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Gulabchand Palliwal Vs. Govind Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberElection Appeal No. 53 of 1963
Judge
Reported inAIR1964Raj155
ActsRepresentation of the People Act, 1951 - Sections 36, 36(8), 37, 79, 82, 90(3), 98, 99, 140 and 141
AppellantGulabchand Palliwal
RespondentGovind Sahai and ors.
Appellant Advocate B.L. Pagaria, Adv.
Respondent Advocate C.K. Garg, Adv. for Respondent No. I
DispositionAppeal dismissed
Cases Referred and B. T. Bhosle v. M. S. Aney
Excerpt:
.....at an election is a candidate within the meaning of section 79 of the act and when allegations of corrupt practice are proved to have been made against him, he would be a necessary respondent to an election petition within the meaning of section 82(b). 14. we should also like to refer to another decision of their lordships of the supreme court reported in the same volume, air 1958 sc 687, kamaraja nadar v. we have no hesitation in saying that the decision referred to above clearly goes a long way to support the view we have felt persuaded to take, the simple reason being that there can be no essential, difference between a candidate who retired under section 55a(2) and a candidate who withdraws himself under section 37 of the act. 16. we may as well refer to sections 98 and 99 in this..........sahai on the nth april, 1962. this petition was, inter alia, founded on certain allegations as to corrupt practices which were said to have been committed by shri govind sahai, the successful candidate. it may also be stated at this place that certafn allegations of corrupt practice were also made against sri damodarprasad sharina. an objection haying been raised as to the vagueness of certain particulars stated in this election petition, the appellant submitted an amended application on the 15th february, 1963.on, the 25th february, 1963, the respondent shri govind sahai whom we shall hereafter referto as the only respondent in the case for facility of reference, raised a preliminary ejection undersection 82(b) read with section 90(3) of the act to the effect that certain allegations.....
Judgment:

Modi, J.

1. This election appeal raises an interesting question as to the interpretation of Section 82(b) of theRepresentation of the People Act, 1951 (No. 43of 1951) as amended up to date, hereinafter calledthe Act.

2. The appellant before us as also respondents Nos. 1 to 4 stood as candididates for the Rajas-than Legislative Assembly from the Gangapur Assembly Constituency at the General Election of 1962. The former stood on the Congress ticket while the contesting respondent (Shri Govind Sahai), stood from the Jan Sangh ticket. There was one more, candidate at this election namely Shri Damodar Prasad Sharma whose nomination paper was duly accepted under Section 36(8) of the Act. Thereafter the latter withdrew his candidature under Section 37 with the result that he did not contest at the actual poll. It is further admitted between the parties that Shri Damodarprasad Sharma became an election agent of the contesting respondent Shri Govind Sahai at the said election.

As a result of the polling which took place on the 25th February, 1962, Shri Govind Sahai was declared successful on the 27th February, 1962. Thereupon, the appellant preferred an election petition contesting the election of Shri Govind Sahai on the nth April, 1962. This petition was, inter alia, founded on certain allegations as to corrupt practices which were said to have been committed by Shri Govind Sahai, the successful candidate. It may also be stated at this place that certafn allegations of corrupt practice were also made against Sri Damodarprasad Sharina. An objection haying been raised as to the vagueness of certain particulars stated in this election petition, the appellant submitted an amended application on the 15th February, 1963.

On, the 25th February, 1963, the respondent Shri Govind Sahai whom we shall hereafter referto as the only respondent in the case for facility of reference, raised a preliminary ejection underSection 82(b) read with Section 90(3) of the Act to the effect that certain allegations of corrupt practice hadbeen made against Shri Damodarprasad Sharmaalso in sub-paragraphs (ii), (iv) and (ix) of paragraph 4 (2) (a) of the amended election petition, thatthe said Shri Damodarprasad was also a candidatefor the Rajasthan Legislative Assembly from theGangapur Constituency and had been validlynominated, and, therefore, he was a necessary partyto the election petition within the meaning of Section 82(b) of the Act, and having not been soimpleaded, the election petition was bound to bedismissed by virtue of the provision contained inSection 90(3) of the Act.

This application was opposed by the appellant in his reply dated the 28th February, 1963. The main contentions raised on behalf of the appellantwere that Shri Damodarprasad was not a candidate within the meaning of Section 82(b) of the Act and that in any case the corrupt practices alleged to have been committed by him were attributed to him not as a candidate but as an election agent of the respondent. The election tribunal upheld the objection raised by the respondent by its orderdated the 25th March, 1963, and dismissed theelection petition without going into the merits ofthe case. The appellant election-petitioner has now come up to this Court in appeal under Sec-tion 116A of the Act.

