Jammu & Kashmir High Court
Dhan Raj Bargotra vs Election Commission Of India And Ors. on 10 August, 1998
Equivalent citations: AIR 1999 JAMMU AND KASHMIR 24
ORDER G.D. Sharma, J.
1. The petitioner on 21-5-1997 made this application (IA-1/97) wherein permission for withdrawing the election petition is prayed. The reason assigned is that the petition was still at the stage of serving the notices on respondents and their presence was awaited so the petitioner may be granted the permission for withdrawing the election petition.
2. Notice of this application was given (as prescribed under Section 115 of the J & K Peoples Representation Act (hereinafter referred to as the 'Act') to the respondents of the election petition and in response respondent No. 15 (Mr. G. R. Asgar) filed objections wherein he pleaded that permission for withdrawal may be withheld as the petitioner has been "induced by bargain and consideration" to make such an application. It was pleaded that the petitioner had come in the Court with specific allegations of corrupt practices which included booth capturing, use of muscle and money power etc. by respondent No. 5 (who is a returned candidate) and after election became Cabinet Minister of the National Conference Ruling Party. That a bargain was struck with the petitioner who during the pendency of the election petition was made Member, Legislative Council and on the basis of this bargain and consideration the petitioner has moved the application. It is also pleaded that respondent No. 15 was arrayed at a party because his withdrawal was also manipulated by respondent No. 5 by adopting corrupt practices and without his consent. The petitioner has made specific allegations in this behalf in the election petition from paras 6 to 9. Under law, he is to be deemed as 'contesting candidate' and very much affected by the result of the election and thus the applicant cannot be granted permission after entering into bargain with respondent No. 5 to withdraw from the election petition.
3. Respondent No. 5 (Sh. Ajat Shatru Singh) has not opposed the withdrawal of the election petition and pleaded that the withdrawal of the election petition was voluntarily and not by any inducement or promise on his behalf.
4. Respondents Nos. 1 to 4 have stated in the objections that they are functionaries of the State and they have no comments on the application.
5. Respondent No. 15 also made another application (C.M.P. No. 39/97) wherein he made a prayer for calling the record of the election of the petitioner as Member, Legislative Council in order to determine the pattern of votes cost in his favour and these votes will prove how the National Conference political party had voted in his favour and he was made member of the Legislative Council. This application was opposed by the petitioner by filing the objections wherein it is pleaded that respondent No. 15 was unnecessarily creating hurdles for the withdrawal of the election petition. The petitioner returned as "unopposed candidate" from Election Constituency No. 3 of Jammu Province and his term as Member, Legislative Council was the lowest for the period of two years. From Election Constituency No. 2 of Legislative Council, similarly unopposed candidate was elected. The petitioner denied that his application was based upon any inducement or bargain.
6. The counsel for respondent No. 15 agreed for the withdrawal of this application (C.M.P. No. 39/97) by fairly conceding that there is no sense in calling the record of the election when the petitioner has been elected unopposed. This application is thus disposed of as withdrawn and now only I A-1/97 remains to be decided.
7. Heard the arguments.
8. The learned counsel appearing for the petitioner has contended that petitioner herein was not an independent candidate in the election fray but was a party candidate of Nationally recognized political party, namely, 'Janta Dal' and similarly respondent No. 15 herein was a party candidate or recognized political party, namely, 'Congress-Tiwari.' Respondent No. 16 was the President of Congress-Tiwari party of the State Unit and when he got the instructions from the Headquarter the authorisation of re-
spondent No. 15 as party candidate was withdrawn before the withdrawal date and thus his papers were validly rejected by the Returning Officer. A party candidate is not wholly and solely independent but he has to follow the mandates of political party to which he belongs and, in the present case the election petition in question was filed by the petitioner with the permission of Central High Command of the political party (Janta Dal) on whose behalf he had fought the election. When the political party Janta Dal made a political alliance at the centre with the National Conference political party to which the returned candidate herein belongs (respondent No. 5) and it was decided by the High Command of the Janta Dal political party that it was not proper to pcrsue the election petition and accordingly on the direction of Headquarter petition has been made. The allegations of inducement or bargain have been denied as Govt. has not nominated him as Member, Legislative Council but he fought the election and got himself returned unopposed. Like him, other candidate also became unopposed member of the Legislative Council. The counsel has also argued that respondent No. 15 withdrew from the election arena within the withdrawal date and he be treated as a retired candidate. He has no locus standi to oppose the withdrawal of the election petition.
