Holding

A duly nominated candidate remains a candidate under Section 82(b) even after withdrawal, and must be impleaded as a party‑respondent if allegations of corrupt practice are made against him.

Summary

In a Rajya Sabha election, three candidates filed nominations; one candidate, Luis Alex Cardozo, withdrew his candidature before the election. The appellant filed an election petition alleging that Cardozo, after withdrawal, agreed to receive gratification to vote for the respondent, constituting a corrupt practice under Section 123(1)(B) of the Representation of the People Act, 1951. The High Court dismissed the petition for non‑compliance with Section 82(b) because Cardozo was not joined as a party‑respondent. The Supreme Court held that a person who has been duly nominated remains a "candidate" for the purposes of Section 82(b) even after withdrawal, and any allegation of corrupt practice against him requires his impleadment. Consequently, the petition could not proceed and the appeal was dismissed.

Issues considered

Whether a candidate who withdraws his nomination before the election remains a "candidate" for purposes of Section 82(b) of the Representation of the People Act, 1951.
Whether allegations of corrupt practice made against such a withdrawn candidate necessitate his impleadment as a party‑respondent in an election petition.

Legislation cited

Representation of the People Act, 1951s. 117, s. 123(1)(B), s. 79(b), s. 81, s. 82(b), s. 86, s. 98

Subjects

election petitioncorrupt practiceSection 82(b)candidate withdrawalimpleadmentRajya Sabha electionRepresentation of the People Act

Judgment

GADNIS BHAWANI SHANKAR A
v.
FALEIRO EDUARDO MARTINHO

AUGUST I, 2000

[DR. A.S. ANAND, CJ., R.C. LAHOTI AND K.G. BALAKRISHNAN, JJ.] B

Election Law :

Represenlation of the People Act, 1951 :

Section 82(b )-Election-Election petition-Corrupt practice-Commis- C
sion of-Party-respondent-Joining of-A candidate allegedly committed cor-
rupt practice qfter withdrawal of his candidature-But he was not impleaded
as a party-respondent-Validity of-Held, even though a person commits a·
corrupt practice after withdrawal of his candidature he must still be impleaded
as a party-respondent-Otherwise the election petition will fail. D
Section 123(1 )( B )-Corrupt practice-Meaning of-Election petition
averred that a candidate agreed to receive gratification as a motive or reward
for voting in favour of the returned candidate-Held, these averments anwunt
to allegation of commission of corrupt practice.
E
Words and Phrases :

"Corrupt practice"-Meaning of in the context of S.123(1)(B) of the
Representation of the People Act, 1951.

There were three candidates for the Rajya Sabha elections including F
the appellant and the respondent. All the three candidates filed their
nomination papers, which were accepted. However, the third candidate
withdrew from the contest after acceptance of his nomination paper. In the
contest held thereafter the respondent was elected.

The appellant filed an election petition, challenging the election of G
the respondent, principally on the ground of commission of corrupt prac-
tices. In the election petition the respondent alone was arrayed as a party-
respondent, in which it was averred that the third candidate, after with-
drawal of his candidature, agreed to receive gratification as a motive or
reward for voting in favour of the respondent.
H
77
78 SUPREME COURT REPORTS [2000] supP. 2 S.C.R.
A High Court dismissed the election petition under Section 82(b) of the
Representation of the People Act, 1951 on the ground that the third candi-
date, against whom alle~ations of corrupt practice were made, was not
joined as a respondent. Hence this appeal.

On behalf of the appellant it was contended that since the third
B candidate had withdrawn from the contest, he could not be treated as a
'candidate', who was necessarily required to be impleaded as a party-
respondent under Section 82(b) of the Act and if the corrupt practice was
committed by him as a voter only, he was not required to be impleaded as
a party-respondent in the election petition.
c Dismissing the appeal, this Court

HELD : 1. The election petition contains allegations against the third
candidate that he agreed to receive gratification as a motive or reward for
voting in favour of the respondent. These averments would amount to
D allegations of corrupt practice by the third candidate within the meaning
of Section 123(l)(B) of the Representation of the People Act, 1951. [81-F]

2.1. The allegations, which have been made in the election petition,
are allegations of corrupt practice against the third candidate. Since, the
third candidate was a nominated candidate, it was necessary to itnplead
E him as party-respondent under Section 82(b) of Act, irrespective of the
fact that before the actual date of the election, he had withdrawn his
candidature and allegedly committed the corrupt practice after his with-
drawal from the election. [83-E]

2.2. A candidate who is duly nominated continues to be a candidate
F for the purposes of Section 82(b) in spite of his withdrawal and, if allega-
tions of corrupt practice are made against him, he must be impleaded as a
party to the election petition or the election petition must fail. [83-C]

Har Swarup v. Brij Bhushan Saran, [1967] 1 SCR 342; Ram Pratap
G Chandel v. Chaudhary lt(ija Ram, [1998] 8 SCC 564 and Mohan Raj v.
Surendra Kumar Taparia & Ors., [1969] 1 SCR 630, relied on.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3224 of 2000.

From the Judgment and Order dated 3.3.2000 of the Bombay High Court
H in E.P. No. 2 of 1999.
GADNIS BHAWANI SHANK.AR v. FALEIRO EDUARDO MARTINHO 79
M.N. Krishnamani, K.V. Vishwanathan and Shiv Sagar Tiwari for the A
Appellant.

