SHRILAL JANVA Vs. UDAI RAM DHAKAD

JUDGEMENT

(1.) By this order, I propose to decide issue No. 2, which was framed on October 10, 1980. It reads as under:

(2.) I have heard Mr. R. Mehta, learned counsel for the election-petitioner and Mr. R. C. Maheshwari, learned counsel for the respondent.

(3.) Mr. Maheshwari, learned counsel for the respondent invited my attention to the averments made in paras 5 to 17 of the petition and submitted that the allegations made against the Returning Officer are serious in nature. According to him not only this, there are allegations of fabricating false documentary evidence against the Returning Officer by insertion of certain writing which was according to the election-petitioner originally not there. Particular reference was made to the application filed by the petitioner on May 2, 1980 which has been marked as Annexure 1-A on record. He, however, submitted that the facts which are to some extent contradictory with each other if established may result in fastening criminal liability on the Returning Officer and, therefore, having regard to the peculiar circumstances of this case, the election-petition suffers from the defect of non-joinder of the Returning Officer and this defect is fatal for its maintainability. On the basis of the observations made in State of J. & K. v. Bakshi Gulam Mohammad, AIR 1967 SC 122, Purtabpur Co. v. Cane Commr., Bihar, AIR 1970 SC 1896, Jatan Kr. v. Golcha Properties, AIR 1971 SC 374 and Mohindersingh v. Chief Election Commr., AIR 1978 SC 851, he submitted that on the principles of natural justice without affording an opportunity to the Returning Officer to contest and controvert the allegations made against him, the finding regarding them cannot be arrived at so as to entitle the petitioner to get the relief which he has prayed for in the election petition. On the other hand, Mr. R. Mehta, learned counsel for the election- petitioner, argued that despite the allegations having been levelled against the Returning Officer and considering the scheme of the Act and Sections 80, 81, 82, 86, 98, 99, 116A and 117 of the Act, the Returning Officer is not a necessary party and the relief which the petitioner has prayed for in the petition can be granted without impleading the Returning Officer as a party-respondent. He placed reliance on Rama Pr. Roy Chowdhury v. Baidyanath Bandopadhya, (1971) 31 Ele LR 167 (Cal), Narendra Nath sen v. Mani Samual, (1971) 36 Ele LR 69 (Cal), Sayed Nizam-ud-din v. Hissam-ud-din, (1972) 42 Ele LR 274 (J & K), Raju V. B. v. K. I. Kasambhai, (1975) 52 Ele LR 24 (Guj) and S. Iqbalsingh v. S. Surdas Singh, AIR 1973 Punj & Har 163.