 (Annexure No. 46) at Sl. No. 1-4 who were required to be polling agents at Avuladade at Polling Booth No. 90, persons at Sl.No. 5-7 who were required to be the petitioner's polling agents at Konagarikunta polling booth No. 18 and persons mentioned at Sl.No. 8 and 9 who were required to be my agents at Cherukulapadu polling Booth Nos. 13 and 14 went unrepresented".
67. Contention is that the averments in the election petition did not give any details with regard to the names or the discription of the persons at S.Nos. 1 to 9 and 13 and 14 who were required to be the polling agents and who were kidnapped, as a result of which the above mentioned polling booths went unrepresented facilitating rigging.
68. Annexure 46 is made part of the election petition by reference. No details with regard to the persons at S.Nos. 1 to 9 and 13 and 14 have been given. If one wants to know who are the persons that were kidnapped and who are to be the petitioner's agents at the respective polling booths and whether those persons are really polling agents of the petitioner or not, one must necessarily look into Annexure 46. Without looking into the said annexure, it is not possible to know the details of the persons who are supposed to be the agents at the respective polling booths of the election petitioner. Particulars of the material facts are not contained in the election petition as such. The facts and full particulars with regard to particular corrupt practice can only be found in the annexure. Such a document, in my opinion, forms integral part of the election petition and it becomes incorporated in the election petition by reference. Failure to file annexure 46 into Court makes it incumbent on this Court to dismiss the election petition.
69. The allegations which are made at page 29 of the election petition are as follows:
"The following statements of various allegations made by various functionaries of the Congress party were obviously made to benefit the Chief Minister to enable him to get elected. The following baseless allegations are made before the electorate to prejudice them against the petitioner".
This is also made under the heading of "corrupt practices".
Date/ Newspaper Persons who participated Annexure No.
Place in Press Conference.
(1) (2) (3) (4)
7-4-93 Andhra 1. Dr. Geetha Reddy 55
Hyderabad Prabha 2. Smt. M. Varalakshmi 56 is
3. Smt. Nannapaneni English
Rajakumari Translation
4. Smt. Lazarus
5. Smt.V.RatnaKumari
6. Smt. E. Vijaya Laxmi
7. Smt. Kutuhalamma
8. Smt. Uma Venkatrama Reddy
9. Mari Ravindranath
10. Smt. M. Laxmi Devi
11. Smt. Amrutha
Kumari
17-3-93 Udayam 1. Smt. Mary Ravin- 57
Hyderabad dranath 58 Eng.
2. Smt. M. Laxmi Devi Translation.
3. Smt. G.Aruna Kumari
4. Smt. V.RatnaKumari
5. Smt.V.Vijayalakshmi
6. Smt. Samanthakamani
7. Smt. Ch. Lazerous
26-3-93 Andhra 1. V.Rambhopal 59
Kurnool Prabha Chowdary, MLA 60 Eng.
Translation.
26-3-93 Udayam 1. V.Ramanatha Reddy, 61
Nandyal MLA 62 Eng.
2. B. Venkata Reddy, Translation.
Ex.M.P.
3. Jagannatha Rao,
Mandal President
1-4-93 Andhra 1. Dr. Geetha Reddy, 63
Nandyal Prabha Minister 64 Eng.
2. Galla Aruna Kumari, Translation.
MLA
3. Smt. Vijaya Nirmala,
Artist
23-3-93 Andhra 1. Gangula Pratapa 65
Veldurthy Prabha Reddy, M.P. Rajya 66 Eng.
Sabha Translation.
1-4-93 Eenadu 1. K. Rambhopal Reddy 67
Panyam Ex. MLA 68 Eng.
2. Dasari Narayana Rao Translation.
Film Director.
3. Mary Ravindranath,
MLA
4. Mr. Santhosh Reddy,
Minister
24-3-93 Andhra 1. G. Prathap Reddy, 69
Nandyal Jyothi MP 70Eng.
Translation.
26-3-93 Andhra 1. Kotla Surya Prakash 71
Nandyal Jyothi Reddy, S/o Chief 72 Eng.
Minister Translation.
26-3-93 Andhra 1. Bojja Venkata Reddy 73
Nandyal Joythi Ex.M.P. 74 Eng.
Translation.
2-4-93 Eenadu 1. K. Rosaiah, Minister 75
Veldurthy 2. Diwakar Reddy, 76 Eng.
Minister Translation.
3. Hariram Jogaiah,
Minister
4. N. Rajakumari (Chief Whip)
1-4-93 Eenadu 1. Dr. Geetha Reddy, 77
Cementnagar MLA & Minister 78 Eng.
2. Mr. Madan Gopal, Translation.
MLA
3. G. Aruna Kumari,
MLA
4. Mari Ravindranath, MLA
5. Vijaya Nirmala, Film Artist
20-3-93 Andhra 1. P. Janardhan Reddy 79
Shadnagar Bhoomi Minister 80 Eng.
Translation.
