Punjab-Haryana High Court
Mahander vs Suraj Mal Antil And Anr. on 30 May, 1997
Equivalent citations: (1998)118PLR479
JUDGMENT Harphul Singh Brar, J.
1. Brief facts as stated in the petition are that the elections to the Haryana Vidhan Sabha were held in April 1996. Shri Suraj Mal Antil, respondent No. 1, was elected as a Member of the said Vidhan Sabha from 42-Rai Assembly Constituency Sonepat (hereinafter referred as the 'Constituency') from amongst other candidates. The petitioner Mahander Singh, was also one of the candidates for the said election from the said constituency but he lost the election to his nearest rival Shri Surajmal Antil, respondent No. 1, in this petition, by a margin of 3978 votes.
2. A number of persons, including the petitioner Mahander Singh and the respondents filed their nominations papers to contest the said election but after the withdrawal of nominations papers by the last date only 19 candidates remained in the field to contest the election. After the polling, the result was declared on 9.5.96 and respondent No. 1 was declared elected from 42 Rai Assembly constituency. The petitioner contested the said election as a candidate of the Haryana Vikas Party whereas respondent No. 1, Suraj Mal Antil contested the same as a candidate of Samta Party and respondent No. 2 Satyavan contested the election as an independent candidate.
3. It is averred in the petition that respondent No. 1, his election agent and his various supporters committed various corrupt practices during the election. Respondent No. 1 won the election only because of the corrupt practices committed by him, his agents and his supporters with his consent.
4. It is further averred in the petition that one Shri Surender son of Shri Bhima, resident of village Deepalpur and one Shri Naresh son of Shri Jaipal, resident of Mehndipur also filed their nominations papers to contest the said election. Both these candidates belonged to Antil Sub-caste as also respondent No. 1, Shri Suraj Mal Antil. There are about 22 villages .belonging to Antil Sub caste in the constituency and there are about 40,000 voters of the said Sub-caste, out of the total electorate of the constituency of 1,21,785 out of which 73,316 valid votes were polled. Respondent No. 1 was considerably upset and alarmed about the contesting of said election by the above said two persons and it was likely to cut his votes not only of Antil Sub-caste but also some other votes belonging to other castes. Therefore, respondent No. 1 started pressurising and inducing the above said Shri Surender and Shri Naresh to withdraw from the above said contest to help respondent No. 1 to win the election. Consequently, respondent No. 1, on 6.4.96 in the area of Sonepat and in the presence of both the above said persons and in the presence of Shri Satyavan son of Shri Ratti Ram, resident of Akbarpur Rarota, Tehsil and District Sonepat (one of the contesting candidates), respondent No. 2, Shri Kanwal Singh son of Suraj Mal, resident of village Sevli, Tehsil and District Sonepat, promised to both of them good political patronage and adjustment and petition by way of appointing them Chairman of certain Corporation/Boards in consideration for not standing as candidate in the said election in case the Samta Party came to power in the Haryana State.
5. On this inducement the above said Shri Surender and Shri Naresh withdraw their nomination papers on 6.4.96. Thus, respondent No. 1, committed corrupt practice of bribery Under Section 123(1)(A)(a) of the Representation of the People Act, 1951 (hereinafter called the 'Act').
6. The other grounds mentioned in the petition are that:
(i) Respondent No. 1 has committed corrupt practice Under Section 123(1)(B)(a) of the Act by giving to Satyawan respondent No. 2 Rs. 50,000/- with the object of inducing him to stand as a candidate in the said election as a Harijan independent candidate. The said money was accepted by Shri Satyavan, respondent No. 2, as a reward and inducement to stand in the said election. Thus, Shri Satyavan, respondent No. 2, committed the corrupt practice of bribery.
(ii) Respondent No. 1, his election agent and his supporters with the consent of respondent No. 1 made an appeal to the Antil Sub-caste electorate to vote for respondent No. 1 so that a candidate belonging to the Antil Sub-caste i.e. a candidate of their own Sub-caste may win the elections. He, thus, committed corrupt practice Under Section 123(3) of the Act.
