Krishan Chander Vs. Ram Lal [1973] INSC
135 (10 August 1973)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
DWIVEDI, S.N.
CITATION: 1973 AIR 2513 1974 SCR (1) 349 1973
SCC (2) 759
CITATOR INFO :
R 1974 SC 480 (21) RF 1974 SC1185 (16) R 1975
SC 968 (6) RF 1991 SC1557 (24)
ACT:
Representation of the People Act, 1951-Ss.
82(a) & (b) and 86--Directory or mandatory-Impleading of defeated
candidates against whom corrupt practices were alleged-Whether s. 82 violates
article 14 of the Constitution.
HEADNOTE:
In his election petition challenging the
election of the respondent the appellant alleged that the respondent and three
other defeated candidates committed various corrupt practices within the
meaning of sub-sections (1) to (7) of s. 123 of the Representation of the
People, Act, 1951. The respondent raised a preliminary objection that the
petition was liable to be dismissed for noncompliance with the provisions of
section 82 of the Act inasmuch as the defeated candidates against whom
allegations of corrupt practice had been made had not been joined as parties to
the petition.
The High Court upheld the objection and
dismissed the petition.
In appeal to this Court it was contended
that: (i) since the affidavit filed by the appellant in support of the election
petition merely stated that the allegations contained in the relevant
paragraphs were based on information received and had not stated what the
sources of information were, that part of the petition in which the allegations
of corrupt practices were made could not form the basis of a triable issued
(ii) while section 82(a) was mandatory s.82(b) was directory and as such the
petition could not be dismissed:
(iii) s.82(b) was violative of Art. 14 of the
Constitution..
Dismissing the appeal.
HELD : (i) The provision for setting out the
sources of information in an affidavit was not a requisite prescribed under r.
94-A of the conduct of Election Rules, 1961. There was 'nothing in the
affidavit in Form 25 under this rule which required the petitioner to state the
source or source", of his information. When there were specific rules
under the Act no other rules were applicable. If the petition and the affidavit
conformed to the provisions of the Act and the rules made thereunder, it could
not be said that because the source of information had not been given.
the allegations made in the petition had to
be ignored.
[353E-F] Smt. Sahodrobai Rai v. Ram Singh
Aharwar & Ors. A.I.R.
1968 S.C. 1079; Amulva Chandra Rhaduri v.
Satish Chandra Giri & Ors. A.I.R. 1932 Cal. 255 and Wasudeoraoji v. A. D.Mani
A.I.R. 1951 Nag. 26, held inApplicable.
(ii) Section 82(2) enioins that, apart from
the returned candidate whose election was challenged, any other candidate
against whom any allegations of corrupt practices were made should be joined as
parties to the petition Section 86 read with s 82 makes both cls. (a) and (b)
of s 82 mandatory and noncompliance with these requirements renders the
petition to be dismissed. In view of these provisions it was incumbent upon the
High Court where the allegation *as that the requirements of s. g) were not
complied with, to deter mine that issue as a preliminary issue. [353A-D] Charan
Lal Sohu v. Nandkishore Bhatt & Ors. C..A. No. 2411 of 1972 dated August 1,
1973, referred to.
Mohan Singh v. Bhanwarlal & Ors. A.I.R.
1964 S. C. 1366, held inapplicable.
(iii)An election petition cannot be split up
in such a manner as to maintain it in respect of allegations of corrupt
practiced only against some persons and not against other persons who were
required to be made necessary parties.
350 A person who was not a party and against
whom corrupt practices had been proved at the trial, natural justice required
that he should also be afforded an opportunity to contest that finding. Article
14 had no application because the object of s. 82 was one and indivisible and a
person coming to the court had to come with clean hands and not attempt to
prevent a full and complete enquiry or thwart fair trial by picking and
choosing the parties to the petition. [357C-F]
CIVIL APPELLATE JURISDICTION: civil Appeal
No. 2384 of 1972.
Appeal by special leave under section 116A of
the Representation of Peoples Act 1951 from the judgment and order dated the
2nd August 1972 of the Punjab and Haryana High Court at Chandigarh in Election
Petition No. 4 of 1972.
