1 epa15.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD E.P.APPLN. NO. 15 OF 2010 WITH E.P.APPLN.NO. 30 OF 2010 WITH E.P.APPLN. NO.31 OF 2010 IN ELECTION PETITION NO. 11 OF 2009 Dr Madhavrao Bhujangrao Kinhalkar ....Petitioner VERSUS Ashok s/o Shankarrao Chavan and ors. ...Respondents ..... Shri H.H.Padalkar, advocate h/f Shri R.S.Deshmukh, advocate for petitioner Shri R.R.Sancheti, advocate h/f Shri R.R.Mantri, advocate for respondent no.1 Shri Alok Sharma, A.S.G. for respondent nos. 2 & 3. Shri S.C.Bhosale, advocate for respondent no.4 absent None for respondent nos. 5 and 8 in spite of service of paper publication. Shri P.B.Patil, advocate for respondent no. 6 absent. None for respondent nos. 7 and 9 although served. None for respondent no.10 although served through paper publication. Shri R.L.Kute, advocate for respondent no.11 absent. ..... 2 epa15.10 CORAM : SHRIHARI P.DAVARE, J. DATED : 14 th March, 2011 PER COURT : 1 Heard learned counsel for the respective parties. 2 Respondent nos. 2 and 3 in Election Petition No. 11 of 2009 i.e. the Election Commission of India, New Delhi and the Returning Officer, 85, Bhokar Legislative Assembly Constituency, have moved the present E.P.Application Nos. 15 and 31 of 2010 for deleting their names from the array of the respondents in the Election Petition, on the ground that they are not necessary parties, in view of Section 82 of the Representation of People Act, 1950. 3 The petitioner has filed the affidavit in reply to the said application (Exh.15) at Exh. 33 and opposed the said application vehemently. 4 Shri Alok Sharma, learned Assistant Solicitor General, appearing on behalf of respondent nos. 2 and 3, submitted that right to elect or to be elected is neither the fundamental right or common law right, hence, they are confined to the provisions of the Act and 3 epa15.10 the Rules made thereunder, and consequently, right and remedies are limited to those provided under the statutory provisions. It is also submitted that the contest of the election petition is designed to be confined to the candidates at the election. Hence, it is canvassed that respondent nos. 2 and 3 are not necessary parties to the said election petition in view of Section 82 of the Representation of People Act, 1950. 5 Learned Assistant Solicitor General submitted that the said issue has been raised by the Hon'ble Supreme Court in the matter of Jyoti Basu vs Debi Ghosal reported at AIR 1982 SC 983 and Sundara Rama Reddy vs Election Commission of India reported at (1991) Suppl. (2) SCC 624 and Micheal Fernandes vs C.K.Jaffer Sharrif and ors. (Civil Application No. 1318 of 2001). 6 Placing reliance on the afore said Rulings, learned Assistant Solicitor General submitted that the present application be allowed and respondent nos. 2 and 3 be deleted from the array of Election Petition No. 11 of 2009. 7 Learned counsel for the petitioner argued that the Election Commission of India is the appropriate and the competent authority for conducting the elections to the Parliament and Legislature in 4 epa15.10 every State and the superintendence and the directions and the control of the electoral rolls and the conduction of all elections vests in the Election Commission. The Election Commission of India has conducted elections for the Maharashtra Legislative Assembly in the month of October, 2009 and the Returning Officer was the Election Returning Officer for 85-Bhokar Legislative Assembly Constituency, who is respondent no.3 in the proceeding of Election Petition No. 11 of 2009, and in the said elections, electronic voting machines have been used by the applicants for the purpose of casting votes and the petitioner has come with specific case that there was tampering and manipulating the said electronic voting machines. Accordingly, it is submitted that since the validity of electronic voting machines itself is challenged, the Election Commission of India and the Returning Officer, who were having over all control over the election, are the necessary parties to the proceedings of the Election Petition. It is further submitted that without the presence of respondent nos. 2 and 3, the question relating to validity of electronic voting machines cannot be decided on its merits, and it is further submitted that without presence of respondent nos. 2 and 3, the Election Petition itself cannot be decided on its merits, and therefore, respondent nos. 2 and 3 are the necessary parties thereto. 5 epa15.10 8 Considering the rival submissions, it is necessary to reproduce Section 82 of the Representation of People Act, 1950, as below :- “ 82 Parties to the Petition :- A petitioner shall join as respondents to his petition -- (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates 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. “ 9 The Representation of People Act is a complete Code in itself and bare perusal of the said provisions of Section 82 thereof, makes it manifestly clear that where the petitioner claims declaration that he himself or any other candidates has been duly elected, then all the contesting candidates are required to be impleaded as parties, and where no such declaration is claimed, then the returned candidates is to be impleaded as party respondent and if any allegations of corrupt practices are made against any other 6 epa15.10 candidate, then the candidate against whom allegations of corrupt practice are made is required to be joined as party respondent in the election petition. The said provision of Section 82 of the Representation of the People Act does not contemplate the Returning Officer or the Election Commission of India as parties to the proceedings. 10 Reliance can be very well placed on the Rulings (supra) cited by the learned Assistant Solicitor General for respondent nos. 2 and 3 wherein the afore said proposition has been clearly enunciated. 11 In the light of the afore said legal position, the present application deserves to be allowed, since respondent nos. 2 and 3 are not necessary parties to the Election Petition No. 11 of 2009 and they are, therefore, required to be deleted from the array of respondents therein. 12 In the result, present E.P. Application No. 15 of 2010 is allowed in terms of prayer clause 'B' thereof and respondent nos. 2 and 3 stand deleted from the array of Election Petition No. 11 of 2009 and present application stands disposed of accordingly. 7 epa15.10 13 Election Petition Application Nos. 30 and 31 of 2010, as well as Exh. 33, in respect of deletion of respondent nos. 2 and 3 stand disposed of. (SHRIHARI P. DAVARE), JUDGE. dbm/epa15.10