Full Judgment Text
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PETITIONER:
K. VENKATESWARA RAO AND ANR.
Vs.
RESPONDENT:
BEKKAM NARASIMHA REDDI & ORS.
DATE OF JUDGMENT:
13/08/1968
BENCH:
MITTER, G.K.
BENCH:
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withdrawn from contest-Such candidate not impleaded during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
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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
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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]
JUDGMENT:
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
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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
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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 thereunder, 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.
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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
thereunder, 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-
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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
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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 enact-
(1)[1959] S.C.R. 611.
687
ment: 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.
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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
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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 crossexamining 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
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dismissed with costs.
G.C. Appeal dismissed.
(1) [1965] 1 S.C.R. 393.
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