Bombay High Court
Aslam Badshaji Sayyed vs The Election Commission Of India And 2 ... on 16 January, 2020
Author: R.I. Chagla
Bench: R.I. Chagla
1.EP.16.19 wt.AEPL.6.19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ELECTION PETITION NO. 16 OF 2019
Aslam Badshahji Sayyed ... Petitioner
Versus
The Election Commission of India & Ors. ... Respondents
WITH APPLICATION (L) NO. 6 OF 2019 IN ELECTION PETITION NO. 16 OF 2019 The Election Commission of India and Returning Officer ... Applicants (Orig. Respondents) In the matter between Aslam Badshahji Sayyed ... Petitioner Versus The Election Commission of India & Ors. ... Respondents Ms. Anita Sonawane i/b Mr. Sandeep Rankhambe for the Petitioner. Ms. Drishti Shah i/b Ms. Rekha Rajagopal for Respondent No.1/Applicant in AEPL/6/2019.
Mr. Himanshu B. Takke, A.G.P. for Respondent No.2. Ms. S.R. Ganbhavale a/w Mr. Sanjay Gawade for Respondent No.3.
CORAM : R.I. CHAGLA J.
DATED : 16th JANUARY, 2020.
Waghmare 1/11
::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc
P.C. :
1 This Application has been filed by the Returning Officer,
Respondent No.2 to the Election Petition for himself and on behalf of Election Commission of India, Respondent No.1 to the Election Petition seeking a declaration that Respondent Nos.1 and 2 cannot be made parties to the Election Petition and for this Court to delete the names of Respondent Nos.1 and 2 from the Election Petition No.16 of 2019. 2 The learned Counsel for the Applicant has referred to the provisions viz. Sections 82 and 86 of the Representation of the People Act, 1951. Sections 82 provides for the parties to the Petition and it is provided as under :
"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 Waghmare 2/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
Further, Sections 86(1) and 86(4) provides as under :
" 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. 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.....
3.....
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.Waghmare 3/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc
3 It is clear from these provisions that the parties to the Petition can only be the contesting candidates against whom the relief has been sought for declaration that the election of all or any of the candidates is void.
4 It is provided under Section 86(1) that this Court shall dismiss an Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Thus, Section 82 is a mandatory provision and has to be strictly complied with. Further, Section 86 which is titled 'trial of election Petitions' and Section 86(4) thereunder provides for any candidate not already a Respondent shall upon application made by him to this Court within 14 days from the date of commencement of the trial and subject to any order as to security for costs made by this Court, be entitled to be joined as a Respondent. This would from a reading of this provision be applicable only to contesting candidates and for joinder during the trial of the election Petition.
5 The judgments relied upon by the learned Counsel for the Respondent Nos.1 and 2 further make it clear as to who may be joined as a party to an election Petition. In the judgment of the Supreme Court in Michael B. Fernandes vs. C.K. Jaffar Sharief and Ors. 1, the Supreme Court 1 AIR 2002 SC 1041 Waghmare 4/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc has relied upon its earlier decision in Jyoti Basu and Ors. vs. Debi Ghosal and Ors. 2. The Supreme Court has held that the provisions of the Representation of the People Act does not permit joining of persons, as parties, other than those mentioned in Sections 82 and 86(4). It has been held in the decision of Jyoti Basu (supra) in paragraphs 12 and 13 as under :
"12. There is yet another viewpoint. When in an election petition in addition to the declaration that the election of the returned candidate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, Sec. 97 enables the returned candidate or any other party to 'recriminate' i.e. to give evidence to prove that the election of such candidate would have been void if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined as a party to the petition then, by virtue of his position as a party, he would also be entitled to 'recriminate' under Sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert the petition into a 'free for all' fight. A necessary consequence would be an unending, disorderly election dispute with no hope of
2 AIR 1982 SC 983 Waghmare 5/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc achieving the goal contemplated by Sec. 86 (6) of the Act that the trial of the election petition should be concluded in six months. It is just as well to remember that 'corrupt practice' as at present defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined as respondents.
13. In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86 (4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition. The appeal is therefore, allowed with costs and the names of the appellants and the seventh respondent in the appeal are directed to be struck out from the array of parties in the election petition. We may mention that in arriving at our conclusion we have also considered the following decisions cited before us: S.B. Adityan v. S. Kandasami, AIR 1958 Mad 171. Dwijendra Lal Sen Gupta v. Harekrishna Konar, AIR 1963 Cal 218, H.R. Gokhale v. Bharucha Noshir C. AIR 1969 Bom 177 and S. Iqbal Singh v. S. Gurdas Singh Badal, AIR 1973 Punj & Har 163 (FB).
Appeal allowed."
Waghmare 6/11::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc 6 Thus, the Supreme Court has noticed the consequences where persons other than a candidate mentioned in Section 82 are permitted to be added as parties. This would result in an unending, disorderly election dispute with no hope of achieving the goal contemplated by Section 86(6) of the Act.
