Calcutta High Court
Rekha Patra vs Sk. Nurul Islam & Ors on 13 August, 2025
OD- 1
IN THE HIGH COURT AT CALCUTTA
ELECTION PETITION JURISDICTION
ORIGINAL SIDE
GA No. 1 of 2025
With
GA No. 2 of 2025
In
E.P. No. 3 of 2024
Rekha Patra
-VS-
Sk. Nurul Islam & Ors.
BEFORE:
The Hon'ble Justice Krishna Rao
Hearing Concluded On : 29.07.2025
Order On : 13.08.2025
Appearance:
Mr. Billwadal Bhattacharyya, Sr. Adv.
Ms. Rashmi Bothra, Adv.
Mr. Anish Kumar Mukherjee, Adv.
Mr. Suryaneel Das, Adv.
Mr. Aditya Mondal, Adv.
Mr. Chiranjit Pal, Adv.
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Mr. Tamaghna Pramanick, Adv.
Mr. Anish Gupta, Adv.
...for the petitioner
Mr. Soumya Majumdar, Sr. Adv.
Mr. Anuran Samanta, Adv.
...for the respondent no. 15.
Mr. Saikat Banerjee, Sr. Adv.
Ms. Sonal Sinha, Adv.
Mr. Sandipan Das, Adv.
Ms. Shabnam Farooqui, Adv.
Mr. Shirsho Banerjee, Adv.
...for the respondent no. 16.
ORDER
1. The petitioner has filed an Election Petition seeking declaration that the
election of the returned candidate being the respondent no.1 from 18-
Basirhat Parliamentary Constituency of the District North 24 Parganas
in the House of the People is void and set aside, further declaration that
the petitioner has been duly elected from the said Parliamentary
Constituency.
2. In the Election Petition, the petitioner has made the Chief Election
Commissioner and the Returning Officer as the respondent nos. 15 and
16 respectively. On receipt of the notice of the instant case, both the
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authorities have entered appearance in the case through their Learned
Advocates.
3. The respondent no.16 has also filed written statement to the Election
Petition. The petitioner has examined herself as P.W.1. The respondent
nos. 15 and 16 have not cross-examined the P.W.1 and have filed their
respective applications being G.A. No. 1 of 2025 and G.A. No. 2 of 2025
praying for deletion of their names from the Election Petition as
respondents.
4. Mr. Saikat Banerjee, Learned Senior Advocate representing the
respondent nos. 16 and Mr. Soumya Mazumdar, Learned Senior
Advocate representing the respondent no.15 relied upon Sections 82
and 86(4) of the Representation of the People Act, 1951 and submits
that the law does not permit the Election Commissioner and the
Returning Officer to be the party respondent to the Election Petition.
5. It is submitted on behalf of the respondent nos. 15 and 16 that in
terms of Section 82 of the 1951 Act, the persons named therein can
only be made parties in an Election Petition. There is no other provision
available in 1951 Act as to who would be made respondent. They
submit that Section 82 provides that the petitioner in the Election
Petition to join as respondent, persons who were candidates in the
particular election. It does not oblige the petitioner to join as a person,
against whom even the allegations of corrupt practice, if any, has been
made. The concept of “proper party” is alien to the election disputes
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under the 1951 Act. They submit that in terms of Section 87 of the
1951 Act, the Civil Procedure Code applies subject to the provisions of
Section 1951 Act and Rules made thereunder. It is submitted that only
those may be joined as respondents to the Election Petition who are
mentioned in Section 82 and Section 86(4) of the 1951 Act.
6. The respondent nos. 15 and 16 in support of their submissions relied
upon the following judgments:
i. Baburam Tudu vs. Shambhunath Mandi
& Ors. reported in 2002 SCC OnLine Cal
458.
ii. Jyoti Basu & Ors. vs. Debi Ghosal & Ors.
reported in (1982) 1 SCC 691.
iii. Michael B. Fernandes vs. C.K. Jaffer
Sharief & Ors. reported in (2002) 3 SCC
521.
iv. B. Sundara Rami Reddy vs. Election
Commission of India & Ors. reported in
1991 Supp (2) SCC 624.
v. Sangram Sampatrao Deshmukh vs.
