Navin Sinha, J.

1. Heard learned Counsel for the Petitioner, learned Counsel for the official Respondents and learned Counsel appearing for private Respondents 6 and 7. Elections were held to the Zila Parishad, Supaul in the Municipal Constituency No. 22 comprising of seven Panchayats on 2nd June, 2006. The Petitioner was declared to be the wining candidate and statutory declaration was made. Respondent No. 6, who had also contested the election with the Petitioner, then filed Election Petition No.2 of 2006 in the Court of Sub-Judge I, Supaul questioning the winning declaration of the Petitioner.

2. Learned Counsel for the Petitioner submitted that the relief sought in the election petition, at Annexure-5 to the Writ Petition, was for a declaration that the Plaintiff/Respondent No. 6 was duly elected by receiving majority of valid votes and for a declaration that the election of the returned candidate/Petitioner was void. in terms of the relief sought, it was necessary for the Plaintiff-Respondent No. 6 to implead all the contesting candidates in the election fray as party Defendants. He relied upon Section 137(2) of the Bihar Panchayat Raj Act read with Rule 106(2) of the Bihar Panchayat Election Rules in support of his submission. Relianci was further placed on a Judgment of this Court reported in 2001 (4) PLJR 710 (Md. ZakirHussain V/s. HareshwarPrasadSingh andOrs.) and A.I.R. 1996 Bombay (Comrade Kallappa Laxman Malabade V/s. Prakash Kallappa Awade) which in turn placed reliance on a Judgment of the Supreme Court reported in A.I.R. 1969 Supreme Court 677 (Mohan Raj V/s. Surendra Kumar Taparia and Ors.).

3. The submission, therefore, was that in absence of necessary parties being impleaded, the suit was bad for non-joinder of necessary parties and should have been thrown out at the inception.

4. Learned Counsel appearing on behalf of Respondent Nos. 6 and 7 urged that the Petitioner had been debarred from filing her written statement. There was, thus, no objection on the record with regard to non-joinder of necessary parties and, thus there was no occasion for the Plaintiff to remove this defect, if it be considered? defect. The alternative submission was that in any event non-compliance Section 137(2) of the Bihar Panchayat Raj Act and Rule 106(2) framed thereunde shall not be fatal to the election petition since no consequence of non-impleadme« were provided for. The statutory provision was not mandatory. Reliance for the proposition was placed on a Bench decision of this Court reported in 2005 (3) PLJR 130 (Ajit Singh V/s. The State of Bihar and Ors.).

5. It is not in controversy that the written statement of other official Respondent second party was on record, presently at Annexure-6, in which at paragraph 2 specific objection had been taken that the plaint was bad for non-joinder of necessary parties.

6. It becomes necessary to reproduce Section 137(2) of the Bihar Panchayat Act and Rule 106(2) of the Bihar Panchayat Election Rules in its entirety, which quoted hereinafter: 137(2) - "Parties to the petition" - A Petitioner shall join as a Respondent 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.

Local Language

7 The statute provides that where a person claims a declaration that the election of all the returned candidates or any of the returned candidate is void along with a further declaration that he himself or any other candidate has been duly elected, then in the event that he wants declaration of his own success to the prejudice of another, all the contesting candidates in the elec