http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

CASE NO.: Appeal (civil) 1789  of  1998 Appeal (civil)  2080-2081        of  1998

PETITIONER: PATANGRAO KADAM

       Vs.

RESPONDENT: PRITHVIRAJ SAYAJIRAO YADAV DESHMUKH & ORS.

DATE OF JUDGMENT:       26/02/2001

BENCH: CJI, R.C. Lahoti & Shivaraj V. Patil

JUDGMENT:

With

CIVIL APPEAL NOS. 2080-2081 OF 1998

J U D G M E N T L...I...T.......T.......T.......T.......T.......T.......T..J Shivaraj V. Patil J.

   These  appeals  are  filed under Section  116-A  of  the Representation  of  People  Act,   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,  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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

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  and  his election  agent   Sampatrao Chavan.  The respondent no.   1 filed   his  written  statement   inter  alia  raising   the contention  that the election petition was not  maintainable for  non-compliance  of mandatory provisions of sections  81 and  83 of the RPA and sought for its dismissal.  He  denied all  the  material averments made in the election  petition. The  trial  court framed issues including issues as  to  the maintainability  of  the election petition.  The  respondent no.   1  took out chamber summons no.  66/98 to  decide  the maintainability of the election petition.  After hearing the learned  counsel, the High court held that the issue nos.  1 and  2 regarding maintainability of election petition cannot be  decided  at the threshold and the points raised  in  the said  chamber summons were kept open until final hearing  of the election petition.  Thereafter the trial court proceeded to  examine  the witnesses produced by the  appellant.   The respondent  no.   3  took  out chamber  summons  no.   72/98 praying   for  dismissal  of   the  election  petition   for non-compliance  of  section  82(b) of the  RPA  inasmuch  as Sampatrao  Chavan,  a validly nominated candidate,  had  not been  made a party to the election petition.  The  appellant took  out  chamber summons no.  93/98 seeking permission  to amend  the election petition so as to delete the  allegation of  corrupt practice made against Sampatrao Chavan.  Both of them  were  heard together.  Chamber summons no.  72/98  was allowed  and  the chamber summons no.  93/98  was  rejected. Consequently  the  election  petition was dismissed  by  the impugned judgment and order.

   The  appellant has filed Civil Appeal No.  1789 of  1998 aggrieved  by  the dismissal of election petition and  Civil Appeal  Nos.   2080-2081/98  aggrieved 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

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  interpretations are  possible  of  Section 82(b),  the  one  which  furthers the object  of  purity  of election  should  be  preferred to the one which  permits  a candidate  who has resorted to corrupt practice through  his election  agent or agent or any other person, to escape  the liability  for  the same and thereby vitiate free  and  fair elections, which is a basic feature of the Constitution.

   He  made  submissions  elaborately in support  of  these contentions and cited few decisions.

   Per contra, Shri V.A.  Mohta, learned senior counsel for respondent  no.  1, while supporting the judgment and  order of the High Court urged:

   1.   Having  regard to the scheme of RPA and by  reading Sections  79,  82,  99  and 123 it is  quite  clear  that  a candidate  within  the  meaning of Section 79(b) has  to  be necessarily  impleaded  in  an  election  petition  where  a corrupt practice is alleged irrespective of the fact whether he  withdrew his candidature or retired from the contest  or became an election agent after withdrawal of his candidature of   another  contesting  candidate;    the  object  of  the provisions  is to see that no candidate against whom corrupt practice is alleged escapes the consequences.

   2.  There was no choice to the High Court but to dismiss the  election  petition  when there was non-  compliance  of Section  82(b) and such a petition ought to be dismissed  in terms of Section 86(1).

   3.   When  Sampatrao Chavan was a candidate  within  the meaning of Section 79(b), as the nomination filed by him was accepted  as  valid,  his  becoming the  election  agent  of respondent  no.   1  after  withdrawal   did  not  make  any difference  as to impleading him as a party to the  election petition.

   While   citing   few  decisions  in   support   of   his contentions,  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

(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 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 trial to have been guilty of any corrupt practice and the nature of that practice; and

(b) ....................... Provided that [a person who is not a party to the petition shall not be named] in the order under sub-clause (ii) of clause (a) unless

(a) he has been given notice to appear before

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

[the High Court] and to show cause why he should not be so named; and

(b)  ........................

(2) In this section and in section 100, the expression agent has the same meaning as in section 123.

Section 123.  Corrupt practices  The following shall be deemed to be corrupt practices for the purposes of this Act (1)          ......................... (2)          ......................... (3)          ..........................

   (4)  The  publication by a candidate or his agent or  by any  other  person [with the consent of a candidate  or  his election  agent],  of any statement of fact which is  false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of  any  candidate,  or in relation to the  candidature,  or withdrawal,  of any candidate, being a statement  reasonably calculated  to  prejudice the prospects of that  candidates election.     (5)       ..........................     (6)       ..........................     (7)       ..........................     (8)       .........................

   There  are  three  categories of candidates  as  can  be gathered  from  the provisions contained in the RPA  --  (1) candidate,  (2)  contesting  candidate,   and  (3)  returned candidate.

   As  per  Section 79(b) candidate means the person  who has  been  or  claims  to  have been  duly  nominated  as  a candidate  at  any  election.  The definition  of  the  word candidate,  as given in clause (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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

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  actions  of  Sampatrao Chavan in  law  were  to  be considered  as  the  actions of respondent no.   1  himself; since  the  respondent no.  1 as a contesting candidate  had been  impleaded  under  Section  82(a)   he  could  not   be considered  as any other candidate under Section 82(b) for impleading.   It  was also urged that there was no  need  to implead  the  election  agent as corrupt  practices  alleged against  him  were  subsequent  to  the  withdrawal  of  his candidature.   The learned counsel added that the  decisions of  this  Court  cited  did not  specifically  deal  with  a candidate,   who   after     withdrawing   his   candidature subsequently became the election agent of another contesting candidate   and  where  allegations   of  corrupt   practice pertained  to the period after withdrawal.  According to the learned counsel, consequent to the dismissal of the election petition  the  respondent no.  1, who had committed  corrupt practices, was left free and that because of the time gap no action  could be taken against his election agent  Sampatrao Chavan also.

   From  the  plain and unambiguous language and  terms  of Sections  79(b)  and 82(b) without anything more,  Sampatrao Chavan had to be necessarily joined as a respondent.  He was a  candidate within the meaning of Section 79(b) and in  the election   petition  the  appellant   had   sought   further declaration  that  he  should be declared as  duly  elected. Hence Section 82(b) got attracted.  Section 82 speaks of all the  three  categories    the  contesting  candidates,  the returned  candidates  and  any other  candidate.   Sampatrao Chavan,  as already stated above, undoubtedly, is covered by Section  82(b)  read with Section 79(b).  Merely because  he became   an  election  agent  of   the  respondent  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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

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 petition itself requiring their presence at the trial.   Section  99  comes into operation at  the  time  of making  an  order under Section 98 at the conclusion of  the trial  of an election petition.  The argument that Sampatrao Chavan could have been impleaded at later stage if necessary under  Section  99,  if   accepted,  renders  the  mandatory requirement of Section 82 ineffective.  Unambiguous language and clear terms contained in Section 82(b) read with Section 79(b)  lead  to only one interpretation as stated above  and there  is no scope for two interpretations, as sought, to be made out on behalf of the appellant.  This Court in the case of M/s.  Keshavji Ravji & Co.  etc.  etc.  Vs.  Commissioner of  Income-tax  [AIR  1991  SC   1806]  while  dealing  with interpretation  of  statutes  when language  of  statute  is unambiguous, in para 6 has observed thus:-

   As  long  as  there is no ambiguity  in  the  statutory language, resort to any interpretative process to unfold the legislative  intent  becomes  impermissible.   The  supposed intention  of  the  legislature cannot then be  appealed  to whittle  down  the  statutory language  which  is  otherwise unambiguous.   If the intendment is not in the words used it is  nowhere  else.  The need for interpretation arises  when the  words  used  in the statute are, on  their  own  terms, ambivalent  and  do  not  manifest   the  intention  of  the Legislature.   In Doypack Systems Pvt.  Ltd.  Vs.  Union  of India (1988) 2 SCC 299:  AIR 1988 SC 782) it was observed:

   The  words  in the statute must, prima facie, be  given their ordinary meanings.  Where the grammatical construction is  clear and manifest and without doubt, that  construction ought  to  prevail unless there are some strong 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  returned candidate,  it can be committed by the persons mentioned  in Section 123 and no one can be allowed to escape consequences

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

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 RPA.

