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Smart Summary

Summary of Court Opinion — Election Petition concerning Ichhalkaranji Constituency No. 278 (1995)

Factual and Procedural Background

The petition concerns the election to the Maharashtra Legislative Assembly for Ichhalkaranji Constituency No. 278 held in February 1995. At the admission stage it was found that although seven candidates contested that election (the petitioner being one and the returned candidate another), the petitioner had joined only the returned candidate as party respondent. The remaining five contesting candidates were not made parties to the petition.

Because the petition, in paragraph 33(b), sought a declaration that the petitioner be declared duly elected, Section 82 of the Representation of the People Act, 1951 required that all other contesting candidates be joined. The petitioner requested permission to delete paragraph 33(b) (the prayer for a declaration of being duly elected) so as to avoid the consequences of non-joinder. The Court issued notice, heard counsel for the parties, considered authorities and statutory provisions, refused the deletion request, and dismissed the petition for non-compliance with Section 82 read with mandatory dismissal under Section 86 of the Act. The dismissal was made with no order as to costs, and administrative directions were given to inform the Election Commission and the Speaker, and to expedite issuance of certified copies.

Legal Issues Presented

  1. Whether a petitioner in an election petition can be permitted to withdraw or abandon a particular relief (specifically, the prayer for a declaration that the petitioner is duly elected) after presentation of the petition, in order to avoid the statutory consequences of non-joinder of necessary parties under Section 82 of the Representation of the People Act, 1951.
  2. Whether provisions of the Code of Civil Procedure (such as Order 6, Rule 17; Order 1, Rule 10; or Order 23, Rule 1) can be invoked to amend an election petition or strike out parties so as to cure non-joinder and thereby prevent mandatory dismissal under Section 86 of the Act.
  3. Whether the Court has any power to permit deletion or withdrawal of a portion of relief in an election petition that, as presented, renders the petition liable to dismissal under the Act.

Arguments of the Parties

Petitioner's Arguments (as presented)

  • The petitioner (through Mr. Kudle, counsel) sought permission to delete paragraph 33(b) of the petition (the prayer declaring the petitioner duly elected) so that the petition would not be subject to the dismissal consequences of non-joinder under Section 82 and Section 86 of the Representation of the People Act.
  • To support that request, the petitioner relied upon a Division Bench decision of the Nagpur High Court: Mahadeo Murlidhar v. Jwalaprasad Mishra (AIR 1954 Nag 26), argued as authority that an election petitioner can withdraw a particular relief to escape the strict consequences of the election law.
  • Additional judgments cited by the petitioner in support were: Jagan Nath v. Jaswant Singh & Others (AIR 1954 SC 210); Amin Lal v. Hunna Mal (AIR 1965 SC 1243); Sethi Roop Lal v. Malti Thaper ((1994) 2 SCC 579); and F.A. Sapa v. Singora ((1991) 3 SCC 375 : AIR 1991 SC 1557).

Respondent's / Opposing Arguments (as presented)

