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Bombay High Court
Mr. Surendra Budhaji Borkar vs Mr. Narayan Tatu Rane on 6 August, 2010
Bench: Anoop V.Mohta
                                                       1                                 EP34.09

                 IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                       ELECTION PETITION NO. 34 OF 2009




                                                                                      
    Mr. Surendra Budhaji Borkar
    R/o. Bazar Peth, Dodamarg,




                                                              
    Dist. Sindhudurg. MS
    doddamarg12@rediffmail.com.                                        ....Petitioner.

           Vs.




                                                             
    Mr. Narayan Tatu Rane
    Falshiyewadi, Fanasnagar,
    Taluka Kankawali,




                                                
    Dist. Sindhudurg. MS.                                              ....Respondent.
                               
    The Petitioner in person absent.
    Mr. Yatin R. Shah with Mr. Bharat Punekar for the Respondent. 
                              
                                   CORAM : ANOOP V. MOHTA, J.
                                    DATE    : 6th August, 2010

    ORAL JUDGMENT:-
          


    1      The Petitioner, was one of the "Candidate" as defined under Section 
       



79(b) of the Representation of the People Act, 1951 (for short, the Act) has

challenged the election of the Respondent, a returned candidate as

contemplated under Section 67 of the Act of the Kudal Assembly

Constituency to the Maharashtra Legislative Assembly.

2 The Respondent, as alleged, verified and notarized an affidavit at

Malvan District Sindhudurg on 21/09/2009 and submitted along with the

nomination papers on 22/09/2009. The Petitioner filed his nomination

papers in person in the office of Returning Officer. After due scrutiny of

nomination papers in presence of candidates and their election agents, and

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2 EP34.09

after taking note of objection and challenged so raised, accepted the

nomination papers on 25/09/2009. The Returning Officer on 29/09/2009

declared a list of contesting candidates including of the Petitioner and the

Respondent. The election was held accordingly. On 22/10/2009, the result

was declared.

3 Form 21E of the Conduct of Elections Rules, 1961 (for short, Rules)

reads as under:-

“Election to the Maharashtra Legislative Assembly from the
269- KUDAL Assembly Constituency.

                              
                                       Return of Election

              Sr.         Name of Candidate        Party affiliation     Number of 
              No.                                                        votes polled
          


               1     NAIK VAIBHAV VIJAY                Shivsena                 47666
       



                     NARAYAN TATU RANE             Indian National  
               2                                      Congress                  71921
                     RAVINDRA                       Bahujan Samaj  
                     HARISHCHANDRA                      Party





               3     KASALKAR                                                     1503
                     BORKAR SURENDRA                  Rashtriya 
               4                                    Samaj Paksha                  1427
                     DR.   PRASAD   JANARDAN         Independent





               5     WAINGANKAR                                                   1948

        Total number of electors                 - 186624 (General Voters - 1,86,105
                                                                + Service Voters - 519)

Total number of valid votes polled – 124465
Total number of rejected votes – 1
Total number of tendered votes – 2

I declare that-

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                                                         3                                  EP34.09


        NARAYAN TATU RANE (Name)

of At/Post Fanashiyewadi, Fanasnagar, Tal-Kankavali, Dist-Sindhudurg

(Address) has been duly elected to fill the seat.”

4 The Petitioner verified and lodged the Petition on 07/12/2009, under

objections. The matter was listed on board again on 11/01/2010. The

Petitioner appeared in person. The Court has ordered as under:-

“1 The Petitioner is present in person.

2

The matter was listed earlier on 04.01.2010 for
admission/notice. It was adjourned for one week as the
petitioner wanted to file an affidavit for condonation of

delay. Accordingly, it was filed on 05.01.2010.

3 The matter is listed today again on board.

4 The petitioner wants to correct the affidavit dated
05.01.2010 again.

           5     Time as sought is granted for four weeks.

           6     The   office   to   verify   and   endorse;   whether   the   Election 





Petition is within limitation or not; and all the
necessary/proper parties are joined or not. Office
objection be noted within one week. Place the matter on
board subject to removal of office objection, if any,
thereafter.

7 As requested by the Petitioner, S.O. to 11.02.2010.”

5 The matter was listed on 01/02/2010. The Petitioner was present in

person. This Court issued notice keeping all points open i.e. jurisdiction,

limitation and non-joinder of parties and made it returnable on

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4 EP34.09

05/04/2010.

