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TMI Blog2001 (2) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... le Act, 1951 (for short `the RPA) and sought for further declaration that he should be declared as elected. One Sampatrao Yadav Deshmukh was elected to the Maharashtra State Assembly from Bhilawadi-Wangi Constituency No. 270 of Sangli District in the general election held in the month of March, 1995. He died on 6.5.1996. Consequently, a notification was issued on 13.9.1996 for holding bye-election to the said Constituency. The last date for filing nomination papers was 20.9.1996. On 18.9.1996 the appellant, the respondent no. 1 and one Sampatrao Chavan filed nomination papers. Sampatrao Chavan withdrew his candidature on 23.9.1996, which was the last date for withdrawal of nomination papers. The final list of contesting candidates was published on the same day wherein the appellant and the respondents 1-6 were left in the field. Sampatrao Chavan after withdrawal of his candidature became the election agent of the respondent no. 1. Polling took place on 11.10.1996. After counting the respondent no. 1 was declared elected on 13.10.1996 having secured 72,526 votes being the highest. In the election petition, allegations were made against the respondent no. 1, his agents, supporters a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegations of corrupt practice against another candidate, whether contesting candidate or not, he has to be impleaded; clause (b) is wide enough to include even a non- contesting candidate, who had withdrawn from the contest either before committing a corrupt practice or after committing it. 4. In terms of Section 123 corrupt practices mentioned therein can be committed not only by the candidate himself but also by his election agent or other agent or any other person with his consent or the consent of his election agent such allegations of corrupt practice made are against the candidate himself and he alone is made liable to answer the same as a necessary party to the election petition; therefore, for any alleged corrupt practice committed by an election agent, who is the alter ego of the candidate, the candidate alone has to be impleaded and his election agent need not be impleaded at all under Section 82; if, however, the High Court comes to the conclusion after considering the evidence on record that the election agent is also to be named as having committed the corrupt practice, notice has to be given to him under the proviso to Section 99(1)(a)(ii). 5. If two interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 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. 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 - ................. (2)-(7)............................ Section 99. Other orders to be made by the High court (1) At the time of making an order under section 98 [the 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, regarding (i) a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; and (ii) the names of all persons, if any, who have been proved at the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was not joined as a respondent in the election petition; in the election petition the appellant in addition to seeking election of respondent no. 1 to be void had sought for further declaration that he should be declared as elected. As per Section 82 the appellant was required to join all the contesting candidates other than himself and further he had to join any other candidate against whom allegations of any corrupt practice were made in the petition. Even though Sampatrao Chavan had withdrawn his candidature after it had been duly accepted and notified he could not go out of the definition of candidate within the meaning of Section 79(b). This position is made amply clear by various pronouncements of this Court. Even the learned counsel for the appellant could not dispute this position but he made efforts to distinguish the case on hand stating that Sampatrao Chavan after withdrawing his candidature had become the election agent of respondent no. 1; the respondent no. 1 having been impleaded under Section 82(a) there was no need to implead his election agent Sampatrao Chavan; there was merger of personality between the respondent no. 1 and Sampatrao Chavan inasmuch as all act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial. Under Section 99, the High Court has to make other orders regarding (i) a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of corrupt practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of corrupt practice and its nature. But before naming any person who is not a party to the election petition, he has to be given an opportunity to show cause and hearing. Thereafter action shall be taken under Section 8A against all the persons who are found guilty of corrupt practice and so named. Thus it is clear that Section 82 deals with an election i.e. parties to the election petition in relation to the reliefs claimed whereas Section 99 deals with the action to be taken against all persons found guilty of corrupt practices and to name them for further action under Section 8A. Section 82 is mandatory in relation to joining of respondents mentioned therein. Section 86(1) does not