Jammu & Kashmir High Court
Harsh Dev Singh vs Ut Of J&K & Ors on 20 April, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
EP No. 1/2024
Reserved on: 30.03.2026
Pronounced on : 20.04.2026
Uploaded on :20.04.2026
Whether the operative part or full judgment is
pronounced: Full
Harsh Dev Singh
....Petitioners
Through:- Mr. Aseem Kumar Sawhney,
Sr. Advocate with Mr. Shabab Malik,
Advocate and the petitioner in person.
V/s
UT of J&K & Ors
.....Respondents
Through:- Ms. Chetna Manhas, Assisting counsel
to Mrs. Monika Kohli, Sr. AAG
Mr. Vilakshan Singh, Advocate.
\
CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
(JUDGMENT)
01. I have heard the arguments advanced by learned
counsel for the parties with reference to preliminary issue
No.1. I have also perused record of the case.
02. Issue No. 1, which falls for determination, reads as
under:
Whether there is mis-joinder of
parties? If so, to what effect? OPR 10.
03. According to the learned counsel for respondent
No. 10, there is mis-joinder of parties in the present case.
He has submitted that the petitioner has not only
EP No.1/2024 Page 1 of 13
impleaded the contesting candidates as the parties to the
instant petition, but he has also impleaded as respondents
the other parties including the officers and officials against
whom allegations of impropriety have been leveled in the
present election petition. The aforesaid contention of
learned counsel for the respondent No.10 is based upon the
interpretation of provisions contained in Section 82 of the
Representation of People Act, 1951 (hereinafter to be
referred to as “Act of 1951”), which deals with the parties,
to an election petition. It has been contended that as per
Section 82 of the Act of 1951, only the contesting
candidates have to be impleaded as parties to an election
petition. In this regard, learned counsel for respondent
No.10 has placed reliance upon the judgments of the
Supreme Court in the cases of Murarka Radhey Shyam
Ram Kumar Vs. Roop Singh Rathore and anr, 1963 SCC
Online SC 129, Joyti Basu Vs. Debi Ghosal, 1982 (1)
SCC 691 and B.S. Yadiyurappa vs. Mahalingappa, 2002
(1) SCC 301.
04. Learned Senior counsel appearing for the
petitioner on the other hand has contended that as per the
provisions contained in Section 87 of the Act of 1951, the
procedure applicable under the Code of Civil Procedure is
applicable to the election petitions tried by the High Court
and, therefore, all necessary and proper parties to the
EP No.1/2024 Page 2 of 13
petition have to be impleaded as the parties. It has further
been contended that in terms of sub-clause (ii) of clause (a)
of sub-section (1) of Section 99 of the Act of 1951, all
persons, who have been proved at the trial to have been
guilty of any corrupt practice, have to be named, therefore,
it is not only the contesting candidates, who are to be
impleaded as parties to the election petition but even those
officers and officials, against whom there are allegations of
corrupt practice, have to be impleaded as parties to the
election petition. In this regard, the learned Senior counsel
has relied upon the judgment of the Madras High Court in
the case of K.T. Kosalram Vs. Dr. Santhosham and Ors,
AIR 1969 Madras 116.
05. In order to determine the merits of the rival
contentions raised by learned counsel for the parties, it
would be apt to notice the provisions of the Act of 1951,
which deal with the issue relating to joinder of parties to an
election petition. The same are reproduced as under:
“S.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
(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
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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.
(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.
S. 87. Procedure before the High Court
(1)Subject to the provisions of this Act and of any rules
made thereunder, every election petition shall be tried by
the High Court, as nearly as may be, in accordance with
the procedure applicable under the Code of Civil
Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to
refuse, for reasons to be recorded in writing, to examine
any witness or witnesses if it is of the opinion that the
evidence of such witness or witnesses is not material forEP No.1/2024 Page 4 of 13
the decision of the petition or that the party tendering such
witness or witnesses is doing so on frivolous grounds or
with a view to delay the proceedings.
(2)The provisions of the Indian Evidence Act, 1872 (1 of
1872), shall , subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an election
petition.”
S. 99. Other orders to be made by the High Court.–
(1)At the time of making an order under section 98 1the
High Court shall also make an order–
(a)where any charge is made in the petition of any corrupt
practice having been committed at the election, recording–
(i)finding whether any corrupt practice has or has not been
proved to have been committed at election, and the nature
of that corrupt practice; and
(ii)the names of all persons, if any, who have been proved
at the trial to have been guilty of any corrupt practice and
the nature of that practice; and
(b)fixing the total amount of cost payable and specifying the
persons by and to whom costs shall be paid:
Provided that a person who is not a party to the petition
shall not be named in the order under sub-clause (ii) of
clause (a) unless–
(a) he has been given notice to appear before the High Court
and to show cause why they should not be so named; and
(b) if he appears in pursuance of the notice, he has been
given an opportunity of cross-examining any witness who
has already been examined by the High Court and has
given evidence against him, of calling evidence in his
defence and of being heard.