1-4-93 Eenadu 1. Santosh Reddy, 81
Banagana- Minister 82 Eng.
pally 2. V.RambhupalChow- Translation.
dray Ex. MLA
2-4-93 Andhra 1. K. Rosaiah, Minister 83
Nandyal Bhoomi 2. M.V. Mysoora Reddy 84 Eng.
3. K. Ram Reddy Translation.
30-3-93 Andhra 43 Congress MLA's 85
Hyderabad Bhoomi 86 Eng.
Translation.
70. It is notnecessary to consider Annexures 55 and 56 as the statements were said to have been made on 7-4-1993, after the declaration of the result of the election. The other annexures are during the course of election process from 17-3-93 to 2-4-1993. When and where the statements were made and the paper in which the statements were published and the person who made the statement were only given in the tabular form. Neither the statements are extracted nor even the gist of the statements is given in the election petition.
71. Contention of Sri C. Padmanabha Reddy, learned Counsel appearing for the elected candidate is that these annexures were incorporated in the election petition by reference and therefore, they form integral part of the election petition and to find out the details with regard to the statements made against the election petitioner by the respective persons, one has to look into the statements i.e., annexures.
72. It is true that no details with regard to the statements alleged to have been made against the election petitioner were mentioned in the election petition. Not even gist of the alleged statements is given in the election petition. I have no doubt in my mind, having regard to the decisions in M. Karunanidhi v. H.V. Handa (supra 8) and Karunakaran's case (supra 5), that these annexures viz., Annexures 57, 59, 61, 63, 65, 67, 69, 71, 73, 75, 77, 79, 81, 83 and 85 are incorporated in the election petition by reference and they form an integral part of the election petition. Failure to file the same along with the election petition into Court on 14-6-1993 makes it incumbent on this Court to dismiss the election petition.
73. Even though, Sri C. Padmanabha Reddy, learned Counsel for the elected candidate contended that what applies to the above mentioned annexures equally applies to Annexures 87, 89, 91, 92, 93, 95, 95(a), 96, 98 and 100, I am not inclined to accept the said contention having regard to the fact that they were all made after the declaration of the result of the election.
74. Sri C. Padmanabha Reddy, learned Counsel for the elected candidate relied upon the averments at page 34 of the election petition for his contention that the election petition deserves to be dismissed in limine. This comes under the heading of "Rigging" at para 16. Rigging is definetely a corrupt practice, if proved vitiates the election. Relevant allegations are as follows:
"Given below the statement of various incidents of rigging along with the booth numbers, the place of booth, name of the complainant and the nature of the complaint. This is supported by individual complaints pertaining to those summarised in the same chapter". The statement supported by the individual complaints given by the polling agents and marked as Annexures contain allegations of large scale rigging in the election which materially affected the result of the election.
75. Annexure 105 relates to place of rigging at Sankalapuram in booth No. 39. Complainant's name is given. So far as rigging is concerned, it was mentioned that it was done by Muralidhar Reddy's son Sri Ramachandraiah and 30 others who came in car. The details of 30 others persons are not given. To find out as to who are those 30 persons against whom the allegations of rigging are made, one has to look at Annexure 105. Similarly, when we come to Annexure 107, it is mentioned that a detailed complaint was given to the Election Officer by Mr. Ganapaty on the above facts. Neither details nor even the gist of the complaint is given in the election petition. The pleading in the election petition only says that the complaint is filed as annexure 107. Similarly, with reference to Annexure 108 also, it is stated that the subject-matter of the complaint was addressed to Sri Lahari, I.A.S. on (1) forceful entry into the booths by non-resident Congress-I people for rigging and (2) refusal of receipt of complaints by the concerned polling officers. No details are given as to who forcefully entered into the booths, how many people entered and whether they are non-resident Congress-I people or not. In Annexure 114 also no details are given except stating booth capturing and rigging. The allegations mentioned in these annexures are incorporated in the election petition by reference and from part of pleading. Unless the elected candidate looks into those annexures, it will not be possible to know the facts, details and the basis of the complaints which from part of pleading. It was mentioned in the election petition itself that the above list of allegations and the incidents of rigging are supported by individual complaints given by the polling agents and they substantiate the large scale rigging in the election which materially affected the result of the election and that copy of the said reports are given in a statement.
76. It is also alleged at page 38 of the election petition as follows:
"The petitioner submits that the events and incidents of various dates referred to above including the election date have been videographed. The video recordings were also sent to the Chief Election Commissioner on 4th April, 1993 for his verification, inspection and necessary action. The video recordings were received by him but strangely for reasons known to him alone, he returned the same under a memo. The petitioner submits that the videograph recorded events and incidents in the manner they occurred without any exaggeration. The videograph correctly discloses the identity of the persons involved in the said events and incidents. The said video film and the videographers will be available to give evidence. The petitioner also submits that the evidence of a video film is also admissible. The said video film is being filed separately as a piece of evidence in support of the election petition."
77. These allegations contained in the election petition make it clear that for knowing correctly the identity of the persons involved in the incidents and for knowing the events and incidents as well as the manner in which they occurred and to meet the same the elected Candida will have to look into the videograph. The same was not filed into Court along with the election petition on 14-6-1993.
