Laxman Singh vs Bhura Ram and Others

Pratap Krishna Lohra, J.—Petitioner, an elected Sarpanch of Gram Panchayat Degana, has preferred this writ petition under Article 226 & 227 of the Constitution of India to assail impugned order dated 17th of September, 2015 passed by Senior Civil Judge, Merta (for short, ''learned Election Tribunal'') rejecting his application under Order 1 Rule 10 read with Section 151 CPC in an election petition laid by first respondent.

The facts in brief are that first respondent filed an election petition against the petitioner under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (for short, ''Act of 1994'') read with Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (for short, ''Rules of 1994''). In the election petition, it is, inter alia, averred by the first respondent that returning officer has wrongly accepted nomination form of the petitioner, and therefore, his election is liable to be set aside.

In the election petition, petitioner submitted an application (Annex.3) under Order 1 Rule 10 CPC inter alia praying therein for impleadment of returning officer as party to the election petition. As per the version of the petitioner, in the election petition there are serious allegations against the returning officer, and therefore, his impleadment as party to the proceedings is necessary for complete and effectual adjudication of the lis involved in the matter.

The learned Election Tribunal, after hearing the arguments of rival parties, by the order impugned declined the prayer of petitioner by referring to Rule 83 of the Rules of 1994. In the order impugned, learned Election Tribunal has also recorded a definite finding that returning officer is neither necessary nor proper party, and therefore, its impleadment is not desirable.

I have heard learned counsel for the parties, perused the impugned order and other materials available on record.

The first and foremost question, which requires determination by this Court, is the legality and propriety of the impugned order within the four corners of the limited scope of judicial review under Article 227 of the Constitution of India. The election petition is filed by the first respondent under Section 43 of the Act of 1994 and further a reference is made about Rule 80 of the Rules of 1994. Rule 81 of the Rules of 1994 refers to the locus of a person to lay election petition. Rule 82 of the Rules of 1994 postulates the contents and verification of election petition. The relevant Rule 83 of the Rules of 1994, inter alia, prescribes the parties to the election petition. The complete text of Rule 83 of the Rules of 1994 reads as under:

"83. Parties to the petition.--The person whose election is challenged, and where the petition claims that any other candidate shall be declared as elected in place of such person, every unsuccessful candidate who has polled more vote than such candidate, shall be made respondent to the petition."

Upon perusal of the aforesaid Rule 83 of the Rules of 1994, it is amply clear that the Legislature in its wisdom has not considered the returning officer as a proper party much less necessary party to an election petition.

Learned counsel for the petitioner, in support of his arguments, has placed reliance on Division Bench decision of Calcutta High Court in Dwijendra Lal Sen Gupta Vs. Harekrishna Konar, . In the said judgment, the Calcutta High Court, while considering the purport of Section 82 of the Representation of People Act, 1951 (for short, ''Act of 1951''), in the backdrop of serious insinuations by the election petitioner against returning officer, held that though returning officer may not be a necessary party but nevertheless in an appropriate case, it can be a proper party which may be added as party to the election petition. The Court held:

"The English Law dealing with the returning officer as a respondent is not the same as the Indian Law and therefore, it will be unwise to rely on English decisions as such. It will be more unwise to rely on them where on a proper construction of the language of our own statute and our own Representation of the People Act, 1951, we draw the conclusion both expressly as well as by necessary implication of the specific sections quoted above, that in an appropriate case where allegations of bad faith, negligence and impropriety are made against the returning officer he can certainly be joined as a "proper" party at least under the provisions of the Civil Procedure Code which are expressly made applicable to the trial of the election petitions.

Before conclusion we need only add that apart from the charges of negligence, mala fides, and impropriety made in the election petition one of the serious questions raised in the election petition is the system of proportionate representation and wrongful and inaccurate determination, ascertainment and counting of quota by the returning officer under the system. That consideration on the facts of this petition, will also in our view make the Returning Officer a proper party."

Per contra, learned counsel for the respondent, while defending the impugned order by relying on Rule 83 of the Rules of 1994, submits that no interference with the impugned order is warranted. As per submission of learned counsel for respondent, returning officer need not be impleaded as party-respondent in the election petition even if there are allegations that he has not complied with the provisions of election rules. In support of his contention, learned counsel has placed reliance on a decision of Supreme Court in case of Jyoti Basu and Others Vs. Debi Ghosal and Others, . In this verdict, Supreme Court, while considering the true purport of Sections 82 and 86(4) of the Act of 1951, opined in clear and unequivocal terms that the concept of proper party is totally alien to the election dispute under the Act, and therefore, a person who is not a candidate may not be joined as a respondent to the election petition. The Court held:

"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. Section 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 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 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 clause (b) of Section 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 under Section 86(4) , any other person cannot, under that provision seek to be joined as 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 Section 82 and Section 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.

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 & Anr. v. S. Kandaswami, Dwijendra Lal Sen Gupta v. Harekrishna Koner, H.R. Gokhale v. Bharucha Noshir C. and S. Iqbal Singh v. S. Gurdas Singh Badal.

In yet another judgment the Supreme Court in case of Michael B. Fernandes Vs. C.K. Jaffer Sharief and Others, reiterated the same principle that even if there are allegations against the returning officer, it is not necessary to implead him as party to the election petition. The Court held:

"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, under Section 61-A of the Act. The gravamen of the allegations in the election petition is 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 20-a, 20-d, 20-f, 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 Section 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 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 Section 81 and such petition could be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 . Section 82 stipulates as to who shall join as respondents to an election petition. Section 82 may be quoted hereinbelow in extenso:--

"Sec. 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 Section 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 stated earlier, Section 100 indicates the grounds on which an election can be declared to be void and Section 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 under Section 116-A . On a plain reading of Section 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 is to be joined as party-respondent when declaration is sought for holding the election of the returned candidate 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 are required to be made party-respondents. On a literal interpretation of the aforesaid provisions of Section 82 , therefore, it can be said that an election petition which does not make the persons enumerated in Section 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 v. Debi Ghosal and B. Sundara Rami Reddy v. Election Commission of India. 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 Sections 82 and 86(4) of the Representation 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 Section 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 under Section 82 of the Act, but yet he could be added as a proper party as provided in Order I Rule 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 remains alien to an election dispute under the Act. This decision was followed in B. Sundara Rami Reddy''s case 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 Sections 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 Section 82 casts an obligation on an election petitioner to join those mentioned in clauses (a) and (b) as party-respondent, it does not put an embargo for addition of any other person in an appropriate case, 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 case, wherein the Court had observed that the Constitution contemplates a free and fair election and vests comprehensive responsibilities 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 wrongdoer 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 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 judgment 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 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 parties to an election petition. For the aforesaid proposition, Gill case is no authority. Mr. Venkataramani then relied upon the decision of Calcutta High Court in Dwijendra Lal Sen Gupta v. 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. Venkararamani. Following the aforesaid decision, a learned Single Judge of the Bombay High Court in the case of H.R. Gokhale v. Bharucha Noshir C. had also observed that the observations of Shah. J in Ram Sewak Yadav case in paragraph 6 are 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 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 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."

Therefore, in view of clear and unambiguous provision under Rule 83 of the Rules of 1994 and the authoritative pronouncements by the Supreme Court, referred to supra, unhesitantly, in my view, learned Election Tribunal has not committed any jurisdictional error in rejecting the application of the petitioner.

Resultantly, petition fails and same is, hereby, dismissed summarily.