Page No.# 1/11 GAHC040008832024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : IA(C)/156/2024 Tani Loffa Age: 53 Occupation : Address:Son of Late Tokbing Loffa resident of Village Loffa PO Seppa PS Seppa East Kameng District Arunachal Pradesh 790102 VERSUS Mama Natung and 4 Ors Age: 0 Occupation : Address:Son of Late Tafa Natung resident of Village Lumdung PO Seppa PS Seppa East Kameng District Arunachal Pradesh. 2:The Election Commision of India Age: 0 Occupation : Address:represented by the Chief Election Commissioner Nirvachan Sadan Ashoka Road New Delhi 110001 3:The Chief Electoral Officer Age: 0 Occupation : Address:Arunachal Pradesh Nirvachan Bhawan Itanagar 791111 4:The District Election Officer Age: 0 Occupation : Address:East Kameng District Seppa Arunachal Pradesh. 790102 Page No.# 2/11 5:The Returning Officer Age: 0 Occupation : Address:11 Seppa West (ST) Assembly Constituency Seppa District East Kameng Arunachal Pradesh. 790102 ------------ Advocate for : Parswajyoti Das Nair Advocate for : Ajin Apang Sr. Advocate appearing for Mama Natung and 4 Ors: Advocate , appearing for 2, 3, 4, 5, respectively. Linked Case No.: Election Pet./9/2024 Tani Loffa Son of Late Tokbing Loffa, resident of Village Loffa, PO Seppa, PS Seppa, East Kameng District, Arunachal Pradesh 790102 VERSUS Mama Natung Son of Late Tafa Natung, resident of Village Lumdung, PO Seppa, PS Seppa, East Kameng District, Arunachal Pradesh Advocate for the Petitioner : Parswajyoti Das Nair, G Alam,Khogen Bui Advocate for the Respondent : Duyu Laji, D Das, Sr. Advocate BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of hearing : 28.01.2025 Date of Judgment : 23.04.2025 Judgment & Order(CAV) Heard Mr. Parswajyoti Das Nair, learned counsel, appearing on behalf of the applicant. Also heard Mr. Diganta Das, learned senior counsel, assisted by Mr. Duyu Laji, learned counsel Taja, learned counsel, appearing on behalf of Opposite Party No. 1. 2. The present interlocutory application has been instituted by the applicant, herein, who is also the Election Petitioner in the connected Page No.# 3/11 Election Petition being E.P. No. 09(AP)2024, inter alia, praying for impleading:- (i). the Election Commission of India; (ii). the Chief Electoral Officer, Arunachal Pradesh; (iii). the District Election Officer, East Kameng District, Arunachal Pradesh; and (iv). the Returning Officer, 11-Seppa”; as respondents No. 2, 3, 4 & 5 in the connected Election Petition being E.P. No. 09(AP)2024. 3. Mr. Nair, learned counsel for the applicant, has projected that in the connected Election Petition referred to above; it being the allegation of the Election Petitioner that the election of Opposite Party No. 1 to the Legislative Assembly of Arunachal Pradesh from 11-Seppa West(ST) Assembly Constituency, was marred on account of casting of votes in the names of dead, fake and bogus voters by way of impersonation as well as impersonation of other voters, in addition to the election being vitiated by commission of corrupt practice of booth capturing in respect of the polling stations so mentioned; the persons sought to be impleaded in the present proceedings being the Election Commission of India and its officials; they are necessary parties in the present proceedings, in-as-much as, the records of the election are maintained by them. 4. Mr. Nair, learned counsel, has further submitted that for a proper and effective adjudication of the issue arising in the Election Petition, noted- above; the above-noted officials are required to be impleaded as respondents in the connected Election Petition being E.P. No. 09(AP)2024. 5. Per contra, Mr. Das, learned senior counsel appearing on behalf of the Opposite Party No. 1/returned candidate, has submitted that the right to be Page No.# 4/11 elected and to dispute an election, are, neither, fundamental rights, nor, common law rights, but, are simply rights and therefore, are subject to statutory limitation. 6. Mr. Das, learned senior counsel, by referring to the provisions of Section 82 and 86(4) of the Representation of the People Act, 1951, has submitted that the same is a complete and self-contained Code and the contest of an Election Petition is mandated therein, to be confined to the candidates at the election and all others are excluded. The learned senior counsel has further submitted that the persons who may be joined as respondents to an Election Petition, are only those mentioned in the provisions of the Representation of the People Act, 1951, and no other persons would be permissible to be so impleaded. The learned senior counsel has further submitted that the concept of “proper party” as envisaged in the Code of Civil Procedure, 1908, remains alien to an election dispute under the provisions of the Representation of the People Act, 1951. 7. In support of his submissions, Mr. Das, learned senior counsel, has relied upon the following decisions of the Hon'ble Supreme Court: (i). Jyoti Basu & ors. v. Debi Ghosal & ors., reported in (1982) 1 SCC 691; (ii). B. Sundara Rama Reddy v. Election Commission of India & ors., reported in 1992 Supp(2) SCC 624; and (iii). Michael B. Fernandes v. C. K. Jaffer Sharief & ors., reported in (2022) 3 SCC 521. 