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Shriniwas Vs. Keshri Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 104 of 1982
Judge
Reported inAIR1984Raj14; 1982()WLN740
ActsRajasthan Municipality (Elcetion of Chairman, Vice-Chairmen, President and Vice-President) Rules, 1959 - Rules 4(3), 7, 10(2) and 10(8); Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 22; Rajasthan Municipalities Act, 1959 - Sections 37 and 44(3) and 66
AppellantShriniwas
RespondentKeshri Chand and ors.
Appellant Advocate M.M. Singhvi, Adv.
Respondent Advocate U.N. Bhandari,; M.C. Surana and; B.R. Mehta, Advs.
DispositionAppeal dismissed
Cases ReferredIn K. Kamaraja Nadar v. Kunju Thewar
Excerpt:
interpretation of statutes - word--more than one meaning possible--held, court should adopt just & reasonable meaning;there can be no doubt that in selecting the one apt meaning out of different interpretations, the court should adopt that which is just, reasonable and sensible and should avoid giving the word or expression a meaning which may lead to a manifest contradiction with the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice, which is presumably not intended by the legislature.;(b) rajasthan municipalities (election of chairman vice chairman, president and vice president) rules 1959 - rule 10(8)--candidate continues to remain as a contesting candidate--held, he cannot be ignored;the member concerned remains to be a only nominated.....dwarka prasad, j.1. a short but interesting question as to whether a person receiving no vote at an election should be considered to have obtained the lowest member of votes or not arises in this case.2. the undisputed facts are that for the election to the office of chairman of the municipal board, nokha four persons were duly nominated as candidates. the voting was completed in three rounds and the votes obtained by each one of the four candidates in the three rounds ware as under :--ist roundiind roundiiird round1.kesarichand5582.shri niwas7873.gangadutt32104.dev kishan08-('e' stands (or elimination)3. the respondent kesarichand obtained the highest number of votes in the third round and as such he was declared elected to the office of chairman of the municipal board, nokha. the case.....
Judgment:

Dwarka Prasad, J.

1. A short but interesting question as to whether a person receiving no vote at an election should be considered to have obtained the lowest member of votes or not arises in this case.

2. The undisputed facts are that for the election to the office of Chairman of the Municipal Board, Nokha four persons were duly nominated as candidates. The voting was completed in three rounds and the votes obtained by each one of the four candidates in the three rounds ware as under :--

Ist

roundIInd

roundIIIrd

round1.Kesarichand5582.Shri Niwas7873.Gangadutt32104.Dev Kishan08-('E' stands (or elimination)

3. The respondent Kesarichand obtained the highest number of votes in the third round and as such he was declared elected to the office of Chairman of the Municipal Board, Nokha. The case of the petitioner-appellant is that Devkishan having received no vote in the first round, he should not have been considered at all to have been a candidate at the election and Gangadutt should have been eliminated in the first round on the basis of receiving the lowest number of votes and thus there should have been only two rounds and not three rounds.

4. In his election petition the petitioner-appellant not only prayed that the election of Kesari Chand be set aside but he also claimed that he should be declared to have been duly elected as Chairman of the Municipal Board. Nokha, probably on the assumption that if, there would have been only two sounds he might have received the highest number of votes. The Munsif, Nokha, acting as the Election Tribunal, did not agree with the contention of the petitioner and dismissed the election petition filed by him. As such, the petitioner has come up in appeal before this Court.

5. The election to the office of Chairman of the Municipal Board, Nokha is governed by the provisions of the Rajasthan Municipalities (Election of Chairman, Vice-Chairman, President and Vice-President) Rules, 1959 (hereinafter referred to as 'the Election Rules'). Rule 10, which is relevant for the present purpose, runs as under:--

'10. Voting and result of election:-- (1) The Returning Officer shall cause such arrangement to be made as will ensure the secrecy of the ballot.

XXXXX

(8) The Returning Officer shall after the voting is over,

(a) open the ballot box and count the votes in the presence of such members as may be present and declare the result in the following manner,--

(i) if there are only two candidates, the one who secures the larger: number, of votes shall be declared to have been elected.

(ii) if there are more than two candidates, the one who obtains the lowest votes shall be eliminated and the votes taken again. If there is an equality of votes among all the candidates or if two or more candidates lowest on the list have obtained an equal number of votes the Returning Officer shall ascertain by lots in the presence of the members as to which of them shall be eliminated. The elimination shall be repeated until two candidates only are left, when votes shall be taken for the last time and candidates who secures the largest number of valid votes shall be declared to have been duly elected. In the event of there being an equality of votes at the final stage between the two remaining candidates, the Returning Officer shall draw lots in the presence of the members and the candidate whose name is first drawn shall be declared to have been duly elected.'