Appellant appeared in person.
D. N. Mukherjee and N. R. Chaudhury, for the
respondent.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-The appellant is a voter on the electoral roll of Karnal
Assembly Constituency. He challenged the election held on March 11, 1972, for
the membership of the Haryana Vidhan Sabha from Karnal Constituency. At that
election 16 candidates filed their nominations which were declared as valid
nominations. Out of these, eight candidates withdrew their candidature. The
respondent and sevel others were the contesting candidates.
After the polling on March 11, 1972, counting
took place on March 12, 1972 and the respondent was declared elected having
polled 17719 votes, the other candidates Shanti Devi polled 16857 votes, Balwan
Singh 1602 votes, Piyare Lal 1243 votes, Kali Ram 1203 votes, Kalu Ram 616
votes, Radhey Sham 542 votes and Kashmira Singh 180 votes.
The appellant filed a petition on April 24,
1972, challenging the election of the respondent Ram Lal on the allegations,
inter alia, that the respondent, his election agent and other persons with his
consent, had committed various corrupt practices detailed in the petition as
falling within the meaning of sub-ss. (1) to (7) of s. 123 of the Representation
of the People Act-hereinafter referred to as 'the Act'. For the purposes of
this appeal, the various allegations made against the respondent in the
election petition are not relevant. It is only necessary to state that certain
allegations of corrupt practices were made in paragraphs 11 & 12 of the
petition against Piyare Lal, Kali Ram and Kalu Ram. The petition was verified
by the appellant as required under the Rules. The appellant also filed an
affidavit in which he stated that paragraphs 11 & 12 among other paragraphs
were based on information received and were believed to be true. The respondent
filed a written statement on September 25, 1972, contesting the allegations of
various corrupt practices made by the appellant and further raised some pre
iminary objections one of which was that the petition was liable to be
dismissed for noncompliance with the provisions of s. 82 of the Act inasmuch as
the persons against whom allegatione of corrupt practice have been made such as
Pivare Lal Kali Ram and Kalu Ram had not been joined as respondents to the
petition.
351 The appellant, however, averred in reply
that Ram Lal respondent alone was required to be made a party and it was not
necessary to implead any other candidate or candidates as the allegations of
corrupt. practice were levelled against the successful candidate and not
againstother candidates. The learned Judge who tried the petition, after
hearing the 'petitioner in person and the respondents counsel, framed the
following two issues :
1.Whether it was necessary for the petitioner
to implead Sarvshri Ram Piare, Piyare Lal, Kali Ram, Kalu Ram and Kaslimira
Singh as parties to the petition in view of the allegations in paras 9, 10, 11,
12 and 20 of the election petition ?
2. If Issue No. 1 is found in favour of the
respondent, what is the effect of nonimpleadment of those persons as
respondents to the petition ? It was conceded by the respondent's counsel that
there was no, imputation of any corrupt practice against Shanti Devi, Balwan
Singh and Radhey Sham and accordingly there was no necessity to implead' them.
It was, however, urged that Comrade Ram Piare and the remaining four
candidates, namely, Piyare Lal, Kali Ram, Kalu Ramand Kashmira Singh, having
been charged with committing corrupt practices set out in the a aforesaid
paragraphs were necessary parties. The arned Judge held that Comrade Ram Piare
had withdrawn his candidature before the prescribed date, therefore, he was not
a necessary party to the petition, nor was there any allegation against him,
that he was prevailed upon to withdraw by bribery, receipt of gratification or
reward which would constitute a corrupt practice within the meaning of s. 123
of the Act. Even in respect of Kashmira Singh the allegation that he was
persuaded to retire from the contest and" sit silent in the election if he
could not help the respondent could not amount to corrupt practice. The Court,
however, came to the conclusion that the petitioner had in paragraphs 11 and 12
of the petition made allegations of corrupt practices against Piyare Lal, Kali
Ram and Kalu Ram and in view of these allegations failure to implead them as
parties to the petition contravened the mandatory provisionsof s. 82 of the
Act. In this view the election petition was dismissed. Against 'this decision,
the appellant has come up in appeal before us.