Election Commissioner of India & Ors.
reported in 2025 SCC OnLine Bom 8.
7. Mr. Billwadal Bhattacharyya, Learned Senior Advocate representing the
petitioner submits that the respondent no.16 being the Returning
Officer has filed written statement to the Election Petition and at the
flag end of the matter, the respondent no.16 has filed an application for
deletion of its name from the case is barred by res-judicata. In support
of his submissions, he has relied upon the judgment in the case of
Bhanu Kumar Jain vs. Archana Kumar and Another reported in
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(2005) 1 SCC 787 and submitted that the principles of res-judicata
can be invoked not only in separate subsequent proceedings, they also
get attracted in subsequent stage of the same proceedings.
8. Mr. Bhattacharyya submits that those who are mentioned in Section 82
of the Act, 1951 must be made parties to an Election Petition and if
they are not, the Election Petition is one which does not comply with
the provisions of Section 82 and must, therefore, be dismissed by
reason of the terms of Section 86(1). It does not, however, follow that if
to an Election Petition parties other than those who are necessary
parties under Section 82 have been impleaded, the Election Petition is
one that does not comply with the provisions of Section 82 and must be
dismissed. Such a petition can be amended by striking out from the
array of parties those additionally impleaded. In support of his
submissions, he has relied upon the judgment in the case of B.S.
Yadiyurappa vs. Mahalingappa & Ors. reported in (2002) 1 SCC
301.
9. Sections 82 and 86 of the Representation of the People Act, 1951,
reads as follows:
“82. Parties to the petition.– A petitioner
shall join as respondents to his petition–
(a) where the petitioner, in addition to
claiming 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
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(b) any other candidate against whom
allegations of any corrupt practice are made in
the petition.
86. Trial of election petitions.– (1) The
High Court shall dismiss an election petition which
does not comply with the provisions of section 81 or
section 82 or section 117.
Explanation.–An order of the High Court
dismissing an election petition under this sub-
section shall be deemed to be an order made under
clause (a) of section 98.
(2) As soon as may be after an election petition
has been presented to the High Court, it shall be
referred to the Judge or one of the Judges who has
or have been assigned by the Chief Justice for the
trial of election petitions under sub-section (2) of
section 80A.
(3) Where more election petitions than one are
presented to the High Court in respect of the same
election, all of them shall be referred for trial to the
same Judge who may, in his discretion, try them
separately or in one or more groups.
(4) Any candidate not already a respondent
shall, upon application made by him to the High
Court within fourteen days from the date of
commencement of the trial and subject to any order
as to security for costs which may be made by the
High Court, be entitled to be joined as a
respondent.
Explanation.–For the purposes of this sub-
section and of section 97, the trial of a petition shall
be deemed to commence on the date fixed for the
respondents to appear before the High Court and
answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to
costs and otherwise as it may deem fit, allow the
particulars of any corrupt practice alleged in the
petition to be amended or amplified in such manner
as may in its opinion be necessary for ensuring a
fair and effective trial of the petition, but shall not
allow any amendment of the petition which will
have the effect of introducing particulars of a
corrupt practice not previously alleged in the
petition.
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(6) The trial of an election petition shall, so far
as is practicable consistently with the interests of
justice in respect of the trial, be continued from day
to day until its conclusion, unless the High Court
finds the adjournment of the trial beyond the
following day to be necessary for reasons to be
recorded.
(7) Every election petition shall be tried as
expeditiously as possible and endeavour shall be
made to conclude the trial within six months from
the date on which the election petition is presented
to the High Court for trial.”
10. In the case of Jyoti Basu & Ors. (supra), the Hon’ble Supreme Court
held that:
“9. Section 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. Section 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 Section 82 requires
the petitioner to join as respondent any other
candidate against whom allegations of any corrupt
practice are made in the petition. Section 86(4)
enables any candidate not already a respondent to
be joined as a respondent. There is no other
provision dealing with the question as to who may
be joined as respondents. It is significant that while
clause (b) of Section 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 Section 86(4), any other person cannot,
8under that provision seek to be joined as a
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 staturte, 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 Section 82 and
Section 86(4) and no others. However desirable
and expedient it may appear to be, none else shall
be joined as respondents.”
11. The view taken by the Hon’ble Supreme Court in the case of Jyoti Basu
(supra) is reaffirmed in the case of B. Sundara Rami Reddy (supra)
and reiterate in the case of Michael B. Fernandes (supra).
12. In the case of Baburam Tudu (supra), this Court held that in the case
of non-joinder of necessary party to the election petition, the election
petition as a whole would be not maintainable but the same does not
apply in case of mis-joinder of party.
13. Section 82 of The Representation of the People Act, 1951, clearly
defines the parties who can be joined as respondent to an election
petition. Considering the above mentioned three judgments of the
Hon’ble Supreme Court wherein it clearly observed that the right to
elect or to be elected or a dispute regarding election is neither a
fundamental right nor common law right but confined to the provisions
of the Act and the Rules made thereunder, namely, the statutory
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provisions. The Hon’ble Supreme Court while referring to Sections 82
and 86(4) of the Representation of the People Act, has further held that
the contest of election petition is designed to be confined to the
candidates at the election and all others stands excluded and thus only
those may be joined as respondents to the election petition who are
covered by the said provisions and no other.
14. Mr. Bhattacharyya has not seriously opposed the applications filed by
the respondent nos.15 and 16 but has raised an issue of res-judicata
against the respondent no.16 on the ground that the respondent no.16
has filed written statement to the election petition and only at the time
of evidence of the petitioner, the respondent no.16 has filed the
application for striking out the name from the election petition. It is
true that on receipt of notice, the respondent no.16 entered appearance
and filed written statement. On the basis of the written statement filed
by the respondent no.16, no issue is decided. Even when the case is
fixed for evidence and the petitioner was examined as P.W.1 the
respondent no.16 categorically mentioned that they will not cross-
examined the petitioner and will proceed with the application for
striking out of their names from the election petition. After considering
the above circumstances, this Court did not find any substance to the
submissions made by Mr. Bhattacharyya with regard to the issue of
res-judicata.
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15. Considering the above settled legal position, the applications filed by
the respondent nos. 15 and 16 being the Chief Election Commissioner
and Returning Officer are allowed. The name of the Chief Election
Commissioner and the Returning Officer are deleted from the cause
title of the Election Petition. The department is directed to take
appropriate steps to delete the names of the respondent nos. 15 and 16
from the Election Petition within a week from date. The petitioner is
directed to file amended Election Petition within a week thereafter G.A.
No. 1 of 2025 and G.A. No. 2 of 2025 are disposed of.
16. Mr. Bhattacharyya has also argued the matter on merit for disposal of
the Election Petition. In the Election Petition leaving aside the Chief
Election Commissioner and the Returning Officer there are further 14
respondents including returned candidate. The respondent no. 2 was
the candidate set-up by the All India Secular Front, the respondent
no.3 was the candidate set-up by the Communist Party of India
(Marxist), the respondent nos. 4, 5, 6, 8, 10, 11 and 13 were
independent candidates, the respondent no.7 was set-up by Bahujan
Samaj Party and the respondent nos. 9, 12 and 14 were set-up by the
Bharatheeya Jawan Kisan Party, Socialist Unity Centre of India
(Communist) and Mulnibashi Party of India respectively.
17. Notices were served upon the respondent nos. 1 to 4, 7 to 10 and 12 to
14. Initially notices were not served upon the respondent nos. 5, 6 and
11. Subsequently, when the petitioner has taken fresh steps for service
of notices upon the respondent nos. 5, 6 and 11, notice upon the
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respondent no. 6 was served through Speed Post but no notices were
served upon the respondent nos. 5 and 11. As per prayer made by the
Learned Counsel for the petitioner, this Court allowed the petitioner to
publish notice of the instant suit in the English and Bangla News
Papers for the information of the respondent nos. 5 and 11. Inspite of
publication of notice in English and Bangla Newspaper, none appears
on behalf of the respondent nos. 5 and 11. Though service of notices
upon all the respondents were completed but only respondent no.16
has filed written statement, accordingly, the Election Petition is placed
in the list of “undefended suit” against all the respondents except the
respondent nos. 15 and 16.
