Gujarat High Court
Niranjan Somabhai Ghosh vs The Election Commissioner Of India on 5 August, 2025
NEUTRAL CITATION
C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025
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Reserved On : 22/07/2025
Pronounced On : 05/08/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/ELECTION PETITION NO. 4 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
√ -
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NIRANJAN SOMABHAI GHOSH
Versus
THE ELECTION COMMISSIONER OF INDIA & ORS.
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MR TUSHAR MEHTA, Ld. SG with MS MANISHA LAVKUMAR SHAH,
Ld. AAG with MR GURSHARANSINGH H. VIRK, Ld. GP for the
Respondent(s) No. 3
MS MANISHA LAVKUMAR SHAH, Ld. AAG with MR
GURSHARANSINGH H. VIRK, Ld. GP with MS DHARITRI
PANCHOLI, Ld. AGP for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. By filing instant petition under Articles 19(1)a, 226 and 324 of the Constitute of India, under Section 22(2), 36 and 80 of the Representation of the People Act, 1951, under the provision of the Registration of Electors Rules, 1960, under the provision of the Conduct of Elections Rules, 1961, under the provision of the Official Secrets Act, 1923 as well as under the provision of the Right to Information Act, the petitioner has prayed for Page 1 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined following reliefs, "(a) The Returning Officer did not follow those instructions while scrutinizing the nomination papers, adopting a wrong procedure, therefore, the election of 6- Gandhinagar Parliamentary Constituency must be declared to be void without any further delay.
(b) that the four persons (including candidate) who were present on the candidate behalf at the time of scrutiny, have a right to have all reasonable facilities for examining the nomination papers of all the candidates which were taken up for scrutiny by the Returning Officer, opportunity was not provided to all candidates who have submitted the nominations of forms. Kindly to be passed an order against the responsible officers of Gujarat Governments involved (electoral machinery) for their negligence's, since their lack of devotion to their duties as mentioned this election petition."
2. Heard learned Party-in-Person for the petitioner, learned Solicitor General, Mr. Tushar Mehta assisted by learned Government Pleader, Mr. Gursharansingh H. Virk for the respondent no.3 and learned Additional Advocate General, Ms. Manisha Lavkumar Shah assisted by learned AGP Ms. Dharitri Pancholi for the respondent no.4.
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3. At the outset, learned Solicitor General, Mr. Tushar Mehta, has raised preliminary issue with regard to maintainability of the present petition as the petitioner has filed present election petition under the provision of the Representation of the People Act, 1951 (hereinafter referred to as "the Act of 1951" for short) in view of the fact that at the time of filing of the present petition, certain Rules and Regulations as mentioned in the statute are required to be adhered with in stricto sensu manner, which in the present case, have not been adhered with and if there is any procedural lapse and deviation from the provision of law, in that event, as per the mandatory provision of the statute, the election petition may not be entertained and it may be dismissed in limine.
4. Learned Solicitor General, Mr. Mehta submitted that for the purpose of filing the election petition, there are certain important provision of law, which are mandatory in nature, therefore, those mandatory provisions are required to be complied with before entertaining the election petition, otherwise, the election petition is not maintainable and here in the present case on hand, there is defect in the present petition while filing it, therefore solely on that ground alone, the present petition may be dismissed.
5. Learned Solicitor General, Mr. Mehta has referred to the provision of Section 285 of the Gujarat Page 3 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined High Court Rules, 1993 (hereinafter referred to as "the Rules of 1993" for short), which provides for "petition to be placed for orders after removal of office objections". He submitted that as per the said provision, at the time of submission of the election petition before this Hon'ble Court, certain office objections are required to be removed at the hands of the office and once the office objections are removed then, the matter shall be placed before the Hon'ble Court for consideration as to whether the election petition is liable to be dismissed under Section 86(1) of the Act of 1951 and if the Hon'ble Court would jump to a conclusion that the said election petition fulfills all requirements of Section 86(1) of the Act of 1951, in that event, after considering the merits of the case, the Hon'ble Court shall direct issue of summons upon the respondents. Making above submission, learned Solicitor General has referred to the provision of Section 86 of the Act of 1951 and forcefully submitted that for the purpose of compliance of Section 86 of the Act of 1951, the Hon'ble Court has to verify as to whether the petition fulfills the criteria as mentioned in Sections 81, 82 and 117 of the Act of 1951 or not and if any lacuna is found out in the petition, in that event, by exercising powers under Section 98(a) of the Act of 1951, the said election petition filed by the petitioner can be dismissed.
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6. Learned Solicitor General, at this stage, has referred to Section 82 of the Act of 1951, which provides for "parties to the petition" and submitted that condition precedent and the basic requirement in the election petition is that at the time of challenging the election, the petitioner has to pray for declaration of the election of the Returned Candidate as void and further declaration that he himself or any other candidate be declared as duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidate. He, therefore, has drawn attention of this Court towards the prayer clause of the petition and submitted that if the Hon'ble Court would make cursory glance upon the prayer clause, in that event, it clearly goes on to show that the petitioner has not made any such prayer to declare the result of the election of returned candidate as cancelled. He submitted that in fact, here in the present case, admittedly, the elected representative of the constituency has not been made as party respondent. He empathetically submitted that as per Section 84 of the Act of 1951, election petition is to be filed for cancellation of the election of the Returned Candidate and at the time of institution of the election petition, the petitioner has to claim relief in consonance with the provision as mentioned in Section 84 of the Act of 1951 and Page 5 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined thus here in the present case, admittedly the elected Returned Candidate has not been made party in the present petition though the petitioner wants a declaration to the effect that the election of 6-Gandhinagar Parliament Constituency be declared as void without joining necessary and proper party and thus solely on that ground alone, the present petition requires to be dismissed.
7. Learned Solicitor General, Mr. Mehta emphasized upon the provision of Rule 272 of the Rules of 1993, which provides for "petition", more particularly, sub-clause (ii) of the said Rule and submitted that as per the said provision, at the time of filing election petition before this Hon'ble Court, the petitioner has to strictly comply with the provision of Sections 81, 82, 83 and 84 of the Act of 1951 but admittedly here in the present case, the Returned Candidate has not been made party in the proceeding despite the fact that the election of that constituency is sought to be declared as void, therefore, there is fundamental defect in the base of the petition itself and such defect cannot be cured at subsequent stae by filing an application for amendment in the title as it is a settled proposition of law. He submitted that in fact, in catena of judicial pronouncements, the Hon'ble Supreme Court has held and taken a specific view that when a specific provision is mentioned in the statute itself and it is mandatory in nature, in Page 6 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined that event, at the time of institution of the election petition, one has to strictly adhere with the terms of the language employed in the statute itself and if one fails to fulfill the requirement of the Act in consonance with the provision of law, in that event, subsequently at belated stage, said mistake cannot be cured. He submitted that on the basis of the above Rules framed by the Hon'ble Supreme Court, it is the duty casted on the head of the Registry to verify the paper of the petition and after verification of it, when it has come to the notice that there is an objection about the non-fulfillment of the statutory provisions, in that event, the matter should not have been circulated before the Hon'ble Court, however, it seems that in the present case, there was mistake on the part of the Registry that there is glaring material, which clearly shows that there is defect in compliance with the provision of Rules of 1993, despite the fact that the matter had already been circulated before the Hon'ble Court before proper verification, therefore in that event, it is his duty to bring to the notice of the Hon'ble Court that the due to non- compliance and/or non-fulfillment of requirement of certain mandatory provision of law, the petition has become incompetent/ incomplete and, therefore solely on that count alone, the election petition filed by the petitioner is required to be dismissed in limine.
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8. Learned Solicitor General, Mr. Mehta further submitted that in fact, as per Rule 272(ii) of the Rules of 1993 and as per Rule 275 of the Rules of 1993, the petitioner has to make a statement on oath that the provision of Section 81 of the Act of 1951 have been complied with and the petition is filed well within the time prescribed in the statute, however in the present case, nowhere in entire body of the petition, that particular declaration is being made by the petitioner, therefore, there are so many defects and faults in the petition itself, therefore without entering into the merits of the petition, solely on that ground alone, the petition is required to be dismissed.