(2) In this section and in section 100, the expression “agent”
has the same meaning as in section 123.”
06. From a perusal of the provision contained in
Section 82, it is clear that the guidelines for impleadment
of parties to an election petition have been set out in the
said provision. As per this provision, in a case where the
petitioner, in addition to claiming a declaration that the
election of all or any of the returned candidates is void,
claim a further declaration that he himself or any other
candidate has been elected, all the contesting candidates
EP No.1/2024 Page 5 of 13
other than the petitioner have to be impleaded as
respondents. However, in a case where no further
declaration is claimed by the petitioner, only the returned
candidates are to be impleaded as respondents. As per
Clause (b) of Section 82, a candidate against whom there
are allegations of any corrupt practice has to be impleaded
as a party to the petition.
07. Sub-section (4) of Section 86 of the Act of 1951
vests power with the High Court to implead a candidate as
respondent to the election petition, if such candidate has
not been already impleaded as respondent, provided such
candidate makes an application for his impleadment within
fourteen days from the commencement of the trial of the
case.
08. The aforesaid provisions came up for
interpretation before the Supreme Court of India in Joyti
Basu’s case (Supra). The Supreme Court, while
interpreting the said provisions, observed as under:
“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 practiceEP No.1/2024 Page 6 of 13
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.”
09. The aforesaid ratio laid down by the Supreme
Court was reiterated by the said court in the case of
Michael B. Fernandes Vs. C.K. Jaffer Sharief & ors,
2002 (3) SCC 521.
10. From the foregoing analysis of the legal position,
it is clear that a contest of election petition is to be confined
to the candidates at the election. All other parties are to be
excluded. Only those parties, who are mentioned in
Section 82 of the Act of 1951 and no others, have to be
impleaded as respondents to the election petition.
11. So far as the argument of learned Senior counsel
appearing for the petitioner that because provisions
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contained in Code of Civil Procedure govern the procedure
for dealing with an election petition and as such, even a
person, who is a proper party to the proceedings has to be
impleaded as a respondent to an election petition is
concerned, the said contention has also been answered by
the Supreme Court in Joyti Basu’s case (supra) in the
following manner:
“It is said, the Civil Procedure Code applies to the trial of
election petitions and so proper parties whose presence may
be necessary in order to enable the Court ‘effectually and
completely to adjudicate upon and settle all questions
involved’ may be joined as respondents to the petitions. The
question is not whether the Civil Procedure Code applies
because it undoubtedly does, but only ‘as far as may be’ and
subject to the provisions of the Representation of the People
Act, 1951 and the rules made thereunder. Sec. 87 (1)
expressly says so. The question is whether the provisions of
the Civil Procedure Code can be invoked to permit that which
the Representation of the People Act does not. Quite
obviously the provisions of the Code cannot be so
invoked. In Mohan Raj v. Surendra Kumar Taparia & Ors.,(1)
this Court held that the undoubted power of the Court (i.e.
the Election Court) to permit an amendment of the petition
cannot be used to strike out allegations against a candidate
not joined as a respondent so as to save the election petition
from dismissal for non- joinder of necessary parties. It was
said, “The Court can order an amendment and even strike
out a party who is not necessary. But where the Act makes a
person a necessary party and provides that the petition shall
be dismissed if such a party is not joined, the power of
amendment or to strike out parties cannot be used at all. The
Civil Procedure Code applies subject to the provisions of
the Representation of the People Act and any rules made
thereunder. When the Act enjoins the penalty of dismissal of
the petition for non-joinder of a party the provisions of the
Civil Procedure Code cannot be used as a curative means to
save the petition.”
12. From the aforesaid analysis of legal position,
it is clear that as per Section 87 of the Act of 1951, the
procedure prescribed under the Code of Civil Procedure
is applicable to trial of election petitions only subject to
EP No.1/2024 Page 8 of 13
the provisions of the Act of 1951. Thus, anything
contained in the Code of Civil Procedure which is
contrary to the provisions of the Act of 1951 cannot be
made applicable to trial of election petitions. Since
Section 82 of the Act of 1951 provides as to which
persons are to be impleaded as respondents to an
election petition, therefore, anything contrary to Section
82 contained in the Code of Civil Procedure cannot be
invoked to implead a person as party to an election
petition, who otherwise cannot be impleaded as
respondent in terms of Section 82 of the Act of 1951.
The contention of learned Senior counsel for the
petitioner is, therefore, without any merit.
13. The next contention raised by learned Senior
counsel for the petitioner is based upon the provisions
contained in sub-clause (ii) of clause (a) of sub-section (1)
of Section 99 of the Act of 1951. As per this provision, the
persons, who are proved to have indulged in corrupt
practice at the election, have to be named at the time of
making the final decision. According to the learned Senior
counsel, the aforesaid provision makes it clear that even
the persons other than the candidates can be impleaded as
parties to an election petition if it is shown that such
persons have indulged in corrupt practice at the election.
