SUBHAN KHAN Vs. J H PATEL

JUDGEMENT

(1.) This is an application filed by the first respondent in the main Election Petition to strike out Respondents 2 and 3 from the array of parties in the Election Petition. Respondents 2 and 3 in the Election Petition are the Returning Officer, 158 --Channagiri Legislative Assembly Constituency, Channagiri and the District Election Officer and the Deputy Commissioner, Shimoga District, Shimoga, respectively.

(2.) The main prayer in the Election Petition is to declare that the declaration of the election of first respondent is void on the ground of Section 100(l)(c) of the Repre-sentation of the People Act, 1951 in respect of 158, Channagiri Legislative Assembly Constituency and for an order for repoll in the constituency and pass such other orders as deems fit to grant under the circumstances of the case. In I.A.I., it is alleged that respondents 2 and 3 are not necessary parties to the Election Petition as it is in violation of Section 82 of the Representation of the People Act thereinafter referred to as 'the Act'). Section 82 specifies as to the persons required to be joined as Respondents to an Election Petition. Under this provision, the returned candidate is a necessary party as Respondent and in certain other circumstances, all other contesting candidates are also necessary to be impleaded as Respondents to the Petition. No other person or authority except as aforesaid is required to be impleaded as Respondent in an Election Petition. Accordingly, Respondents 2 and 3 are not necessary parties. It is further stated that Section 87 of the Act provides that, subject to the provisions of the Act and any rules made thereunder, every election shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the Suit. According to the first Respondent, the provision of the Code of Civil Procedure are subject to the provisions of Section 82 of the Representation of the People Act which mentions necessary parties to the proceedings. It is further alleged that, under Section 82 of the Act, respondents 2 and 3 are not necessary parties.

(3.) Section 82 of the Act is to the following effect: