1. This appeal is directed against the judgment dated 7 December 2012 of the learned Single Judge of this Court dismissing the appellant''s Writ Petition against the order dated 17 October 2012 of the Additional Chief Judge, Small Causes Court, Bombay, in Election Petition No. 90 of 2012. Ansari Dilshad Azmi Aslam, respondent No. 1 in the above election petition came to be elected as a Councillor of the Municipal Corporation of Greater Mumbai from Ward No. 158. Respondent No. 1 herein Mrs. Ansari Sana Masood Ansari (the election petitioner), one of the defeated candidates, has filed election petition No. 90 of 2012 challenging the election of Ansari Dilshad Azmi Aslam (hereinafter referred to as respondent No. 1).
2. The present appellant is the husband of said elected candidate Ansari Dilshad Azmi Aslam. The appellant himself has also been elected as a Councillor of the Municipal Corporation of Greater Mumbai from Ward No. 159. The appellant''s election from Ward No. 159 is not the subject matter of the present appeal, but his election is separately challenged in Election Petition No. 91 of 2012.
3. The short question arising in this appeal is whether in the election petition challenging the election of the appellant''s wife from Ward No. 158, the appellant-husband, could have been joined as a party-respondent.
4. The elected candidate filed an application at Exhibit 12 and the appellant herein (respondent No. 6 in the election petition) filed an application at Exhibit 13. In both the applications it was contended that the appellant was neither a proper nor necessary party to the election petition and that the appellant be deleted from the array of parties in Election Petition No. 90 of 2012. In Exhibit 12, the elected candidate prayed that the Election Petition be dismissed for mis-joinder of parties. The election petitioner filed her reply to the above applications. The learned Additional Chief Judge of the Small Causes Court, Bombay as Election Tribunal, heard both the applications together and by common order dated 17 October 2012 dismissed the applications at Exhibit 12 and 13. The learned Judge held that though the appellant was not a necessary party, the appellant was a proper party in view of the nature of allegations made in the election petition.
5. Aggrieved by the above order, the appellant preferred Writ Petition. The learned Single Judge dismissed the Writ Petition after confirming the finding of the Election Tribunal that though the appellant is not a necessary party, the appellant is a proper party in view of the nature of allegations in the election petition. Hence this appeal.
6. Mr. Godbole, learned counsel for the appellant has submitted that when Election Petition No. 90 of 2012 challenges the election of his wife from Ward No. 158, the only person who could be joined as party-respondent in such an election petition would be the elected candidate and at the most other candidates who had secured more votes than the election petitioner, but the appellant is a stranger to the proceedings, as he was not one of the candidates in the election for Ward No. 158 and, therefore, the appellant could not have been joined as a party-respondent.
7. Strong reliance is placed by Mr. Godbole upon the decision of the Supreme Court in
8. On the other hand, the learned counsel for respondent No. 1 in this appeal (election petitioner) has raised preliminary objection about the maintainability of the appeal. It is submitted that the learned Single Judge was merely called upon to exercise the power of superintendence under Article 227 of the Constitution. The learned Single Judge found no merit in the said petition. Therefore, the present appeal directed against the judgment in the said petition must be treated as a judgment in the petition under Article 227 of the Constitution and, therefore, the present appeal is not maintainable.
9. On merits, it is contended that respondent No. 1 in the election petition i.e. the elected candidate and her husband, the present appellant, had both adopted corrupt practice as they had misled the voters in the constituency that they belong to Ansari caste which is considered as Other Backward Class. It is submitted that the appellant had relied upon fabricated documents in order to get the caste certificate and his wife had also taken the benefit of the corrupt practice of the husband and, therefore, the appellant is also a necessary party or at least a proper party to the election petition.
10. In response to a query from the Court as to whether the seat of the Councillor in question in Ward No. 158 was reserved for an "Other Backward Class" candidate, the learned counsel for the parties have stated that there was no such reservation for O.B.C., candidate, but the seat was reserved for a woman candidate.
11. The Court has further been informed that the election of the appellant from Ward No. 159 has also been challenged in another election petition being Election Petition No. 91 of 2012 and that the said election petition is pending for trial before another learned Judge of the Small Causes Court at Bombay.
12. We have carefully considered the rival submissions. As regards the preliminary objection about maintainability of the appeal, the matter has to be examined on the touchstone of the principles laid down by a Full Bench of this Court in
13. In the facts of the present case, the petitioner had invoked both Articles 226 and 227 of the Constitution for challenging the impugned order dated 17 October 2012 of the Election Tribunal. The appellant had prayed for a writ of certiorari to call for the record and proceedings in respect of the impugned order and had prayed for examining the legality of the said order and prayer was also made to quash and set aside the same. The appellant had also prayed for writ, order and direction to direct the deletion of the name of the petitioner from the Municipal Election Petition No. 90 of 2012. The prayer was made on the ground that the appellant not being a candidate at the election for Ward No. 158, the appellant could not have been joined as a party-respondent, merely for the reason that the appellant is the husband of the elected candidate who was respondent No. 1 in the election petition and respondent No. 6 in the Writ Petition.
