K. Venkateswara Rao & ANR Vs.
Bekkam Narasimha Reddi & Ors [1968] INSC 188 (13 August 1968)
13/08/1968 MITTER, G.K.
MITTER, G.K.
HIDAYATULLAH, M. (CJ)
CITATION: 1969 AIR 872 1969 SCR (1) 679
CITATOR INFO:
R 1973 SC2077 (9) E&R 1974 SC 480
(16,19,23,24) R 1982 SC 983 (10) F 1984 SC 309 (24)
ACT:
Representation of the People Act, 1951, ss.
79(b), 82(b) & 86(1)-Corrupt practice alleged against candidate who had
withdrawn from contest-Such candidate not impleaded during period of limitation
of election petition-Petition liable to be dismissed-Application for
condonation of delay whether permissible-Applicability of s. 29(2) and s. 5 of
Limition Act, 1963-Candidate who withdraws from contest whether a candidate
within meaning of s. 79(b) and s. 82(b) of Representation of the People
Act-Procedure under s. 99 of Act whether applicable to such candidate.
HEADNOTE:
The election of the first respondent to the
Andhra Pradesh Legislative Assembly at the General Election hold in 1967 was
challenged by the appellants in an election petition.
Various corrupt practices were alleged
appellants to have been committed by the first respondent, his agents and
supporters. One of these was that the first respondent paid a bribe to one R
who had also filed nomination papers, in order to secure his withdrawal as a
candidate. After the issues were framed the appellants made an application to
the Court for impleading R but it was dismissed. The first respondent then
filed an application under s. 86(1) praying for the dismissal of the election
petition on the ground that there had been compliance with s. 82(b) of the
Representation of the People Act, 1951 inasmuch as R against whom corrupt
practice had been alleged had not been made a party. The appellants filed an
application seeking to with- draw the allegation against R and in the
alternative to implied him as are not. They also prayed for condonation of
delay in making the respondent. The learned Judge of the High Court trying the
election petition dismissed the aforesaid applications and refused to condone
the delay.
The' appellants came to this Court. The
contentions in the appeal were: (i) that the allegation against R did not
amount to an allegation of corrupt practice, (ii) that s. 5 and s. 29(2) of the
Limitation Act, 1963 were applicable to the case and the High Court and this
Court had power to condone the delay made by the election petitioner in
impleading a necessary party, (iii) that R, having withdrawn from the contest
was not a 'candidate'. and (iv) that the procedure under s. 99 ought to have
been followed in respect of R.
HELD: (i) The taint of illegal gratification
attaches not only to the payer but also to the payee. It could not therefore be
accepted that the allegation against R that he had received illegal
gratification did not amount to corrupt practice.[682 C-D] (ii) The plea for
condonation of delay in impleading R could not be accepted.
It is well settled that amendments to a
petition in a civil proceeding and the addition of parties to such a proceeding
are generally possible subject to the law of limitation.
But an election petition stands on a
different footing. The trial of such a petition and the powers of the court in
respect' thereof are all circumscribed bY the Representation of the People Act.
The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of
limitation 67f suits and other proceedings and for 680 purposes connected
therewith. The provisions of this Act will apply to all civil proceedings and
some special criminal proceedings which can be taken in a court of law unless
the application thereof has been excluded by some enactment: the extent of such
application is governed by s. 29(2) of the Limitation Act. However the Limitation
Act cannot apply to proceedings like an election petition inasmuch as the
Representation of the People Act is a complete and self-contained code which
does not admit of the introduction of the principles or the provisions of the
'law contained in the Indian Limitation Act. [686 H-687 B] Kamaraja Nadar v.
Kunju Thevar, [1959] S.C.R. 583 and Basappa v. Ayyappa, [1959] S.C.R. 611.
applied.
A. Sreenivasan v. Election Tribunal, Madras,
11 E.L.R.
278 and Tipperary case, (1875) 30'M & H.
