Riddha Ram @APPELLANT@Hash Harman Ram & Ors

Through this writ petition under Article 226 & 227 of the Constitution of India the petitioner Riddha Ram has approached this Court seeking to assail

the orders dated 7.4.2015 (Annexure3) and dated 14.10.2015 passed by learned Civil Judge (S.D.) Parbatsar in Election Petition No. 67/2015.

The facts in brief are that the petitioner contested and was declared elected as a chair person of Gram Panchayat, Bhadwa in the year 2015. The

respondent Hadman Ram submitted an election petition in the Court of District Judge, Merta on 23.2.2015 for challenging the election of the petitioner

by taking recourse of Section 43 of the Rajasthan Panchayati Raj Act. Learned District Judge vide order dated 9.3.2015 directed that notices be

issued to the respondents and the matter be placed on 7.4.2015. It appears that in the intervening period between 9.3.2015 and 7.4.2015 the election

petition was transferred to the Court of Sr. Civil Judge, Parbatsar (albeit without any judicial order and probably on the administrative side). Even

before notices could be served upon the petitioner an application under O. 1 Rule 10 was filed on 26.3.2015 by respondent no. 2 Harji Ram for being

impleaded as petitioner in the election petition. It may be stated here that the limitation of 30 days for filing election petition as per Panchayati Raj Act

had lapsed by the learned Election Tribunal, allowed the said application with the consent of the original election petitioner but admittedly without

hearing the petitioner by the order Annexure-3 dated 7.4.2015. After appearance in the matter, the petitioner moved an application under Rule 81(1)

of the Rajasthan Panchayati Raj (Election) Rules 1994 praying for dismissal of the election petition on the ground that the same was presented by the

person not competent to do so and thus the same should be dismissed. Such application moved by the petitioner was rejected by learned trial court

vide order dated 14.10.2015 which is assailed in this writ petition.

Learned counsel Mr. Vikas Balia places reliance on the decision of the Hon’ble Supreme Court in the case of Mohan Raj Vs. Surendra Kumar

Taparia reported in AIR 1969 SC-677 and urged that defect of non joinder of necessary parties in an election petition cannot be cured by taking

recourse of the provisions of C.P.C. Mr. Balia urges that limitation for filing an election petition as per Rule 80 of the Rajasthan Panchayati Raj

(Election) Rules 1994 (hereinafter referred to as the Rules of

1994) is thirty days from the date on which the result of such election is declared. Admittedly Harman Ram was not a contesting candidate in the

questioned election and thus the election petition suffered from a fatal defect. Learned trial court allowed the application preferred by Harji Ram

under O. 1 Rule 10 C.P.C. so as to cure this fatal defect in the election petition without any justification and without having jurisdiction to do so. He

thus implores the Court to accept the writ petition and quash the impugned orders while directing dismissal of the election petition on the ground of the

same being presented by an incompetent person.

Mr. G.R.Punia learned Sr. Advocate assisted by Mr. Rajednra Prasad and Mr. Rajendra Choudhary representing the respondents vehemently

opposed the submissions advanced by the petitioner’s counsel and urged that the defect in the election petition was trivial in nature and the trial

court rightly allowed and joinder of the respondent as the election petitioner while accepting the application under O. 1 rule 10 C.P.C. filed by Harji

Ram with the consent of the election petitioner i.e. Hadman Ram and that the petitioner has no right to raise a grievance thereagainst. On these

grounds, they craved dismissal of the writ petition.

I have given my thoughtful consideration to the arguments advanced at bar and have gone through the impugned orders as well as material on record.

It cannot be denied that as per Section 43 of the Act, the election of a returned candidate can only be called in question by any candidate at such

election by presenting in the prescribed manner to the District Judge having jurisdiction an election petition on the prescribed grounds and within the

prescribed period. As per per Rule 80 of the Rules of 1994 an election under the Act and under the rules may be called in question by any

candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such

election is declared. Since Harman Ram was not a candidate at the election, he was not competent to submit an election petition in terms of

Section 43 of the Act and Rule 80(1) of the Rules of 1994. By allowing the application filed by Harji Ram, the trial court virtually permitted

transposition of an incompetent election petition by Harji Ram and that too beyond statutory limitation of 30 days within which the election petition

could be presented.

Viewed in the light of above referred mandatory statutory provisions and the following observations made by Hon’ble Supreme Court in the case

of Mohan Raj Vs. Surendra Kumar Taparia (supra):-

“9 . The argument cannot be entertained. These questions have already been considered by this Court on more than one occasion. They were first

considered in K. Kamaraj Nadar v. Kunju Thevar, MANU/SC/0096/1958 : [1959]1SCR583 but that ruling may not strictly be appropriate since it was

based on Section 55A(2) which is now repealed. However, other cases (Amin Lal v. Hunna Mal, MANU/SC/0186/1964 :[1965]1SCR393 and Har

Swamp v. Brij Bhushan Saran, MANU/SC/0173/1966 :[1967]1SCR342 ) consider this point. It is there laid down that a candidate who is duly

nominated continues to be a candidate for purpose of Section 82(b) in spite of withdrawal. This really decides the question which has been mooted

before us. A very detailed examination of the same question is to be found in Chaturbhuj v. Election Tribunal, Kanpur, MANU/UP/0203/1958 :

AIR1958All809 . In that case our brother Bhargava (N. L. Chaturvedi J. concurring) has examined in the Allahabad High Court these provisions from

every angle which are presented to us and has adequately answered all the arguments.

It is argued that the Civil Procedure Code applies and Order

6 Rule 17 and Order 1 Rule 10 enable the High Court respectively to order amendment of a petition and to strike out parties. It is submitted, therefore,

that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted. No doubt the

power of amendment is preserved to the Court and Order 1 Rule 10 enables the Court to strike out parties but the Court cannot use Order 6 Rule 17

or Order 1 Rule 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an

amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall

be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies

subject to the provisions of the Representation of the People Act and any rules made thereunder (see Section 87). When the Act enjoins the penalty

of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.

An attempt is made to distinguish the cases cited by us on the ground that now the provisions of Sections 4 to 25 of the Indian Limitation Act are

applicable to election petitions and the amendment of the petition and joining of parties can take place at any time. It is submitted that now the cases

must be decided under the amended law. We need not go into this matter. It is doubtful whether these provisions of the Limitation Act apply at all.

The petitioner has not asked to join Periwal. He only wants an amendment to delete allegations of corrupt practice against him. This cannot be

permitted since it will defeat the provisions of Section 86(I).Every election petition can be saved by amendment in this way but that is not the policy of

the law. The dismissal is peremptory and the law does not admit of any other approach. It is significant that in [1965]1SCR393 although the matter

was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the

defect in presentation or in the joinder of parties. Sheopat Singh v. Ram Pratap, [1965]1SCR175 since the facts were assumed, cannot be said to

record any decision.†this Court is of the firm opinion that the defect in presentation of election petition was fatal and could not have been allowed to

be curred by taking recourse of provisions of O. 1 Rule 10 C.P.C.

Since the defect in the election petition was fatal and was not curable, the election tribunal had no option but to dismiss the election petition submitted

by a stranger i.e. Harman Ram.

In view of the discussion made hereinabove, the writ petition deserves to be and is hereby allowed. The impugned orders are declared to be illegal,

unjust and unconstitutional and are hereby quashed and set aside. Resultantly, the election petition filed by Harman Ram(Hadman Ram) before the

trial court is hereby dismissed as the same suffers from fatal defect noted above.