RAM KHELAWAN PATEL Vs. RAJENDRA KUMAR SINGH

JUDGEMENT

(1.) This order shall govern disposal of I.A. No. 22/2014, which is an application filed by respondent No. 1 under Order VII Rule 11 of the CPC read with Section 86 of the Representation of People Act, 1951 (hereinafter referred to as the Act of 1951) inter alia on the ground that the petitioner has called in question the election of respondent No. 1 from Assembly Constituency No. 66, Amarpatan on the following grounds :-

(2.) It is further submitted that though in the instant election petition, the petitioner is seeking his own declaration as the returned candidate but as per the mandatory requirement of Section 82 of the Act of 1951, the petitioner has not arrayed all the contesting candidates as the respondents in the election petition, therefore, on the ground of non-joinder of all the candidates, the election petition is liable to be dismissed at threshold. It is further submitted that the pleadings contained in the election petition do not disclose any cause of action because no specific pleading in any paragraph of the election petition discloses any cause of action. The pleadings of election petition are vague and trial cannot not be proceeded on such pleadings. Verification and affidavit filed along with the election petition are not in accordance with law. It is further submitted that there is an apparent non compliance of the provisions of Section 81, 82, 83 and 86 of the Act of 1951, therefore, this election petition is liable to be dismissed at threshold without trial.

(3.) In the reply, the petitioner has denied all the contentions raised in the application and it is submitted that in compliance of Section 83(b) of the Act of 1951, the petitioner has set forth full particulars of corrupt practice including as full statement as possible of the names of the parties alleged to have committed such corrupt practice and date and place of commission of such corrupt practices. It is further submitted that the petitioner has filed the affidavit in the prescribed format in support of the allegations of aforesaid corrupt practices and particulars thereof. So far as non-compliance of Section 82(1) of the Act of 1951 is concerned, a bare perusal of Section 82(a) makes it ample clear that the petitioner is required to implead all the contesting candidates in the array of respondents, if he claims a declaration to the effect that he himself or any other candidate has been duly elected. However, in the instant election petition, the petitioner has not prayed that he or any other candidate be declared as duly elected candidate and as such there is no requirement to implead all the contesting candidates as respondents in the election petition. In fact the petitioner has prayed that he be declared as the returned candidate. 'Returned candidate' is completely and totally different from the candidate who has been duly elected and therefore, in the light of strict construction of the Act of 1951, the election petition cannot be said to be in contravention with Section 82(a) of the Act of 1951. It is further submitted that as per definition provided in Section 79(f) of the Act of 1951, the returned candidate means the candidate whose name has been published under Section 67 of the Act of 1951 as duly elected. The expression 'returned candidate' is in the context of the candidate who has been declared elected under the previous part of the Act of 1951 and it makes obvious that publication of duly elected candidate in the gazette makes him the returned candidate, therefore, expression 'returned candidate' is only for the purpose of the election dispute and for all other purposes, this expression cannot be used, therefore, in the Act the expression used by the legislature as duly elected candidate not the returned candidate. It is further submitted that in the instant petition, the petitioner has claimed that he be declared as returned candidate, which is a kind of prayer, which cannot be granted by the High Court and as such for this reason itself, the case of the petitioner does not fall within the purview of Section 82(1) and consequently Section 86 of the Act of 1951. On the basis of the aforesaid submissions, the petitioner has prayed for dismissal of the application filed by respondent No. 1 under Order VII Rule 11 of the CPC read with Section 86 of the Representation of People Act, 1951.