JYOTI BASU & OTHERS.

DEBI GHOSAL & OTHERS.

February 26, 1982

(R.S. PATHAK AND 0. CHINNAPPA REDDY, JJ.]

Representation of the Pepople Act 1951, Ss. 82 and 86 (4) Election Petition- Parties to-Who are-Corrupt practice alleged against person who is not a candidate-Such person whether can be impleaded as respondent.

Election Law-Right to elect-Neither fundamtntal right nor Common Law right-Statutory right subject to statutory limitations.

Code of Civil Procedure 1908 Or. Ir. JO-Concept of'proper parties'-

Applicability of to election petitions.

The Representation of the People Act 1951, by Section 81 prescribes who may present an election petition. It may be by any candidate at such election, by any elec1or of the cons.tituency, and by none ~Jse. Section 82 dause (a) provides that the retitioner in an election petition shall join as respondents to the petition the returned candidates if the relief claimed is confined to a diclaration 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 the section requires the petitioner to join as respondents any other candidate against whom allegations of any corrupt practice are made in the petition. Section 86 (4) enables any candi date not already a respondent to be joined as respondent.

The first appeltant in the appeal is the Chief Minister and appellants 2 and 3 State Ministers. They had been impleaded by the first respondent as parties to an election petition filed by him in the High Ccurt qu£stioni11g the election of the second respondent to the House of the People. It was averred in the election peti tion that the Chief Ministers and the State ministers who Were impleaded as parties to the election petition had colluded and conspired with the returned candidate to commit 'various alleged corrupt practices. The Chief Minister and th~ other Ministers denied the commission of the various alleged corrupt practices and claimed that the election petitioner was not entitled to implead them as parties to the election petition, as they were not candidates at the election. They filed an application before tQ.e High Court to strike out their names from the array of parties in the election petition. It was dismissed on the ground that the appellants were proper parties to the election petitiqn and therefore their names could

pot be st~~ O"?t of the array of parties\ · . '" , , . , ..

- ....

- y

JYOTI BASU V. DEBI GHOSAL :119

In the appeal to this Court, it was contended on behalf of the appellants that the concept of a proper p8.rty was not relevant in election law and that only those persons could be implcaded as parties who were expressly directed to be so implcaded by the Representation of the People Act 1951, and that they were entitled to be struck out from the array of parties. On behalf of the first resPOn, dent it was submitted that the appellants were proper parties to the electiori petition and their presence was necessary for a coi, n.plete, final and expeditiouS

decision on the questions involved in the action.

Allowing the Appeal,

HELD : I. No one can be joined as a party to an election petition other wise than as provide by Section 82 and 86 (4) of the Representation of the people Act 1951. A person who is not a candidate may not be joined as a respondent to the election petition. [331 C-D]

--1.

In the instant case the names of the appeIJants and the 7th respondent in

the appeal are directed to be struck out from the array of parties in the election petition. [331 DJ

2. A right to elect, fundamental though it is to democracy, is, anomalously 1 neither a fundamental right nor a Common Law Ribt. It is a statutory right.

So is the right to be elected, and the right to dispute an election. Outside of

sta1ute, 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 Cornmoo Law, nor in equity.

It is a statutory proceeding to which 1leither 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 pol.icy because policy io 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 stl.'aight jacket. [326 F-H; 327 A-BJ

3. The contest of the election petition is designed to be confined to the the candidates. at the ele-;;.tion. All others are excluded. The ring is c!c.sed to all except the petitioner and the candidates at the election. Such is the design of the statute. [328 C]

4. While clause (b) of section 82 obliges the petitioner in an election petition to join as a respondent any candidate against whom allegations of any corrupt practice are made in the pet_ition, it does not obJige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. While any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent undor 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. [328 A-CJ

326 SUPREME c6Uit REPORTS it982J 3 s.c.ii.

5. The concept of •proper parties' is and niust 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. [328 DJ

'.• ••

6. The provisions' of the Civil Procedure Code cannot be invoked to

permit that which the Representation of the People Act 1951 does not permit.

The Civil Procedure Code applies subject to the provisions of the Represtation of the People Act 1951 and any rules made thereunder. Section 87 (1) expressly says so. When the Act enjoins the penalty of dismissal of the petition for nonjoinder of a party the provisions of the Civil Procedure Code cannot be used as a --~ curative means to save the petition. [328 F-H; 329 A-Cl

Mohan Raj v. Su7'ndra Kumar Taparia & Ors. [1961] I SCR and .R. Venkateswara Rao & Anr. v. Bekkam Narasimha Reddi & Ors. [1969) I SCR

679, referred to.

7: 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 bis 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 allega tiona 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 election petition notice is given to him to show cause why he should not be 'named 9 • 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. [329 E-G] ·

8 (i) The election petitioner cannot by joining as a respondent a person who is not a candidate at the election subject him to a prolonged triaJ of an election petition with all its intricacies and ramificatio_ns. [329-Gj

(ii) 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 that would be necessary is a seemingly plausible allegation, casually or spitefulJy made, with but a facade of truth. 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 cuse needless vexation to sush pe°rsonage and prevent him from the effective discharge of his public duties. It would be against the public interest to do so. The ultimate award o.f co;, ts would be no panacea in such cases, since the Public mischi.ef cannot be repaired. Public Policy and legislative wisdooi both piot to an interpretation that the provisions of the Representation of the PeoJ)le Act 1951 does not permit the joining, at parties of persons other than those mention~ in sections 82 and 86 (4). [329 H; 330 A-DJ

. JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy, j.) 32i

' , ..... 9 (i) The legislative provisions contained in section 99 enables the Court,. " . towards the end of the trial of an election petition,_ to issue a J?.Otice to a person not a party to the proceedings to show cause why he should not be rnamed' is a sufficient clarificatiOn of the.legislative intent ihat such person may not be permit ted to be joined as a party to the election petition. (330 E-F]

9 (ii) If a person who 1s not a candidate but against whom allegations of any corrupt practice are made is joined as a party he would also be entitled to 'recriminate' under section 97. Suctt a construction of the statute would throw the doors of an election wide open and convert the petition into a 'free for all' fight. The necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by sec. 86 (6) of the Act that the trial of the election petition should be concluded in six months.

(330 H; 331 A-BJ

CIVIL APPELLA1E JURISD1c:r10N : Civil Appeal No. 1553 of 1980.

Appeal by special leave from the judgment and order dated the 3rd July, 1980 of the Calcutta High Court in Election Petition Case No. 1 of 1980.

Somnath Chatterjee, Rathin Das and Aninda Mitter for the Appellants.

Sidhartha Shankar Ray, R.K. Lala and T. V.S.N. Chari fot Respondent No. I.

The Judgmeat of the Court was delivered by

CHINNAPPA REDDY, J. The first appellant, Jyoti llasu, is the Chief Minister and appellants two and three Budhadeb Bhattacharya and Hashim Abdul Halim, are two Ministers of the Government of West Bengal. They .have been impleaded by the first respondent as parties to an election petition filed by him questioning the election of the second respondent to the House of the People from the 19-Barrackpore Parliamentary Constituency in the mid-term Parliamentary election held in January, 1980. There were five candidates' who sought election from the .Constituency. Mod. Ismail, the first respondent, whose candidature was sponsored by the Communist

Party of India (Marxist) was, elected securing 2,66,698 votes as against Debi Ghosal, a candidate sponsored by the Indian National Congress led by Smt. Indira Gandhi who secured 1,62, 770 votes.

The other candidates Ramjit Ram, Robi Shankar Pandey and Bejoy Narayan Mishra secured 25, 734, 12,271 and 2, 763 votes respectively.

The first respondent fited an election petition in the High Court of ' '

( ' 322 SUPREME COURT REPORtS [1982j 3 s.c.i.

Calcutta questioning the election of the second respondent Mohd.

Ismail on various grounds. He impleaded the returned candidate as the first respoudent, and tbe other three unsuccessful candidates respondents 2, 3 and 4 to the election petition. Besides the candi- _ dates at the election, he impleaded several others as respondents. The District Magistrate and Returning Officer was impleaded as the fifth respondent, Buddhadeb Bhattachar}a, the Minister for Information and Publicity, Government of West Bengal as the sixth respondent. Jyoti Basu, the Chief Minister as the seventh respondent, Md. Amin, the Minister of the Transport Branch of the Home Department as the eighth respondent, Hashim Abdul Halim, the Minister of the Legislative and the Judicial Department as the ninth respondent and the Electoral Registration Officer as the tenth respondent. It was averred in the election petition that the Chief Minister and the other Ministers of the Government of West Bengal who were im pleaded as parties to the election petition had colluded and conspired with the returned candidate to commit various alleged corrupt practices. Apart from denying the commission of the various alleged corrupt practices, the Chief Minister and the other Ministers claimed in their written statements that the election petiti~

ner was not entitled to implead them as parties to the election petition. They claimed that as they were not candidates at the election they could not be impleaded as parties to the election petition. The Chief Minister and two of the other Ministers, Hashim Abdul Halim and and Buddhadeb Bhattacharya file\! an application before the High Court of Calcutta to strike out ·their names from the array of parties in the elcctign petition. The application was dismissed by the Calcutta High Court on the ground that the applicants (appellants) were proper parties to the election petition and, therefore, their names should not be struck out of the array of parties. The appellants have preferred this appeal after obtaining special leave of this Court under Art. 136 of the Constitution.

Sbri Somnath Chatterjee, learned counsel for the appellant t submitted that the concept of a proper party was not relevant in election law and that only those persons could be impleaded as parties who were expressly directed to be so impleaded by the Representation of the People Act, 1951.

He claimed that in any case such persons were entitled to be struck out from the array of parties.

On the other hand Shri Sidhartha Shankar Ray, and Shri R.K. Lala, learned counsel for the first respondent submitted that the appellan.\s were proper parties to the election petition and their presence was

JvOTl BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 323

necessary for a complete, final and expeditious decision on the questions involved in the action.

To properly appreciate the rival contentions it i$ necessary to refer to the relevant provisions of the Constitution of India and

the two Representation of the People Acts of 1950 and 1951.

First the Constitution. Part lXV deals with elections. Art. 324 vests in the l'le•:tiqn Commission the superintendence, .direction and control of the preparation of the Electoral rolls and the conduct of all elections to Parliament and to the Legislatures of the States.

Art. 325 provides that there shall be one general electoral roll for every territorial constituency,.and that no person shall be ineligible for inclusion in such rolls on grounds only of religion, caste, sex or any of them. Art. 326 provides that election to the House of the

People and to the Legislative Assemblies of States shall be on the basis of adult franchise.

