N. Gokulakrishnan vs Thirumani Nadar and Others

M. Jeyapaul, J.—The revision is directed against the order passed by the Principal District Judge, Chengalput dismissing the prayer for

rejection of the Election O.P. No. 85 of 2008 filed by the first respondent herein.

The main contention of the petitioner ranked as fourth respondent in Election O.P. is that as per Rule 57 of the Cantonment Electoral Rules

2007, all the contestants to the Cantonment election which is under challenge in the Election O.P. were not made as parties and therefore, the

Election O.P. No. 85 of 2008 filed by the first respondent is liable to be dismissed.

The first respondent has contended that it was not obligatory on his part to implead all the candidates who contested the Cantonment election

along with him, in as much as there is no provision in the aforesaid rule that all the contesting candidates must be made as parties to the Election

petition.

The findings of the trial court is that Cantonment Electoral Rules 2007 do not mandate the election petitioner to implead all the contestants to the

Cantonment election. Having thus found, the prayer for rejecting the election petition filed by the petitioner herein was dismissed.

The learned Counsel appearing for the petitioner/fourth respondent would strenuously submit that as per Rule 57 of the Cantonment Electoral

Rules 2007, the Election petitioner is bound to implead all the contestants to the Cantonment election. The non impleadment of the contestants

would result in dismissal of the Election petition. The provisions of the CPC cannot be banked on by the Election petitioner in order to implead the

parties who had not been originally arrayed in the Election petition. It is his further submission that as per Section 82 of the Representation of the

People Act 1951, all the contesting candidates should be made as parties to the Election petition. Citing some decisions of the High Courts and the

Hon''ble Supreme Court, the learned Counsel appearing for the petitioner would submit that the defect occasioned on account of non impleadment

cannot be cured.

The learned Senior counsel appearing for the first respondent would contend that there is no specific rule under the Cantonment Electoral Rules

2007 mandating the Election petitioner to implead all the contesting candidates to the Cantonment election. Only during the course of enquiry

embarked upon by the District Judge before whom an election was filed, he shall issue notice to all the contesting candidates for the ward

concerned. The mandate found under Rule 57 cannot be stretched to suggest that all the candidates who participated in the election should be

made as parties in the Election petition before issuing notice. It is his further submission that Court cannot read something new into the provisions

which is crystal clear. The last submission made by the learned Senior counsel appearing for the first respondent/Election petitioner is that the

Representation of People Act 1951 would have no application to the election to the Cantonment. Even assuming for the sake of argument that it

has some applications to the election that is being conducted for the Cantonment also, Section 82 of the Representation of the People Act 1951

would have no application to the case on hand in as much as the Election petitioner had not sought any prayer to declare that he has been duly

elected.

On a careful perusal of the preamble as well as the definition, found in the Representation of the People Act 1951 it is seen that it would apply

only to the election to assembly and parliamentary constituencies and not to the Cantonment election. Therefore, Section 82 of the Representation

of the People Act 1951 will not have any application to the election disputes concerning Cantonment. Even otherwise, Section 82(a) which

mandates the election petitioner to array all the contesting candidates would come into play only in a case where the election petitioner seeks

further relief of declaration that he or any other candidate has been duly elected, in addition to the claim for declaration that the election of the

returned candidate is void. In the instant case, the election petitioner has not sought for any relief of declaration that he has been duly elected.

In Sharif Hossain alias Dalim Master Vs. Kalimuddin Shams and Others, , it has been held as follows:

In my view, when the statute and the Rules prescribes the procedure, the question of dispensing with the same does not arise. In fact, the said

provisions in the statute and Rules with regard to filing of election petition is mandatory in nature and cannot be waived.

Of course, when the election rules provide certain mandatory provisions to be adhered to at the time of presentation of the Election petition, that

cannot be simply dispensed with by the parties. In this context, the Court will have to see whether there is any violation of the rules adumbrated

under the Cantonment Electoral Rules 2007 at the time when the election petition was filed by the first respondent herein.

The Central Government u/s 31 of the Cantonments Act, 2006 have framed The Cantonment Electoral Rules, 2007. Chapter VII deals with

the election petition and the disputes arising out of the election conducted by the Cantonment board. The Election petitioner is directed to present

the election petition only in accordance with rules framed under the Cantonment Electoral Rules, 2007 as per Rule 54 of the said rules. Section 55

deals with the jurisdiction of the judicial officer before whom the election petition should be presented. While presenting the election petition, the

election petitioner has been mandated to make security deposit as per Rule 56 of the said rules. Rule 57 deals with the inquiry that should be

embarked upon by the District Judge before whom the election petition was presented in accordance with Rule 55 of the said Rules. The District

Judge who entertained the election petition has been mandated under Rule 57 of the said Rules to embark upon an inquiry after issuing notice to all

the candidates for the Ward concerned. Of course, the said provision mandating the District Judge to issue notice to all the candidates before

holding such inquiry is found to be mandatory.

In the instant case, admittedly, no such notice as mandated under Rule 57 was issued to any of the candidates by the District Judge who has

now embarked upon the inquiry.