8. I have heard the learned counsels appearing for the parties and also perused the materials available on record. Page No.# 5/11 9. At the outset, the provisions of Section 82 and 86(4) of the Representation of the People Act, 1951, being relevant, is extracted hereinbelow: “82. Parties to 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 (8) any other candidate against whom allegations of any corrupt practice are made in the petition.” “86. Trial of election petitions. ….................................................................................................................................... (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.” 10. A perusal of the provisions of Section 82 and 86(4) of the Representation of the People Act, 1951, would go to reveal that in an election petition; it is only the candidates contesting the said election, who are required to be impleaded as party respondents. 11. The above issue is no longer res integra and has been settled by the decisions of the Hon'ble Supreme Court as relied upon by Mr. Das, learned senior counsel appearing for the Opposite Party No. 1. 12. In the case of Jyoti Basu(supra); the Hon'ble Supreme Court, on consideration of the issue, concluded, as under: “8 A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a Page No.# 6/11 statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a strait-jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the scheme of the Act. We have noticed the necessity to rid ourselves of notions based on common law or equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say? 9. Section 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Section 82 is headed "Parties to the petition" and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Section 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86(4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with the question as to who may be joined as respondents. It is significant that while clause (b) of Section 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Section 86(4), any other person cannot, under that provision seek to be joined as a respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents. 10. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the court Page No.# 7/11 'effectually and completely to adjudicate upon and settle all questions involved' may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only 'as far as may be and subject to the provisions of the Representation of the People Act, 1951 and the Rules made thereunder. Section 87(1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not. Quite obviously the provisions of the Code cannot be so invoked. In Mohan Raj v. Surendra Kumar Taparia, this Court held that the undoubted power of the Court (i.e. the Election Court) to permit an amendment of the petition cannot be used to strike out allegations against a candidate not joined as a respondent so as to save the election petition from dismissal for non-joinder of necessary parties. It was said: The court can order an amendment and even strike out a party who is not necessary. But where 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 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 Section 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 a curative means to save the petition. Again, in K. Venkateswara Rao v. Bekkam Narasimha Reddi, it was observed: With regard to the addition of parties which is possible in the case of a suit under the provisions of Order 1, Rule 10 subject to the added party's right to contend that the suit as against him was barred by limitation when he was impleaded, no addition of parties is possible in the case of an election petition except under the provisions of sub-section (4) of Section 86. 11. The matter may be looked at from another angle. The Parliament has expressly provided that an opportunity should be given to a person who is not a candidate to show cause against being 'named' as one guilty of a corrupt practice. Parliament however, has not thought fit to expressly provide for his being joined as a party to the election petition either by the election-petitioner or at the instance of the very person against whom the allegations of a corrupt practice are made. The right given to the latter is limited to show cause against being 'named' and that right opens up for exercise when, at the end of the trial of the election petition notice is given to him to show cause why he should not be 'named'. The right does not extend to participation at all stages and in all matters, a right which he would have if he is joined as a party at the commencement. Conversely the election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged trial of an election petition with all its intricacies and ramifications. One may well imagine how mischievous