78. I have no doubt in my mind, having regard to the Judgments in Karunakaran's case (5 supra) and Kaninanidhi's Case (8 supra) that the annexures mentioned in 107, 108, 109, 110, 111, 112, 114, 116, 118, 120, 122 etc., from integral part of the election petition including the video cassette. Failure to file the annexures and the video cassette along with the election petition on 14-6-1993 leaves this Court with no other alternative but to dismiss the election petition. It is not correct to say that the videograph is a piece of evidence. It is incorporated in the election petition by reference and it is clearly mentioned that the videograph correctly discloses the identity of the persons involved in the events and incidents. Therefore, even on the basis of the allegations referred to above, it is necessary to look at the videograph for knowing the correct and full details of the events and incidents involving rigging.
79. To meet the contention advanced by Sri C. Padmanabha Reddy, learned Counsel for the elected candidate, Sri S. Ramachandra Rao, learned Counsel for the election petitioner relied upon Section 87 of "The Act" and "The Rules" made by the High Court to regulate the trial of election petitions. The learned Counsel particularly relied upon the language of Section 87 which states that subject to the provisions of the Act and any rules made thereunder, every application shall be tried by the High Court as nearly as may be, in accordance with the provisions of the Code of Civil Procedure, 1908, to the trial of suits. Therefore, it is contended that the trial of the election petition will be subject to the provisions of "The Act" and the Rules made thereunder. Rules insofar as they are relevant for the purpose of present discussion are extracted below:
"Rule 3. xx xx xx xx It shall be filed in the office of the Registrar by the petitioner or an advocate duly appointed by him. In addition to the number of copies required by Sub-section (3) of Section 81 of the Act, the petitioner shall file two more copies of the petition for Court record. He shall also file a certificate from the Head Accountant in token of having made the deposit required by Section 117 of the Act.
Rule 4.
The petitioner or his advocate shall appear on the third day of presentation of the Election Petition to meet the objections, if any, that may be raised by the office. He shall represent the Election Petition within three days of its return, after meeting all the objections."
80. The contention of the learned Counsel is that the election petition is filed on 14-6-1993, the last date of limitation. It was returned by the office of the Registry in terms of Rule 4 of "The Rules" raising certain objections which included the following:
"5. All the annexures mentioned in the petition should be filed noting the annexure number at the top of the annexure....time three days." Learned Counsel contended that as per Rule 4 of "The Rules", the office returned the election petition filed on 14-6-1993 to remove the defects or for complying with the objections pointed out and granted three days time for the same. This was done by the Registry on 16-6-1993 and within the period of three days, granted by the Registry, all the annexures were filed and the objections were complied with. Further, Sri S. Ramachandra Rao, the learned Counsel, stated that the election petition was posted for orders before the Court on 25-6-1993 on office objections and it was admitted and notices were ordered to the respondents on 5-7-1993 by the Court. By the said date, all the annexures were filed into Court i.e., 19-6-1993. Therefore, it is deemed that it is presented in accordance with "The Rules" and hence it cannot be said that the annexures did not accompany the election petition. The learned Counsel for election petitioner also contended that the respondents are not prejudiced for the reason that the election petition together with annexures were served on them pursuant to the orders of this Court dated 5-7-1993 directing issuance of notice to the respondents.
81. This submission of the learned Counsel appearing for the election petitioner is without any substance. Section 87 only prescribes the procedure regarding the trial of the election petition by the High Court and the presentation of the election petition. It cannot override the mandatory and stringent provisions of Sections 81 and 83 read with Section 86(1) of "The Act". In fact a similar contention advanced on the basis of "The Rules" of the High Court was repelled by the Supreme Court in Satya Narain v. Dhuja Ram, . The facts of the said case are as follows.
82. In the general elections to the Haryana Legislative Assembly held on March 11,1972, the appellant as well as four respondents before the Supreme Court were the contesting candidates for the Safidon Assembly Constituency No. 30. First respondent was declared elected on March 13, 1972 having obtained highest number of votes polled. The appellant before the Supreme Court filed an election petition in the High Court challenging the election on several grounds of corrupt practice. The election petition was presented to the Deputy Registrar (Judl) of the High Court on April 18, 1972. The last date for filing the election petition was 24-4-1972. It was admitted that the election petition was filed without the requisite spare copies on that date. The Deputy Registrar ordered the election petition to be put up on 24-4-1972 for scrutiny according to the rules of the High Court. When the election petition came up for scrutiny before the Deputy Registar on 24-4-1972, Counsel for the election petitioner appeared and requested time to remove the defects pointed out by the office, including the filing of spare copies. When the case was placed before the Deputy Registrar on 29-4-1972, spare copies of the petition have been filed by the petitioner and the other defects were also removed. When the matter ultimately came up for hearing before the learned single Judge, a preliminary objection was raised that the petition was not in conformity with Section 81 (3) of "The Act" inasmuch as requisite spare copies were not enclosed to the petition when it was originally presented on 18-4-1972 and therefore, the election petition is liable to be dismissed in limine in view of Section 86 (1) of "The Act". The learned single Judge held that the requirement of the spare copies accompanying the election petition is directory and not mandatory and that filing of spare copies of the election petition before the petition is laid, before the Judge for orders or even within the time granted by the Judge for the purpose, will amount to sufficient compliance of the provisions. There was some controvercy whether the spare copies were filed on 24-4-1972 or later. Learned Judges of the Supreme Court categorically found, agreeing with the High Court, that the requisite spare copies were not filed by the election petitioner on 24-4-1972. which was the last date for the purpose of limitation for filing the election petition. The observations of the learned Judges are apposite in this connection.
