Holding

An election petition may join only the returned candidate and any candidate against whom corrupt practice is alleged, as specified in Section 82 (and 86(4)) of the Representation of the People Act, 1951; other persons cannot be made respondents.

Summary

The appellant filed an election petition challenging the election of respondent No.1 to the Lok Sabha and impleaded the Election Commissioner, Returning Officer and Chief Electoral Officer as respondents. The High Court ordered their deletion, holding that Section 82 of the Representation of the People Act, 1951 limits parties to the returned candidate and any candidate against whom corrupt practice is alleged, and that other officials cannot be joined. The appellant contended that the officials should be parties because of alleged violations of election rules and the conduct of the election. The Supreme Court examined the statutory scheme, relying on Jyoti Basu v. Debi Ghosal and B. Sundara Rami Reddy v. Election Commission, and affirmed that only persons named in Sections 82 and 86(4) may be respondents; the concept of "proper party" is alien to election petitions. Consequently, the Court dismissed the appeal, confirming the High Court's order of deletion.

Issues considered

Whether persons other than those enumerated in Section 82 (and 86(4)) of the Representation of the People Act, 1951 can be joined as respondents in an election petition.
Whether the Election Commissioner, Returning Officer and Chief Electoral Officer may be added as parties to the petition despite not being named in the statute.

Legislation cited

Representation of the People Act, 1951s. 100, s. 101, s. 116A, s. 61, s. 61A, s. 66, s. 67, s. 79, s. 80, s. 81, s. 82, s. 83, s. 86, s. 87

Subjects

Election petitionRepresentation of the People ActSection 82Party respondentsElection lawDeletion of respondentsSupreme Court

Judgment

MICHAEL B. FERNANDES A
V.

C.K. JAFFER SHARIEF AND ORS .
.....
FEBRUARY 14, 2001

[G.B. PATTANAIK, S.N. PHUKAN AND S.N. VARIAVA, JJ.] B

Election Law:

Representation of the People Act, 1951:
c
Section 82- -Parties to the Election Petition-Held: the returned candidate
and the candidate against whom allegations of corrupt practice have been
made are only to be joined as party respondents- However, if any other
candidates is sought to be declared as duly elected then all the contesting
candidates are required to be made party respondents-Hence, an election
petition which does not make the persons enumerated in S.82 as party D
respondents is liable to be dismissed.

The appellant had filed an election petition before the High Court
challenging the validity of the election of respondent No. l to the House of
People. In the election petition the Election Commissioner, the Returning
E
Officer and Chief Electoral Officer of the State were arrayed as respondents.
These respondents filed an application before the High Court for their
deletion, inter alia, on the ground that under Section 82 of the Representation
of the People Act, 1951 it has been clearly indicated that who should be the
parties to an election petition and since they have been unnecessarily
impleaded, they should be deleted. The High Court allowed the application. F
Hence this appeal.

Dismissing the appeal, the Court

HELD : 1. On a plain reading of Section 82 of the Representation of
the People Act, 1951 which indicates as to the person who can be joined as a G
respondent to an election petition, it is clear that the returned candidate and
the ca11didate against whom allegations of any corrupt practice have been
made are to be joined as party respondents. When declaration is sought for
" holding the election of the returned candidate to be void and when a prayer
is made as to any other candidate to be declared to be duly elected, then all
1053
H
1054 SUPREME COURT REPORTS [2002] I S.C.R.

A the contesting c:andidates are required to be made party respondents.
Therefore, an election petition, which does not make the persons enumerated
in Section 82 of the Act as party respondents, is liable to be dismissed.
(1057-E-F)

Jyoti Basu v. Debi Ghosa/, (1982) 1SCC691 and B. Sundara Rami Reddy
B v. Election Commission of India, [1991) Supp. 2 sec 624, relied on.
In Re: MS. Gill, [1978) 2 SCR 272, held inapplicable.
2.1. 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
C in Sections 82 and 86(4) of the Act. [1059-E)

2.2. The necessary consequences if persons other than those mentioned
in Section 82 are permitted to be added as parties would be an unending,
disorderly election dispute with no hope of achieving the goal contemplated

