Point of Law : In the event of a necessary party not being made a party to the Election Petition, it would be incumbent upon the Court to dismiss the petition.

ORDER :

1. The petitioner is before this Court seeking for the following relief:

To set aside the judgment in Election Petition No.11/2021 passed by Senior Civil Judge & JMFC, Shahapur, dated 31.10.2022 as per Annexure-D in the interest of justice and equity.

2. A notification was published by the respondent No.2 – Deputy Commissioner for election to the Gram Panchayath on 23.07.2020. The petitioner having contested was declared as elected candidate.

3. Respondent No.1 filed the Election Petition No.11/2021 before the Senior Civil Judge, Shahapur challenging the said election. In the said petition, the following reliefs were sought for:

a) It be declared that, the petitioner is the elected for the seat of General gents in ward No 3 in gram panchayat election of Naikal9 Tq. Wadgera Dist.Yadgir by setting aside the election of Respondent No.1

b) Award the cost of proceedings to the Petitioner.

c) Any other reliefs be granted to which the petitioner is entitled in the interest of justice.

4. The said petition came to be allowed by way of impugned order and as such, the petitioner is before this Court seeking for the aforesaid reliefs.

5. Sri.V.K.Nayak, learned counsel for the petitioner would submit that the said decision is erroneous on four grounds:

5.1. Apart from questioning the election of the petitioner – respondent No.1, a declaration was sought for to declare respondent No.1 as a returned candidate without making all the contestants as a party and as such, the same is violative of Section 15(2)(a) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short, hereinafter referred to as ‘the Panchayat Raj Act’). In support of this contention he relies upon the decision of the Delhi High Court in the case of Surinder Kumar vs. Ranjit Singh, MLA & Ors., (2014) SCC Online Delhi 7455 more particularly Paras 1, 10, 14 and 16 thereof which are reproduced hereunder for easy reference:

1. This election petition has been filed by the petitioner seeking a declaration that election of respondent No. 1 is null and void, thereby setting aside the election result dated 8th December, 2013 to the Assembly Constituency 68, Gokulpur Delhi (NCT Delhi) (hereinafter referred to as the “Gokulpur Constituency”), constituency reserved for schedule caste whereby respondent No. 1 was elected and a declaration that the petitioner is the elected member from Gokulpur Constituency, who contested the said election dated 4th December, 2013 as an independent candidate.

10. Respondent No. 1 in the said application has taken mainly two grounds for contending that the present petition is not maintainable. First ground is that challenge, if any, to the said decision of the SDM, Delhi Administration, Shahdara (certifying that respondent No. 1 belongs to a schedule class), ought to have been made by way of a petition under Article 226 of the Constitution of India. Secondly, the petition is not maintainable for non-joinder of necessary parties. It is contended that the other contesting candidates to the said election have not been made party in the present petition as required under Section 82(a) of the Representation of the Peoples Act, 1951 (hereinafter referred to as “the Act”) and so the present petition is not maintainable under Section 86 of the Act.

14. Patna High Court in the case of Neelam Kumari @ Neelam Devi v. The State of Bihar AIR 2008 Pat 165 referred to the decision in Comrade Kallappa Laxman Malabade (supra) and observed that:

“In Comrade Kallappa Laxman Malabade (supra) relied upon by the petitioner, with regard to non-joinder of necessary parties under the Representation of the Peoples Act, the High Court quoted the following passage from paragraph 10 of the judgment of the Supreme Court in [1969] 1 SCR 630 (Mohan Raj v. Surendra Kumar Taparia)

10… 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 o