http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: HAR SWARUP & ANOTHER

       Vs.

RESPONDENT: BRIJ BHUSHAN SARAN & OTHERS

DATE OF JUDGMENT: 14/09/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHELAT, J.M. MITTER, G.K.

CITATION:  1967 AIR  836            1967 SCR  (1) 342  CITATOR INFO :  R          1969 SC 677  (9)  E&R        1969 SC 872  (21)

ACT: Representation  of the People Act, 1951-s. 82(b)-"any  other candidate"--meaning of--candidate after withdrawal under  s. 37 committing corrupt practice--whether necessary party to a petition.

HEADNOTE: B  and R were two candidates of the same party for  election to  the  U.P.  Legislative Assembly in  1962.   R,  however, withdrew   his  candidature  within  the  time   fixed   for withdrawal  and  B was eventually elected to  the  Assembly. After  his  election, a petition was filed by  two  electors seeking  to set aside his election on the ground inter  alia that a corrupt practice was committed during the election in that  R,  after  he  had  with,drawn  his  candidature,  had threatened  an elector with a view to get him to vote for  B and obtain others to vote similarly. The  Election  Tribunal held that the threat  complained  of amounted to a corrupt practice within the meaning of Section 123(2)  ’read  with the proviso (a)(i)  thereof,  that  this corrupt  practice  was committed by R and it  was  therefore necessary  to join him as a respondent to the petition.   As this was not done, the Tribunal dismissed the petition.   An appeal to the High Court was also dismissed. in the, appeal to this Court it was contended, on behalf  of the  appellants,  firstly, that there was no  allegation  of corrupt practice against R, and secondly, that in any  event R could not come within the meaning of the words "any  other candidate" used in Section 82(b) inasmuch as he withdrew his candidature as provided in Section 37 of the Act. HELD : dismissing the appeal : (i)  It  could  not be said that the allegation  of  corrupt practice  was only against B and not against R. The  primary allegation  was against R though B was also made liable  for the corrupt practice alleged to have been committed by R  on the ground that it was done on his behalf and in furtherance of his election. [344 B-C] (ii) R  continued  to be a candidate as defined  in  Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

79(b)  of  the Act even after he withdrew  his  candidature; therefore if a corrupt practice was alleged against him,  he was  a necessary party under Section 82(b) of the Act.  [347 A-B] if  a  candidate  committed a corrupt  practice  before  the withdrawal   of  his  candidature  under  Section  37,   the provisions of Section 82(b) would clearly apply and he would be a necessary party.  There was no reason ,why he could not be  a  candidate  for the purpose of  Section  82(b)  simply because   he   committed  a  corrupt  practice   after   his withdrawal. [346 El Kapildeo  Singh v. Suraj Narayan Singh, A.I.R.  [1959]  Pat. 250: disapproved; Mohan Singh v. Bhanwarlal & Others, [1964] 5 S.C.R. 12 and Amin Lal v. Hunna Mal, [1964] I S.C.R. 393 : referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1141  of 1965. Appeal from the judgment and decree dated April 17, 1963  of the Allahabad High Court in.  First Appeal No. 2 of 1963. 343 Naunit Lal, for the appellants. Veda Vyasa and K. K. Jain, for respondent No. 1. The Judgment of the Court was delivered by Wanchoo,  J.  This appeal on a certificate  granted  by  the Allahabad  High Court raises the question of  interpretation of s.     82  (b) of the Representation of the  People  Act, No.  43 of 1951, (hereinafter referred to as the Act).   The facts  necessary  for present purposes are  these.   In  the election  to  the U.P. Legislative Assembly from  Dehra  Dun City  constituency in 1962, Brij Bhushan;  Saran  respondent was  one  of the candidates and was declared  elected.   One Raturi Vaid was another candidate at the same election.   He however  withdrew his candidature within the time fixed  for withdrawal.   He belonged to the same party as the  returned candidate  and  worked  for him.   After  the  election,  an election petition was filed by two electors praying that the election of Brij Bhushan Saran be set aside, and one of  the grounds  with  which alone we are concerned in  the  present appeal was that Raturi Vaid had threatened an elector  after the  date  of his withdrawal from the candidature  that  the elector’s bones would be broken if he did    not  cast   his vote for Brij Bhushan Saran and also did not work for  him and persuade others to vote for him.  The Election Tribunal  held that this amounted to a corrupt practice within the meaning  of s. 123(2) read with the proviso (a)(i) thereof.  It  further held  that  as  this corrupt practice  was  committed  by  a candidate, namely, Raturi Vaid, it was necessary to join him as  respondent to the petition.  As this was not  done,  the Tribunal dismissed the petition under s. 90(3) of the Act. Thereupon  there  was an appeal to the  High  Court,  which. upheld  the  view  taken by the Tribunal.   The  High  Court however  granted a certificate to appeal to this Court;  and that is how the matter has come before us. It  is  not  in dispute now that the  allegation  made  with respect  to  the conduct of Raturi Vaid would  amount  to  a corrupt practice within the meaning of s. 123(2) of the Act. What  is  however  contended is firstly that  there  was  no allegation  of  corrupt practice against  Raturi  Vaid,  and secondly  that  even if that was so, Raturt Vaid  could  not come  within the meaning of the words "any other  candidate" used in s. 82(b) inasmuch as he withdrew his candidature  as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