18. On 13th December, 2024, the petitioner has filed an affidavit stating the
fact that the petitioner came to know from the Official Website of the
House of the People that the returning candidate being the respondent
no.1 expired on 25th September, 2024. The petitioner has informed the
death of the respondent no.1 in terms of Rule 39 of the Election Rules
1967 of the High Court at Calcutta. The death of the respondent no.1 is
recorded by an order dated 19th December, 2024.
19. Mr. Bhattacharyya submits that in the instant case none of the
respondents being the candidates contesting the said election have
given notice in the form of an application in accordance with Rule 41
and thus situation of Gazette Publication as contemplated in Rule 41 or
under Section 116 of the 1951 Act has never arisen. He submits that
non-filing of written statement by the respondents under Rule 26 of the
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1967 Rule is distinct and different from communicating the non-
intention by way of notice in the form of an application.
20. Mr. Bhattacharyya submits that non-answering the claim of the Mr.
Bhattacharyya as envisaged under Rule 26 is distinct and different
from intention of not to oppose the petition by way of notice in the form
of an application as contemplated in Rules 40 and 41 of 1967 Rules. He
submits that the effect of non-filing of written statement is stipulated in
Order 8, Rule 10 of the Code of Civil Procedure, 1908 which states that
on the failure of a party to file written statement, the Court shall
pronounce judgment against him or make such order in relation to the
fact as it thinks fit and on the pronouncement of the judgment, a
decree shall be drawn up. He submits that the respondents have not
filed written statement but have right to cross-examine the witness and
to argue the matter but the respondents have even not come forward to
cross examine the witness or to argue the matter.
21. Mr. Bhattacharyya submits that Rules for publication in the Gazette
only comes into play when there is no other surviving respondent but
in the instant case there are other respondents but have neither filed
written statement nor have cross-examined the petitioner, thus there is
no scope for any abatement of the Election Petition. In support of his
submissions, he has relied upon the judgment in the case of Sangram
Singh Vs. Election Tribunal, Kotah and Another reported in (1955)
1 SCC 323.
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22. Rules 26, 27, 39, 40 and 41 of the Election Petition Rules, 1967 of the
High Court at Calcutta reads as follows:
“Rule 26 : The respondents answering the
claim in the elections petition shall file their written
statements together with annexure if any following
the provisions of Order VI of the Code of Civil
Procedure, 1908 mutatis mutandis.
Rule 27 : The trial of an application petition
shall as nearly as possible, be in accordance with
the procedure applicable to the trial of suits under
the Code of Civil Procedure, 1908 and these rules.
Rule 39 : If before the conclusion of the trial of
an election petition the respondent or any of the
respondents dies, the fact of such death shall be
brought to the notice of the Judge by an affidavit
to be filed by the petitioner. Copy of the affidavit
containing the report of death shall be serves on
the surviving respondent or respondents, if any or
their advocate.
Rule 40 : Where, before the conclusion of the
trial of an election petition the sole respondent or
any of the respondents does not intend to oppose
the petition such respondent shall give a notice in
the form of an application in accordance with these
Rules.
Rule 41 : If before the conclusion of the trial of
an election petition the sole respondent dies or
gives notice that he does not intend to oppose the
petition or if any of the respondents dies or gives
such notices as aforesaid and there is no other
respondent who is opposing the petition of the
Order of the judgment recording such facts in the
proceedings of the election petition shall be
published in the “Calcutta Gazette” and the fact of
such publication shall be recorded in the Court’s
proceedings.”
23. Section 116 of the Representation of the Peoples Act, 1951 reads as
follows:
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“116. Abatement or substitution on death
of respondent.– If before the conclusion of the
trial of an election petition, the sole respondent dies
or gives notice that he does not intend to oppose
the petition or any of the respondents dies or gives
such notice and there is no other respondent who is
opposing the petition, [the High Court] shall cause
notice of such event to be published in the Official
Gazette, 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 High Court] may think fit.