9. Learned Solicitor General further submitted that when any dispute regarding the election has been ensued, in that event, election petition as per the provision of the Act of 1951 is to be filed. At this stage, he referred to Section 79 of the Act of 1951, which provides for "Definitions", more particularly, sub-clause (b) of the said section, which provides "'candidate'" means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate." He also referred to Section 82 of the Act of 1951, which is titled as Page 8 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined "Parties to the petition" and submitted that while filing election petition, necessary and proper party is required to be joined as party respondent, against whom the relief is sought for. He submitted that in the present case, though the relief is sought for declaring the election as void, which would ultimately affect the elected candidate, the said aggrieved candidate is not joined as party respondent. He submitted that power of amendment is lying with the Hon'ble Court and Order 1, Rule 10 of the Civil Procedure Code, 1908 (hereinafter referred to as "CPC" for short) enables the Court to strike out the parties but the Court cannot use Order 6, Rule 17 or Order 1, Rule 10 of the CPC to avoid the consequences of non-joinder, for which, a special provision is found in the Act. He submitted that when the provision of the Act makes a person a necessary party and provides that the petition shall be dismissed if he is not joined, the power of amendment to strike out parties cannot be used at all. He further submitted that when the provision of the Act of 1951 and the Rules made thereunder enjoins the penalty of dismissal of the petition for non-joinder of a party, the provisions of the CPC cannot be used as curative means to save the petition. He submitted that every election petition can be saved by amendment in this way but that is not the policy of law and the dismissal is peremptory and the law does not admit of any other Page 9 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined approach. He submitted that the the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties. He submitted that it is well within the knowledge of one and all that the election petition can be filed by the candidate, who had participated in the process of election and a voter of a particular constituency, here in the present case, the petitioner is a voter of the constituency, therefore, he has got all valuable right to file election petition before this Hon'ble Court but at the time of institution of the said petition, he has to follow the dictum of the law in stricto sensu manner, which he fails to adhere with in true terms of the provision of the statute.
10. Learned Solicitor General, at this stage, has placed reliance upon following decisions, (1) the judgment of the Hon'ble Supreme Court in case of Michael B. Fernandes Vs. C.K. Jaffer Sharief & Ors., reported in (2002) 3 SCC 521;
(2) the judgment of the Hon'ble Supreme Court in case of B. Sundara Rami Reddy Vs. Election Commission of India & Ors., reported in 1991 Supp (2) SCC 624; (3) the judgment of the Hon'ble Supreme Court in case of Jyoti Basu & Ors. Vs. Debi Ghosal & Ors., reported in (1982) 1 SCC 691;
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11. Referring to the aforesaid decisions, learned Solicitor General, Mr. Mehta further submitted that it is settled proposition of law that time and again the Hon'ble Supreme Court has, in number of case laws, enunciated the said principle of law in this regard. He has referred to the decision of the Hon'ble Supreme Court in case of Jyoti Basu (supra) and submitted that in the said decision, the Hon'ble Supreme Court has observed as under, "8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special Page 11 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined jurisdiction has always to be exercised in accordance with the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constitutuency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self contained code within which must be found any rights claimed in relation to an election or an Page 12 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined election dispute."
12. Learned Solicitor General has also referred to the judgment of the Hon'ble Supreme Court in case of B. Sundara Rami Reddy (supra) and submitted that in view of the settled proposition of law as enunciated in the said decision, the Election Commission of India is not a necessary or proper party to the election petition.
13. Thus referring to the aforesaid decisions of the Hon'ble Supreme Court as well as making above submissions, learned Solicitor General submitted that in view of the above factual aspects as well as considering the settled proposition of law, it is found out that there are many defects in the election petition itself preferred by the petitioner and the petitioner has miserably failed to strictly follow the mandate of the status in consonance with the provision of law at the time of institution of the petition, therefore, the present petition is premature and may not be entertained, therefore solely on that ground alone, without entering into the merits of the case, the present petition is required to be dismissed.
14. On the other hand, learned Party-in-Person has submitted that he is ordinary layman and does not have any legal knowledge as he is not qualified lawyer and he has filed the present election petition in a capacity of voter of the electoral constituency of the respondents. He submitted that Page 13 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined the present election petition is quite competent and fulfilling all the requisite requirement as mentioned in the provision of the Act of 1951. He submitted that however there might be some defects, which have been occurred while filing petition but as stated above, he is ordinary person and is not well acquainted with legal provision of the Rules of 1992 and the statutes, therefore, certain mistakes might have been occurred.
15. Learned Party-in-Person submitted that it is an undisputed fact that he is the voter of a particular constituency and registered member of Bahujan Samaj Party and the said party had given mandate of candidate to contest the election in that regard and he was appointed as representative to appear before the respondent authorities. He submitted that in fact, at the time of carrying out process of election, he found certain discrepancies and fraud in the election process, therefore, detailed representation was made by him to the authority concerned, however no action has been taken on the said representation by the authority concerned, therefore, the present election petition has been filed.
16. Learned Party-in-Person submitted that in fact, there are many lacuna in the election process, which he has brought to the notice of this Court. He submitted that the name of certain persons, who reside in their particular area since last many Page 14 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined years, have not been found in the voters' list of their societies and not even in the chart of voters' list, therefore despite the fact that they are citizens of the country and are residing in particular territory since long, they could not cast their votes as per their choice. He submitted that the elected candidate (returned candidate) has filled up his nomination form on the mandate of National Party and at the time of filling up the nomination form, he has disclosed certain facts and if the Hon'ble Court would make cursory glance upon those details, in that event, it is found out that the said candidate is not the owner of four houses and location of four houses are in different direction of the city and it is the mandate of the statute that at the time of filling up the form, the candidate has to disclose his usual place of residence but he has not disclosed in which house, usually he used to reside, therefore, there is lacuna in the form filled in by the said elected candidate (returned candidate).
17. Learned Party-in-Person submitted that there are certain other glaring mistakes, which have been found out, which he has tried to bring to the notice of the authorities, however, all the efforts being made by him were gone into vein, as a result of which, he has knocked the door of this Hon'ble Court on the strength of the material available with him. He submitted that in fact, Page 15 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined before declaration of the result, if the petition would have been filed, in that event, it would have been termed as premature petition, therefore, he had waited for declaration of the result and, thereafter, the present election petition is preferred. He submitted that if the Hon'ble Court would consider the charge and accusation leveled by him against the observer of the Election Commission of India and other respondents, in that event, it is found out that they have not strictly adhered with the provision of law in stricto sensu manner and, therefore, the election of entire State is required to be declared as null and void and it may be directed to be conducted afresh.
18. Learned Party-in-Person has also forcefully submitted that it is fact on record that in entire State of Gujarat, name of members of the voters are missing from the voters' list and certain societies have been deleted from the record, which clearly goes on to show that the Election Officer has not conduct the election in fair and impartial manner. It is submitted that when the said fact had come to his notice, it was brought to the notice of the officer concerned to cure the said defect in the voters' list, however all his efforts were gone into vein, therefore, the election of entire State of Gujarat is required to be declared as void, however, he cannot seek such relief in view of the fact that he is the voter of Gandhinagar Constituency, therefore instead of Page 16 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined challenging the election of entire State of Gujarat, he has only challenge the election of 6- Gandhinagar Parliamentary Constituency by pointing out facts of said constituency, therefore, the said aspect is also required to be considered by the Hon'ble Court.
19. At this stage, learned Party-in-Person has tendered written arguments/point, which is taken on record. The contentions raised by learned Party-in-Person are as under, "1. The Petitioner respectfully states and submits that in the capacity of Voter of 55-Sabarmati Assembly Constituency, a segment of 06-Gandhinagar Parliamentary Constituency Gandhinagar, has a fundamental right under Article 19(1)(a) of the Constitution of India to know the antecedents of candidates for various reasons, therefore, by way of this, Election Petition was presented in Hon.'ble High Court of Gujarat on 2.7.2024.
2. Chronology of Events. 1. Date of declaration of dates of Election and implementation of Election Model code of Conduct-12-04-2024. 2. Date of submission of nomination last date 19-04-2024 3. Date of scrutiny of nomination forms 20-04-2024.
4. Date of withdrawal of nomination forms 22-04-2024. 5. Date of poll 07-05-2024. 6. Date of counting of votes 04-06-2024.7. Date of completion of election 6-06-2024.