(iii) Respondent No. 1, his election agent and his other supporters committed the corrupt practice Under Section 123(4) of the Act by making false allegations against the personal character of the petitioner by speeches in various village.
(iv) Respondent No. 1 and his election agent committed the corrupt practice Under Section 123(6) of the Act i.e. by incurring the expenditure beyond the prescribed limit by using cars and not incorporating their expenditure in the Election Expenses Return.
8. Ultimately, a prayer has been made by the petitioner that (i) election of respondent No. 1 be declared void from 42-Rai Assembly Constituency in the District of Sonepat on the grounds mentioned above; and (ii) disqualifying both the respondents from contesting any election for a period of six years.
9. Written statement has been filed by Shri Suraj Mal Antil, respondent No. 1 to the election petition, and following preliminary objections have been taken therein:
i) The election petition deserves to be dismissed straightaway for non joinder of necessary parties. In para No. 6 of the election petition, the petitioner has levelled allegations of corrupt practice against Surender and Naresh who withdrew their nomination papers. These persons being in the category of other candidates in terms of Section 82(b) of the Act have not been impieaded as parties to the election petition.
(ii) In paras No. 4, 8, 9 and 11 of the election petition, the allegations of corrupt practice have been levelled against the election agent (Shri Ranvir) of the answering respondent. Shri Ranvir aforesaid was the only election agent of the answering respondent.The said Ranvir had also filed his nomination papers from the Assembly Constituency in dispute in the present election petition i.e. 42-Rai Assembly Constituency. The said Ranvir withdraw his nomination papers As the allegations of corrupt practice have been levelled against Ranvir, election agent of the respondent who also filed his nomination papers, so Ranvir is a necessary party as per the requirement of Section 82 of the Act. The petitioner has not' impieaded Ranvir Singh as a party in the petition and hence the petition deserves to be dismissed on this score alone.
(iii) The allegations of corrupt practice in paras No. 6, 7, 8, 9, 10 and 11 made in the petition are vague and deficient in material facts and particulars. The allegations are not in conformity with Section 83(1)(b) of the Act. Thus, these paras are liable to be struck of under Order 6 Rule 16 CPC and after the, striking of these paras, no triable issue will be left and, thus, the present election petition is table to be dismissed under Order 7 Rule 11 of the C.P.C.
(iv) The answering respondent has won the election by a margin of 3978 votes. The election was held in most fair and legal manner and no corrupt practice was committed by the answering respondent or his agent or any other person With the consent of answering respondent or his agent. The whole story put forward by the petitioner is concocted and an after thought just to harass the' answering respondent.
10. In parawise reply also, the tenor of reply is the same as is reflected in the preliminary objections.
11. Rejoinder to the written statement filed by respondent No. 1 has also been filed by the petitioner. The contents of preliminary objection No. 1 of the written statement have been denied in the rejoinder as wrong. It is Stated in the rejoinder that Shri Surinder and Shri Naresh cannot be termed as other candidates as such they are not liable to be impieaded as parties to the present election petition
12. Contents of preliminary objection No. 2 of the written statement have been denied in the rejoinder, as wrong. It is stated in the rejoteder that even if shri Ranvir had filed his nommition papers end Since he had with drawn his nomination papers then he is not a candidate and as such he is not a necessary party nor a proper party in the present election petition. The objections taken by The respondent are termed as frivolous.
13. Contents of preliminary objection No. 3 of the written statement have been denied in the rejoinder as wrong. It is then averred that the allegations of corrupt practice as mentioned in the alleged paragraphs of the petition are quite certain and contain full material facts and particulars. The said allegations of corrupt practice are in conformity with the provisions of Section 83(1)(b) of the Act, and thus, the petition is liable to be dismissed under Order 7 Rule 11 of the C.P.C.
