Full Judgment Text
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PETITIONER:
SHIV CHAND
Vs.
RESPONDENT:
UJAGAR SINGH & ANR.
DATE OF JUDGMENT31/08/1978
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
DESAI, D.A.
CITATION:
1978 AIR 1583 1979 SCR (1) 520
1978 SCC (4) 152
ACT:
Election fetition-Joinder of parties-Wherther an
election Counrt can reject an applection made under s,
86(4) of the Representation of the people act. 1951 by a
duly nominated candidate who has retired from the contest-
Public police behind s. 82(b) of the Act-in a petition
alleging corrupt candidates alleged of corrupt practice must
be arrayed as respondents-Words and phrases a candidate" in
s. 86(4) includes a a nominated candidate.
HEADNOTE:
In the election petition the appellant, a defeated
candidate in the General Eections held in June, 1977,
challenged the election of Respondent No 1 making, inter
alia allegations constituting a corrupt practice against the
returned candidate and also Respondent No. 2 a duly
nominated candidated who one among those retired from the
contest. An interlocutory application made by the
petitoner/appellant under order 1 Rule 10(2). order 6 rule
17 and S. 151 of the Civil Procedure Code seeking to implead
respondent No 2 or in the alternative permission for
deletion of the allegation of corrulpt practicc against
Respondent No. 2 as well as the motion made by Respondent
No.2 under s. 86(4) of the Act to implead him as a
respondent were rejected by the High court. The Election
Petition was also dismissed for non-joinder of Respondent
No.2 as a necessary party at the first instance and before
the preliminary objection was raised in the written
statement.
Allowing the appeal by special leave the Court.
^
HELD: (1) When the text is plain. in the absence of
compelling reasons there is no justification for truncating
its sense. Section 82(b) requires the presence of every
candidate against whom a corrupt practice haw been : What is
imperative is the presence as a respondent of such a
candidate. not how or at whose instance he has been joined
as a respondent[ 523 C-D]
The purpose is two fold. When injurious averments. are
made against a candidate natural justice necessitates his
being given an opportunity to meet those charges, because
the consequence of such averments being upheld may be
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disastrous for such candidate. Secondly, in the absence of
the party against whom charges have been levelled the
reality of the adversity system will be missed. Above all,
the constituency is vitally concerned with the investigation
into the proof or disproof of corrupt practices of candidate
but election. thus, the public policy behind s. 82(b) is the
compulsive presence of a candidate against whom corrupt
practice has been imputed.. lt is of no consequence whether
he has been joined at his own instance or by the election
petitioner. [523E-F]
(2) "Any candidate ....... shall....be entitled to be
joined as a respondent" in the clear wording of s. 86(4) of
the Act, entitles respondent No. 3 to bed joined as a
respondent, he being a candidate in the General Elections.
He is a necessary party since a corrupt practice was imputed
to him. [522 G. 523 B-C]
(3) S. 86(1 ) states that the High Court shall dismiss
an election petition which does not comply with the
provisions of s. 82. The test is whether the;
521
election petition complies with the provisions of s. 82, not
whether the election petitioner has failed to comply with s.
82. The substance of the matter must govern, because
hypertechnicality, when the public policy of the statute is
fulfilled, cannot be permitted to play the procedural tyrant
to defeat a vital judicial process, namely, investigation
into the merits of the case. If respondent No. 2 is
impleaded, the election petition, in this case cannot be
dismissed under s. 86(1) of the Act. [523 H, 524 A-B]
(4) The refusal of the Court to implead Sri Mal Singh
is illegal and based on a misinterpretation of the
provisions of the sections of the Act. [524 C]
(a) S. 86(4) cannot be read down to cover any such
candidates as or not required to be impleaded as respondents
under s. 82 of the Act. The grammatical construction of "any
candidate" does not admit of such a narrow and artificial
meaning. Shri Mal Singh, having been a candidate is one
entitled to come within s. 86(4). On his application the
Court shall implead him. In this view the question of
substantial compliance and the mandatory or directly nature
of the prescription in s.82(b) does not arise [524 D-E,G]
R. Satyanarayana & Ors. v. Saidayya & Ors., AIR 1969
A.P. 151 dissented to and overruled.
