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Kanhaiyalal Vs. Virendra Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberElection Petn. No. 22 of 1980
Judge
Reported inAIR1981MP268
ActsRepresentation of the People Act, 1951 - Sections 52 and 86(1); Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 3
AppellantKanhaiyalal
RespondentVirendra Kumar and ors.
Appellant AdvocateA.M. Mathur, Adv. General and ;A.H. Khan and S.L. Jain
Respondent AdvocateS.L. Garg, ;K.G. Maheshwari, ;V.S. Kokja and ;T.N. Singh, Advs.
DispositionPetition dismissed
Cases ReferredUdhav Singh v. M. R. Scindia
Excerpt:
.....had failed to comply with the provisions of section 82 of the act, the petition was liable to be dismissed in accordance with the provisions of section 86 of the act, 6. in reply, shri mathur, learned advocate-general appearing for the petitioner, contended that the petitioner had not made any allegation of corrupt practice against shri madansingh choudhary in the petition. failure to implead him was not fatal to the petition. it is also now well settled, in view of the decisions of the supreme court in amin lal v. 1 but by his supporters as well, in his presence and association. as the petitioner has failed to do to, i am bound to dismiss the petition under the provisions of section 86(1) of the act......election held on 31st may, 1980. twelve persons including the petitioner, respondent no. 1 and one shri madansingh had been nominated for election from that constituency. subsequently seven persons, one of whom was shri madansingh, withdrew their candidature thus only five persons, including the petitioner and respondent no. 1, contested the election. respondent no. 1 secured 29,402 votes while the petitioner secured 27,703 votes. hence respondent no. 1 was declared as elected,2. the petitioner has challenged the election of respondent no. 1 inter alia on the ground that respondent no. 1 is guilty of commission of corrupt practice specified in section 123(4) of the act. it is alleged that respondent no. 1 and his agents and supporters, with the consent of respondent no. 1, published a.....
Judgment:
ORDER

G.G. Sohani, J.

1. By this petition tiled under the provisions of the Representation of the People Act, 1951, hereinafter referred to as the 'Act', the petitioner, who was one of the contesting candidates, has challenged the election of respondent No. 1 from the Jawad Legislative Assembly Constituency to the State Legislative Assembly, in the election held on 31st May, 1980. Twelve persons including the petitioner, respondent No. 1 and one Shri Madansingh had been nominated for election from that Constituency. Subsequently seven persons, one of whom was Shri Madansingh, withdrew their candidature Thus only five persons, including the petitioner and respondent No. 1, contested the election. Respondent No. 1 secured 29,402 votes while the petitioner secured 27,703 votes. Hence respondent No. 1 was declared as elected,

2. The petitioner has challenged the election of respondent No. 1 inter alia on the ground that respondent No. 1 is guilty of commission of corrupt practice specified in Section 123(4) of the Act. It is alleged that respondent No. 1 and his agents and supporters, with the consent of respondent No. 1, published a pamphlet containing statements, which were false in relation to the personal character, conduct and candidature of the petitioner and which were reasonably calculated to prejudice the prospects of the petitioner's election. A copy of the pamphlet has been filed by the petitioner along with the petition. The petitioner has averred that the allegations in the pamphlet that he had amassed wealth by corrupt means by practising fraud and cheating and that he had committed acts of sin by sending innocent persons to jail during the emergency and by compelling thousands of persons to undergo vasectomy were all false. The petitioner further averred that the pamphlet in question was distributed by respondent No. 1 and in his presence and association, by his agents, supporters and workers at places and on dates specified in para 21 of the petition, In that para the petitioner disclosed the names of persons alleged to have distributed the pamphlet in question. One of the persons named in that para is Shri Mandansingh Choudhary,

3. By an application (I. A. No. 35/81), submitted by respondent No. 1, he prayed that the petitioner be directed to give complete details of persons referred to by the petitioner in para 21 of his petition. On 23rd April, 1981, the petitioner furnished the name and full description of Shri Madansingh Choudhary, referred to by the petitioner in para 21 of the petition. Thereafter an application (I. A. No. 2055/81) was submitted by respondent No. 1 under Section 86 of the Act praying that as an allegation of corrupt practice was made in the petition against Shri Madansingh Choudhary, who was one of the duly nominated candidates for the election in question, and as he was not joined as a respondent to the petition though he was a necessary party by virtue of the provisions of Section 82(b) of the Act, nonjoinder of Shri Madansingh Choudhary was fatal to the petition and the petition, therefore, deserved to be dismissed under the provisions of Section 86 of the Act for non-compliance with the provisions of Section 82 of the Act. In reply to this application, the facts that Shri Madansingh Choudhary was one of the duly nominated candidates for the election in question, that he had subsequently withdrawn his candidature and that he was the person referred to in para. 21 of the petition as 'Shri Madan Singh Choudhary' were not denied. It was, however, contended that the petitioner had not made any allegation of corrupt practice against Shri Madansingh Choudhary. It was further urged that the objection regarding non-joinder of Shri Madansingh Choudhary was not raised in the written-statement, and the objection raised by respondent No. 1 could not be decided merely on an application in that behalf.

