Yera Chandraiah Vs. District Munsif-cum-election Tribunal and ors. - Court Judgment

Venkatarami Reddy, J.

1. The writ petitioner and respondents 4 to 6 to the writ petition contested for the post of Sarpanch of Mondigowrally Village. The polling took place on 22-3-1988 and the writ petitioner was declared to have been duly elected as Sarpanch of Mondigowrally. Questioning the election of the writ petitioner the fourth respondent herein filed O.P.No. 7 of 1988 under Rule 50 (2) of the Andhra Pradesh Gram Panchayats Rules, 1978 in the Court of the District Munsif-cum-Election Tribunal at Ibrahimpatnam. The election of the writ petitioner was attacked on various grounds such as preventing voters from exercising their votes, closing of polling booth earlier than the schedule time, etc. It is not necessary for the purposes of this writ petition to go into the details of the allegations. It was prayed in O.P.No. 7 of 1988 (a) to direct the election Officer to recount the votes for the post of Sarpanch, Mondigowrally village. Gram Panchayat before the Court or Commissioner appointed by Court; (b) to set aside the election of respondent therein i.e. the writ petitioner herein as Sarpanch of Mondigowrally village; and (c) to declare the petitioner therein that is the fourth respondent in the writ petition as duly elected.

2. The writ petitioner herein filed a counter denying the various allegations made in the O.P. and it was specifically pleaded that the O.P. is bad for non-joinder of necessary parties such as other contesting candidates namely Etti Narasimha and Jahiruddin (Sixth and fifth respondents in the writ petition) and as such the petition is liable to be dismissed in limine.

3. Thus, although a relief to declare the petitioner in O.P.No. 7/88 as duly elected was claimed, all the contested candidates for the post or Sarpanch were not made parties and the writ petitioner alone was made a party as respondent No. 1.

4. The counter was filed in August, 1988. On 16-1-1989, after a lapse of about five months, the election petitioner i.e. the fourth respondent in the writ petition filed a petition I.A.No. 1 of 1989 under Order 1 Rule 10 (2) and (4) C.P.C. read with Section 153 C.P.C. to implead Mohammad Zaheeruddin and Etti Narasimha, the other candidates that contested the election, as respondents 4 and 5 to O.P.No. 7/88 and to amend the cause title. This petition for impleading was opposed by the writ petitioner, on the grounds that the petition is not maintainable in law; that the provisions of Order 1 Rule 10 (2) and (4) read with Section 153 CPC are not applicable; that it is barred by limitation as per Rule 54 of the Andhra Pradesh Gram Panchayats (Conduct of Elections) Rules, 1978; that as election petitioner has not made all the contesting candidates as parties to the main O.P. the main O.P. itself ought not to have been entertained and numbered and that the election petitioner in spite of the plea taken by writ petitioner that O.P. was bad for non-joinder of necessary parties, has not taken any immediate action to rectify the defect and hence the omission to make all the contested parties as respondents to the election petition is deliberate and not due to any mistake or oversight.

5. The District Munsif-cum-the Election Tribunal allowed I.A.No. 1 of 1989 and ordered impleading by its order, dated 23-1-1989. This writ petition is filed for questioning of the said order.

6. It is contended by Sri C.R. Pratap Reddy, the learned counsel for the petitioner, firstly, that in trying the Election Petition only those provisions of the Code of Civil Procedure 1908 mentioned in Rule 55 (2) of the Andhra Pradesh Gram Panchayats (Conduct of Elections) Rules. 1978 (hereinafter called the Rules) can be invoked by the tribunal and not all the provisions of Code of Civil Procedure and since impleading of parties is not one of the powers enumerated in Rule 55 (2) the Tribunal cannot order impleading of parties under Order 1 Rule 10 CPC ; Secondly that the provisions of Sub-rule (2) of Rule 52 are mandatory and since the Election Petitioner claimed a declaration that he has been duly elected, the Election Petitioner should have joined all other candidates who were nominated and not withdrawn as parties and hence the presentation of O.P. itself is defective and cannot be amended by subsequent addition of contested candidates and lastly, there is no provision under rules, except Rule 54 which entitles any other candidate to be joined as respondent within fourteen days of the publication of copy of Election Petition on the notice board of the Court and Gram Panchayat that enables the Election Petitioner to implead the contested candidates as parties.

