Whether, the other contested candidates for ward/Division No.29 of Nizamabad Municipal Corporation in the elections held on 30-03-2014 are necessary parties to the election petition under Section 72 of the Act, as the relief claimed to declare that the election of revision petitioner for the ward number 29 of Nizamabad Municipal Corporation as void, illegal and contrary to Section 21 (B) of the Act and to declare him as the elected candidate having secured second highest number of votes in the said election (vide Section 74(b) of the Act) if so, whether the election petition is liable to be dismissed before conclusion of trial? = Trail court dismissed the petition filed under Or.VII, rule 11 C.P.C. as the petitioner was examined and in the mid of trial , petition not maintainable = High Court allowed the revision and dismissed the Election petition due to non joinder of other contested candidates as he claimed himself for Declaration as duly elected candidate – held that -Moreover, petition filed by the 1st respondent (election petitioner) under Order 1 Rule 10(2) to implead the contested candidates was dismissed, since, the application was not filed within (14) days from the date of filing election petition – The 1st respondent/election petitioner claimed relief to declare that the election of revision petitioner-returned candidate for the ward No.29 of Nizamabad Municipal Corporation as void besides claiming declaration that he is the returned candidate for the said ward. When the petitioner claimed such relief, it is his obligation to implead all the contested candidates in addition to impleading the returned candidate as party to the petition as required under Section 72 read with Section 74 (b) of the Act.

HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY

CIVIL REVISION PETITION No.246 of 2016

04-03-2016

M.A.Faheem Uddin S/o.Md.Rasheed Uddin, Aged.49 years, H.No.9-14-28/1,Ahmedpura
Colony, Nizamabad…PETITIONER

Shaik Nayeem S/o.Shaik Raheem Aged.28years,occ:Business,H.No.9-12-100,
Ahmedpura Colony, Nizamabad and another…RESPONDENTS.

Counsel For The Petitioner: Sri A.Sudarshan Reddy for Sri M.Rajendender Reddy

Counsel For Respondents:Sri P.Veera Reddy for Sri Shafath Ahmed Khan

Head Note :

? CITATIONS :
1. AIR 1986 Supreme Court 1253(1)
2. 1997(5) ALD 330
3. 2010 Law Suit (P&H) 5028
4. AIR 1996 Supreme Court 796
5. AIR 1958 Supreme Court 687
6. (2003) 1 Supreme Court Cases 289
7. 2014 (4) ALD 585
8. 2004 (3) ALT 788 (D.B)
9. AIR 1972 Andhra Pradesh 120 (V.59 C 24)
10. 2015 (4) ALT 40
11. AIR 1972 SC 515
12. AIR 1987 SC 1926
13. AIR 2002 SC 1041
14. 1982 13 SCR 318
15. (1992) 1 LLJ 281 SC
16. AIR 1963 Cal 218
17. AIR 1969 Bombay 177
18. AIR 2013 SC1549
19. (2001) 4 SCC 428
20. (2004) 11 SCC 196
21. (2008) 11 SCC 740
22. AIR 2012 SC 2638
23. (1999) 2 SCC 217
24. AIR 1969 SC 677
25. AIR 1976 SC 744
26. 1978 WLN 161

HONBLE SRI JUSTICE M. SATYANARAYANA MURTHY

CIVIL REVISION PETITION No.246 of 2016

ORDER:
This Revision petition is filed under Article 227 of Constitution
of India challenging the order, dated 15-10-2015, passed in I.A.No.634 of
2015 in OP.No.235 of 2014 by the Judge, Family Court-cum-Additional
District Judge and Election Tribunal, Nizamabad.
The Revision petitioner was the petitioner before the Tribunal
and the 1st respondent was the election petitioner/respondent and they
will be hereinafter referred to as revision petitioner and 1st respondent
for convenience of reference.
The revision petitioner (the 1st respondent in Election petition)
filed petition under Sections 71, 72 of the Greater Hyderabad Municipal
Corporation Act (for short the Act) and rule 100 (3) of A.P.Municipal
Corporations (Conduct of Election of Members) Rules, 2005
(for short Election Rules, 2005) alleging that he contested for the
office of Corporator from Division/ward No.29, Nizamabad Municipal
Corporation held on 30-03-2014. The revision petitioner was declared as
elected for the Division/ward on 12-05-2014 having secured highest
number of votes among nine contested rival candidates for the said
Division/ward of Municipal Corporation, Nizamabad.
The 1st respondent among other contested candidates who
secured second highest votes in the said election filed petition
challenging the election of the revision petitioner on the ground that he
was disqualified under Section 21 (B) of the Act to contest in the
election as he was blessed with more than two children as on the date of
filing nomination, thereby not entitled to continue as member of said
Division/ward. The revision petitioner filed counter in the main election
petition denying the same.
The specific contention of the petitioner is that there were totally
10 contested candidates on the fray for the Division/ward No.29 of
Nizamabad Municipal Corporation in the said election. But the 1st
respondent filed election petition without impleading all other
contested candidates for the said ward and though they are necessary
parties to the election in view of Sections 71, 72 and 74 of the Act and
rules framed thereunder. Therefore, for non-compliance of mandatory
provisions of Sections 72 read with Section 74, the petition is liable to be
dismissed in limini without any trial as per rule 100 (3) of Election Rules,
2005, prayed to dismiss the election petition pending on the file Election
Tribunal.

