Har Swarup & ANR Vs. Brij Bhushan
Saran & Ors  INSC 163 (14 September 1966)
14/09/1966 WANCHOO, K.N.
CITATION: 1967 AIR 836 1967 SCR (1) 342
R 1969 SC 677 (9) E&R 1969 SC 872 (21)
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.
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corrupt practice was committed during the election in that R, after he had withdrawn
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
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 79(b) of the Act even after he withdrew his
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.  Pat.
250: disapproved; Mohan Singh v. Bhanwarlal
& Others,  5 S.C.R. 12 and Amin Lal v. Hunna Mal,  I S.C.R. 393
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.
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
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 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
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 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 candidature 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
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
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 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
candidature, 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 isstill 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 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 can347
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 liable to be dismissed under s. 90(3) of the
The appeal therefore fails and is hereby
dismissed with costs.
(1)  5 S.C.R. 12.
(2)  1 S.C.R. 3193.