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V.P. Dhingra Vs. Nihal Singh, Etc. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 248 of 1983
Judge
Reported inAIR1985Delhi8; ILR1985Delhi482
ActsDelhi Municipal Corporation Act, 1957 - Sections 15(3)
AppellantV.P. Dhingra
RespondentNihal Singh, Etc.
Advocates: S.N. Sapra,; R.P. Bansal,; N.N. Agarwal,;
Cases ReferredShiv Chand v. Ujagur Singh
Excerpt:
.....section 15(3) of the act as the petitioner had failed to join as respondents six persons who were duly nominated candidates even though they had withdrawn their candidatures. hence, the present petition under article 227 of the constitution of india. dismissing the petition,;1. section 15(3) of the delhi municipal corporation act, 1957 requires a petitioner to join as respondents to his petition all the candidates at the election. under rule 82(2) of the delhi municipal corporation (election of councillors) rules 1962 any candidate not already a respondent shall, upon an application made by him to the court within fourteen days from the date fixed for the respondents to appear and subject to the provisions of rule 89, be entitled to be joined as a respondents. these provisions and no..........section 15(3) of the act as the petitioner had failed to join as respondents six persons who were duly nominated candidates even though they had withdrawn their candidatures. (4) the submission of mr. s. n. sapra, the learned counsel for the petitioner is that the petitioner is required under section 15(3) of the act to )oin as respondents only contesting candidates as they are the candidates at the election. the contesting candidates are those candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidatures within the period allowed. he contends that the 'candidate' defined under rule 79(a) has to be read with section 15(3) of the act. a limitation on the meaning of the candidate is sought to be placed by the counsel because of the.....
Judgment:

S.S. Chadha, J.

(1) This petition under Article 227 of the Constitution of India raises an important question of the inter- pretation of Section 15(3) of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act) and Rules 79(a), 81 and 82 of the Delhi Municipal Corporation (Election of Councillors) Rules, 1962 (hereinafter referred to as the Rules). The decision turns on the question whether a candidate who has withdrawn his candidature under Rule 19 is included within the words 'candidates at the election'.

(2) A general election of the councillors for the purposes of constituting the Municipal Corporation of Delhi (for short called the Corporation) under Section 3 of the Act was held on February 5, 1983. The last date for making the nominations was January 10, 1983. Besides the petitioner and respondents 1 to 7 herein, S/Shri Om Parkash, Hem Raj, Mohd. Aftab, Banarsi Lal, Som Nath and Raghunandan also filed their nomination papers from Ward No. 75 (Suiwalan) of the Corporation for the election of the councillor. The date for scrutiny of nominations was January 12, 1983. The last date for withdrawal of candidatures was January 15, 1983. The aforenamed six persons withdrew their candidatures on or before the date of withdrawal. The Returning Officer prepared in Form 7 a list of contesting candidates i.e. the petitioner and respondents 1 to 7 and published the same. The polling took place on February 5, 1983. Respondent No. 8 who was the Returning Officer, after the counting of the votes, declared respondent No. 1 to be the elected candidate defeating the petitioner by a margin of 35 votes.

(3) The petitioner filed a petition under Section 15 of the Act praying to the Election Tribunal that the election of respondent No. 1 be declared to be void on various grounds. The petitioner imp leaded all the contesting candidates who were made respondents 1 to 7 besides the Returning Officer and the Director of Municipal Elections but did not implead the candidates who withdrew their candidatures on or before the date of withdrawal. The election petition was assigned to the Court of ShriS. N. Kapoor, Additional District Judge, Delhi. Respondent No. 1 filed his written statement and raised a preliminary objection to the effect that the election petition was liable to be dismissed as the petitioner has not joined all the candidates at the election. The learned Additional District Judge framed a preliminary issue and after hearing dismissed the election petition by the impugned order dated May 21, 1983 on the ground that there was non-compliance of Section 15(3) of the Act as the petitioner had failed to join as respondents six persons who were duly nominated candidates even though they had withdrawn their candidatures.