The 1st respondent (Election petitioner) filed counter denying the
material allegations while reiterating that the revision petitioner was
disqualified to contest in the election, in view of disqualification under
21(B) of the Act and that trial Court though honestly made attempts to
dispose of the matter, in view of Section 86 (7) of Representation of
People Act, as expeditiously as possible and as per the orders of this
Court in CRP.No.5037 of 2014. The revision petitioner is creating
hurdles at every moment, not allowing the Tribunal to decide the
election petition. It is further contended that the revision petitioner
filed similar petition on 12-06-2014 under Section 75(1) of the Act read
with Order VII Rule 10, 10-A (3) and 11(d) of C.P.C. to reject or return
the election petition in view of inherent lack of jurisdiction and the
same was not entertained till this day. Moreover, petition filed by the
1st respondent (election petitioner) under Order 1 Rule 10(2) to implead
the contested candidates was dismissed, since, the application was not
filed within (14) days from the date of filing election petition. The 1st
respondent further contended that point of jurisdiction was also
disputed by the revision petitioner in the earlier round, by filing
I.A.No.408 of 2014 and the same was dismissed on the ground that the
Tribunal has no jurisdiction to pass any order in exercise of power under
Section 151 C.P.C. by way of interim order. Again the petitioner filed
the present petition to dismiss the election petition in limini by gross
abuse of process of law and the same cannot be accepted. It is
contended that the election petition cannot be dismissed at the
threshold for non-compliance of provisions of the Act or rules framed
thereunder. Since the Act does not contemplate dismissal of the
petition without conducting any trial and that the present petition is
only abuse of process of law, prayed to dismiss the petition.
The 2nd respondent did not file any counter.
Upon hearing argument of both counsel, perusing various
provisions of the Act and rules framed thereunder, the Tribunal held in
para No.26 as follows:
In my humble opinion if this Tribunal feels that there is a
ample oral and documentary evidence to consider that the petitioner
herein is not qualified to contest in Municipal election definitely he
will be declared as disqualified candidate for which all the contesting
candidates are not necessary for adjudication. Further, if the
respondent No.1 herein declared as elected candidate, then the
mandatory provisions required for compliance can be seen. Further
the violation of non-joinder of necessary parties is concerned, it will
be continued till the disposal of the main OP and it cannot be rectified
further as the Honble High Court already confirmed the order given
by this Tribunal in a petition filed by the respondent No.1 herein
under Order 1 Rule 10 of C.P.C. So the contest made by the petitioner
herein already pleaded in his counter in the main OP that the petition
is not maintainable for non-joinder of necessary party still continues
till disposal of main election petition. As such, I am of the opinion no
special prejudice will be caused to the petitioner herein if the petition
is dismissed. Further, this Tribunal already started recording the
evidence of the respondent No.1 herein and one witness is in the
witness box. In such circumstances, I am of the opinion it is not safe
to consider this petition as it is always open to the petitioner herein
to let in evidence to discredit the evidence of the respondent No.1 and
to prove his defence. On my perusal of the citations relied by the
petitioner that it relates to period of limitation. Admittedly, the
petitioner is not contesting that the election petition is filed beyond
the period of limitation, as such the decisions are not applicable to
the present case.

Against the above order, the present revision is filed contending
that the postponement of decision about maintainability of election
petition is erroneous, as the relief claimed by the petitioner falls under
Sections 72 read with Section 74(b) of the Act. In such a case, all the
contested candidates for the ward No. 29 are necessary parties and in
the absence of impleading other contested candidates, the petition is
liable to be dismissed in view of rule 100(3) of Election Rules, 2005. The
Tribunal failed to consider the order in I.A.No.657 of 2014 filed by the
1st respondent under order 1 Rule 10(1) CPC. Finally contended that
order under challenge is erroneous and in violation of Rule 100 (3) of
Election Rules,2005 and prayed to set aside the order and dismiss the
election petition on the ground of non-joinder of necessary parties to
the petition, the Tribunal failed to exercise jurisdiction conferred on it.

During hearing learned Senior Counsel for the petitioner
Sri A.Sudarshan Reddy, contended that the election petition is liable to
be dismissed, when the petitioner claimed relief to declare that the
revision petitioner (returned candidate) in the election for the municipal
corporation, Nizamabad for Division/ward No.29 and to declare the
election petitioner as elected as member of Municipal Corporation,
Nizamabad falls within Section 74 (b) of the Act and in view of Rule
100(3) of the Election Rules,2005, the petition is liable to be dismissed
for non-joinder of other contested candidates in the election for
Division/ward No.29 of the Municipal Corporation, Nizamabad. It is the
specific contention of the learned counsel for the petitioner that the
petition is not maintainable in accordance with law. The returned
candidate cannot be put to ordeal of trial and he need not wait till the
completion or conclusion of trial in the main election petition. To
support his contention, he placed reliance on the judgments of Azhar
Hussain v. Rajiv Gandhi , M.Ranga Reddy v. N.Indrasena Reddy ,
Gurlal Singh v.Presiding Officer, Election Tribunal, Block Lehra,
District Sangrur and others , Manohar Joshi v. Nitin Bhaurao Patil and
another . Finally it is contended that the 1st respondent made an
attempt to implead other contested candidates by filing an application,
which ended in dismissal and attained finality. In such a case, the
revision petitioner cannot be compelled to undergo ordeal of trial of
election petition without concentrating on the duties as a member of
the ward/Division of Nizamabad Municipal Corporation. The defect in
the petition is not curable one and if it is curable, the decision in the
main petition can be postponed, when it is not curable, the petition is
liable to be dismissed at the threshold, instead of deciding the matter
on merits.
Learned Senior counsel for the 1st respondent Sri P.Veera Reddy
contended that when the revision petitioner is disqualified to contest
the election in view of Section 21(B) of the Act, non-joinder of parties is
not inherent defect in the petition and therefore, the petition cannot be
dismissed at the threshold and at best at the end of trial,
if the Tribunal comes to a conclusion that petition is defective for non-
joinder of necessary parties as required under Section 72, 74(b) of the
Act, the petition can be dismissed. But not before proceeding with the
trial, the relief claimed by the revision petitioner cannot be granted,
since the Tribunal is not competent to pass any interim order, to support
his contention, he placed reliance on the judgments of K.Kamaraja
Nadar v. Kunju Thevar and others , Ramprasad Sarma v. Mani Kumar
Subba and others . Another contention raised by Senior Counsel Sri
P.Veera Reddy is that the election petitions cannot be dismissed at the
threshold, at the best they can be dismissed at the conclusion of the
trial, if there is any inherent defect. To support his contention, he
placed reliance on the judgments of Challa Swaroopa v. District
Collector (District Election Authority), Khammam Town and District
and others , Kummari Ramulu v. Gangaram Penta Reddy and others ,
Gadde Venkateswara Rao v. K.Venkata Rao and another and
M.Khalellulla Baig v. Mulla Khaja Mohiuddin and others , finally
prayed to dismiss the petition, since, dismissal of election petition
without trial is impermissible under the Act and rules framed
thereunder.
Considering the rival contentions, perusing the material on
record, the sole point that arises for consideration is as follows:
Whether, the other contested candidates for
ward/Division No.29 of Nizamabad Municipal Corporation in
the elections held on 30-03-2014 are necessary parties to the
election petition under Section 72 of the Act, as the relief
claimed to declare that the election of revision petitioner for
the ward number 29 of Nizamabad Municipal Corporation as
void, illegal and contrary to Section 21 (B) of the Act and to
declare him as the elected candidate having secured second
highest number of votes in the said election (vide Section
74(b) of the Act) if so, whether the election petition is liable
to be dismissed before conclusion of trial?
POINT:
Before adverting to the point, it is relevant here to note the
comparative analysis of the relevant provisions under the Greater
Hyderabad Municipal Corporations act, 1955 and The Representation of
the People Act, 1951.
THE GREATER HYDERABAD
MUNICIPAL CORPORATION ACT,
1955
THE REPRESENTATION OF THE
PEOPLE ACT, 1951
Section 71 :
Election Petition:
1) No election held under this Act
shall be called in question except
petition which shall be presented
in such manner as may be
prescribed.

