Navin Sinha, J.
1. Heard learned Counsel for the petitioner, learned Counsel for the official Respondents and learned Counsel appearing for private Respondents 6 & 7.
Elections were held to the Zila Parishad, Supaul in the Municipal Constituency No. 22 comprising of seven Panchayats on 2.6.2006. The petitioner was declared to be the wining candidate and statutory declaration was made. Respondent No. 6, who had also contested the election with the petitioner, then filed Election Petition No. 2 of 2006 in the court of Sub-Judge I, Supaul questioning the winning declaration of the petitioner.
2. Learned Counsel for the petitioner submitted that the relief sought in the election petition, at Annexure-5 to the writ petition, was for a declaration that the plaintiff/Respondent No. 6 was duly elected by receiving majority of valid votes and for a declaration that the election of the returned candidate/petitioner was void. In terms of the relief sought, it was necessary for the plaintiff-Respondent No. 6 to implead all the contesting candidates in the election fray as party defendants.
He relied upon Section 137(2) of the Bihar Panchayat Raj Act read with Rule 106(2) of the Bihar Panchayat Election Rules in support of his submission. Reliance was further placed on a judgment of this Court reported in 2001 (4) PLJR 713 (Md. Zakir Hussain v. Hareshwar Prasad Singh and Ors.) and : AIR1996Bom5 (Comrade Kallappa Laxman Malabade v. Prakash Kallappa Awade) which in turn placed reliance on a judgment of the Supreme Court reported in : [1969]1SCR630 (Mohan Raj v. Surendra Kumar Taparia and Ors.).
3. The submission, therefore, was that in absence of necessary parties being impleaded, the suit was bad for non-joinder of necessary parties and should have been thrown out at the inception.
4. Learned Counsel appearing on behalf of Respondent Nos. 6 & 7 urged that the petitioner had been debarred from filing her written statement. There was, thus, no objection on the record with regard to non-joinder of necessary parties and, thus, there was no occasion for the plaintiff to remove this defect, if it be considered a defect. The alternative submission was that in any event non-compliance of Section 137(2) of the Bihar Panchayat Raj Act and Rule 106(2) framed thereunder shall not be fatal to the election petition since no consequence of non-impleadment were provided for. The statutory provision was not mandatory. Reliance for the proposition was placed on a Bench decision of this Court reported in 2005 (3) PLJR 130 (Ajit Singh v. The State of Bihar and Ors.).
5. It is not in controversy that the written statement of other official Respondent 2nd party was on record, presently at Annexure-6, in which at paragraph 2, specific objection had been taken that the plaint was bad for non-joinder of necessary parties.
6. It becomes necessary to reproduce Section 137(2) of the Bihar Panchayat Raj Act and Rule 106(2) of the Bihar Panchayat Election Rules in its entirety, which is quoted hereinafter:
137(2) - 'Parties to the petition' - A petitioner shall join as a respondent 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 candidates 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.
Rule 106(2) oknh }kjk viuh ;kfpdk esa fuEukafdr dks izfri{k cuk;k tk ldsxk&
d& tc oknh }kjk fdlh vH;FkhZ vFkok lHkh vH;FkhZ;ks ds fuokZpu dks voS/k ?kksf'kr djus dk nkok djus ds vfrfjDr Loa; vFkok fdlh vU; vH;FkhZ dks fof/kor~ fuokZpu gksus dk nkok fd;k x;k gks] rks ml ekeys esa oknh dks NksM+dj vU; lHkh fuokZpu yM+us okys vH;FkhZ;ks dks izfri{kdkj cuk;k tk;sxk ,oa tgkWa ,slk dksbZ vfrfjDr nkok ugh fd;k x;k gks] oSls ekeys esa lHkh vH;FkhZ;ks dks ,oa ,o
[k& vU; dksbZ vH;FkhZ fo:) ;kfpdk esa Hkz'V vkpj.k dk vkjksi yxk;k x;k gks
7. The statute provides that where a person claims a declaration that the election of all the returned candidates or any of the returned candidate is void along with a further declaration that he himself or any other candidate has been duly elected, then in the event that he wants declaration of his own success to the prejudice of another, all the contesting candidates in the election fray have to be made parties to the petition; but where he only seeks a declaration of invalidity of a returned candidate without consequent declaration for himself, then he is required to implead only the returned candidates.
8. In the present case, the relief sought in the plaint is for a declaration of invalidity of the election of the present petitioner along with consequent declaration of winning in favour of Respondent No. 6/plaintiff. On a bare reading of the statutory provisions, the plaintiff-Respondent No. 6 was, therefore, required to implead all the contesting candidates in the election fray as parties in the election petition. That has not been done. If the statute provided the plaint to be instituted in a particular manner, without further more or any intervening circumstances, the very presentation of the plaint had to be done in that manner. The language used in Section 137(2) is 'shall', and does not give an option. In the case reported in : [1976]1SCR451 (Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee and Ors.) with regard to the term 'shall' the Apex Court quoted the following passage from page 1077 of the judgment of the Apex Court in the case of Khub Chand v. State of Rajasthan reported in : [1967]1SCR120 :
The term 'shall' in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given the consequences that would flow from the infringement of the direction and such other considerations.