7. On the other hand it is contended by Sri Ashok Reddy, the learned Counsel for the contesting respondent, that Rule 55 (1) enjoins that every Election Petition shall be enquired into in accordance with the procedure laid down in the Code of Civil Procedure and that therefore all the provisions of the Code of Civil Procedure apply to the enquiry including Order 1 Rule 10 (2) CPC.

8. To appreciate the rival contentions, it is necessary to refer to certain relevant provisions of Andhra Pradesh Gram Panchayats (Conduct of Elections) Rules, 1978 (hereinafter called Rules). Rule 51 (1) says that the Election Petition shall be presented within 15 days from the date of declaration of Election. Rule 52 reads as follows :

'52 (1) If the irregularities alleged in the petition are likely to affect the validity of the election of more than one returned candidate the petitioner shall join as respondent to his petition all such returned candidates.

(2) The petitioner, may, if he so desires in addition to calling in question the election of the returned candidate or of all or any of the returned candidates, as the case may be, claim, a declaration that he himself or any other candidate has been duly elected. In such case, he shall join as respondent to his petition all other candidates who were nominated for the election but had not withdrawn before the polling-'

9. Rule 53 (1) lays down : at the time of presentation of the petition, the petitioner shall deposit cash security along with it and under Sub-rule (2) the election court shall dismiss the petition if such cash deposit as required under Sub-rule (1) is not made.

10. Rule 54 : The election court shall, as soon as may be: cause a copy of the petition to be served on each respondent and on the executive authority of gram panchayat concerned and the election authority. Copies shall also be affixed to the notice board of the Court and of the office of the Gram Panchayat. The election court may also call on the petitioner to execute a bond in such amount and with such sureties as he may require for the payment of any further costs. Any time within fourteen days after such publication any other candidate shall be entitled to be joined as respondent on furnishing similar security as may be demanded by the election court.'

11. ''Rule 55 (1) : Every Election Petition shall be inquired into by the election court as nearly as may be in accordance with the procedure laid down in the Code of Civil Procedure, 1908, to the trial of suits :

Provided that it shall only be necessary for election court to make it a memorandum of the substance of the evidence of any witness examined by it.

(2) The election court shall have the powers which are vested in a court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters ;

(a) Discovery and inspection ;

(b) enforcing the attendance of witnesses and requiring the deposit of their expense ;

(c) compelling the production of documents ;

(d) examining witnesses on oath ;

(e) receipt of evidence taken on affidavit ; and

(f) issuing commissions for examination of witnesses summoning and examining suo motu any person whose evidence appears to him to be material.'

12. Sub-rule (1) of Rule 55 states that the Election Petition shall be inquired into as nearly as may be in accordance with the procedure laid down in the Civil Procedure Code. Sub-rule (2) of Rule 55 illustrates the matters in respect of which the Election Court have the powers which are vested in the Civil Court under the Civil Procedure Code. The contention of the counsel for the writ petitioner is that the provisions of the Civil Procedure Code are applicable only in respect of those matters enumerated under Sub-rule (2) of Rule 55 and cannot be extended to the other provisions of the Civil Procedure Code. I am not inclined to accept the aforesaid contention. Rule 55 (2) merely enumerated some of the matters in respect of which the election court shall exercise power under Civil Procedure Code. That does not mean in respect of the trial of the Election Petitions only the matters enumerated in Sub-rule (2) shall apply. Sub-rule (1) of Rule 55 specifically says that as nearly as may be the trial of Election Petition shall be in accordance with the procedure laid down in the Civil Procedure Code. The matters enumerated in Sub-rule (2) do not in any way take away the power of the Election Court to apply other pro-visions of the Civil Procedure Code for trial of the Election Petition.

13. On the other hand the contention of the counsel for the respondent that all the provisions of the Civil Procedure Code apply to trial of Election Petitions is equally not tenable because Rule 55 (1) of the Rules clearly lays down that 'as nearly as may be' the provisions of Civil Procedure Code are applicable to trial of Election Petitions. Hence those provisions of Civil Procedure Code which are inconsistent with the provisions of the Gram Panchavats Act and the rules framed thereunder are not applicable to the trial of the Election Petition. It is also not permissible to circumvent the provisions of the Act and the Rules by resorting to application of the provisions of Civil Procedure Code.

14. Dealing with the applicability of the provisions of the Civil Procedure Code to trial of Ejection Petitions under the Representation of People Act, 1951. Their Lordships of the Supreme Court in Jyothi Basu and Ors. v. Debi Ghosal and Ors : [1982]3SCR318 held that :

'It is said that the Civil Procedure Code applies to the trial of Election Petitions and so proper parties whose presence may be necessary in order to enable the Court 'effectually and completely to adjudicate upon and settle all questions involved may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only as far as may be and subject to the provisions of the Representation of the Peoples Act, 1951 and the Rules made thereunder. Section 87(1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not quite obviously the provisions of the Code not be so invoked.'

