Himachal Pradesh High Court
Ramesh Chand ...Non vs Mahender Singh And Others ... on 11 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
EMP No. 7 of 2018 in Election Petition No. 1 of 2018 Reserved on: 04.12.2018 Decided on: 11.12.2018 Ramesh Chand ...Nonapplicant/Petitioner.
Versus Mahender Singh and others ...Applicants/Respondents. Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes For the Nonapplicant/Petitioner:Mr. Shrawan Dogra, Senior Advocate, with Ms. Nishi Goel and Mr. Bharat Thakur, Advocates.
For the Applicants/Respondents:Mr. Satya Pal Jain and Mr. R.K.Sharma, Senior Advocates, with Mr. V.B. Verma and Ms. Neha Sharma, Advocates, for respondent No.1.
Mr. Ankush Dass Sood, Senior Advocate, with Mr. Arjun Lall, Advocate, for the applicants/ respondents No.2 & 3.
Tarlok Singh Chauhan, J.
Respondents No. 2 and 3 i.e. Returning Officer, 32 Dharampur Constituency and Election Commission of India have filed this application for deletion of their names on the _________________________ Whether reporters of Local Papers may be allowed to see the Judgment? Yes ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 2 ground that they are not necessary parties to the petition.
2. It is averred that as per the statutory requirements of .
the election laws, an election contest is not an action at law or a suit in equity but is purely a statutory proceeding unknown to the common law and even though the applicants may be proper parties under the Code of Civil Procedure but under the provisions of the Act, they cannot be made as parties to the election petition. r
3. The petitioner/nonapplicant has opposed the application by filing reply wherein it is averred that respondents No. 2 and 3 being necessary parties to the litigation, their names cannot be deleted.
4. When the case came up for consideration on 20.11.2018, the petitioner sought time to file supplementary affidavit and in the supplementary affidavit so filed, it is averred that since specific averments have been made in the election petition referring to the role of respondents No.2 and 3 in paragraphs 9, 10, 11 to 14, 17 to 20, 22, 25, 26, 29, 30 to 34, therefore, they are the necessary parties.
5. Respondent No.1 has not filed reply to the application, but has supported the contents of the application and would further claim that since the petitioner despite having been ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 3 afforded opportunity to delete the names of respondents No.2 and 3, has failed to do so, thereafter the election petition itself is liable .
to be rejected under Section 86(1) of the Act.
6. I have heard learned counsel for the parties and have thoroughly gone through the contents of the application, reply and supplementary affidavit.
7. At the outset, it needs to be observed that elections and election disputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity. (See: Constitution Bench decision of the Hon'ble Supreme Court in N.P.Ponnuswami vs. Returning Officer, Namakkal Constituency 1952 AIR (SC) 64).
8. The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power.
9. The right conferred being a statutory right, the terms of that statute have to be complied with. There is no question of any common law right to challenge an election.
::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 410. 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 election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straightjacket. 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 ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 5 People Act, 1951, different stages of the process being dealt with by different provisions of the Act. (See: Jyoti Basu v. Debi .
Chosal, AIR 1982 SC 983).
11. The legal position is, therefore, well settled that election disputes are strictly statutory proceedings. The Representation of the People Act, 1951 is a complete Code and election disputes are strictly statutory proceedings which are to be regulated by the Act. The persons who may be joined as respondents in an election petition are governed exclusively by Sections 82 and 86(4) of the Act, which are reproduced herein below for ready reference:
"82. Parties to 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."
"86 (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 ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 6 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 subsection 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."
12. The aforesaid provisions came up for consideration before the Hon'ble Supreme Court in Jyoti Basu case (supra), wherein it was held that no one may be joined as a party to an election petition otherwise than as provided under Sections 82 and 86(4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition.
13. In B. Sundara Rami Reddy vs. Election Commission of India and others 1991 Supp (2) SCC 624, the Hon'ble Supreme Court categorically held that Election Commission is not to be impleaded as a respondent in an election petition as it is neither a necessary nor a proper party. It is further held that it is Section 82 of the Act which governs such situation, whereas the CPC applies only to a limited extent i.e. subject to the provisions of the Representation of the People Act.
It is yet further held that the concept of 'proper party' is and must remain alien to an election dispute under the Act and only those ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 7 may be joined as respondents to an election petition, who were mentioned in Sections 82 and 86(4) and no others. However, .
desirable and expedient it may appear to be, none else shall be joined as parties.
14. Complete answer to both the questions i.e. who are necessary parties to an election petition and what is the effect of joining of a person(s) who are not necessary parties is to found in B.S. Yadiyurappa vs. Mahalingappa and others AIR 2001 SC 4041, wherein after placing reliance on the judgments, as referred to above, it was observed by the Hon'ble Supreme Court as under:
"2. Respondent Nos. 4 and 5 moved an interim application in the election petition praying that their names be deleted from the array of parties thereto. An application to the same effect was made by the first respondent; he also moved an application praying that the election petition be dismissed because of the impleadment of respondent nos. 4 and 5. By the judgment and order under challenge, a learned single Judge of the High Court allowed the latter application. He dismissed the election petition under the provisions of Section 86(1) of the Representation of the People Act, 1951 ("the said Act") because parties other than those mentioned in Section 82 of the said Act had been impleaded thereto.
