Bombay High Court
Dr. Rajendra B. Bhosle vs Kirtikumar Dattatray Shivsharan ... on 29 March, 2023
Bench: P. K. Chavan
2023:BHC-OS:2138 AEP-7-2021.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION NO.7 OF 2021
IN
ELECTION PETITION NO.1 OF 2019
Dr. Rajendra Babanrao Bhosale ]
The Returning Officer ]
42 (SC) - Solapur Parliamentary ]
Constituency, Solapur. ] Applicant
IN THE MATTER BETWEEN:
Kirtikumar Dattatray Shivsharan ]
R/o.41/187, New Budhwar Peth, ]
Solapur. ] Petitioner
Versus
1. The Election Commission of India ]
Its office at Nirvachan Bhawan, ]
Ashoka Bhawan, New Delhi. ]
2. Dr. Rajendra Babanrao Bhosale ]
The Returning Officer, 42 (SC) - ]
Solapur Parliamentary ]
Constituency, Solapur. ]
3. Shri Sha. Bra. Dr. Jai Sidheshwar ]
Shivachary Mahaswamiji, ]
R/o. Gaudgaon, Taluka Akkalkot, ]
District Solapur. ] Respondents
.....
Mr. Sandeep Rankhambe a/w Ms. Anita Sonawane, for Petitioner.
Mr. Akshay Pawar i/b Ms. Rekha Rajgopal, for Respondents No.1
and 2.
Mr. Abhijit Patil, for Respondent No.3.
.....
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CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 17th MARCH, 2023.
PRONOUNCED ON : 29th March, 2023.
ORDER:
1. By this application, the applicant-respondent No.2 in Election
Petition No.1 of 2019 has prayed for deleting his name from the
array of the respondents in the cause title of the election petition in
view of the provisions of section 82 r/w section 86 (4) of the
Representation of the People Act, 1951.
2. A few facts necessary for disposal of this application can be
summarized as follows.
3. Petitioner - Kirtikumar Dattatray Shivsharan has filed an
election petition on various grounds, inter alia, seeking a
declaration that election of respondent No.3 - Shri. Sha. Bra. Dr. Jai
Sidheshwar Shivachary Mahaswamiji from 42- (SC) Solapur as null
and void. It is, inter alia, prayed for declaring the certificate issued
in favour of respondent No.3 - Shri. Sha. Bra. Dr. Jai Sidheshwar
Shivachary Mahaswamiji from the said constituency as null and
void.
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4. I heard Ms. Drishti Shah, learned Counsel for the applicant.
She, inter alia, submits to delete the name of the respondent No.1-
The Election Commission of India from the array of the respondent
as, her arguments would be common in respect of both the
respondents.
5. Ms. Shah invited my attention to sections 82 and 86 of the
Representation of the People Act, 1951 which read thus;
"82. Parties to the petition.- A petitioner
shall join as respondents to his petition-
(a)where the petitioner, in addition to
claiming a declaration that the election of all
or any of the returned candidates is void,
claims a further declaration that he himself
or any other candidate has been duly
elected, all the contesting candidates other
than the petitioner, and where no such
further declaration is claimed, all the
returned candidates; and
(b)any other candidate against whom
allegations of any corrupt practice are made
in the petition.
"86. Trial of election petitions.- (1) The
High Court shall dismiss an election petition
which does not comply with the provisions
of section 81 or section 82 or section 117.
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(2).....
(3).....
(4) Any candidate not already a
respondent shall, upon application made by
him to the High Court within fourteen days
from the date of commencement of the trial
and subject to any order as to security for
costs which may be made by the High
Court, be entitled to be joined as a
respondent".
6. It is apparent from the aforesaid provisions that the parties to
the petition can only be contesting candidates against whom relief
has been sought for declaration that the election of and/or any of
the candidates is void.
7. Learned Counsel has, therefore, placed reliance on following
decisions;
(a) Jyoti Basu and others Vs. Debi Ghosal and
others, AIR 1982 Supreme Court 983,
(b) B. Sundara Rami Reddy Vs. Election
Commission of India and others, 1991 Supp (2)
Supreme Court Cases, 624;
(c) Michael B. Fernandes V. C.K. Jaffar Sharief and
others, AIR 2002 Supreme Court 1041;
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8. Learned Counsel for the applicant would argue that the
applicant who was a Returning Officer can, at the most, be
summoned as a witness. Thus, according to the learned Counsel for
the applicant, the applicant is neither a necessary nor a proper party
to the election petition. She further submits that even otherwise
there are no allegations against the officers of the election
commission.