(4) The submission of Mr. S. N. Sapra, the learned counsel for the petitioner is that the petitioner is required under Section 15(3) of the Act to )oin as respondents only contesting candidates as they are the candidates at the election. The contesting candidates are those candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidatures within the period allowed. He contends that the 'candidate' defined under Rule 79(a) has to be read with Section 15(3) of the Act. A limitation on the meaning of the candidate is sought to be placed by the counsel because of the expression 'at the election' used in Section 15(3). It is urged that the use of expression 'at the election' would indicate that a person would be a candidate for the purposes of election only if he remains a candidate right up to the time of poll. In support of it reliance is heavily placed on the decision of a Division Bench of the Bombay High Court in 'Sitaram Hirachand Biria V. Yograjsing Shankarsing Parihar and Others', : AIR1953Bom293 . It was a case in which the question of interpretation of the expression 'candidates' who are duly nominated at the election as used in Section 82 of the Representation of the People Act, 1951, before its amendment by the Amending Act, 1956 came up for consideration. It was held :

'NOW,the expression used by the Legislature is not 'all the candidates who were duly nominated', but 'all the candidates who were duly nominated at the election', and proper meaning and significance is to be given to the expression 'at the election'. If the intention of the Legislature was that the petitioner should join as parties all candidates whose nominations were accepted, irrespective of the fact whether they contested the election or not and irrespective of the fact whether they were candidates at the election or not, it is difficult to understand why the expression 'candidates who were duly nominated' is qualified by the expression 'at the election'. It is clear that there is a vital distinction between a candidate for an election and a candidate at an election. You are a candidate for an election long before the election takes place. You may cease to be a candidate for that election and you may not be a candidate at the election; 'At the election' emphasises the point of time when the election takes place. It emphasises the fact that you are a contestant at the election and that the voters have a right to vote for that candidate. It also emphasises the fact that the candidate has not withdrawn and has no right to withdraw 'and in law he must be considered to be a person who is contesting the election along with other candidates.....'

(5) Another submission of the counsel is that non-impleading of the candidates who had withdrawn their candidature on or before the date of withdrawal is not fatal and the defect could be subsequently cured and this point is to be determined at the trial and at the conclusion of the electron petition. It is urged that the candidates who withdrew their candidature were not at all concerned with the allegations made in the election petition with regard to the counting against the returned candidate and for this reason it is only at the conclusion of the trial that the Court can appreciate whether their presence before the Court as a party was necessary or not. Reliance is placed on 'Jagan Nath v. Jaswant Singh' : [1954]1SCR892 . That case was also concerned with an election dispute under the Representation of People Act, 1951 and the fact of non-compliance of the provisions of Section 82 as to the joining of the respondents to the election petition. It was held there that the non-joinder of duly nominated candidate who had withdrawn his candidature and had not contested the election, as a respondent to the election petition was not fatal to the petition as no prejudice was likely to result to the petitioner because the main ground on which the petition was based was that the petitioner's nomination papers had been wrongly rejected.

(6) Another fact of the same submission is that the provisions of Section 15(3) read with Rule 81 are not mandatory but only directory. Reference is made to Rule 82(2) which provides that any candidate can apply later to become a respondent. Reliance is placed on 'Jagan Nath v. Jaswant Singh' (supra) wherein their Lordship of the Supreme Court considered the provisions of the Representation of People Act, 1951 as to the impleading of the parties provided in Section 82 and it was ruled that the defect could .be subsequently cured by the Tribunal as the provision was not mandatory. It is urged that the provisions of a statute is not mandatory unless non-compliance is made penal. Even though Rule 81 provides for the dismissal of the election petition for non-compliance of provisions of Section 15(3), says the counsel, yet the provision is directory as the defect can be cured subsequently when a candidate not already a respondent is entitled to be joined as a respondent upon an application made by him to the Court.

(7) For proper appreciation of rival contentions of the parties it is necessary to refer to the relevant statutory provisions :

'15(1)Election petitions. No election of a councillor or an alderman shall be called in question except by an election petition presented to the court of the district judge of Delhi within fifteen days from the date of the publication of the result of the election under section 14.

(2)An election petition calling in question any such election may be presented on one or more of the grounds specified in section 17

(A)by any candidate at such election, or

(B)(i) in the case of an election of a councillor, by any elector of the ward concerned, (ii) in the case of an election of an alderman, by any councillor.

