INTHEHIGHCOURTOFHIMACHALPRADESH, SHIMLA .
EMP No. 7 of 2018 in Election PetitionNo.1of2018 Reservedon:04.12.2018 Decidedon:11.12.2018 [ENTITY] Nonapplicant/Petitioner.
Versus [ENTITY] Applicants/Respondents. Coram TheHon'bleMr.[ENTITY],Judge.
Whetherapprovedforreporting?Yes For the Nonapplicant/Petitioner:Mr. [ENTITY], Senior Advocate, with Ms. [ENTITY] and Mr. [ENTITY], Advocates.
For the Applicants/Respondents:Mr. [ENTITY] and Mr. [ENTITY],SeniorAdvocates, with Mr. [ENTITY] and Ms. [ENTITY], Advocates, for respondentNo.1.
Mr. [ENTITY], Senior Advocate, with Mr. [ENTITY], Advocate, for the applicants/ respondentsNo.2&3.
[ENTITY],J.
Respondents No. 2 and 3 i.e. [ENTITY] havefiledthisapplicationfordeletionoftheirnamesonthe WhetherreportersofLocalPapersmaybeallowedtoseetheJudgment?Yes groundthattheyarenotnecessarypartiestothepetition.
2. Itisaverredthatasperthestatutoryrequirementsof .
theelectionlaws,anelectioncontestisnotanactionatlawora suitinequitybutispurelyastatutoryproceedingunknowntothe common law and even though the applicants may be proper parties under the [ACT] but under the provisions of the Act, they cannot be made as parties to the electionpetition. r
3. The petitioner/nonapplicant has opposed the applicationbyfilingreplywhereinitisaverredthatrespondents No.2and3beingnecessarypartiestothelitigation,theirnames cannotbedeleted.
4. When the case came up for consideration on 20.11.2018, the petitioner sought time to file supplementary affidavitandinthesupplementaryaffidavitsofiled,itisaverred that since specific averments have been made in the election petition referring to the role of respondents No.2 and 3 in paragraphs9,10,11to14,17to20,22,25,26,29,30to34, therefore,theyarethenecessaryparties.
5. RespondentNo.1hasnotfiledreplytotheapplication, but has supported the contents of the application and would further claim that since the petitioner despite having been affordedopportunitytodeletethenamesofrespondentsNo.2and 3,hasfailedtodoso,thereaftertheelectionpetitionitselfisliable .
toberejectedunderSection86(1)oftheAct.
6. Ihaveheardlearnedcounselforthepartiesandhave thoroughly gone through the contents of the application, reply andsupplementaryaffidavit.
7. Attheoutset,itneedstobeobservedthatelections and election disputes are a matter of special nature and that thoughtherighttofranchiseandrighttoofficeareinvolvedinan electiondispute,itisnotalisatcommonlawnoranactionin equity.(See:[ACT]BenchdecisionoftheHon'bleSupreme Court in [PRECEDENT].
8. The general rule is well settled that the statutory requirementsofelectionlawmustbestrictlyobserved andthat anelectioncontestisnotanactionatlaworasuitinequitybut isapurelystatutoryproceedingunknowntothecommonlawand theCourtpossessesnocommonlawpower.
9. Therightconferredbeingastatutoryright,theterms ofthatstatutehavetobecompliedwith.Thereisnoquestionof anycommonlawrighttochallengeanelection.
10. A right to elect, fundamental though it is to democracy,is,anomalouslyenough,neitherafundamentalright .
noraCommonLawRight.Itispureandsimpleastatutoryright.
Soistherighttobeelected.Soistherighttodisputeanelection.
Outsideofstatute,thereisnorighttoelect,norighttobeelected andnorighttodisputeanelection.Statutorycreationstheyare, andtherefore,subjecttostatutorylimitation.Anelectionpetition isnotanactionatCommonLaw,norinequity.Itisastatutory proceedingtowhichneithertheCommonLawnortheprinciples ofequityapplybutonlythoseruleswhichthestatutemakesand applies.Itisaspecialjurisdiction,andaspecialjurisdictionhas alwaystobeexercisedinaccordancewiththestatutecreatingit.
Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court hasnorighttoresorttothemonconsiderationsofallegedpolicy becausepolicyinsuchmatters,asthose,relatingtothetrialof election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straightjacket. Thus, the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute if any, concerningtheelectionisregulatedbytheRepresentationofthe PeopleAct,1951,differentstagesoftheprocessbeingdealtwith by different provisions of the Act. (See: [ENTITY] v. Debi .
Chosal,AIR1982SC983).
11. The legal position is, therefore, well settled that election disputes are strictly statutory proceedings. The [ACT] by the Act. The persons who may be joined as respondents in an election petition are governed exclusively by Sections82and[SECTION]oftheAct,whicharereproducedherein belowforreadyreference:
"82. Parties to the petition. A petitioner shall join as respondentstohispetition
(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 declarationthathehimselforanyothercandidatehas beendulyelected,allthecontestingcandidatesother than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) anyothercandidateagainstwhomallegationsofany corruptpracticearemadeinthepetition."
"86 (4). Any candidate not already a respondent shall upon applicationmadebyhimtotheHighCourtwithinfourteendays from the date of commencement of the trial and subject to any order asto security for costs whichmaybe madebythe High Court,beentitledtobejoinedasarespondent.
Explanation. Forthepurposesofthissubsectionandof .
Section97,thetrialofapetitionshallbedeemedtocommenceon thedatefixedfortherespondentstoappearbeforetheHighCourt andanswertheclaimorclaimsmadeinthepetition."
12. The aforesaid provisions came up for consideration before the Hon'ble Supreme Court in [ENTITY] case (supra), whereinitwasheldthatnoonemaybejoinedasapartytoan electionpetitionotherwise thanasprovidedunderSections82 and [SECTION] of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition.
13. In [PRECEDENT] categorically held that [ENTITY] as it is neither a necessary nor a proper party. It is furtherheldthatitis[SECTION]oftheActwhichgovernssuch situation,whereastheCPCapplies onlytoalimitedextenti.e. subjecttotheprovisionsoftheRepresentationofthePeopleAct.
Itisyetfurtherheldthattheconceptof'properparty'isandmust remainalientoanelectiondisputeundertheActandonlythose maybejoinedasrespondentstoanelectionpetition,whowere mentioned in [SECTION] and [SECTION] and no others. However, .
desirableandexpedientitmayappeartobe,noneelseshallbe joinedasparties.
14. Complete answer to both the questions i.e. who are necessarypartiestoanelectionpetitionandwhatistheeffectof joiningofaperson(s)whoarenotnecessarypartiesistofoundin B.S.Yadiyurappavs.MahalingappaandothersAIR2001SC 4041, wherein after placing reliance on the judgments, as referredtoabove,itwasobservedbytheHon'bleSupremeCourt asunder:
"2.RespondentNos.4and5movedaninterimapplicationinthe election petition praying that their names be deleted from the arrayofparties thereto. Anapplicationto thesameeffect was made by the first respondent; he also moved an application praying that the election petition be dismissed because of the impleadmentofrespondentnos.4and5.Bythejudgmentand orderunderchallenge,alearnedsingleJudgeoftheHighCourt allowedthelatterapplication.Hedismissedtheelectionpetition undertheprovisionsofSection86(1)oftheRepresentationofthe PeopleAct,1951("thesaidAct")becausepartiesotherthanthose mentioned in [SECTION] of the said Act had been impleaded thereto.
