K.T. Kosalram vs Dr. Santhosham and Others

Venkatadri, J.—This is an application by the Returning Officer, Tiruchendur Parliamentary Constituency, to strike off his name from the

array of parties in Election Petition No. 10 of 1967. The applicant figures as the fifth respondent in the election petition. In this application, he

states that he is neither a necessary party nor a proper party to the petition, that no relief has been asked for against him, that it cannot be said that

the presence of the applicant will in any way enable the Court to adjudicate more effectively and completely the questions raised in the election

petition, that he has acted only in the course of his duty as Returning Officer and has not done anything contrary to the statute, that the election

petition has not disclosed any cause of action against him and that, therefore, his name may be struck off from the array of parties in the election

petition.

The election petitioner has stated in his counter that he has impleaded the applicant as a party since he is of opinion that the applicant is a proper

party, though not a necessary party.

The elected candidate (Dr. M. Santhosham) states in his counter that, since the petitioner in the election petition has made several allegations of

improper conduct on the part of the Returning Officer and his staff in the matter of counting of votes and in not exercising adequate vigilance, it is

just and necessary to retain him in the array of parties in order to enable the Court to determine the truth of the allegations.

In the election petition, there are several allegations of irregularities committed by the applicant in the matter of counting and rejection of votes, in

the way of maintaining the secrecy of votes and in the unlawful manner in which he and his subordinates discharged their duties during the election.

The Returning Officer plays an important part in an election and the office of the Returning Officer is an honourable and distinguished one. The

Returning Officer should be free from partiality, should not be prone to misconduct and should not give arbitrary decisions. He is expected to

maintain the secrecy of voting and he must satisfy himself whether a candidate is eligible and if he is not satisfied, then he can disqualify him. He

should follow the instructions given to him strictly, before and after the election.

Learned Government Pleader appearing for the applicant-Returning Officer contends that the applicant cannot be impleaded under the

provisions of the Representation of the People Act 1951; for, under that Act, only the contesting candidates and the returned candidate can be

made parties to the petition. If there is any allegation in the petition as to breach of official duties in connection with the election, the Act provides

that the official shall be punishable with fine. Even assuming that the serious allegations against the Returning Officer are true, he can be summoned

to give evidence in the course of trial of the election petition.

Under the circumstances, an interesting question of election law and procedure arises, viz., whether the Returning Officer, when allegations of

illegality, irregularity and impropriety are made against him, is a necessary or a proper party to an election petition, or whether he should be

impleaded as a party or whether he should be deleted if he is already made a party to an election petition.

This question must be determined with reference to the particular statute, viz., the Representation of the People Act 1951 and the Rules made

thereunder. It is true Section 82 of the Act provides for array of parties to an election petition. But it is not final and conclusive. The provisions of

the CPC can be used and utilised either for impleading or for adding of parties to a petition. Further, the Act does not say that the Returning

Officer is either a necessary party or a proper party in an appropriate case.

In Halsbury''s Laws of England, Simonds Ed. 3rd Edn. Vol. 14 in para 446, the law on this aspect of the matter is summed up in the following

words:--

Where, however, a parliamentary election petition complains of the conduct of a Returning Officer, he will, for all the purposes of the Act, except

as regards the admission of respondents in his place, be deemed to be a respondent. The allegation against the Returning Officer need not

necessarily be one of wilful misconduct, and he may be joined as a respondent -- where the acts or omissions or negligences complained of are not

personal but are those of his subordinates"".

From the cases reported in Election Petitions by O''Molley and Hardcastle, it can be gathered, that, if it is proposed to give evidence at the hearing

of an election petition to implicate the Returning Officer, he should be made a respondent and that a mere proposal to offer evidence implicating

the Returning Officer will not enable one to take out summons as no charge has been made against him in the petition. In another case, the

presiding Judge refused to allow the respondent in an election petition to serve a copy of the petition on the Returning Officer on the ground that it

was unnecessary, as, by the fact of the conduct of the Returning Officer being complained of, he was already deemed to be a respondent. But on a

summons being subsequently taken out by the returning officer for particulars of the charges against him, another Judge held that he was not a party

as wilful misconduct was not alleged against him. The trend of opinion from these English cases seems to be that, whenever there is any allegation

of misconduct, he must be deemed to be a proper party.