3. The sole question for determination in this appeal, therefore, is the one we have set out above. The answer to this question is mainly governedby Section 82(b), Section 79 and Section 90(3) of the Act. Section 82 reads as follows :

'82. A petitioner 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 79(b) is in the following terms:

'79. In this Part and in Parts VII and VIII,unless the context otherwise requires,--

X X X X X (b) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.'

Section 90(3), reads as under :

'The Tribunal shall dismiss an election petition which does not comply with the provisionsof......... Section 82 notwithstanding that it has not been dismissed by the Election Commission underSection 85.'

4. Now, the principal submission made be-fore us on behalf of the appellant is that the phrase'any other candidate' as used in Section 82(b) is limited in its meaning to the contesting candidates only and does not include a candidate who has withdrawn his candidature under Section 37 of the Act. In support of this submission, learned counsel placed strong reliance on a bench decision of the Patna High Court in Kapildeo v. Suraj Narayan, AIR 1959 Pat 250. In order to see how far this contention is well-founded, we proceed to analyse Section 82 as a whole.

5. Section 82 prescribes who shall be joined as respondents to the election petition and is divided into two parts. In part (a) again, two kinds of cases have been distinctly provided for. As to the first class of cases, it is enacted that where a petitioner not only wants, to have the, election of all or any of the returned candidates held to be void but further claims a relief to the effect that he himself or any other candidate has been duly elected, he must join as respondents all the candidates other than the petitioner (the reference to the petitioner obviously relates to those cases where the petitioner himself is a candidate).

The second class of cases referred to in part (a) is where a simple challenge to the election of a returned candidate is made but no further declaration that the petitioner himself or any other candidate has been duly elected happens to be prayed for and in such a case the requirement is that all the returned candidates only may be impleaded as respondents in the election petition. Then comes Clause (b) which obviously is in the nature of a proviso to both types of cases set out above, and it is laid down that whether it is the one type of case or the other, whenever allegations of corrupt practice are made ia the petition against a candidate, then every such candidate must also be impleaded as a respondent in the election petition.

6. It is in this setting that we must construe the phrase 'any other candidate' used in Section 82(b)j Quite obviously, the expression is comprehensive inasmuch as it is not limited by any qualifying words. Again, it seems to us in the very nature of things to cover those candidates who may not fall within the ambit of either 'contesting candidates' or 'returned candidates' referred to in Clause (a) of this section. If that were not so, we are disposed to think that the enactment of this part of Section 82 would have been entirely unnecessary in the manner in which it has been made.

That being so, it should not be difficult toenvisage that the expression 'any other candidate'covers within its sweep a candidate who was validly nominated under Section 36(8) of the Act butsubsequently withdrew his candidature under thenext following Section 37. We Should also liketo add in this connection that if that was not themeaning of the Legislature, there was nothing toprevent it from limiting the requirement of joinderof necessary respondents to 'contesting candidates'only, in these cases also where allegations of corrupt practice happened to be made against themThat seems to us to be the plain, obvious meaningof Section 82 on the language used therein, andwe may add that we would not be justified indeparting from that meaning Unless there be compelling reasons to the contrary.

7. This brings us to a consideration of the definition of 'candidate' in Section 79(b). We hays already set out that definition in extenso and need not repeat it. All (that we should like to point out is that this definition is an all embracing one. The expression 'candidate' as defined in this provision, it will be readily seen, is not confined to the person who actually contests an election, but embraces within its scope one who has been duly nominated as a candidate at the election. Not only that, it also includes a person whose nomination paper has been rejected but who claims that it should have been accepted by the Returning Officer.

Further still, according to this definition, the status of a candidate does not commence from the stage of nomination only but a person is to be deemed to have been a candidate right from the time when he put himself forward as a prospective candidate in his constituency with the election in prospect. We have no hesitation in saying that a definition couched in such extensive language cannot be rightly held to exclude a 'withdrawn candidate' from within its' ambit once he was duly nominated. This is of course subject to the qualifying words which occur at the beginning of Section 79 to wit, 'unless the context otherwise requires'.

8. Now, so far as we are able to see, there is nothing in the context of Section 82(b) on the score of which it could be rightly predicated that the broad definition of the expression 'candidate' as given in Section 79(b) should not be held to be applicable to it.