24. The notice of the present case is served upon the respondent no.1 on
8th August, 2024 and the respondent no.1 died on 25th September,
2024. The petitioner has filed an affidavit stating that the fact of the
death of the respondent no.1 on 13th December, 2024. Other than the
respondent no.1, there are other 13 respondents who have contested
election in the same constituency along with the respondent no.1 and
the petitioner. None of the respondents have neither filed written
statement nor have given any notice that they do not intent to contest
the Election Petition.
Rule 41 of 1967 and Section 116 of the Act, 1951 provides that if
before conclusion of trial of an Election Petition, the sole respondent
dies or gives notice that he does not intend to oppose the petition or, if
any, of the respondents dies or gives such notices and there is no other
respondent who is opposing the petition, the order of the Judge
recording such facts in the proceedings of the Election Petition shall be
published in the “Calcutta Gazette” and the facts of such publication
shall be recorded in the Court’s proceeding.
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25. On 13th December, 2024, the petitioner filed affidavit stating the fact of
the death of the respondent no.1 and informed this Court that the
petitioner has circulated the affidavit, accordingly, this Court directed
the respondents to file any objection with regard to the said affidavit.
None of the respondents have filed any objection to the affidavit filed by
the petitioner regarding death of the respondent no.1.
26. Before entering into the merit of the Election Petition, this Court is
required to decide whether publication in the “Calcutta Gazette” in
terms of Rule 41 of 1967 Rules read with Section 116 of 1951 Act, is
necessary or not.
27. The petitioner relied upon the Rule 26 of 1967 Rules wherein the
respondents are required to file their written statement to the Election
Petition as per provision of Order VI of the Code of Civil Procedure,
1908. As per the contention of the petitioner that the surviving
respondents have neither filed written statement nor have given notice
that the respondents does not intend to oppose the petition and have
also not come forward to cross-examine the petitioner or argue the
matter, thus Rule 41 read with Section 116 is not applicable.
The notice of Election Petition was served upon the respondent
no.1 on 8th August, 2024 and he died on 25th September, 2024. There
are altogether 16 respondents including the Chief Election
Commissioner of India and the Returning Officer. The respondent nos.
2 to 14 are the contesting candidates.
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28. As per Section 112 of the Act, 1951, the Election Petition shall abate
only on the death of a sole petitioner or of the survivor of several
petitioners. In view of the same after the death of the respondent no.1,
question of abatement does not arise in this case. The petitioner has
informed the death of the respondent no.1 by an affidavit after serving
copy to the other respondents. None of the respondents have filed
written statement nor any notice given that they do not intend to
oppose the petition.
29. The elections and election disputes are matter of special nature and
that though the right to franchise and right to office are involved in an
election dispute, it is not a lis at common law nor an action in equity.
The right to vote or stand as candidate for election is not a civil right
but is a creature of statute or special law and must be subject to the
limitation imposed by it.
30. The general rule is well settled that the statutory requirement of
election law must be strictly observed and that an election contest is
not an action at law or a suit in equity but is a purely statutory
proceeding unknown to the common law power. It is also well settled
that it is a sound principle of natural justice that the success of a
candidate who has won an election should not be lightly inferred with
any petition seeking such interference must strictly confirm to the
requirements of law.
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31. The entire election process commencing from the issuance of the
notification calling upon a constituency to elect a member or members
right up to the final resolution of the dispute, if any, concerning the
election is regulated by the Representation of the People Act, 1951,
different stages of the process being dealt with by different provisions of
the Act. The legal position is, therefore, well settled that election
disputes are strictly statutory proceeding.
32. Considering the above, this Court finds that after the death of the
respondent no.1 provisions of Section 116 of 1951 Act read with Rule
41 of 1967 Rules has not been complied with by way of publishing in
the “Calcutta Gazette”.
33. The petitioner is directed to take appropriate steps by publishing in the
“Calcutta Gazette” in compliance of the provisions of Section 116 of the
Act of 1951 read with Rule 41 of 1967 Rules within a period of three
weeks from date.
34. List the matter 3rd September, 2025.
(Krishna Rao, J.)
p.d/-