19, referred to.
After the amendment of the Representation of
the People Act in 1966 there is now no section in the Act which equates an
order made by the High Court under s. 98 or s. 99 to a decree passed by a civil
court subordinate to the High Court. An appeal being a creature of statute, the
rights conferred on the appellant must be found within the four corners of the
Act. Sub-s. (2) of the present s. 116-A expressly gives this Court the
discretion and authority to entertain an appeal after the expiry of the period
of thirty days. No right is however given to the High Court to entertain a
petition which does not comply with the provisions of s. 81, s. 82 or s. 117.
Any hardship resulting from this situation is a matter which can be set right
only by the Legislature. The Legislature in its wisdom has made the observance
of certain formalities and provisions obligatory and failure in that respect
can only be visited with a dismissal of the petition. [688H-689 C] Vidyacharan
Shukla v. Khubchand Baghel, [1964] 6 S.C.R.
129, distinguished.
O bitter: Even though the Indian Limitation
Act, 1963 does not apply to an election petition provisions like s. 9 and s. 10
of the General Clauses Act, 1897 providing for computation of time which are in
pari materia with ss. 12 (1) and 4 of the Limitation Act would apply to such a
petition. [689 E] (iii) A candidate who has withdrawn from the election remains
a 'candidate' within the meaning of s. 79(b) and s. 82(b) of the Act. [689 F]
Har Swarup v. Bril Bhushan, [1967] IS.C.R. 342, Mohan Singh v. Bhanwarlal,
[1964] 5 S.C.R. 12 and Amin Lal v. Hunna Mat [1965] 1 S.C.R. 393. relied on.
(iv) Section 99 only enjoins upon the High
Court to give an opportunity to a person sought to be held guilty of a corrupt
practice if he was not a party to the petition, but does not apply to a person
who is a necessary party. [690 C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1864 of 1967.
Appeal under s. 116-A of the Representation
of the People Act, 1951 from the judgment and order dated August 21, 1967 of
the Andhra Pradesh High Court in Election Petition No. 13 of 1967.
P. Ram Reddy and A.V.V. Nair, for the
appellants.
681 D. Narsaraju, R.V. Pillai and A. Sitarama
Reddy, for respondent No. 1 G. Narayana Rao, for respondent No. 2.
The Judgment of the Court was delivered by
Mitter, J. On April 6, 1967 the appellants before us, fled an Election Petition
in the High Court of Andhra Pradesh challenging the election of the first
respondent, B.N.
Reddi, to the Andhra Pradesh Legislative
Assembly from the Kollapur Constituency inter alia on the ground of corrupt
practices committed by him, his election agent, polling agents and other
workers mentioned in the schedule to the petition with his consent and praying
for a declaration that the second respondent, K. Ranga Das, was duly elected
from the said constituency. The third respondent was another candidate who had
contested the election but had fared very badly. The first respondent secured
25,321 votes at the election overtopping the votes polled by the second
respondent by approximately 1600. The petitioners stated in paragraph 5 of the
petition that one' V.K. Reddi who had firfiled his nomination paper had been
made to withdraw his Candidature by the first respondent on payment of an
illegal gratification of a sum of Rs. 10,000/-. This allegation was repeated in
paragraph 10. The first respondent was also charged with other corrupt
practices m diverse other paragraphs of the petition.
The first respondent put in his written
statement on 28th June, 1967; the second respondent put in his counter
affidavit on June 26, 1967. The issues were settled on July 24, 1967. On August
4, 1967 the petitioners filed Application No. 161/1967 for impleading V.K.
Reddi.
Thereafter they wanted to withdraw that
application when the examination of witnesses had commenced. On August 7, 1967
this application was dismissed. On August 8, 1967 the first respondent 'filed
Application No. 169/1967 praying for dismissal of the petition on the ground
that although V.K.
