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PETITIONER: MOHAN RAJ

       Vs.

RESPONDENT: SURENDRA KUMAR TAPARIA & ORS.

DATE OF JUDGMENT: 12/08/1968

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) MITTER, G.K.

CITATION:  1969 AIR  677            1969 SCR  (1) 630  CITATOR INFO :  E          1978 SC1583  (7)  R          1982 SC 983  (10)

ACT: Representation of the People Act (43 of 1951), ss. 79, 82(b) and  86(1)-’Candidate’,  if  includes a  candidate  who  has withdrawn-Code of Civil Procedure (Act V. of 1908), O.I.  r. 10  and  O.VI.  r.  17-Non-joinder  of  necessary  party  to election petition-Whether petition can be saved by amendment or striking out parties.

HEADNOTE: Seven  candidates  were duly nominated for election  from  a Parliamentary  constituency,  but  two  of  the   candidates withdrew.   The  first  respondent,  who  was  one  of   the remaining   five   contesting   candidates,   was   declared elected.  His election was challenged on various grounds  by the appellant who was an elector.  To the petition, only the returned  candidate  (first respondent) and the  other  four contesting  candidates  were  made parties.   On  the  first respondent’s objection that the allegations were vague,  the appellant  amended his petition.  In his  amended  petition, with respect to one of the grounds, namely, offering  bribes to  voters,  the appellant gave instances of  bribes  having been  offered or paid by the first respondent, his  election agents,  and others.  Two persons  were  referred to as  the election  agents of the first respondent.  One of  them  was one  of  the candidates who had withdrawn and who  was   not made    a  party  to  the  election  petition.   The   first respondent  in  his  written statement  contended  that  the petition   should  be  dismissed  under  s.  86(1)  of   the Representation  of  the People Act, 1951, as  the  candidate against  whom corrupt practices were alleged and who  was  a necessary  party under s. 82(b) was not made a party to  the election petition.  The appellant then filed an  application for  amendment  of his petition wherein he  stated  that  by ’election  agent’  he  never meant  the  candidate  who  had withdrawn,  that there was never any intention to  make  any allegations against that candidate and that his name may  be deleted  from  the  petition,  as  he  was  not  the   first respondent’s  election agent and reference to him was.  made by  inadvertence.   The  High  Court  dismissed          the

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election  petition under s. 86(1). In appeal to this Court, HELD:   (1)  A candidate who is duly nominated continues  to be  a  candidate  for  purposes of  s.  82(b)  in  spite  of withdrawal,  and  if  he  is not  joined  as  a  party  when allegations  of corrupt practice are made against  him,  the election petition shall be dismissed under s. 86(1). [634 D, F; 635 F] Aminlal V. Hunna Mal, [1965] 1 S.C.R. 393 and Har Swarup  V. Brij   Bhushan Saran, [1967] 1 S.C.R. 342, followed. Chaturbhuj V. Election Tribunal, Kanpur,  (1958)   15 E.L.R. 301, approved. (2)  The record showed that allegations of corrupt  practice were made against the candidate who had withdrawn.  It could not be contended by the appellant that the allegations  were made against him not as a candidate but in the character  of an election agent, because, the appellant had himself stated in his application for amendment that the candidate who  had withdrawn   was  not  the  election  agent  of   the   first respondent.  Therefore, the 631 allegations  were  made  against an  individual  who  was  a candidate  within the meaning of s. 82(b) and who had to  be joined as a necessary party to the election petition.   [634 B-C; 636 F-G] (3) The Court cannot use O. VI, r. 17 or O. I, r. 10 of  the Civil  procedure  Code  to avoid the  consequences  of  non- joinder  for  which a special provision, namely  s.  86,  is found  in the Act.  The Civil procedure Code applies to  the trial of election petitions only subject to the provision of the  Representation  of the People Act and the  rules,  made thereunder.  When the Act makes a person a  necessary  party and  provides that the petition shall be dismissed if he  is not joined, the power in the Code, of amendment or to strike out parties. cannot be used at all.  If the deletion  prayed for  by the appellant was granted, every  election  petition can be  by amendment and the provisions of s. 86(1) and  the policy of frae law will be defeated. [636 A-C, D-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1801 of 1967. Appeal  under s. 116-A of the Representation of  the  People Act, 1951 from the judgment and order dated October 10, 1967 of  the Rajasthan High Court in Election Petition No. 13  of 1967. R.M. Hazarnavis and B.R.Agarwala, for the appellant. S.V. Gupte, Sardar Bahadur Saharya,  Vishnu Bahadur Saharya and Yogindra Khusalani, for respondent No. 1. H.K. Puri, for respondent No. 2. The Judgment of the Court was delivered by Hidayatullah,  C.J.  This is an appeal by  the  unsuccessful election petitioner against the judgment of the  High  Court of Rajasthan dated  October 10, 1967.  The election petition was  filed to challenge the election of the first respondent at the Pali Parliamentary Constituency in the Fourth General Elections.   At that election seven nomination  papers  were filed.   Two of the candidates withdrew.  Amongst  them  was one   R.D.  Periwal. There were thus  only  five  contesting candidates.    of  these,  the  first  respondent   obtained 1,47,509  votes.   His closest rival respondent No.  2  (now deceased) obtained 1,21,438 votes.  The remaining candidates got a little over thirty thousand votes between them. The  election petitioner (appellant here) is an  elector  of

