The Returning Officer may be a proper party to an election petition, even though not a necessary party, when allegations of bad faith, misconduct, and impropriety are made against him.

ORDER :- This is an application by the Returning Officer, Tiruchendur Parliamentary Constituency, to strike off his name from the array of parties in Election Petition No. 10 of 1967. The applicant figures as the fifth respondent in the election petition. In this application, he states that he is neither a necessary party nor a proper party to the petition, that no relief has been asked for against him, that it cannot be said that the presence of the applicant will in any way enable the Court to adjudicate more effectively and completely the questions raised in the election petition, that he has acted only in the course of his duty as Returning Officer and has not done anything contrary to the statute, that the election petition has not disclosed any cause of action against him and that, therefore, his name may be struck off from the array of parties in the election petition.

2. The election petitioner has stated in his counter that he has impleaded the applicant as a party since he is of opinion that the applicant is a proper party, though not a necessary party.

3. The elected candidate (Dr. M. Santhosham) states in his counter that, since the petitioner in the election petition has made several allegations of improper conduct on the part of the Returning Officer and his staff in the matter of counting of votes and in not exercising adequate vigilance, it is just and necessary to retain him in the array of parties in order to enable the Court to determine the truth of the allegations.

4. In the election petition, there are several allegations of irregularities committed by the applicant in the matter of counting and rejection of votes, in the way of maintaining the secrecy of votes and in the unlawful manner in which he and his subordinates discharged their duties during the election.

5. The Returning Officer plays an important part in an election and the office of the Returning Officer is an honourable and distinguished one. The Returning Officer should be free from partiality, should not be prone to misconduct and should not give arbitrary decisions. He is expected to maintain the secrecy of voting and he must satisfy himself whether a candidate is eligible and if he is not satisfied, then he can disqualify him. He should follow the instructions given to him strictly, before and after the election.

6. Learned Government Pleader appearing for the applicant-Returning Officer contends that the applicant cannot be impleaded under the provisions of the Representation of the People Act 1951; for, under that Act, only the contesting candidates and the returned candidate can be made parties to the petition. If there is any allegation in the petition as to breach of official duties in connection with the election, the Act provides that the official shall be punishable with fine. Even assuming that the serious allegations against the Returning Officer are true, he can be summoned to give evidence in the course of trial of the election petition.

7. Under the circumstances, an interesting question of election law and procedure arises, viz., whether the Returning Officer, when allegations of illegality, irregularity and impropriety are made against him, is a necessary or a proper party to an election petition, or whether he should be impleaded as a party or whether he should be deleted if he is already made a party to an election petition.

8. This question must be determined with reference to the particular statute, viz., the Representation of the People Act 1951 and the Rules made thereunder. It is true Section 82 of the Act provides for array of parties to an election petition. But it is not final and conclusive. The provisions of the Civil Procedure Code can be used and utilised either for impleading or for adding of parties to a petition. Further, the Act does not say that the Returning Officer is either a necessary party or a proper party in an appropriate case.

9. In Halsbury's Laws of England, Simonds Ed. 3rd Edn. Vol. 14 in pa