TMI Blog2001 (2) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1951, aggrieved by the judgment and order dated 29.1.1998 of the High Court of Judicature at Bombay made in election petition No. 5 of 1996. Since the election petition was dismissed upholding the preliminary objection by the respondent no.3, we consider it unnecessary to narrate the pleadings and facts in detail. However, the relevant and material facts, which are considered necessary for the disposal of these appeals, briefly stated, are the following. The appellant filed election petition No. 5 of 1996 impugning the election of the respondent no. 1 to be void under section 100(1)(b) and 100(1)(d)(ii) and 100(1)(d)(iv) read with section 123(4) of the Representation of People 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rieved by allowing chamber summons no. 72/98 and dismissing chamber summons no. 93/98. Shri P.P. Rao, learned senior counsel for the appellant, contended: 1. Once a contesting candidate is impleaded under Section 82(a) of the RPA, Section 82(b) does not come into play at all if the allegations of corrupt practice are made against a contesting candidate because of the additional declaration prayed for. 2. In clause (b) the words any other candidate do not include a contesting candidate impleaded under clause (a) even if allegations of corrupt practice are levelled against him. 3. In a petition merely claiming a declaration that the election of the returned candidate is void on 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or not, he has to be impleaded; clause (b) is wide enough to include even a non- contesting candidate, who had withdrawn from the contest either before committing a corrupt practice or after committing it. 4.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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he added that the law is already settled by this Court on the point in controversy. We think, it is appropriate to extract the relevant provisions of the RPA to the extent required, for the purpose of immediate reference and focus on them for appreciating the rival contentions raised by the learned counsel for the parties. Section 79. Definitions In this Part and in [Part VII] unless the context otherwise requires (a) ............................. (b) candidate means a person who has been or claims to have been duly nominated as a candidate at any election; (c) ............................. Section 82. Parties of 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 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) of Section 79, has been amended by Act 40 of 1975 retrospectively. Therefore, the distinction between a candidate who has withdrawn and a candidate who has continued till the contest is over is of no relevance. It is not disputed that the nomination filed by Sampatrao Chavan had been accepted and a list of validly nominated candidates including that of Sampatrao Chavan was affixed on the notice board as required under Section 36(8). He withdrew his candidature on 23.9.1996 as per Section 37(1); thereafter a list of contesting candidates was published under Section 38(1); in the election petition filed, corrupt practices were alleged against the respondent no. 1 and his election agent Sampatrao Chavan besides others; 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 tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent no. 1 subsequently after withdrawal of his candidature, he did not cease to be a candidate within the meaning of Section 79(b). Sections 82 and 99 are independent and are to serve different purposes. Sections 82 to 84 are included in Chapter II of the RPA dealing with the presentation of election petitions. Section 82 speaks of the parties to be joined in the petition and Section 84 states as to the relief that may be claimed by the election petitioner. Chapter III contains Sections 86 to 107 relating to trial of election petitions and section 99 indicates as to other orders to be made by the High Court at the time of making an order under Section 98 concerning the relief/reliefs to be grated at the conclusion of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong and obvious reasons to the contrary ....... (p.331) (of SCC)(at pg. 301 of AIR). Thus when there is an ambiguity in terms of a provision, one must look at well-settled principles of construction but it is not open to first to create an ambiguity which does not exist and then try to resolve the same by taking recourse to some general principle. It must be remembered in relation to a returned candidate if the allegations of corrupt practices are established, two consequences follow (1) his election will be declared as void and (2) he shall be disqualified to contest or vote at any election for a period up to six years. Against all others, who are found guilty of corrupt practices other consequences shall follow. Under Section 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the election petition, which reads: - (h) On 10.10.1996, at about 10 A.M., Shri Sampatrao Chavan, the election agent of Respondent No. 1 was himself distributing the said reconstructed handouts/bills in respect of the said news item to various people in the village Nagrale, Taluka Tasgaon, District Sangli and was indulging in publication of statement of fact which is false and which he believed to be false and did not believe to be true in relation to the personal character and conduct of the petitioner for prejudicially affecting the petitioners election prospects. Other workers of Respondent No. 1 (along with said Shri Sampatrao Chavan) were also distributing the reconstructed handouts/bills to various people of village Nagrale, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismiss the election petition. This Court, in Har Swarup and another vs. Brij Bhushan Saran and others [AIR 1967 SC 836], expressed the opinion that if the effect of withdrawal is said to be that a person nominated can no longer be considered to be a candidate only after his withdrawal, the date of withdrawal cannot be a dividing line as to the time upto which he can be treated as a candidate and the time after which he cannot be treated as a candidate. If purity of elections has to be maintained a person, who is a candidate as defined in S. 79(b) of the Act, will remain a candidate even after he withdraws till the election is over, and if he commits a corrupt practice whether before or after his withdrawal he would be a necessary 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. Hun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidates and sub-section (b) uses the words any other candidate. The combined effect of sub-sections (a) and (b) is, plainly, to require the impleadment in an election petition of all candidates at an election against whom allegations of corrupt practice are made. This would apply not only to those who actually contested the election, but also to those who stood for election but withdrew their candidature before the polling date. The person being the same, it is of no consequence that the allegation of corrupt practice is made in relation to a point of time when the candidature had been withdrawn and the person was now acting as the agent of a contesting candidate. Yet in another recent judgment in Gadnis Bhawani Shankar, V. vs. Faleiro 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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