IMPORTANT POINT
A candidate who withdraws his candidature after acceptance of his nomination would continue to be a candidate and the provisions of Section 82(b) would get attracted to such a candidate against whom allegation of corrupt practice is made in election petition.

JUDGMENT

Would the provisions of Section 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?

2. 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 withdrew 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, principally 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 Section 86 of the Representation of the People Act, 1951 (hereinafter referred to the Act ). It was averred that election petition was liable to be dismissed for non-compliance with the requirements of Section 82 of the Act. The preliminary objection was upheld and election petition was dismissed. Hence, this appeal.

3. Section 83(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."

4. Section 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 Section 81 or Section 82 or Section 117.

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."

5. In the instant case, Luis Alex Cardozo withdrew his nomination on 17th July, 1999. Election took place on 26th July, 1999. In the election petition, apart from 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 Shirokar, Shri Somnath Zuwarkar, Shri Sanjay Bandekar, Smt. Victoria Fernandes, Shri Luis Alex Cardozo, Shri Jose Pilip D Souza, Shri Mauvino Godinho, Shri Babu Azgaonkar 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."

6. The allegations, in a nutshell, 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 reward to vote at the election is a corrupt practice dealt with in Section 123-(1)(B) of the Act which provides :

"123-Corrupt practice :

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,