6 On 05/04/2010, this Court, in presence of the Petitioner, has

observed as under:-

“1 As per the office endorsement dated 5th April, 2010, after
the order passed by this Court on 1st February, 2010, the office

informed the Petitioner, who appeared in person, about the
specimen of draft notice and for making the necessary changes in
the said draft notice. The Petitioner came to the office on 5th
February, 2010 and submitted a draft notice. However, as noted,

the necessary changes were not carried out which as told to him
on 3rd February, 2010 itself.

2 After 15 days in the middle of the March, 2010, one person
on behalf of the Petitioner, stated to be his clerk, came to the

office and the office again informed that the necessary
amendment/corrections were not carried out in the draft notice.
Hence, the office returned back the draft notice to the clerk for
making the necessary changes. Till this date, neither the

Petitioner nor his alleged clerk attended the office to finalizing the
said draft notice. In the result, till this date, the notice could not

be sent by the office.

3 It is necessary for the office, in such matters, to see and
finalize the draft as early as possible, basically when the

Petitioner is appearing in person. The necessary corrections, even
if any, just cannot be made by the clerk/third person. There is
no concept of sending clerk, by a person who is appearing in
person in the matter. The office to note all this and should have
made corrections by calling the person or raising the objection or

listing the matter under objection, instead of keeping the matter
pending for such a long time for issuance of notice, in the Election
Petition.

4 However, the Petitioner is present in person submitted that
he is ready to take steps, and he will visit the office and provide
corrected draft of notice on 22nd April, 2010. The office to take
note of this and proceed to issue writ / notices as ordered,
returnable on 17th June, 2010.

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                                                       5                                 EP34.09


           5     In the interest of justice and to avoid further complications,  

I am granting this time to the Petitioner, as a last chance, as he is

appearing in person.

6 If the Petitioner fails to take steps within a prescribed time,

the Court will pass appropriate order, including of dismissal of
this Election Petition for want of prosecution.

7 S.O. to 17th June, 2010.”

7 The Respondent received the Court notice on 28/04/2010. The

matter was listed again on 16/06/2010. Mr. R.Y. Gaikwad, appeared on

behalf of the Petitioner and undertook to file Vakalatnama within a period

of one week. The matter was adjourned to 22/07/2010, at the request of

the Petitioner’s advocate, to take appropriate steps/application. The

Petitioner was absent.

8 On 22/07/2010, neither the Petitioner nor his advocate appeared

even upto 5.00 p.m.. The Respondent’s counsel was present. The matter

was kept on 23/07/2010 at 3.00 p.m. in the Court but, none present for the

Petitioner though the matter was under the caption “for dismissal”.

9 To give one more opportunity, the matter was again adjourned to

30/07/2010, under the caption “for dismissal”, though last chance was

granted on 23/07/2010 itself. Therefore, the matter was directed to be

placed “for dismissal/disposal” on 06/08/2010 and accordingly it is listed

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6 EP34.09

today. None appeared for the Petitioner again.

10 The learned counsel appearing for the Respondent submitted to

dismiss the Election Petition on the basis of plain bare reading of the

defective, vague pleading/ avernments itself on the various grounds

including of non-appearance,, non-prosecution, limitation and non-joinder

of necessary parties.

11

The learned counsel appearing for the Respondent has relied upon

the judgment of the Supreme Court, reported in 1984, S.C. 135, Dr. P

Nalla Thampy Thera Vs. B.L. Shanker & Ors., The relevant paragraph 18

is as under:-

“18. Similar view has been expressed by another Full Bench of

the Allahabad High Court in Duryodhan V. Sitaram, AIR
1970 ALL 1. A four Judge Bench of this Court in Rajendra
Kumari Bajpai V. Ram Adhar Yadav
, (1976) 1 SCR 255 at
p.260, referred to the Punjab case, Fazal Ali, J. speaking

on behalf of the Court quoted a portion of the judgment of
Grover, J. which we have cited above and said:

“We fully approve of the line of reasoning adopted
by the High Court in that case.”

It, therefore, follows that the Code is applicable in
disposing of an election petition when the election
petitioner does not appear or take steps to prosecute the
election petition. Dismissal of an election petition for
default of appearance of the petitioner under the
provisions of either O.IX or O XVII of the Code would,
therefore, be valid and would not be open to challenge on
the ground that these provisions providing for dismissal of
the election petition for default do not apply.”

