Delhi High Court
Sanjay Gupta & Anr. vs Election Commission Of India & ... on 20 August, 2019
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 09.08.2019
% Judgment Pronounced on: 20.08.2019
+ EL.PET. 4/2019
SANJAY GUPTA & ANR. ..... Petitioner
Through Mr.Anil K. Aggarwal and Prof.Madan
Mohan, Advs.
versus
ELECTION COMMISSION OF INDIA & ORS. ..... Respondents
Through Mr.Sidhant Kumar, Adv. for R-1.
Mr.P.R.Chopra, Adv. for R-
2/Returning Officer.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.
IA No. 10001/2019
1. This application is filed by respondents No.1 and 2 under Order 1
Rule 10 CPC read with section 82 of the Representation of People Act, 1951
for striking out the names of the applicants/respondents No.1 and 2 i.e. the
Election Commission of India and The Returning Officer, West Delhi 06
Parliamentary Constituency from the array of parties.
2. The present petition is filed by the petitioner under section 80A of The
Representation of People Act, 1951 seeking to set aside the entire process
and conduct of elections by respondents No.1 and 2 for the West Delhi
Parliamentary Constituency in the NCT of Delhi as null and void and the
election result of the said constituency declared by respondent No.1 be set
aside, quashed and be declared null and void.
3. Some of the salient facts as stated in the present petition are that
respondent No.1/Election Commission of India on 16.4.2019 issued a
notification under section 14 of The Representation of the People Act, 1951.
On 23.4.2019, the petitioner No.1 filed/submitted his nomination paper from
the West Delhi Parliamentary Constituency of NCT of Delhi as a candidate
set up by the Shiv Sena Party. It is stated that on 24.4.2019 the day fixed for
scrutiny of nomination papers the Returning Officer summarily rejected the
nomination paper filed by the petitioner No.1 solely on the ground that the
nomination paper is subscribed by only one proposer.
4. The present application is filed by respondents No.1 and 2 relying
upon section 82 of The Representation of People Act, 1951 to state that the p
arties who were to be impleaded are clearly stipulated in the said provision.
The provision does not provide for impleadment of respondents No.1 and 2
as respondents.
5. I have heard learned counsel for the parties. Learned counsel for the
applicant/respondent No.1 has relied upon judgment of the Supreme Court in
B.Sundara Rami Reddy vs. Election Commission of India and Others,
1991 Supp (2) 624 and the case of Jyoti Basu and Others vs. Debi Ghosal
and Others, (1982) 1 SCC 691 to support his contention that in terms of
section 82 of The Representation of People Act, 1951 respondents No.1 and
2 are not necessary parties and have to be deleted from the array of parties.
6. Learned counsel appearing for the petitioner has, however, opposed
the said submission. He has relied upon the judgment of the Supreme Court
in B.S.Yadiyurappa vs. Mahalingappa and Ors., AIR 2001 SC 4041 and
also the case of the Supreme Court in Mohinder Singh Gill and Ors. Vs.
The Chief Election Commissioner, New Delhi, AIR 1978 SC 851. He states
that his basic grievance is that it was respondent No.2 who had wrongly and
illegally rejected his nomination papers. The effect of deleting respondents
No.1 and 2 would be that they would go scot free though the petitioner has
suffered on account of their conduct. He further states that the Supreme
Court in the case of Mohinder Singh Gill and Ors. Vs. The Chief Election
Commissioner, New Delhi (supra) held that only Election Petition lies to
question the result of an election and no Writ Petition would lie. Hence, he
states that the said respondents No.1 and 2 only want to go scot free.
7. Section 82 of The Representation of People Act, 1951 reads as
follows:-
"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."
8. Hence, in terms of the above section the necessary parties to the
Election Petition have been duly stated. Reference may be had to the
judgment of the Supreme Court in B.Sundara Rami Reddy vs. Election
Commission of India and Others,(supra).
9. In that case the Election Petition was filed challenging the validity of
the order of the Election Commission declaring the polling at a particular
polling station as void and direct re-poll at that polling station. In that
petition Election Commission of India was impleaded as one of the
respondents. The Commission made an application before the High Court for
being deleted from the array of parties on the ground that it was not a
necessary party. On those facts the Supreme Court on the issue of
impleadment of parties to an Election Petition held as follows:-
"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
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: (1969) 1 SCR 679] , 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 v. Debi Ghosal [(1982) 1 SCC
691: (1982) 3 SCR 318] , this Court held that the concept of
„proper party‟ is and 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."
10. Clearly, in terms of the above noted judgment, no authority including
the Election Commission of India is a necessary party to an Election
Petition. This is so even where an act of the said Commission has been
challenged. The aforesaid judgment clearly applies to the facts of this case.
11. The only plea raised by the petitioner is that he seeks to impugn the
act of respondent No.2 in rejecting his nomination paper. It is clear from a
reading of section 82 of The Representation of People Act, 1951 and the
above judgment of the Supreme Court that this plea would not entitle the
petitioner to implead respondents No.1 and 2 as a party.
12. I may also look at the judgments relied upon by learned counsel for
the petitioner. In B.S.Yadiyurappa vs. Mahalingappa and Ors. (supra) the
Supreme Court held as follows:-
"8. It is, therefore, clear, on the authorities of this Court, that
those who are mentioned in Section 82 of the said Act must
be made parties to an election petition and, if they are not, the
election petition is one which does not comply with the
provisions of Section 82 and must, therefore, be dismissed by
reason of the terms of Section 86(1). It does not, however,
follow that if to an election petition parties other than those
who are necessary parties under Section 82 have been
impleaded, the election petition is one that does not comply
with the provisions of Section 82 and must be dismissed.
Such a petition can be amended by striking out from the array
of parties those additionally impleaded."
13. The aforesaid judgment does not help the case of the petitioners to
explain their submission regarding impleadment of the applicants. However,
clearly this court would have powers to strike out such wrong parties from
the array of parties.
14. The other judgment relied upon by learned counsel for the petitioner is
the judgment in the case of Mohinder Singh Gill and Ors. Vs. The Chief
Election Commissioner, New Delhi (supra). In that case the Supreme Court
held as follows:-
"135. The above being the legal position, Article 329(b) rules
out the maintainability of the writ application. Article 329(b)
provides that notwithstanding anything in this Constitution: no
election to either house of Parliament shall be called in
question except by an election petition presented to such
Authority and In such 'manner as may be provided for by or
under any law made by the appropriate Legislature." It is
undisputed that an election can be challenged only under the
provisions of the Act. Indeed Section 80 of the Act provides,
that no election shall be called in question except by an
election petition presented in accordance with the provisions
of Part VI of the Act' We find that all the substantial reliefs'
which 'the appellants seek ' in the writ application? including
the declaration" of 'the election to "be void and the declaration
of appellant No. 1 to be duly elected, can be claimed in the
election petition. 'It will be within the power of the High
Court, as the election court, to give all appropriate reliefs to do
complete justice between the parties. In doing so it will be
open to the High Court to pass any ancillary or consequential
order to enable it to "grant the necessary relief provided under
the Act. The writ application is" therefore barred under Article
329(b) of the Constitution and the High Court rightly
dismissed it on that ground."
15. Learned counsel for the petitioner has not been able to show how the
above judgment helps the case of the petitioner, namely, that the Election
Commission of India and its functionaries are proper parties to this petition.
16. There is clearly no merit in the submissions of learned counsel for the
petitioners.
17. In view of the above, application is allowed. Respondents No.1 and 2
are deleted from the array of parties.
(JAYANT NATH)
JUDGE
AUGUST 20, 2019/n