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Pali.  In his petition he joined the returned candidate  and the  other  four contesting candidates.  Many  grounds  were urged  in  the  petition.  The first  ground  was  that  the returned  candidate  or his election agent  prompted  hatred against the Congress, appealed to religion and sent  persons dressed as Sadhus preaching that if Congress was returned to power there would be go-hatya and took pledges or oaths from the voters.  The second was that the returned candidate  and his  election  agent  were guilty  of  suppression  of  true expenses  and  filed false returns.  The third  ground   was that  the  candidate  or his  election  agent  obtained  the services  of Government servants in furthering the  election of the returned candidate. 6 3 2 The  last  ground was that the returned  candidate  and  his election  agent  and other persons with the consent  of  the returned  candidate paid and offered bribes between  January 13,  1967  to  February  14, 1967  to  induce  the  electors directly or indirectly to vote for the returned candidate. The  petition was scrutinised and was found to be in  order. The  returned candidate entered appearance on May  15,  1967 and  filed a written statement a month later.  He  took  the objection  that  the allegations were vague and  lacking  in necessary   particulars.  The High Court  thereupon  ordered better and fuller particulars on July 2, 1967.  The election petitioner  was asked to file an application  for  amendment and a draft of the amended petition. This was done but there were objections. The  objections were decided on August 1, 1967. Some of  the allegations  of corrupt practices were deleted for  want  of sufficient particulars.  The other amendments were  allowed. Para.  16  of  the  petition in the  amended  form  read  as follows:               "That  the respondent No. 1 and  his  election               agents      Messrs. R.D. Penwal and Shri Lunia               and  other  persons with the  consent  of  the               respondent  No.   1 paid  and  offered  bribes               between  13-1-67 to 20-2-67  with  the  object               of inducing directly or indirectly electors to               vote for respondent No. 1.               The  following amongst other are some  of  the               instances"                                   (Instances were mentioned) On  August 24, 1967 written statement was filed   in   which an  objection was taken that as R.D. Periwal,  against  whom corrupt  practices  had been alleged, was not  joined  as  a party, the petition was liable to be dismissed under s.  86( 1)   of  the  Representation  of  the  People   Act.    This preliminary  objection was heard by the Judge on August  29, 1967.  Same day an application for amendment of the election petition  was fled.  It was stated in the election  petition that  the  election petitioner had gathered  the  impression that  Inder  Kumar  Lucia was the  election  agent,  from  a telegram  sent  by Lunia; that the name of R.D.  Periwal  in paragraph   16   crept  in  because  of   ’uncertainty   and inadvertence’ and  the reference  to  election  agent  ’came to be made in an omnibus manner’. What this statement  means is  not very clear.  However, it was pointed out that  there was no intention to make any allegation against R.D. Periwal but  two  or  three allegations  of  corrupt  practice  were imputed  to Lunia.  A request was, therefore, made that  the reference   to  ’election  agent’  in  all  the   paragraphs charging,  corrupt  practices should be deleted and  it  was specifically  prayed  that.  the name  of  R.D.  Periwal  in paragraph 16 should also be