EP No.1/2024 Page 9 of 13
14. The Supreme Court has, in Joyti Basu’s case
(supra), dealt with a similar contention in the following
manner:
“The matter may be looked at from another angle. The
Parliament has expressly provided that an opportunity
should be given to a person who is not a candidate to show
cause against being ‘named’ as one guilty of a corrupt
practice. Parliament however, has not thought fit to expressly
provide for his being joined as a party to the election petition
either by the election-petitioner or at the instance of the very
person against whom the allegations of a corrupt practice are
made. The right given to the latter is limited to show cause
against ‘named’ and that right opens up for exercise when, at
the end of the trial of the election petition notice is given to
him to show cause why he should not be ‘named’. The right
does not extend to participation at all stages and in all
matters, a right which he would have if he is joined as a
party at the commencement. Conversely the election
petitioner cannot by joining as a respondent a person who is
not a candidate at the election subject him to a prolonged
trial of an election petition with all its intricacies and
ramifications. One may well imagine how mischievous
minded persons may harass public personages like the
Prime Minister of the country, the Chief Minister of a State or
a political leader of a national dimension by impleading him
as a party to election petitions, all the country over. All that
would be necessary is a seemingly plausible allegation,
casually or spitefully made, with but a facade of truth.
Everyone is familiar with such allegations. To permit such a
public personage to be impleaded as a party to an election
petition on the basis of a mere allegation, without even prime
facie proof, an allegation which may ultimately be found to
be unfounded, can cause needless vexation to such
personage and prevent him from the effective discharge of
his public duties. It would be against the public interest to do
so. The ultimate award of costs would be no panacea in such
cases, since the public mischief cannot be repaired. That is
why public Policy and legislative wisdom both seem to point
to an interpretation of the provisions of the Representation of
the People Act which does not permit the joining, as parties,
of persons other than those mentioned in Sections 82 and 86
(4). It is not as if a person guilty of a corrupt practice can get
away with it. Where at the concluding stage of the trial of an
election petition, after evidence has been given, the Court
finds that there is sufficient material to hold a person guilty
of a corrupt practice, the Court may then issue a notice to
him to show cause under Sec. 99 and proceed with further
action. In our view the legislative provision contained in Sec.
99 which enables the Court, towards the end of the trial of
an election petition, to issue a notice to a person not a party
to the proceeding to show cause why he should not be
‘named’ is sufficient clarification of the legislative intent that
EP No.1/2024 Page 10 of 13
such person may not be permitted to be joined as a party to
the election petition.”
15. From the foregoing analysis of the legal position,
it is clear that the concept of proper parties is and would
remain alien to an election dispute under the Act.
Regarding addition of any other person as a party as
contemplated under Section 99 of the Act of 1951, the
Supreme Court has clearly held that the stage of
impleading such parties against whom charge of corrupt
practices having been committed has been found
established would come only after the trial of the case and
not at the time of filing of the election petition, as the
legislature in its wisdom has though it proper to permit
impleadment of those persons other than the candidates,
who are found to have indulged in corrupt practices at the
election, only after trial of the case.
16. Turning to the facts of the present case, the
petitioner has impleaded as respondents not only the
contesting candidates but he has also impleaded
respondents No. 1 to 9, who are the officials/officers and
are not the contesting candidates. In the election petition,
the petitioner has leveled several allegations against these
respondents but mere leveling of the allegations would not
make them necessary parties to the present petition. In the
face of the provisions contained in Section 82 of the Act of
EP No.1/2024 Page 11 of 13
1951 and the interpretation given to the said provision by
the Supreme Court in Joyti Basu’s case (supra), the
respondents No. 1 to 9 should not have been impleaded as
parties to the present petition. Thus, it is established that
there is misjoinder of parties in the present petition.
Preliminary issue No.1 is, therefore, proved.
17. That takes us to the question as to what would
be the effect of misjoinder of parties on the fate of the
present petition.
18. The Supreme Court in the case of B.S.
Yadiyurappa vs. Mahalingappa (supra) has held that the
election petition, which does not comply with the provisions
of Section 82 of the Act of 1951, would not necessarily
entail its dismissal. It has been held that such a petition
can be amended by striking out from the array of the
parties those additionally impleaded. In view of the
aforesaid ratio laid down by the Supreme Court, the effect
of impleading respondents No. 1 to 9 as parties to the
present petition would not entail dismissal of the petition
but an order regarding their striking out as parties from the
array of parties is required to be passed.
19. Accordingly, a direction is issued for deletion of
respondents No. 1 to 9 from the array of parties. The
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petitioner shall consequently file an amended petition/
memo of parties by next date of hearing.
20. List for further proceedings on 11.05.2026.
(SANJAY DHAR)
JUDGE
SRINAGAR
20.04.2026
Naresh/Secy.
Whether the judgment is speaking: Yes/No
Whether the judgment is reportable: Yes/No
EP No.1/2024 Page 13 of 13