provided in s. 37 of the Act. We  are  of  opinion that there is no  force  in  the  first contention raised on behalf of the appellants.  There is  no doubt  that the allegation was that it was Raturi  Vaid  who gave  the  threat, though it was alleged that he did  so  in furtherance of the election of Brij Bhushan Saran and on his behalf.  Whatever may be the effect 344 of such a threat held out by Raturi Vaid on the election  of Brij  Bhushan  Saran, the primary allegation  certainly  was that  it  was  Raturi Vaid who  had  committed  the  corrupt practice,  though Brij Bhushan Saran was also alleged to  be party  to it and therefore liable for the consequences.   In these  circumstances  it is impossible to  accept  that  the allegation of corrupt practice was only against Brij Bhushan Saran and not against Raturi Vaid.  As we have said already, the primary allegation was against Raturi Vaid, though  Brij Bhushan Saran was also made liable for the corrupt  practice alleged to be committed by Raturi Vaid on the ground that it was  done on his behalf and in furtherance of his  election. It  must therefore be held that there was an  allegation  of corrupt practice against Raturi Vaid in this case. This  brings us to the main question raised in  the  present appeal,  namely, whether Raturi Vaid can be said to be  "any other  candidate"  within the meaning of those words  in  s. 82(b).   In  this  connection,  the  appellants  rely  on  a decision of the Patna High Court in Kapildeo Singh v.  Suraj Narayan Singh(1), which certainly is in their favour.   That decision however has not been accepted by the Allahabad High Court which took the view that even though Raturi Vaid might have  withdrawn his candidature under s. 37 of the  Act,  he would   certainly  be  covered  by  the  words  "any   other candidate" in s. 82(b). The word "candidate" has been specially defined in s.  79(b) for the purpose of parts VI, VII and VIII of the Act, and s. 82(b) with which we are concerned is in Part VI.   According to  this  definition, a "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.   It  cannot be and has not  been  disputed  that Raturi  Vaid is covered by this definition, for he was  duly nominated though he later withdrew his candidature under  s. 37  of  the  Act.  What is however contended  is  that  even though   Raturi  Vaid  might  be  a  candidate  within   the definition of s. 79(b), this is a case where in the  context of  s.  82  (b),  the words "any  other  candidate"  mean  a candidate  who  has not withdrawn under s. 37  of  the  Act. Part VI provides for disputes regarding election and  begins with  s. 79, which defines certain words including the  word "candidate"  as used in this Part.  Section 80 provides  for an  election  petition and s. 81 for  presentation  of  such petition  and other matters.  Then comes s. 82 which  is  in these terms               "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               (1) A.I.R. 1959 Pat. 250.               34 5               the  returned  candidates is  void,  claims  a               further  declaration  that he himself  or  any               other candidate has been duly elected, all the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             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." The  terms  of  s. 82 show what persons must  be  joined  as respondents to an election petition.  Clause (a) shows  that where  a petitioner is only claiming a declaration that  the election  of all or any of the returned candidates is  void, he  has to join all the returned candidates to the  petition and  no more.  Further, 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, he has to join not only the returned candidates but all  the  contesting  candidates.   So  far  as  the   words "returned   candidates"  and  "contesting  candidates"   are concerned,  there is no difficulty as to what they mean.   A returned  candidate  is  one  who has  been  elected  and  a contesting candidate is one who has not withdrawn his candi- dature  under  s. 37.  It is true that in cl. (a) of  s.  82 where we find the words "he himself or any other candidate", "any  other  candidate"  there means  any  other  contesting candidate.  That is clear from the context, for there is  no question  of  declaring  a  person  who  has  withdrawn  his candidature  as duly elected.  But the same in  our  opinion cannot  be said of the words "any other candidate"  used  in cl.  (b)  of s. 82.  There is no indication in  cl.  (b)  to suggest  that  "any  other  candidate"  only  refers  to   a candidate who has not withdrawn his candidature under s. 37. The  use  of the words "any other candidate" in cl.  (b)  is really  in  contrast to the candidates who are  to  be  made parties under cl. (a).  Under cl. (a) persons who are to  be made parties to the petition are- (a)  returned candidates, (b)  contesting candidates, depending  upon  the  kind of  declaration  claimed  in  the petition.   Where,  for  example, there is no  claim  for  a further  declaration in an election petition, only  returned candidates would be made respondents under cl. (a).  But  if there  are  allegations  of  corrupt  practice  against  any candidate  other than the returned candidate, he would  have to  be made a party under cl. (b) as "any other  candidate". Similarly  where a declaration is asked for in the  petition that  a particular candidate has been duly elected, all  the returned candidates as well as all the contesting candidates have to be made parties 346 under  cl. (a).  Even in such a case if there is  allegation that any other candidate besides the returned candidates and the  contesting  candidates  has  been  guilty  of   corrupt practice,  cl.  (b) requires that he should also be  made  a respondent.   There is in our opinion no reason for  cutting down  the meaning of the word ,,candidate" as defined in  S. 79(b) for the purpose of S. 82(b) in the manner suggested on behalf  of  the  appellants, namely, that in  S.  82(b)  the candidate is only one who has not withdrawn his candidature    und er s. 37. We are    of  opinion that the context does not  so  require and as a matter of  fact  it does appear necessary  to  give the  full  meaning to the word "candidate" in  s.  82(b)  as defined  in  S. 79(b).  Take the case of a,  candidate  like