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633 deleted.  In short, it was intended to withdraw  allegations against  Periwal.   This  application  was  not   separately considered  by  the  High Court but  the  election  petition itself was dismissed under s. 86(1) since Periwal, who was a duly  nominated  candidate (who withdrew later), had  to  be compulsorily joined under s. 82(b) if allegations of corrupt practice against him were made. It will be noticed, therefore, that in the original election petition   allegations  were  made  against   the   returned candidate or his election agent.  Two of the allegations  of corrupt practice were against the returned candidate and his election  agent.  They were charges of taking assistance  of Government servants and bribing voters.  In connection  with the  bribery charge, no names were mentioned.  In his  reply to  the petition the returned  candidate denied the  charges in  respect of himself and his election  agents  (using  the plural).   In  the  amended  petition,  in  one  place,  the returned candidate and  his, election  agent were  mentioned with  Lunia  as  the  election  agent   and   in   another,. which  we  have quoted  earlier,   two   election   agents,. Lunia   and Periwal were mentioned by name.    The  returned candidate in reply denied that Lunia was the election agent. In the second application for amendment filed on August  29, 1967  attempt was made to withdraw allegations  against  the election  agent  and to delete all  references  to  Periwal. This  was  resisted and it was stated that Periwal  was  the only  election agent appointed by the returned.  candidate.. The question is whether the election petition was liable  to be  dismissed  for  not  joining  Periwal  who  was  a  duly nominated  candidate  and against whom  charges  of  corrupt practice were made ? Mr.  Hazarnavis  contends that the amendments were  made  in answer  to the order for better and fuller  particulars.  He submits  that the original petition did not   name   Periwal although   the amended petition did and the High Court  need not  have  mixed up the two petitions to  find  out  whether Periwal  had  to  be joined or not   According  to-him,  the original  petition could not be dismissed since it  did  not name   Periwal  and  the  amended  petition  only   supplied particulars as required by the Judge.  He submits that  even in giving instances of bribery in paragraph 16, although the name  of  Periwal  was mentioned in  the  opening  part,  no instance was cited with Periwal’s name although other  names were mentioned.  Therefore, he submits that Periwal was  not in  the  mind  of the election petitioner  at  all  and  the mention  of  Periwal  was merely an error. In  reply  it  is pointed   out  that  all  allegations  were   supported   by affidavits and that all references to the election agent and allegations against him were affirmed on personal  knowledge by  the election petitioner.  In the Original’  petition  no names were given but when better particulars were ordered  a categoric refer to the election agents was made by referring to Lunia and Periwal and this was again affirmed on personal knowledge by the 634 petitioner.   It is pointed out that in the list of  workers of  time  returned  candidate  Periwal  was  shown  as  ’the election  agent  and  the returned  candidate  affirms  that Periwal was the only election agent.  It is shown by way  of illustration that the return of election expenses was  filed by  Periwal  as the election agent and  the  allegations  of corrupt  practice  in  respect  of  the  election   expenses related to Periwal. On  examining  the  entire record  with  the  assistance  of

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counsel we are satisfied that Periwal was always meant  when the  reference was to an election agent and tiffs  was  more clearly  specified  when  the amended  petition  was  filed. Therefore,  the  attempt was first to name him  and  now  to withdraw  his  name  to  save the  petition.  This,  in  our opinion, could not be done and the High Court last right  in dismissing   the  election  petition  and  disallowing   the amendment by implication.  We give our reasons briefly: It  is necessary to read the Act backwards from s. 86( 1  ). That section reads:               "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. This  is a peremptory provision and admits of no  exception. The  Court  must  enforce it strictly if  there  is  a  non- compliance with the requirements of s. 82 among others.   In this  connection  we have to read s. 82(b)  which  reads  as follows:               "82. Parties to the petition.--               A  petition shall join as respondents  to  his               petition:--               (a)                (b)   any   other  candidate   against   whom               allegations  of any corrupt practice are  made               in the petition." This  makes it incumbent that any candidate against  whom  a charge  of  corrupt  practice is made must be  joined  as  a party.  Who is a candidate is laid down in s. 79(b).    That provision reads as follows:               "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.  and  any  such               person shall 635               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." Since  Periwal was a candidate who was duly nominated at  an election he would be a candidate within the meaning assigned to  that  word by this definition.  The question  raised  is that  Periwal was  a candidate at the election since he  had withdrawn and, in any ease, this definition need not be read in   s.  82(b)  which  should  be  limited   to   contesting candidates.   Under s. 37 a candidate may withdraw and  once the  notice  of withdrawal is given it is final.  After  the date of withdrawal passes a list of contesting candidates is drawn up under s. 38.  It is submitted that s. 82(b)  should be  limited  to  the contesting  candidates.    It  is  also submitted  that  when ss. 100 and 123 speak of  a  candidate they refer to a candidate whose candidature subsists to  the time  of  the election, that is to say, after the  time  for withdrawal  passes.  The petition under s. 83(1 )(b), it  is said, can set out particulars of corrupt practices  "against parties"  and  that  would  include  contesting  candidates, election and other agents and persons other than  candidates and their agents.  It is submitted that a candidate who  has withdrawn  is  no longer a candidate and hence cannot  be  a party. The  argument cannot be entertained.  These  questions  have already  been  considered by ’this Court on  more  than  one