6. Thus, if there are only two candidates, the one who secured the highest number of votes will be declared to be duly elected; but if the number of candidates who are duly nominated is more than two, then the election has to take place by the process of elimination subject to the condition that only one candidate, who obtains the lowest votes, would be eliminated at one time and the votes would be taken again and thus the process of elimination shall be repeated until only two candidates are left in the field, when the votes would be taken for the last time and the candidate who obtains the larger number of votes would be declared elected. In case two or more candidates, who are lowest in the list obtained equal number of votes, even then only one candidate would be eliminated in one round, which shall be decided by drawing lots.

7. Now, learned counsel for the appellant submits that a person who did not obtain any vote at all at the election has to be ignored as if be was not a candidate at all and the candidate obtaining the lowest number of votes, meaning thereby one or more valid votes, should be eliminated in each round, because according to him a person receiving no vote could not be considered to have obtained the lowest votes. On the other hand, learned counsel for the respondent argues that a person having received no vote should be considered to have received zero vote, which according to him would necessarily be the lowest number of votes and only that person could be eliminated in the first round. Thus, according to the learned counsel for respondent Kesri Chand, the Officer conducting the election properly carried out the mandate of the statute in eliminating one of the duly nominated candidates in one round and thus, the election process was rightly completed in three rounds, in accordance with the provisions of Rule 10 (8) (a) (ii).

8. Thus, the law provides that a candidate who obtains the 'lowest votes' has to be eliminated and then votes are to be taken again and the process of elimination has to be repeated until only two candidates are left in the field. The question which, therefore, arises in this case is as to what is the meaning of the expression 'the lowest votes' occurring in Rule 10 (8) (a) (ii). The principles in respect of interpretation of statutes are welt established. Maxwell, in his treatise on Interpretation of Statutes (12th Edition), has stated as under at page 76 :--

'The words of a statute, when there is doubt about their meaning, are to be understood in the sense in which they best harmonise with the subject of the enactment. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject, or in the occasion on which they are used, and the object to be attained.'

The aforesaid passage was quoted with approval by their Lordships of the Supreme Court in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, AIR 1958 SC 353 and also in State of Uttar Pradesh v. C. Tobit, AIR 1958 SC 414. In New India Sugar Mills v. Commr. of Sales Tax. Bihar, AIR 1963 SC 1207 Shah, J., speaking for the Supreme Court, observed as under (at p. 1213):--

'It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the Statute, and which effectuate the object of the legislature.'

9. It is also well established that the meaning of a word or an expression is not to be taken in the abstract sense but regard must be had to the setting in which the word or expression occurs, as also to the subject matter and object of the enactment. In the face of the above decisions, the aforesaid factors gain greater importance in finding out the true meaning out of the rival interpretations, which may be reasonably placed upon such words. There can be no doubt that in selecting the one apt meaning out of different interpretations the Court should adopt that which is just, reasonable and sensible and should avoid giving the word or expression a meaning which may lead to a manifest contradiction with the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice, which is presumably not intended by the legislature.

10. Now in order to give a proper meaning to the expression 'lowest votes', occurring in Rule 10 (8) (a) (ii) of the Election Rules, the setting in which the provision containing these words occurs, has to be considered. The Chairman of a Municipal Board is to ba elected from amongst the members of that Board. Rule 5 of the Election Rules provides that candidates for election to the office of the Chairman of the Board shall be nominated by submitting a nomination paper in the prescribed form, duly signed by two members of the Board as proposer and seconder thereof and the nomination shall also contain a declaration signed by the candidate expressing his willingness to stand at the election. After the time fixed for the receipt of the nomination papers is over, the Returning Officer has to publish a list containing the names of the candidates, whose nomination papers have been received by him. Thereafter, the Returning Officer shall scrutinise the nomination papers on the date appointed for the purpose and decide all the objections that may be taken to the nomination papers. The Returning Officer shall then publish a list containing the names of all the validly nominated candidates for the office of the Chairman of the Board, at least one day before the date of the meeting to be held for election of the Chairman. A candidate, who has been duly nominated, can withdraw his candidature at any time before the commencement of the election. Thus, the poll would take place only in respect of those duly nominated candidates, whose names find place in the list which is published under Rule 7 and who have not withdrawn their candidature. It is only thereafter that the stage of actual voting is reached and every member, wishing to vote, may cast his vote on the ballot paper in favour of a duly nominated candidate by placing a cross mark against the name of such candidate for whom he wishes to vote. Ordinarily speaking, it is not possible to ignore a duly nominated candidate whose name is contained in the list published under Rule 7 and who has not withdrawn his candidature, even if he does not receive any vote at all. After all, according to the aforesaid procedure pre-scribed in Rules 5 to 9 of the Election Rules, a candidate for being duly nominated for the office of the Chairman of the Board has to be proposed by one member of the Board and seconded by another member thereof and such candidate is also required to express his consent or willingness for standing at such election in writing. It is only after a member of the Board becomes duly nominated candidate and in case he does not withdraw his candidature, then only he can become a contesting candidate for election to the office of the Chairman of the Board.