minded persons may harass public personages like the Prime Minister of the country, the Chief Minister of a State or a political leader of a national dimension by impleading him as a party to election petitions, all the country over. All that would be necessary is a seemingly plausible allegation, casually or spitefully made, with but a facade of truth. Everyone is familiar with such allegations. To permit such a public personage to be impleaded as a party to an election petition on the basis of a mere allegation, without even prima facie proof, an allegation which may ultimately be found to be unfounded, can cause needless vexation to such personage and prevent him from the effective discharge of his public duties. It would be against the public interest to do so. The ultimate award of costs would be no panacea in such cases, since the public mischief cannot be repaired. That Page No.# 8/11 is why Public Policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86(4). It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the court finds that there is sufficient material to hold a person guilty of a corrupt practice, the court may then issue a notice to him to show cause under Section 99 and proceed with further action. In our view the legislative provision contained in Section 99 which enables the court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be 'named' is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.” 13. With regard to the issue of impleading the Election Commission of India as a respondent in an Election Petition; the Hon'ble Supreme Court in the case of B. Sundara Rama Reddy(supra), had, concluded, as under: “4. Learned counsel for the petitioner urged that even if the Election Commission may not be a necessary party, it was a proper party since its orders have been challenged in the election petition. He further urged that since Civil Procedure Code, 1908 is applicable to trial of an election petition the concept of proper party is applicable to the trial of election petition. We find no merit in the contention. Section 87 of the Act lays down that subject to the provisions of the Act and any rules made there-under, every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provisions of the Civil Procedure Code have thus been made applicable to the trial of an election petition to a limited extent as would appear from the expression "subject to the provisions of this Act". Since Section 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not necessary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self-contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of proper party. In K. Venkateswara Rao v. Bekkam Narasimha Reddi, this Court while discussing the application of Order I Rule 10 of the Civil Procedure Code to an election petition held that there could not be any addition of parties in the case of an election petition except under the provisions of sub-section (4) of Section 86 of the Act. Again in Jyoti Basu v. Debi Ghosal, this Court held that the concept of 'proper party' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.” 14. With regard to the impleading of the Returning Officer and the Chief Page No.# 9/11 Electoral Officer, as respondents in an Election Petition on the plea that they are proper parties, if not, necessary parties; the Hon'ble Supreme Court in its decision, in the case Michael B. Fernandes(supra), concluded, as under: “................................................On a plain reading of Section 82, which indicates as to the person who can be joined as a respondent to an election petition, the conclusion is irresistible that the returned candidate, the candidate against whom allegations of any corrupt practice have been made is to be joined as party-respondent when declaration is sought for holding the election of the returned candidate to be void and when a prayer is made as to any other candidate to be declared to be duly elected, then all the contesting candidates are required to be made party-respondents. On a literal interpretation of the aforesaid provisions of Section 82, therefore, it can be said that an election petition which does not make the persons enumerated in Section 82 of the Act, as party-respondents, is liable to be dismissed. The two decisions of this Court directly on the question are the cases of Jyoti Basu v. Debi Ghosal and B. Sundara Rami Reddy v. Election Commission of India. In the former case, Chinnappa Reddy, J., speaking for the Court, held that right to elect or to be elected or dispute regarding election are neither fundamental rights nor common law rights but are confined to the provisions of the Act and the Rules made thereunder and consequently, rights and remedies are all limited to those provided by the statutory provisions. On the question of joinder of parties, referring to Sections 82 and 86(4) of the Representation of the People Act, it was held that the contest of the election petition is designed to be confined to the candidates at the election and