Holding

Inclusion of parties beyond those required under Section 82 does not make an election petition non‑compliant; such parties may be struck out, whereas omission of a necessary party mandates dismissal under Section 86(1).

Summary

B.S. Yadiyurappa filed an election petition in the Karnataka High Court challenging the election of Mahalingappa and named the other two candidates, the Returning Officer and the District Election Commissioner as respondents. The first respondent and the two officials moved to delete their names and sought dismissal of the petition under Section 86(1) of the Representation of the People Act, 1951, arguing that they were not required parties under Section 82. The High Court dismissed the petition, holding that the inclusion of parties not mentioned in Section 82 made the petition non‑compliant. On appeal, the Supreme Court examined earlier decisions and held that while all parties named in Section 82 must be joined, the addition of extra parties does not invalidate the petition; such parties may be struck out. Consequently, the Supreme Court set aside the High Court order, deleted respondents 4 and 5, and restored the petition for merits hearing. The appeal was allowed.

Issues considered

Does the inclusion of parties not required under Section 82 of the Representation of the People Act, 1951 render an election petition liable to dismissal under Section 86(1)?
Can a court strike out superfluous parties and allow the election petition to proceed?
Is the failure to implead a necessary party under Section 82 a ground for dismissal of the election petition?

Legislation cited

Representation of the People Act, 1951s. 82, s. 86

Subjects

election petitionRepresentation of the People ActSection 82Section 86impleadmentnecessary partiesstriking out partiesKarnataka Legislative Assembly

Judgment

A B.S. YADIYURAPPA
v.
MAHALINGAPPA AND ORS.

OCTOBER 10, 2001

B [S.P. BHARUCHA, Y.K. SABHARWAL AND BRIJESH KUMAR, JJ.]

Representation of People Act, 1951 : Sections 82 and 86.

Election petition-Necessary parties as required under Section 82
impleaded as respondents-,Respondents in excess of requirement of Section
c 82 also impleaded as respondents-Held, such impleadment was not violative •
of Section 82-Dismissal of petition not justm_ed-ln such a case Court can
strike out such a party who is not a necessary party.

The appellant filed an election petition praying that election of first
D respondent be declared void and that he be declared duly elected. To this
eiection petition the Returning Officer and the District Election
Commissioner were also impleaded as respondent Nos. 4 and 5. Respondent
No. 1 filed an application praying that names of respondent Nos. 4 and
5 be deleted from the array of parties and election petition be dismissed
because of their impleadment. High Court allowed the applieation and
E
dismissed the election petition under SectiOn 86(1) of the Represenation
of the People Act, 1951 on the ground that parties other than those
mentioned in Section 82 of the said Act had been impleaded thereto. The
election petitioner filed appeal before this Court.

F Allowing the appeal, the Court
. . .

HELD : Those who .are mentioned in Section 82 of the Representation
of People Act, 1951 must be made parties to an election petition a~d, if
they are not, the election petition is one which does not comply with the
provisions of Section ~2 and must, therefore, be dismissed by reason of
G the terms ofSection 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
H impleaded. The judgment and order under appeal is set aside and the
12
0

B.S. YADIYURAPPA v. MAHALINGAPPA [BHARUCHA, J.] 13
names of respondent Nos. 4 and 5 are deleted from the array of parties A
to the election petition. The election petitiOn is restored to the file of the
High Court of Karnataka to be heard and disposed oi on merits.
(15-C-E)

M<i.rarka Radhey Shyam Ram kumar v. Roop Singh Rathore & Ors.,
[1964]3 SCR 573 and Mohan Raj v. Surendra Kumar Taparia & Ors., [1969] B
1 SCR 630, referred to.

Jyoti Basu & Ors. v. Devi (]hosal & Ors., [1982] 1 SCC 691, explained.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 734 of 2001.
c
From the Judgment and Order dated 3.11.2000 of the Karnataka High
Court in I.A. No. 5 in E.P. No. 16 of 1999.

S.N. Bhat for the appellant.

D.K. Garg and Ashok Kumar Sharma for the Respondent. D

Sanjay R. Hegde and ~atya Mitra for State.

The Judgment of the Court was delivered by .