7 The learned Counsel has also relied upon the decision of the Supreme Court in B. Sundara Rami Reddy vs. Election Commission of India and others3, which is to the similar effect as the decisions of the Supreme Court in Michael B. Fernandes (supra) and Jyoti Basu (supra). This judgment also goes on to hold that the Representation of the People Act, 1951 is a self-contained Court which does not contemplate joinder of a person or authority to an Election Petition on the ground of being a proper party. It holds that the concept of joinder of proper party to a Suit under Order 1 of the Code of Civil Procedure cannot be imported to the trial of an Election Petition in view of the express provisions of Sections 82 and 87 of the Act. It further holds that only those who may be joined as Respondents to an Election Petition are mentioned in Sections 82 and 86(4) and no others and that however, desirable and expedite it may appear to be, none else shall be joined as the Respondents. The learned Counsel for the Applicant has accordingly submitted that Respondent Nos.1 and 2 are not 3 1991 Supp (2) SCC 624, Waghmare 7/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc parties envisaged by the provisions of Sections 82 and 86(4) of the Act. Consequently, they cannot be joined as Respondents, however desirable and expedient they may appear to be.
8 The learned Counsel for the Petitioner had despite being given several opportunities to file a reply to the above application has failed to do so. In the order dated 22.11.2019, the submissions of the learned Counsel for the Respondent Nos.1 and 2 had been recorded including her reliance upon an order of this Court dated 27.08.2019 in Election Petition No.2 of 2019. The Respondent Nos.1 to 4 therein had raised a similar objection to their impleadment as party Respondents to the Election Petition. The Respondent No.1 being the Election Commission of India who is also Respondent No.1 herein. This Court was of the view that Respondent Nos.1 to 4 were neither necessary nor proper parties in the Election Petition and accordingly their names were deleted. This Court made it clear that if the Petitioner sought to issue any witness summons upon any of these Respondents at the time of trial, the Petitioner would be at liberty to do so.
9 The learned Counsel for the Petitioner has submitted that the subject matter of the Petition is with regard to the functioning of the electronic voting machine (EVM) which the Petitioner's claim was Waghmare 8/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc mal-functioning and that the voters had lost faith in the working of the electronic voting machines. She has submitted that since there was a difference in the total number of votes i.e. between the polled votes and counted votes it was necessary to join the Respondent Nos.1 and 2 who are responsible for the working of the EVM used in the polling station and would also be responsible for explaining the difference between the polled votes and the counted votes. The Petition has prayed for various reliefs against Respondent Nos.1 and 2. The relief sought includes an explanation which would be required from Respondent Nos.1 and 2 to explain the difference between the polled votes and counted votes and to produce the numerical number on the EVM produced on the date of counting. 10 Having considered the submissions, the decisions of the Supreme Court in Michael B. Fernandes (supra), Jyoti Basu (supra) and B. Sundara Rami Reddy (supra) make it clear that the only parties who are permitted to be joined as Respondents in an Election Petition are those parties provided for under Sections 82 and 86(4) of the Representation of the People Act, 1951. No other party can be joined as a party to the Election Petition. The Respondent Nos.1 and 2 are certainly not parties contemplated under these provisions and thus, their joinder to the Election Petition is wrongful and they are required to be deleted as parties. Waghmare 9/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc This Court has in Sachin Damodar Shingda vs. Election Commissioner of India and others in Election Petition No.2 of 2019 by order dated 27.08.2019 considered a similar application wherein the very same Respondent No.1 as in the present Petition together with other Respondents, had raised an objection about their impleadment as party Respondents to the Election Petition. This Court had held that the Respondents are neither necessary nor proper parties in this Election Petition and accordingly, directed their deletion as parties. This Court made it clear that where the Petitioner sought to issue any witness summons upon any of these Respondents at the time of trial, the Petitioner would be at liberty to issue such witness summons. A similar order is required to be passed in the present application. 11 The application is accordingly allowed in terms of prayer clauses (a) and (b). The Petitioner is directed to carry out the amendment by deleting the names of Respondent Nos.1 and 2 as parties along with consequential amendments in the body and prayers of the Election Petition. The amendment shall be carried out within one week from today. It is made clear that if the Petitioner seeks to issue any witness summons on any of the Respondents at the time of trial, the Petitioner would be at liberty to issue such witness summons.
Waghmare 10/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::
1.EP.16.19 wt.AEPL.6.19.doc 12 The Application is accordingly disposed of. 13 At this stage it is noted that the Respondent No.3 has preferred an application seeking dismissal of the Election Petition on certain technical grounds. The application of Respondent No.3 shall be served upon the Petitioner within a period of one week. List the Application of Respondent No.3 on 31.01.2020.
(R.I. CHAGLA J.) Waghmare 11/11 ::: Uploaded on - 20/01/2020 ::: Downloaded on - 09/06/2020 18:20:39 :::