14. Having heard the learned counsel for the parties, we are satisfied that the petitioner had invoked the writ jurisdiction of this Court under Article 226 of the Constitution by praying for a writ of certiorari. As is well known, the writ of certiorari is a writ against the record. The appellant''s grievance is that the appellant ought not to have been joined as a party-respondent and that in an election petition challenging the election of an elected candidate, where the appellant himself was not one of the candidates, the appellant could not be made to face the legal proceedings. The appellant had, therefore, clearly invoked the writ jurisdiction of this Court under Article 226 of the Constitution. Merely because the appellant had also invoked the jurisdiction of this Court under Article 227 of the Constitution, the appellant need not be deprived of his right of appeal as held by the Full Bench of this Court in Advani Oerlikon Ltd. (supra). We, therefore, over rule the preliminary objection raised on behalf of the respondent No. 1 herein (election petitioner).
15. Coming to merits of the controversy, we find considerable substance in the submission of the learned counsel for the appellant that when the appellant was not one of the candidates at the election, the appellant could not have been joined as a party-respondent merely because the appellant is the husband of the candidate who is elected from Ward No. 158. The decision of the Apex Court in Jyoti Basu''s case is quite clear and the relevant observations of the Supreme Court in the said decision are required to be quoted ad verbatim:-
Sec. 81 prescribes who may present an election petition. It may be any candidate at such election; it may be any elector of the constituency; it may be none else. Sec. 82 is headed "Parties to the petition" and clause (a) provides that the petitioner shall join as respondents to the petition the returned candidates if the relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of Sec. 82 requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Sec. 86 (4) enables any candidate not already a respondent to be joined as a respondent. There is no other provision dealing with question as to who may be joined as respondents. It is significant that while clause (b) of Sec. 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under Sec. 86 (4), any other person cannot, under that provision seek to be joined as respondent, even if allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of ''proper parties'' enter the picture at all ? We think that the concept of ''proper parties'' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Sec. 82 and Sec. 86 (4) and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents.
(emphasis supplied).
16. It is true that in the present election petition the election is not challenged under the Representation of the People Act. The elections were held under the provisions of the Mumbai Municipal Corporation Act 1888. Even so, there is nothing in the provisions of Section 33 of the Mumbai Municipal Corporation Act which could justify joining the appellant as a party in an election which does not challenge the election of the appellant and where the appellant himself was not one of the candidates at the election.
17. We, however, make it clear that the above finding is given only qua the appellant, who must be treated as a stranger to Election Petition No. 90 of 2012. This finding or observation would not apply to the authority having custody of the record relating to the election in question or the officer who was in charge of the election.
18. It is true that one of the grounds of challenge in the election petition is that the appellant''s wife, the elected candidate, had used the surname "Ansari" by claiming that her husband, (the present appellant) is "Ansari". It is the case of the election petitioner that the appellant does not belong to the caste "Ansari", but the allegation of the election petitioner is that by making false representation of his caste the appellant as well as his wife, elected candidate, influenced and induced the voters in their favour. That, however, can not be the ground for impleading the appellant as a party-respondent because, as held by the Supreme Court, merely because the allegations of corrupt practice are made against a person, who is not a candidate at the election, such a person cannot be joined as a party-respondent in an election petition. We may not even be treated to have examined the contention of the election petitioner that the allegations against the appellant and his wife constitute a corrupt practice.
19. We also record the statement of Mr. Girish Godbole, learned counsel for the appellant (respondent No. 6 in Election Petition) that if in the course of deciding Election Petition No. 90 of 2012 the Election Tribunal has an occasion to make any observation against the appellant, neither the appellant nor respondent No. 1 in the Election Petition shall raise an objection that such observation could not be made in the absence of the appellant being a party in Election Petition No. 90 of 2012.
20. Since the election of the appellant himself from Ward No. 159 is also challenged in Election Petition No. 91 of 2012 and we are informed that similar allegation is made against the appellant in the said election petition, it would be in the fitness of things that Election Petition No. 90 of 2012 as well as Election Petition No. 91 of 2012 are heard together and decided by the same Tribunal.
21. Accordingly, we allow this Appeal and set aside the order dated 7 December 2012 of the learned Single Judge. We allow Writ Petition No. 11134 of 2012, set aside the order dated 17 October, 2012 of the Additional Chief Judge, Small Causes Court, Bombay below application Exhibit 13 and allow the Application at Exhibit 13 in Election Petition No. 90 of 2012. We further direct that both Election Petition Nos. 90 of 2012 and 91 of 2012 shall be heard together and decided by the same Election Tribunal.
22. It is clarified that the observations made in this judgment are only for the limited purpose of deciding whether the appellant could have been joined as a party-respondent in Election Petition No. 90 of 2012. The Election Tribunal shall hear and decide both the Election Petitions (Election Petition Nos. 90 and 91 of 2012) without being influenced by any observation made in this order.
23. It will be open to the election petitioners to request the Election Tribunal for expeditious hearing of Election Petition Nos. 90 and 91 of 2012. The appeal is accordingly disposed of in the above terms.