3. My lord, according to the Representation of People Act 1951 under Section 30, only four persons can be present at the place of form verification (scrutiny of nomination) in respect of each candidate. (1) The candidate himself (2) The election agent of the candidates (3) A person who has proposed the candidate (4) A person Page 17 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined appointed by the candidate. The Returning Officer, did not follow those instructions while scrutinizing the nominations forms on 20-04-2024 as scheduled. There were 53 nominations forms were to be examined. Returning Officer adopted a wrong procedure, during the time of scrutiny. They were not provided opportunity to examine the nominations. Therefore, the election of 06-Gandhinagar Parliamentary Constituency, Gandhinagar, must be declared as void. Vide (Rakesh Kumar V. Sunil Kumar, AlR 1999 SC 935 at 940).
4. The word "election" in Article 329(b) of the Constitution of India, and in Section 80 of the Representation of the People Act 1951, is used in the wider sense with the consequences that the question whether a nomination paper has been rightly accepted or rejected can be determined only by High Court of Gujarat.
5. The petitioner respectfully state and submit that on 20-04-2024 during the time scrutiny three objections were raised by the petitioner about (1) Returning candidate's tadipar period of about more than 4 years was not included in nomination form (2) verification of voters in respect of 55- Sabarmati assembly constituency in respect of Gaytrikunj Society, there are 64 houses and 66 voters are non- existing voters and of 35-Gandhinagar (South) assembly constituency in Shivam bunglow, Chandkheda there are 59 bunglows and 66 voters are non-existing (ASD) voters, and 300 families of Gandhi Asharam migrated their where abouts are not known to me and more than 20,000 voters of Ramapir Tekra (Old Vadaj area) were deprived of voting due PPP Scheme. Further it is submitted that though the objection to the effect that the returning candidate is even not competent to file nomination papers objection was not raised at the time of Page 18 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined scrutiny of the nomination papers, the member of, person cannot be allowed to carry on as a there being an inherent defect. Hence, same is illegal. Vide: AIR 2001 P&H 86.
The details illegality and irregularity are narrated submitted as follows:
(i) The returning candidate has filled up Form 26- nomination dated 18-04-2024 and presented on 19-04-2024 for contesting election of House of the People in 2024.
The representation of people Act 1950 Section 19 speaks about the condition of registration. Every person who (a) is not less than (eighteen years) of age on qualifying date, and (b) is ordinary resident in a Constituency. Vide entry at page 1, has been stated that his name is registered as a voter of 45-Naranpura Assembly Constituency, Ahmedabad District, in Bhag number 39, serial Number 146, in the electoral roll of 45-Naranpura Assembly Constituency a segment of 06-Gandhinagar Parliamentary Constituency is not found to be correct due to the fact Constituency it is not a ordinarily resident in a constituency now and its a False statement made by Returning candidate. He was not qualified or was disqualified to be chosen to fill the seat under the Constitution or and under Section-4 of Representation of People Act 1951 on the day of Election. Its a false statement made in affidavit presented by Returning Candidate. Therefore, election of the returned candidate must be declared to be void as specified in Section 100(1)a) of the Representation of People Act 1951 and entitled for punishment. Also, the electoral roll in respect of Returning Candidate, his wife Sonalben, his son Jay Shah and son's wife Rishita) shown in the electoral foll in 45-Naranpura Assembly Constituency of Gujarat State 0G-
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On 14-7-2011 i.e. at the time of migrating to 41-Ghatlodia Assembly Constituency from 45-Naranpura Assembly Constituency, the returning candidate was supposed to submit the application (prescribed by Election Commission form 7) for cancellation of the registered address of 2- Shivkunj Society, Nr. Sanghvi High School Ahmedabad to the Naranpura Registration Officer, 45- Naranpura Assembly Constituency, Ahmedabad for cancelling name by submitting prescribed form -7. To the Naranpura his Registration office. Afterwards cancelling the registration of EPIC number CL7069701, in Bhag Number 39 at Sr. Number 146. Form
8. Also he was also supposed to submit form No. 8 to Electoral Registration Officer of 41- Ghatlodia Assembly Constituency. To-day the fact is that he has not updated his epic card records with the 41- Ghatlodia Registration Electoral authority. Hence, it is submitted that Returning Candidate is not valid voter to- day and contested election of 2024 the House of people election therefore in terms of the Representation of the People Act, 1951 Section 100(1)(a) that on the date of his election a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under Section-4 of the R.P. Act 1951 and the Constitution or this Act, by the Returning Officer 06- Gandhinagar Parliamentary Constituency. Also under Section 100(1)(a) by the Page 20 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined improper acceptance of his nomination by the Returning Officer, therefore, the election of the 06-Gandhinagar Parliamentary Constituency must be cancelled at earliest possible as prayed.
(ii) My lord The returning candidate has flled up Form 26 nomination dated 18-04-2024 and presented on 19-04 2024 for contesting election of House of the People 2024, Vide entry at page 1, and has stated in the nomination form three residences addresses. As per the definition of ordinary resident he fulfills all the requirement of ordinary resident as declared by returning candidate 16, Sudeep Society, Royal Krisant, in the gali of Jalsa Party, Sarkhej - Gandhinagar Highway, Thaltej, Ahmedabad 380 059. This area falls in 41-Ghatlodia Assembly Constituency; he is not a registered so far till 11-03-2024 as a Voter. Since, he has been staying in this residence with effect from 14-07-2011 and as stated by him on page number 12 in nomination form under the heading (4) Residential Houses (lncluding apartment) of 41-Ghatlodia Assembly Constituency as per the provisions of Representation of People Act 1950, section 15, he is not a valid voter of this Constituency. The details of houses declared by him in nomination form is as under:
Residential Buildings (Including Apartments) (A) Location - Moje Mansa, G-Gandhinagar, Page No. -12.
(B) 16, Sudeep Socicty, Moje Thaltej, Ahmedabad, Page No.-13.
(C) "Sector -1, Gandhinagar, Page No. -13.
It is submitted the returning candidat has violated for furnishing information in Page 21 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined respect of his total residences. As per the Representation of People Act 1950 Section 15 speaks that "Electoral roll for every constituency. In Gujarat there are 182 Assembly Constituencies and electoral rolls are prepared for all the 182 constituencies. In the case of Returning candidate and all 4 family members names in the electoral roll are not registered there. Unless returning candidate comply required formalities on migration he has to first contact 45-Naranpura Registration Officer. They will forward to 4l-Ghatlodia Registration Authority, after subject to scrutiny by him it will be prepared fulfling the requirement by returning candidate for which suitable orders may please be issued in accordance with the provisions of the Representation of People Act 1950 under Section 15. As per the Rules a person is entitled to yote only in 41- Ghatlodia Assembly Constituency where he has ordinary resident as required. During recent his visit of Bihar where the State election is scheduled, The Chief Election Commission, Shri Gyanesh Kumar Clarified that For example, if somebody reside in Delhi but owns a house in Patna, his vote should be registered in Delhi, not in Patna In the same manner This policy is applicable in this case, But here the returning candidate has total four houses and he fulfills all the requirement of ordinary resident of 41-Ghanlodia Assembly Constancy. Also Election Commission officials pointed that many persons are generally residents of one place and have got their voter card from that location while retaining their earlier card before migrating from there, which is a criminal offence.
iii. Important information in nomination form 26 was to be furnished by the Returning candidate has not been furnished The Page 22 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined details are as under:
a. Right to Information 2005.
Returning candidate was Tadipar for a period of more than 4 years. This important information he was supposed to furnish as per the Representation of People Act 1951 Section 33A has been violated.
b. Returning candidate so far residential properties are concerned he has 4 residential building at different place such as Mansa, Gandhinagar, Naranpura and Ghatlodia. Out of these 4, he has not furnished in the information in Sanghvi High School Opp. Naranpura, Ahmedabad." For which he claims that he is voter of 45-
Naranpura Assembly Constituency. This
valuable information was
omitted/ignored/hide by returning
candidate.
