SANTOSH TULSHIRAM CHAVHAN Vs. ELECTION COMMISSIONER

JUDGEMENT

(1.) By the present election petition, the petitioner has challenged the election of respondent No.3 - Nitin Jairam Gadkari on the ground that the Bharatiya Janta Party (the BJP) and its workers have violated the Model Code of Conduct. It is alleged that respondent No.3 - Nitin Jairam Gadkari by using digital type machines circulated slips to the voters having photographs, name of respondent No.3 - Nitin Jairam Gadkari, and symbol of the BJP. It is further alleged that the machines were given to the representatives of all booths of Nagpur and the said slips were circulated to mislead voters and to get their valuable votes. Thus, respondent No.3 - Nitin Jairam Gadkari and the BJP committed violation of the Code of Conduct.

(2.) By this petition, the petitioner has prayed for declaration that the petitioner himself be declared as elected member under Sec. 83 of the Representation of the People Act, 1950 (hereinafter referred as the RP Act). The petitioner further prayed for cancellation and recall of the certificate of returned candidate respondent No.3 - Nitin Jairam Gadkari and also seeks declaration declaring the returned candidate elected as null and void.

(3.) After service of notice, respondent No.3 - Nitin Jairam Gadkari appeared and filed an application under Order VII Rule 11 of the CPC with Sec. 86 of the RP Act for rejection of election petition and also filed an application under Order VI Rule 16 of the CPC for striking out of pleadings. The application is filed by respondent No.3 - Nitin Jairam Gadkari for rejection of plaint on the ground that as the petitioner is seeking declaration that he be declared as elected, all the contesting candidates other than the petitioner are required to be joined as respondents to the election petition. It is settled position of law that the provisions of Sec. 82 of the RP Act are mandatory in nature. Sec. 86(1) of the RP Act provides that an election petition which does not comply with the provisions of Ss. 81, 82 or 117 of the RP Act is required to be dismissed as election petition cannot be maintained seeking declaration of the petitioner being successful candidate in the absence of all contesting candidates being impleaded as respondents.