leave any option to the High Court but to dismiss an election petition for non-compliance of Sections 81, 82 and 117. Section 82 speaks of impleading of the respondents in the election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 8A the case of every person found guilty of a corrupt practice by an order made under Section 99 shall be submitted to the competent authority for determination of the question as to whether such person shall be disqualified and, if so, for what period provided the period of disqualification shall not exceed six years from the date on which the order made in relation to a person under Section 99 takes effect. Corrupt practice is not confined only to a returned candidate, it can be committed by the persons mentioned in Section 123 and no one can be allowed to escape consequences of Section 8A, the object being to maintain the purity in the election process. Fair and free elections are essential requisites to maintain the purity of election and to sustain the faith of the people in election itself in a democratic set up. Clean, efficient and benevolent administration are the essential features of good governance which in turn depends upon persons of competency and good character. Hence those indulging in corrupt practices at an election cannot be spared and allowed to pollute the election process and this purpose is sought to be achieved by these provisions contained in the RP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rale, Taluka Tasgaon, District Sangli. This apart, one thing is clear that since he did not cease to be a candidate within the meaning of Section 79(b), as already discussed above, his non-joining as respondent in the election petition was fatal. Almost in an identical case, this Court, in Natau Ram Indra Singh vs. Trikamal Jamandas Patel and others [37 ELR 267] has held that a person who had been nominated as a candidate for an election and had since withdrawn his candidature was for the purpose of Section 82 a candidate and he must be impleaded in a petition if any allegations of corrupt practice were made against him, whether committed before or after his withdrawal in the election petition. That was also a case where the appellant had filed an election petition on 10.4.1967 to set aside the election of first respondent and for a further order that the fourth respondent be declared elected. In the petition it was averred that the first respondent and his election agent Jamna Shanker Pandya and other agents with their consent had committed corrupt practices within the meaning of Section 123(3), (3A) and (4) of the RPA. Jamna Shanker Pandya had filed his nomination for election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party under Section 82 (b) of the Act. We are therefore of opinion that the view taken by the Patna High Court on which reliance has been placed on behalf of the appellants is not correct and the decision of the High Court under appeal is correct. The view that a candidate, who is duly nominated, continues to be a candidate for the purpose of Section 82(b) in spite of withdrawal is supported by the decisions of Har Swarup (supra) and Amin Lal vs. Hunna Mal [1965 (1) SCR 393]. This Court referring to the said decisions in Mohan Raj vs. Surendra Kumar Taparia and others [AIR 1969 SC 677] agreed with the said view. Further the decision in Chaturbhuj vs. Election Tribunal Kanpur [AIR 1958 All 809] taking the same view after elaborate consideration on all aspects touching the question is approved. Dealing with the applications made for impleadment under Order I Rule 10 and amendment under Order 6 Rule 17, in para 10 of the same judgment, this Court has stated thus: No doubt the power of amendment is preserved to the Court and O. 1 R. 10 enables the Court to strike out parties but the Court cannot use O. 6 R. 17 or O. 1 R. 10 to avoid the consequences of non-joinder for which a special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Eduardo Martinho [(2000) 7 SCC 472], agreeing with the exposition of law made in the cases of Har Swarup, Mohan Raj and Ram Partap Chandel aforementioned, this Court in para 13, concluded thus:- 13. In our opinion, the allegations which have been made in the election petition are allegations of corrupt practice against Cardozo besides some others. Since Cardozo was a nominated candidate, it was necessary to implead him as a party-respondent under Section 82(b) of the Act, irrespective of the fact that before the actual date of election, he had withdrawn his candidature and allegedly committed the corrupt practice after his withdrawal from the election. Thus, the answer to the question posed in the earlier part of the judgment is in the affirmative. No arguments were advanced in support of Civil Appeal Nos. 2080-2081 of 1998. Even otherwise in view of decisions in Natau Ram Indra Singh vs. Trikamal Jamandas Patel and others [37 ELR 267] and Mohan Raj vs. Surendra Kumar Taparia and others [AIR 1969 SC 677] there is no merit in these appeals. Thus having regard to all aspects, we do not find any infirmity in the judgment and order impugned in these appeals which may warrant inter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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