9. The counsel for respondent No. 5 at the out set raised the preliminary objection regarding the locus standi of respondent No. 15 to oppose the withdrawal and in support of his contention he has drawn the attention towards Sub-clause (c) of Section 116 of the Act, wherein it is provided that a person who might himself is a petitioner, may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing and upon compliance with the conditions, if any, as to the security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.
10. The counsel has also referred Section 89 which says that an election petition can be presented by any candidate at such election or any elector within fortyfive days from, but not earlier than, the date of election of the returned candidate, and that respondent No. 15 was not a candidate at the time of such election but his name stood validly withdrawn and there is no record before the Court upon which it can be said that he was an elector in the constituency, so he does not fall within the definition of "any candidate" as contemplated under the section and not competent to oppose the withdrawal. Stretching his argument further, the counsel has stated that respondent No. 15 could not be a party to the election petition though the petitioner has improperly impleaded him as respondent No. 15 as he was not a contesting candidate because he had withdrawn from the election within time. He is also not a candidate which qualifies the term, "other candidate against whom the allegations of any corrupt practice and the particulars thereof have been made as contemplated under Clause (b) of Section 90. He has been impleaded as respondent No. 15 because the petitioner challenged the withdrawal on his behalf made by respondent No. 16 and his mere impleading as respondent No. 15 in the election petition could not give him any locus standi to challenge the withdrawal of the election petition, though the petitioner has alleged in the election petition that he would have got substantial votes from the members of his Gujjar Community which consists of 25% of the population in the constituency and that his withdrawal was managed by respondent No. 5 to keep him away from the contest.
11. It has been contended on behalf of respondent No. 15 that plea of locus standi cannot be raised at this stage as it has not been mentioned any where in the pleadings. Under Order 6, Rule 7, C.P.C. new ground of claim or allegation of fact which is inconsistent with the previous pleadings cannot be entertained. It is further contended that respondent No. 15 had challenged his illegal withdrawal secured by respondent No. 5 through the good offices of his father by influencing respondent No. 16. This illegal withdrawal was challenged by respondent No. 15 by filing writ petition (OWP No. 764/96) which was not decided on merits but it was held that the election petition was pre-mature. In that petition the official withdrawal of respondent No. 15 from the contest of the election was alleged as improper, illegal and based on corrupt practices. In the present petition the petitioner herein has also alleged corrupt practices which have been specified in Annexures P-3, P-4 and P-5 attached with the election petition. Section 90 lays down who are the parties to the petition. It says that a petitioner shall join as respondents to his petition-
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice and the particulars thereof.
In the present case, the petitioner has sought the reliefs that election of respondent No. 5 may be declared void and after unseating him, the petitioner may be declared successful for filling the seat in the J. & K. Legislative Assembly from 'Assembly Constituency 70-Nagrota, Jammu.' He has thus claimed further declaration that he may be declared as duly elected candidate and thus within the purview of Section 90 of the Act all contesting candidates are required to be made as parties and respondent No. 15 whose withdrawal was manipulated on the basis of corrupt practices under law is deemed to be contesting candidate and has a locus standi. It is further contended that after the filing of this election petition, the petitioner was made Member of Legislative Council with the help of National Conference Ruling Party to which respondent No. 5 belong as a contesting candidate and this political party after getting majority in the Legislative Assembly induced the petitioner to withdraw the election petition in order to save the skin of being exposed in perpetuating corrupt practices and in this bargain the petitioner was got elected in the Legislative Council unopposed. The counsel has drawn the attention of the Excelsior newspaper cuttings (of 5-10-1996 and 9-10-1996) already placed on the record which shows that the petitioner had blamed National Conference and administration for poll malpractices and demanded probe into rigging. He had also placed on the record Excelsior newspaper cuttings of March 10, 1997 wherein he has been shown garlanded and sitting with National Conference Members of the Legislative Council including nine in number, who had been inducted in the Council unopposed.