11. Thus it is difficult to ignore such a contesting candidate, although he may not receive any vote at all when the actual poll takes place. According to the prescribed procedure, only one candidate can be eliminated in ope round. Even if two or more contesting candidates, obtain the lowest number of votes, then also only one of them can be eliminated at one time or in one round and the question as to who amongst such duly nominated candidates, obtaining equal number of votes, is to be eliminated in that round, has to be determined by the Returning Officer by drawing lots in the presence of the members. If the argument of the learned counsel for the appellant is accepted, then two candidates would have been eliminated together in the first round, one on the ground that he did not obtain any vote at all and the other on the ground that he obtained the lowest number of votes in that round. Such a procedure would be contrary to the very spirit and contents of the provisions of Rule 10 (8) (a) (ii) of the Ejection Rules, wherein it has been specifically provided that only one person can be eliminated in one round. Thus it is not possible to eliminate more than one candidate at one time or in one round. In the face of express provisions contained in Rule 10 (8) (a) of the Election Rules, it is not possible to accept the contention of the learned counsel for the appellant that a duly nominated candidate ceases to be a candidate for election to the office of the Chairman of the Board because he receives no votes. In any view of the matter, the member concerned remains to be a duly nominated candidate and a contesting candidate as well, since he did not withdraw his candidature in accordance with Rule 8 of the Election Rules, If the concerned candidate continues to remain as a contesting candidate, be cannot cease to he a candidate and he cannot be ignored until such a contesting candidate is eliminated by following the process provided in Rule 10 (8) (a) (ii).

12. 'Low' according to Webster's third New International Dictionary means 'less than normal'. 'Lowest votes' would represent the smallest number of votes obtained by a candidate and 'number' represents the result of count, in which the units are considered as individuals. In the Random House Dictionary of English Language 'Zero' has been defined as a mathematical value, intermediate between negative and positive values. In Webster's Third New International Dictionary 'zero' has been defined as lowest point or lowest in order. The Arabic numericals begin with zero or cypher. Thus it cannot be denied that 'zero' represents the lowest point or degree or the lowest number of votes which can possibly be obtained by a candidate. If a candidate does nut obtain any vote, he will be said to have obtained zero vote. 'Zero' undoubtedly has a mathematical value intermediate between positive and negative values. Every member of the Board has one vote and if a duly nominated candidate does not receive the vote of even one of the members, then he would be considered to have obtain zero vote, because votes have to be counted in terms of numbers. In my view, once a candidate is duly nominated and his name is contained in the list published under Rule 7 of the Election Rules and if he does not withdraw his candidature, then such a candidate cannot be ignored merely because at the time when the actual poll takes place he does not receive even a single vote. Such a candidate will be a contesting candidate and he should be considered to have received zero vote, which is the lowest number of votes which a candidate could possibly receive at the election. The minimum votes which can be obtained by a contesting candidate at the election can be zero or one or more and only one of the candidates, obtaining the lowest number of votes, could be eliminated at one time or in one round, according to the procedure prescribed in Rule 10 (8) (a) (ii) of the Election Rules. Thus, a candidate having received zero vote, being undoubtedly a contesting candidate, will be held to have obtained the lowest votes in that round and he alone would be liable to be eliminated while the votes would be taken again for the remaining contesting candidates. Supposing at a particular election two candidates obtain zero votes, if the argument of the learned counsel for the appellant is to be accepted, then both such candidates would automatically stand eliminated having obtained no vote and a third candidate would also be eliminated in the same round who obtain some votes but lesser number of votes than others. In this manner, it would be possible to eliminate two or more candidates at the same time or in the same round, but it does not appear to be the intention of the legislature that more than one of the contesting candidates should be eliminated in one round. That is why it bus been provided in Rule 10 (8) (a) (ii) that even in case of equality of voles at the lowest point, only one such candidate would be eliminated by drawing of lots, because two candidaies cannot be eliminated at the same time. There is thus no doubt in my view, that a contesting candidate does not cease to be a candidate merely because he does not obtain even a single vote at the time of poll, but, of course, he can be eliminated by the procedure provided in Rule 10 (8) (a) (ii) of the Election Rules on the basis of having obtained the lowest votes.