9. The respondent - Kirtikumar Dattatray Shivsharan in his reply
states that the applicant has not complied with the provisions of the
Act and Rules as well as the directions given by the respondent
No.1 from time to time. It is stated in the reply that the applicant
has committed corrupt practices by helping the returned candidate
respondent No.3, inasmuch as, affidavit of the applicant reflects
that he had acted mala fide at the time of counting of votes which
amounts to corrupt practice. The reply further states that the
applicant in his affidavit has unequivocally admitted about
differences of six votes due to technical mistakes as well as 141
votes between the poled votes and counted votes. It is further
stated that the applicant has failed to perform his duty as per sub
clause 15.30 of the hand book.
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10. I heard Mr. Ambedkar, learned Counsel for the petitioner
extensively. Mr. Ambedkar has invited my attention to section 24 of
the Representation of the People Act, which speaks about general
duty of the Returning Officer as well as other orders to be made by
this Court in view of section 99 of the said Act. Section 98 and
section 99 (ii) (b) (a) read thus;
"98.Decision of [the High Court].-At the
conclusion of the trial of an election petition
[the High Court] shall make an order-
(a)dismissing the election petition; or
(b)declaring the election of [all or any of the
returned candidates] to be void; or
(c)declaring the election of [all or any of the
returned candidates] to be void and the
petitioner or any other candidate to have
been duly elected.
(d)....
99. Other orders to be made by [the High
Court].-(1).....
(a)......
(i)......
(ii)the names of all persons, if any, who
have been proved at the trial to have been
guilty of any corrupt practice and the
nature of that practice; and]
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(b)fixing the total amount of cost payable,
and specifying the persons by and to
whom costs shall be paid:
Provided that [a person who is not a party
to the petition shall not be named] in the
order under sub-clause (ii) of clause (a)
unless
(a) he has been given notice to appear
before [the High Court] and to show
cause why he should not be so named;
11. Mr. Ambedkar vehemently argued that the applicant ought to
have referred the matter to the election commission. He has placed
reliance on the judgment of the Hon'ble Supreme Court in the case
of Mohinder Singh Gill and another Vs. The Chief Election
Commissioner, New Delhi and others, AIR 1978 Supreme Court
851. The learned Counsel has also placed reliance on the judgment
of the Hon'ble Supreme Court in the case of A.C. Jose Vs. Sivan
Pillai and others, (1984) 2 Supreme Court Cases 656 by contending
that for the first time the legitimacy of user of electronic voting
machine in an election came in question. The Counsel would argue
that the Hon'ble Supreme Court held that in the existing structure
of the Act and Rules, there is no provision for using electronic
voting machine without necessary amendment and such user was
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held to be bad in law. The learned Counsel has tried to distinguish
the ratio laid down in the case of Jyoti Basu (supra) by emphasizing
on the words "as far as may be" as stated therein, which are contrary
to section 87 of the Representation of the People Act which states
"as nearly as may be". Section 87 reads thus;
87. Procedure before the High Court.- (1)
Subject to the provisions of this Act and of
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 (5 of 1908) to the trial of
suits:
Provided that the High Court shall have the
discretion to refuse, for reasons to be
recorded in writing, to examine any witness
or witnesses if it is of the opinion that the
evidence of such witness or witnesses is not
material for the decision of the petition or
that the party tendering such witness or
witnesses is doing so on frivolous grounds or
with a view to delay the proceedings.
(2) The provisions of the Indian Evidence
Act, 1872 (1 of 1972), shall, subject to the
provisions of this Act, be deemed to apply in
all respects to the trial of an election petition.
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12. While buttressing his point in respect of the election
Commission of India and Returning Officer making necessary
parties to the election petition, the Counsel has invited my attention
to paragraphs 52, 55, 83 and 85 of the judgment in case of
Mohinder Singh (supra), which read thus;
"52. Ridge v. Baldwin(1964) AC 40: is a leading
case which restored light to an area 'benighted by the
narrow conceptualism of the previous decade', to
borrow Professor Clark's expression. (Natural Justice
Substance and Shadow-'Public Law' Journal- Spring
1975). Good administration demands fairplay in
action and this simple desideratum is the fount of
natural justice. We have already said that the
classification of functions as 'judicial' or
'administrative' is a stultifying shibboleth, discarded
in India as in England. Today, in our jurisprudence,
the advances made by natural justice far exceed old
frontiers and if judicial creativity belights penumbral
areas it is only for improving the quality of
government by injecting fairplay into its wheels.