Art. 327 enables Parliament to make laws with respect to all matters relating to elections to either House of Parliament or to the Houses of the Legislature of a State. Art. 328 enables the Legh; lature of a State, if Parliament has not made such legislation, to make laws with respect to all matters relating to elections to the Houses of the Legislature of the State. Art. 329 bars interference by Courts in electoral matters and clause (b), in particular, provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority. and in such manner as may be provided for by or under any law made by the appropriate legislature.

Next, the Representation of People Act, 1950. This Act provides for the delimitation of the Constituencies for the purpose of elections to the House of the people .and the legislatures of States, the qualification of voters at such elections,. the preparation of electoral rolls and other matters connected therewith.

Last, the Representation of the People Act of 1951, Part VI of the Act deals with "Disputes regarding elections". Sec. 79 defines various terms and expressions used in the Parts VI and VII.

Clause (b) defines a 'candidate' as meaning "a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to

' ,,

\ D

'' 324

SUPREME COURT REPORTS (i982j 3 S.C.R.

hold himself out as a prospective candidate". Sec. 80 imposes a statutory ban on an election being called in question except by an election petition presented in accordance with the provisions of Part VI of the, Act. Sec. 80-A vests in the High Court, the jurisdiction to try an election petition. Sec. 81 provides for the presentation of an election petition on one or more of the grounds specified in Sec. 100 (I) and Sec. IOI by any candidate at such election or any elector who was entitled to vote at the election. Sec. 82 is entitled "Parties to the petition" and is as follows :

"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 candidate is void claims a further declara tion 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".

Sec. 83 prescribes the contents of the petition. 1 Sec. 84 provides that a petitioner may, in addition to clair; ning a declaration that the election of the returned candidate is void, claim a further declaration that he himself or any other candidate bas been duly elected. Sec. 86 deals with trial of ~Iection petition.s. Sub-Sec. (4) provides for an application by a candidate who is not already a respondent to be joined as a respondent. It is in these terms:

"(4) Any candidate not already a respondent shall, npon 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".

Sec. 87 is concerned with the procedure before the High Court and 'it is as follows:

frcrri BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 325

"87 (I) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accorwith the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits;

Provided that the High Court shall have the discretion to refuse, for reasons to be. recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witn"esses is not material for the decision of the petition or that the p11rty tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay. the proceedings.

(2) The provisitf'ns of the Indian Evidence Act, 1872, shait,

subject to Ille provisions of this Act, be deemed to D apply in all respects to the trial of an election petition".

Sec. 90 enables the returned candidate or any other party to 'recriminate' in cases where in the election petition a declaration that a candidate other than the returned candidate has been elected is claimed. Sec. 98 prescribes the orders that may be made by the

0High Court at the conclusion of the trial of an election petition. It provides that the High Court shall make an order d ismlssing the election petition or 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. Sec. 99, enables the High Court to make, at the time of making order under Sec. 98, an order recording a finding whether any corrupt practice h11s or has not been proved to have been committed at the election, and the nature of corrupt practice; and the names of all persons, if any, who have been poved at the trial to have been guilty of corrupt practice and the nature of that practice. The proviso to Sec. 99 (I), however, prescribes that no person who is not a party to the petition shall be named in t, he order unless he had been given notice to appear before the High Court to show cause why he should not be so llamed and he had also been given an opportunity to cross examine any witness who had-already been examined by the High. Court and had given evidence against him and an opportunity of calling evidence in his

. '

,.-~:, __ , ~-1ilt~ '. :~SJ Ji::.-·

SUPREME COURT REPORTS (J9szj J S.C.R.

defence and of being heard. '1Sec. 100 enumerates the grounds on which an election may be declared void. The High Court, it is said, among other grounds, shall declare the election of a returned candidate void .in cases where corrupt practices are proved, where suph corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Where the corrupt practice has been committed in the interests of the returned candidate by an agent other than his election agent, the result of the election in so far as it concerns the returned candidate must also be shown to have heeh materially affected.

Sec. IOI prescribes the grounds for which a candidate, other than the returned candidate may be declared to have been elected. Sec. 110 provides for the procedure when an application for withdrawal of an election petition is made to the Court. Sec. 110 (3) (c) says that a person who might himself have been a petitioner may apply fo the Court to he substituted as a petitioner in place of the {>arty withdrawing.

Sec. 112 (3) provides for the continuance of the election petition on the death of the sole petitioner in an election petition or of tac survivor of several petitioners, by any person who might himself haYe been a petitioner and who applies for substitution within the stipulatd period.

The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the Constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors.,(') and Jagan Nath v. Jaswant Singh.(') We proceed to state what we have gleaned from what has been said, so much as necessary for this case.

I .

A right to elect, fundamental though it is to democracy, is, I anomalously enough, neiher a fundamental right nor a Common , Law Right.· It ispure and simple, a statutory right. So is the right to be elected. So is the right to dispute_!ln 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 statutory proceeding to which neither the Common Law nor the principles of Equity apply but

(I l [1952) 1 S.C.R 218.

(2) A.I.R. 1954 SC 210.

JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 327

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 statutory 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 straight jacket. Thus the entire ./ elecr ion process commencing from the issuance of the notification calling upon a constitutuency 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 195 l 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 . ..:fhe 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 dqes the Act say?

Sec. 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.

Sec. 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 himelf or any other candidate has been duly elected. Clause (b) of Sec. 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition.

