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2013 Supreme(Bom) 1399
High Court of Judicature at Bombay
ANOOP V. MOHTA, J.
Shivaji Laxman Sahane & Another
Versus
Election Commissioner & Others
Election Petition No. 1 of 2012 With Application No. 7 of 2012
Decided On : 26-07-2013
For the Petitioners:Mahesh Jethmalani, Senior Advocate with Pravin B. Gole, Ms. Chaitra Pawar, S.S. Deshmukh, Advocates.
For the Respondents:S.G. Aney, Senior Advocate with Vijay Nair i/by Prashant P. Kulkarni, Pradeep Rajgopal i/by Ms. Rekha Rajgopal, Advocates.
The main legal point established in the judgment is that joining excess and unnecessary parties to an Election Petition, after complying with the necessary party requirements, does not amount to a breach of the provisions of the Representation of People Act, 1951.
Headnote:
Election Petition - Representation of People Act, 1951 - Sections 82, 86 - Summary of Acts and Sections: The court discussed the provisions of Sections 82 and 86 of the Representation of People Act, 1951, which govern the parties to the petition and the trial of election petitions. The court also referred to various judgments to explain the purpose and object of the Act and its mandate.
Fact of the Case:
The Petitioner filed an Election Petition against the Returning Candidate to the Legislative Council of Maharashtra State, invoking the provisions of the Representation of People Act, 1951. The Respondents raised preliminary objections regarding non-compliance with Sections 82 and 86 of the Act.
Finding of the Court:
The court dismissed the preliminary objections, allowed an amendment to the Election Petition, and rejected the objection of joining excess and unnecessary parties, stating that there was no non-compliance with the provisions of Sections 82 and 86 of the Act.
Issues: The issues involved the compliance with Sections 82 and 86 of the Representation of People Act, 1951, and the joinder of parties to the Election Petition.
Ratio Decidendi: The court held that joining excess and unnecessary parties did not amount to a breach of the provisions of Section 82 and that the defects, if any, were curable. The court also emphasized that the presence of the returning candidate was the only requirement for effective adjudication in the Election Petition.
Final Decision: The court allowed the amendment to the Election Petition, rejected the preliminary objections, and ordered the Election Petition to be placed for further hearing.
P.C Heard on the following preliminary objection. “(1) Whether the Election Petition is liable to be dismissed for non compliance of provisions of Sections 82 and 86 of the Representation of the people Act, 1951.”
2. The Petitioner has invoked the provisions of Representation of People Act, 1951 (for short “the Act”), basically against Respondent No.6, the Returning Candidate, to the Legislative Council of Maharashtra State in the Nashik Local Authorities Constituency in the Biennial Election for the year 2012. Apart from prayer to quash and set aside the Election, also prayed for declaration that the Petitioner be declared as elected candidate. There are other various connected and related prayers made including for interim reliefs, by filing the Election Petition on 19 June 2012.
3. On 23 July 2012, the Court while admitting the matter, issued notice of final disposal and made returnable on 3 September 2012. On 31 August 2012, Application No. 5 of 2012 was filed by Respondent No.6 (Jaywantrao) and prayed for dismissal of the Election Petition under Section 82 and 86 of the Act for non-compliance. Another Application No. 6 of 2012 filed on 17 September 2012 by the Petitioner (Shivaji Laxman Sahane) and prayed for amendment to the Election Petition to the extent of correcting the typographical error. This Court, after hearing both the parties, and considering the provisions of the Act, dismissed Application No. 5 of 2012 filed by Respondent No.6 and allowed Application No. 6 of 2012 to carry out amendment by order dated 30 November 2012. The Respondent's Special Leave Petition against this order was dismissed by the Supreme Court on 8 January 2013.
4. Application No. 7 of 2012 filed on 16 October 2012 on behalf of original Respondent Nos. 1 to 5 and prayed as under:-
(a) That this Hon'ble Court be pleased to declare that Election Commission of India, Applicant No.1, the Chief Electoral Officer, Applicant No.2, the Returning Officer, Applicant No.3, Mr. P. Velarasu, IAS, who acted as Returning Officer, Applicant No.4 and the Assistant Returning Officer, Applicant No.5 herein, cannot be made parties to the Election Petition.
(b) That this Hon'ble court be pleased to delete the names of Election Commission of India, Applicant No.1, the Chief Electoral Officer, Applicant No.2, the Returning Officer, Applicant No.3, Mr. P. Velarasu, IAS, who acted as Returning Officer, Applicant No.4 and the Assistant Returning Officer, Applicant No.5 herein, from the Election Petition No. 1 of 2012.” Though by affidavit-in-reply, the Petitioner has opposed the Application initially but ultimately conceded the position and submitted to the said Application and also prayed to delete those Respondents.
5. On 14 December 2012, issued summons to the Respondents pursuant to Rules 9 and 10 (Appendix-II) (Election Petition) of the Bombay High Court (Original Side) Rules, returnable on 1 February 2013. On 1 February 2013, Respondent No. 6 sought time to file written statement. The time was accordingly granted. The time was also sought to file reply to Application No. 7 of 2012. As written statements were filed, the matter was listed for framing issues and accordingly, issues were framed including the above issue, on 21 June 2013.
6. The learned Senior Counsel appearing for Respondent No. 6 read and referred paragraph Nos. 1 and XVII, XVIII, XIX and 26 of the Election Petition, wherein averments/reasons are made for joining Respondent Nos. 1 to 5, and by referring to the provisions of the Act, submitted to dismiss the Election Petition at this stage itself.
7. Sections 82, 86 of the Act read as under:-
“82. Parties of the petition:-A Petitioner shall join as respondents to his petition –
(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 declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petit