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occasion. They were first considered in K. Kamaraja Nadar V. Kunju Thevar and Others(1) but that ruling may not  strictly be appropriate since it was based on s. 55A(2) which is  now repealed.    However, other cases (Amin Lal V. Hunna  Mal(2) and  Har  Swarup & Anr. V. Brij Bhushan Saran  &  Ors.)  (3) consider this point.  It is there laid down that a candidate who  is  duly  nominated continues to  be  a  candidate  for purposes  of  s. 82(b) in spite of withdrawal.  This  really decides  the  question which has been mooted before  us.   A very  detailed  examination of the same question  is  to  be found in Chaturbhuj V. Election Tribunal, Kanpur &  Ant.(4). In  that  case our brother Bhargava (M.  L.  Chaturvedi,  J. concurring)  has examined in the Allahabad High Court  these provisions from every angle which is presented to us and has adequately answered all the arguments.     It  is argued that the Civil Procedure Code applies  and O.  VI,  r.  17  and  O. 1, r.  10  enable  the  High  Court respectively to order amendment of a petition and to  strike out  parties.  It is submitted, therefore, that  both  these powers could be exercised in this case by ordering  deletion of reference to Periwal.  This argument cannot be  accepted. No doubt the power of amendment is preserved (1) [1959] S.C.R. 583.             (2) [19651 1 S.C.R. 393. (3) [1967] 1 S.C.R. 342.           (4) (1958) 15 E.L.R. 301. 636 to the court and O. 1, r. 10 enables the court to strike out parties but the court cannot use O. VI, r. 17 or O. 1, r. 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act.  The court can order an amendment and even strike out a party who is not  necessary. But  when  the  Act makes a person  a  necessary  party  and provides  that  the petition shall be dismissed  if  such  a party is not joined, the power of amendment or to strike out parties  cannot  be used at all.  The Civil  Procedure  Code applies  subject to the provisions of the Representation  of the  People Act and any rules made thereunder (see  s.  87). When  the  Act  enjoins  the penalty  of  dismissal  of  the petition  for non-joinder of a party the provisions  of  the Civil  Procedure’ Code cannot be used as curative  means  to save the petition. An  attempt is made to distinguish the cases cited by us  on the  ground  that now the provisions of ss. 4 to 25  of  the Indian  Limitation Act are applicable to election  petitions and the amendment of the petition and joining of parties can take  place at any time. It is subtitled that now the  cases must  be  decided  under  the amended law.  We need  not  go into  this matter.  It is doubtful whether these  provisions of the Limitation Act apply at all.  The petitioner has  not asked to join Periwal. He only wants an amendment to  delete allegations of corrupt practice against him.  This cannot be permitted since it will defeat the provisions of s. 86(1  ). Every  election petition can be saved by amendment  in  this way but that is not the policy of the law. The dismissal  is peremptory and the law does not admit of any other approach. It is significant that in Amin Lal V. Hunna Mal(1), although the  matter  was not gone into from this angle it  was  said that  the amendment for better particulars was not  intended to  enable the election petitioner to remove the  defect  in presentation or in the joinder of parties. Sheopat Singh  V. Ram Pratap(2), since the facts were assumed, cannot be  said to record any decision. Lastly,  it is submitted that Periwal was being  charged  in character as an election agent and not as a candidate.  This submission runs counter to the amendment petition which says that  he  was  not an election agent and  therefore  he  was

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really  charged in his capacity as an individual and  as  he was  a  duly nominated candidate he had to be  joined.   The argument really contradicts the last amendment petition  and cannot be entertained. For  the  reasons  above stated it must  be  held  that  the decision  of the High Court under appeal was  correct.   The appeal fails and will be dismissed with costs. V.P.S.                                   Appeal dismissed. (1) [1965] 1 S.C.R. 393. (2)  [1965] 1 S.C.R, 175. 637