Judgment

GROVER, J.:- This is an appeal under S. 116-A of the Representation of the People Act 1951, hereinafter called the "Act" from a judgment of the Allahabad High Court dismissing an election petition filed by the appellant challenging the election of respondent No. 1 to the U. P. Legislative Assembly from Constituency No. 84 Sandila (District Hardoi) held in February 1969 on the ground that one of the candidates had not been made a party to the petition.

2. The date for filing the nomination papers of the candidates for the mid-term election in the State of U. P. was January 9, 1969. On that date nine candidates filed their nomination papers Aizaz Rasul, who had the title of Nawab and who is the husband of respondent No. 1, had been nominated as a candidate and his nomination papers were held to be in order by the Returning Officer on January 9, 1969. After the nomination papers had been accepted Aizaz Rasul and one other candidate withdrew from the contest and seven candidates were left in the field. The polling took place on February 7, 1969. Respondent No. 1 was declared elected on February 10, 1969. It is unnecessary to mention the votes polled by all the candidates. It would be sufficient to mention that respondent No. 1 secured 32,031 and the appellant 31,955 votes. On March 27, 1969 the appellant filed an election petition in the High Court of Allahabad. Respondent No. 1 and other six candidates who had contested the election were duly impleaded as parties but Aizaz Rasul who had withdrawn from the contest was not made a party. The petition was dismissed in accordance with the terms of S. 86 (1) of the Act on the ground that the allegations of commission of corrupt practices had been made against Aizaz Rasul and therefore it was incumbent on the election petitioner to have impleaded him as a respondent.

3. It is not disputed on behalf of the appellant that Aizaz Rasul was a necessary party and the failure to implead him would entail dismissal of the election petition if there was a candidate against whom allegations of corrupt practice had been made in the petition. Section 82 (b) of the Act lays down in mandatory terms that such a candidate must be impleaded as a party. The allegations relevant for the purpose of disposal of this appeal which need be noticed from the election petition are contained in clauses (b) and (c) of para 20 and para 21. These are in the following terms:

(b) "That respondent No. 1 herself and through her consent her agents obtained or procured and attempted to obtain or procure the services of Sri Madan Gopal Misra, Sanitary Inspector Kachauna Block Sandila, a person in the service of the U. P. Government who resides in the kothi of respondent No. 1 at Sandila for the furtherance of the prospects of her election. A complaint regarding her working at the aforesaid election was made by Bishamber Dayal Gupta of Jan Sangh party to the District Magistrate, District Medical Officer of Health and District Election Officer, Hardoi on 3-2-1969, particulars of this corrupt practice as far as possible are being given in schedule VIII annexed to this petition.

(c)"That the said Madan Gopal Misra, Sanitary Inspector (mentioned In foregoing paragraph) committed corrupt practice of undue influence defined in S. 123 (2) of the Representation of the People Act with the consent of respondent No. 1 her election agent by interfering with the free exercise of electoral rights of electors taking advantage of his official position and telling them that they will have to suffer from his hands in case they will not support the candidature of respondent No. 1 and vote for her. The name, date and place of commission of such corrupt practice are the same as are given in Schedule VIII to the election petition.

That in case it is not proved that the corrupt practices mentioned in paragraph 20 (and in its sub-paragraphs) were committed by respondent No. 1 and her election agent or by her agents with her consent they were comm