"We are, therefore, clearly of opinion that the first part of Section 81 (3) with which we are mainly concerned in this appeal is a peremptory provision and total noncompliance with the same will entail dismissal of the election petition under Section 86 of the Act".
Referring to the Rule of the High Court, learned Judges stated as follows in para 18 of the report:
"We may only add here that, in the absence of any provision under the Act or the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act."
Therefore, this Judgment clearly holds that the procedural rules governing presentation, return and re-presentation framed by the High Court cannot override the peremptory provisions of the Act. They are only procedural in nature. They prescribe the procedure regarding the presentation. But the requirement of presentation as enjoined by Section 81 or Section 83 cannot be dispensed with.
83. In this connection, it will be useful to note the Judgment of the Supreme Court in Mohan Raj v. Surendra Kumar, . In the said case, an elector of Pali Parliamentary Constitutency presented an election petition challenging the election of the successful candidate at the Pali Parliamentary Constituency in the Fourth General Elections. In the contest even though one R.D. Periwal filed nomination he withdrew the same. In the election petition, corrupt practice was alleged to have been committed by Sri Periwal in furtherance of the election of the successful candidate. However, he was not impleaded as required by the provisions of Section 82 of "The Act". Notices were ordered and the successful candidate also entered appearance and raised a preliminary objection stating that Sri R.D. Periwal, against whom corrupt practice was alleged, was not joined as a party to the petition and, therefore, it is liable to be dismissed under Section 86 (1) of "The Act". The preliminary objection was heard by a learned Judge of the High Court on 29-8-1967. On the same day, an application for amendment of the election petition was filed to delete the name of Sri R.D. Periwal occurring in para 16 of the election petition as also the reference to "election agent" in all the paragraphs containing the charges of corrupt practice. Learned Judges of the Supreme Court on an examination of the entire record were satisfied that Sri R.D. Pariwal was always meant when the reference was made to an election agent and the amendment application was only filed as an attempt to withdraw his name from the petition. Learned Judges upheld the dismissal of the election petition by the High Court as well as disallowing the amendment. In that connection, learned Judges had to consider the applicability of the Code of Civil Procedure and its effect. Learned Judges stated as follows in para 10, which are relevant for the purpose of the present discussion:
"No doubt the power of amendment is preserved to the Court and Order l Rule 10 enables the Court to strike out parties but the Court cannot use Order 6 Rule 17 or Order I Rule 10 to avoid the consequence of non-joinder for which a special provision is to be found in the Act. The Court cap order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see Section 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition."
This Judgment is directly in point and completely covers the argument of Sri S. Ramachandra Rao against his client. What applies to the Code of Civil Procedure applies with greater force to the Rules made by the High Court.
84. Sri S. Ramachandra Rao, learned Counsel for the election petitioner in support of his contention, relied upon the Judgment in Narayan Srinivas v. Samjibhai Bhaika, AIR 1981 Goa. 49. In the said case election petition was presented before the Registrar on 19-2-1990. Election petition and the attested copies contain the signature of the party. But the words "true copy" was not written. Question was whether failure to write the words "true copy" entails dismissal under the provisions of "The Act".
85. Learned Acting Judicial Commissioner relying upon the Judgments of the Supreme Court in Dr. Anup Singh v. Abdul Ghani, and in Subba Rao v. Member, Election Tribunal, held that not writing the words "true copy" on the copies above the signature will not attract the mandatory provisions of "The Act" and the election petition cannot be dismissed on that ground in limine. Supreme Court also held in similar circumstances in the above mentioned cases that it will amount to sufficient compliance of the requirements.
86. In the above cases, even though all the requirements were satisfied and all the copies were filed containing the signature of the applicant, the words "true copy" were not written by mistake. The said cases have no application or relevance for the purpose of deciding the present controvercy.
