While directing the deletion of certain respondents from the array of parties in an election petition and considering that Section 82 of the Representation of People Act, 1951 provides as to which persons are to be impleaded as respondents to an election petition, the Jammu & Kashmir and Ladakh High Court has held that anything contrary to Section 82 contained in the Code of Civil Procedure cannot be invoked to implead a person as party to an election petition, who otherwise cannot be impleaded as respondents.

The High Court was dealing with an issue of mis-joinder of parties in an election petition.

The Single Bench of Justice Sanjay Dhar held, “Thus, anything contained in the Code of Civil Procedure which is contrary to the provisions of the Act of 1951 cannot be made applicable to trial of election petitions. Since Section 82 of the Act of 1951 provides as to which persons are to be impleaded as respondents to an election petition, therefore, anything contrary to Section 82 contained in the Code of Civil Procedure cannot be invoked to implead a person as party to an election petition, who otherwise cannot be impleaded as respondent in terms of Section 82 of the Act of 1951. The contention of learned Senior counsel for the petitioner is, therefore, without any merit.”

“From the foregoing analysis of the legal position, it is clear that the concept of proper parties is and would remain alien to an election dispute under the Act”, it added.

Senior Advocate Aseem Kumar Sawhney represented the Petitioner, while Assisting Counsel Chetna Manhas represented the Respondent.

Factual Background

The petitioner had impleaded the contesting candidates as well as the officials/officers who were not the contesting candidates. In the election petition, the petitioner had levelled several allegations against these respondents.

Arguments

It was the case of the respondent that, as per Section 82 of the Act of 1951, only the contesting candidates have to be impleaded as parties to an election petition.

The petitioner, on the contrary, contended that as per the provisions contained in Section 87, the procedure applicable under the Code of Civil Procedure is applicable to the election petitions tried by the High Court and, therefore, all necessary and proper parties to the petition have to be impleaded as the parties.

Reasoning

Referring to Section 82, the Bench explained that in a case 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 candidate has been elected, all the contesting candidates other than the petitioner have to be impleaded as respondents. “However, in a case where no further declaration is claimed by the petitioner, only the returned candidates are to be impleaded as respondents”, it added.

The Bench further explained, “From the foregoing analysis of the legal position, it is clear that a contest of election petition is to be confined to the candidates at the election. All other parties are to be excluded. Only those parties, who are mentioned in Section 82 of the Act of 1951 and no others, have to be impleaded as respondents to the election petition.”

Considering the fact that the petitioner had levelled several allegations against these respondents, the Bench held that mere levelling of the allegations would not make them necessary parties to the present petition. “In the face of the provisions contained in Section 82 of the Act of 1951 and the interpretation given to the said provision by the Supreme Court in Joyti Basu’s case (supra), the respondents No. 1 to 9 should not have been impleaded as parties to the present petition. Thus, it is established that there is misjoinder of parties in the present petition. Preliminary issue No.1 is, therefore, proved”, the order read.

Reference was made to the judgment of the Apex Court in B.S. Yadiyurappa vs. Mahalingappa (2002) wherein it was held that the election petition, which does not comply with the provisions of Section 82 of the Act of 1951, would not necessarily entail its dismissal. It was held that such a petition can be amended by striking out from the array of the parties those additionally impleaded. Thus, in light of the ratio laid down by the Supreme Court, the Bench held that the effect of impleading respondents 1 to 9 as parties to the petition would not entail dismissal of the petition, but an order regarding their striking out as parties from the array of parties would be required to be passed.

The Bench thus concluded the matter by directing the deletion of respondents 1 to 9 from the array of parties.

Cause Title: Harsh Dev Singh v. UT of J&K & Ors. (Case No.: EP No. 1/2024)

Appearance

Petitioner: Senior Advocate Aseem Kumar Sawhney, Advocates Shabab Malik, Petitioner-in-person

Respondent: Assisting Counsel Chetna Manhas, Sr. AAG Monika Kohli, Advocate Vilakshan Singh

Click here to read/download Order


Jammu & Kashmir & Ladakh High CourtJustice Sanjay Dhar

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.