  • On behalf of the returned candidate (Mr. Bobde, counsel), it was argued that the Election Tribunal or the High Court has no power to permit withdrawal or abandonment of a relief which, as it stands on the petition, would entail dismissal of the petition under the Act.
  • To support this position, the respondent relied on several Supreme Court authorities, most prominently Mohan Raj v. Surendra Kumar Taparia (AIR 1969 SC 677) and K. Kamaraja Nadar v. Kunju Thevar (AIR 1958 SC 687), and the related authority Mallappa Basappa v. Basavraj Ayyappa (AIR 1958 SC 698). These were cited for the proposition that provisions of the Civil Procedure Code cannot be used to avoid the statutory consequence of dismissal for non-joinder when the Act itself prescribes that penalty.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mahadeo Murlidhar v. Jwalaprasad Mishra, AIR 1954 Nag 26 Cited by petitioner as authority that an election petitioner can withdraw a particular relief to escape the rigours of election law. The Court noted the petitioner relied on this Nagpur High Court Division Bench decision and, because that view had been expressed after hearing the other side, issued notice to the respondent to consider the deletion request. Ultimately the Court did not accept this as sufficient to permit deletion in the present circumstances.
Mohan Raj v. Surendra Kumar Taparia, AIR 1969 SC 677 Establishes that the Code of Civil Procedure (Order 6, Rule 17; Order 1, Rule 10) cannot be used to avoid the consequences of non-joinder where the Representation of the People Act prescribes dismissal. The Court relied on the Supreme Court's reasoning that CPC powers of amendment/striking out cannot be used as curative means to save an election petition when the Act makes non-joinder a ground for mandatory dismissal; this authority strongly weighed against permitting deletion of the prayer in para 33(b).
K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 Support for the proposition that the Election Tribunal has no power to allow amendment by deleting the declaration prayer so as to cure non-joinder; reference made to related Supreme Court treatment of the issue. The Court treated this decision as confirming that the question of applicability of Section 86 must be examined at presentation and that subsequent amendment or withdrawal to cure non-joinder is not permissible; it reinforced the conclusion to reject the deletion request.
Mallappa Basappa v. Basavraj Ayyappa, AIR 1958 SC 698 (Civil Appeal No. 76 of 1958) Discussed in K. Kamaraja Nadar as authority on the limits of amendment/withdrawal in election petitions; supports that Election Commission/Tribunal cannot permit withdrawal of a part of claim that would otherwise attract dismissal. The Court referenced this judgment as a foundational Supreme Court authority (via Kamaraja Nadar) establishing that withdrawal/abandonment to avoid Section 82/86 consequences is not permissible.
Jagan Nath v. Jaswant Singh & Others, AIR 1954 SC 210 Cited by the petitioner in support of the request to delete/withdraw part of the claim (as a potentially relevant authority). The Court observed that after review, none of the decisions cited by the petitioner (including this one) laid down any proposition contrary to the Supreme Court authorities relied upon by the respondent; thus it did not treat this precedent as permitting the requested deletion.
Amin Lal v. Hunna Mal, AIR 1965 SC 1243 Cited by the petitioner as supportive authority for amendment/withdrawal arguments. The Court concluded this judgment did not lay down a proposition contrary to the binding Supreme Court authorities relied upon by the respondent and therefore did not support permitting deletion.
Sethi Roop Lal v. Malti Thaper (Mrs.), (1994) 2 SCC 579 Cited by the petitioner among other authorities in support of his request. The Court found that this authority did not establish a rule contrary to the three principal Supreme Court decisions advanced by the respondent and therefore was not persuasive to allow deletion.
F.A. Sapa v. Singora, (1991) 3 SCC 375 : AIR 1991 SC 1557 Cited by the petitioner as an authority potentially relevant to amendment/withdrawal. The Court concluded this decision did not conflict with the Supreme Court authorities relied on by the respondent and therefore did not justify permitting the deletion.

Court's Reasoning and Analysis

The Court's reasoning proceeded by reference to the statutory scheme and binding authorities. At the admission stage the Court found that the petition, as presented, sought not only a declaration that the election of the returned candidate was void but also a declaration that the petitioner was duly elected (paragraph 33(b)). Under Section 82 of the Representation of the People Act, 1951 all contesting candidates other than the petitioner must be joined where such a declaration of being duly elected is sought. Section 86 of the Act prescribes mandatory dismissal where Section 82 is not complied with.

The petitioner sought to avoid dismissal by asking permission to delete paragraph 33(b). The Court examined whether procedural powers under the Code of Civil Procedure (Order 6, Rule 17; Order 1, Rule 10; Order 23, Rule 1) could be used to amend the petition or strike out parties to cure the non-joinder. The Court relied on binding Supreme Court precedents (notably Mohan Raj v. Surendra Kumar Taparia and K. Kamaraja Nadar v. Kunju Thevar, with reference to Mallappa Basappa v. Basavraj Ayyappa) which hold that the Civil Procedure Code cannot be used as a curative device to avoid the consequences specifically prescribed by the Representation of the People Act, i.e., mandatory dismissal for non-joinder.

The Court also considered the decisions cited by the petitioner and concluded that none of them established any proposition contrary to the Supreme Court authorities relied upon by the respondent. On that basis the Court held it had no power, given the statutory framework and the binding precedents, to permit deletion of paragraph 33(b) so as to save the petition from dismissal.

Applying this legal conclusion to the undisputed facts (that five other contesting candidates were not joined and the declaration in para 33(b) remained in the petition), the Court determined that Section 86 required dismissal of the election petition. The Court therefore rejected the deletion request and dismissed the petition.

Holding and Implications

Holding: The Court's operative ruling was that the election petition is DISMISSED.

Immediate consequences and directions:

  • The petition is dismissed for non-compliance with Section 82 read with mandatory dismissal under Section 86 of the Representation of the People Act, 1951.
  • The dismissal was ordered with no order as to costs.
  • The Court directed that the Election Commission and the Speaker of the State Legislature be informed and a copy of the order be sent in terms of Section 103 of the Act read with Rule 19 of the High Court Original Side Rules, 1980.
  • Issuance of the certified copy of the order was to be expedited.