4. When I. A. No. 2055/81 was taken up for consideration, the following issue was framed with the consent of parties--

'Whether the petition is liable to be dismissed for not impleading Shri Madansingh Choudhary s/o Nabarsingh Choudhary of Neemuch ?'

Parties agreed that for the decision of the aforesaid issue, it was not necessary to record any evidence and that the said issue could be decided on the basis of admitted facts and the averments made in the petition. Hence the aforesaid issue was treated, with the consent of the parties, as a preliminary issue and arguments were beard in that behalf.

5. Shri Garg, learned counsel for respondent No. 1, contended that Shri Madansingh Choudhary, referred to in para 21 of the petition, was one of the duly nominated candidates for the election who had subsequently withdrawn his candidature, and that the allegations made in paras 19 & 21 of the petition by the petitioner amounted to an allegation of commission of corrupt practice by the said Shri Madansingh Choudhary. It was further contended that a person, who was a duly nominated candidate but had subsequently withdrawn his candidature, was also required to he joined as a respondent to the petition by virtue of Section 82(b) of the Act if an allegation of corrupt practice was made against him in the petition, and as the petitioner had failed to comply with the provisions of Section 82 of the Act, the petition was liable to be dismissed in accordance with the provisions of Section 86 of the Act,

6. In reply, Shri Mathur, learned Advocate-General appearing for the petitioner, contended that the petitioner had not made any allegation of corrupt practice against Shri Madansingh Choudhary in the petition. Learned counsel for the petitioner, however, very fairly did not dispute that Shri Madansingh Choudhary, referred to in para 21 of the petition, was one of the duly nominated candidates for the election who had subsequently withdrawn his candidature. It was also not disputed that the act of distributing the printed appeal, referred to in para 19 of the petition, by a candidate amounted to corrupt practice specified in Section 123(4) of the Act. The main contention advanced on behalf of the petitioner was that he had not alleged in para 21 of the petition that Shri Madansingh Choudhary had distributed the printed appeal, and as there was no allegation of corrupt practice made against Shri Madansingh Choudhary. failure to implead him was not fatal to the petition.

7. Before I proceed to appreciate the contentions advanced on behalf of the parties, it would be useful to set out the relevant provisions of the Act Section 32 of the Act reads as follows :--

'Parties to the petition -- A petitioned shall join as respondents to his petition--

(a) Where the petitioner, in addition to claiming a 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.'

Section 86 of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 82 of the Act. It is also now well settled, in view of the decisions of the Supreme Court in Amin Lal v. Hunna Mal (AIR 1965 SC 1243) and K. V. Rao v. B. N. Reddy (AIR 1969 SC 872), that the expression 'any other candidate' in Section 82(b) of the Act includes a candidate who had withdrawn his candidature. It has further been held by the Supreme Court in Udhay Singh v. M. R. Scindia (AIR 1976 SC 744) that as soon as the non-compliance with Section 82(b) of the Act comes or is brought to the notice of the Court, no matter in what manner and at what stage during the pendency of the petition, it a bound to dismiss the petition in unstincted obedience to the command of Section 86 of the Act. In view of this decision of the Supreme Court, the contention that the objection raised by respondent No. 1 with regard to non-compliance with the provisions of Section 82(b) of the Act could not be decided merely on an application in that behalf, though raised by the petitioner in the reply to the application, was not rightly pressed before me at the time of arguments.

8. At this stage, it may also be mentioned that it was not disputed before me on behalf of the petitioner that Shri Madansingh Choudhary was one of the duly nominated candidates for the election in question, who had subsequently withdrawn his candidature. It was also not disputed on behalf of the petitioner that if there was an allegation in the petition that Shri Madansingh Choudhary had distributed the pamphlet referred to in para 19 of the petition, then it would amount to an allegation of corrupt practice against Shri Madansingh Choudhary. The only contention vehemently pressed before me on behalf of the petitioner was that there was no allegation in the petition that Shri Madansingh Choudhary had distributed the pamphlet in question. Under these circumstances, the short question for consideration is whether the petition contains an allegation that Shri Madansingh Choudhary had distributed the pamphlet referred to in para 19 of the petition.