(b) Procedural tyranny compounded by lexically
unwarranted technically cannot be tolerated in a Court. The
provisions of the Representation of the people Act where
they lay down specific prescriptions must prevail and cannot
be frustrated by importing the Code of Civil Procedure. The
provisions of the Code of Civil Procedure, especially Order
6 Rule 17 and Order 1 Rule 10 cannot be used in such a
manner as to defeat the procedural policy and statutory
imperative of s. 82 of the Act . [524 H, 525 B]
In the instant case, s.86(4) of the Act itself entitles
Mal Singh to be joined as respondent. That right cannot be
defeated and once he comes on record as party the petition
is in order and cannot be dismissed for non-joinder.
Moreover once Mal Singh comes on the party-array, by virtue
of s. 86(4), the fatal infirmity, if any, must be judged
with reference to the petition as amended by the addition of
the new respondent. It is the amended petition consequent on
the addition under s. 86(4) of Mal Singh that has to be
tested in the light of s. 86(1) read with s. 82(b) of the
Act. [525 A-C]
Mohan Raj v. Surendra Kumar Taparia & Ors. [1969] 1 SCR
630, explained.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil appeal No. 2199 of
1977.
From the Judgment and Decree dated 29-11-1976 of the
Allahabad High Court in Special Appeal No. 378 of 1974.
G. B. Pai and O. P. Rana for the Appellant.
R. K. Garg, V. J. Francis, Madan Mohan, K. P. Aggarwal
and Manju Gupta for Respondents 1 and 2.
Manoj Swarup and Lalita Kohli for the Intervener.
522
The Judgment of the Court was delivered by
KRISHNA IYER, J.-An election petition became an infant
casualty because of an alleged non-joinder of a necessary
party as visualised by S. 82(b) of the Representation of the
People Act, 1951 (the Act, here after). That premature
dismissal. by-passing investigation into the merits, has
driven the petitioner-appellant to this Court where he has
urged that the ends of law and justice have been stultified
by the strangely technical view taken by the High Court in
its dismissal order.
A few facts, and then, a brief discussion, the point
being res integra so far as this Court is concerned. The
appellant before us is the election-petitioner, having been
a defeated candidate in the General Elections held in June,
1977. There were quite a few candidates, including one Shri
Mal Singh, who appears to have retired from the contest for
the seat although duly nominated as a candidate. The
respondent was returned as the successful candidate and the
disappointed petitioner challenged the election by filing a
petition wherein, inter alia, he made allegations
constituting a corrupt practice against the returned
candidate and Shri Mal Singh. To such a pleading S. 82 is
attracted. That provision states that a petitioner shall
join as respondent to his petition any candidate against
whom allegations of any corrupt practice are made in the
petition. By this mandate, the petitioner was bound to
implead as respondent Shri Mal Singh. But he omitted to do
so initially. The respondent, in his written statement,
raised a preliminary objection that the failure to join
Shri Mal Singh as a respondent entailed dismissal of the
election petition. The case was adjourned for arguments on
the preliminary issue to September 15, 1977. In the
meanwhile. On September 8, 1977, an interlocutory
application was filed by the election-petitioner under order
1 Rule 10(2), order 6 Rule 17 and S. 151, Code of Civil
Procedure, seeking to implead as respondent No. 2, the said
Mal Singh. In the alternative, he prayed for deletion of the
allegation of corrupt practice against Shri Mal Singh. On
the same day, Shri Mal Singh filed an application under S.
86(4) of the Act praying that he be impleaded as respondent
to the election petition. Thus, there was a motion for
impleadment by the election petitioner as well as by Shri
Mal Singh and they were disposed of together by an order
which is under appeal.