Broader precedent implications: The opinion applies and follows existing Supreme Court authorities on the point that Civil Procedure Code provisions cannot be used to circumvent the mandatory consequences of the Representation of the People Act. The judgment does not purport to lay down a novel legal principle beyond applying those authorities to the facts at hand.

Final line from the order: Petition dismissed.

Show full summary ...

    Comrade Kallappa Laxman Malabade v. Prakash Kallappa Awade .

    In this matter, earlier when it was taken up for admission, it was found that the petitioner has joined, as party respondent to the petition, only the returned candidate, whereas as a matter of fact at the election to the Maharashtra Legislative Assembly for Ichhalkaranji Constituency No. 278 held in February, 1995 which is the subject-matter of this petition, in all 7 persons contested. The petitioner was one of them and the returned candidate was the other of them. The remaining five candidates have not been joined as parties to this petition.

    2. Prima facie, at the admission stage of the petition, it appeared that by virtue of Section 86 of the Representation of the People Act, 1951 (for short “the Act”), the Court was obliged to dismiss the petition for Section 82 of the Act required the petitioner to join to this petition as parties, all contesting candidates other than the petitioners, in view of the fact that the petitioner, in addition to claiming a declaration that the election of the returned candidate is void, has also claimed a further declaration that he be declared as duly elected. That being the clear position, the petitioner through his learned counsel made a request that he be permitted to delete the prayer contained in paragraph 33(b) of the petition by which the petitioner also prayed for a declaration that he is duly elected.

    3. In support of this request, Mr. Kudle, the learned counsel for the petitioner relied upon a decision of a Division Bench of Nagpur High Court in the case of Mahadeo Murlidhar v. Jwalaprasad Mishra, reported in AIR 1954 Nag 26, to support the argument that in an election petition, the election petitioner can withdraw a particular relief in order to get out of the rigours of the provisions of the election law. That view was expressed by Nagpur High Court, of course, after hearing the other side. Therefore, it was thought fit to issue a notice to the respondent on the question whether the petitioner should be permitted to withdraw the relief contained in clause (b) of paragraph 33 of the Election Petition. In response to the notice, the respondent has entered appearance. I have heard Mr. Bobde, the learned counsel appearing for Mr. Ingle and Mr. Patil for the respondent. Mr. Bobde drew my attention to the certain Supreme Court judgments which clearly posit that the Election Tribunal, and for that matter, even the High Court hearing election petition would have no power to permit the withdrawal or abandonment of a relief, which, as it stands, on the petition, would entail the dismissal of the petition. Mr. Bobde, firstly, relied upon a decision in the case of Mohan Raj v. Surendra Kumar Taparia, reported in AIR 1969 SC 677. In that case, along with the other candidates at the election, one Mr. R.D Periwal was also a person who had filed his nomination. Ofcourse, later on, he had withdrawn his nomination. However, he acted as an Election Agent of the returned candidate. In the Election Petition that came to be filed, this R.D Periwal had not been joined as party respondent though, of course certain allegations of corrupt practices were made against Periwal to the effect that he, as the election agent of the returned candidate had indulged in certain corrupt practices. On behalf of the returned candidate, it was canvassed that the petition was liable to be dismissed. At that stage, on behalf of the petitioner, the allegations of corrupt practices levelled against Periwal as also the references to his name in the petition were sought to be withdrawn, and in that context, their Lordships of the Supreme Court considered the applicability of Order 6, Rule 17 and Order 1, Rule 10 of the Code of Civil Procedure to the election petition under the Act. On behalf of the petitioner, it was submitted that by Order 6, Rule 17 and Order 1, Rule 10 of the Code of Civil Procedure, the High Court had power to permit an amendment and to strike out parties, and in that case, that power should have been exercised. Negativing that argument, the Supreme Court posited as follows (para 10 of AIR):

    “No doubt the power of amendment is preserved to the Court and O. 1, R. 10 enables the Court to strike out parties but the Court cannot use O. 6, R. 17 or O. 1, R. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The Court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder. When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.”

    4. The aforesaid holding of the Supreme Court leaves no room for doubt that the provisions of the Code of Civil Procedure could not be resorted to in order to save a petition which otherwise is liable to be dismissed for non-joinder of the parties, which Section 82 of the Act says must be joined.

