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2001(2) Supreme 492
SUPREME COURT OF INDIA
(From Bombay High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & Shivaraj V. Patil, JJ.
Patangrao Kadam -Appellant
versus
Prithviraj Sayajirao Yadav Deshmukh & Ors. -Respondents
Civil Appeal No. 1789 of 1998
Decided on 26-2-2001
Counsel for the Parties :
For the Appearing Parties : P.P. Rao, V.A. Mohta, Sr. Advocates, Nikhil Sakhardande, Ms. Meenakshi Sakhardande, Ms. Poonam, Mrs. V.D. Khanna, S.V. Deshpande, Pramit Saxena, L.M. Acharya, Ms. Anuradha Rastogi, S.M. Jadhav, Advocates.
Held : (Reading Sections 79, 86, 99 and 123 of RPA) there are three categories of candidates as can be gathered from the provisions contained in the RPA - (1) candidate, (2) contesting candidate, and (3) returned candidate. (Para 10)
From the plain and unambiguous language and terms of Sections 79(b) and 82(b) without anything more, Sampatrao Chavan had to be necessarily joined as a respondent. He was a candidate within the meaning of Section 79(b) and in the election petition the appellant had sought further declaration, that he should be declared as duly elected. Hence Section 82 (b) got attracted. Section 82 speaks of all the three categories - the contesting candidates, the returned candidates and any other candidate. Sampatrao Chavan, as already stated above, undoubtedly, is covered by Section 82(b) read with Section 79(b). Merely because he became an election agent of the respondent no.1 subsequently after withdrawal of his candidature, he did not cease to be a "candidate" within the meaning of Section 79(b). Section 82 is mandatory in relation to joining of respondents mentioned therein. Section 86(1) does not leave any option to the High Court but to dismiss an election petition for non-compliance of Sections 81, 82 and 117. (Para 12)
One more aspect to be kept in view is that since serious consequences follow against a candidate within the meaning of Section 79(b) indulging in corrupt practices in an election, principles of natural justice do demand of providing an opportunity to such a candidate. In this view also impleading of Sampatrao Chavan as respondent to the election petition was necessary in terms of Sect-ion 82(b). (Para 15)
In the case on hand it was also pointed out to us that the corrupt practice was alleged in the election petition not only against the respondent No. 1 but also against his election agent Sampatrao Chavan specifically pointing out. (Para 18)
This apart, one thing is clear that since he did not cease to be a candidate within the meaning of Section 79(b), as already discussed above, his non-joining as respondent in the election petition was fatal. (Para 19)
Thus having regard to all aspects, we do not find any infirmity in the judgment and order impugned in these appeals which may warrant interference by this Court. In the light of the facts stated, discussions made and reasons given above, these appeals, in our view, are devoid of any merit and consequently they are dismissed, but without any order as to costs. (Paras 25 and 26)
JUDGMENT
Shivraj V. Patil, J.-These appeals are filed under Section 116-A of the Representation of People Act, 1951, aggrieved by the judgment and order dated 29.1.1998 of the High Court of Judicature at Bombay made in election petition No. 5 of 1996. Since the election petition was dismissed upholding the preliminary objection by the respondent No.3, we consider it unnecessary to narrate the pleadings and facts in detail. However, the relevant and material facts, which are considered necessary for the disposal of these appeals, briefly stated, are the following.
2. The appellant filed election petition No. 5 of 1996 impugning the election of the respondent No. 1 to be void under section 100(1)(b) and 100(1)(d)(ii) and 100(1)(d)(iv) read with section 123(4) of the Representation of People Act, 1951 (for short "the RPA ) and sought for further declaration that he should be declared as elected. One Sampatrao Yadav Deshmukh was elected to the Maharashtra State Assembly from Bhilawadi-Wangi Constituency No. 270 of Sangli District in the general election held in the month of March, 1995. He died on 6.5.1996. Consequently, a notification was issued on 13.9.1996 for holding bye-election to the said Constituency. The last date for filing nomination papers was 20-9-1996. On 18.9.1996 the appellant, the respondent No. 1 and one Sampatrao Chavan filed nomination papers. Sampatrao Chavan withdrew his candidature on 23.9.1996, which was the last date for withdrawal of nomination papers. The final list of contesting candidates was published on the same day wherein the appellant and the respondents 1-6 were left in the field. Sampatrao Chavan after withdrawal of his candidature became the election agent of the respondent No. 1. Polling took place on 11.10.1996. After counting the respondent No. 1 was declared elected on 13.10.1996 having secured 72,526 votes being the highest.
3. In the election petition, allegations were made against the respondent No. 1, his agents, supporters and his election agent - Sampatrao Chavan. The respondent No. 1 filed his written statement inter alia raising the contention that the election petition was not maintainable for non-compliance of mandatory provisions of sections 81 and 83 of the RPA and sought for its dismissal. He denied all the material averments made in the election petition. The trial court framed issues including issues as to the maintainability of the election petition. The respondent No. 1 took out chamber summons no. 66/98 to decide the maintainability of the election petition. After hearing the learned counsel, the High Court held that the issue Nos. 1 and 2 regarding maintainability of election petition cannot be decided at the threshold and the points raised in the said chamber summons were kept open until final hearing of the election petition. Thereafter the trial court proceeded to examine the witnesses produced by the appellant. The respondent No. 3 took out chamber summons No. 72/98 praying for dismissal of the election petition for non-compliance of section 82(b) of the RPA inasmuch as Sampatrao Chavan, a validly nominated candidate, had not been made a party to the election petition. The appellant took out chamber summons No. 93/98 seeking permission to amend the election petition so as to delete the allegation of corrupt practice made against Sampatrao Chavan. Both of them were heard together. Chamber summons No. 72/98 was allowed and the chamber summons No.93/98 was rejected. Consequently the election petition was dismissed by the impugned judgment and order.
4. The appellant has filed Civil Appeal No, 1789 of 1998 aggrieved by the dismissal of election petition and Civil Appeal Nos. 2080-2081/98 aggrieved by allowing chamber summons No. 72/98 and dismissing chamber summons No. 93/98.
5. Shri P.P. Rao, learned senior counsel for the appellant, contended:
1. Once a contesting candidate is impleaded under Section 82(a) of the RPA, Section 82(b) do
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