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                                                         7                                  EP34.09




    12    He has also relied on  Gurmesh Bishnoi Vs. Bhajan Lal, AIR 2003,  




                                                                                        

Punjab and Haryana, 268. The relevant paragraph 9 reads thus:-

“9 So far as the first question is concerned, it need not detain
this Court any further as this question is no more res-

integra. It stands completely answered without any
ambiguity by a Full Bench of this Court in the case of
Jugal Kishoree V. Dr. Baldev Prakash, AIR 1968, Punjab
and Hary. 152 which was approved by the Hon’ble Apex

Court in the case of Dr. P. Nalla Thampy Thera V. B.L.
Shanker
, AIR 1984 SC 135. Consequently, I have no

hesitation in coming to the conclusion that an election
petition can be dismissed for default or for non-
prosecution, as the case may be, if the order is otherwise

called for. The Court can hardly compel an unwilling
party to prosecute its litigation even if such inaction may
spring from negligence, indifference or even incapacity or
inability. The power to dismissal of election petition is

inherent power which every Tribunal possesses. Thus, this
contention of the applicant is rejected.”

(Emphasis added)

13 The mandate, therefore, in view of the above, and even after reading

the relevant Sections and Rules of the Act, is very clear that there is no bar

to dismiss the Election Petition for want of prosecution and/or for default.

Considering the scheme and purpose of the Act and as the Election Petition

needs to be disposed of expeditiously, there is no point in adjourning the

matter again as the petitioner is not taking interest in the matter, though

ample opportunities have been given to him to take effective steps and to

appear before the Court to support the case.

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                                                              8                                 EP34.09




       14     Even   otherwise,   the   date   of   election   of   candidate   as   defined/ 




                                                                                            

provided in Section 67-A of the Act means the date of election of the

candidate i.e. 22/10/2009. The mandate of Section 81 of the Act is that an

election petition calling in question any election should be filed within 45

days from, but not earlier than, the date of election of returned candidate,

or if there are more than one returned candidate at the election and dates

of their election are different from the later of those two dates.

15 As noted above, the Petition was verified and lodged on 7/12/2009.

The last date to file the Petition was 5th December, 2009, which was one of

the High Court working Saturday.

              Election result declared               -       22/10/2009
          



              22/10/2009 to 31/10/2009               -       10 days

              November, 2009                         -       30 days





              December, 2009                         -         5 days

              45 days over on                        -       05/12/2009

The Petition should have been lodged on that date itself. However, it

was lodged on (Monday) 7th December, 2009.

16 Another important aspect is non-joinder of necessary parties, as contemplated

under Section 82 of the Act and even otherwise, as required for proper

adjudication and for expeditious disposal of the Election Petition. Section 82

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9 EP34.09

deals with the aspect of parties of the Petition as under:-

“[Section 82. Parties of the Petition.- A petitioner shall join
as respondents to his petition-

(a) Where the petitioner, in addition to claiming 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.]”

17 The prayers in the Election Petition are:-

“A) Call for record and proceedings of scrutiny meeting of

Returning Officer, Kudal, Sindhudurg.

B) Quash and set aside Order dated 26.09.2009 of Returning
Officer reject the Nomination papers of Respondent, declare
the election of returned candidate void, and declare to
Petitioner as elected candidate.

C) Allow the said Original Objection Application dated
26.09.2009 filed before Returning Officer, and
disqualifying the Respondent election as prayed for, in the
interest of justice;

D) Award cost of this Petition to Petitioner from respondent;

E) Pass any other order and or directions as this Hon’ble
Court may deem fit and proper.”

18 On the face of the record, undisputed position emerges is that the

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10 EP34.09

Petitioner has not joined Returning Officer who has passed the impugned

order, rejecting the Petitioner’s objections. He has not joined other

candidates whose names were published by the Returning Officer firstly,

after scrutiny of nomination papers and lastly, while declaring the result of

the election as quoted earlier.

19 The effect of provisions of Section 82 of the Act is very clear that the

election Petition has to be arrayed of all the contesting candidates specially

in case the Petitioner makes a claim to be declared as a winning candidate.

The special provisions in the election statutes with regard to this are

mandatory and cannot be waived. It should prevail.

20 After considering the provisions of Section 81 to 86 and 99 of the Act,

it is cleared that the mandate of the special Act needs to be respected for all

the purposes and there is no question to consider the provisions of

Limitation Act, 1963 and specially Section 5 to 29(2) for condoning the

delay in election petition of any kind. Madhya Pradesh High Court

referring to various Supreme Court Judgments, in Abhimanyu Rath Vs.

