Bombay High Court
Rahul Ragunath Ovhal vs The Election Commission Of India And 2 ... on 4 March, 2020
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
67.AEPL3_2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION (L) NO. 3 OF 2019
IN
ELECTION PETITION NO. 9 OF 2019
The Election Commission of India & Anr. ... Applicants
in the matter between
Rahul Ragunath Ovhal ... Petitioner
V/s.
The Election Commission of India & Ors. ... Respondents
Ms. Drishti Shah i/b. Rekha Rajagopal for the applicants.
Ms. Anita Sonawane Sachdev and Sandeep Rankhambe for the petitioner
Mr. Kedar Dighe, AGP for respondent no. 2.
Mr. Shekhar Jagtap a/w. Ms. Sairuchita Chowdhary for respondent no. 3.
CORAM : G.S.KULKARNI, J.
DATE : 4 March 2020 P.C.:
1. This is an application filed by the Election Commission of India and the Returning Officer, respondent nos.1 and 2 in the above election petition which is filed by the petitioner-Rahul Ragunath Ovhal, challenging the election of the original respondent no.3-Dr.Amol Ramsing Kolhe. This application interalia prays that the applicants cannot be made parties to the election petition and they be accordingly deleted from the proceedings of the election petition.
2. In supporting the prayers, the applicants have referred to the provisions of Section 82 of the Representation of the People Act,1951 (for short 'the R.P.Act) which provides that where an election-petitioner, in addition to claiming declaration 1/7 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 13:01:44 :::
67.AEPL3_2019.doc 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, would be required to be impleaded as parties, and any other candidate against whom allegations of any corrupt practice are made in the petition.
3. Learned Counsel for the applicants has also referred to Section 86(1) of the Act which provides that the High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Section 86(4) provides that any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
4. In regard to the question whether the general principles under the CPC for joinder of parties would be applicable, it is necessary to refer to the provisions of Section 87 of the R.P.Act. Section 87(1) provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits.
5. The applicants contend that the principles of law on interpretation of the 2/7 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 13:01:44 :::
67.AEPL3_2019.doc above provisions of the R.P. Act are now well settled referring to the decisions of the Supreme Court in (i) Jyoti Basu & Ors. Vs. Debi Ghosal & Ors. 1; (ii) B.Sundra Rami Reddy Vs. Election Commission & Ors.2 and (iii) Micheal Fernandes Vs. C.K.Jaffar Sharif & Ors.3. The applicants contend that the Supreme Court has clearly held that right to elect or to be elected are neither fundamental rights nor common law rights but are confined to the provisions of the Act and Rules made thereunder and consequently the rights and remedies are all limited to those provided by the statutory provisions. It is submitted that the Supreme Court while dealing with the question of joinder of parties, referring to Section 82 and 86(4) of the Act has held that the contest of the election petition is designed to be confined to the candidates at the election and all others are excluded and therefore, only those may be joined as respondents to the election petition who are mentioned in Section 82 and 86(4) of the Act. Thus, according to the applicants, the Election Commission of India and the Returning Officer cannot be made parties to this petition.
6. Although no reply is filed on behalf of the petitioner, this application is opposed on behalf of the petitioner, contending that the applicants are necessary parties to the election petition considering the issue as raised by the petitioner in the present petition. Learned Counsel for the original petitioner referring to the Handbook for Returning Officer which provides in paragraph 15.30.1 urged that there are obligation on the Returning officer for action to be taken during counting 1 1982(1) SCC 691 2 1991 Suppl(2) SCC 624 3 AIR 2002 SC 1041 3/7 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 13:01:44 :::
67.AEPL3_2019.doc of votes in case Presiding Officer does not press close button of CU at the end of Poll and Clause (d) thereto casts a further obligation that in case, total votes polled in the machine(s) does not tally with the total votes polled mentioned in the Form- 17C, the matter should be referred by the Returning Officer to the Election Commission for its decision and action may be taken as per the direction of the Commission and provides for a further procedure which is required to be followed by the Returning Officer. It is his contention that in this context the Returning officer would be a necessary party.
