Sushma Devi vs Sub Divisional ...
2022 Latest Caselaw 14854 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 19
 

 
Case :- WRIT - C No. - 7606 of 2022
 

 
Petitioner :- Sushma Devi
 
Respondent :- Sub Divisional Magistrate/Prescribed Officer, Tehsil Jaisinghpur,Sultanpur And Another
 
Counsel for Petitioner :- Shobh Nath Pandey
 
Counsel for Respondent :- C.S.C.,Sanjay Tripathi
 
                            
 
Hon'ble Saurabh Lavania,J.

Heard.

The present petition has been filed assailing the order dated 07.10.2022, whereby prescribed authority in the Case No. 2077/2021 Computerized Case No. T202104680702077 (Sushila Versus Sushma Devi) under Section 12(C) of U.P. Panchayat Raj Act, 1947 (in short "Act of 1947") decided the issue no. 2 of non-joinder and mis-joinder of necessary parties. The issue no. 2, as the same is in issue, on reproduction reads as under:-

"2& D;k mijksDr ;kfpdk esa ukWu Tokb.Mj o fel Tokb.Mj vkWQ ikfVZt dk nks"k gS"

It is appropriate to clarify that the present case relates to challenging the of the present petitioner.

From the record, it transpires that the petitioner after service of notice preferred an application on the maintainability of the election petition before the prescribed authority and based upon the same, the issue no. 2 was framed by the prescribed authority. The relevant part of this application raising issue of maintainability is paragraph no. 4, which on reproduction reads as under:-

"/kkjk 4& ;g fd izLrqr ;kfpdk esa ukuTokb.Mj ,oa felTokb.Mj vkQ ikVhZt dk nks"k gS ;kfpdk esa lHkh izR;kf'k;ksa dks Qjhd eqdnek ugha cuk;k x;k gS tcfd viuh ;kfpdk dh /kkjk 4 esa ;kphdrkZ us izR;fFkZuh vFkok vU; izR;k'kkh dh lkaB xkaB dh ckr Lo;a fy[kk gS blfy, lHkh izR;klh vko';d i{kdkj ;kfpdk gS ftUgsa i{k izR;FkhZ ugha cuk;k x;k gS blfy, ;kfpdk xyr xSj dkuwuh gS vkSj [kkfjt gksus ;ksX; gSA"

Assailing the order dated 07.10.2022, learned Counsel for the petitioner stated that 8 candidates contested the election for the post of Gram Pradhan, Kilapur, Tehsil Jaisinghpur, District Sultanpur, in which the petitioner was declared elected and presently he is holding the post of Pradhan.

Being aggrieved, the respondent no. 2/Sushila filed the election petition and only the petitioner was arrayed as opposite party therein, though, as per Rule 24(2) of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (in short "Rules of 1994"), all the candidates, who contested the election, are the necessary party. As such, the election petition was not at all maintainable, however, prescribed authority decided the issue no. 2 against the petitioner.

He further submitted that ignoring the Rule 24(2) of the Rules of 1994, the prescribed authority has passed the order impugned dated 07.10.2022. As such, the indulgence of this Court is required in the matter.

Opposing the present petition, Sri Sanjay Tripathi, learned Counsel for respondent no. 2 stated that in view of the law laid down by this Court in the case of Ramanand Gaur Versus Ram Sanehi reported in 2012 (115) RD 794 Allahabad (ALL), the order impugned is just and proper and not liable to be interfered by this Court.

Elaborating his submission, learned counsel for the respondent no. 2 stated that election petition contains the prayer to the effect that election of the petitioner be declared as null and void and the private respondent Sushila is not claiming her right over the post of Pradhan. As such, election petition under Section 12(C) of the Act of 1947 read with Rules of 1994 is maintainable.

At this stage, Sri Sanjay Tripathi, learned Counsel for the respondent no. 2, indicated the prayer as sought in the election petition, which on reproduction reads as under:-

";g fd izR;FkhZ lq"kek nsoh ds xzke iapk;r dhYgkiqj vUrxZr fodkl [k.M o rglhy t;flagiqj tuin lqyrkuiqj ds iz/kku in ij fuokZpu dh ?kks"k.kk vkSj mudks tkjh izek.k i= fujLr fd;k tk; vkSj xzke iapk;r dhYgkiqj ds iz/kku in ds fuokZpu esa ernku ds le; nwf"kr izfdz;k viukus ds dkj.k mls jn~n fd;k tk; vkSj xzke iapk;r dhYgkiqj ds iz/kku in dh vkdfLed fjDrh ?kksf"kr dh tk;"

The relevant paragraphs of the judgment passed in the case of Ramanand Gaur (Supra) are as under:-

"The contention raised on behalf of the parties revolves around the Rule 3(2) of 1994 Rules, which reads as follows:-

"3. Election Petition.-(1)........

(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."

According to the petitioner since in the facts of the case both the reliefs have been prayed for i. e. declaring the election of the petitioner as invalid and thereafter to declare the election petitioner as elected, every"8. Before examining the merits of the issues raised on behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath v. Jaswant Singh. Speaking for the Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely a statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act."

The issue for consideration before this Court is as to whether the entire petition, as filed by the petitioner, is liable to be rejected on the ground of non-impleadment of unsuccessful candidates or only to the extent the relief of the election petitioner being declared elected is prayed.