Reddi had been charged with corrupt practices
he had not been impleaded as a party to the petition which was liable to be
dismissed under the provisions of section 82(b) of the Representation of the
People Act, 1951 (hereinafter referred to as the 'Act') in compliance with s.
86(1). The election petitioners filed Application No. 187 of 1967 for
withdrawing the allegations against V.K. Reddi, or, in the alternative, to
implead him as a respondent. They also filed Application No. 186/1967 for
condoning the delay in seeking to implead V.K. Reddi in Application No.
187/1967.
The second respondent filed a number of
applications of which it is necessary to take note of a few only.
Application No. 174/1967 was filed for
condoning the delay in seeking to implead V.K. Reddi in Application No.
175/1967. Application No. 175/1967 was for
the purpose of 682 impleading V.K. Reddi as a party respondent to the election
petition.
The learned trial Judge held that the
allegations contained in election petition amounted to an imputation of corrupt
practice to V.K. Reddi and although of the view that the prayer in Application
No. 169/1967 for condonation of delay was allowable in suitable cases, he felt
himself bound by the decision of Kumarayya, J. in Applications Nos. 150-
155/1967 in Election Petition No. 11 of 1967 and dismissed the amendment
application No- 169/1967.
Before us a faint attempt was made to argue
that the allegation against V.K. Reddi did not amount to a charge of corrupt
practice but that it was the first respondent who was guilty of such a practice
by making the payment of illegal gratification. The argument has only to be set
down to be rejected. In paragraph 5 of the petition, the definite averment was
that V.K. Reddi had been made to withdraw his candidature by the first
respondent on payment of an illegal gratification of Rs. 10,000/-. If the
payment of Rs. 10,000/- amounts to an illegal gratification the taint attaches
not only to the payer, the first respondent, but also to the payee,. V. K.
Reddi.
The second point urged was that the learned
Chief Justice's view in regard to the power of condonation of delay in
impleading V.K. Reddi was correct and although he could not give effect to his
own view because he felt himself bound by the decision of Kumarayya, J. we ought
to accept the appeal and uphold his view. This argument was developed as
follows. An election petition was in essence an application to the High Court
for the purpose of the Indian Limitation Act and as such
s. 29(2) of the Act of 1963 was applicable to such petitions drawing in its
chain the applicability of section 5 of the Act giving the court the power to
admit the same if it was satisfied that the applicant had sufficient cause for
not preferring the application within the prescribed period of limitation.
The Act as it now stands provides by s. 80A
that the court having jurisdiction to try an election petition shall be the
High Court. Under s. 81 (1 ) "an election petition calling in question any
election may be presented on one or more of the grounds specified in sub-s. (1
) of s. 100 and s. 101 to the High Court by any candidate at such election or
any elector within forty-five days, but not earlier than, the date of election
of the returned candidate ...... " S. 82 runs as follows :-- "A
petitioner shall join as respondents to his petition-- 683 (a) 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, 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." Section 83
lays down inter alia that an election petition shall set forth full particulars
of any corrupt practice that the petitioner alleges, including as full a
statement as possible of the names of the parties alleged to have committed
such corrupt practice and the date and place of the commission of such
practice.
Section 86( 1 ) provides that:
"The High Court shall dismiss an
election petition which does not comply with the provisions of section 81, or
section 82 or section 117." The last mentioned section relates to the
giving of security for costs. Sub-s. (4) of s. 86 gives any candidate not
already a respondent, a right to be joined as one upon application to the High
Court within fourteen days from the date of commencement of the trial and
subject to any order as to security for costs which may be made. Under sub- s.