15. In Mohan Raj v. Surendra Kumar Tabard and Ors., : [1969]1SCR630 their Lordships of the Supreme Court dealt with the applicability of the provisions of Order 6 Rule 17 and Order 1 Rule 10 of the Code of Civil Procedure to the trial of Election Petitions under the Representation of the People Act, 1951. Section 82(b) of the said Act enjoins that a petitioner shall join as respondents to the Election Petition' any other candidate against whom allegations of any corrupt practice are made in the petition.' When an attempt was made to withdraw the name of the candidate who was duly nominated at an election to save the petition, repelling the contention that the High Court should have exercised the powers under Order 6 Rule 17 or Order 1 Rule 10 to order amendment of petition and to strike out parties, it was held.'

'It is argued that the Civil Procedure Code applies and Order 6 Rule 17 and Order 1 Rule 10 enable the High Court respectively to order amendment of a petition and to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of references to Periwal. This argument cannot be accepted. 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 People Act and any rules made thereunder (Section 87). 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.'

16. Again in the decision K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddy and Ors., : [1969]1SCR679 considering the provisions of Section 82 and 86(1) of the Representation of People Act, 1951, it was held by their Lordships of the Supreme Court as follows :--

'Even though Section 87(1) of the Act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the Act itself makes important provisions of the Code inapplicable to the trial of an election petition. Under Order 6 Rule 17 CPC a Court of law trying the suit has very wide powers in the matter of allowing amendments of pleadings and amendments which will aid the Court in disposing of the matters in dispute between the parties are as a rule allowed subject to the law of limitation. But Section 86(5) of the Act provides for restrictions on the power of the High Court to allow amendments. The High Court is not to allow the amendment of a petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1 Rule 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, no addition of parties is possible in the case of an election petition except under the provisions of Sub-section (4) of Section 86. Section 82 shows who are necessary parties to an election petition which must be filed within 45 days from the date of election as laid down in Section 81. Under Section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of Section 81 or Section 82. Again the High Court must dismiss an election petition if security for costs be not given in terms of Section 117 of the Act.'

'It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the Law of Limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act.'

17. Following the aforesaid decisions of the Supreme Court in R.D. Paranjpe v. Ram Jethmalani and Ors., : AIR1978Bom356 where the contesting candidate was not made a party to the election petition and although in the election petition the relief of declaration by the election petitioner was claimed, it was held that the election petition under Representation of People Act for non-joinder of a party under Section 81(1) cannot be cured under theprovisions of the Civil Procedure Code and that the provisions of the Civil Procedure Code cannot be used as a curative means to save the election petition. Where there is no inconsistency with the provisions of the Representation of People Act, their Lordships of the Supreme Court in Udhav Singh v. Madhav Rao Scindia, : [1976]2SCR246 held that the provisions of Order 6 Rule 16 CPC are applicable. In P. Nalla Thampy Thera v. R.L. Shankar and Ors.,( AIR 1984 SC 135) it was held by their Lordships that Order 9 and Order 17 CPC is applicable to the trial of the election petitions under the Representation of People Act, 1951. In Azhak Hussain v. Rajiv Gandhi, : [1986]2SCR782 it was held by their Lordships that the provisions of Order 7 Rule 11 were applicable and the contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed after recording the evidence and not at the thresh-should was rejected.