It is fairly clear that Shri Mal Singh was a necessary
party since a corrupt practice was imputed to him. He made
an application to be impteaded as respondent exercising the
procedural right he had under S. 86(4) of the Act which
reads thus:
"86(4) Any candidate not already a respondent.
shall, upon application made by him to the High Court
within fourteen days from the date of commencement of
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’he trial
523
and subject to any order as to security for costs which
may A be made by the High Court, be entitled to be
joined as a respondent.
Explanation.-For the purpose of this sub-section and of
section 97, the trial of a petition shall be deemed to
commence on the date fixed for the respondents to
appear before the High Court and answer the claim or
claims made in the petition.
Shri Mal Singh did apply within the stipulated period,
and a plain reading of the provision just re-produced
entitles him to be joined as a respondent. Any candidate
shall be entitled to be joined as a respondent, on the clear
wording of the section and since Shri Mal Singh is a
candidate he is entitled to be joined as a respondent. When
the text is plain, in the absence of compelling reasons,
there is no justification for truncating its sense. If Shri
Mal Singh is impleaded on his application then the election
petition will have on the party array the candidate against
whom allegations of corrupt practice have been made in the
petition. That is to say, S. 82(b) will stand fulfilled. It
is obvious that S. 82(b) requires the presence of every
candidate against whom a corrupt practice has been alleged.
What is imperative is the presence as a respondent of such a
candidate, not however at whose instance he has been joined
as a respondent. The purpose is obvious and two fold. When
injurious averments are made against a candidate natural
justice necessitates his being given an opportunity to meet
those charges, because the consequence of such averments
being upheld may be disastrous for such candidate. Secondly,
in the absence of the party against whom charges have been
levelled the reality of the adversary system will be missed.
Above all, the constituency is vitally concerned with the
investigation into and proof or disproof of corrupt
practices of candidates at elections. Thus, the public
policy behind S. 82(b) is the compulsive presence of the
candidate against whom corrupt practice has been imputed. It
is of no consequence whether he has been joined at his own
instance or by the election-petitioner. In the present case,
the petitioner did move to bring on record Shri Mal Singh
but that was rejected. The petitioner alternatively sought
to delete the corrupt practice imputed to Shri Mal Singh.
That too was refused, if we may say so rightly. The short
question is whether the court was right in rejecting the
request of Shri Mal Singh to be ranked as a respondent when
his application was otherwise in order.
We are satisfied that if he is impleaded as a
respondent the election petition cannot be dismissed under
S. 86(1) of the Act. That provision states that the High
Court shall dismiss an election petition which does
17-526 SCI/78
524
not comply with the provisions of S. 82. The test is whether
the election petition complies with S. 82, not whether the
election-petitioner has failed to comply with S. 82. The
substance of the matter must govern, because hyper-
technicality, when the public policy of the statute is
fulfilled, cannot be permitted to play the procedural tyrant
to defeat a vital judicial process, namely, investigation
into the merits of the election petition.
The result of the discussion is that Shri Mal Singh was
entitled to have been impleaded as respondent. The refusal
by the court to do so is illegal and based on a
misinterpretation. Had he been impleaded the dismissal of
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the election petition would have been illegal.
Let us examine the reasons given by the learned Judge
for the course he has adopted. Counsel for the respondent,
in supporting the reasoning of the High Court, has relied on
a ruling in R. Satyanarayana & ors. v. Saidayya and ors.(1)
