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Bombay High Court
KANIA
R.D.Paranjpe - Appellant
Versus
Ram Jethmalani - Respondent
Decided On : 11/01/1977
ELECTION PETITION - Dismissal - Non-joinder of necessary party - Candidate who withdrew nomination before last date - Whether a candidate for purposes of S. 82 (b) of the Representation of the People Act, 1951 - Whether allegations of corrupt practice against election agent are allegations against candidate - Whether petition maintainable.
Fact of the Case:
Election petition challenging the election of respondent No. 1 to the Lok Sabha from Bombay North-West Constituency No. 8. Petitioner alleged that respondents Nos. 1 and 2 exceeded the maximum election expenses limit of Rs. 35,000 and committed a corrupt practice under Sec. 123 (6) of the Representation of the People Act, 1951. Respondent No. 1 appointed Prof. Sadanand Varde as his election agent, who later withdrew his nomination before the last date. Petitioner failed to join Prof. Varde as a respondent, alleging that he was not a candidate as he had withdrawn his nomination.
Finding of the Court:
1. Prof. Varde was duly nominated as a candidate for the Bombay North-West Parliamentary Constituency at the said election and duly withdrew his nomination on the last day fixed for the withdrawal of nominations. 2. Prof. Varde was duly appointed as the election agent of respondent No. 1 for the election in question and continued to be such election agent till the result of the said election was announced. 3. References to the election agent of respondent No. 1 in the petition must necessarily be treated as references to Prof. Varde. 4. Allegations of corrupt practice have been made in the petition against Prof. Varde, who was a candidate at the said election for the purposes of Sec. 82 of the said Act. 5. Prof. Varde is a necessary party to the petition and his non-joinder renders the petition liable to be dismissed under Section 86 of the said Act.
Issues: 1. Whether Prof. Varde was a candidate for the purposes of S. 82 (b) of the Representation of the People Act, 1951, despite withdrawing his nomination before the last date. 2. Whether allegations of corrupt practice against the election agent are allegations against the candidate. 3. Whether the petition is maintainable in the absence of Prof. Varde as a party.
Ratio Decidendi: 1. A candidate who withdraws his nomination before the last date is still a candidate for the purposes of S. 82 (b) of the Representation of the People Act, 1951. 2. Allegations of corrupt practice against the election agent are allegations against the candidate, as the election agent acts on behalf of the candidate. 3. A petition challenging an election is liable to be dismissed under Section 86 of the said Act if a necessary party, such as a candidate against whom allegations of corrupt practice are made, is not joined as a respondent.
Final Decision: The petition is dismissed as Prof. Varde, a necessary party against whom allegations of corrupt practice were made, was not joined as a respondent.
2. As the petition is being disposed of on a preliminary issue, it will be sufficient to set out only such averments in the petition and the written statements and such facts as are relevant for determination of the preliminary issue. In the petition it has been, inter alia, alleged by the petitioner that respondents Nos. 1 and 2 have filed statements of account of election expenses incurred or authorised by them or by their election agents in the sums of Rs. 14,169.08 and Rs. 21,668 respectively. It is further alleged in the petition that respondents Nos. 1 and 2 and their election agents convened several meetings for propaganda and used hand bills, loud speakers etc. to attract voters to their, meetings and used jeeps and motor cars for propaganda. The expenses incurred in respect of these were election expenses, but respondents Nos. 1 and 2 have omitted to mention them as such. It has been alleged in the petition the respondents Nos. 1 and 2 and their election agents arranged for big cloth banners, wall paintings and posters to attract voters to vote for respondents Nos. 1 and 2 in the said Constituency. In paragraph 5 of the petition it is alleged that respondents Nos. 1 and 2 have incurred or authorised by themselves of which are set out in the said para. (sic). The total of those expenses in respect of respondent No. 1 comes to Rs. 75,910 and in respect of respondent No. 2 comes to Rs. 66,260. It has been alleged that respondents Nos. 1 and 2 have spent Rs. 75,910 and Rs. 66,260 respectively for their election and thus exceeded the maximum limit of Rs. 35,000 as laid down in Section 77 of the Representation of the People Act, 1951 (hereinafter referred to as ' the said Act' ) and that by doing so respondents Nos. 1 and 2 have committed a corrupt practice under Sec. 123 (6) of the said Act. In the written statements filed by the respondents Nos. 1 and 2 it has been, inter alia, contended that the petition as filed is not maintainable by reason of non-compliance with the provisions of Sec. 82 of the said Act. It has been alleged by respondents. Nos. 1 and 2 that one Prof. Sadanand Varde had filed his nomination papers seeking election to the Lok Sabha from the said constituency. The nomination of Prof. Varde was accepted and, therefore, he was duly nominated as a candidate from the said constituency. Prof. Varde was, therefore, a candidate as defined in Sec. 79 (b) of the said Act. The said Prof. Varde later withdrew his nomination before the last date fixed for such withdrawals. Respondent No. 1 appointed Prof. Varde as his election agent under the provisions of Sec. 40 of the said Act. It was incumbent on the petitioner to join the said Prof. Varde as respondent under the provisions of Sec. 82 (b) of the said Act as the petitioner had made allegations of corrupt practice against respondent No. 1 as well as his election agent, who was Prof. Varde. As the petitioner has failed to do so, the petition is liable to
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