Michael B. Fernandes vs C.K. Jaffer Sharief and Others

Pattanaik, J.—This appeal is directed against the Order dated16th June, 2000, passed in Election Petition No.29 of 1999.The aforesaid Election Petition had been filed by theappellant, challenging the validity of the election to theHouse of People from the Bangalore North ParliamentaryConstituency, in which election, respondent No.1 wasdeclared to have been elected. In the election petition, theElection Commissioner, the Returning Officer and the ChiefElectoral Officer of the State of Karnataka had been arrayedas respondents 6, 7 and 8. Those respondents filed anapplication before the High Court of Karnataka for theirdeletion inter alia on the ground that u/s 82 of theRepresentation of the People Act, it has been clearlyindicated that who should be the parties to an electionpetition and since they have been unnecessarily impleaded,they should be deleted. The High Court by the impugnedjudgment having deleted the said respondents 6, 7 and 8 fromthe array of parties, the present appeal has been preferred.

Mr. R. Venkataramani, the learned senior counselappearing for the appellant contended that the electionpetition having been filed. Challenging the validity of theelection of respondent No.1, on the grounds contained inSection 100(1)(d)(iii)(iv) and non-compliance with theprovisions of the Constitution and the Rules by the electionmachinery having been alleged, respondents 7 and 8 at leastought to have been held to be proper parties and there couldnot have been an order of deletion. According to the learnedcounsel, these respondents 7 and 8 having failed to conformto the mandatory guidelines enacted by the ElectionCommission of India, as contained in the hand book of theReturning Officer and those guidelines being treated as anintegral part of the rules as well as Article 324 of theConstitution, respondents 7 and 8 became proper parties tothe election petition, in view of the nature of allegationspertaining to their official conduct. That being the position,the learned Single Judge, who was in session of the matter, erroneously deleted the said respondents 7 and 8. Mr.Venkataramani however seriously does not challenge theorder of deletion, so far as respondent No.6 is concerned.

Mr. S. Muralidhar, the learned counsel appearing forthe Election Commission, on the other hand submitted thatthe question of parties to an election petition is concluded bytwo earlier decisions of this Court in the case of Jyoti Basu and Others Vs. Debi Ghosal and Others, and B. Sundara Rami Reddy v. Election Commission of Indiaand Ors. and therefore, theHigh Court was wholly justified in directing the deletion ofthose respondents from the array of parties and by suchdeletion, there has been no illegality requiring interference bythis Court. Mr. Muralidhar, further contended that theRepresentation of the People Act being a full code by itself,prescribing the procedure to be followed and indicating theparties to be arrayed to an election petition and respondents 7and 8, not coming within the ambit of the said provision, theHigh Court rightly deleted them and that order need not beinterfered with by this Court. The learned counsel lastlyurged that in view of the nature of allegations made, theperson making those allegations is required to prove the sameand therefore, there is no justifiable reason, why the ElectionOfficer or the Returning Officer should be permitted to beadded as a party to the election petition.

In order to examine the correctness of the rivalsubmissions, it would be necessary for us to have a bird's eyeview of the relevant provisions of the Act and the differentcase laws on the point. But one thing must be borne in mindthat in the case in hand, the allegations made were in relationto the use of voting electoral machines, u/s 61Aof the Act. The gravamen of the allegations in the electionpetition are that the Returning Officer as well as the ChiefElectoral Officer had not complied with several provisions of the Conduct of Election Rules and respondents 7 and 8 hadnot acted in accordance with the guidelines issued by theElection Commission of India. The relevant paragraphs ofthe election petition pertaining to the infraction of Rulescommitted by respondent 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 forthe conduct of elections to the House of Parliament and tothe House of Legislature of each State and it provides thequalifications and disqualifications for Membership of thoseHouses, the Corrupt Practices and other offences inconnection with such elections and the decisions of doubtsand disputes arising out of or in connection with suchelections. The general procedure at elections has beenenumerated in Chapter III. Section 61 of the Act providesthe procedure for preventing personation of electors andSection 61A 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 providesfor submission of a Report of the result to the appropriateauthority and the Election Commission and in case of anelection to a House of Parliament, to the Secretary of thatHouse by the Returning Officer, soon after the declaration ofthe result. It also provides for publication of the name of theelected candidate in the official gazette. Part VI starting with Section 79 deals with disputes regarding elections. UnderSection 80 of the Act, no election shall be called in questionexcept by an election petition presented in accordance withthe provisions of this Part. Presentation of petition is dealtwith in Section 81 and such petition could be presented onone or more of the grounds specified in Sub-section (1) ofSection 100 and Section 101. Section 82 stipulates as towho shall join as respondents to an election petition. Section 82 may be quoted herein-below in extenso:-

"Section 82. Parties of the petition:- A petitionershall join as respondents to his petition---

(a) where the petitioner, in addition to claimingdeclaration that the election of all or any ofthe returned candidates is void, claims afurther declaration that he himself or anyother candidate has been duly elected, all thecontesting candidates other than thepetitioner and where no such furtherdeclaration is claimed, all the returnedcandidates; and

(b) any other candidate against whomallegations of any corrupt practice are madein the petition."