6. The voters who have already migrated are not supposed to cast their votes in 45- Naranpura Assembly Constituency. In this regard the returning candidate and his family members, self EPIC IDENTITY CARD NUMBER CLJ7069701 Bhag No. 39 serial no. 146, his wife Sonalben IDENTITY CARD EPIC NO.CLJ7069727,BHAG NO.39, SERIAL NO.146, HIS SON SHRI JAY SHAH EPIC IDENTITY CARD NO;CLJ7069719 AND HIS WIFE IDENTITY CARD RISHITABEN EPIC NUMBER 2HB2825388 are not valid voters of 45 - Naranpura Assembly Constituency. As per Section 16 of the Representation of People Act 1950 Section - 16(2) disqualifies for registration shall forthwith be struck off the electoral roll in which it S included. They all above have voted is fake voting and violation of Election laws. Action deemed fit must be taken against these people as per the election laws.
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7. Instructions issued by the Election Commission on correction in the names of candidate was violated by the office of the Returning Officer, Gandhinagar deliberately The candidate's name was different from the name by which he is popularly known, the candidate Shri Anish Desai along with the petitioner requested to keep his "Anish Desai" the popularly know which was furnished to Returning Officer was not accepted but his name as was kept against his desire as Mohammed Anish Desai was misfortune.
8. A penalty of Rs. 500/- per day may be imposed upon a person who sits or yotes in Either House of Parliament knowing that he is not qualified or that he is disqualified for membership thereof Article 104). One term of Rajya Sabha and two terms of Lok Sabha.
9. Violation of Section 126 of the Representation of people act 1951. It is submitted hat prohibition of public road show during period of forty eight hours ending with hour fixed for conclusion of poll. The Section 126 which imposes restrictions for campaigning during the period of 48 hours ending for the close of the poll, he instructions issued by Election Commission violated, which was intended to influence Or effect the result of an election.to
10. Violation of Section 62 of the Representation of people act 1951 which provides right to vote by a person included in the electoral roll prepared by an authority empowered under law to do so. Once the name is included to cast his vote, the political parties are supposed to issue unofficial identity slips containing (1) Name and serial number of the voter in the electoral roll (ii) Part number of the Electoral roll and (iii) the serial number Page 24 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined and name of the polling station, but has not issued by the Returned candidate. This has been violated is not fair and just.
11. The petitioner respectfully state and submit that on the Election Commission is not taking action since 1952 to stop printing for 48 hours prior to Election. There is no control over the Press. At least during the time of 48 hours there should be ban on all big political parties for giving advertisement for sound fair election.
12. Violation of Office Secret Act 1923. It is submitted that petitioner was permitted to take objections during the time of scrutiny by the Returning Officer and three objections were raised by the Petitioner. The correspondence was between me and the Returning Officer. The matter was leaked out by him. There were unauthorised communication persons were kept They called me by phone, BSP national co-ordinatory sitting out side, from New Delhi he contacted me on mobile phone was unnecessarily disturbance created was not fair and just. Also, Pressure was created by Bouncers kept in the Collector office and finally. Collector should not have allow such antisocial elements.
13. Violation of Section 36(7) for the purpose of Scrutiny a certified copy of an entry to the electoral roll for the time being in force of a constituency shall be conclusive evidence of the fact that the person refereed to in that entry is an elector for that constituency, unless it is provided that he is subject to a disqualification mentioned in Section 16 of the Representation of the People Act 1950 (43 of 1950).
14. Every election petition shall be tried as expeditiously as possible and endeavour Page 25 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial."
20. Referring to the aforesaid submissions/point, learned Party-in-Person has reiterated his submissions and submitted that there are discrepancies and fraud found in the election process and though the said fact was pointed out, no action was taken. It is, therefore, urged that considering the above facts of the case, the present election petition may be allowed and the relief as prayed for may be granted.
21. Having heard learned advocates for the parties and having gone through the material and evidence available on record, the moot question, which has arisen for consideration of this Court, is as to whether presentation of an election petition by the election petitioner personally is a mandatory requirement in view of the settled provision of the Act of 1951 as well as Rules of 1993 as also in view of settled proposition of law and whether it's non-compliance is fatal or it would merely be an improper presentation, a curable defect?
22. Before dwelling into the issue involved in the matter, I would like to refer to certain decisions upon which reliance has been placed by learned Solicitor General, Mr. Mehta appearing for the respondent no.3. In the decision of Michael B. Fernandes (supra), the Hon'ble Supreme Court has observed in Paragraph No.4, which reads as under, Page 26 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined "4. In order to examine the correctness of the rival submissions, it would be necessary for us to have a bird's eye view of the relevant provisions of the Act and the different case laws on the point. But one thing must be borne in mind that in the case in hand, the allegations made were in relation to the use of voting electoral machines, u/s. 61-A of the Act. The gravamen of the allegations in the election petition are that the Returning Officer as well as the Chief Electoral Officer had not complied with several provisions of the conduct of Election Rules and respondents 7 and 8 had not acted in accordance with the guidelines issued by the Election Commission of India. The relevant paragraphs of the election petition pertaining to the infraction of Rules committed by respondents 7 and 8 are paragraphs 20a, 20d, 20f, 25 and 28. The Representation of the People Act, 1951 (hereinafter referred to as 'the Act') is an Act, providing for the conduct of elections to the House of Parliament and to the House of Legislature of each State and it provides the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences in connection with such elections and the decisions of doubts and disputes arising out of or in connection with such elections. The general procedure at elections has been enumerated in Chapter III. Section 61 of the Act provides the procedure for preventing personation of electors and sec. 61-A which was inserted by Act 1 of 1989 w.e.f. 15-3-1989, deals with voting machines at elections. Section 66 provides for declaration of result and Section 67 provides for submission of a report of the result to the appropriate authority and the Election Commission and in case of an election to a House of Page 27 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined Parliament, to the Secretary of that House by the Returning Officer, soon after the declaration of the result. It also provides for publication of the name of the elected candidate in the Official Gazette. Part VI starting with Section 79 deals with disputes regarding elections. Under Section 80 of the Act, no election shall be called in question except by an election petition presented in accordance with the provisions of this part. Presentation of petition is dealt with in sec. 81 and such petition could be presented on one or more of the grounds specified in sub-sec. (1) of sec. 100 and sec. 101. Section 82 stipulates as to who shall join as respondents to an election petition. Section 82 may be quoted hereinbelow in extenso :-
"Section 82. Parties of the petition :- A petitioner shall join as respondents to his petition.-
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
Section 83 provides as to what should contain in an election petition and sec. 86 in Chapter III deals with trial of election petitions. Section 87 is the procedure for such trial and it provides that every election petition shall be tried as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. As Page 28 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined stated earlier, sec. 100 indicates the grounds on which an election can be declared to be void and sec. 101 indicates the grounds on which a candidate other than the returned candidate may be declared to have been elected. We are not concerned with the other provisions of the Act in the case in hand. An appeal to the Supreme Court has been provided u/s. 116-A. On a plain reading of sec. 82, which indicates as to the person who can be joined as a respondent to an election petition, the conclusion is irresistible that the returned candidate, the candidate against whom allegations of any corrupt practice have been made are to be joined as party respondent when declaration is sought for holding the election of the returned candidates to be void and when a prayer is made as to any other candidate to be declared to be duly elected, then all the contesting candidates as required to be made party respondents. On a literal interpretation of the aforesaid provisions of sec. 82, therefore, it can be said that an election petition which does not make the persons enumerated in sec. 82 of the Act, as party respondents, is liable to be dismissed. The two decisions of this Court directly on the question are the cases of Jyoti Basu and others V/s. Debi Ghosal and others, 1982 (1) SCC 691 and B. Sundara Rami Reddy V/s. Election Commission of India and others, 1991 Supp (2) SCC 624. In the former case, Chinnappa Reddy, J., speaking for the Court, held that right to elect or to be elected or dispute regarding election are neither fundamental rights nor common law rights but are confined to the provisions of the Act and the Rules made thereunder and consequently, rights and remedies are all limited to those provided by the statutory provisions. On the question of joinder of parties, referring to Ss. 82 and 86(4) of the Representation Page 29 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined of the People Act, it was 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 an election petition, who are mentioned in Ss. 82 and 86(4) and no others. An argument had been advanced in that case that even if somebody may not be a necessary party u/s. 82 of the Act, but yet he could be added as a proper party as provided in O. 1, R. 10 of the Code of Civil Procedure. But the Court rejected that contention on a finding that the provisions of the Civil Procedure Code apply to election disputes only as far as may be and subject to the provisions of the Act and any rules made thereunder and the provisions of the Code cannot be invoked to permit which is not permissible under the Act. It was in that context the Court further observed that the concept of 'proper parties' is and remain alien to an election dispute under the Act. This decision was followed in B. Sundara Rami Reddy's case, 1991 Supp (2) SCC 624, referred to supra and it was reiterated that the concept of 'proper party' is and must remain alien to an election dispute under the Act and only those may be joined as respondents to an election petition, who are mentioned in Ss. 82 and 86(4) of the Act and no others. The Court in this case added that however desirable and expedient it may appear to be, none-else shall be joined as respondents. Mr. Venkataramani, the learned senior counsel, appearing for the appellant, contended that the law enunciated in the two decisions and the observations made are too wide and while sec. 82 casts an obligation on an election petitioner to join those mentioned in Cls.