Virendra Pandey, AIR 1978 Madhya Pradesh, 112, has also observed the

same.

21 The prayers as recorded above, speak for itself, as the Petitioner has

prayed for declaring the election of the Respondent as void and at the same

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11 EP34.09

stroke prayed to declare the Petitioner as elected candidate. In such

matters, it is necessary that all other candidates including the contesting

Respondent, who scored highest vote, than that of other 3 candidates,

should have been joined as a party. Even otherwise, for proper adjudication

it is necessary to join all the parties/candidates as Respondents under the

Act which in the present case has not been done, though vague

unsupported allegations are made only against the Respondent. The

Petition stands today, no allegations and averments are made against other

candidates, that itself can not be the reason to overlook the above

mandatory provisions of the Special Act (See Krishan Chander Vs. Ram

Lal, (1973) 2 SCC 759. )

22 The Apex Court in Mohan Raj Vs. Surendra Kumar Taparia & Ors.,

AIR 1969 S.C. 677, while dealing with the Act, observed as under in

paragraph 10:-

“10. It is argued that the Civil Procedure Code applies and O.6
R.17 and O.1 R.10 enable the High Court respectively to order
amendment of a petition and to strike out parties. It is
submitted, therefore, that both these powers could be exercised

in this case by ordering deletion of references to Periwal. This
argument cannot be accepted. No doubt the power of
amendment is preserved to the Court and O.1 R.10 enables the
Court to strike out parties but the Court cannot use O.6 R.17 or
O.1 R.10 to avoid the consequences of non-joinder for which a
special provision is to be found in the Act. The Court can order
an 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 amendment or to strike out parties

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12 EP34.09

cannot be used at all. The Civil Procedure Code applies subject
to the provisions of the Representation of the People Act and any
rules made thereunder (See S. 87). When the Act enjoins the

penalty of dismissal of the petition for non-joinder of a party
the provisions of the Civil Procedure Code cannot be used as
curative means to save the Petition.

(Emphasis added)

The Apex Court has reiterated such mandate and purpose of the Act

in Krishan Chander Vs. Ram Lal (Supra).

23 The Apex Court in Parangrao Kadam Vs. Prithviraj Sayajirao

Yadav Deshmukh & Ors., (2001) 3, S.C.C. 594, has observed as under:-

“The argument that Sampatrao Chavan could have been
impleaded at a later stage if necessary, under Section 99, if

accepted, renders the mandatory requirement of Section 82
ineffective.”

24 This Court has also in Comrade Kallappa Laxman Malabade Vs.

Prakash Kallappa Awade, AIR 1996 Bombay 5 referring to Sections 82

and 86 of the Act, and the various judgments of the Supreme Court in this

regard held as under:-

“4. The aforesaid holding of the Supreme Court leaves no
room for doubt that the provisions of the Code of Civil
Procedure could not be restored to in order to save a petition
which otherwise is liable to be dismissed for non-joinder of the
parties, which Section 82 of the Act says must be joined.”

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                                                      13                                EP34.09

    25     The same principles apply to the present facts and circumstances of 

the case, specially to the issue of non-joinder of necessary parties, as it goes

to the root of the matter. The defect is incurable. Besides, the Petitioner

scored lesser number of votes than 4 others in the fray. There were in all 5

contesting candidates. Therefore, all were necessary parties, specially in

view of the prayers so made apart from mandate of Sections 82 and 86 of

the Act.

26

The Supreme Court in Anil Vasudev Salgaonkar Vs. Naresh Kushali

Shigaonkar, (2009) 9 S.C.C., 310, has held that, even if a single material

fact is missing that itself is a sufficient to dismiss the Election Petition. In

the present case all the necessary parties are absent. Such incomplete and

defective Election Petition for want of non-joinder of necessary parties and

necessary averments, also mean lack of supporting facts and the materials

which are necessary for proper and effective trial and expeditious decision

in the Election Petition as contemplated under Section 81 to 86 of the Act.

27 The present Petition is defective. No effective steps were taken in

time. There is no scope now for any rectification by invoking a discretionary

power of the Court even if any, which, in the present facts and

circumstances, now is not available to the Petitioner. There is no option

but to dismiss the Election Petition at this stage itself. (Mulayam Singh

Yadav Vs. Dharm Pal Yadav & Ors. (2001) 7 S.C.C. 98 )

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14 EP34.09

28 Therefore, considering over all view of the matter, the election

Petition is dismissed with no order as to costs.

(ANOOP V. MOHTA, J.)

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