87. For the fore-going reasons, I am compelled by the mandatory provisions of "The Act" viz., Section 86 (1) to dismiss the election petition as it is not in compliance with Section 81 (3) of "The Act" as the annexures 18, 19, 20, 20-A, 21, 22, 46, 57, 59, 61, 63, 65, 67, 69, 71, 73, 75, 77, 79, 81, 83, 85, 87, 89, 91, 92, 93, 95, 96, 98, 100, 105, 107, 108, 109, 110, 111, 112, 114, 116, 118, 120, 122, 124, 126, 128, 130, 132, 133, 135, 137, 138, 140, 142, 143, 144 and the video film, did not accompany the election petition filed into Court in 14-6-1993 which was the last date for presenting the election petition. It is unfortunate that this Court has no other alternative except to dismiss the election petition because of the infraction of Section 81 (3) and Section 83 of "The Act" entailing dismissal of the election petition under Section 86 (1) of "The Act". In this connection, I cannot but echo and refer to the sentiments expressed and the but the observations made by Justice Dwivedi of Supreme Court, while agreeing with the Judgment of the other two learned Judges in Satya Namin's case (9 supra), that the decisions establish primacy of procedure over justice instead of the procedure being hand made to the administration of Justice. The rigidity of Section 86 (1) of "The Act" leaves me with no option but to dismiss the election petition in limine.
88. Point No. 3: The contention of petitioner in Application No. 356 of 1993 is that the election petitioner impleaded respondents 9 to 28 who are not at all necessary parties in the election petition and it amounts to misjoinder of parties and on that ground, it is liable to be dismissed under Section 86 of "The Act", as the election petition is not in compliance of with the provisions of Section 82 of "The Act".
89. In any event, it is argued on behalf of the petitioner that the names of respondents 9 to 28 are liable to be struck off from the array of parties. This being a smaller relief can be granted in a case where larger relief of dismissal of election petition is sought for.
90. Application No. 408 of 1993 and Application No. 531 of 1993 have been filed by the learned Advocate General and Sri Innayya Reddy, learned Standing Counsel for Central Government, respectively seeking to strike out the names of their clients viz., respondents 10 to 12,15 and 9th respondent from the array of parties on the ground that they are not at all necessary parties to the election petition. Sri K. Venkatramaiah appearing for 14th respondent, Sri Pradyumna Kumar Reddy, appearing for 13th respondent, Sri Haranath Gupta appearing for 16th respondent, Sri Surya Karan Reddy appearing for respondents 18 and 27, Sri C. Praveen Kumar appearing for 22nd respondent Sri M. Panduranga Rao appearing for 23rd respondent. Sri K. Venkateswar Reddy appearing for 24th respondent and Sri E. Ellareddy appearing for respondents 20 and 26 adopted the arguments and sought for striking off the names of their respective clients from the array of parties.
91. To appreciate this contention it is necessary to extract the relevant provisions of "The Act".
"Section 82.
Parties to the Petition:
A petitioner shall join as respondents to his petition -
(a) Where the petitioner, in addition to claiming a 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 candidates against whom allegations of any corrupt practice are made in the petition.
Section 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 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."
92. The contention in this regard is that the election petitioner shall join as respondents to the election petition all the contesting candidates other than the petitioner if the election petitioner is claiming a declaration not only that the election of all or any of the returned candidates is void but also claims a further declaration that he himself or any other candidate has been duly elected.. If the election petitioner is not claiming a further declaration that he or any other candidate to have been duly elected, then he should implead all the returned candidates. In any event he should implead any other candidate against whom allegations of any corrupt practice are made in the petition. In any case, "candidate" whether elected or contesting or "any other candidate" against whom allegations of corrupt practice have been made, alone shall be joined as respondents to an election petition. Respondents 9 to 28 in the election petition not being "returned candidates", or "contesting candidates" "or" any other candidates should not have been joined as respondents to the election petition. Joining such persons amounts to misjoinder and it "does not comply with the provisions of Section 82" and therefore, the election petition is liable to be dismissed under Section 86 of "The Act", is the contention advanced by M/s. Padmanabha Reddy and K. Venkatramaiah, learned Counsel appearing on behalf of the elected candidate.
93. Now let us look at the definition of "candidate" as substituted by Act 40 of 1975 which is as under:
"79. Definitions -In this Part and in part VII, unless the context otherwise requires -
(a) xx xx xx xx
(b) "Candidate" means a person who has been or claims to have been duly nominated as a candidate at any election.
(c) xx xx xx xx
(d) xx xx xx xx
(e) xx xx xx xx
(f) "Returned candidate" means a candidate whose name has been published under Section 67 as duly elected."
94. Section 82 of "The Act" contemplates joining of "returned candidate", "contesting candidate" or "any other candidate", against whom allegations of corrupt practice have been made, as parties to the election petition. "Candidate" means a person who has been or claims to have been duly nominated as a candidate at any election. "Returned Candidate" means a person whose name has been published under Section 67 as "duly elected". "Contesting candidate" is one who has not withdrawn his nomination under Section 37 of "The Act". "Any other candidate" includes a candidate who had withdrawn his candidature. (Vide Har Swarup v. Brij Bhushan Saran, AIR 1967 SC 836 and Mohan Raj v. Surendra Kumar (10 supra).
