S.K. Mal Lodha, J.
1. By this order, I propose to decide issue No. 2, which was framed on October 10, 1980. It reads as under:
'Whether the Returning Officer is a necessary party to the present election petition?'
In this petition under Sections 80 and 31 of the Representation of the People Act(No. XLIII of 1951) (hereinafter referred to as 'the Act'), the election-petitioner has prayed that the election of the respondent Shri Udai Ram Dhakad as member of the Legislative Assembly may be declared void. It may be stated here that in the petition, Shri Udai Ram Dhakad has only been impleaded as a respondent. The case of the election-petitioner is that the nomination paper filed by him was wrongly rejected, bythe Returning Officer. Only three persons remained in contest. The petitioner has called m question the election of the returned candidate Shri Udai Ram Dhakad (respondent) on the ground that the Returning Officer has wrongly rejected his nomination paper as it was complete in all respects and that he was not entitled to reject it on the ground that it was filed by the petitioner at 3.03 P.M. i.e. after 3 P.M. The election petition is contested by the respondent. In the written statement, a pr liminary objection was raised to the effect that the petition suffers from the defect of the non-joinder of the necessary party as almost all the allegations are against the Returning Officer. It has been stated that in the absence of the Returning Officer as a party to the election-petition, it will not be possible to try and adjudicate over the facts which have an exclusive concern with him. The objection regarding non-joinder of the necessary party was reiterated in the additional objections Nos. 1 and 2 of the written statement. Rejoinder to the written statement was filed by the election-petitioner. It was asserted that the petition does not suffer from the defect of non-joinder of a necessary party. In view of those pleadings, issue No. 2 as aforesaid was framed. On October 10, 1980, learned counsel for the parties expressed their agreement that no evidence is required in regard to issue No. 2 and stated that arguments may be heard on it.
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 liabilityon 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.
4. I have bestowed my earnest consideration to the submissions made by the learned counsel for the parties.
5. The question that, therefore, arises for determination is whether in view of the averments made by the election-petitioner in the petition against the Returning Officer, the petition can proceed m his absence? For a proper determination of the question, it will be profitable to notice the relevant provisions of the Act, to which my attention was invited during the course of arguments. Section 80 provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter II of Part VI of the Act. It is mentioned in Section 81 that an election-petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. The important section that has a bearing on the controversy raised is Section 82 of the Act which deals with joinder of parties to the petition. It reads as under:
'82. Parties to the petition-- A petitioner shall join as respondent to his
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returning 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.'
Section 84 provides for granting of relief to an election-petitioner. According to this section, besides claiming a declaration that the election of all or any of the returned candidate is void, a further declaration can be asked that the election-petitioner or any other candidate has been duly elected. Chapter III of Part VI deals with Trial of Election Petitions. Sub-section (4) of Section 86 deserves notice and is as follows:
'(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 the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.'
Section 98 provides for making of the decision by the High Court on an election-petition after the conclusion of its trial. According to Section 99, where any charge is made in the petition of any corrupt practice having been committed at the election, the High Court has to make an order whether any corrupt practice has or has not been committed at the election and the nature of that corrupt practice. Besides that ithas to specify the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice. Section 99 contains a proviso to the effect that a person who is not a party to the petition shall not be named in the order under Sub-clause (ii) of Clause (e) of Sub-section (1) unless (a) he has been given notice to appear before the High Court and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard. The only other provision that requires to be referred now is Section 116, which deals with abatement or substitution on death of respondent.
6, There is no room for debate that the Act is a complete Code for determination of the election disputes. Part VI of the Act which deals with disputes regarding elections makes provisions for presentation, trial, withdrawal and abatement of election petitions. Section 82 enjoins on the election-petitioner to join only those persons mentioned therein as respondents in the election petition. A careful reading of Section 82 of the Act shows that the election-petitioner is required to implead only the persons mentioned therein as respondents and not the Returning Officer. If any candidate who has not been impleaded as a respondent as contemplated by Section 82 of the Act, such candidate can make an application within fourteen days from the date of commencement of the trial for being made a respondent and the High Court has been empowered upon such application being made within the time mentioned in Sub-section (4) of Section 86 of the Act to join him as a respondent. Under Section 99, safeguard has been made in respect of the person who is not a party to the petition but who has been proved at the trial of the election-petition to have been guilty of any corrupt practice. According to proviso to Sub-clause (ii) of Clause (a) of Section 99(1), such person cannot be named in the order unless he has been given notice to appear before the High Court and to show cause why he should not be so named and further that in pursuance of the notice, if he appears then he has been given an opportunity of cross-examining any witness who hasalready been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard Section 116 provides for substitution of respondent to oppose the petition in case of the death of the sole respondent or when such respondent gives notice that he does not intend to oppose the petition or when any of the respondents dies or gives such notice and there is no other respondent, who is opposing the petition. Having regard to the provisions contained in Sections 82 86(4), 99 and 116 of the Act, there is no escape from the conclusion that no other person can be joined in the election petition except those envisaged by the aforesaid sections referred to above as parties to the election-petition.