   One more aspect to be kept in view is that since serious consequences  follow against a candidate within the  meaning of  Section  79(b)  indulging  in corrupt  practices  in  an election,  principles  of  natural   justice  do  demand  of providing  an opportunity to such a candidate.  In this view also  impleading  of Sampatrao Chavan as respondent  to  the election  petition was necessary in terms of Section  82(b). It  is  the general rule that the act of an agent  does  not bind  his principal unless it is within the authority  given to  him.  An agent is having an authority to do every lawful thing which is necessary to do an act authorized, but in law an  agent  can  neither  be authorized  to  do  an  unlawful thing/act  nor  an  agent can be permitted to do  so.   This apart,  under  Section  40 a candidate at  an  election  may appoint  one  person other than himself to be  his  election agent.   As  per Section 45 an election agent is to  perform only such functions as are authorized by or under the RPA in connection with the election.

   If  an election agent travels beyond his authority given under  Section 45 and commits an illegal act or an  offence, may  be electoral or criminal, he cannot pass on his sins to the  candidate  and  escape punishment and  consequences  on proof  of  commission  of such act/ offence  merely  on  the ground  or  saying  that he is only an election agent  of  a candidate  and it is enough to proceed against the candidate alone.

   In  the case on hand it was also pointed out to us  that the  corrupt  practice was alleged in the election  petition not  only against the respondent no.  1 but also against his election agent Sampatrao Chavan specifically pointing out to para 11(h) 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

   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 to the same constituency, but he had later withdrawn his candidature and thereafter he had  become  an election agent of the first respondent.   He was  not  impleaded as respondent to the election  petition. The  first respondent applied to the High Court praying  for dismissal  of  the election petition.  Thereafter,  in  June 1967  an application was made under Order 1 Rule 10 CPC  for impleading  Jamna Shanker Pandya as a party respondent.  The High  Court  rejected  the  application  and  dismissed  the election  petition  for non-compliance with  Section  82(b). This  Court  affirmed  the said decision of the  High  Court stating  that  Section 79 of the RPA defines candidate  as meaning  a  person who has been or claims to have been  duly nominated  as  a  candidate at any election,  and  any  such person should 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.  The Court went  on to say as under:  -

   This Court has held that a person who had been nominated as  a candidate for an election and has since withdrawn  his candidature  is  for the purpose of S.82 a candidate and  he must  be  impleaded  in  a petition if  any  allegations  of corrupt  practice  are  made against him  whether  committed before  or  after his withdrawal in the  election  petition. Har  Swarup  and another v.  Brij Bhushan Saran  and  others (1967  (1) SCR 342), Mohan Singh v.  Bhanwar Lal and  others (1964  (5) SCR 12) and Amin Lall v.  Hunna Mal (1965 (1) SCR 393),  Jamna  Shanker Pandya being a necessary party to  the election  petition,  failure  to implead  him  rendered  the election  petition, defective, and the High Court was  bound to 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

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  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.

   It may be noted that the facts of the case in Ram Partap Chandel  vs.   Chaudhary Lajja Ram and others [(1998) 8  SCC 564]  are similar to the facts of the case in hand.  In  the election petition the appellant averred that certain corrupt practices  had  been committed by the first respondent  (the returned  candidate) and by his son Harbhajan Singh, who was the  election agent;  also, by one Amarnath Kaushal, who was the  counting agent of the first respondent.  Both Harbhajan Singh  and  Amarnath  Kaushal  had been  candidates  at  the election but had withdrawn their candidature.  They were not impleaded as respondents to the election petition.  The High Court  in  the light of Section 82 of the RPA dismissed  the election  petition  as not maintainable.  This Court,  while dismissing  the appeal against the said judgment of the High Court  referring  to  the  case of  Mohan  Raj  (supra),  in paragraph 7 of the judgment, has stated thus:  -

   7.   It will be seen that sub-section (a) of Section  82 uses  the words contesting 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

   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  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 interference by this Court.

   In  the light of the facts stated, discussions made  and reasons  given above, these appeals, in our view, are devoid of  any  merit  and  consequently they  are  dismissed,  but without any order as to costs.

CJI R.C. Lahoti Shivaraj V. Patil February 26, 2001.