JUDGMENT
Loknath Prasad, J.
1. This election petition relates to election from 176 Katoria Assembly Constituency, to be referred hereinafter only as 176 Constituency’, which was held on 27-2-1990. The election petitioner is Hari Prasad Yadav, who lost the said election, came to this Court with a prayer to declare the election of respondent No. 1 as void and further to direct recounting of votes of Booth Nos. 42, 45, 46 and some other Booths and after that to declare the election petitioner to be elected from Constituency No. 176 of Bihar Legislative Assembly.
2. In brief, it can be said that the petitioner was also one of the nominated candidates of Constituency No. 176 in which the last date for filing nomination was 3-2-1990 and after all the formalities of the election process, the election was held on 27-2-1990 and counting of votes were done on 1-3-1990 and the result was declared on 2-3-1990 in which respondent No. 1 Suresh Prasad Yadav was declared as elected with a small margin of 378 votes only by the returning officer i.e. the Sub-Divisional Officer, Banks. It is alleged that in all 34 nominations were found valid and about 12 candidates withdrew and thus 22 candidates remained as contesting candidates, who were allotted different symbols as per description given in the election petition. According to the returning officer, who declared the result on 2-3-1990, the petitioner secured 16859 votes whereas respondent No. 1, who was declared elected secured 17237 votes.
3. It has been specifically alleged that respondent No. 1 Suresh Prasad Yadav, who was Congress candidate and at the relevant time was holding the rank of Minister of State in the Congress Ministry of Bihar and thus has sufficient influence over the returning officer and also the Observer and at his instance Sri. C. M. Prasad was appointed as Election Observer so that he can secure his undue favour in getting himself elected. The returning officer at the instance of the Election Observer manipulated the matter and counting of votes in Booth Nos. 42, 45, 46 and 84 was held at about 1.00 a.m. in the night and there was occasional failure of power supply which gave excellent opportunity to the returning officer to favour respondent No. 1. Moreover, counting of votes so far Booth Nos. 42, 217, 218 and 225 were concerned, there was patent illegality because though the Bollot Papers containing the signature of the Presiding Officer, but were rejected illegally on a vague and non-existent ground that there was no distinguishing mark on the back side of the Ballot Petpor. The Returning Officer also ignored the prescribed procedure, Rules and Instructions in rejecting the Ballot Papers only on the ground that there was no distinguishing mark and it has been specifically alleged in the petition giving full details that if at all those Bollot Papers, which were rejected by the returning officer but were cast in favour of the election petitioner are to be counted in favour of the petitioner are to be counted in favour of the petitioner, then certainly the petitioner could have got much more votes then the respondent No. 1 and he could have been declared as duly elected candidate.
4. It is also alleged that on the other hand in Booth Nos. 45, 46 and 84 Ballot Papers found in favour of respondent No. 1 had not been rejected in the similar circumstances even though there was no distinguishing mark on the back side of the Ballot Papers and thus the returning officer at the instance of the Observer utilised his discretion in favour of the returned candidate only to help him. In fact, the election petitioner made several protests on the spot regarding illegal action of the returning officer but that had been ignored and thus the election of respondent No. 1 is void and the petitioner is entitled for declaration as duly elected candidate after re-counting of votes in some of the Booths as mentioned above.
5. With the aforesaid allegations, this petition was filed on 16-4-1990 and in this election only the returned candidate Sri Suresh Prasad Yadav was made party as respondent No. 1 whereas another candidate Bhola Prasad Yadav was made as Respondent No. 2 so this election petition was filed as against only two respondents.
6. After proper service of notice, only respondent No. 1 contested this petition and filed written statement contending, inter alia, that the petition is not maintainable as all the nominated candidates were not party, who are necessary parties under the provisions of Sections 81 and 82 of the Representation of Peoples Act, 1951 and so the petition is liable to be dismissed summarily. It was also submitted that the petitioner has also claimed that he may be declared as elected from Katoria Assembly Constituency but he has not made all the contesting candidates numbering about 22 as parties in this election petition and so the mandatory provisions of Section 82(a) of the Representation of Peoples Act, 1951, to be referred hereinafter only as ‘the Act’ has not been complied with and thus the petition is liable for dismissal under Section 86 of the said Act. Moreover, the petitioner has not furnished full materials and particulars about the alleged corrupt practices and as such the petition is not according to the provisions of Section 83 of the Act. It was denied on behalf of this respondent No. 1 that there was no proper lighting arrangement and there was frequent breakdown of power due to that proper counting of the Ballot Papers were not done and the returning officer favoured the respondent No. 1. This fact has also been vehemently denied that at the instance of the respondent No. 1 the Election Observer was appointed and he along with returning officer, to help this respondent, wrongly rejected some of the Ballot Papers cast in favour of the petitioner. Accordingly, it was submitted that the election petition be dismissed.