2) An Election petition calling in
question any election may be
presented on one or more of the
grounds specified in clauses (i)
and (ii) of Section 79 and section
80 to the Election Tribunal by
any candidate at such election or
any voter, within two months
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 the
election are different is the later
of those two dates.

Provided that the period from the
date on which an election petition can be
filed under this sub-section to the date of
the constitution of an Election Tribunal
under Section 75, shall be excluded for
purpose of computing the period of two
months under this sub-section.

Section 72:
Parties to the petition:
A petitioner shall join as respondents
to his petition:-
a) Where the petitioner claims a
declaration under clause (b) of
Section 74, all the contesting
candidates other than the
petitioner and in any other case
all the returned candidates; and

b) Any other candidates against
whom allegations of any corrupt or
illegal practice are made in the
petition.

Section 74:

Relief that may be claimed by the
petitioner:
A petitioner may claim any one of
the following declarations.

a) that the election of the returned
candidate is void;

b) that the election of the returned
candidate is void and that himself
or any other candidate has been
duly elected.

c) That the election as a whole is
void.
Section 81:
Presentation of Petitions:
1) An election petition calling in
question any election may be
presented on one or more of the
grounds specified in 3 [sub-section(1)
of section 100 and section 101 to the 4
[High Court] by any candidate at such
election or any elector 5 [ 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].

Explanation- In this sub-section,
elector means a person who was
entitled to vote at the election to
which the election petition relates,
whether he has voted at such election
or not.
Sub-section (2) omitted

[3] Every election petition shall be
accompanied by as many copies
thereof as there are respondents
mentioned in the petition, and every
such copy shall be attested by the
petitioner under his own signature to
be a true copy of the petition.]

Section 82:
Parties to the petition;-
A petitioner shall join as respondents
to his petition-
a) where the petitioner, in
addition to claiming a
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.

Section 84:

Relief that may be claimed by the
petitioner:-
A petitioner may, in addition to
claiming a declaration that the
election of all or any of the returned
candidates is void, claim a further
declaration that he himself or any
other candidate has been duly
elected.

THE GREATER HYDERABAD
MUNICIPAL CORPORATION ACT, 1955
THE REPRESENTATION OF THE
PEOPLE ACT, 1951
Section 77
Decision of Tribunal:
At the conclusion of the trial of an
election petition, the Tribunal shall
make an order-
a) dismissing the election
petition:
or
(b) declaring the election of the
returned candidate to be void; or
c) declaring the election of the
returned candidate to be void and
the petitioner or any other
candidate to be void and the
petitioner or any other candidate
to have been duly elected;

c) declaring the election to be
wholly void.

Section 98:
Decision of the High Court:
At the conclusion of the trial of an
election petition [the High Court ]shall
make an order-
a) dismissing the election
petition; or
b) declaring the election of [ all
or any of the returned
candidates] to be void;
or
c) declaring the election, of [all or
any of the returned candidates ] to
be void and the petitioner or any
other candidate to have been duly
elected.

The A.P.Municipal Corporation
(Conduct of Election of Members,
Election Expenses and Election
Petitions) Rules, 2005
The Representation of the People
Act, 1951
Rule 100:
Procedure before the Tribunal:
1) Subject to the provisions of the
Act and these rules every election
shall be tried by the Tribunal as
nearly as may be in accordance
with the procedure applicable
under the Code of Civil Procedure
Code, 1908 (Act V of 1908) to the
trial of suits: provided that the
tribunal shall have the discretion
to refuse for reasons to be
recorded in writing to examine
any witness or witness if it is of
the opinion that their evidence is
not material for the decision the
petition or that the party
tendering such witness or
witnesses in doing so on frivolous
grounds or with a view to delay
the proceedings.

2) The provision of the Indian
Evidence ct, 1872(1 of 1872) shall
subject to the provisions of these
rules be deemed to apply in all
respects to the trial of an election
petition.

3) This Tribunal shall dismiss an
election petition which does not
comply with the provisions of
Sections 71, 72 or Rule 114.

4) Any candidate not already a
respondent shall upon application
made to the tribunal within
fourteen days from the
commencement of the trial and
subject to the provisions of rule
106 be entitled to be joined as
respondent.

Explanation:-
For the purpose of this sub-rule
and of rule 99 the trial of petition
shall be deemed to commence on
the date fixed for the respondents
to appear, before the Tribunal
and answer the claim or claims
made in the petition.

5) The Tribunal may upon such terms
as to costs and otherwise as it
may deem fit, allow the
particulars of any corrupt or
illegal practice alleged in the
petition to be amended or
amplified in such manner as may
in its opinion be necessary for
ensuring a fair and effective trial
of the petition, but shall not
allow any amendment to the
petition which will have the
effect of introducing particulars
of a corrupt or illegal practice not
previously alleged in the petition.

Section 86:
Trial of election petitions:-
1) The High Court shall dismiss an
election petition which does not
comply with the provisions of section
81 or section 82 or section 117.

Explanation:-
An order of the High Court dismissing
an election petition under this sub-
section shall be deemed to be an
order made under clause (a) of section
98.