    5. In the present case, as indicated hereinabove, besides the petitioner and the respondent there were 5 others in the fray. There were in all 7 contesting candidates. In view of the prayer in para 33(b) of the petition, Section 82 of the Act mandates that, all of them should have been joined in the petition, at the time when it was instituted, and by virtue of Section 86 of the Act, the Court has no option but to dismiss a petition which does not comply with the requirements of Section 82 of the Act. If the provisions of Code of Civil Procedure, viz., Order 6, Rule 17 or even Order 23, Rule 1 are permitted to be resorted to with a view to save the petition from being dismissed, which otherwise is liable to be dismissed, that would be using the provisions of the Code of Civil Procedure solely with a view to defeating the provisions of the Act. In other words, such an exercise would be exercise in fraud on the provisions of the Act. I do not think detailed discussion is needed in the order to say that none of the provisions of the Code of Civil Procedure could be invoked with a view to defeating the provisions of the Act.

    6. Mr. Bobde further buttressed his argument by relying upon a decision in the case of K. Kamaraja Nadar v. Kunju Thevar, reported in AIR 1958 SC 687. In paragraph 33 of that report, this is what their Lordships have observed:

    “As regards the amendment of a petition by deleting the averments and the prayer regarding the declaration that either the petitioner or any other candidate has been duly elected, so as to cure the defect of non-joinder of the necessary parties as respondents, we may only refer to our judgment about to be delivered in Mallappa Basappa v. Basavraj Ayyappa, Civil Appeal No. 76 of 1958: (AIR 1958 SC 698) where the question is discussed at considerable length. Suffice it to say here that the Election Tribunal has no power to grant such an amendment be it by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commission claiming such further declaration.”

    7. This decision makes it clear that the Court has to examine the question of applicability of Section 86 of the Act at the time Election Petition is presented to the Court, and if the Election Petition presented to the Court, is liable to be dismissed on account of non-compliance of Section 82 of the Act, no amount of subsequent exercise either by resorting to provisions of the Code of Civil Procedure or otherwise can save the petition from being dismissed. This case of K. Kamaraja Nadar v. Kunju Thevar, (AIR 1958 SC 687) (supra) puts beyond the pale of doubt the position that the petitioner cannot be allowed to delete any prayer in the petition with a view to avoid the consequences following from Section 86 of the Act. In that case, their Lordships have made a reference to the decision in the case of Mallappa Basappa v. Basavraj Ayyappa, Civil Appeal No. 76 of 1958, AIR 1958 SC 698. That judgment also holds that there is no power in the Election Commission to allow a petitioner to withdraw or abandon a part of his claim either by having resort to the provisions of Order 23, Rule 1 of the Code of Civil Procedure or otherwise.

    8. The aforesaid three judgments relied upon by Mr. Bobde clearly posit that the petitioner cannot be permitted to save his petition by withdrawing or abandoning the relief about declaration that he is duly elected.

    9. Mr. Kudle, the learned counsel for the petitioner, in his turn, relied upon the following judgments;

    (i) Jagan Nath v. Jaswant Singh & Others, reported in AIR 1954 SC 210;

    (ii) Amin Lal v. Hunna Mal, reported in AIR 1965 SC 1243;

    (iii) Sethi Roop Lal v. Malti Thaper (Mrs.), reported in (1994) 2 SCC 579; and

    (iv) F.A Sapa v. Singora, reported in (1991) 3 SCC 375 : ((1991) 3 SCC 375 : AIR 1991 SC 1557).

    After having gone through those judgments, I do not think any of them lay down a proposition of law, even remotely contrary to what emerges from three judgments relied upon by Mr. Bobde to which I have made a reference hereinabove.

    10. Having heard the counsel on both sides at some length, I think the request made on behalf of the petitioner that he be permitted to withdraw or abandon the relief contained in paragraph 33(b) of the Election Petition cannot be granted for the Court has no power to grant such a request in view of the facts of the case and the law applicable. That request for deletion of the prayer contained in paragraph 33(b) of the Petition is rejected.

    11. I have just now rejected the request of the petitioner to permit him to withdraw or abandon the prayer contained in paragraph 33(b) of the petition, viz. that it be declared that he is duly elected as a member of the Legislative Assembly from Ichhalkaranji Constituency No. 278, District Kolhapur. That prayer, therefore, stands as it is. As the petitioner has not joined the remaining five contesting candidates, there is non-compliance of the provisions of Section 82 of the Act. Section 86 of the Act, therefore, requires this Court to dismiss this petition. The Election Petition is, therefore, dismissed, with no order as to costs.

    12. The Election Commission and the Speaker of the State Legislature may be informed and copy of the order be sent in terms of Section 103 of the Act read with Rule 19 of the High Court Original Side Rules, 1980.

    13. Issuance of certified copy be expedited.

    Petition dismissed.
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    Comments

    Comrade Kallappa Laxman Malabade v. Prakash Kallappa Awade .
    (Jul 7, 1995)