7. After filing of the written statement that all the candidates were not made parties in the petition, the remaining 19 candidates, who contested the election, filed a petition on 17-12-1990 placed at Flag 2 with the submission that in view of the provisions of Order I, Rule 10 of the Code of Civil Procedure, they may be added as respondents because they are necessary parties and they learned about this election petition and the reliefs sought by the petitioner only three days ago. It was submitted in the petition that for maintaining purity of the election, they may be added as respondents and the election petition should not be dismissed only on technical ground and that too for the fault of the petitioner.
8. To the aforesaid petition, a rejoinder was filed on behalf of respondent No. 1 on 13-2-1991, which is at Hag 4, that the amendment in the election petition is not permissible under the law and the principles laid down by the Supreme Court in various decisions. It was submitted that within 45 days from the date of declaration of elected candidate, he has to present the petition and also to make all the persons as parties, who contested the election, if a declaration is sought not only for declaring the election of the elected candidate as void but also to declare the petitioner as elected and that has not been done and the Civil Procedure Code has no application in the instant case and as such the prayer for adding the other candidates as parties in the election petition is not maintainable and the entire petition itself is liable for dismissal in view of Section 86 of the Act.
9. A separate petition was also filed on 24-1-1991 by the Respondent No. 1 under Section 86 of the said Act alleging therein that this election petition has been filed by the petitioner with two prayers, namely, to declare the election of the respondent No. 1 to be void and to declare the petitioner to be duty elected member of the said 176 Katoria Assembly Constituency but only respondent No. 1 who is elected candidate and respondent No. 2 Bhola Prasad Yadav were made parties. It was further submitted that the petitioner has himself admitted that as many as candidates constested the election and their names were given in the petition, still the remaining 19 candidates were not made parties, which is mandatory under Section 82 of the Act and non-compliance of the same within the period prescribed is fatal according to Section 86 of the Act and so this objection has been raised as preliminary objection for summary dismissal of the petition and it was also prayed that this matter may be taken up first to decide the maintainability of the petition.
10. Inspite of several adjournments, the Election petitioner has not filed any rejoinder or counter petition but at the instance of the parties, this preliminary issue was taken up first along with the petition filed by the remaining 19 candidates for amendment of the election petition so that they may be allowed to be joined as respondents. This preliminary objection has been raised in the petition dated 24-1-1991 placed a Flag-3 and was taken up as preliminary issue since it involves the question of maintainability of the entire election petition which is the root of the entire case because if this plea of respondent No. 1 prevails, the election petition itself will be liable for summary dismissal under Section 86 (1) of the said Act, and in that view of the matter, it would be unnecessary to consider other issues involved in the petition. Admittedly, this objection can be taken up as a preliminary issue for the reason wherefor the alleged non-compliance of the requirement of Section 82 of the Act, the maintainability of the petition is necessary for determination. Similar view was taken by the Supreme Court in the case of Mohan Singh v. Bhanwar Lal and Ors. .
11. For disposal of this preliminary objection regarding maintainability of the petition, relevant facts can be summarised that admittedly the petitioner Hari Prasad Yadav was one of the candidates, who contested the 176 Constituency for which the election was held on 22-2-1990 and after counting the result was declared on 2-3-1990 and the respondent No. 1 Suresh Prasad Yadav was declared elected with small margin of 378 votes and admittedly the petitioner was next to him having secured 16859 valid votes. Admittedly after the withdrawal of candidates as many as 22 candidates had contested the election, the details of the same were given in paragraph 10 of the petition and admittedly the prayer was made for declaring the election of respondent No. 1 as void and also a prayer was made for declaring the petitioner to be elected candidate because it has been alleged that several hundreds valid votes polled in favour of the petitioner were rejected without any valid ground by the returning officer in collusion with the Election Observer only to help respondent No. 1 who was at the relevant time Minister of State of the Bihar Government. Admittedly, only two contesting candidates i. e. respondent No. 1 and respondent No. 2 Bhola Prasad Yadav were made parties in this election petition and 19 others, who also contested the said election as mentioned in Paragraph 10 of the petition were added as parties.