D
by Section 86(6) of the Act. [1059-F)
Jyoti Basu v. DebiGhosal, (1982) 1SCC691 and B. Sundara Rami Reddy
v. Election Commission of India, [1991) Supp. 2 SCC 24, relied on.
-
Dwijendra Lal Sengupta v. Hare Krishna Konar, AIR (1963) Cal 218; HR.
Gokhale v. Bharucha Noshir C., AIR (1969) Bom 177 and Ram Sewak Yadav In
E Re: AIR (1964) SC 1249, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1310 of
2001.
From the Judgment and Order dated 16.2.200 I of the Karnataka High
Court in E.P. No. 29 of i 999.
F R. Venkataramani and Kailash Vasdev Vimal Chandra S. Dave, S.N.
Singh, Neelam Kalsi, Rahul Singh, Gopal Singh, S. Muralidhar, S.K.
Mendiratta and N. Ganapathy for the appearing parties.

The Judgment of the Court was delivered by
G PATIANAIK, J. This appeal is directed against the Order dated 16th
June, 2000, passed in Election Petition No. 29 of 1999. The aforesaid Election
Petition had been filed by the appellant, challenging the validity of the election
to the House of People from the Bangalore North Parliamentary Constituency,
in which election, respondent No. I was declared to have been elected. In the
election petition, the Election Commissioner, the Returning Officer and the
H Chief Electoral Officer of the State of Karnataka had been arrayed as
\

MICHAEL B. FERNANOES v. C.K. JAFFER SHARIEF [PATTANAIK, J.] I 055

respondents 6, 7 and 8. Those respondents filed an application before the A
High Court of Kamataka for their deletion inter alia on the ground that under
Section 82 of the Representation of the People Act, it has been clearly indicated
that who should be the parties to an election petition and since they have
been unnecessarily unpleaded, they should be deleted. The High Court by the
impugned judgment having delt:ted the said respondents 6, 7 and 8 from the B
array of parties, the present appeal has been preferred.

Mr. R. Venkataramani, the learned senior counsel appearing for the
appellant contended that th" election petition having been filed, challenging
the validity of the election of respondent No. I, on the grounds contained in
Section IOO(l)(d}(iii)(iv) and non-compliance with the provisions of the C
Constitution and the Rules by the election machinery having been alleged,
respondents 7 and 8 at least ought to have been held to be proper parties and
there could not have been an order of deletion. According to the learned
counsel, these respondents 7 and 8 having falied to conform to the mandatory
guidelines enactt:d by the Election Commission of India, as contained in the
hand book of the Returning Officer and those guidelines being treated as an D
integral part of the rules as well as Article 324 of the Constitution, respondents
7 and 8 became proper parties to the election petition, in view of the nanire
of allegations pertaining to their official conduct. That being the po~ition, the
learned Single Judge, "'ho was in session of the matter, erroneously deleted
the said respondents 7 and 8. Mr. Yenkataramani however seriously does not E
challenge the order of ddetion, so far as respondent No. 6 is concerned.

Mr. S. Muralidhar, the learned counsd appearing for the Election
Commission, on the other hand submitted that the question of parties to an
election petition is concluded by two earlier decisions of this Court in the
case of Jyoti Basu and Ors. v. Debi Cihosal and Or.1 . [ l 982 J l SCC 691 and F
8, Sundara Rami Reddy v. Eleclinn Commission uf India and Ors., [ 1991)
Supp. 2 SCC 624 and therefore. the Hii!h rourt wa~ wholly justified in
directing the deletion of those respondents trum the array of parties and by
such deletion, there has been no illegality requiring interference by this Court.
Mr. Muralidhar, further contended that the Representation of the People Act G
being a full code by itself, prescribing the procedure to be followed and
indicating the parties to be arrayed to an election petition and respondents 7
and 8, not coming within the ambit of the said provision, the High Court
rightly deleted them and that order need not be interfered with by thi.~ Court.
The learned counsel lastly urged that in view of the nature of allegation~
made, the person making those allegations is required to prove th.: same and H
I

