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PETITIONER: GADNIS BHAWANI SHANKAR.

       Vs.

RESPONDENT: FALEIRO EDUARDO MARTINHO

DATE OF JUDGMENT:       01/08/2000

BENCH: R.C.Lahoti, K.G.Balakrishnan

JUDGMENT:

Judgement L.....I.........T.......T.......T.......T.......T.......T..J       Would   the   provisions  of   sec.   82(b)   of   the Representation  of  the People Act, 1951 get attracted to  a candidate  who  allegedly commits a corrupt practice,  after the  withdrawal  of  his  candidature as  a  voter,  is  the meaningful  question  requiring  our consideration  in  this appeal?

     The   appellant  was  a   candidate  for  rajya  Sabha elections  for  one seat from Goa in the year  1999.   There were three candidates in the fray.  Apart from the appellant and  respondent.   there  was another  candidate  Luis  Alex Cardozo.    All  the  three   candidates  had  filed   their nomination papers which were accepted.  After the acceptance of  his nomination paper Luis Alex Cardozo withdraw from the contest  on 17th July, 1999.  In the contest held thereafter respondent  was  declared  elected.The  appellant  filed  an election  petition, challenging the election of  respondent, pricipally on the ground of commission of corrupt practices. In  the election petition respondent alone was arrayed as  a party-respondent.   After  service  of  notice,   respondent raised  a  preliminary  objection by filing  an  application under  Sec 86 of the Representation of the People Act,  1951 (hereinafter  referred to as the ’Act’) It was averred  that election   petition   was  liable  to   be   dismissed   for non-compliance with the requirements of Sec.  82 of the Act. The  preliminary objection was upheld and election  petition was dismissed.  Hence, this appeal.

     Section 82(b) of the Representation of the People Act, 1951 provides:

     "82  -  A petitioner shall join as respondents to  his petition -

     (a) -----------------------

     (b)  any  other candidate against whom allegations  of any corrupt practice are made in the petition."

     Sec  86  which deals with trial of election  petitions provides in sub-clause (1) as follows:

     "86(1)  The  High  Court  shall  dismiss  an  election petition  which does not comply with the provisions of  sec. 81 or section 82 or sec.  117

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     Explanation - An order of the High Court dismissing an election  petition under this sub-section shall be deemed to be an order made under clause (a) of section 98."

     In  the  instant case, luis Alex Cardozo withdraw  his nomination  on 17th July, 1999.  Election took place on 26th Jullly,  1999.  In the election petition apart form  various other  allegations  against the respondent  two  allegations contained in paragraphs 30-D(ii) and 30-G alone are relevant for  purposes of our discussion.  Those paragraphs read thus :

     "30-D The corrupt practice committed by the respondent and his agents is as follows:

     i) --------------------

     (ii)  Offering and promising of cabinet berths to some of  the 8 dissidents Mlas of congress party and  appointment on  other important public offices to the remaining of  them as  also  to one independent MLA who are namely Shri  Subash shirodkar, shri Somnath Zuwarkar, Shri sanjay Bankekar, Smt. Victoria  fernandes, Shri Luis Alex Cardozo Shri Jose Philip D’souza,  Shri Mauvino Godinho Shri Babu Azganokar and  Shri Isidoro Luis Fernandes (Independent).

     G  -  The  said  8 dissident  Congress  MLAs  and  one independent   MLA   in  agreement  to   receive   the   said gratification   voted  for  the   respondent  at  the   said election."

     The allegations, in a nutshall, contained in these two paragraphs  are  concerned,  are to the  effect  that  after withdrawal  of  his candidature, Cardozo agreed  to  receive gratification  along  with  some other MLAs as a  motive  or reward  to vote for respondent.  Acceptance of or  agreement to  receive  gratification as a motive or raward to vote  at the  election  is a corrupt practice dealt with  in  Section 123-(1)(B) of the Act which provides:

     "123 - Corrupt practices :

     The  following shall be deemed to be corrupt practices for the purposes of this Act :-

     (1) "Bribery", that is to say -

     (A) ------------------------------

     (B)  the  receipt  of, or agreement  to  receive,  any gratification, whether as a motive or a reward -

     (a) by a person for standing or not standing as or for withdrawing or not withdrawing from being a candidate;  or

     (b)  by any person whomsoever for himself or any other person  for voting or refraining from voting or inducing  or attempting  to  induce any elector to vote or  refrain  from voting  or any candidate to withdraw or not to withdraw  his candidature.