95. In support of the above contention, no decision which is directly in point is placed before me. On the other hand, a Judgment of the Constitution Bench of the Supreme Court in Murarka Radheyshyam v. Roop Singh, provides a complete answer to this contention. In the said case one Murarka Radheyshyam Ram Kumar was elected to the House of the People from Jhunjhunu Parliamentary Constituency in Rajasthan. Two election petitions were filed seeking to set aside the election of the said Sri Murarka Radheyshyam. One of the election petitions was filed by an elector by name Ridmal Singh and it was numbered as Election Petition No. 269 of 1962. A preliminary objection was raised for the maintainability of the election petition. The contention was that one Ballu or Balji, whose nomination paper was rejected, and who was not a contesting candidate was improperly impleaded as 7th respondent to the election petition and that amounts to non-compliance of the mandatory provisions of Section 82 of "The Act" and therefore, the election petition is liable to be dismissed. Sri Ballu or Balji was not a contesting candidate within the meaning of Section 82 of "The Act" because his nomination paper had been rejected. Apart from joining Ballu or Balji as respondent in the Election Petition No. 269 of 1962, all the contesting candidates were joined as respondents as required by Section 82 of "The Act". While considering the question of what is meant by complying with the requirement of Section 82 in the said context, Justice S.K. Das speaking for the Constitution Bench stated as follows:
"The question before us is, does this amount to non-compliance with, or contravention of the provisions of Section 82?. Learned Counsel for the appellant wishes us to read Section 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 Section 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 the Section 82 and no question of dismissing the petition under Sub-section (3) of Section 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 Section 82 of the Act."
96. Having regard to this categorical exposition of law on the subject, it is difficult to accept the contention of M/s. Padmanabha Reddy and K. Venkatramaiah, the learned Counsel appearing for the "returned candidate" that impleading of respondents 9 to 28 entails dismissal of election petition.
97. Sri K. Venkatramaiah, learned Counsel contended that the cases in Jagannath v. Jaswanth Sing, ; Muraka Radhey Shyam v. Roop Singh (15 supra) and Jyothi Basu v. Debi Ghosal, are not authorities for the proposition that even though all the necessary parties are impleaded as respondents in the election petition and if parties who are not contemplated by Section 82 of "The Act" are impleaded, the election petition is not liable to be dismissed in limine. Learned Counsel stated that in all the three cases referred to above, application was not filed by the successful candidate to dismiss the election petition and, therefore, this question did not fall for consideration. It is said that in the present case, the successful candidate in the election filed the Application No. 356 of 1993 seeking dismissal and that makes all the difference. In support of this contention, learned Counsel relied upon the observations of the Supreme Court in Muraka Redhey Shyam's case (15 supra) at page 1549 Column (1) middle which is to the following effect:
"In the view we have taken it is unnecessary to consider further the legal effect of a contravention of the provisions of Section 82."
98. I am of the view that this observation should not be understood as is urged to be understood by the learned Counsel. The learned Judges amplified the said observation at page 1549 Column (2) top in the following words:
"We need not however pursue this question any further, because we have held that in the present cases there was no contravention of the provisions of Section 82."
99. When all the persons required to be added under Section 82 of "The Act", have been added, question of contravention of Section 82 of "The Act" will not arise. Therefore, the contention in this regard is unsustainable.
100. Further, it is to be noted that all the three cases considered what is meant by the words "comply with the provisions of Section 82 "occurring in Section 86 of "The Act". The learned Judges held in all the above three cases, in no unmistakable terms, that if all the candidates required to be added as contemplated under Section 82 are added, it amounts to complying with the provisions of Section 82 of "The Act". Merely because some other persons are also added, it does not mean that the election petition does not comply with the provisions of Section 82 of "The Act".
101. It is then contended by Sri S. Ramachandra Rao, learned Counsel for the election petitioner that if the Court comes to the conclusion on the basis of the decision reported in lyothi Basu'scase (18 supra) that the election petition is liable to be dismissed on the ground that parties who are not required to be added by Section 82 of "The Act", are added then the Judgment in Jothi Basil's case (18 supra) cannot be treated as good law having regard to the decisions of larger benches in Muraka Radhey Shyam 's case (15 supra) and Jagannath 's case (16 supra). For this proposition regarding precedents, learned Counsel relied upon the Judgment of the Supreme Court in Union of India v. Raghubir Sing, .
102. In the view I have taken, it is unnecessary to go into this question. Even otherwise, I do not find any conflict whatsoever in the three Judgments referred to above. All the three Judgments clearly held that if all the parties required to be added by Section 82, are added as respondents in the election petition, it will amount to complying with the provisions of Section 82 and such an election petition will not attract the penal provision of Section 86 of "The Act" merely because some others are also added as respondents.
103. Sri S. Ramachandra Rao, learned Counsel appearing for the election petitioner then contended that even if the election petition does not comply with the provisions of Section 82 of "The Act", such a petition cannot be dismissed in limine, and can only be dismissed at the conclusion of the trial on the grounds sufficient to dismiss it having regard to the provisions of Section 98 of "The Act". In support of this contention, he relied upon the passage contained in para 11 of the Judgment in Jagannath's case (17 supra) which is as under:
"It is significant that both the election commission and the Tribunal have been given powers in express terms to dismiss ah election petition which does not comply with the requirements of Sections 81, 83 or 117, but no such powers are given to dismiss a petition "in limine"which does not comply with the provisions of Section 82. Such a petition can only be dismissed at the conclusion of the trial and on grounds sufficient to dismiss it. (Section 98)."
