Sudha Devi vs State Of U.P. And Others
2012 Latest Caselaw 615 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - C No. - 67589 of 2011
 

 
Petitioner :- Sudha Devi
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Arvind Kumar Singh II
 
Respondent Counsel :- C.S.C.,Sunil Kumar Yadav
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Arvind Kumar Singh-II, learned counsel for the petitioner, Sri Shashi Nandan, learned Senior Advocate assisted by Sri A.T.Kulshreshtha for respondent No.3 and learned Standing Counsel for respondents No.1 and 2. Since a pure question of law raised by learned counsel for the petitioner, learned counsel for the respondents stated that they do not propose to file counter affidavit and the matter may be heard finally at this stage under the rules of the Court after considering oral submission of the parties. Hence I proceed accordingly.

2. The writ petition is directed against the order dated 16.11.2011 passed by Sub-Divisional Officer/Deputy Collector, Etah considering issue no.5 as to whether election petition suffers any defect for non impleadment of necessary parties and if yes, its effect. It has held that non impleadment of Election Officer namely Returning Officer/ Assistant Returning Officer makes the election petition defective and therefore, the election petitioner has been directed to implead Returning Officer/Assistant Returning Officer as defendant in the election petition No.8 of 2011.

3. The general election of Gram Pradhan of Gram Panchayat Kherda Nizampur, Block Nidhaulikala, District Etah was held on 2.11.2010 in which respondent No.3 Dayashri,  Wife of Shri Rambresh Singh was declared elected while the petitioner, who also contested election, was defeated. The petitioner filed Election Petition No.8/11 before Prescribed Authority/Sub Divisional Officer, Etah under Section 12-C of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act 1947") impleading respondent No.3 as also all other unsuccessful candidates as defendants 1 to 11. The Election Tribunal framed six issues on 29th July, 2011 and issue no.5 reads as under:

^^D;k ;kfpdk esa vko';d i{kdkj u cuk;s tkus dk nks"k gS\ ;fn gka rks mldk izHkkoA**

"Is the petition bad for non joinder of necessary parties? If yes, its effect."

(English Translation by the Court)

4. It is this issue, which has been answered against the election petitioner by means of the impugned order dated 16.11.2011.

5. Sri Arvind Kumar Singh-II, learned counsel appearing for the petitioner contended that under Rule 3(2) of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as "Rules 1994") the necessary parties to be impleaded in an election petition is the Returned candidate and where the election petitioner is seeking declaration for him/her as elected, all unsuccessful candidates. It does not talk of impleadment of any officer conducting election as a necessary party to be impleaded in election petition and therefore, the impugned order passed by Sub Divisional Officer is illegal. He placed reliance on Apex Court decision in B.Sundara Rami Reddi Vs. Election Commission of India & Ors. 1991 Supp (2) SCC 624 and single judge judgment of this Court in Shiv Rani Vs. District Judge, Mainpuri & Ors. 2007(102) RD 265.

6. On the contrary, Sri Shashi Nandan, Sr. Advocate submitted that allegations of several illegalities in collusion with elected candidate has been levelled against Returning/Assistant Returning Officer and therefore, they were necessary and proper party. The provisions of C.P.C. are applicable in election petition and therefore Prescribed Authority has rightly held that Returning Officer/Assistant Returning Officer must be impleaded. He placed reliance on two judgments of this Court in  Kisan Uchattar Madhyamik Vidyalaya Samiti, Deoria & ors. Vs. IIIrd Addl. District Judge, Deoria & ors. AIR 1989 All. 168 and Pandit Krishna Kant Pujari & Anr. Vs. 2nd Addl. District Judge, Lucknow & Ors. 2000 (Suppl.) R.D. 346.

7. Having heard counsel for the parties, in my view, the order impugned in this writ petition cannot sustain and the writ petition deserve to be allowed.

8. It is well settled that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes, applies. It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. I need not burden this judgment with catena of decisions making these observations but suffice it to simply refer to Harcharan Singh Vs. S. Mohinder Singh and others, AIR 1968 SC 1500, Jyoti Basu & others VS. Debi Ghosal & others AIR 1982 SC 983; Kailash Vs. Nankhu and others , AIR 2005 SC 2441.

