Samari Lal vs Ramchandra Baitha and Others

D.P. Singh, J.—The present election petition has been preferred by the petitioner Samari Lal, a defeated candidate during general elections for Jharkhand Assembly held in February, 2005, by which the election of respondent No. 1, Ramchandra Baitha, sitting MLA from Kanke Constituency, has been challenged.

The election petition was preferred within time on 12.4.2005 and admitted for hearing on merit by order dated 9.2.2007. Then notices were issued to the respondent Nos. 1 to 4, who appeared on different dates and filed written statements to contest the present election petition. Respondent No. 1 his filed written statement on 17.4.2007 at Flag G. Before the written statement being filed, a petition u/s 97 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") was filed on 9.4.2007 at Flag F. The petitioner has filed a rejoinder to the written statement and recriminatory petition denying the facts stated in the written statement as well as recriminatory petitions vide Flag H dated 16.5.2007 and Flag I dated 17.5.2007.

The petitioner thereafter preferred an amendment petition, Flag J dated 9.7.2007 under the provisions of Order 6 Rule 17 of CPC. In the amendment petition the petitioner asserted that due to oversight and typing mistakes, some errors have crept in the original election petition. Accordingly, he has sought permission to delete the following from para 9 of the main petition as well as prayer portion:

...Is no doubt entitled for declared as Return candidate in place of...

...and declare/consider the name of the petitioner as Truly/validly Return candidate of the Election...

Respondent No. 1 filed rejoinder to this amendment petition opposing that the proposed amendments were not permissible for the following reasons:

(1) The provisions of CPC are not applicable and barred u/s 87 of the Act as the Act itself is comprehensive and provides all measures with which the election petition needs to be disposed of.

(2) In view of the non-compliance of provisions of Sections 82 and 83 of the Act, the election petition is liable to be dismissed

(3) This amendment petition has been brought to fill up the lacuna and advantage already acquired by the respondent No. 1 due to laches on the part of the petitioner.

Accordingly, the respondent No. 1 pressed this point as preliminary issue before considering the main petition for disposal on merit.

Both sides advanced their arguments at length. Learned Counsel for the petitioner cited the case of Avtar Singh Vs. Harcharan Singh Brar and others, wherein their Lordships held that application for rectification to amend the verification may be allowed. It further mentions that all facts, which require to be proved or disproved disclosed sufficiently in the election petition are not to be pleaded but proved. Learned Counsel further relied upon the decision in the case of Patangrao Kadam Vs. Prithviraj Sayajirao Yadav Deshmukh and Others, , wherein their Lordships held who are the candidate. In that case a candidate, nominated earlier, withdrew his candidature and became the agent of another candidate later on. Their Lordships held that by virtue of his nomination as a candidate, he would continue to be a ''candidate" within the meaning of Section 82(b) read with Section 79(b) of the Act despite his subsequent withdrawal of candidature and becoming agent. Their Lordships accordingly held that election petitioner must join him as respondent in the petition in compliance with Section 82(b) and on failure to do so, High Court has no option but to dismiss the petition u/s 86(1) of the Act.

Learned Counsel for the petitioner cited a recent decision in the case of Virender Nath Gautam Vs. Satpal Singh and Others, , wherein their Lordships considered what are the material facts and details of this case in nature of evidence and in the event material facts are not disclosed, the election petition requires to be dismissed. The details of case in nature of evidence may be brought on record later on.

Mr. S.L. Agrawal, learned Counsel for the respondent No. 1, opposed the amendment petition on this ground that such amendment sought at this stage is not permissible in law. It was stressed that CPC would be applicable only where no provision is available in the Act. In this context my attention was drawn towards the provisions of Sections 82 and 83 of the Act which reads as under:

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.

Contents of petition.- (1) An election petition-

(a) Shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

In this context, learned Counsel for the respondents submitted that by proposed amendment the petitioner is trying to fill up the vital lacuna, which is barred under the law.

Learned Counsel further relied upon the decision in the case of Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others, , wherein their Lordships held that withdrawal or abandonment of part of claim after recrimination petition is not maintainable. In the aforesaid case at para 19 and 22 their Lordships held as quoted below:

On a due consideration of all these provisions, we an of opinion that the provisions of Order 23, Rule 1 do not apply to the election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission, more so when such a withdrawal or abandonment of a part of the claim would have the effect of depriving the returned candidate or any other party to the petition of the right of recrimination which had accrued to him u/s 97 of the Act.