9. During the course of the arguments before us, it was strenuously contended by learned counsel for the appellant that the phrase 'at any election' which is to be found in the definition of the word 'candidate' in Section 79(b) has a special significance and that having regard to that, the definition of 'candidate' should be limited to that of a candidate who actually contests the poll, and if that be so, ;a 'withdrawn candidate' even though he was validly nominated, would naturally fall outside the ambit of this definition. This argument, in our opinion, is clearly untenable for the simple reason, that if the Status of a candidate were to be confined to such a person only, then a candidate whose nomination paper stands rejected must fall outside this definition, and, further, there can be no question of considering a person to be a candidate even prior to the time when nominations should fall to be made and when an election is merely in prospect.

That being so, we are categorically of the opinion that the phrase 'at any election' used with reference to the word 'candidate' in Section 79(b) cannot be given the meaning contended for by learned counsel for the appellant. We should also like to point out here that the expression 'election' is, in itself, a word which is used in more senses than one, and while in its limited sense, it may mean the 'actual poll', in its wider sense it certainly embraces the entire process of election, that is, right from the stage when a written notice in connection with the holding of the election is given to a constituency down to the stage when the Returning Officer declares the result of theelection. See Tek Chand v. Banwari Lal, ILR (1956) 6 Raj 910 : (AIR 1956 Raj 185) to which one of us was a party.

10. Again, so far as the definition of the word; 'candidate' as given in Section 79(b) goes, we should like to stress even at the risk of repetition, that a person may be lawfully considered to be a candidate even before a constituency is given a written notice or called upon to elect a candidate or candidates, and this would occur, where an election is in prospect and a person starts holding himself out as a candidate in that election. We, therefore, overrule this contention as unsubstantial.

11. In the next place, it was contended that the definition of the phrase 'electoral right' as given in Clause (d) of Section 79 would be enough to show that when a person withdraws from being a candidate, he would cease to be so. Section 79(d) reads as follows : -

' 'Electoral right' means the right of a person to stand or not to stand as, or to withdraw from being, a candidate, or to vote or refrain from voting at an election.'

The answer to this contention, in our opinion, is two-fold. In the first place, the definition of the phrase 'electoral right' given in Clause (d) cannot be legitimately used to qualify or detract from the definition of the word 'candidate' as given in Clause (b) of the same section. In the second place, it clearly seems to us that the word 'candidate' in the phrase 'to withdraw from being a candidate' as used in this clause is used in a limited sense, and that sense is readily suggested from the context of the provision itself with the result that when a person is said to withdraw from being a candidate, with reference to his electoral right, the idea sought to be conveyed is that he ceases to be a candidate any longer in the sense of a contesting candidate. There is, therefore., nothing in this objection either, and we hereby overrule it.

12. In the view we have felt persuaded to take, therefore, we are unable, with all respect, to agree with the interpretation of Section 82 adopted by the learned Judges of the Patna High Court-in AIR 1959 Pat 250 (Supra): We should also like to point out that that interpretation was seriously doubted by another Division Bench of the same High Court in Badri Narain v. Kamdeo Pra-sad Singh, AIR 1961 Pat 41, although the learned Judges were content to follow the previous decision of their own Court in support of the conclusion at which they ultimately arrived.

13. We should also like to invite attention to a decision of their Lordships of the Supreme Court in S.B. Adityan v. S. Kandaswami, AIR 1958 SC 857. The facts of this case were that in the 1957 general elections, nine persons filed nomination papers for election to the Madras Legislative Assembly from a certain constituency. All these-were found, on scrutiny, to be valid. Of these two candidates, namely M. R. Menganathan and G. E. Muthu and three other persons did not go to the poll with the result that the election was contested by the appellant and Kandaswami and two other candidates only. Kandaswami preferred ' an election petition praying that the election of the appellant be declared to be void. The appellant was of course made a first respondent butMeganathan and Muthu were not made parties at all.