(3)A petitioner shall join as respondents to his petition all the candidates at the election ;

(4)An election petition

(A)shall contain a concise statement of the material facts on which the petitioner relies ;

(B)shall, with sufficient particulars, set forth the ground or grounds on which the election is called in question ; and

(C)shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. '

'R.79. In this part, unless the context otherwise requires (a) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate......'

'R.81. If the provisions of section 15 or rule 89 are not complied with, the court shall dismiss the petition ; Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.'

'R.82.

(1)As soon as the court receives the petition, it shall serve on each respondent a notice in such form as it thinks fit directing the respondent to appear before the court and answer the claim made in the petition on a day to be specified therein.

(2)Any candidate nol already a respondent shall, upon an application made by him to the court within fourteen days from the date fixed for the respondents to appear and subject the provision of rule 89 be entitled to be joined as a respondent.'

(8) The statutory provisions for settlement of disputes regarding elections are contained in Sections 15 to 21 of the Act. Section 15(3) provides that a petitioner shall join as respondents to his petition all the candidates at the election. Power to make the Rules is conferred by Section 31 of the Act. The Central Government has been empowered to provide for or regulate all or any of the specified matters for the purpose of holding of elections of councillors and aldermen under the Act, inter alia. :

'S. 31(k) any other matter relating to elections or election disputes in respect of which the Central Government deems it necessary to make rules under this section or in respect of which this Act makes no provision or makes insufficient provision and provision is, in the opinion of the Central Government necessary.'

The task of subordinate legislation necessary for implementing the purpose and objects of the enactment has been delegated. The Rules have been framed in exercise of the powers conferred by Section 31 of the Act. Rules covering the disputes regarding elections are contained in Part IV. Chapter I of it provides for the definitions in Rule 79. Chapter Ii deals with the election petitions and contains Rules 80 to 91. The Rules are to be considered as of the same effect as if contained in the Act. The Rules made under the Act are to be treated for all purposes of construction or obligation as if they are in the Act or as part of the Act. They are to be judicially noticed for all purposes of the obligations contained therein.

(9) The definition of the word 'candidate' in Rule 79 is for the purposes of Part IV. unless the context otherwise requires. 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election. It is thus wide enough to cover all persons who enter the election arena by seeking nomination. It includes persons who are either validly nominated or in case their nominations are rejected, still claims to have been duly nominated. The word 'election' has by long usage acquired both a wide and a narrow meaning. In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to count the entire process culminating in a candidate being declared elected (See 'Ponnuswami v. Returning Officer, Namakkal' 1 ELR. 133(3). The word 'election' can be and has been appropriately used with reference to the entire process which consists of several stages. There is no warrant to give a limitation on this meaning because of the use of the expression 'at the election' used in Section 15(3) of the Act.

(10) The present language of Section 82 of the Representation of the People Act, 1951 requires the joining in the petition as respondents three categories of candidates. It requires the joining of 'all the contesting candidates other than the petitioner' ill specified eventualities and 'all the returned candidates' at an other eventuality. A returned -candidate is one who has been elected and a contesting candidate is one who has not withdrawn his candidature as a duly nominated candidate. It also requires the joining of any other candidate against whom allegations of corrupt practice are made in the petition. In 'Har Swarup v. Brij Bhushan', : [1967]1SCR342 , their Lordships, while construing the provision of Section 79(b) and 82(b) held that a person who is a candidate as defined in Section 79(b) will remain a candidate even if he withdraws, till the election is over and if he commits a corrupt practice whether before or after his withdrawal he would be a necessary party under Section 82(b). The definition contained in Rule 79 of the Rules has similarly to be read in Section 15(3) to give it effect for obligation laid down therein. The contest does require and as a matter of fact it is necessary to give full meaning to the word 'candidate' used in Section 15(3) as defined by Rule 79.