The petitioner who argued the appeal in
person contends, inter alia, firstly, that as the affidavit filed by him in
support of the election petition merely stated that the allegations contained
in paragraphs 11 and 12 were based on information received and he had not
stated. what the sources of information were, that part of the petition in
which the allegations of corrupt Practices were made against Pivare Lal, Kali
Ram and Kalu Ram cannot form the basis of a triable issue.. Consequently the
allegations against the respondent should have been enquired into; secondly,
that the learned Judge should have on the pleading-, framed and tried all
issues arising out of the petition and not merely issues confined to a
preliminary point. Where issues of' fact and law arise out of a petition it is
contended that evidence should have, been recorded and findings given in
respect of all those issues; thirdly, the appellant submits that while s. 82(a)
is mandatory, s.
352 82(b) is directory, as such the petition
cannot be dismissed; fourthly, the allegations in paragraphs 11 & 12 of the
petition did not constitute corrupt practice inasmuch as the allegations, only
state that money was paid, but there was no express averment that it was
accepted by the persons, concerned; and lastly, it was contended that s.82(b)
is violative of Art. 14 of the Constitution in that it was harsh and would
result in the dismissal of the petition in which allegations of corrupt
practices were made against the successful respondent who committed them,
merely because proper allegations were not made against the persons who were
not elected.
In support of his first contention the
appellant has referred to decisions rend,.-red under O. VI r. 15 and O.
XIX r. 2 of the Code of Civil Procedure.
These decisions, in our view, have no relevance and ,do not support the
submission of the appellant that in the affidavit in support of the petition if
he has not stated the sources of information on which the several allegations
in the petition are based, those allegations cannot be deemed to, have been
made. Order VI r. 15(2) states that the person verifying shall specify, by
reference to numbered paragraphs of the pleadings, what he verifies on his
knowledge and what he verifies upon information received and believed to be
true. This provision, as we shall presently show, is no different to that
required to be stated on an affidavit by the proviso to s. 83(1) read with r.
94A and Form 25 of the Conduct of Election Rules, 1961. Order XIX r. 2 has no
relevance as that deals with evidence being given on affidavit and if either
party insists the Court may order the deponent to attend for cross-examination.
At the outset it may be stated that the provision
for setting out the sources of information where the allegations have been
verified as having been made on information and knowledge of the petitioner is
not a requisite prescribed under r. 94-A of the Conduct of Election Rules,
1961, which are applicable to the filing of an election petition. Under sub. s.
(1 ) of s. 83 an election petition has to contain a concise statement of the
material facts on which the petitioner relies; it has to set fort a 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
each such practice and shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908, for the verification of
the pleadings, provided that where the petitioner alleges any corrupt practice.
the petition shall also be accompanied by an affidavit in the prescribed form
in support of the allegation of such corrupt practice and the Particulars
thereof. The affidavit in Form 25 prescribed under r. 94-A is as follows
"I...... the petitioner in the accompanying elect ion petition calling in
question the election of Shri/Shrimati .... (respondent Ro .... in the said
petition) make solemn affirmation on oath and say353 (a)that the statements
made in paragraphs.... of the accompanying election petition about the
commission of the corrupt practice of and the particulars of such corrupt
practice mentioned in paragraphs of the same petition and in paragraphs .... of
the Schedule annexed thereto are true to my knowledge;
(b) that the statements made in paragraphs
.... of the said petition about the commission of the corrupt practice of * the
particulars of such corrupt practice given in paragraphs. . . . of the said
petition and in paragraphs of the Schedule annexed thereto are true to my
information.
(c) (d) (e) Signature of deponent Solemnly
affirmed/sworn by Shri/Shrimati....
at this.... day of 19 ....
Before me, *Here specify the name of the
corrupt practice.
Magistrate of the first
class/Notary/Commissioner of Oaths.