14. In reply to preliminary objection No. 4 of the written statement, it is admitted that respondent No. 1 had won the present election by a margin of 3978 votes. It is absolutely wrong and denied that respondent No. 1 contested the said election in fair and legal manner and that no corrupt practice was committed by him or by his agent or by any other person with his consent or with the consent of his agent.
15. Parawise reply given in the rejoinder is also practically in the same terms as is reflected in the reply to the preliminary objections.
16. Following issues were framed with the consent of the parties:
(1) "Whether the election petition is liable to be dismissed for the non-joinder of Surender and Naresh as respondents, in view of the preliminary objection No. 1? OPR.
(2) Whether the election petition is liable to be dismissed for non-impleading of Ranbir son of Chandgi Ram, resident of Badh-Khals Tehsil and.District Sonepat, in view of the preliminary objection No. 2 ? OPR.
(3) Whether the paragraphs 6, 7, 8, 9, 10 and 11 are liable to be struck off under Order 6 Rule 16 of the C.P.C. being vague and deficient in material facts? OPR.
(4) Whether the petition is liable to be dismissed under Order 7 Rule 11 of the C.P.C. if issue No. 3 is decided in favour of respondent No. 1? 0PR.
(5) Whether respondent No. 1 has committed corrupt practice of bribery Under Section 123(1)(A)(a) of the Act, for inducing Surinder and Naresh to withdraw from the contest to help respondent No. 1? OPP.
(6) Whether respondent No. 1 has committed corrupt practice Under Section 123(1)(B)(a) of the Representative of People's Act for giving bribe to Satyavan to stand as a candidate in the election, as mentioned in para 7 of the election petition? OPP.
(7) Whether respondent No. 1 or his election agent or his supporters) with consent of respondent No. 1 have committed corrupt practice for appeal in the name of caste, as envisaged under Section 123(3) of the Representative of People's Act, as mentioned in para No. 8 of the election petition? OPP.
(8) Whether respondent No. 1 has committed corrupt practice Under Section 123(4) of the Representative of People's Act on the grounds mentioned in para No. 9 of the election petition? OPP.
(9) Whether respondent No. 1 has committed corrupt practice under Section 123(6) of the Representative of People's Act, for incurring expenditure more than the prescribed limit as per allegations mentioned in para No. 10 of the election petition? OPP.
(10) Relief, if any."
17. Learned counsel for the respondent No. 1 submitted that issues No. 1 to 4 may be treated as preliminary issues. Learned counsel for the petitioner had an objection to the prayer made by the counsel for respondent No. 1. The case was, thus, adjourned for arguments for the purpose as to whether issues No. 1 to 4 be treated as preliminary issues or not.
18. In the meantime, respondent No. 2. Satyavan came present and filed reply to the petition. But he did not choose to join later and he was proceeded exparte on 23.7.96. A reference to his written statement is not necessary for the purpose of decision of this case.
19. The case was, thus, adjourned for arguments on the request of the counsel for the petitioner.
20. After hearing the counsel for the parties, issues No. 1 to 4 are located as preliminary issues. Learned counsel for the parties are ready for arguments.
21. Learned counsel for respondent No. 1 has contended that it is not necessary to go into the other issues if the verdict of the Court on issues No. 1 and 2 is given in favour of the respondent.
22. I have heard the learned counsel for the parties at length.
23. Learned counsel for respondent No. 1 submits that the election petition is liable to be dismissed for non-joinder of Surinder and Naresh as respondents. He further contended that the election petition is liable to be dismissed for non impleading of Ranvir son of Chandgi Ram, resident of Badh-Khalsa, Tehsil and District Sonepat. Shri Ranvir, according to the learned counsel, was the only election agent of the respondent No. 1, Shri Suraj Mal Antil. Ranvir had filed his nomination papers from the Assembly Constituency in dispute in the. present election petition i.e. 42-Rai Assembly Constituency. Ranvir withdrew his nomination papers later-on as the allegation of corrupt practice had been levelled against Ranvir, election agent of the respondent who also filed his nomination papers. Ranvir is, thus, a necessary party as per requirement of Section 82 of the Act. The petitioner has hot impleaded Ranvir as a party in the petition and hence the same deserves to be dismissed straightaway on this score alone.