Some of the other candidates at the election were, however, made parties to the election petition; but it is unnecessary to refer to them. The appellant made an application to the Election Tribunal on the ground that the allegations of corrupt practice had been made against Meganathan and Muthu, and, therefore, they should have been made parties to the petition under Section 82 and that as that had not been done, the defect was fatal under Section 90 (3) of the Act. The answer of the returned candidate to the application was that no allegation of corrupt practices had been made against Meganathan or Muthu, and, therefore, it was not necessary to implead them as respondents in the petition. This contention was accepted by the Tribunal as well as by the High Court. On appeal to the Supreme Court, this is how the position was summed up by their Lordships in so far as the question whether Meganathan and. Muthu were candidates is concerned :-

'It is not in dispute that Meganathan and Muthu were candidates. 'A candidate has been denned in Sectipn 79 of the Act as meaning among others a person who has been duly nominated as a candidate at any election and both Meganathan and Muthu had been so nominated.

The only question that arises in this appeal is whether allegations of corrupt practice are made against them in the election petition.'

(The underlining (here in ' ') is ours.)

This supports our view that a person who is valid-ly nominated at an election is a candidate within the meaning of Section 79 of the Act and when allegations of corrupt practice are proved to have been made against him, he would be a necessary respondent to an election petition within the meaning of Section 82(b).

14. We should also like to refer to another decision of their Lordships of the Supreme Court reported in the same volume, AIR 1958 SC 687, Kamaraja Nadar v. Kunju Thevar, which bears on an analdgous point. The question there was whether a person who had giyen a notice of retirement tinder Section 55A(2) of the Act, as it stood at the relevant time (this section has since been repealed from the Act as now amended) would be a 'contesting candidate' for the purposes of Section 82 of the Act, notwithstanding his retirement from the contest. It was held that a contesting candidate whose name was included in the list under Section 38 but who retired from the contest under Section 55A(2) continued to be a 'contesting candidate' for the purposes of the Act, though by reason of such retirement, it would not be necessary for the constituency to cast its votes in his favour at the poll, and that such a candidate was a contesting candidate for the purposes of Section 82 of the Act, notwithstanding his retirement from the contest under Section 55A(2).

It is true that the provision as to the retirement of a candidate after the list of the contesting candidates is published under Section 38 has not been retained in the Act as now amended. We have no hesitation in saying that the decision referred to above clearly goes a long way to support

the view we have felt persuaded to take, the simple reason being that there can be no essential, difference between a candidate who retired under Section 55A(2) and a candidate who withdraws himself under Section 37 of the Act.

15. Before concluding our discussion on this aspect of the case, we think it proper to refer to Sections 140 and 141 of the Act, as, in our opinion, they disclose the object behind the enactment of the provisions contained in Section 82(b). Section 140 lays down that the corrupt practices, specified in Section 123 shall entail disqualification, for membership of Parliament and of the Legislature of a State for a period of six years counting, from the date on which the finding of the Election Tribunal as to such practice takes effect under this Act. Section 141 provides, among other things, that if any person, after the commencement of this Act upon the trial of an election petition under Part VI is found guilty of any corrupt practice, he shall, for a period of six years from the date on which such finding takes effect, be disqualified for voting at any election.

16. We may as well refer to Sections 98 and 99 in this connection. Section 98 enacts that at the conclusion of the trial of an election petition, the Tribunal shall make an order (a) dismissing the election petition or (b) declaring the election of all or any of the returned candidates to be void or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to haye been duly elected. Then follows Section 99 which provides, inter alia, that at the time of making an order under Section 98, the Tribunal shall, also make an order where any charge is made in the petition of any corrupt practice having been committed at the election recording a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature thereof, and 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 the same.

There is a proviso to this section and that also requires to be noticed at this place. The effect of that proviso is that where a person who is not a party to the petition and the Tribunal comes to the conclusion that he is guilty of a corrupt practice, then such a person will not be named as having committed such practice unless a notice-has been given to him to appear before the Tribunal and to show cause why he should not be so named and on his appearing in pursuance of the notice, an opportunity has also to be afforded to him to cross-examine any witness who has already been examined by the Tribunal and has given evidence against him as also of calling evidence in his defence and of being heard.

17. We should like to point out at this June-tare that there are two fundamental principles which are well settled in the trial of election disputes. The first is that the election of a candidate who has been declared successful at an election as a result of the verdict given by the electorate in his favour should not be lightly disturbed. The second principle which is equally well-settled is that a high standard of purity and uprightnessmust be maintained in the conduct of all elections. For, if that is not done, the very foundation of the fabric of democracy will stand in greatdanger of being polluted at its very source than which nothing could be more disastrous. It clearly seems to us therefore that it is in order to maintain the purity of the elections that the Legislature has been at such great pains in providing for investigation into and punishment of the corrupt practices alleged to have been committed by the candidate himself or by his : agent or by any other person with his consent which may be express or implied. That is why Section 140 lays down that of upon the trial of an election petition any person as found guilty of any corrupt practice, he shall bedisqualified for membership of Parliament or theLegislature of a State as the case may be and Section 141 further provides that he shall be disqualified, even for voting at any election for a likeperiod.