There is nothing in this form which requires
the petitioner to state under cl. (b) of Form 25 the source or sources of his
information The appellant has referred us to O. 11 r. 13 of the Supreme Court
Rules as also to r. 12 of the Punjab High Court Rules, in which when the
deponent in the affidavit filed in support of the petition states that he has
made the allegations in the paragraph or paragraphs specified on information,
he is required also to disclose the sources of in,formation. But when there
'are specific Rules made under the Act which govern the election petitions, no
other Rules are applicable. Nor is the disclosure of the source of information
a requisite under O.
VI r. 15(2) C.P.C. On this ground alone the
submission of the appellant can be rejected. But as he has cited several cases,
a: few of them may be examined to show that they do not help him.
In Amulya Chandra Bhaduri v. Satish Chandra
Giri and others() what was considered was whether the affidavit in support of
the petition under the Contempt of Courts Act, 12 of 1926, disclosed the
sources of information in respect of the allegations made in the petition for
contempt of Court.
It was observed that in cases of this nature,
as is well known, the practice of the Court was to enable the parties concerned
to know what are the points they have got to answer in a charge of contempt and
the practice has always been that the opposite parties, namely, the parties
charged with contempt, can-not be called upon to answer to anything which is
not set out specifically in the grounds used before the Courts at the time when
the Rule was (1) A.I.R, 1932 Cal. 255.
(2) A.I.R. (1951) Nag., 26.
354 issued. Wasudeoraoei v. A. D. Mani(2) is
also a case under the Contempt of Courts Act. 1926, and does not support the
submission of the appellant. There is nothing in these decisions which state
that the affidavit in support of an election petition should itself disclose
the sources of information. The election petition under s. 83 (1) (b) itself
must contain all the particulars that are necessary and in the affidavit in
support of that petition the petitioner is required to say which of the
allegations made in various paragraphs of the petition are true to his
knowledge and which of them are true to his information. If any sources of
information have not been set out and the respondent cannot answer them without
particulars,. he can always apply for better particulars. If the petition and
the affidavit conform to the provisions of the Act and the Rules made there under,
it cannot be said that because the sources of information have not been given,
the allegations made in the petition have to be ignored.
The decision in Smt. Sahodrabai Rai v. Rain
Singh Aharwar and others(1) states nothing further than that under the
Representation of the People Act, details of corrupt practice or averments too
compendious for being included in the election petition may be set out in the
schedules or annexures to the election petition. The law requires that even
though they are outside the election petition, they must be signed and
verified, but such annexures or schedules are then treated as integrated with the
election petition and copies of them must be served on the respondents if the
requirement regarding service of the election petition is to be wholly complied
with. No doubt it was observed in this case that the trial of election petition
has to follow as far as may be the provisions of the Code of Civil Procedure.
But these observations were made in respect
of the need to furnish along with the plaint copies of all the documents filed
with the plaint when summoning the defendants. The Court observed that the
plaintiff is required to file one copy of the documents and not as many copies
as there are defendants in the case. It is clear that the documents which are
filed with the plaint have to be accompanied by one copy of the documents. This
is because the copy is compared with the original and the copy is endorsed by
the clerk of court and the document is sometimes returned to the party to be
produced into Court later. The copy takes the place of the document concerned
and is not to be sent out to the parties with the plaint. The election law does
not provide anything different. This case also does not assist the appellant.
It is unnecessary for us to refer to other
decisions which are not germane to the contentions urged before us In our view.
there is no defect in the election petition. There is no force in the
submission that because the source of information had not been disclosed the
allegations of corrupt practices made in the petition have to be ignored.
It may also be pointed out that the logical
result of the contention urged by the appellant that the affidavit is
defective, if accepted, would make the election petition itself not
maintainable for having filed a defective affidavit. On this ground itself the
petition could be rejected, but such is not the position in law and in our view
the election petition does not suffer from any defect on this score.
(1)A.I.R. [1968] S.C. 1079.
3 5 5 The next submission of the appellant
that all issues should have, been framed and tried, instead of only one issue
on the preliminary Point is equally without force. Section 82(2) enjoins who
the parties to the petition should be, and among those, apart from the returned
candidate whose election is challenged, any other candidate against whom any
allegations of corrupt practices are made in the petition should be joined. If
this requirement is not fulfilled, sub-s. (1) of s. 86 makes it mandatory for
the High Court to dismiss the election petition for noncompliance with the
provisions of s. 82 of the Act. The contention of the appellant that while cl.
