Full Judgment Text
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PETITIONER:
GADNIS BHAWANI SHANKAR.
Vs.
RESPONDENT:
FALEIRO EDUARDO MARTINHO
DATE OF JUDGMENT: 01/08/2000
BENCH:
R.C.Lahoti, K.G.Balakrishnan
JUDGMENT:
Judgement
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Would the provisions of sec. 82(b) of the
Representation of the People Act, 1951 get attracted to a
candidate who allegedly commits a corrupt practice, after
the withdrawal of his candidature as a voter, is the
meaningful question requiring our consideration in this
appeal?
The appellant was a candidate for rajya Sabha
elections for one seat from Goa in the year 1999. There
were three candidates in the fray. Apart from the appellant
and respondent. there was another candidate Luis Alex
Cardozo. All the three candidates had filed their
nomination papers which were accepted. After the acceptance
of his nomination paper Luis Alex Cardozo withdraw from the
contest on 17th July, 1999. In the contest held thereafter
respondent was declared elected.The appellant filed an
election petition, challenging the election of respondent,
pricipally on the ground of commission of corrupt practices.
In the election petition respondent alone was arrayed as a
party-respondent. After service of notice, respondent
raised a preliminary objection by filing an application
under Sec 86 of the Representation of the People Act, 1951
(hereinafter referred to as the ’Act’) It was averred that
election petition was liable to be dismissed for
non-compliance with the requirements of Sec. 82 of the Act.
The preliminary objection was upheld and election petition
was dismissed. Hence, this appeal.
Section 82(b) of the Representation of the People Act,
1951 provides:
"82 - A petitioner shall join as respondents to his
petition -
(a) -----------------------
(b) any other candidate against whom allegations of
any corrupt practice are made in the petition."
Sec 86 which deals with trial of election petitions
provides in sub-clause (1) as follows:
"86(1) The High Court shall dismiss an election
petition which does not comply with the provisions of sec.
81 or section 82 or sec. 117
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Explanation - An order of the High Court dismissing an
election petition under this sub-section shall be deemed to
be an order made under clause (a) of section 98."
In the instant case, luis Alex Cardozo withdraw his
nomination on 17th July, 1999. Election took place on 26th
Jullly, 1999. In the election petition apart form various
other allegations against the respondent two allegations
contained in paragraphs 30-D(ii) and 30-G alone are relevant
for purposes of our discussion. Those paragraphs read thus
:
"30-D The corrupt practice committed by the respondent
and his agents is as follows:
i) --------------------
(ii) Offering and promising of cabinet berths to some
of the 8 dissidents Mlas of congress party and appointment
on other important public offices to the remaining of them
as also to one independent MLA who are namely Shri Subash
shirodkar, shri Somnath Zuwarkar, Shri sanjay Bankekar, Smt.
Victoria fernandes, Shri Luis Alex Cardozo Shri Jose Philip
D’souza, Shri Mauvino Godinho Shri Babu Azganokar and Shri
Isidoro Luis Fernandes (Independent).
G - The said 8 dissident Congress MLAs and one
independent MLA in agreement to receive the said
gratification voted for the respondent at the said
election."
The allegations, in a nutshall, contained in these two
paragraphs are concerned, are to the effect that after
withdrawal of his candidature, Cardozo agreed to receive
gratification along with some other MLAs as a motive or
reward to vote for respondent. Acceptance of or agreement
to receive gratification as a motive or raward to vote at
the election is a corrupt practice dealt with in Section
123-(1)(B) of the Act which provides:
"123 - Corrupt practices :
The following shall be deemed to be corrupt practices
for the purposes of this Act :-
(1) "Bribery", that is to say -
(A) ------------------------------
(B) the receipt of, or agreement to receive, any
gratification, whether as a motive or a reward -
(a) by a person for standing or not standing as or for
withdrawing or not withdrawing from being a candidate; or
(b) by any person whomsoever for himself or any other
person for voting or refraining from voting or inducing or
attempting to induce any elector to vote or refrain from
voting or any candidate to withdraw or not to withdraw his
candidature.
Explanation - For the purposes of this clause the term
"gratification " is not restricted to pecuniary
gratification or gratifications estimable in money and it
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includes all forms of entertainment and all forms of
employment for reward but it does not include the payment of
any expenses bona fide incurred at or for the purpose of any
election and duly enteredd in the account of election
expenses referred to in sec. 78."
