1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Election Petition No. 2/2009 (Ashok Mahadeorao Nete VERSUS Marotrao Sainuji Kowase & 3 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri B.G. Kulkarni, counsel for the petitioner. Shri A.G. Mujumdar, A.G.P. For the R-2 & 3-State. Shri R.C. Madkholkar, counsel for the R-4. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 29, 2010. C.A.O. NO. 1008/2009. By this application, the respondent nos.2 and 3 seek deletion of their names from the array of respondents. The applicants have stated that the petitioner could not have joined the Returning Officer as a party respondent to the petition in that capacity or in person. It is the case of the applicants that the petitioner could have joined only those persons mentioned in Section 82 and 86(4) of the Representation of the People Act, 1951 as party respondents to the petition. The counsel for the applicants has relied on the decisions reported in AIR 1982 SC 983, AIR 1986 Allahabad 325 and AIR 1995 Rajasthan 350 in this regard. 2 Shri B.G. Kulkarni, the learned counsel for the petitioner has opposed the prayer made by the respondent nos.2 and 3 by relying on the decision in the case of H.R. Gokhale Versus Bharucha Noshir C. & others, reported in AIR 1969 Bombay 177 (V 56 C 29). I have considered the submissions made on behalf of the parties and perused the various judgments on the aforesaid issue. It has been observed in the case of Jyoti Basu & others Versus Debi Ghoshal & others, reported in AIR 1982 SC 983 that----- “Section 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Sec. 82 is headed “Parties to the petition” and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of S. 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86(4) enables any 3 candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while Cl. (b) of S. 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under S. 86(4), any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all ? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in S. 82 and S. 86(4) 4 and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents.” The Hon'ble Supreme Court further added that----- “The matter may be looked at from another angle. The Parliament has expressly provided that an opportunity should be given to a person who is not a candidate to show cause against being 'named' as one guilty of a corrupt practice. Parliament, however, has not thought fit to expressly provide for his being joined as a party to the election petition either by the election petitioner or at the instance of the very person against whom the allegations of a corrupt practice are made. The right given to the latter is limited to show cause against being 'named' and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause why he should not be 'named'. The right does not extend to participation at all stages and in all matter, a right which he would have if he is joined as a party at the commencement. Conversely the election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged trial of an election petition with all its intricacies and ramifications.” 5 The view of the Supreme Court in the case of Jyoti Basu & others Versus Debi Ghoshal & others was affirmed by the Supreme Court in the case of B. Sundara Rami Reddy Versus Election Commission of India & others, reported in 1991 Supp (2) SCC 624. It is observed by the Supreme Court in paragraph 4 of the judgment that----- “Since Section 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not necessary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self- contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of proper party.” 6 The Hon'ble Supreme Court reiterated the view expressed by the Supreme Court in the case of Jyoti Basu & others Versus Debi Ghoshal & others and reaffirmed in the case of B.Sundara Rami Reddy Versus Election Commission of India & others in case of Michael B. Fernandes Versus C.K. Jaffar Sharief & others, reported in AIR 2002 SC 1041. It is, thus, clear from a reading of the aforesaid decisions that an election dispute is required to be resolved between the candidates at the election and all parties other than the candidates are excluded from the dispute. Merely because certain allegations are levelled against respondent nos.2 and 3, they do not become necessary parties to the election petition. The Supreme Court has held in the case of B. Sundara Rami Reddy that the concept of proper party to an election petition is alien to the provisions of the Representation of the People Act, 1951. The judgment reported in AIR 1969 Bombay 177 (V 56 C 29) and relied on by the counsel for the petitioner cannot be of any assistance to the case of the petitioner as the said judgment was considered by the Hon'ble Supreme Court in the case of Jyoti Basu & others Versus Debi Ghoshal & others, reported in AIR 1982 SC 983 while holding that no one may be joined as 7 a party to the election otherwise than as provided by Sections 82 and 86(4) of the Representation of the People Act, 1951. In view of the view expressed by the Supreme Court in the aforesaid decisions, it is clear that it was not permissible for the petitioner to join the respondent nos.2 and 3 as party respondents. The civil application filed by the respondent nos.2 and 3 is, therefore, allowed. C.A.O. NO. 1135/2009. This is an application filed by the petitioner under Order XI Rule 12 and 14 of the Code of Civil Procedure for directing the respondent no.2, the Returning Officer, to produce the original record in regard to the particulars stated in paragraph 5 of the application. This Court has allowed the application filed by the respondent nos.2 and 3 for deletion of their names from the array of respondents. The present application is filed by the petitioner under Order XI Rule 12 and 14 of the Code of Civil Procedure. Under Rules 12 and 14 of Order XI of the Code of Civil Procedure, the Court is empowered to direct a party to a suit to produce the documents in his possession or power. Since the respondents are no more parties to this election petition, the application filed by the petitioner under 8 the provisions of Rules 12 and 14 of Order XI of the Code of Civil Procedure is not maintainable. The civil application is, therefore, dismissed. JUDGE APTE