7. Let me now refer to the decisions of the various High Courts, which were cited by the learned counsel for the election-petitioner.
8. In Rama Pr. Chowdhury's case, ((1971) 31 Ele LR 167), a learned single Judge of the Calcutta High Court was called upon to decide the following
'Is the Returning Officer a necessary party to this petition? If so, is the petition liable to be dismissed.'
In that case, there were allegations of non-compliance with certain provisions of the Act. The allegations pertained against the Presiding Officers and other Officers of the Government connected with the election, The learned Judge, after considering the provisions of Section 82 held that in view of the provisions contained therein, it was not incumbent upon an election-petitioner to make any person a party to the petition other than the persons named in Section 82. The learned Judge opined that the election petition cannot be dismissed on the ground that the Returning Officer or a Presiding Officer is not a party. He, therefore, answered issue No. 2 in the negative.
9. The question relating to non-joinder of the Returning Officer or any other Officer in an election-petition again came up for examination before the same learned Judge in Narendra Nath Sen's case ((1971) 36 Ele LR 69) (Cal). In that case, various allegations were made against the Returning Officer and other Officers engaged in counting. Issue No. 3 was framed to the effect whether the Returning Officer was a necessary party to the petition as alleged in para 2 ofthe written statement of the respondent No. 1 and if so is the petition liable to be dismissed? It was held that the Returning Officer is not a necessary party as alleged in paragraph 2 of the written statement of the first respondent and the petition is not liable to be dismissed on that ground.
10. Before a learned single Judge of the J. & K. High Court in Sayed Nizam-ud-din's case ((1972) 42 Ele LR 274), a question arose whether in view of the allegations against the Returning Officer and the District Election Officer, they were necessary parties to the petition? Various serious allegations were made in the election petition against the Returning Officer. The learned single Judge, while deciding issue No. 10 held that there was no necessity for the petitioner to have impleaded the Returning Officer or the Dist. Election Officer as parties to the petition inasmuch as the law of election does not require that Returning Officers or the Election Officers against whom allegations have been made in the petition be made parties to those proceedings. The learned Judge went to the extent of saying that the Returning Officer is neither a proper nor a necessary party.
11. In Raju V. B.'s case ((1975) 52 Ele LR 24) (Guj), a contention was raised that in view of the allegations made against the Returning Officer, he should have been impleaded as a party respondent, and as he was not impleaded, there was non-joinder of necessary party. Reliance before the learned single Judge of the Gujarat High Court was placed on Dwijendra Lal v. Harekrishna, AIR 1963 Cal 218, in which a Division Bench of the Calcutta High Court observed as follows :
'There cannot be a hard and fast rule that a Returning Officer under no circumstances and in no case and on no facts, can be a party to the election petition. In appropriate cases, where allegations of bad faith, negligence and impropriety are made against the returning officer, the returning officer, though not a necessary party, can certainly be joined as a 'proper' party, at least under the provisions of the Civil Procedure Code which are expressly made applicable to the trial of the election petitions.''
While disagreeing with the view taken by the Division Bench of the Calcutta High Court, the learned single Judge ofthe Gujarat High Court held that the Returning Officer is not a proper party to an election petition.
12. The only authority that now remains to be considered is S. Iqbalsingh's case (AIR 1973 Punj & Har 163). P. C. Pandit, J. of course gave a dissenting judgment. In his separate judgment in para 18, D. K. Mahajan, J. observed that the decisions which have taken the view that proper parties can be impleaded in an election petition including Returning Officer, with utmost respect to the learned Judges who have taken that view cannot be held to be good law in view of the Scheme of the Act and the various provisions as to impleading of parties made therein. The learned Judge was of the view that the Returning Officer cannot be impleaded as a party to the election petition and that if he is found to be guilty of corrupt practice during the trial, Section 99 will naturally come into play and after he has been heard he can be named and that this is a duty enjoined on the court and is not a matter on which an election petition can be grounded. R. S. Narula, J. on the basis of the observations made in Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 held that under the Act, the Returning Officer is not a party to an election petition. In the case before him, respondent No. 9 was the Returning Officer and the learned Judge held that he was not properly joined as party to the election petition and his name was liable to be struck off from the array of respondents without prejudice to the right of the Court to issue appropriate notice to him under Section 99 of the Act, if and when it becomes necessary to do so.