9. In F.A. Sapa Etc., Etc., v. Singora and others JT 1991(2) SC 503, para 15, the Court said:

"It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation."

10. In Mr. V. Narayanaswamy v. Mr. C.P. Thirunavukkarasu 2000(2) SCC 294 (Para 23) the Court observed:

"an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance."

11. This has been followed consistently and referred to in recent decisions in Dr. Krishna Murthy and others Vs. Union of India and another, JT 2010 (5) SC 601 = 2010(5) SCALE 448 = (2010) 7 SCC 202 and Kalyan Singh Chouhan Vs. C.P. Joshi 2011(1) SCALE 718.

12. The procedure for redressal of dispute pertaining to election therefore, to be followed as prescribed in the statute providing for procedure of such redressal. Section 12-C of Act 1947 deals with the procedure for questioning election of a person as Pradhan or as member of Gram Panchayat. Sub section 1 and 2 provides for grounds on which such an election can be questioned. Sub section 3 provides that the application questioning election may be presented by any candidate and shall contain such particulars, as may be prescribed. The procedure to be followed by Prescribed Authority in deciding election petition is also required to be prescribed. In furtherance thereof Rules 1994 have been framed. Rule 3 thereof provides for election petition and reads as under:

"Election Petition.-(1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Division Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground:

Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security.

(2) The person whose election is questioned and where the petition claims that the petitioner or any other candidates shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application.

(3) Every respondent may give evidence to prove that any person in respect of whom a claim is made that such person be declared elected, should not be declared so elected on the same ground or ground on which his election could have been questioned if he had been elected."

13. Rule 4 provides that every election petition shall be tried by the Sub-Divisional Officer, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, for the trial of suit. Rule 4, therefore, makes it very clear that application of Code of Civil Procedure in an election petition under the Act 1947 and Rules 1994 is very limited. Considering a similar issue in B.Sundara Rami Reddy (supra) the Apex Court in para 4 has cleared the entire matter and has held that concept of "proper party" is alien to an election dispute under the Representation of People Act, 1951 since the application of C.P.C. is limited. Para 4 reads as under:

"Learned counsel for the petitioner urged that even if the Election Commission may not be a necessary party, it was a proper party since its orders have been challenged in the election petition. He further urged that since Civil Procedure Code, 1908 is applicable to trial of an election petition the concept of proper party is applicable to the trial of election petition. We find no merit in the contention. Section 87 of the Act lays down that subject to the provisions of the Act and any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provisions of the Civil Procedure Code have thus been made applicable to the trial of an election petition to a limited extent as would appear from the expression "subject to the provisions of this Act". Since Section 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not necessary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self-contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of proper party. In K. Venkateswara Rao v. Bekkam Narasimha Reddi, AIR 1969 SC 872, this Court while discussing the application of Order I Rule 10 of the Civil Procedure Code to an election petition held that there could not be any addition of parties in the case of an election petition except under the provisions of sub-section (4) of Section 86 of the Act. Again in Jyoti Basu Vs. Debi Ghosal (1982) 1 SCC 691, this Court held that the concept of 'proper party' is an must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents."

14. Though, in slight different context but same observation has been made by Hon'ble Single Judge in Shiv Rani (supra) where His Lordship has considered the question of applicability of notice under Section 80 C.P.C. in a case where an election officer is made party in an election petition and in para 23 of the judgment the Court said:

"Returning Officer and Assistant Returning Officer cannot be said to be necessary party to the proceeding...."

15. The two judgments cited by learned counsel appearing for respondent No.3 are not related to the matters arising out of an election dispute questioning an election conducted under a special statute hence, in my view, have no application to the dispute in question.

16. In the result, the impugned order passed by Sub Divisional Magistrate cannot sustain. The writ petition is allowed. The impugned order dated 16.11.2011 (Annexure No.4 to the writ petition) passed by Sub-Divisional Officer/Up-Ziladhikari, Etah is hereby quashed. It is held that election petition is not defective for non impleadment of election officers namely Returning Officer/Assistant Returning Officer. Election Tribunal is, therefore, directed to decide the other issues in election petition in accordance with law, expeditiously.

Order Date :- 23.4.2012

KA