Sec. 86 (4) enables any candidate not already a respondent to be joined as a respondent, There is 110 other provision dealinll wit!\

A •

-··. '' 328

SUPREME COURT REPORTS

(1982) 3 S.C, R. •.

---~--- ---~~---:

. question as to who may be joined as respondents .. It is significant that while clause (b) of Sec. 82 obliges 'the petitioner to joiri 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 candidat.e not already a respondent may seek and, if he so seeks, is entitled to. be joined as a respondent under Sec.· 86 (4), any other. person cannot; under .that provision seek to be joined as respondent, even if allegations of any corrupt practice are made. agains't him.' It is dear thai the contest of the election petition is designed t~. 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 th.e picture at all ? We think thai the: concept of 'proper parties' is and must remain alien to an election 'dis· pute under the Represeiiiation of the People Act,. J951 ,· -· Only those may be joined as respondents to' an election petition who are mentioned. in Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to lie, none else shall be joined._.as

.. ·. ' - - respondents. ' .

" It is said, the Civil Procedure Code . applies lo the trial, of election petitions and so proper parties whose presenco may be necessary in order to enable the Court' 'effectually and completely to adjudicate upon and settle all questions involved' may' be joined as respondents to the petitions .. The questions 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 Representa tion of the People Act, 1951 and the. rules made _thereunder.

Sec. 87 (I) exepressly says so. The question is whether . the provisions .;-f 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 cannof be.so invoked .. • In Mohan Raj 1' Surendra Kuma~ Taparia & Ors.,(1) _this Court held ihat the undoubted power of the Court (i.e. the Election Court) to permit an amendment of the petition i:anno't be uied to stiike out allegations agairisi a candidate not joined as ll respondent so as to '. save the election petition from dismissal for nonjoinder of necessary ·

(I) (1969].l SCR 630 .•

L---~-~~---~-------

.-J

\.: ·.\ . _\ . - JYOTI BA_SU v:_DEEl GHOSAL (Chinmppa Reddy, J.) ---329 --

parties. It. was said, uThe Court can order an_ amendment and e'l'en strike out a party who is not necessary. Bui, where the Act niakes a person a necessary _party _and -provides that the petition shall be dismissed_ if such a party is not joined, the-_ power of

ameddient or to strike -out parties_ cannot be used at all. The - Civil Procedure Co-de appiies subjct to the provisions ~Ube Repre'

sntation of th'e Peple Act and any ruies made ihereunder: When tlie Act enjoins_tlie penalty of dismissal of the petition for nonjoinder of a party the "provisions of 'ihe Civil Procedure Code cannot be used asacurative means tci sae the petition."dAgain, in

K.' VenkatesHara _Rao &. Anr.' v. Bekkam Narasimha -Reddi and _- Ors.,(1) it was o.bserVed :

"With regard . to the additin f parties - which

- is possible in the case of a suit under tho provisions of

0.1.r. 10 subject to the added party right •_to contend that the suit a_s against l.im -was -barred by limitation_ when he was added, no addition of parties is possible in the case of an election petition except under the -provi- . sions __ of Sub-sec. (4) of Section 86".. -

The matter may be looked at froni another angle. The Parliament has expressly provided that an opportunityshould 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 or' a_

corrupt prac'.ice are 'made. The right given to the latter is limited to show cause &gainst 'named' and that right opens up for exercise when, -

ai the end of the trial of the e'iection petition notice is given to him to show_catise 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.

Conversaly the election petitioner cannot by joinig as a respondent a person who is not a candidate at the electior. subject him to a prolonged trial of aQ election petition with all its intricacies and ramifications.'> One may well imagine hw ni'ischievous minded persons may harass public per:sonages like the Prime MinisJer of,

(I) [1977] I SCR 679.

- ! •• -

(1982) 3 S.C.R.

the country, the Chief Miilister 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 tnith. Evecyone is familiar with . S'!Ch allegations. To permit such _.a. public 'Personage . to,. be

impleaded as a party to an electiciu. petiti6n on the basis fa mere aiiegation, "without , even prime facie proof,~ an' allegation which "'may ultimately be found 10 be unfounded; can cause needless vexa~ .. tion 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 n"o panacea in such cases, since the public mischief cannot be repaired. That 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,~. parties,•of persons other than those mentioned in, Sections 82 and 86 (4). It is not as i(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 Sec. 99 and proceed with further action • . 1n our view the legislative provision contained in Sec. 99 which . enables the Court, towards the end of tht> trial of an election petition, to issue a notice to a person not a party to the proceeding to sh9w cause why he should not be 'named' is sufficient clarification of the . legislative intent that such person may not be permitied to be joined as a party to the election petit!on:

, -G There is yet another view-point.· When in an election petition _in addition to the declaration that the election of the returned candate is void a further declaration is sought that any candidate other than the returned candidate has been duly elected, sec. 97 enables the returned candidate or any other party to 'recriminate' le. to give G ..... evidence to prove that the e\ectia"n of such candidate would have

. beell oid if he had been a returned candidate and a petition had been presented to question his election. If a person who is not a candidate but against whom allegations of any corrupt practice are made is joined as a party to the petition then, by virtue of his position as a party, he would also be entitled to 'recriminate' under sec. 97. Surely such a construction of the statute would. throw the_ !loors of an election petitin wide open and convert the petition into

JYOTI BASU v. DEBI GHOSAL (Chinnappa Reddy, J.) 331

a 'free for all' fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Sec .. 86 (6) of the Act that the trial of the election petition should be concluded in six months. It is just as well to remember that 'corrupt practice' as at present defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined as respondents.

