The expression "all the contesting candidates" occurring in Section 82(a) of the Representation of the People Act, 1951 means all the candidates who took part in the contest at the poll and also those who may have under Section 55A retired from the contest.

Headnote:
REPRESENTATION OF THE PEOPLE ACT, 1951 - SECTION 82 - INTERPRETATION - CONTESTING CANDIDATES - MEANING - INCLUDES CANDIDATES WHO RETIRED FROM CONTEST UNDER SECTION 55A.
Fact of the Case:

An election petition was filed challenging the election of the second respondent to the Bombay Legislative Assembly. The petitioner claimed a declaration that the election of the second respondent was void and that he himself had been duly elected. The second respondent filed a written statement contending that the petition should be dismissed in limine under Section 90(3) read with Section 82(a) of the Representation of the People Act, 1951 on account of the non-joinder of the necessary parties, namely, two other contesting candidates who had retired from the contest under Section 55A of the Act.
Finding of the Court:

The court held that the expression "all the contesting candidates" occurring in Section 82(a) of the Act means all the candidates who took part in the contest at the poll and also those who may have under Section 55A retired from the contest. The court further held that the provisions of Section 82 are mandatory and where the provision in relation to the joinder of parties is not strictly complied with, the consequence is mentioned in section 90 (3) which says that the Tribunal shall dismiss an election petition which does not comply with the provisions, among others, of Section 82.
Issues: Whether the expression "all the contesting candidates" occurring in Section 82(a) of the Act means all the candidates who took part in the contest at the poll and also those who may have under Section 55A retired from the contest.
Ratio Decidendi: The court interpreted the expression "all the contesting candidates" occurring in Section 82(a) of the Act to mean all the candidates who took part in the contest at the poll and also those who may have under Section 55A retired from the contest. The court held that the provisions of Section 82 are mandatory and where the provision in relation to the joinder of parties is not strictly complied with, the consequence is mentioned in section 90 (3) which says that the Tribunal shall dismiss an election petition which does not comply with the provisions, among others, of Section 82.
Final Decision: The court quashed the order made by the Election Tribunal and directed that it will proceed to dispose of the petition in accordance with law.

Judgment

Dixit,J.

1. This Special civil application raises an important question under Section 82 of the Representation of the People Act, 1951, and the question arises in this way.

2. An election to the Bombay Legislative Assembly from an Assembly Constituency known as the Karad North Assembly Constituency was to be held on 2-5-1957. Before 29-1-1957 five candidates including the present petitioner and the second respondent had filed their nomination papers and 29-1-1957 was the last date for filing nominations. All these nominations were scrutinized and accepted by the Returning Officer as valid nominations on 1-2-1957. It appears that one of the five candidates withdrew his candidature before the date fixed for withdrawal and then the Returning Officer published a list of contesting candidates under Section 38 of the Representation of the People Act. There is HO dispute that that list included the names of the petitioner, the second respondent and two other candidates viz., Mahomed Abdulla Awate and Ali Suleman Mulla. Mahomed Abdulla Awate and Ali Suleman Mulla, however, retired from the contest on or about 15-2-1957 and this was in accordance with Section 55A of the Act. They gave notice to the Returning Officer about their retirement from contest. The election was held on 2-3-1957 and the result of the election was declared on 4-3-1957. The result of the election was that the petitioner became successful in the election, having obtained 25,297 votes as against 23,671 votes obtained by the second respondent.

3. On 16-4-1957 the second respondent filed a petition before the Election Commission of India and it was numbered as petition No. 8 of 1957. By the petition, the second respondent charged the petitioner with corrupt and illegal practices committed by the petitioner and other persons during the said election. In the said petition the second respondent also complained of material irregularities and illegalities which, according to the second respondent, materially affected the result of the election. Further, he complained of non-compliance with the provisions of the Constitution, the Representation of the People Act, 1951, and the rules and the orders made thereunder. The second respondent", therefore, claimed a declaration that the said election of the petitioner was void and that the second respondent be declared as duly elected.

4. The petitioner filed a written statement to this petition and in paragraph 3 of the written statement it was stated:

"The Respondent further submits that the Petitioner, in addition to claiming a declaration that the election of the Respondent is void, claims a further declaration that he himself has been duly elected. Hence it was incumbent upon him to join as Respondents to his petition the other two contesting candidates, namely the said Awate and Sri Mullah. The Respondent, therefore, submits that the petition should be dismissed in limine under Section 90 (3) read with Section 82(a) of the Representation of the People Act, 1951 on account of the said nonjoinder of the necessary parties".

5. The election tribunal appointed to deal with this petition made an order, holding that it was not necessary for the second respondent to join those two persons as respondents to the petition. He took the view that the provisions of Section 82 were complied with in the case and that the tribunal could not dismiss the election petition under Section 90(3) of the Act. It is the correctness of this order which has been challenged on this petition made under Articles 226 and 227 of the Constitution of India.

6. Upon this petition Mr. Chari appearing for the second respondent has raised a preliminary objection and the objection taken by him is that the order made by the election tribunal is an interlocutory order and the order being an interlocutory order, this petition is not maintainable. It was contended that the petitioner had a remedy under Section 116A of the Act. Section 116A which provides for an appeal

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