It is, therefore, clear that there is no power in the Election Commission to allow a petitioner to withdraw or abandon a part of his claim either by having resort to the provisions of Order 23 Rule 1 Civil P.C., or otherwise. If, that is so, the right of recrimination which has once accrued to the returned candidate or any other party to the petition u/s 97 of the Act cannot be taken away, ...We have, therefore, come to the conclusion that the order passed by the Election Tribunal allowing abandonment of a part of the claim by the first respondent and precluding the appellant from giving evidence to prove that the election of the first respondent would have been void if he had been the returned candidate was clearly erroneous and liable to be set aside.

As such, learned Counsel submitted that the present amendment petition may be rejected with costs.

Mr. Ojha, learned Counsel for the petitioner, pressing the amendment petition in reply and submitted that the decision reported in Virender Nath Gautam Vs. Satpal Singh and Others, is applicable in the present facts.

As stated above, the facts of the case are that the election result has been challenged on the ground of corrupt practice including bogus voting etc with prayer to declare the election of respondent No. 1 as void and illegal as well as to declare/consider the name of the petitioner as truly and validly returned candidate of the election. By amendment petition dated 9.7.2007 prayer is made to allow the petitioner to delete those portions.

In view of the specific provisions of Sections 82 and 83 of the Act, the election petition to declare the election of returned candidate void and petitioner to be declared as elected candidate, all the candidates contesting the election are required to be joined as party and further the election petition shall contain concise statements of the material facts on which the petitioner relies. The effects of non-compliance of the provisions of Sections 82 and 83 of the Act have been discussed in Section 86(5) of the Act. Further in view of the law laid down by the Hon''ble Apex Curt in K. Kamaraja Nadar Vs. Kunju Thevar and Others, , present amendment petition is not maintainable, by which the petitioner wants to withdraw and abandon the part of the claim for which the main election petition has been preferred. The amendment petition preferred under Order 6 Rule 17 CPC appears not maintainable in the facts, as the Act itself requires joining of the parties essential to decide the issues with purported effect of getting the petitioner elected.

This view finds support from the decision cited by the petitioner in Patangrao Kadam Vs. Prithviraj Sayajirao Yadav Deshmukh and Others, , in which their Lordships held as follows:

The view that a candidate, who is duly nominated, continues to be a candidate for the purpose of Section 82(b) in spite of his withdrawal, is supported by the decisions of Har Swarup and Amin Lal v. Hunna Mal. This Court referring to the said decisions in Mohan Raj v. Surendra Kumar Taparia agreed with the said view. Further the decision in Chaturbhuj Chunnilal v. Election Tribunal Kanpur taking the same view after elaborate consideration on all aspects touching the question is approved. Dealing with the applications made for impleadment under Order 1 Rule 10 and amendment under Order 6 Rule 17, in para 10 of the same judgment, this Court had stated thus: (AIR P.681)

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 CPC 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 CPC cannot be used a curative means to save the petition.

It may be noted that the facts of the case in Ram Partap Chandel v. Chaudhary Lajja Ram are similar to the facts of the case in hand. In the election petition the appellant averred that certain corrupt practices had been committed by the first respondent (the returned candidate) and by his son Harbhajan Singh, who was the election agent; also, by one Amarnath Kaushal, who was the counting agent of the first respondent. Both Harbhajan Singh and Amarnath Kaushal had been candidates at the election but had withdrawn their candidature. They were not impleaded as respondents to the election petition. The High Court in the light of Section 82 of the RPA dismissed the election petition as not maintainable. This Court, while dismissing the appeal against the said judgment of the High Court in the case of Ram Partap Chandel Vs. Chaudhary Lajja Ram and Others, , referring to the case of Mohan Raj in para 7, had stated thus:

It will be seen that Sub-section (a) of Section 82 uses the words ''contesting candidates'' and Sub-section (b) uses the words ''any other candidate''. The combined effect of Sub-sections (a) and (b) is, plainly, to require the impalement in an election petition of all candidates at an election against whom allegations of corrupt practice are made. This would apply not only to those who actually contested the election, but also to those who stood for election but withdrew their candidature before the polling date. The person being the same, it is of no consequence that the allegation of corrupt practice is made in relation to a point of time when the candidature had been withdrawn and the person was now acting as the agent of a contesting candidate.

In view of the provisions of law discussed above, the proposed amendment through petition dated 9.7.2007 at "Flag J" to delete the prayer portion, if allowed would cause relation of necessary party for deciding the election petition. It further would cause abandonment of the portion of the claim as well as taking away the rights of recrimination, which has already accrued, to the sole respondent.

In the result, the proposed amendment petition dated 9.7.2007, I.A.No. 1973/2007 at "Flag J" is found and held not maintainable. Accordingly, I.A.No. 2062/2007, the objection petition dated 11.7.2007 at "Flag L" stands allowed. In this manner these two petitions stand disposed of.