9. What shall be the interpretation of the statutory provision in a particular statute shall have to be read and understood in the background of that particular statue, the object and purpose of the statute. Whether a provision was directory or mandatory shall have to be considered in that background. It cannot be urged simplicitor that merely because a comparative statute provides for consequences of noncompliance, absence of such a provision in the corresponding statute shall render the latter directory. The mere absence of a provision like Section 86 in relation to Section 82 of the Representation of Peoples Act, 1951, would not be sufficient to defeat the legislative intent under Section 137(2) of the Bihar Panchayat Raj Act and Rule 106(2) framed thereunder, to hold the latter to be directory as not fatal to the suit.
10. To urge so shall defeat the very purpose of the legislation, as when a person seeks a declaration for winning himself/herself, quite naturally a correct assessment for the purpose cannot be done unless his/her comparative position is re-evaluated with regard to all those who had contested the election. To read down the statutory provision by holding that notwithstanding a declaration of winning sought by the plaintiff in an election petition after unseating a candidate, the votes secured by others are not relevant and the option shall lie with the person seeking the declaration to implead or not to implead other contesting candidates in the election fray, shall be violative of the provisions of Section 137(2) of the Bihar Panchayat Raj Act and Rule 106(2) of the Bihar Panchayat Election Rules. No interpretation could be given to a statutory provision which renders it liable to be nugatory or redundant.
11. The submission that since the consequences of such non-impleadment were not provided, the suit was not bad for non-joinder of parties does not impress this Court. When the intention of the legislature is clear and there is no ambiguity in the statutory provision, it shall not be the jurisdiction of the Court to read the provision in any other manner. At this stage, this Court considers it proper to quote paragraph 13 & 14 from the case of Md. Zakir Hussain (supra) relied upon by the petitioner for the salutary purpose of these statutory provision.
13. True it is that according to the election petitioner he is the nearest rival of the returned candidates but this submission is not sufficient for deletion of the parties who otherwise are necessary parties.
14. Once the plea of the election petitioner, that results of the election were adversely affected because of wrong counting or wrong rejection of the votes, is accepted and the court proposes to infringe the secrecy of the franchise, then, not only the votes cast in favour of the election petitioner are to be recounted but the votes cast in favour of the other candidates will also have to be seen. Today no body knows about the final result of the election petition. In a case like present where the election petitioner has made allegation of corrupt practices and has also asked for recounting of the votes, in the opinion of this Court every person who contested the election would be necessary party.
12. In Comrade Kallappa Laxman Malabade (supra) relied upon by the petitioner, with regard to non-joinder of necessary parties under the Representation of the Peoples Act, the High Court quoted the following passage from paragraph 10 of the judgment of the Supreme Court in : [1969]1SCR630 (Mohan Raj v. Surendra Kumar Taparia and Ors.)
10... No doubt the power of amendment is preserved to the Court and Order 1 Rule 10 enables the Court to strike out parties but the Court cannot use Order 6 Rule 17 or Order 1 Rule 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 nonjoinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.
(emphasis added)
13. Paragraph 5 of the judgment in the case of Comrade Kallappa Laxman Malabade (supra) is also quoted hereinafter:
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.
14. In the judgment in the case of Ajit Singh (supra) relied upon by Respondents 6 & 7 a preliminary objection of the returned candidate in a pending election petition that all the contesting candidates had not been made parties was overruled by the court below. A Bench of this Court has held that the court below has rightly rejected the objection as there was no provision like Section 82 of the Representation of People Act, 1951 providing for the consequences of non-joinder of such necessary parties and, therefore, the election petition under the Panchayat Act could not have been thrown out on that ground.
15. It has already been discussed above that only in specified circumstances where the plaintiff seeks a declaration of winning in favour of himself after unseating others, the question of impleading of the contesting parties arise. From the facts of the case under consideration, it is not clear as to whether that was the factual situation obtaining in the matter or not. The provisions of Rule 109 of the Bihar Panchayat Election Rules providing that the procedure provided for in the Code of Civil Procedure shall apply to trial of election petitions which includes Order 7 Rule 11(d) of the Code of Civil Procedure did not fall for consideration. Order 1 Rule 9 of the Code of Civil Procedure shall not come to the add of the plaintiff/Respondent No. 6 in a manner to completely negate and render infructuous the mandatory provision of Section 137(2) of the Bihar Panchayat Raj Act read with Rule 106(2) of the Bihar Panchayat Election Rules.
16. It has been held authoritatively that election petitions have their own urgency. A candidate cannot be left in lurch. The element of expeditiousness shall have to be there. Pleadings shall have to be construed strictly. If a person has had the mandate of voters, he cannot be unseated unless the law stands fully complied with.