Section 83 provides as to what should contain in an electionpetition and Section 86 in Chapter III deals with trial ofelection petitions. Section 87 is the procedure for such trial and it provides that every election petition shall be tried asnearly as may be, in accordance with the procedureapplicable under the Code of Civil Procedure, 1908 to thetrial of suits. As stated earlier, Section 100 indicates thegrounds on which an election can be declared to be void andSection 101 indicates the grounds on which a candidate otherthan the returned candidate may be declared to have beenelected. We are not concerned with the other provisions ofthe Act in the case in hand. An appeal to the Supreme Courthas been provided u/s 116A. On a plain readingof Section 82, which indicates as to the person who can bejoined as a respondent to an election petition, the conclusionis irresistible that the returned candidate, the candidateagainst whom allegations of any corrupt practice have beenmade are to be joined as party respondent when declarationis sought for holding the election of the returned candidate tobe void and when a prayer is made as to any other candidateto be declared to be duly elected, then all the contestingcandidates are required to be made party respondents. On aliteral interpretation of the aforesaid provisions of Section 82,therefore, it can be said that an election petition which doesnot make the person enumerated in Section 82 of the Act, asparty respondents, is liable to be dismissed. The two decisions of this Court directly on the question are the casesof Jyoti Basu and Others Vs. Debi Ghosal and Others, and B. Sundara Rami Reddy v. ElectionCommission of India and Ors. In the former case, Chinnappa Reddy, J, speaking for theCourt, held that right to elect or to be elected or disputeregarding election are neither fundamental rights norcommon law rights but are confined to the provisions of theAct and the Rules made thereunder and consequently, rightsand remedies are all limited to those provided by thestatutory provisions. On the question of Joinder of parties,referring to Section 82 and 86(4) of the Representation ofthe People Act, it was held that the contest of the election petition is designed to be confined to the candidates at theelection and all others are excluded and therefore, only thosemay be joined as respondents to an election petition, who arementioned in Section 82 and 86(4) and no others. Anargument had been advanced in that case that even ifsomebody may not be a necessary party u/s 82 ofthe Act, but yet he could be added as a proper party asprovided in Order I Rule 10 of the Code of Civil Procedure. But the Court rejected that contention on a finding that theprovisions of the CPC apply to electiondisputes only as far as may be and subject to the provisionsof the Act and any rules made thereunder and the provisionsof the Code cannot be invoked to permit which is notpermissible under the Act. It was in that context the Courtfurther observed that the concept of 'proper parties' is andremain alien to an election dispute under the Act. Thisdecision was followed in Anil Kumar Soni Vs. The Managing Director, Punjab Financial Corporation and another, referred to supra and it was reiterated that the concept of 'proper party' is and mustremain alien to an election dispute under the Act and onlythose may be joined as respondents to an election petition,who are mentioned in Section 82 and 86(4) of the Act andno others. The Court in this case added that howeverdesirable and expedient it may appear to be non-else shallbe joined as respondents. Mr. Venkataramani, the learnedsenior counsel, appearing for the appellant, contended thatthe law enunciated in the two decisions and the observationsmade are too wide and while Section 82 casts an obligation on an election petitioner to join those mentioned in clauses(a) and (b) as partly respondent, it does not put an embargofor addition of any other person in an appropriate case,depending upon the nature of allegation made andconsequently, the expression "any other" in the two decisionsreferred to above, must be held not to have been correctlyused. Mr. Venkataramani relied upon the observationsmade by this Court in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, wherein the Court had observed that the Constitutioncontemplates a free and fair election and vestscomprehensive responsibilities of superintendence, directionand control of the conduct of elections in the ElectionCommission. This responsibility may cover powers, dutiesand functions of many sorts, administrative or other,depending on the circumstances and submitted that the basisof electoral democracy being a free and fair election andfairness imports an obligation to see that no wrong-doercandidate benefits from his own wrong. In case whereallegations are made against the Returning Officer or theChief Electoral Officer with regard to the conduct of theelection, there should be no bar to array them as parties andaccording to Mr. Venkataramani in Gill's case, the ChiefElection Commissioner was a party and, therefore, this Courtin Jyoti Basu as well as the subsequent case, having notnoticed the aforesaid judgment of the larger Bench, the latterdecision will be of no assistance. We are not in a position to accept the submission of Mr. Venkataramani inasmuch as inGill's case, an order of the Election Commissioner was underchallenge by filing a writ petition and it was not an electionpetition under the provisions of the Representation of thePeople Act. There is no dispute with the proposition that afree and fair electoral process is the foundation of ourdemocracy, but the question for consideration is, whether byindicating in the Act as to who shall be arrayed as party, theCourt would be justified in allowing some others as parties toan election petition. For the aforesaid proposition, Gill's case is no authority. Mr. Venkataramani then relied upon thedecision of Calcutta High Court in Dwijendra Lal Sen Gupta Vs. Harekrishna Konar, where the question came up for consideration directly and theCalcutta High Court did observe that the Returning Officermay nevertheless in an appropriate case be a "proper party"who may be added as party to the election petition andundoubtedly, the aforesaid observation supports the contention of Mr. Venkararamani. Following the aforesaiddecision, a learned Single Judge of the Bombay High Courtin the case of H.R. Gokhale Vs. Bharucha Noshir C. and Others, had also observed that theobservations of Shah, J in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, in paragraph (6) is not intended to lay downthat the Returning Officer can in no event to be a proper partyto an election petition. But both these aforesaid decisions ofthe Calcutta High Court and Bombay High Court had beenconsidered by this Court in Jyoti Basu case and the Courttook the view that the public policy and legislative wisdomboth seem to point to an interpretation of the provisions ofthe Representation of the People Act which does not permitthe joining, as parties, of persons other than those mentionedin Section 82 and 86(4). The Court also in paragraph (12)considered the consequences if persons other than thosementioned in Section 82 are permitted to be added as partiesand held that the necessary consequences would be an unending, disorderly election dispute with no hope ofachieving the goal contemplated by Section 86(6) of the Act.In the aforesaid premises, we reiterate the views taken by thisCourt in Jyoti Basu' case and reaffirmed in the letter case in B.Sundara Rami Reddy and we see no infirmity with theimpugned judgment, requiring our interference under Article 136 of the Constitution. This appeal accordingly fails and is dismissed.