The argument which has appealed to both the courts is the
same and we regard it as fallacious. We do not propose to
examine the discretionary dismissal of the application by
the election-petitioner under order 1 Rule 10, et al, to
implead Shri Mal Singh. We confine ourselves to S. 86(1) and
S. 86(4) of the Act. According to the learned Judge, S.
86(4) has to be read down to cover only such candidates as
are not required to be impleaded as respondents under S. 82
of the Act. For one thing, the grammatical construction of
"any candidate" does not admit of such a narrow and
artificial meaning. The reason given by the court hardly
impresses us. Indeed, we are not able to conceive easily of
a case where a candidate who is neither the returned
candidate nor one against whom corrupt practices are imputed
would care to implead himself as respondent. He serves no
purpose by getting so impleaded except the teasing and
gaining experience of being a litigant. The mere assertion
by the trial court that S. 86(1) would be rendered nugatory
by a candidate like Mal Singh taking recourse to the
provisions of sub-section (4) of s. 86 does not carry
conviction nor are we able to glean into the intention of
the legislature as the learned Judge states. Shri Mal Singh,
having been a candidate, is one entitled to come within s.
86(4). On his application the court shall implead him. In
this view, the question of substantial compliance and the
mandatory or directory nature of the prescription in S.
82(b) do not arise.
Shri Mehta relied upon Mohan Raj(2) heavily. The
question raised there was whether the provisions of the Code
of Civil Procedure, especially order 6 Rule 17 and order 1
Rule 10 could be used in such
(1) AIR 1969 A. P. 151.
(2) Mohan Raj v. Surendra Kumar Taparia & ors. [1969] 1
SCR 630
525
a manner as to defeat the procedural policy and statutory
imperative of A S. 82 of the Act. Obviously that cannot be
done because the provisions of the Representation of the
People Act where they lay down specific prescriptions must
prevail and cannot be frustrated by importing the Code of
Civil Procedure. Here, however, S. 86(4) of the Act itself
entitles Mal Singh to be joined as respondent. That right
cannot be defeated and once he comes on record as party the
petition is in order and cannot be dismissed for non-
joinder. Procedural tyranny compounded by lexically
unwarranted technicality cannot be tolerated in a court.
Moreover, once Mal Singh comes on the party array by virtue
of S. 86(4) the fatal infirmity, if any, must be judged with
reference to the petition as amended by the addition of the
new respondent. It is the amended petition consequent on the
addition under S. 86(4) of Mal Singh that has to be tested
in the light of S. 86(1) read with S. 82(b) of the Act.
Several decisions have been cited before us by both the
sides to buttress up their respective stances but we find
only marginal relevance for those decisions and do not
burden this judgment with the citations.
In this view, issue No. 2 was wrongly decided by the
High Court. We hold that Shri Mal Singh should have been
impleaded as a respondent. Since he has applied in this
Court also for the same relief we direct him to be joined as
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a respondent to the election petition. We are not impressed
with the submission of Shri Mehta for the respondent that
there are suspicious features suggestive of collusion
between the election-petitioner and Shri Mal Singh and that
for that reason the petition to implead filed by Shri Mal
Singh should be dismissed. It is quite conceivable that Shri
Mal Singh against whom serious allegations have been made in
the election petition would have sought to be impleaded so
that he could clear the aspersions made against him, to the
satisfaction of the constituency through an adjudication in
the court. Even assuming that there was an element of
collusion that would not deprive him of his entitlement
under S. 86(4) of the Act. Perhaps the respondent
(successful candidate) may well rely on these and other
features when enquiry is made into the merits of the matter
and seek to persuade the court that when the petitioner
himself was willing to abandon the allegations and Shri Mal
Singh appeared on the scene under coincidentally dubious
circumstances, the charge was liable to be disbelieved. It
is not for us in this Court to express any opinion, one way
or the other, on the matter except to point out that even
assuming Shri Mehta’s assumption of mala fides or collusion
it has no bearing on the right of Shri Mal Singh to be
joined as a respondent.
526
The upshot of the above discussion is that the appeal
has to be allowed, that Shri Mal Singh has to be impleaded
as respondent No. 2, that the finding on Issue No. 2 should
be set aside and the election petition remanded to the trial
court to be restored to file for expeditiousdisposal on
merits. We allow the appeal but in the circumstances direct
the parties to bear their costs throughout.
S.R. Appeal allowed
527