1056 SUPREME COURT REPORTS (2002] I S.C.R.

A therefore, there is no justifiable reason, why the Election Officer or the
Returning Officer should be permitted to be added as a party to the election
petition.
Jn order·to examine the correctness of the rival submissions, it would
be necessary for us to have a bird's eye view of the relevant provisions of
B the Act and the different case laws on the point. But one thing must be borne
in mind that in the case in hand, the allegations made were in relation to the
use of voting electoral machines, under Section 61 A of the Act. The gravamen
of the allegations in the election petition are that the Returning Officer as
well as the Chief Electoral Officer had not complied with several provisions
of the Conduct of Election Rules and respondents 7 and 8 had not acted in
C accordance with the guidelines issued by the Election Commission of India.
The relevant paragraphs of the election petition pertaining to the infraction
of Rules committed by respondents 7 and 8 are paragraphs 20a, 20d, 20f, 25
and 28. The Representation of the People Act, 1951 [hereinafter referred to
as 'the Act'] is an Act, providing for the Conduct of elections to the House
D of Parliament and to the House of Legislature of each State and it provides
the qualifications and dis-qualifications for Membership of those Houses, the
Corrupt Practices and other offences in connection with such elections and
the decisions of doubts and disputes arising out of or in connection with such
elections. The general procedure at elections has been enumerated in Chapter
Ill. Section 61 of the Act provides the procedure for preventing personation
E of electors and Section 61A which was inserted by A.ct I of 1989 w.e.f.
15.3.1989, deals with Voting machines at elections. Section 66 provides for
declaration of result and Section 67 provides for submission of a Report of
the result to the appropriate authority and the Election Commission and in
case of an election to a House of Parliament, to the Secretary of that House
F by the Returning Officer, soon after the declaration of the result. It also
provides for publication of the name of the elected candidate in the official
gazette. Part VI starting with Section 79 deals with disputes regarding elections.
Under Section 80 of the Act, no election shall be called in question except
by an election petition presented in accordance with the provisions of this
Part. Presentation of petition is dealt with in Section 81 and such petition
G could be presented on one or more of the grounds specified in sub-section (I)
of Section JOO and Section IOI. Section 82 stipulates as to who shall join as
respondents to an election petition. Section 82 may be quoted herein-below
in extenso :-
"Sec. 82. Parties of the petition:- A petitioner shall join as respondents
H to his petition-
MICHAEL B. FERNANDES v. C.K. JAFFER SHARIEF [PATTANAIK, J.] 1057

(a) where the petitioner, in addition to claiming declaration that the A
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
(b) any other candidate against whom allegations of any corrupt
practice are made in the petition."

Section 83 provides as to what should contain in an election petition and
Section 86 in Chapter Ill deals with trial of election petitions. Section 87 is

"
the procedure for such trial and it provides that every election petition shall c
be tried as nearly as may be, in accordance with the procedure applicable
under the Code of Civil Procedure, 1908 to the trial of suits. As stated earlier,
Section 100 indicates the grounds on which an election can be declared to be
void and Section 101 indicates the grounds on which a candidate other than
the returned candidate may be declared to have been elected. We are not
concerned with the other provisions of the Act in the case in hand. An appeal D
to the Supreme Court has been provided under Section l l 6A. On a plain
reading of Section 82, which indicates as to the person who can be joined as
a respondent to an election petition, the conclusion is irresistible that the
returned candidate, the candidate against whom allegations of any corrupt
practice have been made are to be joined as party respondent when declaration E
is sought for holding the election of the returned candidate to be void and
when a prayer is made as to any other candidate to be declared to be duly
elected, then all the contesting candidates are required to be made party
respondents. On a literal tl'lerpretation of the aforesaid provisions of Section
82, therefore, it can be said that an election petition which does not make the
, persons enumerated in Section 82 of the Act, as party respondents, is liable F
to be dismissed. The two decisions of this Court directly on the question are
the cases of Jyoti Basu and Ors. v. Debi Ghosal and Ors., [ 1982] 1 SCC 691
and B. Sundara Rami Reddy v. Election Commission of India and Ors.,
[1991] Supp. 2 SCC 624. In the former case, Chinnappa Reddy, J, speaking
for the Court, held that right to elect or to be elected or dispute regarding
G
election are neither fundamental rights nor common law rights but are confined
to the provisions of the Act and the Rules made thereunder and consequently,
~
rights and remedies are all limited to those provided by the statutory provisions.
On the question of joinder of parties, referring to Sections 82 and 86(4) of
the Representation of the People Act, it was held that the contest of the
election petition is designed to be confined to the candidates at the election H
1058 SUPREME COURT REPORTS [2002] l S.C.R.