13. In Baxi Ram v. Ashwani Kumar, 1965 Raj LW 111 it was observed by a learned Judge of this Court that not filing a list of witnesses, in mathematical terms, would mean the same thing as filing a list containing no name of any witness, as a cypher or zero is one of the numerals by which all the numbers can be expressed. The Random House Dictionary of the English Language defined 'digit' as 'any of the arabic figures of 1 through 9 and 0'. The Election Tribunal, therefore, appears to be right in holding that the Returning Officer had to conduct the poll is three rounds as there were four duly nominated candidates and only one candidate could be eliminated in one round. In the first round Devkishan obtained 'zero' vote and so he was eliminated in the second round and Gangadutt who obtained the lowest number of votes in that round was eliminated in the third round and only two candidates were then left in the field and as Kesri Chand secured larger number of votes than the petitioner-appellant, he was rightly declared to have been elected as the Chairman of the Municipal Board, Nokba.

14. Learned counsel for the respondent urged that the election petition filed by Sri Niwas was liable to be dismissed on another ground, namely, that the two other contesting candidates were not made parties to the election petition. Mr. Singhvi, appearing for the appellant objected to the respondent's raising the submission without filing any cross-objection. The Election Tribunal decided the issue relating to the non-maintainability of the election petition in favour of the petitioner and held that the election petition could not be dismissed on the ground that two of the contesting candidates were not made parties to the petitioo. The argu-ment of Mr. Singhvi is that if the respondent desired to challenge the finding of the Election Tribunal on that issue, which was decided in favour of the petitioner-appellant, then the respondent should have filed a cross-objection under Order 41, Rule22, C. P. C. in this respect and in the absence of the cross-objection, the question cannot be allowed to be raised by the respondent in the present appeal The relevant part of Order 41, Rule22, C. P. C. runs as under:--

'22. Upon hearing respondent may object to decree as if he had preferred separate appeal.-- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection to the decree which he would have taken by way of appeal, provided he has filed such objection in the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow.

Explanation.-- A respondent aggrieved by finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection is respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the deci-sion of the suit, the decree, is, wholly or in part, in favour of that respondent.'

15. The aforesaid provision authorises a respondent, even if he has not filed aa appeal from any part of the decree, to

(i) support the decree;

(ii) challenge any finding against him by the Court below in respect of any issue and argue that the finding of that issue ought to have been in his favour; and also

(iii) take any cross objection to the decree which he could have taken by way of an appeal.

16. Only with regard to the last part of the aforesaid provision, the filing of cross objections in the manner provided in Order 41, Rule22, C. P. C. is necessary. But in order to support the decree or in order to argue that the finding in respect of an issue should have been in his favour, the respondent is not required be file a cross-objection. The explanation which has been added by the amending Act No. 104 of 1976 to Order 41, Rule 22, C. P. C., makes the position further clear and it provides that if the respondent is aggrieved by the finding of the lower Court, he may file cross objections in respect of the decree, in so far as it is based on that finding. Thus it is not necessary or imperative for the respondent to file a cross-objection when the decree passed by the lower Court is wholly in his favour, although the finding in respect of one or more issues might have been recorded against him by the lower Court, because the finding of that issue does not affect the ultimate decision or the decree passed by the lower Court. Thus, a respondent would be debarred without filing a cross-objection from agitating before the appellate Court a question decided against him by the lower Court, if on the basis of that decision, the decree has been partly passed against such respondent. In case, the other findings recorded by the Court below are sufficient for the decision of the suit completely in favour of the respondent, then the absence of filing of cross-objection by him in respect of issues decided by lower Court against him, does not debar the respondent from agitating such questions before the appellate Court. Of course, the respondent in such a situation, where some of the issues have been decided by the lower Court against him, although the ultimate decision or decree has been passed wholly in his favour, if be so likes, file cross-objection in respect of the issue or issues which have been decided by the lower Court against him but which, according to him, ought to have been decided in bis favour. But the absence of any such cross-objection by the respondent, when the decree passed by the lower Court is wholly in his favour, does not debar him from centering the validity of the finding recorded by the lower Court in respect of such issues which have been decided against him by the lower Court. In this view of the matter, the respondent cannot be precluded in the present case from raising the question about the non-maintainability of the election petition without impleading the two contesting candidates as parties thereto.