3. The election petitioner is in appeal.
4. Our attention has been drawn to the judgment of this Court in Maraka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Ors., [1964] 3 SCR 573. A Constitution Bench considered the very ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 8 situation with which we arc now concerned. It noted that the foundation of the argument before it was that there had been noncompliance with the provisions of Section 82. What had .
happened there, as here, was this : All the parties whom it was necessary to join under the provisions of Section 82 were joined as respondents to the petition, but other respondents, in excess of the requirements of Section 82, were also Joined. The question, therefore, was did this amount to noncompliance with, or contravention of, the provisions of Section 82. Learned counsel for the appellant in that case wanted the Court to read Section 82 as though it said that the persons named therein and no others should be joined as respondents to the petition. He wanted the Court to add "and no others" to the Section. The Court found no warrant for such a reading of Section 82. It held that if all the necessary parties had been joined to the election petition, the circumstance that a person who was not a necessary party had also been impleaded did not amount to a breach of provisions of Section 82 and no question of dismissing the election petition arose. It was open to the Tribunal (or, here, the Court) to strike out the name of the party who was not a necessary party within the meaning of Section 82. The position, it was noted, would be different if a person who was required to be joined as a necessary party under Section 82 was not impleaded as a party to the petition.
5. This judgment in Maraka Radhey Shyam Ram Kumar was not noticed by the learned Single Judge in the judgment under challenge but was distinguished on the ground that it was confined to its own facts. We find it difficult to agree. This is not a judgment that is confined to its own facts but is an elucidation of the law set out in Section 82 of the said Act.
6. In Mohan Raj v. Surendra Kumar Taparia & Ors., [1969] 1 SCR 630 the same position was reiterated. It was held that in an election petition the court can strike out a party who is not ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 9 necessary but, by reason of the provisions of the said Act, the power of impleadment, cannot be used if a necessary party has not been joined.
.
7. In Jyoti Basu & Ors. v. Debi Ghosal & Ors., [1982] 1 SCC 691, this Court dealt with Section 82 of the said Act, and it is this judgment which the High Court principally relied upon. The ratio of this judgment, is that a person who is not a candidate cannot be joined as a respondent to an election petition. The High Court, however, failed to notice that, having so held, this Court ordered the deletion of the superfluous party from the array of parties.
8. It is, therefore, clear, on the authorities of this Court, that those who are mentioned in Section 82 of the said Act must be made parties to an election petition and, if they are not, the election petition is one which does not comply with the provisions of Section 82 and must, therefore, be dismissed by reason of the terms of Section 86 ( 1). It does not, however, follow that if to an election patition parties other than those who are necessary parties under Section 82 have been impleaded, the election petition is one that does not comply with the provisions of Section 82 and must be dismissed. Such a petition can be amended by striking out from the array of parties those additionally impleaded."
15. Similar reiteration of law can be found in another Hon'ble three Judges Bench decision of the Hon'ble Supreme Court in Michael B. Fernandes vs. C.K. Jaffer Sharief and others (2002) 3 SCC 521, wherein it was observed as under:
"4. ....Mr. Venkataramani then relied upon the decision of Calcutta High Court in Dwijendra Lal Sen Gupta vs. Hare Krishna Konar, A.I.R. 1963 Calcutta 218, where the question came up for consideration directly and the Calcutta High Court did observe ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 10 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. Venkararamani. Following the aforesaid decision, a learned Single Judge of the Bombay High Court in the case of H.R. Gokhale vs. Bharucha Noshir C. and Ors., A.I.R. 1969 Bombay 177, had also observed that the observations of Shah, J in Ram Sewak Yadav's case, AIR 1964 SC 1249 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 Section 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 Section 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 interference under Article 136 of the Constitution. This appeal accordingly fails and is dismissed."
16. Thus, what can be taken to be settled in view of the aforesaid exposition of law when read with Sections 82 and 86(4) of the Act is that the contest of the election petition is designed to ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 11 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 Sections 82 and 86(4) and no others. 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 is in this context that the concept of 'proper parties' is and remains alien to an election dispute under the Act.
17. Since Section 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 Act 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. Therefore, the concept of joinder of a proper party to a suit or proceeding underlying Order 1 of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 12 the Act. The Act is a selfcontained Code which does not contemplate joinder of a person or authority to an election .
petition on the ground of proper party.
18. Now, adverting to the submissions made by Mr. Satya Pal Jain, learned senior Counsel for respondent No.1 that the election petition should be dismissed as the petitioner despite opportunity has failed to delete the names of respondents No.2 and 3, I am afraid that such contention is too far fetched and, therefore, not sustainable in the eyes of law.
19. In all the judgments cited above, it has been categorically held that the person who was not "contesting candidate" and/or "other than contesting candidate" though impleaded to the election petition, does not amount to breach of provisions of the Act and petition, therefore, cannot be dismissed on that ground. The petitioner can amend the petition by striking them out from the array of the respondents.
20. Thus, in view of the well settled proposition of law, even though, respondents No. 2 and 3 are not necessary parties and are required to be deleted from the array of the respondents.
However the mere fact that their names were not deleted by the petitioner earlier, will not entail the dismissal of the election petition as this defect is otherwise curable. Accordingly, ::: Downloaded on - 11/12/2018 22:58:35 :::HCHP 13 respondents No. 2 and 3 are ordered to be deleted from the array of the respondents.
.
21. Amended memo be filed by the petitioner within one week.
22. Accordingly, EMP No.7 of 2018 stands disposed of in the above terms.
11th December, 2018.
(gr)
r to
(Tarlok Singh Chauhan),
Judge
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