12. In this connection, Sections 81, 82 and 86 of the Representation of the Peoples Act, 1951 are relevant provisions worth consideration. Section 81 requires that an election petition regarding any elector may be presented on one or more grounds by any candidate of such election or any election within 45 days from the date of election of the returned candidate, meaning thereby that an election petition has to be filed within 45 days from the date of result of the election i. o. 2-3-1990, whereas, Section 82 clearly requires that where a petition in addition to claiming declaration that the election of any of the returned candidate is void and claims further declaration that he himself or any other candidate has been duly elected, then all the contesting candidates other than the petitioner must be made party in the election petition and non-compliance of this provision will result in dismissal of the election petition in view of the provisions of Section 86 of the Act,
13. Submission was made on behalf of the respondent No. 1, the elected candidate that admittedly 19 other candidates who contested the election were not made party within the period of 45 days as prescribed under Section 81 and thus the penal provision of Section 86 is attracted and the election petition is not maintainable and the petition is liable for dismissal.
14. On the other hand, it was contended on behalf of the petitioner that in fact all the 19 candidates, who contested the election of the year 1990, themselves appeared before this Court and filed a petition for making them parties as early as on 17-12-1990 under Order I, Rule 10 of the Code of Civil Procedure and for maintaining the purity of the election and as Section 87 of the Act gives a mandate that Code of Civil Procedure is applicable and thus these candidates being necessary parties should be impleaded as respondents. At the outset it can be said that this petition was filed on behalf of as many as 19 candidates for making them party in this election petition, but the petitioner, on whose behalf this petition was filed under Order I, Rule 10 of the Code of Civil Procedure actually after filing of the petition remained absent and has not present the petition and so on this score alone this petition is liable to be rejected.
15. Even on merit now the state of law on these points is well settled and no doubt Section 87 of the Act makes the provisions of the Code of Civil Procedure available so far as they are not inconsistent with the provisions of the Act but admittedly the Representation of the Peoples Act is a special Act and non-compliance of the provisions of Section 82 of the Act is fatal and the procedure to be followed for non-compliance has been clearly laid down in Section 86 of the said Act and if at all the provisions of the Code of Civil Procedure i.e. Order I, Rule 10 of the Code of Civil Procedure is followed, then in that contingency the entire special provision made in the Act as required under Section 86 of the Act will be nugatory and the general Rule is well settled that the statutory requirements of election law must be strictly followed and the statutory provisions are virtually unknown to the common law and thus if a special provision has already been made in the special Act, then naturally the provisions of the Code of Civil Procedure, more particularly, Order I Rule 10 of the Code of Civil Procedure is not applicable and thus these candidates who are necessary parties are not to be impleaded as respondents because the period of limitation as prescribed under Section 81 has already expired and in such circumstances also the Limitation Act has no application. The state of law and the principle as laid down above is now well settled and similar view was expressed by the apex court in the case of K. Venkataswara Ram v. Bekkam Narsimha Reddi . The other High Courts have also virtually followed the same principle and this principle was also accepted in the case of K. Panchakshara Reddy v. N. Krishna Reddy .
16. Thus, now it is a settled law that the Order 1, Rule 10 of the Code of Civil Procedure and even the provisions of Limitation Act is not applicable for the reason that the detailed procedure has already been prescribed regarding framing of the suit and its maintainability and the consequence of non-observance of the same under Sections 81, 82 and lastly the mandatory provisions of Section 86 of the Act. For this reason the petition filed on behalf of all the 19 candidates, who also unsuccessfully contested the election of this Constituency, as placed at Flag-2 is also liable for rejection even on merit.
17. Thus the petition is apparently clear that this election petition challenging the election of respondent No. 1 on the ground of corrupt practices and also the alternative prayer of the election petitioner for declaring him as duly elected after declaring the election of respondent No. 1 as void is not maintainable because in view of the provisions of Sections 81 and 82 of the said Act and mandatory provision of all the candidates, who contested the election as mentioned in Paragraph 10 of the election petition were not made party and as such the petition in not properly framed and thus is liable for dismissal under Section 86 of the said Act.
18. In the result, the petition at Flag-2 for adding all the 19 unsuccessful candidates and also the election petition is rejected. On the other hand, the petition dated 24-1-1991 which is at Flag-3, filed under Section 86 of the Representation of Peoples Act on behalf of respondent No. 1 is allowed and it is hereby ordered that the election petition is dismissed under Section 86(1) of the Act on the ground of maintainability only. Respondent No. 1 is entitled for cost of Rs. 250 to be realised from the petitioner.
19. Let the substance of this decision be communicated to the Election Commission and also to the Speaker, Bihar Yidhan Sabha.