A plain reading of the above provision shows that the
receipt of or agreement to receive, any gratification as a
motive or reward by any person whomsoever fro himself or any
other person for voting or refraining from voting or
inducing or attempting to induce any elector to vote or
refrain from voting or any candidate to withdraw or not to
withdraw his candidature would amount to commission of a
corrupt parctice. The averments noticed in paragraphs
30-D(ii) and 30-D of the election petition (supra) contain
allegations against Cardozo that he agreed to receive
gratification as a motive or reward for voting in favour of
the respondent. Thes averments would amount to allegations
of commission of corrupt practice by Cardozo within the
meaning of Sec. 123(1)(8) of the Act.
The argument of Mr. Krishnamani, learned senior
counsel appearing for the appellant, however, is that since
Cardozo had withdrawn from the contest he could not be
treated as a candidate who was necessarily required to be
impleaded as a party-respondent under sec. 82(b) of the Act
and if the corrupt partice was committed by him as a voter
only he was not required to be impleaded as a party
respondent in the election petition. This argument does not
appeal to us. Sec. 79(b) of the Act defines a candidate to
mean a person who has been or claims to have been duly
nominated as a candidate at any election. There is no
dispute that Cardozo had been duly nominated as a candidate
at the election in question. A similar argument as raised
by Mr. Krishnamani came up for consideration in Har Swarup
& Anr. Vs. Brij Bhushan saran & Others (1967 (1) SCR 342).
Wanchoo, J. speaking for a three judge Bench opined
:-
"But the argument is that as the alleged corrupt
practice was committed after the date of his withdrawal he
would not be a candidate within the meaning of S. 82(b).
We are of opinion that if the effect of withdrawal is said
to be that a person nominated can do longer be considered to
be a candidate only after his withdrawal the date of
withdrawal cannot be a dividing line as to the time upto
which he can be treated as a candidate and the time after
which he cannot be treated as a candidate. If purity of
elections has to be maintained a person who is a candidate
as defined in sec. 79(b) the Act will remain a candidate
even after he withdraws till the election is over, and if he
commits a corrupt partice whether before or after his
withdrawal he would be a necessary party under s. 82(b) of
the Act."
In Ram Pratap Chandel Vs. Chaudhary Lajja Ram and
Other (1998 (8) SCC 564), the requirements of Section 82 of
the Representation of the People Act were dealt with and the
Bench held opined that a candidate against whom a charge of
corrupt practice had been made in the election petition was
required to be joined as a party to the election petition,
irrespective of the fact whether he had withdrawn his
candidature and not contested the election as such and had
committed the corrupt practice after his withdrawal.
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The Bench in Ram Pratap Chandel’s case considered the
judgment in Mohan Raj Vs. Surendra Kumar Taparia & Ors.
1969 (1) SCR 630 which has been prassed into aid by Mr.
Krishnamani before us distinguished it in the following
words :-
"Lastly, it is submitted that Periwal was being
charged in his character as an election agent and not as a
candidate. This submission runs counter to the amendment
petition which says that he was not an election agent and
therefore, he was really charged in his capacity as an
individual andd as he was a duly nominated candidate he had
to be joined. The argument really contradddicts the last
amendment petition and cannot be entertained.
He submitted that the allegations of corrupt partice
made against a person who, though he had been a candidate,
had withdrawn in his capacity as the election agent of
another candidate, did not necessitate his impleadment and
this question had been left open in the aforesaid judgment.
It is difficult to agree. By reason of the contradiction
the argument was not entertained. But it is clear from what
was stated there in abovee that a candidate who is duly
nominated continues to be a candidate for the purposes of
Section 82(b) in spite of his withdrawal and if allegations
of corrupt practice are madee against him,, he must be
impleaded as a party to the election petition or the
election petition must fail."
We are in complete agreement with the exposition of
law, as made above.
In our opinion the allegations which have been made in
the election petition are allegations of corrupt partice
against Cardozo basides some others. Since, Cardozo was a
nominated candidate. It was necessary to implead him as a
party-respondent under Section 82(b) of the Act.
irrespective of the fact that before the actual date of
election he had withdrawn his candidature and allegedly
committed the corrupt practice after his withdrawal from the
election. Thus, the answer to the question posed in the
earlier part of the judgment is in the affirmative.
The learned Single Judge of the High Court committed
no error in dismissing the election petition for
non-compliance with the provisions of Sec. 82(b) of the
Act. The appeal has no merits. It fails and is dismissed.
Parties to bear their own costs.
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