(5) "The High Court may, upon such terms as to.
costs and otherwise as it may deem fit, allow
the particulars of any corrupt practice alleged in the petition to be amended
or amplified in such manner as may in its opinion be necessary for ensuring a
fair and effective trial of the petition, but shall not allow any amendment of
the petition which will have the effect of introducing particulars of a corrupt
practice not previously alleged in the petition." Sub-ss. (6) and (7) aim
at the speedy disposal of the election petitions. Section 87 ( 1 ) provides
that:
"Subject to the provisions of this Act
and of any rules made there under, every election petition shall be tried by
the High Court, as nearly as may be, in accordance with the procedure
applicable under the Code of Civil Procedure, 1908 to the trial of suits
:" The proviso to the sub-section gives the High Court discretion to
refuse, for reasons to be recorded in writing, to examine any witness. Sub-s.
(2) makes the provisions of the Indian Evidence 684 Act applicable in all
respects to the trial of an election petition. Section 98 shows the nature of
the order to be made by the High Court at the conclusion of the trial of an
election petition. Section 99 makes it obligatory on the High Court while
making an order under s. 98 in cases where any charge is made in the petition
of any corrupt practice having been committed at the election, to record 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 as also 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. There is.
a proviso to the section which lays down that
a person who is not a party to the petition shall not be so named unless he has
been given notice to appear before the High Court and to show cause to the
contrary. In case he does so, he is further given the right to. cross-examine
any witness already examined by the High Court and to give evidence in his defence.
Entry 72 of List I of the Seventh Schedule
vests in Parliament the exclusive power to make laws with respect to elections
to Parliament, to the Legislatures of States and to the offices of President
and Vice-President as also the Election Commission. Under Art. 329(b) lm15
"Notwithstanding anything in this Constitution-- (a) (b) no election to
either House of Parliament or to the House of either House of the Legislature
of a State shall be called in question except by an election petition presented
to such authority and in such manner as may be provided for by or under any law
made by the appropriate Legislature." In order to determine whether an
election petition launched for the purpose of contesting the validity of an
election is an application within the meaning of the Indian Limitation Act, it
is necessary to examine the nature of the rights and liabilities involved
therein and of the provisions of law which govern such determination. The right
of citizens to elect representatives of their choice either to the House of the
People or to a Legislative Assembly of a State, the process of election
beginning from the notification of general elections and the nomination of
candidates, the general procedure at elections, taking of the poll and counting
of votes and the publication of election results are all matters dealt with and
covered by different provisions of the Act. The right to elect is statutory and
so are all the processes connected with the election. There is no element of
any common law right 685 in the process of election. Part VI of the Act deals
with disputes regarding election. The second chapter of this Part shows how
elections may be called in question, which courts have jurisdiction to try
election petitions, how such a petition is to be presented, who are to be
parties to the petition, what are to be the contents of the petition as also
the relief which may be claimed by the petitioner.
The third chapter of this Part deals with the
trial of election petitions. The first section of this group makes it incumbent
on the High Court to, dismiss an election petition straightaway if it does not
comply with certain statutory requirements. The next section is a guide to the
procedure to be adopted by the High Court in the trial of an election petition.
This section does not equate an election petition with a suit but merely shows
that subject to the provisions of the Act and. of any rules made there under,
the trial is to conform as nearly as possible to the trial of a suit under the
Code of Civil Procedure. This means that (a) the contestants have a right to
file written statements, (b) both parties must disclose the documents on which
they reply; (c) they must examine witnesses orally, if necessary, to
substantiate the charges leveled or the defenses raised in the petition; and
(d) the evidence to be adduced must comply with the requirements of the Indian
Evidence Act. There are however certain limitations as to the questions which
may put to a witness contained in ss. 94 and 95; the returned candidate has a
right to recriminate under the provisions of s. 97. The High Court does not
pass a decree as in the case of a suit but has to make an order in terms of s.
98 which gives the nature of the orders to be made. The High Court has to
communicate the substance of its decision to the Election Commission and the
Speaker or the Chairman as the case may be of the House of the People or of the
State Legislature. Chapter IV deals with withdrawal and abatement of election
petitions. Chapter IV- A deals with appeals from the decisions of the High.
Court and Chapter V deals with costs and security for costs.
