Bapna, J.—At the last General Election for the membership of the Rajas-than Legislative Assembly from the Jaipur Johari Bazar Constituency No. 15, held on 25th February, 1957, Shri Satish Chandra Agarwal was declared a returned candidate on the 9th of March, 1957. Mr. Shah Alimuddin, one of the unsuccessful candidates, presented an election petition before the Election Commission on the 20th of April, 1957, under sec. 81 of the Representation of the People Act, 1951 (Act No. XLI1I of 1951). Besides the returned candidate, Mr. Satish Chandra Agarwal, four other persons, Mr. Ghaffar Ali, Mr. Kewal Chand, Mr. Shyam Lal Verma, and Mr. Arvind Kumar, who were contesting candidates, were made respondents. The prayer in the petition was that the election of respondent No. 1, Mr. Satish Chandra Agarwal, the returned candidate, be declared void, and further that the petitioner, Mr. Shah Alimuddin, who had secured the highest number of valid votes be declared to have been duly elected from the said constituency. The Election Commission by letter of 1st May, 1957 called upon the petitioner, Mr. Shah Alimuddin, to show cause why the election petition be not dismissed, because of the non-joinder of one Mr. Kanhaiyalal Saksena, who was said to be also a contesting candidate. The petitioner gave his explanation, and was personally heard, and the Election Commission passed an order on the 10th of May, 1957, as follows—

"Heard the petitioner who appeared personally.

So for as the main prayer for declaring the election of the returned candidate to be void is concerned, the question of non-joinder of another contesting candidate, Shri Kanhaiya Lal does not arise at all. The same cannot however, be said in regard to the other prayer by which the petitioner seeks that he himself should be declared as having been duly elected. Since a petition cannot be partly admitted and partly rejected by the Election Commission and since this election petition cannot be summarily rejected as a whole in any case, it is admitted."

It was thereafter referred to the Election Tribunal constituted for the purpose for trial.

2. On notice being issued, respondent No. 1, Mr. Satish Chandra Agarwal, raised an objection that the application be dismissed under sec. 90 (3) of the Representation of the People Act (hereinafter referred to as "the Act") because of the non-joinder of Mr. Kanhaiyalal Saksena, who was a contesting candidate. It was urged on behalf of Mr. Shah Alimuddin that M. Kanhaiya Lal Saksena was not a contesting candidate, because he had retired from the contest under sec. 55-A of the Act, and was on that account not a necessary party to the election petition. An application was also moved by Mr. Shah Alimuddin on 23rd July, 1957, by which he wanted permission to amend his petition so as to delete the relief for declaration that he should be declared to have been duly elected. A further application was moved that in case the leave was not granted to abandon the said relief, he may be permitted to join Mr. Kanhaiyalal Saksena as a respondent in the petition.

3. The learned Election Tribunal disallowed the two applications, and held the objection as to non-joinder of Mr. Kanhaiyalal Saksena in the election petition to be fatal to that petition. It accordingly dismissed the election petition on the 27th of August, 1957.

4. Mr. Shah Alimunddin has filed this appeal, which is No. 70 of 1957. He also filed a writ petition No. 162 of 1957, in case it is held for any reason that the appeal is not maintainable.

5. The contention on behalf of the appellant is—

(1) that Mr. Kanhaiyalal Saksena was not a contesting candidate within the meaning of sec. 82 of the Act, and was not therefore, a necessary party

(2) that the Eelection Tribunal had committed error in not permitting the withdrawal of relief No. 2, namely that the appellant should be declared to have been duly elected ;

(3) that the tribunal had committed error in not permitting an amendment of the petition by joining Mr

Click Here to Read the rest of this document