In view of the foregoing discussion we are of the opmton that

 C no one may be joined as a party to aii election petition otherwise than as provided by Sections 82 and 86 ( 4) of the Act. It follows that a person who is not a candidlije may not be joined as a respondent to the election petition. The appeal is therefore, allowed wirh costs and the names of the appellants and the seventh respondent in the appeal are directed to be struck out from the array of D parties in the election petition. We may mention that in arriving at our conclusion we have also considered the followig decisions . • cited before us: S.B. Adityen .& Anr. v. S. Kandaswam{& Ors.,(') Dwijendra Lal Sen (Jupta v. Hrekrishna Koner,(2) H.R. Gokhale v.

Bharucha Noshir C. & Ors., (8) and S. Iqbal Singh v. S. Gurdas Singh / Badal & Ors.(4) E

.N.V.K.

(1) AIR 1958 Mad. 171. (2), A.l.R. 1963 Cat. 218.

(3) A.l.R. 1969 Bom. 177.

(4) A.l.R. 1973 P & H 163.

Appeal allowed

JYOTI BASU & OTHERS

DEBI GHOSAL & OTHERS

February 26, 1982

R.S. PATHAK

0. CHINNAPPA REDDY, JJ.

Representation of the Pepople Act 1951

Ss. 82 and 86

Code of Civil Procedure 1908

Representation of the People Act 1951

Section 81

Section 82

Section 86

Representation of the People Act 1951

Section 82 and 86

Representation of the people Act 1951

section 82

section 86

Representation of the People Act, 1951

section 82

section 86

Section 87

Parliament

sections 82 and 86

section 99

section 97

sec. 86

Calcutta High Court

Somnath Chatterjee

Rathin Das

Aninda Mitter

Sidhartha Shankar Ray

R.K. Lala

T. V.S.N. Chari

Jyoti llasu

Budhadeb Bhattacharya

Hashim Abdul Halim

Government of West Bengal

Mod. Ismail

Debi Ghosal

Indian National Congress

Indira Gandhi

Ramjit Ram

Robi Shankar Pandey

Bejoy Narayan Mishra

Mohd.

Ismail

Buddhadeb Bhattachar}a

Jyoti Basu

Md. Amin

Hashim Abdul Halim

Hashim Abdul Halim

Buddhadeb Bhattacharya

High Court of Calcutta

Art. 136

Representation of the People Act, 1951

Chinnappa Reddy

Constitution of India

Art. 324

Art. 325

Art. 326

Art. 327

Art. 328

Art. 329

Representation of People Act, 1950

Representation of the People Act

Part VI of the Act

Sec. 79

Sec. 80

Sec. 80

Sec. 81

Sec. 100

Sec. 82

Sec. 83

Sec. 84

Sec. 86

Sec. 87

Code of Civil Procedure, 1908

Indian Evidence Act, 1872

Sec. 90

Sec. 98

Sec. 99

Sec. 98

Sec. 99

Sec. 110

Sec. 110

Sec. 112

[1952) 1 S.C.R 218

Representation of the People Act, 1951

Representation of the People Act

Representation of the People Act

Representation of the People Act

Sec. 81

Sec. 82

Sec. 82

Sec. 86

Sec. 82

Sec. 82

Sec. 86

Representa tion of the People Act, 1951

Sec. 87

Representation of the People Act

Mohan Raj 1

Surendra Kuma~ Taparia

Civil Procedure Code

Section 86

Representation of the People Act

Sections 82 and 86

Sec. 99

Sec. 99

sec. 97

sec. 97

Sec. 123

Sections 82 and 86

A.l.R. 1969 Bom. 177


A 332

STATB OF BIHAR

DR. YOGBNDRA SINGH COL. (RBTD.)

ANDOTHBR

(P.N. BHAGWATI AND R.S. PATHAK, JJ.)

March 1, 1982 C Bihar Private Medical Col/ege1 (Taking over) Act 1978-Meaning and

effect of sections 3 ond 6, explained,

Dr. Yogendra Singh col was appointed Professor of Surgery in the Magadh Medical College and as per the !Regulations of the University he was entitled to continue in service until be reached the age of superannuation, which was fixed at 62. Pursuant to the provisions of sub-section (2) of section 6 of the Bihar Private Medical Colleges (Takmg Over) Act, 1978, the State Government appointed a Screening Committee which, inter aJia, recommended the retirement of all teachers beyond the age of 58 years and their re-empolyment upto the age of 62 years only if there were no qualified substitutes available. On 11-9-1980, the Principal of the Magadh College, based on the circular dated 3-9-1980 issued by the State Government, after accepting the recommendation of the Screenihg Comniittee, issued a notice to Dr. Col. informing him that bis services will be terminated with effect rrom 10-10-1980. A writ petition filed in the High Court of Patna challenging the said order of termination of his services was allowed by the High Court taking the view that by virtue of sub-section (3) of section 3, the obligation to continue Dr. Col in service upto the age of 62 years devolved on the State Government on the taking over or the Magadh Medical College under sub-section (1) of section 3 and the State Government had no power under subsection (3) of section 6 to terminate bis services prior to his attaining the age of superannuation and hence the order dated 11-9-1980 was invalid.

Allowing the appeal of the State, the Court

HELD 1:1. The terinination of the service of Dr. Col. was perfectly valid.