2) As soon as may be after an election
petition has been presented to the
High Court, it shall be referred to the
Judge or one of the Judges who has or
have been assigned by the Chief
Justice for the trial of election
petitions under sub-section (2) of
Section 80A.

3) When more election petitions than
one are presented to the High Court
in respect of the same election, all of
them shall be referred for trial to the
same Judge who may, in his
discretion, try them separately or in
one or more groups.

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
cots which may be made by the High
Court be entitled to be joined as a
respondent.

The undisputed facts are that the 1st respondent
(election petitioner) filed petition questioning the election of revision
petitioner on the ground that he is blessed with more than two children
and disqualified to contest in the election, in view of disqualification
contemplated under Section 21 (B) of the Act. Of course, the revision
petitioner (the 1st respondent in the election petition) denied the
disqualification under Section 21 (B) of the Act and it is a disputed fact
required to be decided at the conclusion of the trial by pronouncing
order/judgment on termination of proceedings. The election petitioner
claimed following reliefs in the election petition in OP.No.235 of 2014 in
last para (prayer), which is extracted hereunder for better appreciation
in view of contentions raised by both parties to the revision petition:
i) To declare the Election of the returned candidate for Ward
No.29 i.e. respondent No.1 as void.
ii) To declare the petitioner as duly elected from Ward No.29.
iii) Costs of the petition may be awarded.
iv) Any other relief or reliefs as this Honble Court may deem fit
and proper, in the above circumstances of the case, may be
awarded, in the interest of justice and equity.

A bare look at the prayer in the election petition extracted above,
he claimed relief to declare the election of the revision petitioner for
the ward No.29 as void and declare the petitioner as duly elected for the
Division/ward No.29. At this stage, it is relevant to extract section 74
and Section 77 of the Act as it would serve useful purpose for better
appreciation and extracted hereunder:
Section 74 of the Act :
A petitioner may claim any one of the following declarations:-

a) that the election of the returned candidate is void;
b) that the election of the returned candidate is void and that himself
or any other candidate has been duly elected;
c) that the election as a whole is void.

Thus, the election petitioner is entitled to claim the relief
contemplated under all the sub-sections of the Section 74 of the Act.
Section 72 of the Act deals with necessary parties to the petition
and according to it, the petitioner shall join as respondents to his
petition,-
a) where the petitioner claims a declaration under Clause (b) of
Section 74, all the contesting candidates other than the
petitioner and in any other case all the returned candidates,
and
b) any other candidates against whom allegations of any corrupt
or illegal practice are made in the petition.

Here, the petitioner claimed relief under Section 74(b) of the Act,
hence, all the contested candidates in addition to revision petitioner are
proper and necessary parties to the petition in view of Section 72 (a) of
the Act.
Rule 100 (3) of the Election Rules, 2005 deals with the procedure
before the Tribunal, according to sub-rule (1) subject to other provisions
of the Act and the rules, every election petition shall be considered by
the Tribunal as nearly as may be in accordance with the procedure
applicable under Code of Civil Procedure to the trial of the suits.
However, the Tribunal shall have discretion to refuse for reasons to be
recorded in writing to examine any witness or witnesses if it is of the
opinion that their evidence is not material for the decision in the
petition or that party tendering such witness or witnesses in doing so on
frivolous grounds or with a view to delay proceedings. According to
Sub-Rule 3 of Rule 100, the Tribunal shall dismiss an election petition,
which does not comply with the provisions of Sections 71, 72 or Rule
114. Therefore, it is clear that from sub-rule 3 of Rule, 100 of Election
Rules, 2005, the election petition filed under Section 71 for non-
compliance of Section 72 read with Section 74 (b) of the Act i.e.
impleading of other contested candidates other than returned
candidate, when relief claimed falls within the ambit of
74 (b) of the Act is liable to be dismissed. The provision is not clear
whether such an order can be passed at the threshold or at the
conclusion of trial of election petition. In view of the contention that
the election petition can be dismissed at the threshold without ordeal of
trial as contended by Sri A.Sudarshan Reddy, learned Senior Counsel for
the petitioner and that election petition shall not be dismissed at the
threshold as contended by Senior Counsel Sri P.Veera Reddy, it is
necessary to examine this issue with reference to law declared by Apex
Court and other Courts both with reference to A.P.Municipal
Corporations Act, Representation of People Act and other enactments.

The 1st respondent/election petitioner claimed relief to declare
that the election of revision petitioner-returned candidate for the ward
No.29 of Nizamabad Municipal Corporation as void besides claiming
declaration that he is the returned candidate for the said ward. When
the petitioner claimed such relief, it is his obligation to implead all the
contested candidates in addition to impleading the returned candidate
as party to the petition as required under Section 72 read with Section
74 (b) of the Act.

Learned Senior Counsel for the petitioner Sri A.Sudarshan Reddy
while contending that object of rule 100 (3) of Rules, 2005 is to avoid
ordeal of trial of the election petition, when other contested candidates
are not impleaded as parties to the petition; to allow returned
candidates to attend duties being member of Ward/Division, petition
can be dismissed at the threshold. He placed reliance on Rajiv Gandhis
case (supra 1). In the said election petition, the election petitioner
challenged the election of Rajiv Gandhi for the Lok-sabha Member from
Amethi Constituency and non-compliance of Section 81, 82 of the Act
and Section 117 of Representation of the people Act
(For short the R.P.Act) is in pari-materia to Sections 71, 72 and
Section 74 of the Act. Before the Supreme Court, it was contended that
the provisions of C.P.C. are applicable, Section 84 of the R.P. Act, is
equivalent to Section 74 of the Act, based on the judgment of Apex
Court in Hardwari Lal v. Kanwal Singh , the Supreme Court concluded
that the election petition can be summarily dismissed, if it does not
furnish any cause of action, in exercise of powers under the Code of Civil
Procedure, so also it emerges from the aforesaid decision that
appropriate orders in exercise of powers under the Code of Civil
Procedure can be passed, if the mandatory requirements enjoined by
Section 83 of the Act to incorporate the material facts in the election
petition are not complied with.
While dealing with other grounds under Section 82 of
Representation of People Act, the Apex Court concluded as follows:
Learned counsel for the petitioner has next argued that
in any event the powers to reject an election petition summarily
under the provisions of the Code of Civil Procedure should not be
exercised at the threshold. In substance, the argument is that
the Court must proceed with the trial, record the evidence, and
only after the trial of the election petition is concluded that the
powers under the Code of Civil Procedure for dealing
appropriately with the defective petition which does not disclose
cause of action should be exercised. With respect to the learned
counsel, it is an argument which it is difficult to comprehend.
The whole purpose of conferment of such powers is to ensure
that a litigation which is meaningless and bound to prove
abortive should not be permitted to occupy the time of the
Court and exercise the mind of the respondent. The sword of
Damocles need not be kept hanging over his head unnecessarily
without point or purpose. Even in an ordinary Civil litigation the
Court readily exercises the power to reject a plaint if it does not
disclose any cause of action. Or the power to direct the
concerned party to strike out unnecessary, scandalous, frivolous
or vexatious parts of the pleadings. Further observed that the
contention that even if the election petition is liable to be
dismissed ultimately should be so dismissed only after recording
evidence is a thoroughly misconceived and untenable argument.
The powers in this behalf are meant to be exercised to serve the
purpose for which the same have been conferred on the
competent Court so that the litigation comes to an end at the
earliest and the concerned litigants are relieved of the
psychological burden of the litigation so as to be free to follow
their ordinary pursuits and discharge their duties. Such being
the position in regard to matters pertaining to ordinary Civil
litigation, there is greater reason for taking the same view in
regard to matters pertaining to elections.