The above brief analysis is sufficient to
show that the trial of an election petition is not the same thing as the trial
of a suit. As was pointed out by this Court in the case of Kamaraja Nadar v.
Kunju Thevat(1), the provisions of the Act "go to show that an election
contest is not an action at law or a suit in equity but is a purely statutory
proceeding unknown to the common law ...... " The Court also emphasised on
the peculiar character of an election petition by quoting from the observations
of A.
Sreenivasan v. Election Tribunal, Madras(2).
Reference was also made. to the Tipperary case(3) where Morris, J. said:
(1) [1959] S.C.R. 583 at 596.
(2) 11 E.I..R. 278 at 293.
(3) (1875) 310, M & H 19.25.
686 " .... a petition is not a suit
between two persons, but is a proceeding in which the constituency itself is
the' principal party interested." This aspect of an election petition was
emphasised again in the ,case of Basappa v. Ayyappa(1) where it was held that
the provisions of O. 23 r. 1 of the Code of Civil Procedure do not apply to
election petitions and it would not be open to a petitioner to withdraw or
abandon a part of his claim once an election petition was presented to the
Election Commission.
Even though s. 87 ( 1 ) of the Act lays down
that the procedure applicable to the trial of an election petition shall be
like that of the trial of a suit, the Act itself makes important provisions of
the Code inapplicable to the trial of an election petition. Under O. 6 r. 17
C.P.C. a court of law trying the suit has very wide powers in the matter of
allowing amendments of pleadings and all amendments which will aid the court in
disposing of the matters in dispute between the parties are as a rule allowed
subject to the law of limitation. But s. 86(5) of the Act provides for
restrictions on the power of the High Court to allow amendments. The High Court
is not to allow the amendment of a petition which will have the effect of
introducing particulars of a corrupt practice not previously alleged in the
petition. With regard to the addition of parties which is possible in the case
of a suit under the provisions of O. 1 r. 10 subject to the added party's right
to contend that the suit as against him was barred by limitation when he was
irapleaded, no addition of parties is possible in the case of an election
petition except under the provisions of sub-s. (4 ) of s. 86. Section 82 shows
who are necessary parties to an election petition which must be filed within 45
days from the date of election as laid down in s. 81. Under s. 86(1) it is
incumbent on the High Court to dismiss an election petition which does not
comply with the provisions of s. 81 or s. 82. Again the High Court must dismiss
an election petition if security for costs be not given in terms of s. 117 of
the Act.
It is well settled that amendments to a
petition in a civil proceeding and the addition of parties to such a proceeding
are generally possible subject to the law of limitation.
But an election petition stands on a
different footing. The trial of such a petition and the powers of the court in
respect thereof are all circumscribed by the Act. The Indian Limitation Act of
1963 is an Act to consolidate and amend the law of limitation of suits and other
proceedings and for purposes connected therewith. The provisions of this Act
will apply to all civil proceedings and some special criminal proceedings which
can be taken in a court of law unless the application thereof has been excluded
by any enactment - (1)[1959] S.C.R. 611.
687: the extent of such application is
governed by s. 29(2) of the Limitation Act. In our opinion however the Limitation
Act cannot apply to proceedings like an election petition inasmuch as the
Representation of the People Act is a complete and self-contained code which
does not admit of the introduction of the principles or the provisions of law
contained in the Indian Limitation Act.
Before the recent amendment of the
Representation of the People Act, election petitions had to be presented to the
Election Commission and it was the Commission which was empowered under section
85 to dismiss the petition if the then provisions of s. 81, s. 83 and s. 117
were not complied with. It is only when the petition was not so dismissed that
the Election Commission had to appoint an Election Tribunal for the trial of
the petition. Under s. 85 the Commission had power to admit a petition
presented after the prescribed period if it was satisfied that there was
sufficient cause for the failure. Section 90(4) of the Act of 1951 empowered
the Tribunal to dismiss an election petition even if it had not been so
dismissed by the Election Commission.