As rightly pointed out by the learned Senior counsel appearing for the first respondent none of the provisions found under Chapter VII

Cantonment Electoral Rules, 2007 provides for impleadment of all the candidates in the election petition that may be presented by the aggrieved

candidate. Rule 57 speaks about only the issuance of notice to all the candidates before holding inquiry by the District Judge. Rule 57 cast a duty

on the judicial officer who holds inquiry. It does not mandate the election petitioner to array all the candidates for the ward concerned in the

election petition presented by him.

With respect to Rule of interpretation of a statute, the Hon''ble Supreme Court in Gurudevdatta VKSSS Maryadit and Others Vs. State of

Maharashtra and Others, has held as follows:

Further, we wish to clarify that it is a cardinal principle of interpretation of statute that the words of a statute must be understood in their

natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or

unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must

prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and

unambiguous then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best

declare the intention of the law giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every

word used by the legislature and it is not a sound principle of construction to brush aside words in a Statute as being inapposite surpluses, if they

can have a proper application in circumstances conceivable within the contemplation of the statute.

The plain and unambiguous meaning found under Rule 57 of the Cantonment Electoral Rules, 2007 is that the District Judge who proposed to hold

the inquiry shall issue notice to all the candidates who contested the Cantonment election. The Court is not supposed to supply a new meaning by

interpreting Rule 57 beyond the ambit and scope thereof. As regards the Representation of the Peoples Act 1951, the provisions u/s 82 is quite

clear that the election petitioner is bound to array all the contesting candidates in case he makes a claim to declare that he is a winning candidate.

Such a provision is not found anywhere in the Cantonment Electoral Rules, 2007. In such context, it will be an absurdity if we introduce a new

meaning to the provision under Rule 57 of the Cantonment Electoral Rules 2007 that the election petitioner is bound to array all the contesting

candidates.

The Bombay High Court in Comrade Kallappa Laxman Malabade Vs. Prakash Kallappa Awade, has held as follows:

The aforesaid holding of the Supreme Court leaves no room for doubt that the provisions of the CPC could not be resorted to in order to save a

petition which otherwise is liable to be dismissed for non-joinder of the parties, which Section 82 of the Act says must be joined.

In the present case, as indicated herein-above, besides the petitioner and the respondent there were 5 others in the fray. There were in all 7

contesting candidates. In view of the prayer in para 33(b) of the petition, Section 82 of the Act mandates that, all of them should have been joined

in the petition, at the time when it was instituted, and by virtue of Section 86 of the Act, the Court has no option but to dismiss a petition which

does not comply with the requirements of Section 82 of the Act. If the provisions of Code of Civil Procedure, viz., Order 6, Rule 17 or even

Order 23, Rule 1 are permitted to be resorted to with a view to save the petition from being dismissed, which otherwise is liable to be dismissed,

that would be using the provisions of the C.P.C. solely with a view to defeating the provisions of the Act. In other words, such an exercise would

be exercise in fraud on the provisions of the Act. I do not think detailed discussion is needed in the order to say that none of the provisions of the

C.P.C. could be invoked with a view to defeating the provisions of the Act.

Firstly, the aforesaid ratio would apply only in a case where an election to the assembly or parliament constituencies was under challenge before

the competent court without arraying the contesting candidates. In a case where prayer for declaring the election petitioner as a winning candidate

was made. As already held by this Court, the Representation of the People Act 1951 will not apply to the election to the Cantonment board which

is governed by the separate Cantonment Act 2006 and the relevant rules framed thereunder in 2007. No such mandatory provision as adumbrated

u/s 82 of the Representation of the People Act 1951 is found incorporated either in the Cantonment Act 2006 or in the Cantonment Electoral

Rules 2007. Therefore, the aforesaid ratio laid down by the Bombay High Court would not apply to the facts of this case.

It is found that the election petitioner in his election petition has given the names of all the contesting candidates except the candidates who did

not score any vote. The counter-affidavit filed by the petitioner herein reflects the names of all the contesting candidates to the Cantonment board

election. The District Judge, it is found, has not adhered to the mandates of Rule 57 of the Cantonment Electoral Rules, 2007 before holding

inquiry on the election petition filed by the first respondent herein. For the failure on the part of the Court to adhere to Rule 57 of the Cantonment

Electoral Rules 2007, the first respondent cannot be non-suited. The first respondent has virtually no role to play as far as the mandates of Rule 57

of the Cantonment Electoral Rules, 2007 is concerned. When there is no lapse on the part of the first respondent, the election petition preferred by

him cannot be rejected.

As the District Judge has been mandated to issue notice to all the contesting candidates as per Rule 57 of the Cantonment Electoral Rules,

2007, he is directed to issue notice to all the contesting candidates who have been arrayed as parties in the election petition after directing the

parties to furnish the address for service to the contesting candidates.

There is no infirmity in the order passed by the District Judge. With the above direction to the District Judge, the revision petition stands

dismissed. There is no order as to cost. Connected miscellaneous petition is also dismissed.