104. This decision, in my opinion, will not help the election petitioner in view of the following. The Judgment was rendered at a time when Section 82 was not included in the mandatory provision of Section 85 (which was the earlier corresponding provision to Section 86). At the time the learned Judges were considering the case, Section 85, which was the corresponding earlier provision, only included Sections 81, 83 and 117 and it is as follows:
"Section 85. - Petition when to be dismissed:
That the provisions of Sections 81, 83 or 117 are not complied with, the election commission shall dismiss the petition,"
The mandatory provision contained in Sub-section (4) of Section 90 also is to the following effect:
"Section 90. xx xx xx xx (4) Notwithstanding anything contained in Section 85, the tribunal may dismiss an election petition which does not comply with the provisions of Sections 81, 83 or 117."
105. Having regard to the above, the learned Judges made the above extracted observation in para 11 of the Judgment. Those observations will have no application to the present case. Representation of the People Act, 1951 underwent several amendments. Corresponding Section for Section 85 in the Act, as it stands now is Section 86 in which Section 82 is also included. I have already extracted Section 86. Having regard to the mandatory nature of Section 86, there can be no doubt that if the election petition is not in compliance with Section 82, it is liable to be dismissed in limine as the law stands to-day.
106. The second or alternative submission made by the learned Counsel and adopted and supported by the other Counsel appearing for the other respondents is that the names of respondents 9 to 28 who are not at all necessary parties to be joined in the election petition, should be struck off from the array of parties in the election petition. In this connection as already submitted, the learned Advocate General filed Application No. 408 of 1993 on behalf of respondents 10 to 12 and 15 for striking off their names from the array of parties, while Sri Innayya Reddy, learned Standing Counsel for Central Government, filed Application No. 531 of 1993 for a similar relief viz., to strike out the name of the ninth respondent from the array of parties. The other Counsel though did not file independent applications, adopted the arguments of learned Counsel M/s. C. Padmanabha Reddy, Innayya Reddy and learned Advocate General and requested that the names of the respective respondents for whom they are appearing should be struck off from the array of parties.
107. Sri S. Ramachandra Rao, learned Counsel appearing for the election petitioner strenuously contended that specific allegations of corrupt practice have been levelled against the respondents 9 to 28 in the election petition and there is material to substantiate the same and therefore, they are necessary parties to the election petition. The allegations cannot be gone into and determined in their absence and it is not possible to adjudicate on those allegations behind their back. If any such adjudication is made it will be in violation of the principles of natural justice and therefore, they are necessary parties for a complete, effective and just disposal of the election petition. He drew my attention to the relevant paragraphs where allegations are made with reference to each of the respondents. He further contended that the prayer in Application No. 356 of 1993 is only for the dismissal of the election petition for non-compliance of the requirements of Section 82 and not for striking out the names of respondents 9 to 28 from the array of parties and, therefore, the alternative relief cannot be granted.
108. I do not think that this objection can detain us longer. The learned Advocate General filed Application No. 408 of 1993 for striking out the names of respondents 10 to 12 and 15 from the array of parties. Sri Innayya Reddy filed Application No. 531 of 1993 on behalf of 9th respondent for striking out his name from the array of parties. The other learned Counsel also joined in the said prayer for striking out the names of their respective clients from the array of parties. The office also raised objection as to how respondents 9 to 28 are necessary parties to the election petition, subject which election petition was admitted. Further, the decision in Muraka Radhey Shyam's case (15 supra) clearly held that 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 Section 82 of "The Act". Accordingly, the objection of Sri S. Ramachandra Rao on this aspect has no substance.
109. In support of the contention that respondents 9 to 28 are not parties required to be joined under Section 82 of "The Act" and, therefore, their names should be struck off from the array of parties, the learned Counsel relied upon the Judgment of the Supreme Court in Jyothi Basil's case (17 supra). The facts in the said case are as follows:
In the mid-term Parliamentary elections held in January, 1980, one Mohd. Ismail, whose candidature was sponsored by Communist Party of India (Marxist), was elected to the House of the People from 19 Barrackpore Parliamentary Constituency. One Debi Ghoshal, a candidate sponsored by the Indian National Congress, who was defeated at the election, filed election petition questioning the election of the returned candidate Mohd. Ismail. To the election petition, he impleaded the returned candidate Mohd. Ismail as well as the other unsuccessful candidates as respondents 2, 3 and 4. Apart from the above, the petitioner therein impleaded several others as respondents viz., the District Magistrate and Returning Officer; Sri Jyothi Basu, Chief Minister; Budhadeb Bhattacharya, Minister for Information and Publicity; Sri Mohd. Amin, Minister of the Transport Branch of the Home Department; and Sri Hasheem Abdul Halim, Minister of the Legislative and Judicial Department, Electoral Registration Officer etc. They were all impleaded as parties to the election petition on the ground they colluded and conspired with the returned candidate in committing various alleged corrupt practices.
