Case Note & Summary
The petitioner, Shahaji Nanai Thorat, filed an Election Petition challenging the election of Respondent No.7, Sanjay Dina Patil, from the 28-Mumbai North East Parliamentary Constituency, declared on 4 June 2024. The petitioner sought a declaration that he himself was duly elected. Initially, the petitioner impleaded only Respondent No.7 and various government officials (Respondent Nos.1-6), but failed to implead the other 18 candidates who contested the election. Subsequently, the petitioner filed Application (Lodging) No.27786 of 2024 seeking issuance of summons to those 18 candidates, but not expressly seeking their impleadment. Respondent No.7 filed Application (Lodging) No.32011 of 2024 seeking, inter alia, rejection of the Election Petition under Order VII Rule 11 CPC for non-compliance with Section 82 of the Representation of the People Act, 1951, which mandates that all contesting candidates must be joined as respondents in a petition seeking a declaration of the petitioner's own election. The court heard both applications together. The petitioner argued that his application for summons would cure the defect and that the registry had advised him to file the petition without impleading all candidates. Respondent No.7 contended that non-compliance with Section 82 is fatal and cannot be cured after the limitation period. The court held that Section 82 imposes a mandatory requirement, and failure to implead all contesting candidates renders the petition liable to be rejected under Order VII Rule 11 CPC. The court rejected the petitioner's argument that the defect could be cured by a subsequent application, noting that the petition must be complete at the time of filing. The court also held that the impleadment of government officials does not satisfy the requirement. Consequently, the court dismissed the Election Petition and allowed Respondent No.7's application for rejection. The petitioner's application for issuance of summons was rendered infructuous.
Headnote
A) Election Law - Mandatory Impleadment - Section 82 of the Representation of the People Act, 1951 - Non-compliance - The petitioner filed an election petition challenging the election of Respondent No.7 and seeking a declaration of his own election, but failed to implead all 18 contesting candidates as required by Section 82. The court held that the requirement is mandatory and non-compliance renders the petition liable to be rejected under Order VII Rule 11 CPC. The subsequent application for issuance of summons to the missing candidates cannot cure the fundamental defect. (Paras 1-28)
B) Election Law - Rejection of Petition - Order VII Rule 11 CPC - Section 86 of the Representation of the People Act, 1951 - The court held that an election petition which does not comply with Section 82 must be dismissed at the threshold. The defect of non-joinder of necessary parties cannot be cured after the expiry of the limitation period for filing the petition. (Paras 15-28)
C) Election Law - Impleadment of Government Officials - Section 82 of the Representation of the People Act, 1951 - The court noted that Respondent Nos.1 to 6 (government officials) are not necessary parties to an election petition and their impleadment does not satisfy the requirement of joining contesting candidates. (Paras 5-10)
Issue of Consideration
Whether the Election Petition is liable to be dismissed for non-compliance with Section 82 of the Representation of the People Act, 1951, which mandates impleadment of all contesting candidates, and whether the defect can be cured by filing an application for issuance of summons to the missing candidates.
Final Decision
The court dismissed Election Petition No.2 of 2024 for non-compliance with Section 82 of the Representation of the People Act, 1951. Consequently, Application (Lodging) No.27786 of 2024 was disposed of as infructuous, and Application (Lodging) No.32011 of 2024 was allowed to the extent of rejection of the Election Petition.
Law Points
- Mandatory impleadment of all contesting candidates under Section 82 of the Representation of the People Act
- 1951
- Non-compliance cannot be cured by subsequent application
- Election petition liable to be rejected under Order VII Rule 11 CPC
Case Details
2024 LawText (BOM) (11) 261
Application (Lodging) No.27786 of 2024 in Election Petition No.2 of 2024 with Application (Lodging) No.32011 of 2024 in Election Petition No.2 of 2024
Shahaji Nanai Thorat (Petitioner-in-person), Vijay Nair with Prashant P. Kulkarni & Rachna Mamnani (for Respondent No.7), Himanshu B. Takke (AGP for Respondent Nos.1,2 & 5), Shruti Vyas with D.P. Singh (for Respondent No.4), Tejas Deshmukh with H.D. Chavan (for Respondent No.6), Ganesh S. Patil with Akash Ahire (for proposed Respondent No.13)
Shahaji Nanai Thorat @ Shahjirao Dhondiba Thorat
State of Maharashtra, Returning Officer, Chief Electoral Officer, Election Commission of India, Ministry of Law and Justice, Officer of Government Pleader, Collector & District Election Officer, Sanjay Dina Patil, and 18 proposed respondents
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Election Petition challenging the election of Respondent No.7 from 28-Mumbai North East Parliamentary Constituency and seeking declaration of petitioner's own election.
Remedy Sought
Petitioner seeks declaration that his own election is void and that he is duly elected, and consequential reliefs.
Filing Reason
Petitioner alleges that the election of Respondent No.7 is invalid and seeks to be declared as the duly elected candidate.
Issues
Whether the Election Petition is liable to be dismissed for non-compliance with Section 82 of the Representation of the People Act, 1951, which mandates impleadment of all contesting candidates.
Whether the defect of non-joinder can be cured by filing an application for issuance of summons to the missing candidates after the expiry of the limitation period.
Submissions/Arguments
Petitioner: The application for issuance of summons ensures compliance with Section 82; the petition was filed within 45 days; the registry advised against impleading all candidates; the defect is curable.
Respondent No.7: Non-compliance with Section 82 is fatal; the petition must be rejected under Order VII Rule 11; the application for summons does not seek impleadment; the defect cannot be cured after limitation.
Ratio Decidendi
The requirement under Section 82 of the Representation of the People Act, 1951 to implead all contesting candidates in an election petition seeking a declaration of the petitioner's own election is mandatory. Non-compliance renders the petition liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908, and the defect cannot be cured by a subsequent application for issuance of summons after the expiry of the limitation period.
Judgment Excerpts
Petitioner has filed the present Election Petition challenging election of Respondent No.7 from 28-Mumbai North East Parliamentary Constituency vide result dated 4 June 2024 and for a declaration of his own election from that constituency.
After noticing provisions of Section 82 of the Representation of the People’s Act, 1951 (the Act) the Petitioner has filed Application (Lodging) No.27786 of 2024 seeking issuance of summons against 18 candidates, who also contested the election.
Respondent No.7 has filed Application (Lodging) No. 32011 of 2024 seeking (i) deletion of Respondent Nos.1 to 6 from the Election Petition, (ii) dismissal of the Election Petition for non-compliance of provisions of Section 82 of the Act, (iii) striking off the pleadings in various paragraphs of the Election Petition under Order VI Rule 16 of the Code of Civil Procedure, 1908 (Code) and (iv) rejection of the Petition under Order VII Rule 11 of the Code.
Procedural History
The petitioner filed Election Petition No.2 of 2024 on an unspecified date, challenging the election of Respondent No.7 declared on 4 June 2024. The petition initially impleaded only Respondent No.7 and government officials. Subsequently, the petitioner filed Application (Lodging) No.27786 of 2024 seeking issuance of summons to 18 other contesting candidates. Respondent No.7 filed Application (Lodging) No.32011 of 2024 seeking rejection of the petition and other reliefs. Both applications were heard together, and judgment was reserved on 18 November 2024 and pronounced on 26 November 2024.
Acts & Sections
- Representation of the People Act, 1951: Section 81, Section 82, Section 86
- Code of Civil Procedure, 1908: Order VI Rule 16, Order VI Rule 17, Order VII Rule 11