24. Now it has to be seen as to whether the election petition is liable to be dismissed for non impleading of Ranvir son of Chandgi Ram, resident of Badh-Khalsa, Tehsil and District Sonepat in view of the preliminary objection taken by respondent No. 1
25. Ranvir son of Chandgi Ram, aforesaid, had filed the nomination papers far contesting the election from 42-Rai Assembly Constituency but subsequently withdrew from contesting the election and acted as an election agent of respondent No. 1 Shri Suraj Mal Antil. The following documents on the record of this case make it abundantly clear that Ranvir son of Chandgi Ram had filed the nomination papers for the Constituency and had subsequently withdrawn from the contest and had acted as an election agent of respondent No. 1 Shri Suraj Mal:
i) Annexure R-1 shows the list of candidates published by the Returning Officer having filed the nomination papers. The name of Ranvir appears at Sr. No. 34 of the above said list.
ii) Annexure R-2 shows that Ranvir son of Chandgi Ram had filed his nomination papers on 3.4.% from 42-Rai Assembly Constituency and his papers were accepted by the Returning Officer.
iii) Annexure R-3 shows that Ranvir aforesaid had withdrawn his nomination papers on 6.4.96; and
iv) Annexure R-4 shows that respondent No. 1 Shri Suraj Mal appointed the above said Ranvir son of Chandgi Ram as his election agent.
26. This factual position, stated above, clearly indicates that Ranvir son of Chandgi Ram was the election agent of respondent No. 1 and he had also filed his nomination papers for contesting the election from the same constituency but had subsequently withdrawn from contesting the election. This factual position of aforesaid Ranvir's filing his nomination papers for contesting from the same constituency and subsequently withdrawing from the contest and his being the election agent of respondent No. 1 is not denied by the petitioner.
27. In the replication, the only stand of the petitioner is that as Ranvir had withdrawn from the contest, he is not a candidate and is not a necessary party.
28. To understand the legal position and to know as to whether it was necessary for the petitioner to implead Ranvir as a necessary party to the election petition and as to whether the election petition is liable to be dismissed for not impleading Ranvir by the petitioner as a party to the petitioner, let us have a look at the relevant provisions of the Representation of People's Act.
" Section 82:- Parties of the petition: A petitioner shall join as respondents to his petition-
a) xxx xxxx
b) Any other candidate against whom allegations of any corrupt practice are made in the petition.
79(b) Candidates means a person who has been or claims to have been duly nominated as a candidate at any election.
Section 86: Trial of election petitions:
1) The High Court shall dismiss the election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. (Section 81, and Section 117 are not relevant for the decision of this case)."
29. It has been held in the various judgments of the High Courts as well as of the Hon'ble Supreme Court of India that a candidate, who has filed his nomination papers and has been duly nominated and subsequently withdrew from the contest and against whom an allegation of corrupt practice, has been leveled by the election petitioner, is a necessary party to the election petition Under Section 82 of the Act and non impleading him as a party to the election petition, the petition is liable to be dismissed on that score alone.
30. The following authorities throw sufficient light on the above said proposition of law as well as the factual position:
i) In Amin Lal v. Hunna Mal, AIR 1965 Supreme Court 1243, a Constitution Bench of the Hon'ble Supreme Court of India while interpreting ;Section 82(b) and Section 79(b) of the Act has held that a person who was duly nominated candidate though he withdrew his candidature within the time permitted by the rules must, for the purpose of Section 82 still be regarded as a candidate. When an election petition containing any imputation of corrupt practice against such a person it cannot be regarded as properly constituted unless he was impleaded as a respondent. The relevant observation of the Hon'ble Supreme Court is re-produced as under:
"Suraj Bhan was a duly nominated candidate and though he withdrew, his candidature within the time permitted by the rules he must for the purpose of Section 82, still be regarded as a candidate. As pointed out by this Court in Mohan Singh v. Bhanwarilal, AIR 1964 SC 1366 a person who was duly nominated as a candidate for election would not cease to be a candidate for the purpose of parts VI, VII and VIII of the Act merely because he withdrew his candidature. Therefore, according to this Court where a petition contained any imputation of corrupt practice against such a person it could not be regarded as property constituted unless he was impleaded as a respondent."