55. Normally, natural justice involves the
irritating inconvenience for men in authority, of
having to hear both sides since notice and
opportunity are its very marrow. And this principle is
so integral to good government, the onus is on him
who urges exclusion to make out why. Lord Denning
expressed the paramount policy consideration behind
this rule of public law (while dealing with the nemo
judex aspect) with expressiveness.
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"Justice must be rooted in confidence; and
confidence is destroyed when right-minded
people go away thinking 'the judge was biased'."
We may adapt it to the audi alteram
situation by the altered statement:
"Justice must be felt to be just by the
community if democratic legality is to animate
the rule of law. And if the invisible audience
sees a man's case disposed of unheard, a chorus
of 'no-confidence' will be heard to say, 'that
man had no chance to defend his stance'."
That is why Tuckor LJ in Russel v. Duke of
Norfolk (1949) 1 All E.R. 109 (at 118 E)
emphasised that 'whatever standard of natural
justice is adopted, one essential is that the
person concerned should have a reasonable
opportunity of presenting his case'. What is
reasonable in given circumstances is 'in the
domain of practicability; not formalised
rigidity. Lord Upjohn in Fernando ((1967) 2
AC 337) observed that: 'while great urgency
may rightly limit such opportunity timeously,
perhaps severely, there can never be a denial of
that opportunity if the principles of natural
justice are applicable'. It is untenable heresy, in
our view, to lockjaw the victim or act behind
his back by tempting invocation of urgency,
unless the clearest case of public injury flowing
from the least delay is self-evident. Even in
such cases a remedial hearing as soon as urgent
action has been taken is the next best. Our
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objection is not to circumscription dictated by
circumstances, but to annihilation as an easy
escape from a benignant, albeit inconvenient
obligation. The procedural pre-condition of
fair hearing, however minimal, even post-
decisional, has relevance to administrative and
judicial gentlemanliness. The Election
Commission is an institution of central
importance and enjoys far-reaching powers and
the greater the power to affect others' right or
liabilities the more necessary the need to hear.
83. We derive support for this approach from
Durga Mehta (AIR 1954 SC 520). The
Court there considered the same words, in
the same sections, in the same Statue. Section
100 (2) (c) interpreted in that case re-incarnates
as S. 100 (1) (d) (iv) later. Everything is
identical. And Mukherjea, J. explained (at p.
524 of AIR)
"It is argued on behalf of the respondent that
the expression "non-compliance' as used in
sub-section. (2)(c) would suggest the idea of
not acting according to any rule or command
and that the expression is not quite
appropriate in describing a mere lack of
qualification. This, we think, would be a
narrow way of looking at the thing. When a
person is incapable of being chosen as a
member of a State Assembly under the
provisions of the Constitution itself but has
nevertheless been returned as such at an
election, it can be said without impropriety
that there has been non-compliance with the
provisions of the Constitution materially
affecting the result of the election. There is
no material difference between "non-
compliance" and "non-observance" or
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"breach" and this item in clause (c) of sub-
section. (2) may be taken as a residuary
provision contemplating cases where there
has been infraction of the provisions of the
Constitution or of the Act but which have
not been specifically enumerated in the other
portions of the clause."
Lexical significations are not the last work in
statutory construction. We hold that it is
perfectly permissible for the Election Court
to decide the question as one falling under
Section 100 ( 1 ) (d) (iv). A presumatic view
of the Act and Art. 324 helps discern 'an
organic synthesis. Law sustains, not fails.
85. Section 98, which we have read earlier,
contemplates three possibilities when an
election petition is tried. Part VI of the Act
deals with the complex of provisions
calculated to resolve election disputes. A
match past this Part discloses the need to file
an election petition (S. 80) the jurisdiction to
try which is vested in the High Court (80A).
Regulatory of the further processes on
presentation of a petition are Secs. 81 to 96.
If a candidate whose return is challenged has
a case invalidating the challenger's election
he may set it up subject to the provision in
Sec. 97. Then comes the finale in Sec. 98.
The High Court has three options by way of
conclusive determinations. It may (a) dismiss
the petition (b) declare the election void; and
(c) go further to declare the petitioner duly
elected. Side-stepping certain species of
orders that may be passed under S. 99 we
have to explore the gamut of implied powers
when the grant of power is wide and needs
incidental exercises to execute the substantive
power.