(a) of s. 82 is mandatory, cl. (b) of that section is only directory, is not
tenable because reading s. 86 with s. 82 makes both cls. (a) and (b) of the
latter section mandatory and non-compliance with the requirements thereof
visits the petitioner with the penalty of having his petition dismissed. In
view of these provisions, it is incumbent upon the High Court, where the
allegation is that the requirements of s. 82 are not complied with, to
determine that issue as a preliminary issue. If the respondent has made out his
case on that issue, the Court is left with no option but to dismiss the
petition for non-compliance with the mandatory provisions of s. 82. This Court
has held in Charan Lal Sahu v.Nandkishore Bhatt & Ors(1) that
non.-compliance with the provisions of s. 117 of the Act which is one of the
sections mentioned in sub-s. (1) of s. 86 merits dismissal of the election
petition.
Before dealing with the third and fourth
submissions, it is necessary to see what the allegations made by the petitioner
in paragraphs 11 and 12 are. The following are the allegations in respect of
these paragraphs :
"11. That through Sh. Sardha Ram,
President, Municipal Karamchari Dal, Karnal and Sh.Prithvi Raj President Distt.
Municipal Subordinate Employees Union, Karnal the respondent Sh. Ram Lal and
Sh. Hargobind Senior Vice President, Municipal Committee, Karnal induced Sh.
Piara Lal a caste brother of Mr. Sardba Ram to stand at the election for the
Karnal Assembly Constituency for that deal Sh. Sardha Ram was promised that he
would not be dismissed again even if his appeal had been dismissed by the
learned Commissioner Ambala Division and Sh. Prithvi Raj would be given
extension of his service. It was further promised by the respondent at the
house of Sh.Piara Lal Ward No. 9, Jundle gate, Karnal that he would bear the
entire election expenses of Sh. Piara Lal for the purpose and he was paid Rs.
3000 for standing in the elections in advance as gift by the respondent on 10th
Feb.
1972. It was further agreed upon that Jan
Sangh workers would also work for Sh. Piara Lal. He was actually supplied
workers and loud speaker fitted Rikshaw for opropaganda work. So this
inducement to Sh. Piara Lal to stand at the election is a corrupt practice in the
meaning of the section 123 (1) (A) (a) of the Representation of People Act and
election is void.
(1) C. W No. 2411 of 1972 decided on August
1, 1973.
356 12.That the respondent Sh. Ram Lal
accompanied by his agents Sh. Sunder Lal Dhawan, Sh.Baldev Raj Anand and also
Sh..Prithvi Raj Anand Officiating Health Officer, Municipal Committee Karnal,
went to the, house of Sh. Kali Ram resident of Sadar Bazar, Karnal and offered
him Rs. 2000/as inducement to stand as candidate at the election, they further
offered him that the entire election expenses and substantial workers would
also be supplied by Sh. Ram Lal and his party as the Congress nominee belonged
to Jat community of the Chief Minister of Jats always have been torturing the
Harijans. Sh.Kali Ram on 10th Feb. 1972 took them to the house of Sh. Kalu Ram
resident of Jawahar Market, Karnal where Sh. Kalia was sitting with his friends
Sh. Ved Parkash and Sh. K.K. Marwaha and after discussions Sh. Kalu said that
the respondent every time makes Sh.
Piara Lal stand at the elections and why he
did not come to him first as Sh. Piara Lal was not superior or more influential
in Jhimers of Karnal. Upon this it was settled that Sh. Kalu should also stand
and for that purpose he was also paid Rs. 2000/on the spot and so was Sh. Kali
Ram paid Rs. 2000/-.
Next day i.e. on 11-2-1972 Sh. Kali Ram
accompanied by Kalu filed their nomination papers and they both praised that
they would not withdraw their candidature come what may and from next morning
i.e. from 42-2-1972 both of them were given loud speaker fitted Rikshaw and
workers for propaganda sake till 9th March, 1972. This gratification and offer
to the persons to stand in elections and with promise on their part not to
withdraw till end of elections is a corrupt practice within the meaning of
Section 123 (1 ) (A) (a) (B). So election is void.
