A.N.Grover, J. - (1.)This is a petition under Article 226 of the Constitution challenging the order of the Chief Election Commissioner dated 7th August 1962 of which intimation was sent to the petitioner No. 1 by letter dated 9th August 1962 dismissing his election petition in limine.
(2.)The facts briefly are that the petitioners and respondents 1 to 6 were the candidates for election to the Council of States which was to be held as per notification dated 7th March 1962. The last date for filing the nomination papers was 14th March 1962. The scrutiny of nomination papers was to be held on 16th March 1962. The date for withdrawal of candidature was 19th March 1962 and the date of poll was 29th March 1962. After the election had been hgld on 29th March 1962, respondents I to 6 were declared elected from the State of Maharashtra to the Council of Stated. Respondeht No. 7, who was a voter at the above election and had cast his vote in favour of the elected condidates, it is alleged, was not qualifted to be chosen to fill a seat for the Maharashtra Legislative Assembly for the reasons given in paragraph 3 of the petition. Indeed, it has been pointed out now that his election was set aside vide Punjab Rao v. D. f. Mashram. According to the petitioners, if that vote had been excluded petitioner No. 1 would have been declared elected. Petitioner No. 2 had been duly nominated for the election but had not actually contested the same and it is alleged that his party had supported the candidature of petitioner No. 1. Petitioner No. 1 filed an election petition before the Election Commission an 12/l4th May 1982. He also made certain supplementary submissions dated 18th Juns 1962 and 28th June 1962,. (copy Annexure "A."). The Election Commission wrote a letter dated 28th June, 1562 informing petitioner No. 1 that the provisions of section 81 (1) and clause (a) of section 82 of the Representation of the People Act, 1951 (hereinafter called the Act) had not been complied with and, therefore, the petition was liable to be dismissed under section 85 of the Act. Petitioner No. 1 was called upon to present his case before the Election Commission on 16th July 1962. Petitioner No l sent reply: dated 30th July 1962 on which date petitioner No.2 also filed an affidavit for being added as a party. On 4th August 1962 petitioner No. 2 sent an application making a specific prayer that he be impleaded as a party. By an order dated 7th August 1962 the Chief Election Commissioner dismissed the election petition under section 85 for failure to join a constesting candidate as a respondent contrary to the requirement of section 82 (a). Another order was made by the Chief Election Commissioner on 7th August 1962 on the application of petitioner No. 2 saying that after the order in the case of petitioner No. 1 had been passed, the application of petitioner No. 2 and his affidavit were received by post. This application was dismissed on the ground that the Commissioner had no power under the law to permit any alteration in the list of persons joined as respondents to the election petitions.
(3.)Now, section 80 of the Act provides for filling of election petitions and says that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. Section 81 relates to presentation of petitions. Section 82- runs as follows :- . .. "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 85 is to the effect that if the provisions of section 81 or section 82 or section 117 have not been complied with, the Election Commission shall dismiss the petition but the petition shall not be dismissed with out giving the petitioner an opportunity of being heard. Section 90 deals with the procedure before the Tribunal after such an Election Tribunal has been appointed under section 86, Sub-section (1) of that section also provides that if the petition is not dismissed under section 85, the Election Commission shall cause a aopy thereof to be published in .the Official Gazette and a copy to be served by post on each respondent, and shall then refer the petition to the Election Tribunal for trial. Sub-section (4) of section 90 lays down that any candidate not already a respondent shall, upon application made by him to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of section 119, be entitled to be joined as a respondent. Section 119 says that no person shall be entitled to be joined as a respondent under sub-section (4) of section 90 unless he has given such security for costs as the Tribunal may direct.