A and all others are excluded and, therefore, only those may be joined as
respondents to an election petition, who are mentioned in Section 82 and
86(4) and no others. An argument had been advanced in that case that even
if somebody may not be a neces~ary party under Section 82 of the Act, but
yet he could be added as a proper party as provided in Order I Rule 10 of
the Code of Civil Procedure. But the Court rejected that contention on a
B finding that the provisions of the Civil Procedure Code apply to election
disputes only as far as may be and subject to the provisions of the Act and
any rules made thereunder and the provisions of the Code cannot be invoked
to permit which is not permissible under the Act. It was in that context the
Court further observed that the concept of 'proper parties' is and remain alien
C to an election dispute under the Act. This decision was followed in B. Sundara
Rami Reddy 's case, (1991) Supp. 2 SCC 624, referred to supra and it was
reiterated that the concept of 'proper party' is and must remain alien to an
election dispute under the Act and only those may be joined as respondents
to an election petition, who are mentioned in Sections 82 and 86(4) of the
Act and no others. The Court in this case added that however desirable and
D expedient it may appear to be, none-else shall be joined as respondents. Mr.
Venkataramani, the learned senior counsel, appearing for the appellant,
contended that the law enunciated in the two decisions and the observations
made are too wide and while Section 82 casts an obligation on an election
petitioner to join those mentioned in clauses (a) and (b) as party respondent,
E it does not put an embargo for addition of any other person in an appropriate
case, depending upon the nature of allegation made and consequently, the
expression "any other" in the two decisions referred to above, must be held
not to have been correctly used. Mr. Venkataramani relied upon the
observations made by this Court in MS. Gill's case, [1978) 2 SCR 272,
wherein the Court had observed that the Constitution contemplates a free and
F fair election and vests comprehensive responsibilities of superintendence,
direction and control of the conduct of elections in the Election Commission.
This responsibility may cover powers, duties and functions of many sorts,
administrative or other, depending on the circumstances and submitted that
the basis of electoral democracy being a free and fair election and fairness
G imports an obligation to see that no wrong-doer ci:ndidate benefits from his
own wrong. In case where allegations are made against the Returning Officer
or the Chief Electoral Officer with n:gard to the conduct of the ~lectiun, there
should be no bar to array them as parties and according to Mr. Venkataramani
in Gill's case, the Chief Election Commissioner was a party and, therefore, ·
this Court in Jyoti Basu as well as the subsequi!nt case, having not noticed
H the aforesaid judgment of the larger Bionch, the latti!r decision will be of no
MICHAl'L B. FERNANDES v. C.K. JAFFER SHARIEF [PATTANAIK, J.] 1059

assistance. We are not in a position to accept the submission of Mr. A
Venkataramani inasmuch as in Gi/l '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 B
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 of Calcutta High Court in
Dwijendra Lal Sen Gupta v. Hare Krishna Konar, AIR (1963) Calcutta 218,
where the question came up for consideration directly and the Calcutta High C
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 v. Bharucha Noshir C.
and Ors., AIR ( 1969) Bombay 177, had also observed that the observations D
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 a~d Bombay High Court had been considered by this
Court in Jyoti Basu case and the Court took the view that the public policy E
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 F
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 the Constitution. This appeal accordingly G
faj)s and is dismissed.

V.S.S. Appeal dismissed.