all others are excluded and, therefore, only those may be joined as respondents to an election petition, who are mentioned in Sections 82 and 86(4) and no others. An argument had been advanced in that case that even if somebody may not be a necessary party under Section 82 of the Act, but yet he could be added as a proper party as provided in Order 1 Rule 10 of the Code of Civil Procedure. But the Court rejected that contention on a finding that the provisions of the Civil Procedure Code apply to election disputes only as far as may be and subject to the provisions of the Act and any rules made thereunder and the provisions of the Code cannot be invoked to permit that which is not permissible under the Act. It was in that context the Court further observed that the concept of "proper parties" is and remains alien to an election dispute under the Act. This decision was followed in B. Sundara Rami Reddy case referred to supra and it was reiterated that the concept of "proper party" is and must remain alien to an election dispute under the Act and only those may be joined as respondents to an election petition, who are mentioned in Sections 82 and 86(4) of the Act and no others. The Court in this case added that however desirable and expedient it may appear to be, none else shall be joined as the respondents. Mr Venkataramani, the learned Senior Counsel appearing for the appellant, contended that the law enunciated in the two decisions and the observations made are too wide and while Section 82 casts an obligation on an election petitioner to join those mentioned in clauses (a) and (b) as party-respondent, it does not put an embargo for addition of any other person in an appropriate case, depending upon the nature of allegation made and consequently, the expression "any other" in the two decisions referred to above, must be held not to have been correctly used...............................................................................................” “......................................There is no dispute with the proposition that a free and fair electoral process is the foundation of our democracy, but the question for consideration is, whether by indicating in the Act as to who shall be arrayed as party, Page No.# 10/11 the court would be justified in allowing some others as parties to an election petition. For the aforesaid proposition, Gill case is no authority. Mr Venkataramani then relied upon the decision of the Calcutta High Court in Dwijendra Lal Sen Gupta v. Harekrishna Konar where the question came up for consideration directly and the Calcutta High Court did observe that the Returning Officer may nevertheless in an appropriate case be a "proper party" who may be added as party to the election petition and undoubtedly, the aforesaid observation supports the contention of Mr Venkataramani. Following the aforesaid decision, a learned Single Judge of the Bombay High Court in the case of H.R. Gokhale v. Bharucha Noshir C. had also observed that the observations of Shah, J. in Ram Sewak Yadav case in paragraph 6 are not intended to lay down that the Returning Officer can in no event be a proper party to an election petition. But both these aforesaid decisions of Calcutta High Court and Bombay High Courts had been considered by this Court in Jyoti Basu case and the Court took the view that the public policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86(4), The Court also in paragraph 12 considered the consequences if persons other than those mentioned in Section 82 are permitted to be added as parties and held that the necessary consequences would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Section 86(6) of the Act. In the aforesaid premises, we reiterate the views taken by this Court in Jyoti Basu case and reaffirmed in the later case in B. Sundara Rami Reddy and we see no infirmity with the impugned judgment, requiring our interference under Article 136 of the Constitution.” 15. A perusal of the decisions of the Hon'ble Supreme Court has settled the position with regard to the impleadment of parties in an Election Petition and the same postulates that it is only the candidates as envisaged under the provisions of Section 82 and 86(4) of the Representation of the People Act, 1951; who would be now mandated to be impleaded as party respondents. 16. The applicant, herein, having sought to implead the Election Commission of India and its officials involved in the election process, the decisions of the Hon'ble Supreme Court as noticed hereinabove, having clearly held that they are, neither, necessary, nor, proper parties in an Election Petition; the prayer of the applicant, herein, would not mandate acceptance. Page No.# 11/11 17. Accordingly, in view of the above conclusions; the prayer as made by the applicant, herein, in the present interlocutory application, would not mandate an acceptance and therefore, the instant interlocutory application stands dismissed. However, there shall be no order as to costs. JUDGE Comparing Assistant