17. In : AIR2002SC241 (Santosh Yadav v. Narendra Singh) a matter arising under the Representation of Peoples Act, it was held at paragraph 8 as follows:
8. It is well settled by a catena of decisions that the success of a winning candidate at an election should not be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially Clause (d) of Sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by Sub-clauses (i) to (iv) of Clause (d), the election of a returned candidate shall not be avoided unless and until it was proved that the result of the election, insofar as it concerns a returned candidate was materially affected.
18. In : [2003]3SCR511 (T.A. Ahammed Kabeer v. A.A. Azeez and Ors.) in a case arising under the Representation of Peoples Act, it has been held as follows:
The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of ballot must be zealously guarded. On account of a rigid following of these principles the election Courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law.
19. In : AIR2004SC2036 (Chandrika Prasad Yadav v. State of Bihar and Ors.) a case arising under Bihar Panchayat Raj Act, 1993 and Rule 79 under 1995 Rules, the appellant who lost filed an election petition. He allegedly moved an application for recounting of votes under Rule 79 before the Returning Officer, but, the same was not entertained. Learned Munsif directed inspection and recounting of ballot papers. Aggrieved thereby a writ petition was filed by successful candidate which was withdrawn, recounting held, when the appellant was held to have secured higher votes. The election petition was allowed. The winning candidate preferred a writ petition before the High, Court which was allowed. Letters Patent Appeal against the same was dismissed. The Apex Court held from the averments made in the election petition that the appellant was well aware of his right to file an appropriate application before the Returning Officer praying for recounting. If the said application was not entertained, he should have proved the said facts by bringing on record the original application which was refused to be accepted or a copy thereof. He should also have adduced evidence in that behalf before the learned Munsif. It was held at paragraph 26 as follows:
26. Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner; he has to state the reasons therefore. If no sufficient explanation is furnished by the election petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for re-counting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for re-counting has been made out.
20. On the issue whether Rule 79 was directory or mandatory, it was held that it shall not depend on the phraseology used in the statute. The nature of the statute was to be determined having regard to the purpose and object the statute seeks to achieve. The appeal was thus dismissed.
21. At this stage, the Court considers it appropriate to refer to Rule 106(1) of the Bihar Panchayat Election Rules, which is quoted hereinafter:
1061& v/;kns'k dh /kkjk 137 esa fofgr U;k;ky; ds le{k fdlh fuokZfpr vH;FkhZ vH;FkhZ ds fo:) pquko ;kfpdk fuokZpu ifj.kke dh ?kks'k.kk ds rhl 30 funks ds Hkhrj nk;j dh tk ldsxh A The Rule provides that election petition has to be instituted within 30 days from the date of declaration of the result. In CWJC No. 10105 of 2006 it has been held that this period of 30 days was mandatory notwithstanding that the consequences would not have been provided for, since the laws governing elections are special laws. This judgment came to be affirmed by a Division Bench in L.P.A No. 243 of 2007.
22. To hold otherwise, that need for compliance with the statutory requirements of Section 137(2) and Rule 106(2) was not mandatory in absence of any provision of consequences, but, shall depend on the facts and pleadings of each case, shall create a very anomalous situation. Quite apart from, in similar cases, rendering the statutory provision and the intention of the legislature as redundant there shall prevail a complete state of uncertainty with individualized interpretation in each case contrary to the intention of the legislature, which is required to be uniformly followed by the Courts.
23. The question of non-impleadment of necessary parties when specifically provided by the statute as distinct from necessary parties based on the relief sought in pleadings becomes a question of jurisdiction. If it becomes a question of jurisdiction, non-compliance renders the suit without jurisdiction. The analogy may be drawn from the provisions of the Limitation Acct. It is the solemn duty of the Court to throw out the petition which is barred by limitation notwithstanding that the objection could not have been raised as a defence. This is based on the premise that the law bars the suit. Similar would be position here. The suit ought to have been thrown out at the very inception not being in consonance with and fulfillment of statutory requirements.
24. Though arguments were also made with regard to the absence of proper verification of the pleadings of the election petition and of interpolations with regard to the petitioner and plaintiff/Respondent No. 6 in the final chart prepared of votes secured by each contesting candidate in the individual 7 Panchayats of the Municipal Constituency so as to arrive at a variance in the figures to the detriment of the petitioner, this Court does not consider it necessary to deal with and decide the same in view of the conclusion arrived at on the aforesaid discussion.
25. This Court, therefore, holds that the very institution of the Election Petition No. 2 of 2006 before the Court of Sub-Judge IV, Supaul was not in consonance with the statutory requirements of Section 137(2) of the Bihar Panchayat Raj Act and Rule 106(2) of the Bihar Panchayat Election Rules framed thereunder and should have been thrown out at the inception itself. The judgment dated 22.8.2007 in Election Petition No. 2 of 2006 rendered by Sub-Judge IV, Supaul at Annexure-9 to the writ application is, accordingly, set aside. The petitioner stands restored to her position as the winning candidate in whose favour statutory winning declaration was issued. Let the original records called for be returned to the learned Counsel for the State Election Commission.
The writ application is allowed.