Quite apart from the power expressly conferred under sub-section (3) of section 6, the State Government would have power to terminate the services of any person employed on an ad hoc basis. [339!G-H, 340 A]

1:2. It is elementary that when a person is appointed on an ad hoc basis his tenure is precarious and be cannot claim to continue in service until the age of superannuation. From and after the date of notification under sub-section (1) of section 3 of the 1978 Act Dr. Col. continued to serve the Magadh Medical College on an ad hoc basis in terms of the proviso to sub-section (l) of section 6 which declared tbat the staff employed in the CoHege "shall continue to servo the college on an ad hoc basis till a decision under sub-section (3) and (4) is taken by the tat~ Government.'.' lq view of th~ clear and cxpli>il 1rm1 of sub

BlHAR v. VOGENDRA SJNGH 333

section (I) of section 6 providing that as Crom the date or the notification issued, undersub-section (I) or sect ion 3, "all the staff employed in the college shall cease to be employees of the college body", the contract of Dr. Col with tho owners of the Magadh Medical College under the letter of appointment given to him did not devolve on the State Government but came to an end and he became the employee or tho State on an ad hoc basis, disentling him to the benefit or retirement at tho ago or 62. (338 C-G)

It was within the competence or the Screening Committee to make recommendation in regard to the age of superannuation of the teaching staff of the medical colleges iaken over by the State Government. Sub-section (2) or section 6 undoubtedly provides that the Committee or exports appointed under that provision will examine the bio-data of each member of the staff and ascertain whether appointment promotion or confirmation of such person was made in accordance with the University Regulations and in keeping with the guidelineslaid down bY. the Medical Council or India and will also take into consideration all othe_r relevant material including length of service in the college and submit its report to thC State Government. But sub-section (3) of section 6 also makes it clear th at the Committee of experts appointed eunder sub-section (2) of that section can make recommendations in regard to "rank, pay, allowances and other conditions or service" of tho teaching staff. [338 H, 339 A-CJ

3. The State Government Was clearly within its powers under subsection (3) of section 6 to re-determine the age Of superannuation and to proide that the services or all the teachers in the medical colleges taken over by the State Government shall be terminated after giving them one month's notice, if they have attained the age oi 62 years or more than 58 years. but less than 62 years, in consonance with the age of retirment of aJI other Government employees.

Under sub-section (3) of section 6 tho State Government bad power to redetermine the rank, pay, allowances and other conditiOns of service of the teaching staff and "other coditions of scrvicci'' would include the age of super .. annuation. (339 E-G]

CIVIL APPBLLATB JURISDICTION Civil Appeal No. 3420 of 1981.

Appeal by special leave from the judgment and order dated the 29th July, 1981 of the Patna High Court in C. W.J.C. No. 3032 of 1980.

L.N. Sinha, Attorney General of India, K.G. Bhagat and D.

Goburdhan, for the Appellant.

Dr. Y. S, Chitale, B.P. Singh, Ranjit Kumar and S. Goswami for Respondent No. J.

334 SUPREME COURT REPClRTS (i982j 3 s.c.a.

P.P. Singh for Respondent No. 2.

R.P. Singh for Respondent No. 3.

The Judgment of the Court was delivered by

BHAGWATI, J.

This is an appeal by special leave directed against a judgment of the Patna High Court quashing and setting aside the termination of service of the !st respondent and directing that the Isl respondent shall continue in service until he reaches the age of 62 years. The facts giving rise to the appeal are few and may be briefly stated as follows.

The I st respondent was appointed Professor of Surgery in the Magadh Medical College, Gaya in December; 1975 and he joined bis post as Professor of Surgery on 27th December, 1975. The letter • of appointment which set out the terms and conditions of service provided that the appointment would be subject to such regulations as might be in force from time to time in the Magadh University to which the Magadh Medical College was affiliated. These regulations provided that the age or superannuation shall be 62 years, and, therefore, the I st respondent was entitled to continue as Professor of Surgery until he reached the age of 62 y cars. But in or about the middle of 1976 a drastic change took place, as the Bihar Private Medical Colleges (Taking of Management) Ordinance, 1976 .(herein• after referred to at the Ordinance) was promulgated by the Governor of Bihar authorising the State Government by a notification to take over the management of any private Medical College and to exercise such functions of management in regard to such College as might be a specified in the notification. Pursuant to the Ordinance a notification was issued by the State Government taking over the management of the Magadh Medical College with effect from !st July, 1978. The ordin.ance was subsequently replacecf by the Bihar Private Medical Colleges (Taking Over) Act, 1978 (hereinafter referred to as the Act).

Section 3 of the Act provided for taking over of private Medical Colleges and it read as follows :

"3 (I). The State Government may, by a notified order and from the date mentioned therein, take over a College and the management and control thereof shall thereupon be exercised by the State Government in such manner as may be laid down in the said Order;

i'ltl1AR v. YOGBNDRA SINGH (hhagwati, J.) .

