VIVEK TIWARI Vs. DIVYARAJ SINGH

JUDGEMENT

(1.) I.A.No.49/2016

(2.) Placing reliance upon the judgments rendered by Supreme Court in the case of Jyoti Basu and others vs. Debi Ghosal and others, 1982 AIR(SC) 983 and B. Sundara Rami Reddy vs. Election Commission of India and others, 1991 Supp2 SCC 624, learned counsel for the respondent nos. 2, 3 & 4 have submitted that right to elect, to be elected or to dispute election, are neither fundamental rights nor common law rights but are statutory rights, confined to the provisions of the Representation of People Act, 1951, (hereinafter referred to in this order as "the Act" ) and the Rules made thereunder. Only candidates, expressly mentioned in sections 82 and 86 (4) of the Act, can be joined as respondents by the election petitioner and no one else can be so joined. Therefore, it has been prayed that the names of Respondent Nos.2, 3 & 4 be struck off as respondents from this election petition. It has further been submitted the respondent nos. 2, 3 and 4 shall be duty bound to produce documents, appear as witnesses or otherwise assist the Court in disposal of this election petition.

(3.) The petitioner has opposed the application by filing a written reply on the ground that the cases of Jyoti Basu and B. Sundara Rami Reddy are distinguishable on facts as in neither of aforementioned cases, allegations of bias and extending unfair advantage by the Election Commission to the elected candidate were made. In this case, the respondent Nos.2, 3 & 4 have been impleaded because the petitioner has made specific allegations against them. There have been allegations with regard to changing electronic voting machines in five polling booths. In three of them, a total of 5,288 votes were already cast. It is not clear whether those votes were counted or not. There are also allegations that the information required to be supplied to the polling agents to the election petitioner in Form No.17-C was furnished in plain papers. Some of the entries made thereunder were blank or incorrect. The original of those forms available on record of the Returning Officer differ from those supplied to the election petitioner which indicates that they were filledup latter to rectify the defects in the record.