13. The issue before me is whether the Returning Officer is a necessary party and failure to join him as a party respondent renders the petition non-maintainable. The sole matter required to be tried in the election petition is whether the election is void or not and in support of the contention that the election is void various items of evidence may be led which may tend to show that the election was void. In this case, the principal ground may be certain allegations bearing on the conduct of the Returning Officer at the time of receiving and rejecting the nomination paper of the petitioner. They become relevant only for the purpose of deciding whetherthe election is void or not. As stated above, Section 82 clearly provides as to who shall be parties to an election petition and under Section 99, provision is made for issuing notice to a person who is not a party to the petition being named for the commission of any corrupt practice and after such naming and after hearing him and giving him an opportunity of cross-examining, any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard, appropriate orders may be passed against the person found to have been guilty of any corrupt practice. In view of these provisions. I am unable to accede to the contention of the learned counsel for the respondent that the principles of fair play would be violated by not hearing the Returning Officer in case anv finding is arrived at by the Court regarding the facts having bearing on the conduct, of the Returning Officer at the time of receiving and rejecting the nomination paper of the petitioner.
14. Here, I may briefly consider the authorities cited by the learned counsel for the respondent.
15. In State of J. & K.'s case (AIR 1967 SC 122), Sections 4(c) and 10 of the J. & K. Commission of Inquiry Act (No. 32 of 1962) came up for consideration. Their Lordships observed that no right is conferred by Section 4 (c) of the J. & K. Commission of Inquiry Act on a person appearing before a Commission of Inquiry set up under Section 3 to cross-examine witnesses giving evidence by affidavit before the Commission. While distinguishing Meenglas Tea Estate v. The Workmen. AIR 1963 SC 1719 and applying Nagendra Nath v. Commr. of Hills Division, AIR 1958 SC 398, it further observed as follows (at. p. 131):
'Rules of natural justice require that a party against whom an allegation is being enquired into should be given a hearing.'
Learned counsel placed strong reliance on these observations. They have to be read with reference to the context. They cannot be of any avail for determination of issue No. 2.
16. In Purtabpur Co.'s case (AIR 1970 SC 1896), the following observations made in Suresh Koshy v. University of Kerala, AIR 1969 SC 198 were relied on (at p. 1897):
'The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the tribunal and the rules under which it functions.'
Section 457 of the Companies Act and Rule 103 of the Companies (Court) Rules came up for consideration in Jatan Kanwar's case (AIR 1971 SC 374). Rule 103 expressly provides for issuing of a notice of the summons to the petitioner on whose petition the order of winding up was made. In that case, their Lordships of the Supreme Court observed as under (at p. 376):
'It is implicit that if the directions which have to be given by the Court would affect any person prejudicially he must be served with a notice of the summons under the general rule of natural justice and that no order should be made affecting the rights of a party without affording a proper opportunity to it to represent its case.'
This decision does not help the respondent.
17. Mr. Maheshwari laid emphasis on paras 75 and 76 of the report in Mohindersingh's case (AIR 1978 SC 851), which are as follows:
'75. Fair hearing is thus a postulate of decision-making cancelling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law.'
'76. We have been told that wherever the Parliament has intended a hearing it has said so in the Act and the rules and inferentially where it has not specificated it is otiose. There is no such sequatur. The silence of a statute has no exclusionary effect except where it flows from necessary implication. Article 324 vests a wide power and where some direct consequence on candidates emanates from its exercise we must read this functional obligation.'
In that case, the Election Commission in exercise of the powers vested in it under Article 324 of the Constitution. Sec-tion 153 of the Act and all other powers enabling it so to do cancelled the poll already taken in constituency and extended the time for the completion of the election up to April 30, 1977 by amending its notification No. 464/77 dated February 25, 1977 in respect of the election. The Commission declined to reconsider the election when the appellant pleaded for it. He moved the High Court under Article 226 of the Constitution and sought to avoid the order as without jurisdiction and otherwise arbitrary and violative of any vestige of fairness. The High Court held that it had no jurisdiction to entertain the writ petition but it, nevertheless, proceeded to enter verdicts on the merits of all the issues virtually exercising even the entire jurisdiction which exclusively belonged to the Election Tribunal. The appellant went to the Supreme Court in Special Leave. The question that arose before their Lordships was regarding fair hearing and in that connection, the observations made in paras 75 and 76 of the report excerpted above were made.
18. The principles regarding fair play laid down in the aforesaid cases have to be applied keeping in view the nature of enquiry and the statutory provisions governing such matters. The Act is a self-contained Code for the determination of disputes regarding elections. The persons other than the candidates and the Returning Officer have no interest in the election dispute and no verdict of the authorities is possible in the election petition beyond those enumerated in Section 98 and Section 99 of the Act. While respectfully following the decisions of Rama Pr. Roy Chowdhury's case ((1971) 31 Ele LR 167) (Cal), Narendra Nath's case ((1971) 36 Ele LR 69) (Cal), Sayed Nizam-ud-din's case ((1972) 42 Ele LR 274) (J & K), Raju V. B.'s case ((1975) 52 Ele LR 24) (Guj) and S. Iqbalsingh's case (AIR 1973 Punj & Har 163), I am of opinion that even on the allegations made against the Returning Officer in the Election Petition, the Returning Officer is not a necessary party and it cannot be said that because of his non-joinder as a respondent to the election petition, it suffers from the defect of non-joinder of the necessary party. Issue No. 2 must, therefore, be decided against the respondent and in favour of the election-petitioner.