3. Theelectionpetitionerisinappeal.
4. OurattentionhasbeendrawntothejudgmentofthisCourt [ENTITY][ENTITY]& Ors.,[1964]3SCR573.A[ACT]Benchconsideredthevery situation with which we arc now concerned. It noted that the foundation of the argument before it was that there had been noncompliance with the provisions of [SECTION]. What had .
happenedthere,ashere,wasthis:Allthepartieswhomitwas necessarytojoinundertheprovisionsof [SECTION] werejoined asrespondentstothepetition,butotherrespondents,inexcessof therequirementsof [SECTION],werealsoJoined.Thequestion, therefore, was did this amount to noncompliance with, or contraventionof,theprovisionsof[SECTION].Learnedcounselfor theappellantinthatcasewantedtheCourttoread[SECTION]as though it said that the persons named therein and no others shouldbejoinedasrespondentstothepetition.Hewantedthe Courttoadd"andnoothers"totheSection.TheCourtfoundno warrantforsuchareadingof [SECTION].Itheldthatifallthe necessary parties had been joined to the election petition, the circumstancethatapersonwhowasnotanecessarypartyhad alsobeenimpleadeddidnotamounttoabreachofprovisionsof [SECTION] and no question of dismissing the election petition arose.ItwasopentotheTribunal(or,here,theCourt)tostrike outthenameofthepartywhowasnotanecessarypartywithin themeaningof [SECTION].Theposition,itwasnoted,wouldbe different if a person who was required to be joined as a necessarypartyunder[SECTION]wasnotimpleadedasaparty tothepetition.
5. ThisjudgmentinMarakaRadheyShyamRamKumarwas notnoticedbythelearnedSingleJudgeinthejudgmentunder challenge but was distinguished on the ground that it was confinedtoitsownfacts.Wefinditdifficulttoagree.Thisisnota judgmentthatisconfinedtoitsownfactsbutisanelucidationof thelawsetoutin[SECTION]ofthesaidAct.
6. [ENTITY].SurendraKumarTaparia&Ors.,[1969]1 SCR630thesamepositionwasreiterated.Itwasheldthatinan election petition the court can strike out a party who is not necessary but,byreasonoftheprovisions ofthesaidAct,the powerofimpleadment,cannotbeusedifanecessarypartyhas notbeenjoined.
7. InJyotiBasu&Ors.v.DebiGhosal&Ors.,[1982]1SCC 691,thisCourtdealtwith[SECTION]ofthesaidAct,anditisthis judgmentwhichtheHighCourtprincipallyreliedupon.Theratio ofthisjudgment,isthatapersonwhoisnotacandidatecannot bejoinedasarespondenttoanelectionpetition.TheHighCourt, however,failedtonoticethat,havingsoheld,thisCourtordered thedeletionofthesuperfluouspartyfromthearrayofparties.
8. Itis,therefore,clear,ontheauthoritiesofthisCourt,that thosewhoarementionedin [SECTION] ofthesaidActmustbe made parties to an election petition and, if they are not, the electionpetitionisonewhichdoesnotcomplywiththeprovisions of[SECTION] andmust,therefore,bedismissedbyreasonofthe termsof Section86 (1).Itdoesnot,however,followthatiftoan election patition parties other than those who are necessary parties under [SECTION] have been impleaded, the election petitionisonethatdoesnotcomplywiththeprovisionsof[SECTION] andmustbedismissed.Suchapetitioncanbeamendedby striking out from the array of parties those additionally impleaded."