, 33S

(2) All the assets and properties of the College and the College body whether movable or immovable including lands, buildings workshops, stores, instruments, machinery, vehicles, cash balance, reserve fund, investments, taxes, furniture and others shall, on the date of take O> r. stand transferred to and vested in, and be deemed to have come into the possession of the State Government;

(3) All the liabilities and obligations of the College under any agreement or contract entered into bona fide before the date of taking over shall devolve and shall be deemed to have devolved on the State Government." •

Section 6 dealt with the determination of terms of teaching staff and other employees of the Medical College taken over by the State

Government and since the controversy in the present case has turned almost entirely upon tbe true meaning and effect of the provisions

of this section, it would be convenient to set it out in full : D

''6, Determination of terms of the teaching staff and other employees of the College-(!) As from the date of the notified order, all the staff eipployed in.the College shall cease to be the employees of the College body :

Provided that they shall continue to serve the College on an ad hoc basis till a decision under sub-section (3) and

(4) is taken by the State Government. (2) The State Government will set up one or more Committee' of experts and knowledgeable persons which will examine thebio data of each member of the teaching staff and ascertain whether appointment promotion or confirmation was made in accordance with the University Regulations and in keeping with . the guidelines laid down by the Medical Council of India and taking into consideration all other relevant materials including length of scTce in the College, and submit its report to the State Government.

(3) The State Government on receipt of the report of

l!l

the Committee or Committees, as the case may be, will H decide in respect ot' each member of teaching staff on the merits of each case, whether to absorb him in Government

336 SuPRBMB COirltT RBPOllTS 119sil 3 s.c.il..

service or whether to terminate his service or to allow him to continue on an ad hoc basis for a fixed term or on contract and shall, where necessary redetermine the rank, pay, allowances and other conditions of service.

(4) The State Government. shall similarly determine the term of appointment and other conditions of service of other categories of staff of the College on the basis of facts to be ascertained either by a Committee or by an officer entrusted with the task and th.e provisions of sub§ection (2) and (3) shall apply mutandis mutandis to such cases.

It appears that pursuant to section 3 of the Act a notification was issued by the State Government taking .. over the Magadh Medical College with the result that the management and control of the Magadh Medical College became exercisable by the State Government and all the assets and properties of the M.agadh Medical College D stood transferred to and became vested in the State Government and all its liabilities and obligations also devolved on the State Government. The State Governmen thereafter appointed a Committee called the Screening Committee under sub-section (2) of section 6 and the Screening Committee maµe a report which contained inter a/ia the following recommen !Iations : E

(a) All teachers. beyond the age of 58 years may be retired subject to reappointment if there are no qualified substitutes. This shou Id apply to all

State Medical Colleges and the re-employment .may be made up to maximum of 62 years of age.

(b) In no case service of teachers who have already attained the age of 62 yeats be retained.

The State Government on the basis of this recommendation issued a circular letter dated 3rd September, J980 addressed to the Principals of various Medical Colleges taken over by the State Government which included the Magadh Medical College, advising the Principals that "services of all the Directly appointed teachers in the Medical Colleges who have attained the age of 62 years or more than 58 years but less than 62 years be terminated after giving them one month's notice." ?llow the !st resp9ndnt had already attained

hlHAR •• YOGE1'DRA SINGH (Bhagwati, J.) 337

the age of 58 years and the Principal of the Magadh.Medical College, therefore; addressed a letter dated 11th September, _l 980 to

the 1st respondent informing him that since bis age was more thal!

58 years, bis service was being terminated after 30 days from the date of issue of that letter as pe~ the order of the State Government.

The result was that by virtue of this letter addressed by the Principal to, the 1st respondent, the service of the 1st respondent was terminated with effect from 10th October, 1980,

The first respondent thereupon filed a writ petition in the High Court of Patna challenging the termination of his service by the Principal of the" Magadh Medical College and claiming a declaration that he is entitled to continue in service until he reaches the age of 62 years. The High Court of Patna upheld the contention of the first respondent, , and took the view that by virtue of subsection (3) of section 3, the obligation to continue the first respondent in service upto the age of 62 years devolved on the State Government on the taking over of the Magadh Medical College under sub-section (I) of section 3 and the State Government had no power under sub section (3) of section 6 to terminate the service of the first respondent prior to his reaching the age of superannuatbn and the termination of his service by the Principal of Magadh Medical College was therefore, invalid. The writ petition filed by the first respondent was accordingly allowed and a writ was issued quashing and setting aside the termination of service. of the first respondent and declaring that he is entitled to continue in service until he reaches the age of 62 years. The State of Bihar thereupon preferred the present appeal after obtaining special leave from this Court.

We are of the view that it is impossible to sustain the judgment of the High Court .. It proceeds upon a complete mi;-apprehension of the true meaning and effect of the relevant provisions of sections 3 and 6 of the Act.

Sub-section (l} of section 3 provides for taking over of private medical colleges and by virtue of the notification issued by the State Government under that' provision, the Magadh Medical College was taken over by the State Government and its management and control became e•ercisable by the State Government. Whatever assets and properties appertained to the Magadh Medical College became vested in the State Government under sub-section (2) of section 3. Section 3 sub-section (3) provided for devoluti.)n of all th~ liabilities ancl obliations of Magadu

SUPREME COURT REPORTS ( 1982) 3 s.c.a.

Medica~ College on the State Government and therefore, if sub, section (3) were the only provision in the statute, it would have been possible for the first respondent to contend that by yirtue of the contract contained in his .letter of appointment,. he was entitled to continue in service until , the age of 62 years and this obligation of the Magadh Medical College devolved on the State Government.

But section 6 dealt specifically with the subject of deiermination of terms of the teaching staff and other employees of the Magadh Medical College and if this special enactment contained any provision relating to termination of service of the first respondent, it would obviously prevail over the general provision enacted in subsection (3) of section 3.

