Can An Elector Seek To Be Impleaded In An Election Petition? Kerala High Court Answers

The Kerala High Court last week ruled that an elector has a limited right to get impleaded in an election petition and that such right can only be exercised if all the relevant provisions under the Kerala Municipality Act are complied with. 

Upon analysing the provisions of the Municipality Act and the declaration of law by the Supreme Court, Justice C.S. Dias took the view that the ring is closed for a ranked outsider to get himself impleaded in an election petition if his aspiration is beyond the scheme of the Act.

"When the returned candidate and the contesting candidates have not exercised their right to give evidence, as provided under Section 175 of the Act, the petitioner who has ― not opted to file an election petition as contemplated under Section 165 of the Act can have little right to ― file an application to give evidence against the 1st respondent."

The 1st respondent herein was a contesting candidate in Ward No.23 of the Perumbavoor Municipality and had filed an election petition before a Munsiff Court to set aside the election of the returned candidate and to declare him as the returned candidate. 

The petitioner had exercised his franchise in the said election. He apparently learnt through his friend that the 1st respondent had also indulged in corrupt practices. Therefore, he filed an impleading application in the election petition arguing that the respondent is not entitled to be declared the returned candidate, as provided under Section 175 of the Kerala Municipality Act, 1994.

The 1st respondent objected to this application and the Munsiff court dismissed the impleading application holding that Section 165 permits only contesting candidates to be made parties in an election petition. It was also held that since the petitioner is not a contesting candidate, Order I Rule 10 (2) of the Code of Civil Procedure has no application.

Aggrieved by this, the petitioner moved the High Court alleging that the impugned order was passed without a proper understanding of the provisions of the Act.

Advocate Karol Mathews Sebastian appearing for the petitioner argued that a co-joint reading of Sections 165 and 175 enables a third party to be impleaded when any candidate other than the returned candidate seeks to get declared elected.

Can an elector seek impleadment in an election petition was the question before the Court. Justice Dias observed that Chapter X of the Kerala Municipality Act deals with disputes regarding elections.

Upon going through the relevant provisions, it was concluded that the following steps have to be followed for challenging an election, recrimination and substitution of a respondent:

• An election shall be called in question by presenting an election petition.
• An election petition can be filed by any candidate or an elector within thirty days from the date of election of the returned candidate.
• When a candidate, in addition to claiming the election of the returned candidate to be void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates have to be impleaded.
• Trial shall be deemed to commence on the date fixed for the respondent(s) to appear before the court and answer the claim in the petition.
• Where a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election, provided that the returned candidate or such other party shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the court of his intention to do so.
• Before the conclusion of the trial, if any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, the court shall cause notice of such event to be published in the office of the court and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms as the court may think fit.
  

In the present case, the Court noted that the petitioner had not filed an election petition challenging the election. 

On the other hand, the 1st respondent had specifically sought to set aside the election and to declare him as the returned candidate, after impleading all the contesting candidates. The trial had commenced and no evidence was produced by any respondent to prove that the election of the 1st respondent would be void if he is to be declared the returned candidate. Similarly, none of the respondents has given notice that they do not propose to oppose the petition, giving rise to a right for substitution.

Therefore, since the returned candidate and the contesting candidates had not exercised their right to give evidence under Section 175, it was held that the petitioner who had not filed an election petition can have little right to file an application to give evidence against the 1st respondent.

On an appreciation of the pleadings and materials on record, the analysis of the provisions of the Municipality Act, the emphatic declaration of law by the Honourable Supreme Court and the findings rendered above, this Court is of the definite view, that the ring is closed for the petitioner, a ranked outsider, to get himself impleaded in O.P (Election) No.2/2021, as his aspiration is beyond the scheme of the Kerala Municipality Act. 

Consequently, the petition was dismissed.

Case Title: Basil George v. Shaji Salim & Ors. 

Citation: 2022 LiveLaw (Ker) 434

Click Here To Read/Download The Order