(11) 'SITA Ram v. Yograjsing' (supra) was a decision under the provisions of Section 82 of the Representation of People Act, 1951 before its amendment by Act 27 of 1956. It provided that a petitioner shall join as respondents all the candidates who were duly nominated at the election other than himself if he was so elected. So was the decision is 'Jogan Nath v. Jaswant Singh' (supra) before the Supreme Court. In that case Baijnath, one of the candidates, whose nomination had been accepted but who had withdrawn his candidature subsequently, was not joined as a respondent to the election petition. An objection was raised that the omission to unplead Baijnath who was duly nominated was fatal to the maintainability. The Tribunal found that Baijnath was a proper party to be imp leaded in the case but the defect was not fatal. The Tribunal directed that he be added as a respondent in the petition. A writ petition to the High Court against the order of Tribunal was summarily rejected. On appeal by special leave, it was contended that the provisions of Section 82 were explicit and mandatory, and admitted of no exception. Their Lordships noticed several decisions of the Tribunals which held that all candidates duly nominated but who had withdrawn their candidatures are required to be imp leaded. The divergence of the opinion was whether the non-compliance with the provisions of Section 82 is or is not fatal to the election petition. The judgment of the Bombay High Court is noticed .that even a defective verification could be allowed to be amended. Their Lordship did not hold that a candidate who had been duly nominated as a candidate but who had withdrawn his candidature, was not a 'candidate who was duly nominated at the election'. The decision proceeds on the foundation that the duly nominated candidates even through they had withdrawn their candidatures are proper and necessary parties. The omission to implead them as party was held as an irregularity but not fatal. The decision of the Tribunal in that case was pronounced as right; meaning thereby that Baijnath was a candidate duly nominated at the election and is required to be joined as a respondent to the election petition.

(12) The view taken by the Supreme Court in ''Jagan Nath'i-: case (supra) that the provisions of Section 82 are not mandatory was on its construction before its amendment by the Amending Act of 1956. Section 90(3) now enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of Section 82 or Section 117 and is mandatory. The law was settled in 'K. Kamaraja Nadar v. Kunja Thevar and others', : [1959]1SCR583 :

'......If the provisions of S. 82 which prescribes who shall be joined as respondents to the petition arc not complied with, the Election Commission is enjoined under S. 85 of the Act to dismiss the petition and similar are the consequences of non-compliance with the provisions of S. 117 relating to deposit of security of costs. If the Election Commission however does not do so and accepts the petition, it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the respondents and then refer the petition to an election tribunal for trial. Section 90(3) similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of S. 82 or S. 117 notwithstanding that it has not been dismissed by 'the Election Commission under S. 85. Section 90(3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose.'

Rule 91 of the Rules similarly lays down that if the provision; of Section 15 or Rule 89 are not complied with. the Court shall dismiss the petition. The non-compliance of the provisions is made penal and hence has to be construed as mandatory.

(13) Section 15(3) of the Act requires a petition to join as respondents to his petition all the candidates at the election. Under Rule 82(2) any candidate not already a respondent shall, upon an application made by him to the Court within fourteen days from the date fixed for the respondents to appear and subject to the provisions of Rule 89, be entitled to be joined as a respondent. These provisions, and no other lay down the candidates who may be joined as respondents so an election petition. Section 15(3) obliges the petitioner to join as respondents all the candidates at the election. While under Rule 82(2) any candidate not already a respondent may seek and when he applies, is entitled to be joined as a respondent. The parties' to the election petition are statutorily named and are the election petitioners and all the candidates at the election. The procedure of joining the respondents is also provided in the statute. The legislature has provided in Rule 82(2) one mode of curing the defect or omission to join as respondent at the time of presenting the election petition- The petition would be bad and defect fatal if not cured at the instance of a candidate in the manner and within the time prescribed. The power of addition of parties when exercised will fulfill the mandatory requirements of Section 15(3) as to the joining of the respondents. The existence of Rule 82(2) does not suggest that Section 15(3) is directory. A similar provision is contained in Section 86(4) of the Representation of People Act, 1951 which came up for consideration, before the Supreme Court in 'Shiv Chand v. Ujagur Singh'. : [1979]1SCR520 . It was held :

'.....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 Section 84(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 bus to be tested in the light of S. 86(1) read with S. 82(b) of the Act.'

The provisions were still construed as mandatory.

(14) For the above reasons, the petition fails and is hereby dismissed with no order as to costs.


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