In the opinion of the Court Rule 3 is in two parts. First part deals with the petition where the relief of declaring the election of the elected candidate as invalid and the other where the second relief of declaring the election petitioner as elected is also prayed. Non-impleadment of unsuccessful candidates is fatal so far as relief second is concerned. In absence of such unsuccessful candidates being impleaded the second relief of declaring the election petitioner as elected cannot be granted. To that extent the contention raised by Sri Verma is upheld and the relief prayed in the election petition to that extent had to be declared as non-maintainable.

Reference may also be had to the judgment of the Hon'ble Supreme Court, relied upon by the counsel for the respondent, in the case of Jagan Nath v. Jaswant Singh; AIR 1954 SC 210, wherein it has been held that merely because consequences have not been provided because of non-impleadment of unsuccessful candidates under the rules, the same may not be fatal and the Tribunal is entitled to deal with the matter under proviso to Order IX Rule 10 and 13 of the Code of Civil Procedure.

Suffice is to refer to the judgment of the Hon'ble Supreme Court reported in (2001) 3 SCC 594 wherein it has been explained that nonimpleadment of the parties, as required under the statutory provision, would be fatal and having regard to Section 82 of the Representation of Peoples Act, 1951 it has further been explained that no subsequent impleadment can be permitted, as it would negate the statutory provision. It has been finally laid down as follows: unsuccessful candidate had to be made a party. Counsel for the petitioner Sri S.K. Verma submits that non-impeadment of necessary party is fatal to the election petition. Reliance has been placed upon the judgment of the Hon'ble Supreme Court in the cases of Patangrao Kadam v. Prithviraj Sayajirao Yadav Deshmukh; (2001) 3 SCC page 594 (Para-12), Gadnis Bhawani Shankar V. v. Faleiro Eduardo Martinho; AIR 2000 SC 2502 and Ram Sukh v. Dinesh Aggarwal; (2009) 10 SCC 541 (Para-20). He further explains that unsuccessful candidates will mean every candidate who had filed his nomination in the process of election and had not withdrawn the same up to the last date for withdrawal of the nomination.

There can be no quarrel with the proposition so canvassed by Sri Verma, insofar as impleadment of unsuccessful candidates in the election petition, wherein the relief of declaring the election petitioner as elected is concerned.

In the opinion of the Court, from a simple reading of Rule 3, quoted above, it is apparently clear that every unsuccessful candidate along with successful candidate has to be made a respondent in the election petition, if a declaration qua the election petitioner being elected is prayed for.

It is settled law that election petition proceedings are technical and special proceedings. The Supreme Court of India has explained the legal position in that regard in para-8 of its judgment in the case of Ram Sukh (supra), which reads as follows:

"8. Before examining the merits of the issues raised on behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath v. Jaswant Singh. Speaking for the Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely a statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act."

The issue for consideration before this Court is as to whether the entire petition, as filed by the petitioner, is liable to be rejected on the ground of non-impleadment of unsuccessful candidates or only to the extent the relief of the election petitioner being declared elected is prayed.

In the opinion of the Court Rule 3 is in two parts. First part deals with the petition where the relief of declaring the election of the elected candidate as invalid and the other where the second relief of declaring the election petitioner as elected is also prayed. Non-impleadment of unsuccessful candidates is fatal so far as relief second is concerned. In absence of such unsuccessful candidates being impleaded the second relief of declaring the election petitioner as elected cannot be granted. To that extent the contention raised by Sri Verma is upheld and the relief prayed in the election petition to that extent had to be declared as non-maintainable.

Reference may also be had to the judgment of the Hon'ble Supreme Court, relied upon by the counsel for the respondent, in the case of Jagan Nath v. Jaswant Singh; AIR 1954 SC 210, wherein it has been held that merely because consequences have not been provided because of non-impleadment of unsuccessful candidates under the rules, the same may not be fatal and the Tribunal is entitled to deal with the matter under proviso to Order IX Rule 10 and 13 of the Code of Civil Procedure.

Suffice is to refer to the judgment of the Hon'ble Supreme Court reported in (2001) 3 SCC 594 wherein it has been explained that nonimpleadment of the parties, as required under the statutory provision, would be fatal and having regard to Section 82 of the Representation of Peoples Act, 1951 it has further been explained that no subsequent impleadment can be permitted, as it would negate the statutory provision. It has been finally laid down as follows:

"Unambiguous language and clear terms contained in Section 82(b) read with Section 79(b) is mandatory. Section 86(1) does not leave any option to High Court but to dismiss an election petition for non-compliance with Sections 81, 82 and 117.

This takes the Court to the second issue as to whether in absence of unsuccessful candidates being impleaded in the election petition, the relief of declaring the election of the elected candidate as null and void can be granted or not.

Under Rule 3 of 1994 Rules, an election petition, where only relief for declaring the election of the elected candidate as invalid is prayed for, it is not necessary to implead all other unsuccessful candidates as a party. This Court would, therefore, in the facts of the case segregate two reliefs, which have been prayed for by the election petitioner and would hold that so far as the first relief qua the election of the present petitioner being declared invalid is concerned, the petition is maintainable and does not suffer from the vice of non-impleadment of necessary parties.

So far as the second relief prayed for in the election petition qua election petitioner being declared as elected after setting aside the election of the elected candidate is concerned, the petition suffers from vice of nonimpleadment of other unsuccessful candidate and therefore to that extent the election petition stands dismissed."

Considering the observations made by this Court hereinabove as also taking note of the prayer clause sought in election petition, quoted above, this Court finds no illegality in the order impugned passed by the prescribed authority. Thus, this Court is not inclined to interfere in the impugned order passed by the prescribed authority.

This petition is accordingly dismissed.

Order Date :- 21.10.2022

Jyoti/-