(Emphasis supplied)
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13. Mr. Ambedkar would argue that in order to save election
process as well as democracy, Courts are bound to ensure that
Election Commission and Returning Officer are impleaded as
parties to the petition. He further argued that it is only the Election
Commission who can answer whether Government of India has
sanctioned micro processor /micro controller/memory/encrypted
code in the EVM machines. The Counsel would argue that the
judgment in the case of Jyoti Basu (supra) is against the wishes of
founding fathers of the Constitution. Election Commission wrongly
declared the result of the election in view of the admission made in
the affidavit by the applicant.
14. In rejoinder, Ms. Shah contends that the judgments cited on
behalf of the petitioner are under writ jurisdiction and, therefore,
cannot be made applicable to the election petition. In the case of
Jyoti Basu (supra), B. Sundara Rami Reddy and Michael B.
Fernandes (supra), the Hon'ble Supreme Court has unequivocally
observed that right to elect or to be elected or disputes regarding
election are neither fundamental rights nor common law rights but
are confined to the the provisions of the Act. The rules made
therein and consequently, the rights and remedies are limited to
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those provided by the statutory provisions. While dealing with
questions of joinder of the parties referred to in Sections 82 and 86
(4) of the Act, it has been held that the contest of the Election
Petition is designed to be confined to the candidates at the Election
and all others are excluded. Thus, only those can be joined as
respondents to Election Petition who are mentioned in Sections 82
and 86 (4) and none others.
15. The Hon'ble Supreme Court in case of Jyoti Basu and others
Vs. Debi Ghosal and others, AIR 1982 Supreme Court 983, has
elaborately discussed the scope of section 82 and 86 (4) of the Act
which even has considered the provisions of Article 324 of the
Constitution.
16. My attention is also drawn to paragraphs 11, 12 and 13 of
the decision in the case of Jyoti Basu (supra) which read thus;
"11. The matter may be looked at from another
angle. The Parliament has expressly provided that
an opportunity should be given to a person who is
not a candidate to show cause against being 'named'
as one guilty of a corrupt practice. Parliament,
however, has not thought fit to expressly provide
for his being joined as a party to the election
petition either by the election-petitioner or at the
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instance of the very person against whom the
allegations of a corrupt practice are made. The right
given to the latter is limited to show cause against
being 'named' and that right opens up for exercise
when, at the end of the trial of the election petition
notice is given to him to show cause why he should
not be 'named'. The right does not extend to
participation at all stages and in all matters, a right
which he would have if he is joined as a party at the
commencement. Conversely the election petitioner
cannot by joining as a respondent a person who is
not a candidate at the election subject him to a
prolonged trial of an election petition with all its
intricacies and ramifications. One may well imagine
how mischievous minded persons may harass public
personages like the Prime Minister of the country,
the Chief Minister of a State or a political leader of
a national dimension by impleading him as a party
to election petitions, all the country over. All that
would be necessary is a seemingly plausible
allegation, casually or spitefully made, with but a
facade of truth. Everyone is familiar with such
allegations. To permit such a public personage to be
impleaded as a party to an election petition on the
basis of a mere allegation, without even prime facie
proof, an allegation which may ultimately be found
to be unfounded, can cause needless vexation to
such personage and prevent him from the effective
discharge of his public duties. It would be against
the public interest to do so. The ultimate award of
costs would be no panacea in such cases, since the
public mischief cannot be repaired. That is why
public Policy and legislative wisdom both seem to
point to an interpretation of the provisions of
the Representation of the People Act which does
not permit the joining, as parties, of persons other
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than those mentioned in Sections 82 and 86 (4). It
is not as if a person guilty of a corrupt practice can
get away with it. Where at the concluding stage of
the trial of an election petition, after evidence has
been given, the Court finds that there is sufficient
material to hold a person guilty of a corrupt
practice, the Court may then issue a notice to him
to show cause under Section 99 and proceed with
further action. In our view the legislative provision
contained in Section 99 which enables the Court,
towards the end of the trial of an election petition,
to issue a notice to a person not a party to the
proceeding to show cause why he should not be
'named' is sufficient clarification of the legislative
intent that such person may not be permitted to be
joined as a party to the election petition.
12. There is yet another viewpoint. When in an
election petition in addition to the declaration that
the election of the returned candidate is void a
further declaration is sought that any candidate
other than the returned candidate has been duly
elected, Section 97 enables the returned candidate
or any other party to 'recriminate' i.e. to give
evidence to prove that the election of such
candidate would have been void if he had been a
returned candidate and a petition had been
presented to question his election. If a person who
is not a candidate but against whom allegations of
any corrupt practice are made is joined as a party to
the petition then, by virtue of his position as a party,
he would also be entitled to 'recriminate' under sec.