A perusal of the contents of paragraph-11
will show clearly that the respondent bad promised Piare Lal at his house that
he would bear the entire expenses and in furtherance of that promise had paid
Rs. 3000 for his standing in the elections in advance as gift on February 10
1972. This inducement to Piara Lal to stand at the election has been alleged as
a corrupt practice within the meaning of s. 123 ( 1 ) (A) (a) of the Act. Similarly
allegations in paragraph1 2 are that the respondent offered to Kali Ram and
Kalu Ram on February 10, 1972, Rs. 2000 each to stand as candidates for
elections and that on February 11, 1972, Kali Ram accompanied by Kalu Ram filed
their nomination papers. This gratification and offer to the persons to stand
in elections so that they may later withdraw from the elections to help the
respondent was a corrupt practice within the meaning of s. 123(1)(A)(a)(B). In
our view, there can be no manner of doubt that the averments in paragraphs 11
and 12 amount to allegations of corrupt practice. The argument of the appellant
that there is nothing in paragraphs II and 12 from which it can be gathered
that Piare Lal, Kali Ram and Kalu Ram had accepted the gratification, when it
is categorically stated that the amounts had been paid to the persons on the
soot and that these amounts were paid to induce them to stand for the elections
and in pursuance thereto such person or persons stood 357 for the, elections
with the object of withdrawing subsequently after the nomination papers were
held valid.
appears to us to be spacious. The case or
Mohan Singh v.Bhanwarlal and others (1) cited by the petitioner has no
application, because on the facts of that case, there was no express averment
that one of the candidates had withdrawn his candidature as a consequence of a
promise made to him by. the successful candidate that a job will be secured for
him, as such it was held that it did. not disclose an allegation of corrupt practice.
The High Court, in our view, was right in holding that paragraphs 11 and 12
contained allegations of corrupt practices alleged to have been indulged in by
the three persons named therein. Once an allegation of corrupt practice is made
against the candidates who have offered themselves for the elections, sub-s.
(b) of s. 82 of the Act applies, and the failure to implead the three persons
named in the petition is fatal to the maintainability of the petition.
The last contention that s. 82(b) is violative
of Art. 14 of the Constitution is equally farfetched. The provision that
non-compliance with any of the provisions of s. 82 makes it obligatory on the
High Court to dismiss the petition cannot be said to be discriminatory, merely
because substantial allegations against the respondent who had been successful
at the elections cannot be tried for non-compliance with those requirements, if
other unsuccessful candidates against whom corrupt practices are alleged are
not made parties' A petition challenging the election of a successful candidate
is required to set out certain particulars and to join certain persons as
necessary parties to that petition, and if it omits to comply with any of the
mandatory provisions of the Act the petition is liable to be dismissed under s.
86(1). The petition cannot be split up in a
manner as to maintain it in respect of allegations of corrupt practices only
against some persons and not against other persons who are required to be
necessary parties.
In any election, where a candidate challenges
the validity of the election of a successful candidate, and further asks that
he be declared duly elected, all contesting candidates must be made parties to
the petition. The reason for this provision is obvious, because other candidates
who have contested have interest in the result of the election and may even
challenge the petitioner's prayer for his being declared duly elected. Where
corrupt practice is alleged the need for maintaining the purity of elections
requires that where it appears to the Court that persons whether candidates or
not have indulged in corrupt practice, it should make an equity in respect of
such corrupt practice which has been proved at the trial. This is evident from
s.
99 which requires that the Court at the time
of making an order under s. 98 should also make an order, naming all persons
who have, during the trial, been proved guilty of corrupt practices and also
state the nature of those corrupt practices. Where any person against whom
corrupt practice is alleged is a party he will naturally have sufficient
opportunity to defend himself against such allegation, but a person who is not
a party and against whom corrupt practices have been proved at the trial,
natural justice requires that he be also afforded an opportunity to (1)A.T.R.
[1964] S. C. 1366.
