K.A.Swami, J. - (1.)This is an application filed by the petitioner for impleading the Election Commissioner of India as respondent No. 5. In the application, it is stated that the petitioner has alleged in the petition "Chemicalisation of Ballot Papers" against the respondents and that the Court also indicated that the Election Commission should be impleaded as respondent.
(2.)In the Election Petition, the petitioner has averred in paras 7 to 11 thus:
"7. At the time of counting of votes on 26-11-1989, the petitioner noticed that the stamp marks on 'Hand' symbol on nearly 30% of the ballot papers of each booth appeared to be uniform, fresher and brighter than the stamps on other symbols.

8. The petitioner also noticed at the time of counting that the colour of nearly 30% of the ballot papers of each booth with stamp mark on 'Hand' symbol was somewhat different from other ballot papers.

9. The petitioner contacted immediately over phone his friend, who is a Professor of Chemistry and explained him the points noticed by him at the time of counting. The Professor of Chemistry explained that a chemical treatment could be given to the papers with invisible marks on it and even if visible marks were made on it subsequently, the same will disappear and the invisible marks made on it originally will become visible after some days and he also stated that the chemical treatment will change the colour of the paper slightly. Therefore, he advised the petitioner to inspect the unpolled ballot papers to ascertain this point.

10. The petitioner Immediately contacted the 3rd respondent and brought to his notice the points noticed by him and requested to allow him to inspect the unpolled ballot papers. But the third respondent refused the request made by the petitioner.

11. The first respondent being the person responsible for printing of ballot papers the second and third respondents being responsible for distribution of ballot papers to all the polling booths, have all joined hands with the 4th respondent in inducting 30% of the chemicalised ballot papers for all the booths in the constituency with an invisible stamp on 'Hand' symbol, and by this arrangement the stamp put by the voters on 24-11-1989 had disappeared totally and the invisible stamp on 'Hand' symbol became visible on 26-11-1989 at the time of counting and all these ballot papers were received by the third respondent to declare that the fourth respondent won the election by securing 3,13,849 votes, in spite of the protests of the petitioner."
In the light of the averments contained in the petition, when the petition came up for orders before the Court on 21-2-1990, the Court passed the following order:
"Call on 2-3-1990 as requested by the learned Counsel for the petitioner to produce a certified copy of the declaration of result of the election and also to state as to whether the Election Commission is or is not a necessary party having regard to the averments made in the petition."
Thereafter, the present application came to be filed on 16-3-1990 and notice was ordered on the application as well as on the Main Petition to all the respondents and also to the Election Commission of India. Pursuant to that, the respondents have put in appearance through their respective Counsels and the Election Commission of India has put in appearance through the learned Standing Counsel for the Central Government.
(3.)It is contended on behalf of the respondents that as the Election Commission does not fall either under Section 82 or 86(4) of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') it cannot be impleaded as a Party to the Election Petition having regard to a decision of the Supreme Court in JYOTI BASU AND ORS. v. DEBI GHOSAL AND ORS AIR1982 SC 983 , 1982 (1 )SCALE115 , (1982 )1 SCC691 , [1982 ]3 SCR318 , 1982 (14 )UJ186 (SC ). Sri B.T. Parthasarathy, learned Counsel appearing for the 4th respondent has also placed reliance on the two other decisions of the Supreme Court in K. VENKATESWARA RAO AND ANR. v. BAKKAM NARASIMHA REDDU AND ORS AIR l969 SC 873. and UDHAV SINGH v. MADHAVA RAO SCINDIA AIR1976 SC 744 , (1977 )1 SCC511 , [1976 ]2 SCR246 .