15. Similar reiteration of law can be found in another Hon'ble three Judges Bench decision of the Hon'ble Supreme Court in [PRECEDENT]
"4. Mr. [ENTITY] then relied upon the decision of [PRECEDENT],A.I.R.1963Calcutta218,wherethequestioncameupfor 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. [ENTITY]. Following the aforesaiddecision,alearnedSingleJudgeoftheBombayHigh Courtinthecaseof [PRECEDENT], had also observed that the observationsofShah,JinRamSewakYadav'scase,[PRECEDENT].ButboththeseaforesaiddecisionsoftheCalcuttaHigh CourtandBombayHighCourthadbeenconsideredbythisCourt inJyotiBasucaseandtheCourttooktheviewthatthepublic policy and legislative wisdom both seem to point to an interpretationoftheprovisionsoftheRepresentationofthePeople Actwhichdoesnotpermitthejoining,asparties,ofpersonsother thanthosementionedinSections82and[SECTION].TheCourtalsoin paragraph (12) considered the consequences if persons other thanthosementionedin[SECTION]arepermittedtobeaddedas partiesandheldthatthenecessaryconsequenceswouldbean unending,disorderlyelectiondisputewithnohopeofachieving thegoalcontemplatedbySection86(6)oftheAct.Intheaforesaid premises, we reiterate the views taken by this Court in [ENTITY] and we see no infirmity with the impugned judgment, requiring ourinterference under [SECTION] ofthe [ACT]. Thisappealaccordinglyfailsandisdismissed."
16. Thus,whatcanbetakentobesettledinviewofthe aforesaidexpositionoflawwhenreadwithSections82and[SECTION] oftheActisthatthecontestoftheelectionpetitionisdesignedto beconfinedtothecandidatesattheelectionandallothersare excludedand,therefore,onlythosemaybejoinedasrespondents .
to an election petition, who are mentioned in [SECTION] and [SECTION] andnoothers.TheprovisionsoftheCivilProcedureCode applytoelectiondisputesonlyasfarasmaybeandsubjecttothe provisions of the Act and any rules made thereunder and the provisionsoftheCodecannotbeinvokedtopermitwhichisnot permissibleundertheAct.Itisinthiscontextthattheconceptof 'properparties'isandremainsalientoanelectiondisputeunder theAct.
17. Since[SECTION]designatesthepersonswhoaretobe joined as respondents to the petition, provisions of the [ACT] relating to the joinder of parties stands excluded.UndertheCodeevenifapartyisnotnecessaryparty, heisrequiredtobejoinedasapartytoasuitorproceedingsif suchpersonisaproperparty,buttheActdoesnotprovidefor joinderofaproperpartytoanelectionpetition.Theconceptof joiningaproperpartytoanelectionpetitionisruledoutbythe provisionsoftheAct.Therefore,theconceptofjoinderofaproper party to a suit or proceeding underlying [SECTION] of the [ACT] cannot be imported to the trial of election petition,inviewoftheexpressprovisionsofSections82and87of the Act. The Act is a selfcontained Code which does not contemplate joinder of a person or authority to an election .
petitiononthegroundofproperparty.
18. Now,advertingtothesubmissionsmadebyMr.[ENTITY], learned senior Counsel for respondent No.1 that the election petition should be dismissed as the petitioner despite opportunity has failed to delete thenames of respondents No.2 and3,Iamafraidthatsuchcontentionistoofarfetchedand, therefore,notsustainableintheeyesoflaw.
19. In all the judgments cited above, it has been categorically held that the person who was not "contesting candidate" and/or "other than contesting candidate" though impleadedtotheelectionpetition,doesnotamounttobreachof provisionsoftheActandpetition,therefore,cannotbedismissed onthatground.Thepetitionercanamendthepetitionbystriking themoutfromthearrayoftherespondents.
20. Thus, in view of the well settled proposition of law, eventhough,respondentsNo.2and3arenotnecessaryparties andarerequiredtobedeletedfromthearrayoftherespondents.
Howeverthemerefactthattheirnameswerenotdeletedbythe petitioner earlier, will not entail the dismissal of the election petition as this defect is otherwise curable. Accordingly, respondentsNo.2and3areorderedtobedeletedfromthearray oftherespondents.
21. Amendedmemobefiledbythepetitionerwithinone week.
22. Accordingly,EMPNo.7of2018standsdisposedofin theaboveterms.
11thDecember,2018.
(gr) r to ([ENTITY]), Judge