(a) and (b) as party respondent, it does not put an embargo for addition of any other person in an appropriate case, Page 30 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined depending upon the nature of allegation made and consequently, the expression "any other" in the two decisions referred to above, must be held not to have been correctly used. Mr. Venkataramani relied upon the observations made by this Court in M. S. Gill's case, 1978 (2) SCR 272, wherein the Court had observed that the Constitution contemplates a free and fair election and vests comprehensive responsibility of superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances and submitted that the basis of electoral democracy being a free and fair election and fairness imports an obligation to see that no wrong-doer candidate benefits from his own wrong. In case where allegations are made against the Returning Officer or the Chief Electoral Officer with regard to the conduct of the election, there should be no bar to array them as parties and according to Mr. Venkataramani in Gill's case,, the Chief Election Commissioner was a party and, therefore, this Court in Jyoti Basu, as well as the subsequent case, having not noticed the aforesaid Judgement of the larger Bench, the latter decision will be of no assistance. We are not in a position to accept the submission of Mr. Venkataramani inasmuch as in Gill's case, an order of the Election Commissioner was under challenge by filing a writ petition and it was not an election petition under the provisions of the Representation of the People Act. There is no dispute with the proposition that a free and fair electoral process is the foundation of our democracy, but the question for consideration is, whether by indicating in the Act as to who shall be arrayed as party, the Court would be justified in allowing some others as Page 31 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined parties to an election petition. For the aforesaid proposition, Gill's case, is no authority. Mr. Venkataramani then relied upon the decision of Calcutta High Court in Dwijendra Lal Sen Gupta V/s. Hare Krishna Konar, where the question came up for consideration directly and the Calcutta High Court did observe that the Returning Officer may nevertheless in an appropriate case be a "proper party" who may be added as party to the election petition and undoubtedly, the aforesaid observation supports the contention of Mr. Venkataramani. Following the aforesaid decision, a learned single Judge of the Bombay High Court in the case of H. R. Gokhale V/s. Bharucha Noshir C. and others, had also observed that the observations of Shah, J. in Ram Sewak Yadav's case, in paragraph (6) is not intended to lay down that the Returning Officer can in no event be a proper party to an election petition. But both these aforesaid decisions of the Calcutta High Court and Bombay High Court had been considered by this Court in Jyoti Basu case and the Court took the view that the public policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86(4). The Court also in paragraph (12) considered the consequences if persons other than those mentioned in sec. 82 are permitted to be added as parties and held that the necessary consequences would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by sec. 86(6) of the Act. In the aforesaid premises, we reiterate the views taken by this Court in Jyoti Basu's case and reaffirmed in the latter case in B. Sundara Rami Reddy and we see no infirmity with the impugned judgment, requiring our Page 32 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined interference under Art. 136 of the Constitution. This appeal accordingly fails and is dismissed.
23. In a judgment of the Hon'ble Supreme Court in case of B. Sundara Rami Reddy (supra), the Hon'ble Supreme Court has observed in Paragraph Nos.3 and 4 as under, "3. After hearing learned counsel for the petitioner we do not find any merit in the petition. sec. 82 of the Representation of the People Act, 1951 specifies the persons who are required to be joined as respondents to an election petition. Under this provision the returned candidate is a necessary party as a respondent and where relief for a declaration is claimed that the election petitioner, or any other candidate beduly elected, all the contesting candidates are necessary to be impleaded as respondents to the petition. No other person or authority except as aforesaid is required to be impleaded as a respondent to an election petition under the Act. The Election Commission of India is therefore not a necessary party to an election petition.
4. Learned counsel for the petitioner urged that even if the Election Commission may not be a necessary party, it was a proper party since its orders have been challenged in the election petition. He further urged that since Civil Procedure Code, 1908 is applicable to trial of an election petition the concept of proper party is applicable to the trial of election petition. We find no merit in the contention. sec. 87 of the Act lays down that subject to the provisions of the Act and any rules made thereunder, every election petition shall be tried by the High court, as nearly as may be in accordance with the procedure Page 33 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provisions of the Civil Procedure Code have thus been made applicable to the trial of an election petition to a limited extent as would appear from the expression "subject to the provisions of this Act". Since sec. 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not necessary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. 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 sec. 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/s. be kkam 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 Ss. (4 of sec. 86 of the Act. Again in Jyoti Basu V/s. 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 sec. 86(4 and no others. However Page 34 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined desirable and expedient it may appear to be, none else shall be joined as respondents."
24. In a judgment of the Hon'ble Supreme Court in case of Jyoti Basu (supra), the Hon'ble Supreme Court has observed in Paragraph Nos.4 to 10, which read as under, "4. First the Constitution. Part XV deals with elections. Art. 324 vests in the Election Commission the superintendence, direction and control of the preparation of the electoral rolls and the conduct of all elections to Parliament and to the Legislatures of the State. Art. 325 provides that there shall be one general electoral roll for every territorial constituency and that no person shall be ineligible for inclusion in such rolls on grounds only of religion, caste, sex or any of them. Art. 326 provides that election to the House of the People and to the Legislative Assemblies of States shall be an the basis of adult franchise. Art. 327 enables Parliament to make laws with respect to all matters relating to elections to either House of Parliament or to the Houses of the Legislature of a State, Art. 328 enables the Legislature of a State, if Parliament has not made such legislation, to make laws with respect to all matters relating to elections to the Houses of the Legislature of the State. Art. 329 bars interference by Courts in electoral matters and clause (b), in particular, provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature.
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5. Next, the Representation of the People Act, 1950. This Act provides for .the delimitation of the constituencies for the purpose of elections to the House of the People and the legislatures of States, the qualification of voters at such elections, the preparation of electoral rolls and other matters connected therewith.
6. Last, the Representation of the People Act of 1951. Part VI of the Act deals with "Disputes regarding elections". Sec. 79 defines various terms and expressions used in the Parts VI and VII. Cl. (b) defines a 'candidate, as meaning "a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate". Sec. 80 imposes a statutory ban on an election being called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. Sec. 80-A vests in the High Court, the jurisdiction to try an election petition. Sec. 81 provides for the presentation of an election petition on one or more of the grounds specified in Sec. 100 (1) and Sec. 101 by any candidate at such election or any elector who was entitled to vote at the election. Sec. 82 is entitled "Parties to the petition" and is as follows;
"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 Page 36 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates;
and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
Section 83 prescribes the contents of the petition. Sec. 84 provides that a petitioner may, in addition to claiming a declaration that the election of the returned candidate is void, claim a further declaration that he himself or any other candidate has been duly elected. Sec. 86 deals with trial of election petitions. Sub-sec. (4) provides for an application by a candidate who is not already a respondent to be joined as a respondent. It is in these terms :
"(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent."
Section 87 is concerned with the procedure before the High Court and it is as follows :
"87. (1) 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 to the trial of suits :Page 37 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025
NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not. material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872, shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition."
