DWIJENDRA LAL SEN GUPTA Vs. HAREKRISHNA KONAR

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution. It raises a short but interesting question of election law and procedure. The short point is whether under the Representation of the People Act, 1951 the Returning Officer is either a necessary or a proper party to an election petition.

(2.) The order against which this Rule was directed was an order of the Election Tribunal dismissing the application of the present petitioner, Sri Dwijendra Lal Sen Gupta, under Order 1 Rule 10 of the Code of Civil Procedure read with Section 90 of the Representation of the People Act, 1951, for adding the Returning Officer Sri Ajita Kanjan Mukherjee as a respondent and for issuing a notice on him as such.

(3.) The Election Tribunal relied on (i) the Surat Municipality Case, 2 Doabia's Election Cases, 340 and (2) Abdul Quadir Siddiqui v. Abul Hasan Natique, 1 Doabia's Election Cases 324 and dismissed the application for adding the Returning Officer as a party to the election petition. The two cases on which the election tribunal relied are not relevant for the decision and do not help in deciding the point raised. The first case on which the tribunal relied was the Surat Municipality case, but that case relates only to a suit for injunction and damages against the Returning Officer and it was held that no such suit or action could lie against the Returning Officer. That decision has nothing to do with the present question. Here the present question arose in connection with an election petition which is pending trial before the tribunal. It is not a suit but an election petition in the present instance. The second case on which the tribunal relied is 1 Doabia's Election Cases p. 324. This was a Legislative Assembly Election case in Central Provinces reported also in Hammond's Election Case 1920-35 at page 291. That case, however, lays down that it is not necessary, or proper, to make the Local Government or the returning officer a respondent to an election petition and that the returning officer when determining objections to a nomination paper is performing a judicial function. But it proceeds on to say that the returning officer "can only be joined as respondent if there is an imputation of misconduct, as distinct from an erroneous decision on a point of law". It, therefore, appears that this is an authority to say that if there is an allegation of misconduct then the returning officer is a necessary party. The Election Tribunal here fails to notice that in the present election petition which it was trying there is an averment or allegation of both mala fides and negligence. So while the case of Abdul Qadir Siddiqi is quoted by the Election Tribunal in support of his decision to reject the application for adding the Returning Officer as a party, that decision in effect and substance is against such a conclusion.