12. After hearing the arguments and perusing the record it can be said that certainty that the main grounds on which the election petition has been presented by the petitioner are corrupt practices perpetuated by respondent No. 5 with the help of his political party and supported by administrative. He has even challenged the withdrawal of respondent No. 15 allegedly manipulated by respondent No. 5 with the connivance of respondent No. 16 (Mr. Gulchain Singh, working President, Congress-Tiwari). Under the Act in the case the allegations of corrupt practices are proved they visit with the consequence of disqualification from membership of the Houses of Legislature as the case may be. The petitioner has assigned no reason for the withdrawal of the election petition except that he was commanded by his High Command to withdraw the election petition. Respondent No. 15 has made allegations that this withdrawal is based upon inducement and then bargain was struck for making the petitioner as Member of the Legislative Council. According to the showing of respondent No. 15, the petitioner had the strength of only five members in the House who were his voters but he has managed to get himself elected unopposed as M.L.C. For the effective disposal of the election petition a necessary issue Will also arise to Ihe effect "whether the withdrawal of respondent No. 15 was lawful or tainted with corrupt practices." In the case of an election there are certain steps to be taken until the poll is conducted. In the first place there is announcement about the holding of election. This is followed by nomination of candidates. After the nominations are made, a scrutiny of the nominations is held. After the nominations are scrutinized, a list of validly nominated candidates is prepared. After the list of validly nominated candidates is prepared there is stage of withdrawal of a candidate to withdraw his candidature. After the withdrawal, if any, a candidate may retire from contest and finally there is a poll. Indeed an election is one continuous process involving these steps. The Bombay High Court in the Division Bench case of Yeshvantarao Balwantrao Chavan v. K. T. Mangalmurti, AIR 1958 Bom 397 has held :
"The expression "all the contesting candidates" means all those who took part in the contest at the poll and also those who may have under Section 55-A retired from the contest. To put it in different language, one may say that the expression "all the contesting candidates" means not merely those candidates who contested at the election but also those candidates who contested for the election."
13. In this election petition the election of the returned candidate is challenged, that means, the election as it commenced and as it ended. It may well happen that a contesting candidate who has retired from contest may or may not have interest in the result of the election petition. It may be that such a contesting candidate has no chance of himself being elected, but the law contemplates rai an election dispute should be settled once and for all. The dispute must be settled in the presence of every candidate who is either immediately or remotely affected by the result. The joint raised by respondent No. 15 about his withdrawal which was based upon alleged corrupt practices can also go to the root of the matter if legally proved. He is thus found to be a 'con-testing candidate' as contemplated under Section 90 of he Act and has locus standi to be a party. The objection raised on behalf of respondent No. 5 as well as on behalf of the petitioner is thus over-uled. The contention raised by the counsel for espondent No. 5 that in the present case Clause (c) of Sub-section (3) of Section 116 is applicable is found levoid of any legal force because under Clause (c) he substitution of a respondent in the place of a petitioner arises only when the application for withdrawal of election petition is accepted/ granted. The present controversy at this stage is only with regard to the grant or refusal of the permission. Thus, the provisions of Sub-clause 3) of Section 116 are not attracted.
14. In the applicaton, the petitioner has assigned no reason for withdrawal but in his statement recorded on oath in support of the application as well as during the course of arguments it has been shown that he is withdrawing at the command of his Headquarter of the political parly to which he belongs. This direction came after there was a political understanding in the centre between the political party and the political party of respondent No. 5. This is also an admitted fact that application has been moved after the petitioner became Member, Legislative Council and he secured the berth of a post when the strength of the members from his political party did not exceed five in number. The law has left it to the judicial discretion of the Court to form an opinion whether the application for withdrawal has been made by inducement or on any bargain or consideration. Section 115 of the Act does not recognise any distinction between a withdrawal of acandidate on his own behalf or at the behest of his political party. In case it is admitted that the applicant is approaching for the withdrawal of the election petition on the dictates of his political party (Janta Dal) even then he does not extricate himself from the rigour and vigour of the requirements of Sub-clause (2) of Section 115 of the Act which contains a rider to keep away acandidate from the vices of inducement or bargaining during the pendency of the election petition on the hoary principles of up-keeping purity of conduct in public life. On such an analysis, it is held that the applicant has failed to make out a case where it can be said with certainty that elements of inducement or bargaining are altogether excluded. The application is thus found devoid of merit arid is accordingly dismissed.
15. Let the case come up for further consideration as to the fact whether respondents Nos. 1 to 4 are required to remain as parties in the election petition in view of the import of S. 90 of the Act or other relevant law. The petition to come up for this purpose of 17-9-1998.