The Act as amended in 1966 gives the
jurisdiction to try an election petition to the High Court of a State. The
provision for appeal in s. 116-A was introduced in the Act for the first time
in 1956 providing for an appeal from every order of the Tribunal under s. 98 or
s. 99 to the High Court of the State in which the Tribunal was situate. By
sub-s. (2) of s. 116-A of the Act as amended in 1956 the High Court was,
subject to the provisions of the Act, to have the same powers, jurisdiction and
authority and was to follow the same procedure with respect to an appeal' under
this Chapter (Chapter IV-A) as if the appeal were an appeal from an original
decree passed by a court situate within the local limits of its civil appellate
jurisdiction. Sub-s.
(3) fixed the time limit for filing the
appeal. to a period of 30 days from the date of the order complained of. The
proviso to this sub-section gave the High Court discretion to entertain an
appeal after the expiry of the period of 30 days, if it was satisfied that the
appellant had sufficient cause for not preferring the appeal within such
period.
This section was amended again in 1966 and s.
116-A( 1 ) now provides for an appeal from an order of the High Court under s.
98 or s. 99 to the Supreme Court on any question, whether of law or fact.
Sub-s. (2 ) of the new section is on the same lines as the old sub-s. (3)
excepting that the Supreme Court has been substituted for the High Court and
the High Court for the Tribunal in the old section.
While the Act of 1956 was in force this Court
had to go into the question as to whether s. 29(2) of the Limitation Act of
1908 would be applicable to an appeal preferred to the High Court 688 from an
order of the Tribunal. In Vidyacharan Shukla v. Khubchand Baghel (1) the main
question before this. Court was whether for the purpose of computing the period
of 30 days prescribed under s. 116-A(3) of the Act, the provisions, of s. 12 of
the Limitation Act could be invoked.
The High Court had proceeded on the basis
that s. 29(2) applied to the case of appeals under s. 116-A of the Act and on
that basis had held that the appeal was within time if it was 'computed after
making the deductions permitted by s. 12 of the Limitation Act. There was a
good deal of discussion in the case about the scope and extent of s. 29(2). We
are no.t concerned with that in the present appeal. According to the learned
Chief Justice and Ayyangar, J.
"even on the narrowest construction of
the words 'different from those prescribed therefor in the first schedule'
occurring in the opening part of s. 29(2), the exclusion of time provided for
by Art. 12 of the Limitation Act would be permissible in computing the period
of limitation for filing the appeal to the High Subba Rao, J. (as he then was)
took the view that s. 116-A did not provide an exhaustive and exclusive code of
limitation and did not exclude the general provisions of the Limitation Act.
The majority view was that though the fight of appeal was conferred by s. 116-A
of the Act of 1951 it was still an appeal under the Code of Civil Procedure and
to attract Art. 156 of the First Schedule to the Limitation Act, it was not
necessary for an appeal to be an appeal under the Code of Civil Procedure in
that the right to prefer the appeal should be conferred by the said Code. In
our view. sub-s. (2 ) of s. 116-A empowered the High Court to treat an appeal
under that section presented to it as if it were an appeal from an original
decree passed by a court within the local limits of its civil appellate
jurisdiction.
Consequently, the jurisdiction, powers and
authority of the High Court would be the same as in an appeal from an original
decree of a lower court. In other words, in entertaining the appeal and
disposing of it the High Court could exercise the same powers as were available
to it in an appeal from a decree of a lower court. To such an appeal the powers
of the High Court under s. 12 of the Limitation Act would necessarily 130
attracted, Mr. Ram Reddy attempted to press that decision to service in the
appeal before us. In our view, the situation now obtaining in an appeal to this
Court from an order of the High Court is entirely different. There is no
section in the Act as it now stands which equates an order made by the High Court
under s. 98 or Is. 99 to a decree passed by a civil court subordinate to the
High (1) [1964] 6 S.C.R. 129.