9. According to respondent No. 1, the allegation that Shri Madansingh Choudhary distributed the pamphlet in question is to be found in para 21 of the petition. As the decision of the question raised before me turns on the true import of the averments made in para 21 of the petition, it is necessary to reproduce the relevant portion of that paragraph, which is as follows:--

'The above printed appeal was distributed by respondent No. 1 and in his presence and association by his agents, supporters and workers with his consent, at the places and on dates mentioned below :

'Name of the parsons who distributed.

Place

Date

1.

Shri madansingh choa- dhary in jeep, with Shri V. K. Sakle(sic), Javi, Thidoli.

Jawasa

29-5-1880

2.

Shri Radheya Shyam Patidax in company of ATANAShri V. K. Saklecha.

ATANA

DAROLI

DECAN

30-5-1980

3.

Madan Das Bairagi in DECAN company of Shri V. K.-Sakfecha.

RATAN-

GARH

30-5-1980

4.

Gopal Nyati in com- JAT paay of Shri V. K. Saklecha.

JAT

JHANTLA

30-5-1980

From the aforesaid averments, what one would naturally and normally gather is that Shri Madansingh Choudhary, while in a Jeep with Shri Saklecha, distributed the pamphlets in question on 29-5-1980 at the place mentioned in the aforesaid paragraph. In that para, the petitioner has alleged that the pamphlet was distributed not only by respondent No. 1 but by his supporters as well, in his presence and association. The petitioner has then mentioned the names of persons who had distributed the pamphlet. The name of Shri Madansingh Choudhary appears in the list of persons who are alleged to have distributed the pamphlet in the presence of Shri Saklecha (respondent No. 1). 19. The construction of the aforesaid para 21 suggested on behalf of the petitioner is that Shri Madansingh Choudhary has been named in that paragraph only with a view to show his presence in a Jeep as a driver and that it was Shri Saklecha alone who is alleged to have distributed the pamphlets in question. In support of this submission, it was pointed out that in the aforesaid paragraph whereas the persons who were alleged to have distributed the pamphlets were shown to be in the 'company of ' Shri Saklecha, Shri Mudansingh Choudhary was alleged to be 'with' Shri Saklecha, and that this distinction was indicative of the fact that Shri Madansingh Choudhary wag described merely as a driver and not a person who was alleged to hava distributed the pamphlet in the presence and association of Shri Saklecha (respondent No. 1). According to the petitioner, the first entry at serial No. 1 under the heading 'Name of the persons who distributed' should be read as follows --

'Shri V. K. Saklecha from a jeep which was driven by Shri Madansingh Choudhary'.

11. In my opinion, the aforesaid construction of para 21 of the petition suggested on behalf of the petitioner is not possible without making unwarranted addition and excision of words. This method of construction, as observed by the Supreme Court in Udhav Singh v. M. R. Scindia (AIR 1976 SC 744), runs counter to the cardinal cannot of interpretation that a pleading has to be read as a whole to ascertain its true import without undue stretching or straining the language and without making unwarranted addition and excision of words. A bare reading of para 21 of the petition leaves no room for doubt that it contains an allegation against Shri Madansingh Choudhary that he was one of the persons who, in the presence and association of respondent No. 1, distributed the pamphlets in question. This amounts to an allegation of corrupt practice against Shri Madansingh Choudhary, one of the duly nominated candidates for the election who had withdrawn his candidature. The petitioner should have, therefore, joined him as a respondent to the petition in compliance with the provisions of Section 82 of the Act. As the petitioner has failed to do to, I am bound to dismiss the petition under the provisions of Section 86(1) of the Act. My finding on the preliminary issue is that the petition is liable to be dismissed for not impleading Shri Madansingh Choudhary S/o Naharsingh Choudhary of Neemuch.

12. In the result this election petition is dismissed with costs of Rs. 500/- (five hundred) payable by the petitioner to respondent No. 1. The other respondents shall bear their own costs.

13. The registry is directed to communicate the substance of this decision to the Election Commission and to the Speaker of the Legislative Assembly of Madhya Pradesh, and it shall also forward an authenticated copy of this order as soon as it is ready to the Election Commission in accordance with the provisions of Section 103 of the Act


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