97. Surely such a construction of the statute would
throw the doors of an election petition wide open
and convert the petition into a 'free for all' fight. A
necessary consequence would be an unending,
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disorderly election dispute with no hope of
achieving the goal contemplated by Sec. 86(6) of
the Act that the trial of the election petition should
be concluded in six months. It is just as well to
remember that 'corrupt practice' as at present
defined by Sec. 123 of the Act is not confined to the
giving of a bribe but extends to the taking of a bribe
too and, therefore, the number of persons who may
be alleged to be guilty of a corrupt practice may
indeed be very large, with the consequence that all
of them may possibly be joined as respondents.
13. In view of the foregoing discussion we are
of the opinion that no one may be joined as a party
to an election petition otherwise than as provided
by Sections 82 and 86(4) of the Act. It follows that
a person who is not a candidate may not be joined
as a respondent to the election petition. The appeal
is therefore, allowed with costs and the names of
the appellants and the seventh respondent in the
appeal are directed to be struck out from the array
of parties in the election petition. We may mention
that in arriving at our conclusion we have also
considered the following decisions cited before
us: S.B. Adityan & Anr. v. S. Kandaswami & Ors.,
AIR 1958 Mad 171; Dwijendra Lal Sen Gupta v.
Harekrishna Konar, AIR 1963 Cal 218; H.R.
Gokhale v. Bharucha Noshir C.AIR 1969 Bom. 177
and S. Iqbal Singh v. S. Gurdas Singh Badal AIR
1973 Punj & Har 163 (FB)".
(Emphasis Supplied)
17. My attention is also drawn to the decision in the case of B.
Sundara Rami Reddy (supra), relevant paragraphs of which read as
under:
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"3. After hearing learned counsel for the
petitioner we do not find any merit in the
petition. Section 82 of the Representation of
the People Act, 1951 specifies the persons who
are required to be joined as respondents to an
election petition. Under this provision the
returned candidate is a necessary party as a
respondent and where relief for a declaration is
claimed that the election petitioner, or any
other candidate be duly elected, all the
contesting candidates are necessary to be
impleaded as respondents to the petition. No
other person or authority except as aforesaid is
required to be impleaded as a respondent to an
election petition under the Act. The Election
Commission of India is therefore not a
necessary party to an election petition.
4. 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
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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 1 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 contemplates joinder of a person or
authority to an election petition on the ground
of proper party. In K. Venkateswara Rao v.
Bekkam Narasinha Reddi, AIR 1969 Supreme
Court 872 this Court while discussing the
application of Order 1 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 V. 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".
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18. The judgment in the case of Mohinder Singh Mohinder
Singh Gill and another Vs. The Chief Election Commissioner, New
Delhi and others, AIR 1978 Supreme Court 851 is altogether on
different aspect and the said ratio cannot be made applicable in the
present set of facts since it was not a ruling under the Election
Petition. Relevant paragraphs read thus;
"14. The wide canvas so spread need not
engage us sensitively, since such diffusion may
weaken concentration on the few essential
points concerned in this case. One such aspect
relates to repoll. Adjournment of the poll at
any polling station in certain emergencies is
sanctioned by section 57 and fresh poll in
specified vitiating contingencies is authorised
by section 58. The rules run into more
particulars. After the votes are cast comes their
counting. Since the simple plurality of votes
clinches the verdict, as the critical moment
approaches, the situation is apt to hot up,
disturbances erupt and destruction of ballots
disrupt. If disturbance or destruction
demolishes the prospect of counting the total
votes, the number secured by each candidate
and the ascertainment of the will of the
majority, a re-poll confined to disrupted
polling stations is provided for. Section 64A
chalks out the conditions for and course of
such repoll, spells out the power, and
repository thereof and provides for kindred
matters. At this stage we may make a closer
study of the provisions regarding repoll
systematically and stagewise arranged in the
Act. It is not the case of either side that a total
repoll of an entire constituency is specificated
in the sections or the rules. Reliance is placed
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for this wider power upon Article 324 of the
Constitution by the Commission in its order,
by the first respondent in his affidavit, by the
learned Additional Solicitor General in his
argument and by the third respondent through
his counsel. We may therefore have to study
the scheme of. Article 324 and the provisions
of the Act together since they are integral to
each other. Indeed, if we may mix metaphors
for emphasis, the legislation made pursuant to
Article 327 and that part of the Constitution
specially devoted to elections must be viewed
as one whole picture, must be heard as an
orchestrated piece and must be interpreted as
one package of provisions regulating perhaps
the most stressful and strategic aspect of
democracy-in-action so dear to the nation and
so essential for its survival.