ii) In Har Swarup and mother v. Brij Bhushan Saran and Ors., AIR 1967 Supreme Court 36, it has been held that though expression any Ors. candidate' in Section 82(a) means any Ors. contesting candidate, there is no indication in Section 82(b) to suggest that any Ors. candidate only refers to a candidate who has not withdrawn his candidate Under Section 37. If purity of elections has to be maintained, which is purpose of Section 123, a person who is candidate as defined in Section 79(b) will remain a candidate even after he withdraws till election is over and if he commits a corrupt practice whether before or after his withdrawal he would be a necessary party Under Section 82(b)
iii) In Mohan Raj v. Surendra Kumar Taparia and Ors., AIR 1969 Supreme Court 677, It has been held by the Supreme Court that Section 82(b) makes it incumbent that any candidate against whom a charge of corrupt practice is made, must be joined as a party. A candidate who is duly nominated continues to be a candidate for purpose of Section 82(b) in spite of his withdrawal.
iv) In Kashi Nath v. Smt. Kudsia Bequm, Election Law Reports (Vol. 43) 348, the Allahabad High Court has held that when as allegation of corrupt practice has: bees levelled against an election agent of the successful candidate but he has not been impleaded as a party to the petition, the petition is liable to be dismissed on that score alone.
In the case referred to above the candidate after his withdrawal of nomination papers from the election had acted as an election agent of the returned candidate and the allegation of corrupt practice had been levelled against him but he was not made party to the election petition. The election petition was dismissed only on the ground of non-joinder of the election agent as he was nccessary party to the election petition. This judgment of the Allahabad High Court has been upheld by the Supreme Court of India in Kashinath v. Smt. Kudsia Begum and Ors., Election Law Reports (Vol.45) 410 (S.C.) nominated candidate) though he withdrew his candidature within the time prescribed by the rules must for the purpose of Section 82 of the Act is still regarded as a candidate. When an election petition contained any imputation of corrupt practice against such a person it cannot be regarded as a properly constituted petition unless he was impleaded as a respondent.
31. If a candidate after the with drawal of his nomination papers from the election acted as an election agent of the returned candidate and allegation of corrupt practice has been levelled against him but he has not been made a party in the election petition as a respondent, non joinder of such a candidate entails the dismissal of the petition on this ground alone.
32. It has also been ruled by the Hon'ble Supreme Court of India that nonjoinder of necessary party in the election petition must be treated as a preliminary objection and the plea of non-joinder of necessary party can be taken at any stage of the trial and it has to be treated as a preliminary objection. The relevant authorities of the Hon'ble Supreme Court of India in this connection are re-produced as under:
i) In Krishan Chander v. Ram Lal, AIR 1973 Supreme Court 2513, it his been held by the Supreme Court as under:
"The next submission of the appellant that all issues should have been framed and tried instead of only one issue on the preliminary point is equally without force. Section 82(2) (82(b) enjoins who the parties to the petition should be, and among those, apart from the returned candidate whose election is challenged, any candidate against whom any allegations of corrupt practices are made in the petition should be joined If this requirement is not fulfilled, Sub - section (1) of Section 86 makes it mandatory for the High Court to dismiss the election petition 'for non-compliance with the provisions of Section 82 of the Act. The Contention of the appellant" that while Clause (a) of Section 82 is mandatory, Clause (b) of that section is only directory, is not tenable because reading Section 86 with Section 82 makes both Clauses (a) and (b) of the latter section mandatory and non-compliance with the requirements thereof visits the petitioner with the penalty of having his petition dismissed. In view of these provisions, it is incumbent upon the High court, where the allegation is that the requirements of Section 82 are not complied with, to determine that issue as a preliminary issue. If the respondent has made out his case on that issue, the Court is left, with no option but to dismiss the petition for non-compliance with the mandatory provisions of Section 82. This Court has held in Charan Lal Sahu v. Nand Kishore Bhatt, C.A. No. 2411 of 1972 D/- 1.8.73 = (reported in AIR 1973 SC 2464) that non-compliance with the provisions of Section 117 of the Act which is one of the sections mentioned in Sub-section (1) of the Section 86 merits dismissal of the election petition."