7. Having heard the learned Counsel for the parties and having considered the legal position as enunciated in the decisions of the Supreme Court as noted above, I am not persuaded to accept the contention as urged on behalf of the respondent/original petitioner. In Jyoti Basu & Ors. Vs. Debi Ghosal & Ors. (supra) the Supreme Court has held that the public policy and the legislative wisdom pointed out to the interpretation of the provisions of the Representation of the People Act which does not permit joining of the parties persons other than those mentioned in Section 82 and 86(4). In paragraph 13, the Court observed as under:-
"13. In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. The appeal is therefore, allowed with costs and the names of the appellants and the seventh respondent in the appeal are directed to be struck out from the array of parties in the election petition. We may mention that in arriving at our conclusion we have also considered the following decisions cited before us: S.B. Adityen & Anr. v. S. Kandaswami & Ors.,(1) Dwijendra Lal Sen Gupta v. Herekrishna Koner,(2) H.R. Gokhale v. Bharucha Noshir C. & Ors.,(3) 4/7 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 13:01:44 :::
67.AEPL3_2019.doc and S. Iqbal Singh v. S. Gurdas Singh Badal & Ors.(4) N.V.K, Appeal allowed."
8. B.Sundra Rami Reddy Vs. Election Commission & Ors. (supra) was a case in which the petitioner was declared elected as a Member of the Andhra Pradesh Legislative Assembly from Attakur Constituency of Nellore District, who was impleaded as a respondent to the election petition filed by K.Anjaneya Reddy - respondent in the said case who was an unsuccessful candidate and who questioned the petitioner's election. In the election petition, the petitioner had also challenged the validity of Election Commission's decision to declare polling, at the polling station as void and of directing re-poll at that polling station. It is in this context the petitioner impleaded Election Commission of India as a respondent to the election petition. The Election Commission made an application before the High Court for deleting it from array of the parties on the ground that it was not a necessary party. The High Court held that the Election Commission was neither necessary nor a proper party to the election petition and accordingly issued a direction for deletion of the Election Commission of India from the array of parties. The petitioner challenged the said order passed by the High Court before the Supreme Court. It is in this context the Supreme Court referring to Section 82 of the Representation of the People Act and the provisions of Civil Procedure Code,1908 reiterated the position in law in regard to limited applicability of the provisions of CPC to the trial of the election petition. The Supreme Court held that since Section 82 designates the persons who are to be joined as respondent to the petition, provisions of the Civil Procedure Code,1908 relating to the joinder of parties stands excluded. It was 5/7 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 13:01:44 :::
67.AEPL3_2019.doc held that the concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Section 82 and 87 of the Act. It was held that the R.P. Act is a self-contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of a proper party. The Supreme Court held thus:-
"The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Section 82 and 87 of the Act. The Act is a self-contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of proper party. In K.Venkateswara Rao v. Bekkam Narasimha Reddi, this Court while discussing the application of Order I Rule 10 of the Civil Procedure Code to an election petition held that there could not be any addition of parties in the case of an election petition except under the provisions of Sub-section (4) of Section 86 of the Act. Again in Jyoti Basu Vs. Debi Ghosal, this Court held that the concept of 'proper party' is and must remain alien to an election dispute under the Representation of the People Act,1951. Only those may be joined as respondents to an election petition who are mentioned in 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."
9. In Michael B.Fernandes Vs. C.K.Jaffer Sharief and Ors. 4, a three Judges Bench of the Supreme Court, referring to the judgments in Jyoti Basu & Ors. (supra) and B.Sundra Rami Reddy (supra), confirmed the principles as laid down in these decisions. The Court observed as under:
"In the aforesaid premises, we reiterate the view taken by this Court in Jyoti Basu Case and reaffirmed in the later case in B.Sundara Rami Reddy and we see no infirmity with the impugned judgment, requiring our interference under Article 136 of the Constitution."
4 (2002)3 SCC 521 6/7 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 13:01:44 :::
67.AEPL3_2019.doc
10. In view of the above discussion, I am of the clear opinion that neither the Election Commission of India nor the Returning Officer can be necessary parties to an election petition as filed by the petitioner who is a defeated candidate. Hence the application as filed by the applicants is required to the allowed.
11. My attention is also drawn to an order passed by the learned Single Judge of this Court in the case "Aslam Badshahji Sayyed Vs. The Election Commission of India & Ors."5 wherein the learned Single Judge of this Court has taken a similar view.
12. Resultantly the application succeeds. It is accordingly allowed in terms of prayer clause (a) and (b).
13. Necessary amendment be carried out within a period of two weeks from today.
(G.S.KULKARNI, J.) 5 Election Petition no.16 of 2019 order. dt. 16.1.2020 7/7 ::: Uploaded on - 11/03/2020 ::: Downloaded on - 07/06/2020 13:01:44 :::