The lis and the issues
15. Two prefatory points need to be
mentioned as some reference was made to
them at the bar. Firstly, an election dispute is
not like an ordinary lis between private parties.
The entire electorate is vicariously, not inertly,
before the court. MANU/SC/0097/1958: 1959
SCR 611. We may, perhaps, call this species of
cases collective litigation where judicial
activism assures justice to the constituency,
guardians the purity of the system and decides
the rights of the candidates. In this class of
cases, where the common law tradition is
partly departed from, the danger that the
active judge may become, to some extent, the
prisoner of his own prejudices exists; and so,
notwithstanding his powers of initiative, the
parties' role in the formulation of the issues
and in the presentation of evidence and
argument should be substantially maintained
and care has to be taken that the circle does
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not become a vicious one, as pointed out by
J.A. Jolowicz in. 'Public Interest Parties and the
Active Role of the Judge in Civil Litigation' (ss.
p. 276). Therefore, it is essential that courts,
adjudicating upon election controversies, must
play a verily active role, conscious all the time
that every decision rendered by the Judge
transcends private rights and defends the
constituency and the democracy of the
country.
20. Right at the forefront stands in the
way of the appellant's progress the broad-
spectrum ban of Article 329(b)which, it is
claimed for the respondents, is imperative and
goal- oriented. Is this Great Wall of China, set
up as a preliminary bar, so impregnable that it
cannot be by passed even by Art. 226 ?That, in
a sense, is the key question that governs the
fate of this appeal. Shri P. P. Rao for the
appellant contended that, however, wide Art.
329(b)may be, it does not debar proceedings
challenging, not the steps promoting election
but dismantling it, taken by the Commission
without the backing of legality. He also urged
that his client, who had been nearly successful
in the poll and had been deprived of it by an
illegal cancellation by the Commission, would
be left in the cold without any remedy since
the challenge to cancellation of the completed
poll in the entire constituency was not covered
by S.100 of the Act. Many subsidiary pleas also
were put forward but we will focus on the two
inter-related submissions bearing on Article
329(b)and S.100 and search for a solution.
The problem may seem prickly but an
imaginative application of principles and
liberal interpretation of the constitution and
the Act will avoid anomalies and assure justice.
If we may anticipate our view which will
presently be explained, section 100(1 ) (d) (iv)
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of the Act will take care of the, situation
present here, being broad enough, as a residual
provision, to accommodate, in expression
'non-compliance', every excess, transgression,
breach or omission. And the span of the, ban
under Article 329(b)is measured by the sweep
of S. 100 of the Act.
34. This dilemma does not arise in the
wider view we take of s. 100(1) (d) (iv) of the
Act. Sri Rao's attack on the order impugned is
in substance based on alleged non-compliance
with a provision of the Constitution
viz.,Article 324 but is neatly covered by the
widely-worded, residual catch-all clause of
section 100 knowing the supreme significance
of speedy elections in our system the framers
of the Constitution have, by implication,
postponed all election disputes to election
petitions and tribunals. In harmony with this
scheme section 100 of the Act has been
designedly drafted to embrace all conceivable
infirmities which may be urged. To make the
project fool-proof Section 100(1)(d) (iv) has
been added to absolve everything left over.
The Court has in earlier rulings pointed out
that Section 100 is exhaustive of all grievances
regarding an election but what is banned is not
anything whatsoever done or directed by the
Commissioner but everything he does or
directs in furtherance of the election, not
contrary wise. For example, after the President
notifies the nation on the holding of elections
under S. 15 and the Commissioner publishes
the calendar for the poll under Section 30, if
the latter orders returning officers to accept
only one nomination or only those which
come from one party as distinguished from
other parties or independents, is that order
immune from immediate attack. We think not.
Because the Commissioner is preventing an
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election, not promoting it and the courts
review of that order will facilitate the flow, not
stop the stream. Election, wide or narrow be
its connotation, means choice from a possible
plurality monolithic politics not being our
genius or reality, and if that concept is crippled
by the Commissioner's act, he holds no
election at all.