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

Raturi  Vaid who was apparently an alternative candidate  of the  party  to  which Brij Bhushan Saran  belonged  and  who withdrew   his  candidature  after  Brij   Bhushan   Saran’s nomination was accepted.  Suppose that instead of committing the alleged corrupt practice after he withdrew his  candida- ture,  Raturi Vaid was alleged to have committed  it  before his withdrawal.  In such a case it is conceded on behalf  of the  appellants that till the withdrawal under s. 37 of  the Act,  the  person  withdrawing is- still  a  candidate  for, according  to the appellants, it is only after he  withdraws that  he can no longer be called a candidate.  So if  Raturi Vaid  had committed the alleged corrupt practice before  the date of his withdrawal under s. 37 he would, even  according to  the appellants, be a’ candidate at the time when  he  is said  to have committed the corrupt practice and would be  a necessary  party under S. 82(b).  We however see  no  reason why he could not be a candidate for the purpose of s. 82(b), simply  because  he committed the alleged  corrupt  practice after  his withdrawal.  Purity of elections is a  matter  of great  importance, and it is for the purpose of  maintaining this purity that we have the provisions contained in S.  123 of  the  Act.   There is also no doubt that  if  a  covering candidate (like, Raturi Vaid) is not treated as a  candidate till the date of his withdrawal, he would be free to  commit all kinds of corrupt practices defined in s. 123 of the Act, on  behalf of the candidate whom he covers,  with  impunity. This  could not be the intention of the Act and that is  why learned  counsel for the appellants had to concede  that  if the  alleged corrupt practice had been committed before  the date  of withdrawal won necessary to join Raturi Vaid  as  a respondent under S. 2 (b).  But the argument is that as  the alleged corrupt practice was committed after the date of his withdrawal he would not be a candidate within the meaning of s.  82(b).   We are of opinion that if the effect  of  with- drawal  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 can- 347 not  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 s. 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. We  may  in this connection refer to two decisions  of  this Court. In Mohan Singh v. Bhanwarlal & others(1), it was held that by the definition of the word "candidate" in s.  79(b), the expression any other candidate" in s. 82(b) must include a  candidate  who had withdrawn his candidature.   The  same view was taken in Amin Lal v. Hunna Mal(2).  In that case it was held that a duly nominated candidate though he  withdrew his candidature within the time permitted by the Rules  must for  the purpose of s. 82 be still regarded as a  candidate. It has been urged that the point was not contested in  these two cases and therefore the decision therein is not binding. With  respect,  we agree with the view taken  in  these  two cases  for the reasons which we have already given.   It  is not disputed that if Raturi Vaid was a candidate within  the meaning of that word in s. 82(b), the election petition  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

liable to be dismissed under s. 90(3) of the Act. The  appeal  therefore fails and is  hereby  dismissed  with costs. R.K.P.S.                                   Appeal dismissed. (1)  [1964] 5 S.C.R. 12. (2)  [1965] 1 S.C.R. 3193. M15 Sup.  CI/66 9 348