The earliest case that can be traced, for the purpose of answering the question whether a Returning Officer is a necessary or a proper party, is

G. C. Partabrai v. A. T. Chaharmal, (1952) 1 Ele LR 194 (Ele. Tri. Bom) where it is observed-

Section 82 of the Representation of the People Act 1951 provides that the petitioner shall join as respondents to his petition all the candidates

who were duly nominated at the election. It is not stated anywhere in the said Act that the Returning Officer should not be made a party. Under the

Civil Procedure Code, a person may be made a party to an action either because he is a necessary party or a proper party"".

In that case, the Tribunal was not prepared to say that the respondent No. 8 (Returning Officer) was a necessary party to the petition, but in

view of the allegations of irregularity and illegality made against him and his subordinates by the petitioner therein, the Tribunal thought that the

Returning Officer was a proper party. In Nrisinha Kumar Sinha v. S.C. Ghosh, (1952) 2 Ele LR 121 Ele Tri Cal), though the question arose

whether the Returning Officer was a necessary or proper party in an election petition, it was conceded that the final decision did not depend on

that issue and neither party proposed to examine the Returning Officer as his witness but wanted to have him as a Court witness. The Tribunal,

however, did not deem it necessary to examine him as a Court witness in the circumstances of that case. In Jagan Nath Vs. Jaswant Singh and

Others, , their Lordships of the Supreme Court have observed that non-compliance with the provisions of the law relating to the impleading of

parties is not necessarily fatal and can be cured, that it is for the Tribunal to determine the matter as and when it arises in accordance with the

provisions of the CPC which have been made expressly applicable and that further the array of parties as provided by Section 82 is not final and

conclusive. In Inayatullah Khan v. Diwanchand Mahajan, (1958) 15 Ele LR 219 there was an allegation of corrupt practice against the Returning

Officer that he wrongfully refused to allow recount of the votes but he was not impleaded as a party -- neither party cared to summon him as a

witness. During the course of the hearing of the appeal, the Court, however, gave a telegram to the Returning Officer informing him of the date of

hearing and leaving it to him to take the next step. The Officer, however, did not choose to appear. But his non-appearance was not mistaken by

the Court, as it was of opinion, on the materials placed before it, that there was no corrupt practice on the part of the Returning Officer but only an

improper exercise of judgment on his part. The question whether the Returning Officer was a necessary or a proper party was, therefore, left open.

But in Returning Officer, Atmakur v Kondiah, (1959) 22 Ele LR 45 (Ele. Tri. Nellore), the Election Tribunal held that the Returning Officer was

not a necessary or a proper party to an election petition, even though allegations were made against him in the petition. According to the Tribunal,

if the allegations against the Returning Officer are proved, it can take action u/s 90 of the Representation of the People Act.

In Dwijendralal Sengupta v. Harekrishna Kunar, (1963) 3 Doabia''s Ele Cases 206, the Calcutta High Court had an occasion to consider in

extenso whether the Returning Officer was a necessary or proper party to an election petition. In that case, there were allegations of bad faith,

misconduct and impropriety in the election petition against a Returning Officer. He was not impleaded as a party but the election petitioner

undertook to summon him as a witness at the time of the trial. It was explained by the Court that the witness at one stage would have to be

declared hostile by the petitioner and the petitioner; may have to cross-examine his own witness. Equally if the other side called him as a witness

and his evidence would come as a surprise. It was also observed by the Court that, if the Returning Officer was joined as a party to the election

petition, then he had got to make out his case in his written statement or in answer to the allegations in the petition so that every one would know

what his answers were and the party might come ready with his evidence to meet the evidence of the Returning Officer. On the facts of that case,

the Calcutta High Court held that the Returning Officer was a proper party. On a review of the case law, the Calcutta High Court followed the

decision in (1952) 1 Ele LR 194 (Ele. Tri. Bom.).

Even under the provisions of the Representation of the People Act, whenever there are allegations of bad faith, misconduct and impropriety

and not merely illegality made against the Returning Officer in an election petition, the Returning Officer is a proper party though not a necessary

party. In proper cases, the Returning Officer may be a proper party to the election petition, even though Section 82 of the Act does not make him

a necessary party. Section 90 of the Act enables the Tribunal to implead the Returning Officer as a party under the provisions of the CPC which

are expressly made applicable to the trial of election petitions, subject to the provisions contained in the Representation of the People Act and the

rules made thereunder.

For the foregoing reasons and in view of the fact that serious allegations of irregularity, illegality and impropriety are made against the Returning

Officer in the election petition, I feel that he is a proper party to the election petition.

In the result, the application is dismissed but without costs.