Section 90 enables the returned candidate or any other party to "recriminate" in cases where in the election petition a declaration that a candidate other than the returned candidate has been elected is claimed. Sec. 98 prescribes the orders that may be made by the High Court at the conclusion of the trial of an election petition. It provides that the High Court shall make an order dismissing the election petition or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate. to have been duly elected. Sec. 99 enables the High Court to make, at the time of making an order u/s. 98 an order recording a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of corrupt practice; and the names of all persons, if any, who have been proved at the trial to have been guilty of corrupt practice and the nature of that practice. The proviso to Sec. 99, Page 38 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined (1), however, prescribes that no person who is not a party to the petition shall be named in the order unless he had been given notice to appear before the High Court to show cause why he should not be so named and he had also been given: an opportunity to cross-examine any witness who had already been examined by the High Court and had given evidence against him and an opportunity of calling evidence in his defence and of being heard. Sec. 100 enumerates the grounds on which an election may be declared void. The High Court, it is said, among other grounds, shall declare the election of a returned candidate void in cases where corrupt practices are proved, where such corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, Where the corrupt practice has been committed in the interests of the returned candidate by an agent other than his election agent, the result of the election in so far as it concerns the returned candidate must also be shown to have been materially affected. Sec. 101 prescribes the grounds for which a candidate, other than the returned candidate may be declared to have been elected. Sec. 110 provides for the procedure when an application for withdrawal of an election petition is made to the Court. Sec. 110 (3) (c) says that a person who might himself have been a petitioner may apply to the Court to be substituted as a petitioner in place of the party, withdrawing. Section 112 (3) provides for the continuance of the election petition Page 39 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined on the death of the sole petitioner in an election petition or of the survivor of several petitioners, by any person who might himself have been a petitioner and who applies for substitution within the stipulated period.
7. The nature of the right to elect, the right to be elected and the right dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N. P. Ponnuswami V/s. Returning Officer, Namakkal Constituency, 1952 SCR 218 and Jagan Nath V/s. Jaswant Singh, AIR 1954 SC 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case.
8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of Page 40 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined election disputes, Is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say-
9. Section 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Sec. 82 is headed "Parties to the petition" and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting Page 41 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of sec. 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86 (4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while cl. (b) of sec. 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent u/s. 86 (4), any other person cannot, under that provision seek to be joined as a respondent, even if, allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all- We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951, Only those may be joined as respondents to an election petition who are mentioned in sec. 82 and sec. 86 (4) and no others. However, desirable and it may appear to be, none else shall be joined as respondents.
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10. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court 'effectually and completely to adjudicate upon and settle all questions involved' may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only 'as far as may be and subject to the provisions of the Representation of the People Act, 1951 and the rules made thereunder. Section 87 (1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked. In Mohan Raj V/s. Surendra Kumar Taparia, (1969) 1 SCR 630, this Court held that the undoubted power of the Court (i. e. the Election Court) to permit an amendment of the petition cannot be used to strike out allegations against a candidate not joined as a respondent so as to save the election petition from dismissal for non-joinder of necessary parties. It was said. "The Court can order an amendment and even strike out a party who is not necessary. But where 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. 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 a curative means to save the petition". Again, in K. Venkateswara Rao V/s. be kkam Narasimha Reddi, (1969) 1 SCR 679, it was observed:-
Page 43 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined "With regard to the addition of parties which is possible 'in the case of a suit under the provisions of O. 1, R. 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, no addition of parties is possible in the case of an election petition except under the provisions of sub-sec. (4) of sec.
86."
25. In a judgment of the Hon'ble Supreme Court in case of Mohan Raj (supra), the Hon'ble Supreme Court has observed in Paragraph Nos.8, 10 and 11, which read as under, "8. It is necessary to read the Act backwards from sec. 86 (1). That section reads:
"86. Trial of election petitions-
(1) The High Court shall dismiss an election petition which does not comply with the provisions of sec. 81 or sec. 82 or sec. 117.
xxxx ".
This is a peremptory provision and admits of no exception. The Court must enforce it strictly if there is a non- compliance with the requirements of sec. 82 among others. In this connection we have to read sec. 82 (b) which reads as follows:
"82. Parties to the petition-
A petitioner shall join as respondents to his petition-
(a) **** Page 44 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
This makes it incumbent that any candidate against whom a charge of corrupt practice is made must be joined as a party. Who is a candidate is laid down in sec. 79 (b). That provision reads as follows:
"79. Definition.- In this Part and in Part 7 unless the context otherwise requires.
(a) ****
(b) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect he began to hold himself out as a prospective candidate;"
Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition. The question raised is that Periwal was not a candidate at the election since he had withdrawn and, in any case this definition need not be read in sec. 82 (b) which should be limited to contesting candidates. u/s. 87 a candidate may withdraw and once the notice of withdrawal is given it is final. After the date of withdrawal passes a list of contesting candidates is drawn of u/s. 38. It is submitted that sec. 82
(b) should be limited to the contesting candidates. It is also submitted that when Ss. 100 and 123 speak of a candidate they refer to a Page 45 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined candidate whose candidature subsists to the time of the election, that is to say, after the time for withdrawal passes. The petition u/s. 83 (1) (b), it is said, can set out particulars of corrupt practices "against parties"
and that would include contesting candidates, their election and other agents and persons other than candidates and their agents. It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.
10. It is argued that the Civil Procedure Code applies and Or. 6, R. 17 and Or. 1, R. 10 enable the High Court respectively to order amendment of a petition and to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted. No doubt the power of amendment is preserved to the Court and Or. 1, R. 10 enables the Court to strike out parties but the Court cannot use Or. 6, R. 17 or Or. 1, R. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can 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. 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.Page 46 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025
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11. An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Ss. 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time. It is submitted that now the cases must be decided under the amended law. We need not go into this matter. It is doubtful whether these provisions of the Limitation Act apply at all. The petitioner has not asked to join Periwal. He only wants an amendment to delete allegations of corrupt practice against him. This cannot be permitted since it will defeat the provisions of sec. 86(1). Every election petition can be saved by amendment in this way but that is not the policy of the law. The dismissal is peremptory and the law does not admit of any other approach. It is significant that in 1965 1 SCR 393 although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties. Sheopat Singh V/s. Ram Pratap, 1965 SCR 175 since the facts were assumed, cannot be said to record any decision."
26. At the outset, it would be beneficial to reproduce the relevant provisions of the Act of 1951 and the Rules framed thereunder for ready reference. Chapter-II of the Act of 1951 pertains to the presentation of the election petitions to High Court. Sections 79, 81, 82, 83, 84, 86, 98 and 117 of the Act of 1951 read as under:-
79. Definitions.--In this Part and in 1 [Part VII] unless the context otherwise requires,
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NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined [(a) any reference to a High Court or to the Chief Justice or Judge of a High Court shall, in relation to a Union territory having a Court of the Judicial Commissioner, be construed as a reference to the said Court of the Judicial Commissioner or to the Judicial Commissioner or any Additional Judicial Commissioner, as the case may be;] [(b) "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election;]
(c) "costs" means all costs, charges and expenses of, or incidental to, a trial of an election petition;
(d) "electoral right" means the right of a person to stand or not to stand as, or 4 [to withdraw or not to withdraw] from being, a candidate, or to vote or refrain from voting at an election;
[(e) "High Court" means the High Court within the local limits of whose jurisdiction the election to which the election petition relates has been held;]
(f) "returned candidate" means a candidate whose name has been published under section 67 as duly elected.
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 8 [sub-section (1)] of section 100 and section 101 to the 6 [High Court] by any candidate at such election or any elector 9 [within Page 48 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].
Explanation.--In this sub-section, "elector"
means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
[***] [(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.]
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 candidate against whom allegations of any corrupt practice are made in the petition.]
83. Contents of petition.--(1) An election petition--
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(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
[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].
84. Relief that may be claimed by the petitioner.-- A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected.]
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.
Page 50 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.--For the purposes of this sub-
section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in Page 51 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
98. Decision of the High Court.--
At the conclusion of the trial of an election petition [the High Court] shall make an order--
(a) dismissing the election petition; or
(b) declaring the election of 4 [all or any of the returned candidates] to be void; or
(c) declaring the election of 5 [all or any of the returned candidates] to be void and the petitioner or any other candidate to have been duly elected.
117. Security for costs.--
(1) at the time of presenting an election Page 52 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of two thousand rupees as security for the costs of the petition.
(2) During the course of the trial of an election petition, the High Court may, at anytime call upon the petitioner to give such further security for costs as it may direct.
27. It may be further noted that the Gujarat High Court in supersession of the Bombay High Court Appellate Side Rules 1960 as made applicable to the Gujarat High Court, and as amended from time to time, has made the Rules called The Gujarat High Court Rules 1993. Rule 272 to Rule 313 thereof pertain to the election petitions. The relevant Rules necessary to appreciate the contentions raised in the application are reproduced as under:-
"272 Petition.-
(i) Every application invoking the jurisdiction of the High Court under section 80A of the Representation of the People Act, 1951, shall be by petition addressed to the Honourable the Chief Justice and Judges of the High Court.