It will be observed that these provisions donot apply to, a, candidate merely and are wide enough to include other persons and, therefore, under Section 99, the gist of which we have given above, it will be perfectly open to a Tribunal to name any person for having committed a corrupt practice after a reasonable opportunity of defence has been afforded to him. It seems to us however that the Legislature was of the view that in the case of a person who has set himself up as a candidate and whose nomination has been validly accepted, a more stringent provision was called for in the interest of the purity of the election and that 'such a' person must necessarily be made a party respondent to an election petition from the very inception of it where allegations of corrupt practice have been made against him with a view to avoid delay and evasion in the carrying out of the provisions referred to above and that is the objective behind the provision contained in Section 82(b) and a complete justification for the view which we have felt persuaded to take as tothe interpretation of this section.

18. We, therefore, come to the conclusion that a candidate after he has been validly nominated under Section 36 but thereafter withdraws himself under Section 37 is a candidate within the meaning of Section 82(b) so that where allegations of any corrupt practice are made as respect's him in the petition, he must be joined as a respondent to such a petition. We hold, accordingly.

19. A further contention was raised before uson behalf of the appellant by which his learned counsel strongly tried to exclude the present casefrom the impact of the interpretation of Section 82(b) which we have accepted above and that isthat before such a candidate can be legitimately held to be a necessary respondent to an electionpetition, the allegations of corrupt practice mustbe made against him in his capacity as a candidateand not otherwise. It, was contended that thatever allegations of corrupt practice were made inthe present case against Shri DamodarprasadSharma, were made against him not as a candidateby himself but as an election agent of the respon-dent Govind Sahai. The argument is ingeniousbut in our opinion entirely unsound. Section 82,quoting its material portion, runs thus:

'A petitioner shall join as respondents to his petition --

X X X(b) any other candidate against whom' allegations of any corrupt practice are made in the petition.

As held above, Shri Damodarprasad Sharma must be held to be a candidate within the meaning of this provision. There is no dispute before us that allegations of corrupt practice were made against him. Indeed, that is common ground between the parties. The line of defence on this aspect of the case, however, is that this person was an agent of the respondent and that it was in that capacity that allegations of corrupt practice were made against him. The, first thing that we should like to point out in this connection is that whether Shri Damodarprasad Sharma was an election agent of the contesting respondent or not, as soon as he is held to be a candidate within the ambit of the phrase any other candidate' employed in Section 82(b), he does not cease to be so, and must be treated as such for the purposes of this provision, and, therefore, there is nothing in Section 82(h) by which we could take out the case of a person like this from the purview of that provision.

20. In the second place, the acceptance ofthe submission made on behalf of the appellantwould involve our adding certain words to Section 82(b) such as 'in his capacity as a candidate which are not to be found there. It is awell-established principle of the interpretation ofstatutes that a Court of law can have no warrantfor'interpreting a Statute on the basis' of certainwords which are riot to be found there. As welook at the matter, Shri Damodarprasad Sharmaeven though he was an election agent of the respondent Shri Govind Sahai, continued to remain acandidate at the election in question for the purposes of Section 82(b), and that being so, is allegations of corrupt practice have admittedly beenmade against him in the election petition, his casesquarely falls to be governed by the provisioncontained therein and consequently he was and isa necessary respondent to the election petition. Insupport of this view, reference may be made toChaturbhuj v. Election Tribunal, Kanpur, AIR1958 All 809 and B. T. Bhosle v. M. S. Aney,AIR 1961 Bom 29.

21. If that is the correct conclusion to come to on both the aspects of the case, as we think it is then there is no escape from the conclusion that there was non-compliance with the provision of Section 82(b) of the Act and that being so Section 96(3) is immediately attracted into, application That section says that where Section 82 has hot, been complied with, the tribunal shall dismiss an election petition notwithstanding that it may not have been dismissed by the Election Commission under Section 85 which lay's down a rule to the same effect so far is the Election Commission is concerned. We hold accordingly.

22. For the reasons mentioned above, this appeal fails and is hereby dismissed with costs. We assess the counsel's fee at Rs. 200/- for this Court.


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