17. The argument of the learned counsel for the respondent is based on the provisions of Sub-section (3) of Section 44 of the Rajas-than Municipalities Act (hereinafter referred to as 'the Act') which authorises the judge hearing the election petition to dismiss an election petition which does not comply with the provisions of Section 36 or Section 37 or Section 63 of the Act. The relevant section for our purpose in this case is Section 37which runs as under :--

'37. Parties to the petition-- A petitioner shall join as respondents to his petition, (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.'

18. Thus, it is apparent that if the petitioner in an election petition only claims a declaration that the election of the returned candidate is void, then the returned candidate alone is a necessary party; but if the election petitioner claims a further relief in the form of a declaration that he himself or any other candidate has been duly elected, then the requirement of the aforesaid provision is that all the contesting candidates other than the petitioner should he joined as respondents to the election petition. A perusal of the relief claimed in the election petition shows that the petitioner claimed not only that the election of the returned candidate be declared to be void but he also claimed that the petitioner should be declared to have been validly elected. If only the relief that the election of he returned candidate was void would have been claimed by the petitioner, then the returned candidate alone was required to be joined as respondent but as the petitioner claimed a further relief that he himself should be declared to have been duly elected, it was undoubtedly nccessary for him to join all the contesting candidates as parties to the election petition. This is also not to dispute that Dev, Kishan and Gangadutt, who were duly nominated candidates, and whose names were included in the list published under Rule 7 of the election rules and who had not withdrawn their candidature, were not made respondents to the election petition.

19. Learned counsel for the petitioner-appellant submitted that the procedure for the decision of the election disputes in respect of the election of the members of the Board is dealt with in Sections 34 to 58 of the Act and Section 37 provides as to who is to be joined as respondents in an election petition filed under Section 34. Sections 41, 43 and 44 also relate to the trial of election petitions filed under Section 34, in respect of the election of any person as a member of a Municipal Board, but separate provisions have been made under Section 66 for determination of validity of the election of Chairman or Vice Chairman of the Board. Section 66 provides the procedure for the decision of election disputes relating to the election of the Chairman and Vice Chairman of the Board. Sub-section (3) of Section 66 provides that in hearing the election petition the judge shall follow the procedure laid down in Section 41 and exercise the powers specified in Sections 43 and 44. Separate Rules have been framed by the State Government in respect of the conduct of the election petitions regarding the election of Chairman or Vice Chairman, which are known as Rajasthan Municipal Board's Chairman and Vice Chairman and Municipal Councils' President and Vice President (Election Petition) Rules 1959 (hereinafter referred to as 'the Election Petition Rules'). Sub-rule (3) of Rule 4 of these rules provides that the person whose election is questioned and where the petitioner claims that he himself or any other candidate be declared to be duly elected in place of such person, all the contesting candidates other than the petitioner shall be made respondents to the election petition. Rule 6 of the Election Petition Rules provides that the judge hearing the election petition shall follow the procedure lard down in Section 41 of the Act, while Rule 7 thereof provides that the judge hearing the ejection petition shall exercise the powers specified in Sections 43 and 44. Thus, in substance Sub-rule (3) of Rule 4 is analog-ous to Section 37 of the Act, while Rule 6 applies the procedure prescribed in Section 41 to the election petition challenging the election of the Chairman or Vice Chairman of the Municipal Board and Rule 7 makes the provisions of Section 44 (3) applicable to such an election petition. The argument of the learned counsel for the appellant is that in the Election Petition Rules there is no provision to the effect that the election petition shall be dismissed If it does not comply with the provisions of Section 37 of Rule4 (3) and as such the mandatory provisions contained in Section 44 (3) cannot be held to be applicable to election petitions filed in respect of election to the office of Chairman of a Municipal Board. It is difficult to accept the contention of the learned counsel for the appellant in this respect. Section 66 (3) provides that the judge hearing the election petition shall exercise the powers specified in Section 44. Similar provision is contained in Rule 7 of the Election Petition Rules. One of the powers which have been conferred by Section 44 is that contained in Sub-section (3) thereof, namely, that the judge hearing an election petition is empowered to dismiss the election petition which does not comply with the provisions of Section 36, 37 or 53. Analogous provisions contained in the Representation of Ihe People Act, 1951 have been held by their Lordships of the Supreme Courl to be mandatory. Therefore, necessary parties, as specified in Section 37, which have also been specified in Rule 4 (3) of the Election Petition Rules must be made respondents in the election petition and if the petitioner in the election petition, besides seeking the relief that the election of the returning candidate be declared to be void, also claims a further declaration that he himself or any other candidate be declared to be duly elected, then all the contesting candidates should be made parties to the election petition.

