ORDER :

The present interlocutory application is filed by the Petitioner herein (Respondent No. 5 in E.P. No. 1 of 2022) who was the Returning Officer for the Member of Legislative Council Elections, Adilabad Constituency to strike off his name from the array of parties in E.P. No. 1 of 2022.

2. Heard Mr. Avinash Desai learned counsel for the Petitioner herein, Mr. Ghanshyamdas Mandhani learned counsel representing Mr. Bankatlal Mandhani for Respondent No. 1 herein and Mr. B. Nalin Kumar learned counsel for Respondent No. 2 herein.

3. Facts of the case:

i) Election petition bearing E.P. No. 1 of 2022 was filed by Respondent No. 1 herein challenging the election of Mr. Vithal Dande (Respondent No. 2 herein) as Member of Legislative Council, Adilabad Constituency as void.

ii) In the said election petition, Respondent No. 1 herein contends that he had filed his nomination on 23.11.2021 and after scrutiny of the same it was found to be in order. The name of Respondent No. 1 was reflected in the list of validly nominated candidates dated 23.11.2021. However, on 26.11.2021, Respondent No. 1 found out that his name was missing in the final list of candidates. On enquiry, Respondent No. 1 found out that one Mr. Kishan Singari (Respondent No. 6 herein), who was one of his proposers in the nomination, withdrew his nomination by forging his signature and falsely claiming that he was authorized to withdraw the nomination.

iii) According to Respondent No. 1, he immediately raised a complaint with the Petitioner herein who was the returning officer on the same day i.e., 26.11.2021 by sending a WhatsApp message and by submitting a representation. Further, Respondent No. 1 claims that he had submitted another representation dated 27.11.2021 to the Petitioner herein seeking certified copies of his nomination form and the alleged forged withdrawal forms submitted by the said Kishan Singari i.e., respondent No.6 herein, but the same were not furnished.

iv) Subsequently, the election was conducted for the post of Member of Legislative Council, Adilabad and vide Gazette Notification No. 65 dated 15.12.2021, Respondent No. 2 herein was declared as the returned candidate.

v) Respondent No. 1 contends that due to the actions of the Petitioner herein he was deprived from contesting the said election, despite his nomination being in order. Therefore, he has filed E.P. No. 1 of 2022. In the said E.P. No. 1 of 2022, Respondent No. 1 herein had arrayed all the candidates to the election as parties along with the Petitioner herein. The Petitioner herein was arrayed as Respondent No. 5 in the election petition. Therefore, the Petitioner herein, in the present interlocutory application, challenges his arrayment as one of the Respondent in the election petition on the ground that he is not a necessary party.

4. Contentions of the Petitioner (Returning Officer):

i) As per Section 82 and Section 86(4) of the Representation of Peoples Act, 1951 (hereinafter referred to as ‘Act, 1951’) only candidates who have contested elections can be arrayed as party to an election petition. A Returning Officer cannot be made a party to an election petition even if allegations of corrupt practices are levelled against him/her. Reliance was placed on Michael B. Fernandes v. C.K. Jajjar Sharief, (2002) 3 SCC 521, B. Sundara Rami Reddy v. Election Commission of India 1991 Supp (2) SCC 624 , Jyoti Basu v. Debi Ghoshal, (1982) 1 SCC 691and Baadi Reddy Appanna Dora v. AtchamambaKorpu, AIR 2003 AP 368.

ii) The allegations of corrupt practices against a Returning Officer shall be dealt in accordance with Section 99 of the Act, 1951 at the conclusion of the trial. Reliance was placed on Election Officer v. Parbhatbhai v. Savabhai Patel, MANU/GJ/1304/2020and Jyoti Basu (supra).

iii) Therefore, the name of the Petitioner herein shall be struck off from the array of Respondents in the election petition.

5. Contentions of Respondent No. 1 (Election Petitioner):

i) Respondent No. 1 in paragraph Nos.7 to