358 contest that In order to facilitate him
to do so the proviso to clause (b) of sub-s. (1) of s. 99 requires the Court
give the person concerned notice to appear before the Court and to show cause
why he should not be so named If any person whether he be a candidate at the
election. or not, is found guilty of any corrupt practice as provided in s. 123
he will incur a disqualification under s. 8-A for A period of six years from
the date on which the order under s. 99 takes effect. If such are the
consequences of being found guilty of corrupt practices in cases where a person
is not made a party to the petition, and corrupt practice against him is
discovered during the trial, then a person who challenges an election, and with
the knowledge that other candidates have indulged in corrupt practices
deliberately omits to make them parties debarring them from any opportunity to
defend themselves,. he is visited with the penalty of having his petition
dismissed for noncompliance with the mandatory provisions of s. 82. The concept
of fair trial requires that all candidates who are known to the petitioner to
have indulged in corrupt practices should be made parties, and this is the
reason why s. 82(b) has been enacted. Section 82 differs from the proviso to
cl. (b)of sub-s. (1) of s. 99 in that the former contemplates joining of
parties who are known to the petitioner at the time of filing his petition,
whereas the latter deals with the cases which are discovered during the trial
and which were not known to the petitioner at the time of filing the petition.
Apart from ensuring the purity of elections,
and finality in regard to all election matters, one other consideration seems
to be the expeditious disposal of election petitions.
Before the amendment of s. 82 by Act 27 of
1956 the un amended section made it incumbent on a petitioner "to join as
respondent to his petitioner candidates who were duty, nominated at the
election other than himself, if he was so nominated."The reason for the
amendment of s. 82 has been stated in the notes on clauses to the Amendment
Bill No. 33 of 1955 to be that the section as it stands holds up the trial of
an election petition because of the difficulty in serving a notice on all those
who have been nominated It is further stated: "Naturally, it is only the
returned candidate who takes any interest in contesting the election petition.
Moreover there is a provision in section 90 which enables any other candidate
to join as a respondent. It is accordingly proposed in this clause that section
82 should be revised so that it is necessary to join as respondents only those
candidates who are interested prima facie in the outcome of the petition."
After the amendment the candidates under clause (b) of s. 82 are not impleaded
merely because they are necessary parties in an election petition in which a
declaration is sought that the election of all or any of the candidate would be
void, but are impleaded as parties because there are allegations of corrupt
practices against them in the election petition. Where action is taken under s.
90 and order under s. 98 of the Act dismissing the election petition or
declaring the election of all or any of the returned candidates to be void
and/or declaring the petitioner or any other candidate to have been duly
elected, would delay the, disposal of the election petition, because notice
will have to be 3 5 9 given to all the persons named under the proviso to
sub-cl.
(ii) of cl. (a) of sub-s. (1) of s. 99. , The
provisions of 82(b) would avoid any such delay as they make it obligatory for a
person filing an election petition when he makes an allegation of corrupt
practice against any candidate to make him a party on pain of the petition
being dismissed under s.
86(1) if he omits to do so. It may also be
pointed out that a person who offers himself to stand as candidate at an
election holds out to the voters that if elected he will truly and effectively
represent them in the Assembly to which he is elected. The voters of the Constituencies
equally expect from their candidates who have offered themselves at the
election a high degree if integrity and honesty, and if there are allegations
in an election petition that any of the candidates have indulged in corrupt
practices, it would be in consonance with the purity of elections that they
should be made, parties and the allegations of corrupt practices enquired into
after giving them an opportunity to meet those allegations. Under s. 90 though
it is not required that those against whom corrupt practices have been proved
should be made parties, yet they are required to be named for the purposes of
being debarred from offering themselves as candidates, in future. This then is
the rationale underlying the mandatory requirements of s. 82 (b). In any view
of the matter, Art. 14 has no application, because the object of s. 82 is one
and indivisible in that it is incumbent on any person coming to Court to
challenge an election to come with clean hands and not attempt to prevent a
full and complete enquiry or perhaps dictated by his own interests to thwart
fair trial by picking and choosing the parties to the petition.
As none of the contentions urged by the
appellant has any validity, this appeal is dismissed with costs.
P.B.R.
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