Finally, the Apex Court held that to wind up the dialogue
to contend that the powers to dismiss or reject an election
petition or pass appropriate orders should not be exercised
except at the stage of final judgment after recording the
evidence even if the facts of the case warrant exercise of such
powers, at the threshold, is to contend that the legislature
conferred these powers without point or purpose, and we must
close our mental eye to the presence of the powers which should
be treated as non-existent. The Court cannot accede to such a
proposition.

A bare reading of law declared by Supreme Court the election
petition can be dismissed at the threshold without ordeal of trial, since
the Court trying election petition can exercise powers under Code of
Civil Procedure. Similar view is expressed by learned single Judge of this
Court in Indrasena Reddys case (supra 2) and held in para No.27 by
placing reliance on the judgment of Samar Singh v. Kedar Nath as
follows:
From the above, it is clear that Sections 81, 83(1) (c)
and 86 of the Act read with Rule 94-A of the Rules and Form 25
are to be read conjointly as an integral scheme. Any infirmity to
comply with the mandatory requirements even under Section
83(1) (c) of the R.P.Act is fatal to the maintainability of the
election petition. When once an objection petition is filed under
Section 86(1) of the Act, the Court has no option than to dismiss
the election petition if satisfied that the election petition is not
in conformity with Section 83 (1) (c) of the R.P.Act read with
Rule 94-A of the Rules.

The disputed fact in the above judgment is non-compliance of
section 83 of the R.P.Act, but here the dispute is with regard to non-
compliance of Section 72 of the Act, equated to Section 82 of the R.P.
Act. Even otherwise, law declared in the above judgment in case of
non-compliance of mandatory provisions, the election petition can be
dismissed at the threshold.

In Michael B.Fernades v. C.K.Jaffer Sharief and others , the Full Bench
of Apex Court while deciding the issue regarding non-compliance of Section 82
of the R.P.Act, placing reliance on Jyothi Basu and others v. Debi Ghosal
and B.Sundra Rami Reddy v. Election Commission of India and others and
judgments of Dwijendra Lal Sen Gupta v. Kare Krishna Konar , H.R.Gokhale
v.Bharucha Nashir C. and others held that on a plain reading of Section 82,
which indicates as to the person who can be joined as respondents to an
election petition, the conclusion is irresistible that the returned candidate,
the
candidate against whom allegations of any corrupt practice have been made
are 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 to any
other candidate to be declared to be duly elected, then all the contesting
candidates are required to be made as 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 made the person enumerated in
Section 82 of the Act, as party respondents, is liable to be dismissed.
In Gurlal Singhs case (supra 3), a single judge of Punjab and
Haryana High Court had an occasion to deal with similar question and
held in para 21 as follows:
In answer to the aforesaid arguments, learned
counsel for the appellant has relied upon a judgment of the Apex
Court in the case of Udhav Singh which pertains to an election
petition whereby election of the respondent (Madhav Rao
Scindia) to Lok Sabha was challenged but the election petition
was dismissed. In that case, six candidates filed their
nomination papers for contesting the election to Lok Sabha from
Guna Parliamentary Constituency. The appellant (Udhav Singh)
filed the election petition on two grounds but he did not implead
all the candidates in the election petition but for the lone
respondent. At the fag end, an application was filed at the
instance of the respondent therein that necessary parties have
not been impleaded which is in violation of the mandatory
provisions of Section 82 (b) of the Representation of the People
Act, 1951 (for short, Act of 1951). It was objected to by the
appellant Udhav Singh that the objection of non-joinder of
necessary parties was not taken at the earliest stage, therefore,
it should be deemed to have been waived by the respondents. It
was held by the Apex Court that Section 82 (b) of the Act of 1951
is peremptory and the respondent cannot by consent, express or
tacit, waive these provisions or condone a non-compliance with
the imperative of Section 82 (b). Even inaction, laches or delay
on the part of the respondent in pointing out the lethal defect of
non-joinder cannot relieve the Court of its statutory obligation
cast on it by Section 86. As soon as the non-compliance with
Section 82 (b) comes or is brought to the notice of the Court, no
matter in what manner and at what stage, during the pendency
of the petition, it is bound to dismiss the petition in unstinted
obedience to the command of Section 86. It is also held that the
respondent is not obliged to raise this objection only in his
written statement. Even referred to some principles laid down in
Jyoti Basus case and consequently upheld the dismissal of
election petition for non-compliance.