(ii) The petition shall comply with the provisions of sections 81, 82, 83 and 84 of the Act and the grounds on which the relief are sought shall be clearly stated in the petition which shall be arranged in suitable paragraphs consecutively numbered.
The relief sought should be set out at the end of the petition.
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(iii) The full names and the full addresses of all the parties to the petition for service of any process shall be stated in the petition. In addition to the permanent residence and addresses of the respondent the present address of the respondent at which service of the notice may be effected, shall be stated in the petition.
275 Statement to the Limitation.--
Every election petition shall in addition to the contents required by the Act, contain a statement as to the date of election of the returned candidate or in there be more than one returned candidates 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 time as prescribed in Section 81 of the Act.
283 Examination of petition.-
The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and rules applicable to the same, and if it is not in conformity with law and rules, raise objections which should be removed by the party or the Advocate concerned. The office shall complete the examination within two days after filing of the petition and shall bring the office objections to the notice of the party or the Advocate on the date fixed for attendance under rule 282(ii) and such objections shall be removed, subject to the orders of the Court, if any, within three days thereafter.
284 Petition to be placed for orders if objection not removed.-
Immediately after the expiration of time fixed for the removal of objections, the Page 54 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined petition shall be placed before the Judge for appropriate orders.
285 Petition to be placed for orders after removal of office objections.-
(i) After the removal of office objections, the petition shall be placed before the Judge for consideration as to whether the petition is liable to be dismissed under section 86(1) of the Act. If the petition is not dismissed under section 86(1) of the Act, the Judge shall direct issue of summons upon the respondent; and the summons shall be issued to the respondent to appear before the High Court on the date fixed and answer the claim or claims made in the petition.
(ii) The summons to the respondent to appear and answer shall be in Form No.2 with such variations as the circumstances of the case may require.
(iii) A copy of the petition shall be served upon the respondent along with summons.
(iv) The summons shall require each respondent to file written statement in answer to the petition. The written statement shall be either printed or typewritten neatly and legibly with sufficient space between lines on strong and durable foolscap size paper or other paper similar to it in size and quality duly paged and indexed together with typed copies of such documents as the respondent desires to rely upon and if such documents are in Gujarati, together with typed copies of translation of such documents in English and shall be filed within 21 days of the date of service of summons upon him or within such further time as the court may allow.
(v) The respondent shall also be required to Page 55 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined serve a true copy of the written statement together with all annexure on the petitioner or his Advocate, on or before filing the same in the office.
(vi) Unless otherwise ordered every writ of summons shall be made returnable within three weeks from the date of the order of the Judge or within such time as the Judge may fix in that behalf.
(vii) The summons shall be served in the manner prescribed for service of summons and notices in the Code of Civil Procedure read with these Rules.
(viii) The summons shall be marked Very urgent' and shall be accompanied by a letter to the Officer directed to effect service of the summons to serve the same immediately."
28. Thus considering the aforesaid proposition of law enunciated by the Hon'ble Supreme Court in the aforesaid decisions and the provision of law by putting them together in a juxtaposition, if the facts of the present case are to be examined, in that event, it is found out that challenge is made to the election of 6-Gandhinagar Parliamentary Constituency declaring it as void and also for issuance of an order against the responsible officers for their neligency in performing/ discharging their official duty. However, the contention of learned Solicitor General raising preliminary issue about the maintainability of the present election petition is required to be taken into consideration on the basis of background of the facts of the case coupled with the provision Page 56 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined of law.
29. While interpreting a special statute, which is a self-contained code, the Court must consider the intention of the Legislature. The reason for this fidelity towards the Legislative intent is that the statute has been enacted with a specific purpose which must be measured from the wording of the statute strictly construed. The preamble of the Representation of the People Act makes it clear that for the purpose of conducting the elections of the Houses of Parliament or the Legislature of each State, the qualification and dis-qualification for membership of those Houses, the corrupt practice and other offences in connection with such allegations the Act was enacted by the Parliament. In spite of existence of adequate provisions in the Code of Civil Procedure relating to institution of a suit, the present Act contains elaborate provisions so far as disputes regarding elections are concerned. It not only prescribes how election petitions are to be presented but it also mandates what are the materials to be accompanied with the election petition, details regarding parties, contents of the same, relief that may be claimed in the petition.
30. It is to be noted that while enacting the provision of the Act, it has been specifically provided in Chapter III of Part VI as to how How trial of election petitions are to be conducted.
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31. Section 80 of the Act imposes a statutory ban on an election being called in question except by an election petition presented in accordance with the provision of Part VI of the Act.
32. Section 81 of the Act provides who may present an election petition. As per said section, it may be any candidate at such election; it may be any elector of the constituency, it may be non else.
33. Section 82 provides for "Parties to the petition"
and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Section 82 requires the petitioner to join as respondent any other Page 58 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined candidate against whom allegations of any corrupt practice are made in the petition. It is significant that while Clause (b) of Section 82 of the Act obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made.
34. It is required to be noted that behind this provision is a fundamental principle of natural justice viz., that nobody should be condemned unheard. A charge of corrupt practice against a candidate, if established, entails serious penal consequences. It has the effect of debarring him from being a candidate at an election for a considerably long period. That is why, Section 82(b) in clear, peremptory terms, obligates an election- petitioner to join as respondent to his petition, a candidate against whom allegations of any corrupt practice are made in the petition. The disobedience of this mandate inexorably attracts Section 86 which commands the High Court, in equally imperative language, to- "dismiss an election petition which does not comply with the provisions of section 82".
35. Chapter-II, Part-VI of the Act of 1951 contains provisions for "Presentation of election petitions to High Court" and Chapter III contains provisions for "Trial of election petitions". Section 86(1), Page 59 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined with which Chapter-III begins, obliges the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. The dismissal of an election petition under Section 86(1) is deemed by the Explanation under Section 86(1) to be a decision under Section 98(a). Section 86(4) enables any candidate not already a respondent to be joined as a respondent. It is equally significant that when any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Section 86(4) any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. However considering the aforesaid provision, if the facts of the case are to be examined, in that event, it is found out that though the relief is sought against the returned candidate and declaration of the election as void, the returned candidate is not joined as party, which is admittedly against the provision of law.
36. Section 98 prescribes the orders that may be made by the High Court at the conclusion of the trial of an election petition. It provides that the High Court shall make an order dismissing the election petition or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Section 98 speaks about 3 types of Page 60 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined orders that could be passed at the conclusion of the trial of an election petition. They are:
(i) The dismissal of the election petition; or
(ii) A declaration that the election of the returned candidate is void; or
(iii) A declaration not only that the election of the returned candidate is void, but also that the petitioner or any other candidate was duly elected.
37. It is important to note that the above 3 different types of decisions under Section 98, can be rendered by the High Court only at the conclusion of the trial. But the dismissal under Section 86(1) is an exception. The reference in the Explanation under Section 86(1) to Section 98(a), makes it clear that the power of the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, is available at the pretrial stage.
38. Section 99 enables the High Court to make, at the time of making an order under Section 98 an order recording a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of corrupt practice; and the names of all persons, if any, who have been proved at the trial to have been guilty of corrupt practice and the nature of that practice. The proviso to Section 99(1) of the Act prescribes that no person who is not a party to the petition shall be named in the order unless he Page 61 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined had been given notice to appear before the High Court to show cause why he should not be so named and he had also been given an opportunity to cross examine any witness who had already been examined by the High Court and had given evidence against him and an opportunity of calling evidence in his/ her defence and of being heard.
39. Section 100 of the Act enumerates the grounds on which an election may be declared void. Thus after considering the grounds mentioned in the election petition, the High Court shall declare the election of a returned candidate void in cases where corrupt practices are proved, where such corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent.
