The main legal point established in the judgment is that in an appropriate case where allegations of bad faith, negligence, and impropriety are made against the returning officer, he can be joined as a 'proper' party under the provisions of the Civil Procedure Code which are expressly made applicable to the trial of the election petitions.

( 1 ) THIS is an application under Article 227 of the Constitution. It raises a short but interesting question of election law and procedure. The short point is whether under the Representation of the People Act, 1951 the Returning Officer is either a necessary or a proper party to an election petition.

( 2 ) THE order against which this Rule was directed was an order of the Election Tribunal dismissing the application of the present petitioner, Sri Dwijendra Lal Sen Gupta, under Order 1 Rule 10 of the Code of Civil Procedure read with Section 90 of the Representation of the People Act, 1951, for adding the Returning Officer Sri Ajita Kanjan Mukherjee as a respondent and for issuing a notice on him as such.

( 3 ) THE Election Tribunal relied on (i) the Surat Municipality Case, 2 Doabia's Election Cases, 340 and (2) Abdul Quadir Siddiqui v. Abul Hasan Natique, 1 Doabia's Election Cases 324 and dismissed the application for adding the Returning Officer as a party to the election petition. The two cases on which the election tribunal relied are not relevant for the decision and do not help in deciding the point raised. The first case on which the tribunal relied was the Surat Municipality case, but that case relates only to a suit for injunction and damages against the Returning Officer and it was held that no such suit or action could lie against the Returning Officer. That decision has nothing to do with the present question. Here the present question arose in connection with an election petition which is pending trial before the tribunal. It is not a suit but an election petition in the present instance. The second case on which the tribunal relied is 1 Doabia's Election Cases p. 324. This was a Legislative Assembly Election case in Central Provinces reported also in Hammond's Election Case 1920-35 at page 291. That case, however, lays down that it is not necessary, or proper, to make the Local Government or the returning officer a respondent to an election petition and that the returning officer when determining objections to a nomination paper is performing a judicial function. But it proceeds on to say that the returning officer "can only be joined as respondent if there is an imputation of misconduct, as distinct from an erroneous decision on a point of law". It, therefore, appears that this is an authority to say that if there is an allegation of misconduct then the returning officer is a necessary party. The Election Tribunal here fails to notice that in the present election petition which it was trying there is an averment or allegation of both mala fides and negligence. So while the case of Abdul Qadir Siddiqi is quoted by the Election Tribunal in support of his decision to reject the application for adding the Returning Officer as a party, that decision in effect and substance is against such a conclusion.

( 4 ) THE dispute in this election is with regard to election to the West Bengal Legislative Council by the members of the West Bengal Legislative Assembly. This election was held on the 10th May, 1960. The Rules inter alia provided for voting by poll and by marking the ballot papers by single transferable vote. Nine persons were declared elected including the present petitioner before this Court, Sri Dwijendra Lal Sen Gupta and opposite parties Nos. 2 to 4 and 6 to 10. On tile 23rd June, 1961, Harekrishna Konar, Opposite Party No. 1 presented an election petition calling into question the said election held on the 10th May, 1960, by the members of the West Bengal Legislative Assembly.

( 5 ) VARIOUS allegations were made by the petitioner, Konar in the election petition. It was expressly alleged that the Returning Officer illegally, improperly and in sheer negligence rejected one valid ballot paper. It was also alleged that the Returning Officer contravened Rule 116 of the Representation of the People (Conduct of Election and Election Petitions) Rules, 1956. It was further alleged that the Re