110. The Chief Minister and the two other Ministers viz., Hasheem Abdul Halim and Budhadeb Bhattacharya filed applications before the High Court of Calcutta to strike out their names from the array of parties in the election petition on the ground that they are not at all parties required to be joined in the election petition as per the provisions of Section 82 of the Act. The said application was dismissed by the Calcutta High Court on the ground that they are all proper parties. Questioning the said order, they preferred an appeal to the Supreme Court. The facts and circumstances are identical with the present case. Here also a number of officials including the Chief Election Commissioner have been impleaded as respondents besides several Ministers of the Cabinet and others alleging that they have indulged in corrupt practices in furtherance of the election of the "returned candidate".
111. The learned Judges of the Supreme Court, after referring to the provisions of Section 82 and other provisions of "The Act", stated as follows:
"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 right 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 the concept of "proper parties" is and must remain align 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 Section 82 and Section 86 (4) and no others, however, desirable and expedient it may appear to be, none else shall be joined as respondents.
While so holding the learned Judges allowed the appeal and struck off the names of appellants as well as 7th respondent who are the Chief Minister and other Ministers of the Cabinet, Government of West Bengal. This Judgment, in my opinion, complete))' covers the point under consideration in favour of striking off the names of respondents 9 to 28 from the array of parties in the election petition. The decision of the Supreme Court in Muraka Redhey Shyam's case (15 supra) is also to the same effect. The relevant observations in the Judgment are as under:
"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 Section 82 of the Act".
112. Supreme Court in Special Leave Petition to Appeal (C) No. 2127 of 1991 dated 18-2-1991 reiterated the same view. In fact, the matter arose out of an order of the High Court of Andhra Pradesh. The petitioner before the Supreme Court was declared elected as a Member of the A.P. Legislative Assembly from the Atmakur Constituency in Nellore District in the elections held on November 29, 1989. Unsuccessful candidate, one Sri K. Anjaneya Reddy filed an election petition before this Court questioning the election of the successful candidate. In the election petition, order of the Election Commission dated 22-11-1989 declaring the polling at Bhoga Samudram polling station as void and directing re-poll was questioned. The Election Commission of India was impleaded as one of the respondents in the election petition. The Election Commission moved an application before this Court for deleting it from the array of parties on the ground that it is not a necessary party. This Court by its order dated 13-11-1990 directed the deletion of the Election Commission from the array of parties holding that it was neither necessary nor a proper party. The said order was challenged before the Supreme Court. The learned Judges of the Supreme Court upheld the order of the High Court following the Judgments in K. V. Rao v. B.N. Reddi (1 supra) as well as Jyothi Basu's case (17 supra)and held that deletion of the Election Commission from the array of parties by the High Court is proper.
113. To the same effect is the Judgment of the learned single Judge of this Court in Application No. 177 of 1990 in Election Petition No. 27 of 1990 dated 13-3-1990. In the said case also, the Chief Election Commission of India was joined as 6th respondent in the election petition. Application No. 177 of 1990 was moved on it's behalf by the learned Standing Counsel for the Central Government for striking out its name from the array of parties in the election partition, relying upon the decision in Jyothi Basu's case (17 supra) Immaneni Panduranga Rao, J., allowed the said application and directed deletion of the name of the Chief Election Commission from the array of parties in the election petition.
114. Sri S. Ramachandra Rao, learned Counsel appearing for the election petitioner contended, relying upon the provision of Section 87 of "The Act*', that provisions of Civil Procedure Code such as Order 1 Rule 10 are applicable in regulating the trial of election petitions. Therefore, the concept of necessary and proper parties is applicable to election petitions also and, therefore, respondents 9 to 28, who are, at any rate, proper parties, may be impleaded as respondents to the election petition.
115. The above submission runs counter to the decisions in K.V.Rao's case (1 supra); Mohan Raj case (10 supra) and Jyothi Basu's case (17 supra) as well as the Judgment in Special Leave Petition (6) No. 2127 of 1991 dated 18-2-1991. Having regard to the same, I find no substance in the said contention.
116. For the foregoing reasons, I have no hesitation in holding that respondents 9 to 28 are not persons who are required to be joined in an election petition as per Section 82 of "The Act" and they are entitled to have their names struck off from the array of parties in the election petition. It is true that some of them are not yet served or even though served not entered appearance. Even so, what applies to the persons who are contesting, equally applies to the others also and I do not see any ground to confine the order only to respondents 9 to 16, 18, 20, 22 to 24,26 and 27 who entered appearance.
117. In view of the above, the names of respondents 9 to 28 will be deleted or struck off from the array of parties in the election petition.
118. Accordingly, Application Nos. 408 and 531 of 1993 are allowed. Application No. 356 of 1993 is allowed and the names of respondents 9 to 28 are deleted/struck off from the array of parties in the election petition.
119. Having regard to the conclusion reached on Point No. 2, Election Petition is liable to be dismissed and it is accordingly dismissed as indicated above.