ii) Udhav Singh v. Madhav Rao Scindia,7 AIR 1976 Supreme Court 744.
33. From the evidence on the record of this case, it is proved that the petitioner has alleged corrupt practice against respondent No. 1 and his election agent Ranvir son of Chandgi Ram. It is also' proved on the record that Ranvir son of Chandgi Ram had filed the nomination papers for contesting the assembly seat and had subsequently withdrawn from contesting the election and thereafter he acted as an election agent of respondent No. 1. It is further proved on the record that Ranvir, election agent of respondent No. 1, has not been impleaded as a party by the petitioner in his election petition. This factual position is rather admitted even by the petitioner. The only contest of the petitioner regarding this position is that as Ranvir had withdrawn from contesting the election from the constituency he could, thus, be not considered as candidate and was not a necessary party for being impleaded in the election petition as a respondent.
34. In view of the authoritative pronouncement of the Supreme Court and in view of the factual position available on the record it is proved that Ranvir son of Chandgi Ram was the election agent of respondent No. 1 Suraj Mal Antil and he also falls within the definition of a candidate within the meaning of Section 82(b) read with Section 79(b) of the Act. It is also an admitted fact that he has not been im-pleaded as a party/respondent in this election petition by the petitioner. In these circumstances, the petition is liable to be dismissed Under Section 86 of the Act.
35. It is also proved on the record that the allegation of corrupt practice has been levelled against Surinder son of Bheema, resident of village Depalpur, Tehsil and District Sonepat and Naresh son of Jaipal, Resident of Mehndipur. It has been specifically stated in the election petition that the above said Surender and Naresh filed their nomination papers to contest the Assembly election. Both of these candidates belong to Antil sub caste. Both of them had filed nomination papers as independent candidates who withdrew from contesting the election later on. Respondent No. 1, Suraj Mal Antil, pressurised and induced the above said Surender and Naresh to withdraw from the above said contest to help him to win his election. Respondent No. 1 promised to both of them good political patronage and adjustment and position by way of appointing them Chairmen of certain Corporations/Boards in consideration for not standing as candidate in the said election in case the Samta party came to power in the Haryana State. It is on this inducement the above said Surender and Naresh withdrew their nomination papers on 6.4.96. In this May, according to the petitioner, respondent No. 1 committed corrupt practice of bribery Under Section 123(1)(A)(a) of the Act. Thus, an allegation of corrupt practice has been made against Surender and Naresh by the petitioner who withdrew their nomination papers and did not contest for the assembly election, Swender and Naresh also fall under the category of Ors. candidate in terms of Section 82(b) of the Act. Admittedly, they have also not been impleaded as parties to the election petition by the petitioner.
36. In view of the legal position, stated above, the petition is liable to be dismissed for not impleading Surender and Naresh to the election petition.
37. In view of my discussion above, both the legal issues No. 1 and 2 are decided against the petitioner and in favour of respondent No, 1. In view of my decision on issues No. 1 & 2, I need not go further to give my finding on rest of the issues as the petition is liable to be dismissed on the basis of findings on issues No. 1 & 2 alone.
38. Resultantly, this election petition is dismissed with costs.