Learned counsel for the revision petitioner though drawn the
attention of full Bench Judgment of Apex Court in Manohar Joshi
(supra 4), but the decision relates to Section 83 of the R.P.Act and not
directly on the point involved in that matter is corrupt practice against
the returned candidate. Therefore, law declared in the above judgment
is not directly applicable to the present facts. In view of law declared
by Apex Court and this Court in Rajiv Gandhis case and Indra Sena
Reddys case, the election petition if not complied with Section 82 of
R.P.Act can be dismissed at the threshold without ordeal of the trial,
learned Single Judge of Punjab and Haryana High Court is also of the
same view. Even otherwise basing on the principle in Udhav singhs
case, relied on by Punjab and Haryana High Court, election petition can
be dismissed irrespective of stage of the petition, if Section 82
mandatory provision is not complied even without any plea raised by the
respondent.

Learned Senior Counsel for the 1st respondent/Election
petitioner though raised a contention that election petition cannot be
dismissed at the threshold and drawn the attention of this Court to
support his contention to a judgment of Kunju Thevar (supra 5),
wherein the Full Bench of Apex Court concluded that non-joinder of
proper and necessary parties is not curable defect and by any
amendment of petition seeking to delete the claim for such further
declaration and the Election Tribunal was clearly in error in allowing
such amendment of the grounds disclosed in I.A.No.3 of 1957 or
otherwise. This judgment is of no assistance to the respondent/election
petitioner to support his contention that election petition cannot be
dismissed at the threshold. In Ram Prasad Sarmas case (supra 6), the
Supreme Court held that election petition is not liable to be dismissed at
the threshold. In the facts of above judgment Sections 81, 83 and
Section 86 of R.P.Act came up for consideration, in para No.24, held as
follows:
There was every intention to implead such a person as
a respondent. It may then be noted that along with the election
petition, copy of Return of Election is required to be filed in
Form 21E under Rule 64 of the Conduct of Election Rules 1961. It
contains the result of the election as well as the list of
candidates. The said list is on record as Annexure I to the
election petition filed by the petitioner and the name of Abul
Khayer is indicated at Serial No.7 having contested as an
independent candidate. It is thus evident that it is not as if the
correct name is not available on the record of the case.
Apparently, it seems to be a case of spelling mistake. Instead of
Abul letter `d’ got added extra hence typed as Abdul in the array
of parties and the spelling of Khayer as `Khyer’ omitting `a’ after
`kh’. It is to be noted that address of Respondent No.11 is also
indicated in the petition. It is not disputed that it is the address
of the person who contested the election. In this Court there is
an office report of service of notice on respondent No. 8
prepared on the basis of the report received from the Gauhati
High Court. So far wrong spelling of Khyer is concerned it is of
little consequence. Both words “Khyer” and “khayar” would
produce almost the same sound. Technically there may be
difference but by way of example some may spell `Banerjee’ as
`Banerji’ or `Saksena’ as `Saxena’ or the like. Therefore such
difference in spelling of Khayar is but to be ignored. There is
certainly some difference in `Abul’ and `Abdul’ but there is
ample material on record to indicate that the same person who
had contested election was meant to be impleaded e.g. the
address of the person, the averment that the Respondents 7 to
18 had contested the election as well as the form of election
return indicating names of all those who had contested the
election and the names with correct spelling is on the record
namely `Abul Khayar’. In the present case no application for
correcting the name was moved nor any written objection was
filed to indicate that it was a typing error. We feel that absence
of any such application will not adversely affect the petition.
Therefore, election petition cannot be dismissed at the
threshold.
But in the present case, the facts are totally different and
including typographical mistake in mentioning the name of respondent in
the above judgment was considered. On that ground, election petition
cannot be dismissed. The principle laid down in the above judgment is
not applicable to the facts of the present case, since non-joinder of
contested candidates to the election petition strictly adhering to
Sections 72 and 74 of the Act, is in dispute.
Learned Senior Counsel Sri P.Veera Reddy drawn my attention to
the judgment of this Court in Challa Swaroopa (supra 7). Wherein,
learned Single Judge held that election petition cannot be dismissed at
the threshold, and held in para No.23 of judgment as under:
While the impugned order must be set aside on the
ground of inherent lack of jurisdiction in the Election Tribunal to
pass an interlocutory order at the very inception, more so one
which has the effect of partly allowing the Election Petition
itself, the fact remains that any delay in adjudication of the
Election Petition may well result in the statutory right of the
election petitioner, to hold the elected office of Sarpanch, being
deprived thereby. The inconsistencies in the recount of votes,
variations in the number of invalid votes at the time of each
recount, and the power of the Returning Officer to order a third
recount, have been put in issue, in his Election Petition, by the
6th respondent herein. While the submission of Sri K.
Rathangapani Reddy, Learned Counsel for the 6th respondent,
that the action of the Returning Officer in this regard is ex-facie
illegal cannot be readily brushed aside, these are matters for
adjudication by the Election Tribunal and not for examination in
proceedings under Article 226 of the Constitution of India. I
consider it appropriate therefore, while setting aside the
impugned order, to direct the Election Tribunal to adjudicate
the Election Petition with utmost expedition and, in any event,
not later than four months from the date of receipt of a copy of
this order. It is made clear that this Court has not expressed any
opinion on the merits of the dispute and the Election Tribunal
shall adjudicate the Election O.P. on its merits uninfluenced by
any observations made in this Order or in its earlier order in I.A.
No.840 of 2013 in Election O.P.No.16 of 2013 dated 25.02.2014.
In the facts of above judgment, the dispute was regarding
recounting ordered by way of Interlocutory order in the application filed
in I.A.No.840 of 2013 but after reviewing entire law, single judge of this
Court concluded that ordering recounting by way of interlocutory order
amounts to granting main relief in the election petition and no pre-trial
reliefs can be granted. Learned Counsel Sri P.Veera Reddy further
drawn attention of this Court to the judgment of Kummari Ramulu
(supra 8), wherein a Division Bench of this Court held that the powers
which the Election Tribunal while trying election petition, which are
vested in a Court while trying the suit under the Code of Civil Procedure
Code, are only for discovery and inspection, enforcement of attendance
of witnesses and requiring deposit of expenses, compelling production of
documents, examining witnesses on oath, reception of evidence taken
on affidavit and issuing commission for examination of witnesses.
Nowhere, the rule makes a provision that Election Tribunal shall have
the power to permit amendment of election petition or addition,
substitution or deletion of parties, which is a specific power available to
a civil Court while trying a suit under the Code of Civil Procedure. Law
enjoins upon trial of election petition expeditiously. That being the
purpose, the Legislature in its wisdom rightly conferred specific powers
on the Election Tribunal while trying election petition, which are
enjoined upon a Civil Court while trying a suit, and not all the powers
exercisable by a Civil Court as provided under the Code of Civil
Procedure. That being the purpose, it has to be assumed that the
powers, which are not mentioned in the rules, cannot be exercised by
the Election Tribunal. Moreover, power to permit addition of a party
after the period of limitation is such a power that can be exercised only
when it is specifically conferred on the Tribunal.
Similar view is expressed by learned Single Judge of this Court in
M.Khalellulla Baigs case, (supra 10), so also in Gadde Venkateswara
Raos case, (supra 9), based on principles laid down in the above
judgments, Sri P.Veera Reddy, learned Senior Counsel for the
1st respondent/election petitioner contended that dismissal of election
petition by way of interim order is unwarranted, since the Tribunal
trying the election petitions under the A.P.Municipal Corporations Act
are not competent to pass dismissal order in election petition by way of
interim order in an Interlocutory application filed by the petitioner. If
this is the situation, the parties have to undergo long ordeal of trial
without concentrating on their pursuits or duties as member of Ward or
Division. In Kunju Thevars case (supra 5), the Supreme Court held that
failure to implead all contesting candidates is not a curable defect and
on account of non-joinder of parties, the election petition can be
dismissed. In Ram Prasad Sarmas case (supra 6), the Supreme Court
considered the spelling mistake of the name of the party and concluded
that it is not fatal and in the other judgment of Challa Swaroopas case
(supra 7) held that granting of main relief by way of interim order in
interlocutory applications was considered, since it amounts to granting
pre-trial decree in the election petition, the order was set aside. In the
judgment of Kummari Ramulu (supra 8), when powers of election
Tribunal to implead the parties came up for consideration and a division
Bench of this Court concluded that Election Tribunal has no power to
substitute a party in place of impleaded party invoking provisions of
Code of Civil Procedure Code. In M.Khalellulla Baigs case (supra 10)
held that Court cannot decide any issue as preliminary issue, since
powers of Election Tribunal are limited. In the judgment of Gadde
Venkateswara Rao (supra 9) held that the election Court is not
empowered to grant temporary injunction under Order 39 Rule 1 and
Section 151 of C.P.C. In all the judgments relied on by the counsel for
the 1st respondent/Election petitioner, impact of Section 82 r/w 86 of
the R.P.Act was not considered but in Rajiv Gandhis case referred
supra, the Election Tribunal dismissed the election petition for non-
compliance of Section 82 of the R.P.Act. Even in Udhav singhs case,
the Apex Court expressed the view taken in Rajiv Gandhis case.
Therefore, there is no feter or interdict on the power of Election
Tribunal to dismiss the Election Petition, passing order on interlocutory
applications, if statutory provisions are not complied. But the trial
Court without expressing any opinion as to maintainability of election
petition for non-compliance of Section 72 read with Section 74(b) of the
Act postponed its decision till conclusion of trial, the approach of
election Tribunal in deciding the issue about maintainability of election
petition is contrary to the law declared by Apex Court in Rajiv Gandhis
case referred supra.
In any of the decisions relied on by the 1st respondent (Election
Petitioner), the law declared by Apex Court in Rajiv Gandhis case
(supra 1) was not considered and no other decision of Apex Court is
brought to the notice of this Court contrary to the principle laid down in
Rajiv Gandhis case (supra 1).