40. Thus considering the aforesaid provision of the Act, if the facts of the present case are to be examined, in that event, it is found out that the petitioner, by filing present election petition, has sought relief of declaration of the election of 6-Gandhinagar Parliamentary Constituency as void as the Returning Officer has not followed the instructions while scrutinizing the nomination papers and thereby adopted wrong procedure and further sought relief of taking action against the responsible officers for their negligency in discharge of his duty. Thus as can be found out from the relief that the petitioner has sought Page 62 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined declaration of the election as void, which would directly affect the candidature of elected returned candidate. However if I look at the cause title of this petition, it is found out that the petitioner has joined the respondents as (1) The Election Commission of India; (2) The Observer; (3) the Chief electoral Officer of Gujarat; and (4) The Returning Officer, wherein the returned candidate, against whom relief is sought for, is not joined as party respondent. Thus in view of the provision of Section 82 of the Act of 1951, which provides for "Parties to the petition", the returned candidate is required to be joined as party respondent, against whom, relief is sought for and thus admittedly, there is defect in joining the party in the election petition, which would be basic requirement as provided under Section 82 of the Act of 1951 and thus, the submission made by learned Solicitor General on the aspect of non-joinder of proper party is well founded and the petition is liable to be dismissed. It is required to be noted that there is no dispute about seeking relief by the petitioner while filing election petition but it should be in consonance with the provision of the law, which are meant for such purpose, therefore, it has to be strictly adhered with in stricto sensu manner, otherwise, it would go against the root cause of the matter and ultimately frustrate the purpose of enactment of law. Thus from the Page 63 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined plain reading of Section 82(a) of the Act of 1951, it is necessary that where a declaration is sought that the election petitioner or the candidate should be declared as elected, then all the contesting candidates are required to be impleaded as party to the election petition. The opening words of Section 86(1) of the Act of 1951 are 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 of the Act of 1951. The mandate of Section 86(1) of the Act of 1951 is mandatory and not directory.
41. At this stage, I would like to consider the submission made by learned Solicitor General referring to the provision of Rule 272(ii) of the Rules of 1993 that as per Rule 275 of the Rules of 1993, the petitioner has to make a statement on oath that the provision of Section 81 of the Act of 1951 have been complied with and the petition is filed well within the time prescribed in the statute. Rule 272 of the Rules of 1993 provides for "Petition" and clause (ii) of the said Rules provides that the petition shall comply with the provisions of sections 81, 82, 83 and 84 of the Act of 1951 and the grounds on which the relief are sought shall be clearly stated in the petition which shall be arranged in suitable paragraphs consecutively numbered. Thus, it can be said that the petitioner has to make a statement on oath that the provision of Section 81 of the Act of Page 64 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined 1951 has been complied with and the petition is filed well within the time prescribed in the statute. However on careful examination of the averments made in the election petition, it is found out that nowhere the petitioner has made such statement as mentioned in the provision of the Act and thus, there is non-compliance of the provision of the Rule 272(ii) of the Rules of 1993.
42. Another facet of submission made by learned Solicitor General referring to the provision of Order 1, Rule 10 of the CPC as well as Order Order 6, Rule 17 of the CPC with regard to non-joinder of proper parties is also required to be taken into consideration. In this regard, I have considered to the provision of the CPC, which applies to the trial of election petitions and having considered the same, it is found out that as per the said provision, proper parties whose presence may be necessary in order to enable the Court as also who would be aggrieved by the order that may be passed in his absence, may be joined as respondents to the petitions, which in the present case has not been done by the petitioner. In this regard, a useful reference can be made to the judgment of the Hon'ble Supreme Court in case of Mohan Raj Vs. Surendra Kumar Taparia & Ors., reported in (1969) (1) SCR 630, wherein the Hon'ble Supreme Court has observed as under, "10. It is argued that the Civil Procedure Code Page 65 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined applies and Order 6, Rule 17 and Order 1, Rule 10 enable the High Court respectively to order amendment of a petition and to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of reference to Periwal. This argument cannot be accepted. No doubt the power of amendment is preserved to the court and Order 1 Rule 10 enables the court to strike out parties but the court cannot use Order 6 Rule 17 or Order 1 Rule 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The court can 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."
43. It is quiet clear that the Court cannot order an amendment using its powers under Order 6, Rule 17 of the CPC to avoid the consequences of the petition being dismissed for non-joiner of a party under Section 82 read with Section 86 of the Act of 1951. In a decision of the Hon'ble Supreme Court in case of Patangrao Kadam Vs. Prithviraj Sayajirao Yadav Deshmukh & Ors., reported in (2001) 3 SCC 594, the Hon'ble Supreme Court has also held that Section 82 of the Act of 1951 is Page 66 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined mandatory in relation to joining of respondents mentioned therein and Section 86(1) of the Act of 1951 does not leave any option to the High Court but to dismiss an election petition for non- compliance with Sections 81, 82 and 117 of the Act of 1951.
44. Even in a decision of the Hon'ble Supreme Court in case of Krishan Chander Vs. Ram Lal, reported in (1973) 2 SCC 759, the Hon'ble Supreme Court held Section 82 of the Act of 1951 enjoins who the parties to the petition should be, and if the requirement is not fulfilled, sub-Section 86 makes it mandatory for the High Court to dismiss the election petition for non-compliance with provisions of Section 82 of the Act of the 1951. The Hon'ble Supreme Court has also accepted the view that reading Section 86 with Section 82 of the Act of 1951 makes both clauses (a) and (b) of Section 82 of the Act of 1951 mandatory and non- compliance with the requirements thereof visits the petitioner with penalty of having his petition dismissed. The Hon'ble Supreme Court has further held that in view of these provisions, it is incumbent upon the High Court, where the allegation is that the requirements of Section 82 of the Act of 1951 are not complied with to determine that issue as a preliminary issue and if respondent has made out his case on that issue, the court is left with no option but to dismiss the petition for non-compliance with the mandatory Page 67 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined provisions of Section 82 of the Act of 1951.
45. So far as the contention of learned Solicitor General with regard to maintainability of the present petition in view of non-compliance of the provision of the law and the statute, specific query was raised by this Court to learned Party- in-Person in person to give reply on the said contention. However upon query being asked by this Court, learned Party-in-Person has person has reiterated his submission that he is ordinary layman and does not have any legal knowledge as he is not qualified lawyer and he has filed the present election petition in a capacity of voter of the electoral constituency of the respondents, but he fails to offer proper reply to the said query. At this stage, it is to be noted that in view of the decisions of the Hon'ble Supreme Court as stated above and in view of the provision of the Act of 1951 and the Rules of 1993, basic requirements are required to be adhered with at the time of filing election petition, which in the present case is admittedly not adhered with, therefore, the contention of learned Solicitor General with regard to maintainability of the election petition is well founded in view of the specific reply to the said contention.
46. So far as the contention of learned Solicitor General referring to the prayer clause with regard to joining of necessary and proper party is concerned, it is required to be noted that there Page 68 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined is no specific prayer made in the prayer clause though the election is sought to be declared as void, that after declaring the result of winning candidate (returned candidate) as void, somebody else would be declared as winner of the election. Even those candidates, who had contested the election in the said constituency, have also not been joined as party in the present proceedings. Therefore, these facts available on record apparently goes on to show that there are so many faults/ defects in the election petition. The drafting of the election petition is not in a happily worded and lacks of basic norms of the provision of the statute and, therefore on the count of the aforesaid non-fulfillment of compliance of the mandatory requirement of the provision of the law as well as the statutes, the petition deserves to be dismissed at a threshold in a limine.
47. At the cost of repetition, it is required to be mentioned that in the decisions of the Hon'ble Supreme Court in cases of Michael B. Fernandes (supra), B. Sundara Rami Reddy (supra), Jyoti Basu (supra) has held that the election petition which does not make the person enumerated under Section 82 of the Act of 1951 as party respondent is liable to be dismissed. The right to elect or to be elected or dispute regarding election are neither fundamental right nor common law rights but are confined to the provisions of the Act and Page 69 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025 NEUTRAL CITATION C/EP/4/2024 CAV JUDGMENT DATED: 05/08/2025 undefined the rules made thereunder and consequently the rights and remedies are all limited to those provided by the statutory remedies. It was further held that the provisions of CPC would apply to the election dispute as far as may be and subject to the provisions of the Act and any rules made thereunder and the provisions of the Code cannot be invoked to permit that which is not permissible under the Act.
48. In view of the aforesaid observations, in the background of relevant constitutional and statutory provisions as also the provisions of the relevant rules, I am of the considered opinion that the present election petition is totally meritless and is required to be rejected in limine at the threshold. Accordingly, this petition is rejected at an admission stage.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 70 of 70 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Tue Aug 05 2025 Downloaded on : Tue Aug 05 22:47:42 IST 2025