BHARUCHA, J. The election to the 11th Karnataka Legislative Assembly E
from 167 Shikaripura constituency was held ori 11th September, l999.
Respondent No. 1 was declared elected. The appellant was one of the
candidates at the eiection and he filed an election petition in the High Court
of Karnataka. he prayed therein that the election of the first respondent be
declared void and that he, the appellant, be declared duly elected. To the F
election petition were impleaded the other two contesting candidates, namely,
respondent nos. 2 and 3, and the Returning Officer and the District Election
Commissioner, as respondent nos. 4 and 5. The latter two were impleaded
because of the allegations made against them in the election petition.

Respondent nos. 4 and 5 moved an interim application in the election G
petition praying that their names be deleted from the array of parties thereto.
An application to the same effect· was made by the first respondent; he also
moved an application praying that the election petition be dismissed because
of the impleadment of respondent nos. 4 and 5. By the judgment and order
under chalienge, a learned single Judge of the High Court allowed the latter H
•
14 SUPREME COURT REPORTS [2001) SUPP. 4 S.C.R.
A application. He dismissed the election petition under the provisions of Section
86(1) of the Representation of the People Act, 1951 ("the said Act") because
parties other than thos·e mentioned in Section 82 of the said Act had been
impleaded thereto.

The election petitioner is in appeal.
B
Our attention has been drawn to the judgment of this Court in Marakil
Radhey Shyam Ram Kumar v. Roop Singh Rathore &: Ors., [1964] 3 SCR 573.
A Constitution Bench considered the very situation with which we are now
concerned. It noted that the foundation of the argument before it was that there
c had been non-compliance with the provisions of Section .82. What had
happened there, as here, was this : AHthe parties whom it was necessary to
join under the provisions of Section 82 were joined as i·espondents to the
petition, but other respondents, in excess of tpe.require~ents of Section 82,
were also joined. The question, therefore, was did this amount to non-
compliance with, or contravention of, _the provisions of Section 82. Learned
D
counsel for the appellant in that case wanted the Court to read Section 82 as
though it said that the persons named therein and no others should be joined
as respondents to the petition. He wanted the Court to add "and no others"
to the Section. The Court found no warrant for such a reading of S~ction 82.
It held that if all the necessary parties had been joined to the election petition,
E the circumstance that a person who was not ~ necessary party had also been
impleaded did not amount to a breach of provisions of Section 82 and no
question of dismissing the election petitio!J'~ose. It was open to the Tribunal .
(or, here, the Court) to strike out the name of the party who was not a necessary
party within the meaning of Section 82. The position, it was noted, would be
F different if a person who was required to be joined as a necessary party under
Section 82 was not impleaded as a party to the petition.

This judgment in Marakil Radhey Shyam Ram Ku'inar was not noticed
by the learned Single Judge in the judgment under challenge but was
distinguished on the ground that it was confined to its own facts. We find it .
G difficult to agree. This is not a judgment that is confined to its own facts but
is an elucidation of the law set out in Section 82 of the said Act.

In Mohan Raj v. Surendra Kumar Taparia & Ors., [1969) 1 SCR 630
the same position was reiterated. It was held that in an election petition the
H court can strike out a party who is not necessary but, by reason of the provisions
B.S. YADIYURAPPA v. MAHALINGAPPA [BHARUCHA, J.] 1.5
of the said Act, the power of impleadment, cannot be used if a necessary party A
has not been joined.

. In Jyoti Basu & Ors. v. Debi Ghosal & Ors., [1982] 1 SCC 691, this
Court dealt with Section 82 of the said Act, and it is this judgment which the
1 High Court principally relied upon. The ratio of this judgment, is that a person
'
who is not a candidate cannot be joined as a respondent to an election petition. B
The High Court, however; failed ro notice that, having so held, this Court
ordered the deletion of the superfluous party from the array of parties.

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
c
with the provisions of Section 82 and mµst, therefore, be dismissed by reason
of the terms of Section 86( 1). It does not, however, follow that if to an election
patition parties other ~!:ian 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 , D
amended by striking out from the array of parties those additionally impleaded.

The appeal is, accordingly, allowed. The judgment, and order under
appeal is set aside. The names of respondent nos. 4 and 5 are deleted from
the array of parties to the election petition. The election petition (No. 16 of
1999) is restored to the file of the High Court of Karnataka to be heard and
E
,, disposed of on merits. Having regard .to the time that has elapsed, this shall
be done very expeditiously.

No order as to costs.

T.N.A.
F
Appeal allowed.

- j.