35. A poll is part-a vital part-of the
election but with the end of the poll the whole
election is not over. Ballots have to be
assembled, scrutinised, counted, recount
claims considered and result declared. The
declaration determines the election. The
conduct of the election thus ripens into the
elector's choice only when processed, screened
and sanctified, every escalatory step upto the
formalised finish being unified in purpose,
forward in movement, fair and free in its
temper. Article 329(b) halts judicial
intervention during this period, provided the
act possesses the pre-requisites of 'election' in
its semantic sweep. That is to say, immunity is
conferred only if the act impeached is done for
the apparent object of furthering a free and
fair election and the protective armour drops
down if the act challenged is either unrelated
to. or thwarts or taints the course of the
election.
55. Normally, natural justice involves the
irritating inconvenience for men in authority,
of having to hear both sides since notice and
opportunity are its very marrow. And this
principle is so integral to good government,
the onus is on him who urges exclusion to
make out why. Lord Denning expressed the
paramout policy consideration behind this
rule of public law (while dealing with the
nemo judex aspect) with expressiveness.
"Justice must be rooted in confidence: and
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confidence is destroyed when right-minded
people go away thinking 'the judge was
biased'."We may adapt it to the audi alteram
situation by the altered statement : "Justice
must be felt to be just by the community if
democratic legality is to animate the rule of
law. And if the invisible audience sees a man's
case disposed of unheard, a chorus of 'no-
confidence' will be heard to say, 'that man had
no chance to defend his stance'." That is why
Tuckor LJ in Russol v. Duke of Norfolk(1) (1)
(1949) 1 All E.R. 109 (at 118E) emphasised
that 'whatever standard of natural justice is
adopted, one A, essential is that the person
concerned should have a reasonable
opportunity of presenting his case'. What is
reasonable in given circumstances is 'in the
domain of practicability; not formalised
rigidity. Lord Upjohn in Fernando[1967] 2
A.C 337 observed that 'while great urgency
may rightly limit such opportunity timeously :
perhaps severely there can never be a denial of
that opportunity if the principles of natural
justice are applicable'. It is untenable heresy, in
our view, to look jaw the victim or act behind
his back by tempting invocation of urgency,
unless the clearest case of public injury
flowing from the least delay is self evident.
Even in such cases a remedial hearing as soon
as urgent action has been taken is the next
best. Our objection is not to circumscription
dictated by circumstances, but to annihilation
as an easy escape from a benignant, albeit
inconvenient obligation. The procedural pre-
condition of fair hearing, however minimal,
even post- decisional, has relevance to
administrative and judicial gentlemanliness.
The Election Commission is an institution of
central importance and enjoys far-reaching
powers and the greater the power to affect
others' right or liabilities the more necessary
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the need to hear.
76. We have been told that wherever the
Parliament has intended a hearing it has said so
in the Act and the rules and inferentially where
it has not specificated it is otiose. There is no
such sequitur. The silence of a statute has no
exclusionary effect except where it flows from
necessary implication. Article 324 vests a wide
power and where some direct consequence on
candidates emanates from its exercise, we must
read this functional obligation.
84. A kindred matter viz., the scope of
section 100 and section 90 has to be
examined, parties having expressed anxious
difference on the implied powers of the
Election Court. Indeed, it is a necessary part of
our decision but we may deal with it even
here. Sri Rao's consternation is that, if his writ
petition is dismissed as not maintainable and
his election petition is dismissed on the ground
that the Election Court had no power to
examine the cancellation of poll, now that a
fresh poll has taken place, he will be in the
unhappy position of having to forfeit a near-
victory because a gross illegality triumphs
irremediably. If this were true the hopes of the
rule of law turn into dupes of the people. We
have given careful thought to this tragic
possibility and are convinced indeed, the
learned Solicitor General has argued for
upholding, not subverting the rule of law and
agrees that the Election Court has all the
powers necessary to grant all or any of the
reliefs set out in section 98 and to direct the
Commissioner to take such ancillary steps as
will render complete justice to the appellant".
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19. In so far as ratio in Mohinder Singh Gill's (supra) case is
concerned, an order of Election Commission was challenged
through a Writ Petition and it was not an Election Petition under the
provisions of the Representation of People Act. There is no dispute
with the proposition that a free and fair electoral process is the
foundation of our democracy, but the question for consideration is,
whether by indicating in the Act as to who shall be arrayed as party,
the Court would be justified in allowing some others as parties to an
election petition.