18. Applying the aforesaid principles laid down by their Lordships of the Supreme Court it has to be seen whether the provisions of the Rule 52 (2) of the Rules are mandatory and that if so the defect of non-joinder of the respondents Nos. 4 and 5 to the election petition, who were nominated for the election, can be cured under the provisions of Order 1 Rule 10 (2) of the CPC. Rule 52 (2) lays down that if the petitioner desires, in addition to calling in question the election of the returned candidate, to claim a declaration that he himself or any other candidate has been duly elected, then he shall join as respondent to his petition all other candidates who are nominated for the election but had not withdrawn before the polling. There is no dispute that respondents 4 and 5 to the writ petition were nominated for the election but had not withdrawn from the polling. Hence they shall be joined as respondents to the petition. Rule 54 enables any other candidate, any time within fourteen days after affixture of the copies of the election petition on the notice board of the office and Gram Panchayat, shall be entitled to be joined as respondent on furnishing similar security as may be demanded by the election Court. Thus there is no provision in the rules that enables the election petitioner to file a petition for impleading 'all other candidates' as respondents at a later stage of the election petition. Thus, it is mandatory that the election petitioner shall join as respondents all other candidates who were nominated for the election but not withdrawn before the polling at the time of filing the election petition. It has been held by their Lordships of the Supreme Court in Krishnan Chander v. Ram Lal, (AIR 1973 SC 2512) that the provisions of Section 82(b) of the Representation of People Act are mandatory and that the failure to implead those candidates against whom allegations of corrupt practice hate been made is fatal to the maintainability of the petition. The non-joinder of other contesting candidates i.e. respondents 4 and 5 in the writ petition is fatal to the election petition and the mandatory provisions of Rule 52(2) cannot be circumvented or defeated by filing an application under Order 1 Rule 10 CPC for impleading them as parties to the election petition at a later stage. In G. Gangi Reddy, v. S. Ramakrishna Reddy,( 1972 (1) An.W.R. 1) it was held by Obul Reddi, J. (as he then was, construing the provisions of the Andhra Pradesh Gram Panchayats Act and Rules relating to) conduct of elections especially Rule 55(1) and (2) that the provisions of Order 1 Rule 10 CPC are not applicable to the disposal of the election petitions except to the extent provided in the rules and that the Election Court has no jurisdiction to add new party to the petition even if one of the respondents consents to it. The Counsel for the respondents relied upon a decision reported in Hanshyamdas Gjhawar v. M. Pardhasaradhi,( 1983 (2) A.P.L.J. 31 (NRC)) wherein it was held by Punnayya, J. that the election Tribunal trying the election petition under Rules 55(1) and (2) of the Andhra Pradesh Gram Panchayats Rules has got jurisdiction to apply the provisions of Order 6 Rule 17 CPC if it feels such an amendment is necessary in the interests of justice. The aforesaid decision has no application to the facts of this case as his Lordship, did not consider the question of applicability of the provisions of Order 1 Rule 10 CPC, having regard to the mandatory provisions of Rule 52 (2) of the Rules.

19. But it is contended by the counsel for the respondent that the principles laid down by the aforesaid decisions of the Supreme court have no application to the trial of the election petitions under the A.P. Gram Panchayats Act and the Rules as there is no provision in the rules similar to that of Section 86(1) of the Representation of people Act whereunder the High Court shall dismiss an election petition if it does not comply with the provisions of Section 82 of the Act . This contention cannot be accepted. Mere failure to specify in the rules, that the election petition shall be dismissed for not making all the candidates as parties as required under Rule 52 (2) of the Rules, does not mean that the provisions of Rule 52 (2) are not mandatory. The non-joinder of necessary parties is fatal to the election petition and cannot be got over or circumvented by invoking the provisions of Order 1 Rule 10 CPC for impleading them as parties at a subsequent stage.

20. Even otherwise, in this case, in the counter filed, the writ petitioner specifically took an objection that the election petition is liable to be dismissed for non-joinder of parties. The counter was filed in August, 1988. In spite of the same, the election petitioner did not take any steps for impleading the respondents 4 and 5 in this writ petition as parties until 16-1-1989. Thus there are laches on the part of the election petitioner. The observation of the Tribunal that the failure to add respondents 5 and 6 in the writ petition, as respondents 4 and 5 in the election petition was unintentional and due to mistake and oversight cannot be accepted. Further the reasoning of the Tribunal that if the provisions of Rule 52(2) are held to be mandatory it will result in the dismissal of the election petition and that therefore the provisions of Order 1 Rule 10 CPC shall be applied to save the dismissal of the election petition is untenable, as was held by the Supreme Court in MohanraJ v. Surendra Kumar Taparia and Ors. (2 supra) that the provisions of CPC cannot be used as curative means to save the election petition.

21. For all the aforesaid reasons, I hold that the provisions of Order 1 Rule 10 CPC have no application to the trial of election petition under the A.P. Gram Panchayats, Act, 1964 and that even otherwise, having regard to the laches on the part of the election petitioner as he filed an application for impleading after a period of three months after filing counter where a specific objection was raised that the election petition was not maintainable for non-joinder of parties, the Tribunal ought not have exercised its powers under Order 1 Rule 10 CPC.

22. In the result the writ petition is allowed and the order of Tribunal is set aside. There shall be no order as to costs. Advocate's fee Rs. 250/-.