Petitioner before this Court was elected as Pradhan of the village Chutka Gaon as per the results of the elections declared on 28.10.2010. Respondent no. 1 Ram Sanehi, who was the defeated candidate, filed an election petition under Section 12-C of the U.P. Panchayat Raj Act, which was registered as Election Petition No. 1 of 2010.
The reliefs prayed for in the election petition are as follows:
"1- ;g fd mijksDr ifjfLFkfr;ksa esa izfri{kh la[;k&1 dk pquko voS/k ?kksf"kr djrs gq, jn~n ?kksf"kr djrs gq, muds LFkku ij ;kph dks pquko esa fot;h ?kksf"kr fd;k tkosA 2- ;g fd vykok ;k ctk; nknjlh etdwj okyk ds oknh ftl fdlh Hkh nhxj nknjlh dk eq'rgd o utj vnkyr djkj ik;k tk; rks mldh Hkh fMdzh cgd oknh f[kykQ izfroknhx.k lkfnj Qjek;h tk;A 3- ;g fd okn O;; rFkk 'kqYd vf/koDrk oknh dks izfroknhx.k ls fnyok fn;k tk;A The petitioner on service of the notice filed application dated 17th June, 2011 stating therein that the election petition suffers from the vice of non-joinder of necessary party, inasmuch as three other persons, who were candidates in the said election, have not been made a party as required by Rule 3 of the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994. It was, therefore, contended that in absence of necessary parties, the election petition itself was liable to be dismissed.
Objections were filed to the application by the election petitioner stating therein that the petitioner has impleaded the elected candidate and it was not necessary to implead other persons. The Election Tribunal by means of the order dated 12.07.2011 held that the election petition did not suffer from the vice of non-joinder of the necessary parties. It has been held that the elected candidate had been made party and that the objection taken by the elected Pradhan had no substance.
Not being satisfied the petitioner filed a revision under Section 12-C(6) of the Act, which has been dismissed as not maintainable. It is against these two orders that the present writ petition has been filed.
So far as the order passed by the revisional authority is concerned, this Court may record that a right to file revision has been provided under Section 12-C(6) of the U.P. Panchayat Raj Act only against the final order passed in the election petition. Against the order of the Election Tribunal dated 23.07.2011 in the facts of the case revision was not maintainable and it has rightly been dismissed as such.
However, since the legality of the order dated 23.07.2011 has also been challenged in the present petition, this Court will now proceed to examine the merits of the order dated 23.07.2011.
The contention raised on behalf of the parties revolves around the Rule 3(2) of 1994 Rules, which reads as follows:
"3. Election Petition.-(1)........
(2) The person whose election is questioned and where the petition claims that the petitioner or any other candidates shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application."
According to the petitioner since in the facts of the case both the reliefs have been prayed for i. e. declaring the election of the petitioner as invalid and thereafter to declare the election petitioner as elected, every unsuccessful candidate had to be made a party. Counsel for the petitioner Sri S.K. Verma submits that non-impeadment of necessary party is fatal to the election petition. Reliance has been placed upon the judgment of the Hon'ble Supreme Court in the cases of Patangrao Kadam vs. Prithviraj Sayajirao Yadav Deshmukh and others; (2001) 3 SCC page 594 (Para-12), Gadnis Bhawani Shankar V. vs. Faleiro Eduardo Martinho; AIR 2000 SC 2502 and Ram Sukh vs. Dinesh Aggarwal; (2009)10 SCC 541 (Para-20). He further explains that unsuccessful candidates will mean every candidate who had filed his nomination in the process of election and had not withdrawn the same up to the last date for withdrawal of the nomination.
There can be no quarrel with the proposition so canvassed by Sri Verma, insofar as impleadment of unsuccessful candidates in the election petition, wherein the relief of declaring the election petitioner as elected is concerned.
In the opinion of the Court, from a simple reading of Rule 3, quoted above, it is apparently clear that every unsuccessful candidate along with successful candidate has to be made a respondent in the election petition, if a declaration qua the election petitioner being elected is prayed for.
It is settled law that election petition proceedings are technical and special proceedings. The Supreme Court of India has explained the legal position in that regard in para-8 of its judgment in the case of Ram Sukh (supra), which reads as follows:
"8. Before examining the merits of the issues raised on behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath v. Jaswant Singh. Speaking for the Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely a statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act."
The issue for consideration before this Court is as to whether the entire petition, as filed by the petitioner, is liable to be rejected on the ground of non-impleadment of unsuccessful candidates or only to the extent the relief of the election petitioner being declared elected is prayed.
In the opinion of the Court Rule 3 is in two parts. First part deals with the petition where the relief of declaring the election of the elected candidate as invalid and the other where the second relief of declaring the election petitioner as elected is also prayed. Non-impleadment of unsuccessful candidates is fatal so far as relief second is concerned. In absence of such unsuccessful candidates being impleaded the second relief of declaring the election petitioner as elected cannot be granted. To that extent the contention raised by Sri Verma is upheld and the relief prayed in the election petition to that extent had to be declared as non-maintainable.
Reference may also be had to the judgment of the Hon'ble Supreme Court, relied upon by the counsel for the respondent, in the case of Jagan Nath v. Jaswant Singh and others; AIR 1954 SC 210, wherein it has been held that merely because consequences have not been provided because of non-impleadment of unsuccessful candidates under the rules, the same may not be fatal and the Tribunal is entitled to deal with the matter under proviso to Order IX Rule 10 and 13 of the Code of Civil Procedure.
Suffice is to refer to the judgment of the Hon'ble Supreme Court reported in (2001) 3 SCC 594 wherein it has been explained that non-impleadment of the parties, as required under the statutory provision, would be fatal and having regard to Section 82 of the Representation of Peoples Act, 1951 it has further been explained that no subsequent impleadment can be permitted, as it would negate the statutory provision. It has been finally laid down as follows:
"Unambiguous language and clear terms contained in Section 82(b) read with Section 79(b) is mandatory. Section 86(1) does not leave any option to High Court but to dismiss an election petition for non-compliance with Sections 81, 82 and 117.
This takes the Court to the second issue as to whether in absence of unsuccessful candidates being impleaded in the election petition, the relief of declaring the election of the elected candidate as null and void can be granted or not.
Under Rule 3 of 1994 Rules, an election petition, where only relief for declaring the election of the elected candidate as invalid is prayed for, it is not necessary to implead all other unsuccessful candidates as a party. This Court would, therefore, in the facts of the case segregate two reliefs, which have been prayed for by the election petitioner and would hold that so far as the first relief qua the election of the present petitioner being declared invalid is concerned, the petition is maintainable and does not suffer from the vice of non-impleadment of necessary parties.
So far as the second relief prayed for in the election petition qua election petitioner being declared as elected after setting aside the election of the elected candidate is concerned, the petition suffers from vice of non-impleadment of other unsuccessful candidate and therefore to that extent the election petition stands dismissed.
Writ petition is partly allowed. Interim order is discharged.
The Tribunal is directed to proceed with the matter in accordance with law without granting any unnecessary adjournment to either of the parties.
09.02.2012 Pkb/44055-11