ZAINAL ABEDIN Vs. STATE

JUDGEMENT

(1.) This is an application by the respondent No. 1, returned candidates for dismissal of the Election Petition under section 86(1) read with section 82 of the representation of the People Act 1951 (hereinafter referred to as the said Act). The contention of the respondent No. 1, the applicant, herein is that the election petition was filed on 21.6.96 and one of the contesting candidates was not joined as a respondent. It has been submitted that it was obligatory on the part of the petition to join all the contesting candidates as required under section 82(1) of the said Act in as much as the applicant also prayed that he should be declared duly elected. It has been alleged in the petition that the trial of Election Petition is deemed to have commenced on 6th August, 1996, being the date fixed for respondent to appear before the High Court and to answer the claim made in the petition. It has also been alleged in paragraph 4 of the petition that the time to file Election Petition to accordance section 81(1) of the said Act expired on 21st August, 1996. It has further been alleged in paragraph 5 of the said application "the one of the contesting candidates who was not joined as a party by the petitioner in the Election Petition as stated above namely Md. Mostafa Melia made an application on 27.8.96 four or three days after the dates fixed for parties to answer the claim made in the election petition and His Lordship allowed him to be joined as the respondent No. 8 by order dated 27.8.96." It is further allegation in the application that the said Order was passed in violation of section 86(4) read with Explanation to of section 86 of the said Act. It has also been submitted that there is non-compliance of section 82(a) of the said Act and, accordingly, learned Advocate for the petitioner has submitted that the Election Petition should be dismissed under mandatory provisions of section 86(1) of the said Act.

(2.) Learned Advocate for the petitioner has submitted that under section 86(4) any candidate not being made a party in the Election Petition may be entitled to Join as a respondent within 14 days from the date of, commencement of the trial. According to him, in the instant case, the 14 days lime already expired when the addition was made on the application of Md. Mostafa one of the contesting candidates. In support of his contention Mr. Chakraborty, learned Advocate for the petitioner has relied upon the following decisions :-

(3.) Mr. Ajit Panja, learned Advocate for the petitioner has disputed the allegations and submissions made on behalf of the petitioner. He has submitted that the instant application is not maintainable. He has also submitted that allegations in paragraphs 3 and 4 of the petition are inconsistent with each other. On 27th August, 1996 an order was passed by me for addition of the said candidate Md. Mustafa Molla, who was originally not made a party in his own application. The said Order was passed without any objection of any of the parties as already recorded. It has been submitted by Mr. Panja that in view of the fact that the said order is already on record, there is no question of non-compliance with section 86 (1) and of the dismissal of the Election Petition. No challenge was made of the said Order by preferring any appeal. The application, at this stage for dismissal of the Election Petition, cannot be sustained. He has further submitted that the said Order dated 27th August, 1996, being already in the record of the Election proceeding of this court, there is no defect in the Election Petition as such and the respondent No.l is not entitled to make any prayer for dismissal at this stage on the plea that the effect of nonjoinder of said Md. Mostafa Mulla by the Election petitioner when the Election Petition was filed Is fatal. The said contention, according to Mr. Panja, is harried by the principle of res judicaia. Mr. Panja has also relied upon the judgment and decision of the Supreme court in the case of Shia Chand v. Pujagar Singh and Another reported in AIR 1978 SC 1583. Relying upon the said decision, he has submitted what is required under section 82 is the presence of every candidate, not how or at whose instance he has been joined as a respondent and In the instant case the court should not go into hyper technicality of the matter since the said unsuccessful candidate has already been joined and is on record. Mr. Panja has further submitted that the respondent No. 1, returned candidate, has always taken an obstructive attitude to the hearing of the Election Petition. As it appears from the record of proceedings and the instant petition has been filed only to delay the hearing of the petition.