S.K.Mal Lodha, J. - (1.) By this order, I propose to decide issue No. 2, which was framed on October 10, 1980. It reads as under: "Whether the Returning Officer is a necessary party to the present election petition?" In this petition under Sections 80 and 31 of the Representation of the People Act (No. XLIII of 1951) (hereinafter referred to as 'the Act'), the election- petitioner has prayed that the election of the respondent Shri Udai Ram Dhakad as member of the Legislative Assembly may be declared void. It may be stated here that in the petition, Shri Udai Ram Dhakad has only been impleaded as a respondent. The case of the election-petitioner is that the nomination paper filed by him was wrongly rejected, by the Returning Officer. Only three persons remained in contest. The petitioner has called m question the election of the returned candidate Shri Udai Ram Dhakad (respondent) on the ground that the Returning Officer has wrongly rejected his nomination paper as it was complete in all respects and that he was not entitled to reject it on the ground that it was filed by the petitioner at 3.03 P.M. i.e. after 3 P.M. The election petition is contested by the respondent. In the written statement, a pr liminary objection was raised to the effect that the petition suffers from the defect of the nonjoinder of the necessary party as almost all the allegations are against the Returning Officer. It has been stated that in the absence of the Returning Officer as a party to the election-petition, it will not be possible to try and adjudicate over the facts which have an exclusive concern with him. The objection regarding non-joinder of the necessary party was reiterated in the additional objections Nos. 1 and 2 of the written statement. Rejoinder to the written statement was filed by the election-petitioner. It was asserted that the petition does not suffer from the defect of non-joinder of a necessary party. In view of those pleadings, issue No. 2 as aforesaid was framed. On October 10, 1980, learned counsel for the parties expressed their agreement that no evidence is required in regard to issue No. 2 and stated that arguments may be heard on it.
(2.) I have heard Mr. R. Mehta, learned counsel for the election-petitioner and Mr. R. C. Maheshwari, learned counsel for the respondent.
(3.) Mr. Maheshwari, learned counsel for the respondent invited my attention to the averments made in paras 5 to 17 of the petition and submitted that the allegations made against the Returning Officer are serious in nature. According to him not only this, there are allegations of fabricating false documentary evidence against the Returning Officer by insertion of certain writing which was according to the election-petitioner originally not there. Particular reference was made to the application filed by the petitioner on May 2, 1980 which has been marked as Annexure 1-A on record. He, however, submitted that the facts which are to some extent contradictory with each other if established may result in fastening criminal liability on the Returning Officer and, therefore, having regard to the peculiar circumstances of this case, the election-petition suffers from the defect of non-joinder of the Returning Officer and this defect is fatal for its maintainability. On the basis of the observations made in State of J. & K. v. Bakshi Gulam Mohammad, AIR 1967 SC 122, Purtabpur Co. v. Cane Commr., Bihar, AIR 1970 SC 1896, Jatan Kr. v. Golcha Properties, AIR 1971 SC 374 and Mohindersingh v. Chief Election Commr., AIR 1978 SC 851, he submitted that on the principles of natural justice without affording an opportunity to the Returning Officer to contest and controvert the allegations made against him, the finding regarding them cannot be arrived at so as to entitle the petitioner to get the relief which he has prayed for in the election petition. On the other hand, Mr. R. Mehta, learned counsel for the election- petitioner, argued that despite the allegations having been levelled against the Returning Officer and considering the scheme of the Act and Sections 80, 81, 82, 86, 98, 99, 116A and 117 of the Act, the Returning Officer is not a necessary party and the relief which the petitioner has prayed for in the petition can be granted without impleading the Returning Officer as a party-respondent. He placed reliance on Rama Pr. Roy Chowdhury v. Baidyanath Bandopadhya, (1971) 31 Ele LR 167 (Cal), Narendra Nath sen v. Mani Samual, (1971) 36 Ele LR 69 (Cal), Sayed Nizam-ud-din v. Hissam-ud-din, (1972) 42 Ele LR 274 (J & K), Raju V. B. v. K. I. Kasambhai, (1975) 52 Ele LR 24 (Guj) and S. Iqbalsingh v. S. Surdas Singh, AIR 1973 Punj & Har 163.;