     Explanation - For the purposes of this clause the term "gratification   "   is   not    restricted   to   pecuniary gratification  or  gratifications estimable in money and  it

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includes  all  forms  of  entertainment  and  all  forms  of employment for reward but it does not include the payment of any expenses bona fide incurred at or for the purpose of any election  and  duly  enteredd  in the  account  of  election expenses referred to in sec.  78."

     A  plain reading of the above provision shows that the receipt  of or agreement to receive, any gratification as  a motive or reward by any person whomsoever fro himself or any other  person  for  voting  or  refraining  from  voting  or inducing  or  attempting  to induce any elector to  vote  or refrain  from voting or any candidate to withdraw or not  to withdraw  his  candidature would amount to commission  of  a corrupt  parctice.   The  averments  noticed  in  paragraphs 30-D(ii)  and 30-D of the election petition (supra)  contain allegations  against  Cardozo  that  he  agreed  to  receive gratification  as a motive or reward for voting in favour of the  respondent.  Thes averments would amount to allegations of  commission  of  corrupt practice by Cardozo  within  the meaning of Sec.  123(1)(8) of the Act.

     The  argument  of  Mr.   Krishnamani,  learned  senior counsel  appearing for the appellant, however, is that since Cardozo  had  withdrawn  from the contest he  could  not  be treated  as  a candidate who was necessarily required to  be impleaded as a party-respondent under sec.  82(b) of the Act and  if the corrupt partice was committed by him as a  voter only  he  was  not  required  to be  impleaded  as  a  party respondent in the election petition.  This argument does not appeal to us.  Sec.  79(b) of the Act defines a candidate to mean  a  person  who has been or claims to  have  been  duly nominated  as  a  candidate at any election.   There  is  no dispute  that Cardozo had been duly nominated as a candidate at  the election in question.  A similar argument as  raised by  Mr.  Krishnamani came up for consideration in Har Swarup & Anr.  Vs.  Brij Bhushan saran & Others (1967 (1) SCR 342).

     Wanchoo,  J.  speaking for a three judge Bench  opined :-

     "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 withdrawal is  said to be that a person nominated can do 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 sec.  79(b) the Act will remain a  candidate even after he withdraws till the election is over, and if he commits  a  corrupt  partice  whether before  or  after  his withdrawal  he would be a necessary party under s.  82(b) of the Act."

     In  Ram  Pratap Chandel Vs.  Chaudhary Lajja  Ram  and Other  (1998 (8) SCC 564), the requirements of Section 82 of the Representation of the People Act were dealt with and the Bench  held opined that a candidate against whom a charge of corrupt  practice had been made in the election petition was required  to be joined as a party to the election  petition, irrespective  of  the  fact  whether he  had  withdrawn  his candidature  and not contested the election as such and  had committed the corrupt practice after his withdrawal.

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     The  Bench in Ram Pratap Chandel’s case considered the judgment  in  Mohan Raj Vs.  Surendra Kumar Taparia  &  Ors. 1969  (1)  SCR  630 which has been prassed into aid  by  Mr. Krishnamani  before  us  distinguished it in  the  following words :-

     "Lastly,  it  is  submitted  that  Periwal  was  being charged  in his 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  really charged in his  capacity  as  an individual  andd as he was a duly nominated candidate he had to  be  joined.  The argument really contradddicts the  last amendment petition and cannot be entertained.

     He  submitted that the allegations of corrupt  partice made  against a person who, though he had been a  candidate, had  withdrawn  in  his capacity as the  election  agent  of another  candidate, did not necessitate his impleadment  and this  question had been left open in the aforesaid judgment. It  is  difficult to agree.  By reason of the  contradiction the argument was not entertained.  But it is clear from what was  stated  there  in abovee that a candidate who  is  duly nominated  continues  to be a candidate for the purposes  of Section  82(b) in spite of his withdrawal and if allegations of  corrupt  practice  are madee against him,,  he  must  be impleaded  as  a  party  to the  election  petition  or  the election petition must fail."

     We  are  in complete agreement with the exposition  of law, as made above.

     In our opinion the allegations which have been made in the  election  petition are allegations of  corrupt  partice against  Cardozo basides 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.

     The  learned Single Judge of the High Court  committed no   error   in  dismissing   the  election   petition   for non-compliance  with  the provisions of Sec.  82(b)  of  the Act.   The appeal has no merits.  It fails and is dismissed. Parties to bear their own costs. .UP 10 2; Draft, printer 1; -n -PA4 -dFX-NORMAL -y -e; dumbp L.......T.......T.......T.......T.......T.......T.......T.......T....R