689 Court. An appeal being a creature of a
statute, the rights conferred on the appellant must be found within the four
corners of the Act. Sub-s. (2) of the present s. 116-A expressly gives this
Court the discretion and authority to entertain an appeal after the expiry of
the period of thirty days. No right is however given to the High Court to
entertain an election petition which does not comply with the provisions of s.
81, s. 82 or s. 117.
It was argued that if a petition were to be
thrown out merely because a necessary party had not been joined within the
period of 45 days no enquiry into the corrupt practices alleged to have been
committed at certain elections would be possible. This is however a matter
which can be set right only by the Legislature. It is worthy of note that
although the Act has been amended on several occasions, a provision like s.
86(1) as it now stands has always been on the statute book but whereas in the
Act of 1951 the discretion was given to the Election Commission to entertain a
petition beyond the period fixed if it was satisfied as to the cause for delay
no such saving clause is to be found now. The legislature in its wisdom has
made the observance of certain formalities and provisions obligatory and
failure in that respect can only be visited with a dismissal of the petition.
It is to be noted however that even though
the Indian Limitation Act, 1963 does not apply to an election petition
provisions like sections 9 and 10 of the General Clauses Act, 1897 providing
for computation of time which are in pari materia with sections 12( 1 ) and 4
of the Limitation Act would apply to such a petition.
The last submission of counsel for the
appellants was that the failure to implead V.K. Reddi did not make the election
petition liable to dismissal under s. 86 (1 ). It was argued that after V.K.
Reddi had withdrawn from contest he was no longer a candidate within the
meaning of s. 79(b) or 82(b) of the Act. In our opinion, it is not open to him
to argue that point in view of the decision of this Court in Hat Swarup v. Brij
Bhushan(1). It is to be noted that this decision does not stand by itself. In
Mohan Singh v.
Bhanwarlal(2) an attempt was made to get the
election petition dismissed in limine on the ground that one of the candidates
at the election, namely, Himmat Singh, against whom allegations of corrupt
practice were made in regard to withdrawal of his candidature was not joined as
a respondent. It was held by this Court that a mere offer to help in getting
employment was not an offer of gratification within the meaning of s. 123(1)(B)
of the Act. The Court however observed:
"If therefore the petition contained any
imputation of corrupt practice made against Himmat Singh, it could (1) [1967] 1
S.C.R. 342.
(2) [1964] 5 S.C.R. 12.
690 not be regarded as properly constituted
unless he was impleaded as a respondent, for, by the defmition of
"candidate" in s. 79(b), the expression "any other
candidate" in s.
82(b) must include a candidate who had
withdrawn Iris candidature." (see at p. 18 ).
Reference may also be made to Amin Lal v. Hunna
Mal(1).
It was however sought to be argued that s. 99
enjoined upon the High Court to name all persons who had been proved at the
trial to have been guilty of any corrupt practice and where such a person who
not a party to the petition, he was not to be so named unless he had been given
notice to appear before the High Court and asked to show cause why he should
not be so named and if he chose to appear, he was to be given an opportunity of
cross examining any witness already examined by the High Court and of calling
evidence in his own defence and of being heard. This provision, to our mind,
only enjoins upon the High Court to give an opportunity to a person sought to
be held guilty of a corrupt practice if he was not a party to the petition, but
it does not apply to a person who is a necessary party thereto. An obvious case
for the use of powers. under s. 99 would be that of an agent guilty of
commission of a corrupt practice with the consent of the candidate. Such a
person would not be a necessary party to the petition but he must have an
opportunity of showing cause and of being heard before the High Court can name
him as guilty of a corrupt practice while making an order under s. 98.
In our opinion, the appeal has no merits and
must be dismissed with costs.
G.C. Appeal dismissed.
(1) [1965] 1 S.C.R. 393.
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