Now sub-section (I) of section 6 provided in clear and explicit terms that as from the date of the notification issued under sub-section (I) of section 3 "all the staff employed in the e91lege shall cease to be employees of the College body,.'' The direct effect of this provision was that-the first respondent ceased to be the employee of the owners of the Magadh Medical_College. The proviso to sub-section (I) of section 6 proceeded to declare that_ the staff employed in the College "shall continue to serve the College on an ad hoc basis till a decision under sub-sections 3 and 4 is taken by the State Government." The first respondent, therefore, continued to serve the Magadh Medical College on an adhoc basis from and after the date of the notification under sub-sec. (I) of section 3. The result was that the contract of the first respondent with the owners of the Magadh Medical College under the letter of appointment given to him, did not devolve on the State Government but came to an end and the first respondent became an employee of the State Government on an ad hoc basis.

The first respondent could not thereafter contend that he was entitled to continue in service until be reaches the age of 62 years. That. would be directly contradictory of the position that he continued to serve the State Government on an ad hoc basis. It is elementary that when a persol) is appointed c .1 an ad hoc basis, his tenure is precarious and he cannot claim to continue in service until the age of superannuation.

Now the State Government appointed a Committee called t c Screening Committee under sub-section (2) of section 6 and the Screening Committee rcommended that all teachers beyond the age of 58 years may be retired subject to reappointment, if there are no qualified substitutes. The argument of the first respondent which appealed to the High Court was that the Screening Committee had po power under sub-section (2) of section 6 to make a recommenda-

• •, ~-

'~I

. ,:::

~·.

PIHAR v. YOGENDRA SINGH (Bhagwati, J.) 339

tion in regard to the age of superannuation of the teaching staff of the Medical College taken over by the State Government. This argument is, in our opinion, fallacious, in as much as it is based on reading of subsection (2) of section 6 as if it stood alone and does not take into account the effect of sub-section (3) upon it. Subsec.(2) of section 6 undoubtly provides that the Committee of Experts appointed under that provision will examine the bio-data of each member of the staff and ascertain whether appointment, promotion or confirmation of such person was made in accordance with the University Regulations and in keeping with the guidelines laid down by the Medical Council of- India and will also take into consideration all other relevant material. including length of service in the college and submit its report to the State Government. But it is clear fro, m sub-section (2) of section 6 that the Committee of Experts appointed under sub-section (2) of that section can also make recommendations in regard to "the rank, pay, allowances and other conditions. of service" of the teaching staff. It was therefore, not beyond the competence of the Screening Committee to make recommendations in regard to the age of superannuation of the teaching stalf of the Medical Colleges taken over by the State Government.

But, even if we are wrong in iaking this view, it is clear that under sub-section (3) of section 6 the State Government had power to redetermine "the rank, pay, allowances and other conditions of service" of the teaching staff and "other conditions of service" would include the age of superannuation. The State Government was therefore, clearly within its power unner sub-section (3) of section 6 to redetermine the age of superannuation and provide that the services of all teachers in the Medical Colleges taken over by the State Government shall be terminated after giving them one month notice, if they' have attained the age of 62 years or more than 58 years, but less than 62 years.

Obviously, when a member of the teaching staff becomes an employee of the State Government, he would be governed by the same age of superannuation which is applicable to other governments servants, namely, 58 years and it was for this reason that the State Government redetermined the age of superannuation of the teaching staff of the Medical Colleges taken over by it at 53 years and directed that the services of those who have attained the age of 58 years should be terminated after giving one month's notice. We may point out that, quite apart from the power expressly conferred under sub-section (3) of section 6, the State Government would have power to terminate the services of any person employed on an ; i.d. l!oc basis. The termination of service

SUPREME COURT REPORTS (J982j 3 S.C.ll.

of the first respondent was therefore, perfectly valid and the High Court was in error in granting relief to the first respondent.

We accordingly allow the appeal, set aside the order passed by the High Court and dismiss the writ petition of the first respondent.

Having regard to the fact that the first respondent is merely a teacher in a Medical College, we direct that there will be no order as to costs throughout.

S.R.

Appeal allowed.

.,, y

332

STATB OF BIHAR

YOGBNDRA SINGH COL. (RBTD.)

ANDOTHBR

P.N. BHAGWATI

R.S. PATHAK, JJ.

sections 3

Yogendra Singh

section 6

Magadh College

High Court of Patna

section 3

Magadh Medical College

section 3

section 6

section 6

section 3

section 6

section 6

section 6

section 6

section 6

section 6

CIVIL APPBLLATB JURISDICTION

L.N. Sinha

K.G. Bhagat

D.

Goburdhan

Y. S, Chitale

B.P. Singh

Ranjit Kumar

S. Goswami

P.P. Singh

R.P. Singh

BHAGWATI

Magadh Medical College, Gaya

27th December, 1975

Magadh University

Bihar

st July, 1978

Section 3

Section 6

Medical Council of India

section 3

M.agadh Medical College

section 6

3rd September, J980

YOGE1'DRA SINGH

Bhagwati

Magadh.Medical College

11th September, _l 980

10th October, 1980

section 3

section 3

section 6

State of Bihar

sections 3 and 6

section 3

section 3

Section 3

section 6

section 3

section 6

section 3

section 6

sections 3 and 4

section 3

section 6

section 6

section 6

section 6

Medical Council of- India

section 6

section 6

section 6

section 6