In G.M.Siddeswar v. Prasanna Kumar , while deciding the scope
of Section 83 (1) of the R.P Act, adverted to Hardwari Lals case
(supra 11), in the context of dismissal of Election Petition under the
provisions of CPC, also referred the principle in Mallikarjunappa and
Another v. Shamanur Shivashankarappa and others wherein the Apex
Court held that

an election petition is liable to be dismissed in limini under
Section 86 (1) of the Act, if the election petition does not
comply with either of the provisions Section 81 or Section 82 or
Section 117 of the RP Act.

In later judgment Sardar Harcharan Singh Brar v. Sukh Darshan
Singh , the Apex Court is of the view that Section 86 of the Act
sanctions dismissal of an election petition for non-compliance with
Sections 81, 82 and 117 of the Act, only.

In Siddeswars case (supra 18), the Apex Court followed the
suggestions in Umesh Challiyill v. K.P.Rajendran , wherein the Apex
Court suggested the following solution:
However, in fairness whenever such defects are pointed out
then the proper course for the Court is not to dismiss the
petition at the threshold. In order to maintain the sanctity of
the election the Court should not take such a technical attitude
and dismiss the election petition at the threshold. On the
contrary after finding the defects, the Court should give proper
opportunity to cure the defects and in case of failure to
remove/cure the defects, it could result into dismissal on
account of Order 6 Rule 16 or Order 7 Rule 11 Code of Civil
Procedure. Though technically it cannot be dismissed under
Section 86 of the Act of 1951 but it can be rejected when the
election petition is not properly constituted as required under
the provisions of Code of Civil Procedure..

In Ponnala Lakshmaiah vs Kommuri Pratap Reddy and Others ,
a vague reference regarding non-compliance of Section 82 of the Act was
made as ground for dismissal of election petition. But in H.D.Revanna
vs. G.Puttaswamy and Others , the Apex Court held that an election
petition can be dismissed for non-compliance of Sections 81, 82, 117 of
the R.P.Act, it may also be dismissed if the matter falls within the scope
of Order VI Rule 16 or Order VII Rule 11 of C.P.C.
In Mohan Raj v. Surendra Kumar Taparia and Others , the Apex
Court considered the scope of Order I Rule 10 of CPC with reference to
provisions of the R.P.Act and held that when Act enjoins penalty of
dismissal of petition for non-joinder of a party, provisions of CPC cant
be used as curative means to save petition. In the facts of the above
decision, petitioner though alleged corrupt practices, but not impleaded
the person against whom such corrupt practices were attributed, but
filed petition under Order 1 Rule 10 of CPC to cure the defect under
section 82 (b) of R.P.Act. The Apex Court did not even accept the
deletion of allegation of corrupt practices by way of amendment, as it
was not the policy of law, since dismissal is peremptory and the law does
not admit any other approach.