20. In the present case the petitioner hag, besides Claiming the relief that the election of Kesrichand be declared to be void, has also sought a declaration that he himself be declared to have been elected as Chairman of the Municipal Board, Nokha. In view of the further prayer made by the petitioner Sri Niwas in the election, all the contesting candidates must have been made respondents in the election petition, in accordance with the provisions of Section 37, which have also Been incorporated in Rule4 (3) of the Election Petition Rules.

21. The provisions of Civil P. C. apply to the trial of an election petition although they apply only so far as may be and subject to the provisions of the Act and the Rules made thereunder. In Jyoti Basu v. Debi Ghosai, AIR 1982 SC 983 it was held that the concept of proper party must remain alien to an election dispute and only those may be joined as respondents to an election petition who are mentioned in Sections 82 and 86(4) of the Representation of the People Act, 1951 and no others. Even if it be held that Sub-rule (3) of Rule 4 cannot be substituted in Section 44 (3), in place of Section 37, yet it must be held that the provisions of Sub-rule (3) of Rule 4 are mandatory in nature and where the petitioner claims that he himself or any other candidate be declared to be duly elected in place of the person whose election is questioned, all the contesting candidates other than the petitioner 'shall be made' respondents to the erection petition. The use of word 'shall' is significant in Sub-rule (3) of Rule 4 and if the re-quirement of Sub-rule (3) is not complied with then the result is that there is no pro-perly constituted election petition before the judge. As observed by their Lordships of the Supreme Court in Jyoti Basu's case the concept of proper parties is alien to an ejection dispute and those persons who are required by law to be joined as respondents to an election petition must be joined as such and in their absence the election petition would not be maintainable for non joinder of neces-sary parties. It was held, by their Lordships of the Supreme Court in MOHAN Raj v. Surendra Kumar, ALR 1969 SC 677 that an amendment of an election petition cannot be permitted to strike out the allegation against a candidate, so as to save the election petition from dismissal for non joinder of neces-sary parties. Their Lordships observed as under in the aforesaid case (at p. 681):--

'No doubt thee power of amendment is preserved to the Court and Order 1, Rule 10 enables the Court to strike out parties but the Court cannot use Order 6, Rule 17 or Order 1, Rule 10 to avoid the consequences of non joinder for which a special provision is to toe found in the Act. The Court can order as amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amandment or to strike out parties cannot he used at all. The Civil P. C. applies subject to the provi-sions of the Representation of the People Act and any rules made thereunder (see Sec-tion 87). When the Act enjons the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil P. C. canoot be used as curative means to save the petition.'

Even if benefit of the provisions of Section 44(3) may not be available in the case of an elec-tion petition filed under Section 66 of the Act in respect of the election af a Chairman of a Municipal Board, because Section 37 is not applicable to suck as election petition, yet on account of the mandatory nature of the provisions contained in Rule 4 (3) of the Election Petition Rules, the election petition could not have been proceeded with in the absence of necessary parties thereto, namely, all the contesting candidates. In K. Kamaraja Nadar v. Kunju Thewar, AIR 1958 SC 687 it was held that 'contesting candidates' are all those candidates who were included in the list of validly Dominated candidates and who did not withdraw their candidature, within the period prescribed for such withdrawal. The defect about non-joinder of necessary parties cannot be cured in the case of an election petition by an amendment thereof, inasmuch as the Judge hearing the election petition has no power to grant such as amendment as against the mandatory provisions governing the procedure applicable to such election petitions.

22. IN the result, I hold the election petition in the present case was also not maintainable on the ground that two of the contesting candidates viz. Gangadutt and Dev Kishan were not made parties to the election petition and the election petition was not maintainable in the absence of the said can-testing candidates.

23. The appeal, therefore, fails and is dis-missed. The parties are left to bear their own costs.


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