Bombay High Court: Election Petition Dismissed for Failing to Implead Necessary Parties; “Petitioner’s Failure to Implead All Contesting Candidates Rendered the Petition Defective and Subject to Dismissal Under Section 86(1) of the Act”

The Bombay High Court dismissed an election petition for failing to comply with the mandatory provisions of Section 82 of the Representation of the People Act, 1951. The court held that the petitioner’s failure to implead all contesting candidates rendered the petition defective and subject to dismissal under Section 86(1) of the Act. Here’s a detailed breakdown:

Court’s Decision:

The court dismissed the election petition due to non-compliance with Section 82, which requires all contesting candidates to be joined as respondents when the petitioner seeks a declaration of their own election. The judge emphasized that the mandatory nature of this provision left no scope for deviation, stating:

“The non-compliance with Section 82 of the Act leaves no option but to dismiss the petition under Section 86(1).”

Facts:

1. Election Background:
   • The petitioner participated in the 2024 elections from the 28-Mumbai North-East Parliamentary Constituency.
   • Respondent No. 7, representing a recognized political party, was declared elected on June 4, 2024.
   • The petitioner, who ran as an independent or from a smaller party, sought to challenge this result.
2. Election Petition:
   • The petitioner filed an election petition challenging the election of Respondent No. 7.
   • Alongside challenging the result, the petitioner sought a declaration that they were duly elected.
   • However, the petition omitted to implead 18 other contesting candidates, naming only Respondent No. 7 and several official election authorities.
3. Subsequent Applications:
   • Recognizing the omission, the petitioner filed Application No. 27786 of 2024, seeking summons for the omitted candidates.
   • The application, however, did not specifically request impleadment of the omitted candidates as respondents in the election petition.

Issues:

1. Whether the petitioner’s omission to implead all contesting candidates violated Section 82 of the Act.
2. Whether the defect could be cured by issuing summons or through an amendment after the petition had been filed.
3. Whether the petitioner could proceed with the petition under these circumstances.

Petitioner’s Arguments:

1. Unintentional Omission:
   • The petitioner claimed the omission was inadvertent and sought to rectify it through an application for summons.
2. Registry’s Role:
   • Alleged procedural barriers at the court registry prevented them from initially naming all contesting candidates.
3. Ambiguity in Limitation Period:
   • Argued that the 45-day limitation period under Section 81 of the Act was ambiguous regarding the inclusion of contesting candidates.
4. Judicial Discretion:
   • Requested the court to exercise its discretion to allow the petition to proceed despite the defect.

Respondent’s Arguments:

1. Mandatory Nature of Section 82:
   • The respondent contended that Section 82 expressly requires impleadment of all contesting candidates when a petitioner seeks to declare their own election.
2. Summons Application Insufficient:
   • The application for summons did not satisfy the requirement of impleadment, as it lacked a prayer for including the candidates as respondents.
3. Non-Maintainability:
   • Argued that the failure to implead contesting candidates rendered the petition non-maintainable from its inception.
4. Procedural Rigor:
   • Asserted that election petitions are statutory remedies and must strictly adhere to procedural requirements.

Analysis of the Law:

1. Section 82 of the Act:
   • Requires impleadment of:
     • All contesting candidates when the petitioner seeks a declaration of their own election.
     • Only the returned candidate if no such declaration is sought.
   • The court emphasized that these provisions are mandatory and leave no room for flexibility.
2. Section 86(1) of the Act:
   • Mandates dismissal of an election petition that fails to comply with Section 82.
   • The court noted that the use of the word “shall” in Section 86(1) obliges dismissal for non-compliance, without exception.
3. Impleadment vs. Summons:
   • Filing an application for summons does not equate to impleadment. The court observed that the petitioner’s application lacked a specific prayer for impleadment, making it insufficient to cure the defect.

Precedent Analysis:

1. B. Sundara Rami Reddy v. Election Commission of India:
   • Held that improper or unnecessary parties cannot be included in an election petition. Only those listed in Section 82 can be impleaded.
2. Comrade Kallappa Laxman Malabade v. Prakash Kallappa Awade:
   • Affirmed that defects under Section 82 cannot be rectified post-filing and that non-compliance mandates dismissal.
3. Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi:
   • Prohibited amendments introducing new grounds or parties beyond the statutory limitation period, as such changes contravene Section 81.

Court’s Reasoning:

1. Mandatory Requirements:
   • The court reiterated that impleadment of all contesting candidates is mandatory when seeking a declaration of one’s election.
   • It rejected the petitioner’s contention that the defect could be cured by issuing summons or through amendment.
2. Fundamental Defect:
   • The court classified the omission as a fundamental defect that rendered the petition non-maintainable.
   • It emphasized that strict adherence to procedural rules is required for election petitions, which are statutory remedies.
3. Timeliness:
   • Even if the application were treated as one for impleadment, it was filed beyond the 45-day limitation period prescribed under Section 81.

Conclusion:

1. Application Rejected:
   • Application No. 27786 of 2024, seeking summons for the omitted candidates, was rejected as it failed to request impleadment.
2. Petition Dismissed:
   • The court dismissed the election petition under Section 86(1) for non-compliance with Section 82.
3. Order Highlights:
   • The court stated that the omission could not be remedied post-filing, either by summons or amendment.

Implications:

• This judgment underscores the importance of strict compliance with procedural requirements in election petitions.
• It reinforces the mandatory nature of Section 82 and highlights the limited scope for judicial discretion under Section 86.
• The decision serves as a cautionary tale for election litigants to ensure procedural precision at the outset of filing.

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