In Udhav Singh v. Madhav Rao Scindia , the Supreme Court
reiterated the principle laid down in Surendra Kumars case (supra 24)
while holding that without impleading the candidate against whom
corrupt practices were made, the election petition is not maintainable,
in view of Section 82 of R.P.Act. Same view is reiterated in Mukat
Behari Lal v. Shiv Charan Singh and others .

In view of parallel citations and perceptive pronouncements by
Apex Court in Rajiv Gandhi, Shamanur Shivashankarappa,
G.Puttaswamy and Others, Sukh Darshan Singh an election petition can
be dismissed in limini for non-compliance with Section 82 of R.P.Act, the
position is free from enigma as to dismissal of election petitions at the
threshold. Since, the provisions of R.P.Act and Municipals Corporations
Act are identical, the same principles are applicable to the petition.
Learned Senior Counsel for 1st respondent Sri P.Veera Reddy
would submit that there is no provision in A.P. Municipal Corporations
Act, similar to Section 86 of the R.P. Act, as such principles laid down
under the R.P.Act cant be applied to Election petition under the Act.
Rule 100 (3) of Election Rules dealing with procedure before Tribunal is
identical to Section 86 of R.P.Act, hence the contention of respondents
counsel cant be acceded to as it is without any substance.
A close analysis of legal position in plethora of decisions referred
above makes it clear that if the defect in election petition is curable, an
opportunity shall be given to cure defect, if failed to cure, the petition
shall be dismissed as per Order VII Rule 11 or strike out the pleadings as
per Order VI Rule 16 of C.P.C; the defect of non joinder of other
candidate is incurable defect, even otherwise the petition filed by the
1st respondent/Election Petitioner under Order I Rule 10 of C.P.C was
dismissed by the tribunal and the same was confirmed by this Court in
C.R.P No. 5024 of 2014 dated 30-12-2014 and attained finality.
Therefore by applying law declared by various Courts, referred above,
this Court has no option except to reject the contention of 1st
respondent/Election Petitioner, holding that the election petition is not
maintainable for non-compliance with Section 72 read with 74 (b) of the
Act.
Yet, learned Senior Counsel for respondent No.1 contended that
as per Section 77 of Act, at the conclusion of trial of an election
petition, the tribunal may dismiss the election petition or declare the
election of returned candidate as void and petitioner as returned
candidate. In view of Section 77 of the Act, the petition shall not be
dismissed summarily or in limini without trial. When Rule 100 (3) of the
Election Rules permits the Tribunal to dismiss Election Petition, there is
no need to face ordeal of trial. Section 77 deals with orders to be
passed at the conclusion of trial, whereas Rule 100 (3) deals with
summary dismissal of Election Petition.
If really the intention of legislature is that the Election Petition
shall not be dismissed at threshold, except to dismiss under Section 77
of the Act, there is no need to incorporate Rule 100 (3) in the Election
Rules. On harmonious construction of Section 77 of the Act and Rule 100
(3) of Election Rules, it can safely be concluded that order of dismissal
can be passed at conclusion of trial under Section 77, at the same time
Election Petition can be dismissed in limini as per Rule 100 (3) without
any trial for non-compliance of Sections 72 and 74 of the Act.
In view of discussion, it is difficult for me to accept the
contention of the learned Senior Counsel for the 1st respondent.
Incorporation of Rule 100 (3) is to avoid unnecessary waste of
time of Court, litigants and to allow the parties to concentrate on their
pursuits, if the tribunal put an end to Election Petition for non-
compliance of mandatory provision of Act.
Admittedly, the other contested candidates in the election held
on 30-03-2014 for Ward/Division 29 of Nizamabad Municipal Corporation
and the 1st respondent/Election Petitioner failed in her attempt to
implead the contested candidate to the Election Petition. Therefore,
the Election Petition is liable to be dismissed in limini
without ordeal of trial as held in Rajiv Gandhis case
(supra1). The tribunal unnecessarily postponed the decision on
maintainability of petition with a view to determine the same at the
conclusion of trial. The view of the tribunal is against the law declared
in Rajiv Gandhis case.
In view of my foregoing discussion, the order of tribunal in
I.A.No.634 of 2015 in O.P No. 235 of 2014 is illegal and contrary to
settled principles of law, consequently liable to be set aside.
It is contended that since dismissal of Election Petition at the
threshold, despite disqualification to be a member of ward/division, it
directly permitting the disqualified person as member of the ward.
Ill-drafting of the petition by the mofisil practitioner lead to such
situation to question the very maintainability of the petition itself on
account of inherent, incurable vice of non-joinder of other contested
candidates for the ward No.29 in compliance of Section 72 r/w 74 and
insisting the court to keep it pending till conclusion of trial is nothing
but sidomasochism of the Election Petitioner to drive the revision
petitioner to face the ordeal of trial of helter-skelter election petition,
prosecuting abortive litigation. If the petition is allowed to be tried, the
result at the conclusion of trial would be the same i.e. dismissal in view
of patent defect in the petition which is incurable. Acceptance of such
request is nothing but allowing malicious abuse of process to waste
valuable judicial time of Court and parties to the petition. The Tribunal
without considering the expected result at the conclusion of trial,
postponed decision about maintainability, till conclusion of trial
adopting nonchalant approach, committed a prejudicial error in
dismissing the petition.

Keeping in view of law referred above, I am of the view that the
order of the tribunal is liable to be set aside to palliate the pang of the
parties to face ordeal of trial, since, the result will be the same even
after conclusion of trial of Election Petition in view of legal, incurable
infirmity. Accordingly the order is set aside, allowing the revision,
dismissing the Election Petition, as the Tribunal did not exercise
jurisdiction which vested on it.
In the result, the Civil Revision Petition is allowed setting aside
the order, dated 15-10-2015, of the Tribunal in I.A.No.634 of 2015 in
O.P.No.235 of 2014. Consequently, I.A.No. 634 of 2015 is allowed and
dismissed the Election Petition for non-compliance of mandatory
statutory provisions viz., Sections 72 and 74 of A.P.Municipal
Corporations Act.
In consequence, Miscellaneous Petitions, if any, pending in this
revision petition shall stand dismissed.

_____________________________
M. SATYANARAYANA MURTHY, J
04-03-2016

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