20. In case of Michael B. Fernandes Vs. C.K. Jaffer Sharief and
others, (2002) 3 Supreme Court Cases 521, the Hon'ble Supreme
Court has observed thus:
"We are not in a position to accept the
submission of Mr. Venkataramani inasmuch as
in Gill's case, an order of the Election
Commissioner was under challenge by filing a
writ petition and it was not an election
petition under the provisions of the
Representation of the People Act. There is no
dispute with the proposition that a free and
fair electoral process is the foundation of our
democracy, but the question for consideration
is, whether by indicating in the Act as to who
shall be arrayed as party, the Court would be
justified in allowing some others as parties to
an election petition. For the aforesaid
proposition, Gill's case is no authority. Mr.
Venkataramani then relied upon the decision
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of Calcutta High Court in Dwijendra Lal Sen
Gupta vs. Hare Krishna Konar, A.I.R. 1963
Calcutta 218, where the question came up for
consideration directly and the Calcutta High
Court did observe that the Returning Officer
may nevertheless in an appropriate case be a
"proper party" who may be added as party to
the election petition and undoubtedly, the
aforesaid observation supports the contention
of Mr. Venkararamani. Following the aforesaid
decision, a learned Single Judge of the Bombay
High Court in the case of H.R. Gokhale vs.
Bharucha Noshir C. and Others., A.I.R. 1969
Bombay 177, had also observed that the
observations of Shah, J in Ram Sewak Yadav's
case, AIR 1964 SC 1249 in paragraph (6) is
not intended to lay down that the Returning
Officer can in no event be a proper party to an
election petition. But both these aforesaid
decisions of the Calcutta High Court and
Bombay High Court had been considered by
this Court in Jyoti Basu case and the Court
took the view that the public policy and
legislative wisdom both seem to point to an
interpretation of the provisions of the
Representation of the People Act which does
not permit the joining, as parties, of persons
other than those mentioned in Sections 82 and
86(4). The Court also in paragraph (12)
considered the consequences if persons other
than those mentioned in Section 82 are
permitted to be added as parties and held that
the necessary consequences would be an
unending, disorderly election dispute with no
hope of achieving the goal contemplated by
Section 86(6) of the Act. In the aforesaid
premises, we reiterate the views taken by this
Court in Jyoti Basu's case and reaffirmed in the
latter case in B. Sundara Rami Reddy and we
see no infirmity with the impugned judgment,
requiring our interference under Article 136 of
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the Constitution. This appeal accordingly fails
and is dismissed".
21. In Jyoti Basu's case, the Hon'ble Supreme Court took a view
that Public Policy and legislative wisdom both point to an
interpretation that the provisions of the Representation of the
People Act 1951 does not permit the joining, as parties of persons
other than those mentioned in sections 82 and 86 (4). The view
taken by the Hon'ble Supreme Court in case of Jyoti Basu (supra)
has been reiterated and re-affirmed in case of Michael Fernandes
(supra) as well as in case of Sundara Rami Reddy (supra). Thus, the
ratio in Mohinder Singh Gill's case can be distinguished accordingly.
22. A consistent view been taken by this Court (Coram: R.I.
Chagla, J.) in the case of Aslam Badshahji Sayyed Vs. The Election
Commission of India and others, in Election Petition No.16 of 2019
with Application (L) No.6 of 2019 in Election Petition No.16 of
2019. The same view has also been taken by another Single Bench
(Coram: G.S. Kulkarni, J.) in the case of The Election Commission
of India and another in the matter between Rahul Raghunath Ovhal
Vs. The Election Commission of India in Application (L) NO.3 of
2019 in Election Petition No.9 of 2019 .
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23. Having considered the judgments hereinabove, the legal
position as enumerated in all the decisions, more particularly in the
case of Jyoti Basu (supra) which has further been considered in case
of Sundara Rami Reddy (supra) and Michael Fernandes (supra),
neither Election Commission of India nor Chief Electoral Officer or
Returning Officer can be necessary parties to the Election Petition.
Thus, prayer of the applicant/original respondent No. 2 needs to be
granted.
24. In the light of the observations made hereinabove, following
order is expedient;
:ORDER:
1. The petitioner is directed to effect necessary
amendment in the Petition, thereby, deleting the
names of respondent No.1 -The Election Commission
of India and respondent No.2 - Dr. Rajendra B.
Bhosale - Returning Officer from the array of the
parties with consequential amendments in the body
and prayer of the Petition.
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2. The amendment shall be carried out within a
period of six weeks from the date of passing of this
order.
3. In the circumstances, there is no order as to
costs.
4. Application stands disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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