F.S. Nariman, S. Ganesh, K.J. John, Ms. Mayuri Nayyar for M/s. K.J.
John & Co. for the Respondent.

The following Judgment of the Court was delivered : B
Would the provisions of Section 82(b) of the Representation of the
People Act, 1951 get attracted to a candidate who allegedly commits a corrupt
practice, after the withdrawal of his candidature as a voter, is the meaningful
question requiring our consideration in this appeal?
c
The appellant was a candidate for Rajya Sabha elections for one seat
from Goa in the year 1999. There were three candidates in the fray. Apart
from the appellant and respondent, there was another candidate Luis Alex
Cardozo. All the three candidates had filed their nomination papers, which
were accepted. After the acceptance of his nomination paper, Luis Alex
Cardozo withdrew from the contest on 17th July, 1999. In the contest held
D
thereafter, respondent was declared elected. The appellant filed an election
· petition, challenging the election of respondent, principally on the ground of
commission of corrupt practices. In the election petition respondent alone was
arrayed as a party-respondent. After service of notice, respondent raised a
preliminary objection by filing an application under Section 86 of the Rep- E
resentation of the People Act, 1951 (hereinafter referred to as the 'Act') It was
averred that election petition was liable to be dismissed for non-compliance
with the requirements of Section 82 of the Act. The preliminary objection was
upheld and election petition was dismissed. Hence, this appeal.

Section 82(b) of the Representation of the People Act, 1951 provides: F

"82 - A petitioner shall join as respondents to his petition -

(a) _ _ __

(b) any other candidate against whom allegations of any corrupt G
practice are made in the petition."

Section 86, which deals with trial of election petitions provides in sub-
clause (1) as follows :

"86(1) The High Court shall dismiss an election petition which H
80 SUPREME COURT REPORT~ [2000] SUPP. 2 S.C.R.

A docs not comply with the provisions of Sec. 81 or Section 82 or Sec.
117.

Explanation - An order of the High Court dismissing an election
petition under this sub-section shall be deemed to be an order made
under clause (a) of Section 98."
B
In the instant case, Luis Alex Cardozo withdrew his nomination on I 71h
July, 1999. Election took place on 26th July, 1999. In the election petition
apart from various other allegations against the respondent two allegations
contained in paragraphs 30-D(ii) and 30-G alone are relevant for purposes of
C our discussion. Those paragraphs read thus :

"30-D- The corrupt practice committed by the respondent and his
agents is as follows:

(i) _ _ __

D
(ii) Offering and promising of cabinet berths to some of the 8
dissidents MLAs of Congress Party and appointment on other impor-
tant public offices to the remaining of them as also to one independent
MLA who are, namely, Shri Su bash Shirodkar, Shri Somnath Zuwarkar,
Shri Sanjay Bandekar, Smt. Victoria Fernandes, Shri Luis Alex
E Cardozo, Shri Jose Philip D' Souza, Shri Mau vino Godinho, Shri
Babu Azgaonkar and Shri Isidoro Luis Fernandes (Independent).

G - The said 8 dissident Congress MLAs and one independent
MLA in agreement to receive the said gratification voted for the
respondent at the said election."
F
The allegations, in a nutshell, conl'.lined in these two paragraphs are
concerned, are to the effect that after withdrawal of his candidature, Cardozo
agreed to receive gratification along with some other MLAs as a motive or
reward to vote for respondent. Acceptance of or agreement to receive gratifi-
G cation as a motive or reward to vote at the election is a corrupt practice dealt
with in Section 123-(l)(B) of the Act which provides:

"123 - Corrupt pracrices :

The following shall be deemed to be corrupt practices for the
H purposes of this Act :-
GADNIS BHAWANI SHANKAR 11. FALEIRO EDUARDO MARTINHO 81
( 1) "Bribery", that is to say - A
(A) _ _ _ __

(B) the receipt of, or agreement to receive, any gratification,
whether as a motive or a reward -
B
(a) by a person for standing or not standing, as, or for withdraw-
ing or not withdrawing from being, a candidate; or

(b) by any person whomsoever for himself or any other person
for voting or refraining from voting or inducing or attempting to
induce any elector to vote or refrain from voting, or any candidate C
to withdraw or not to withdraw his candidature.

Explanation - For the purposes of this clause the term "gratifi-
cation " is not restricted to pecuniary gratifications or gratifications
estimable in money and it includes all forms of entertainment and all
forms of employment for reward but it does not include the payment D
of any expenses bona fide incurred at, or for the purpose of, any
election and duly entered in the account of election expenses referred
to in section 78."

A plain reading of the above provision shows that the receipt of, or
agreement to receive, any gratification as a motive or reward by any person
E
whomsoever for himself or any other person for voting or refraining from
voting, or inducing or attempting to induce any elector to vote or refrain from
voting, or any candidate to withdraw or not to withdraw his candidature would
amount to commission of a corrupt parctice. The averments noticed in para-
graphs 30-D(ii) and 30-G of the election petition (supra) contain allegations F
against Cardozo that he agreed to receive gratification as a motive or reward
for voting in favour of the respondent. These averments would amount to
allegations of commission of corrupt practice by Cardozo within the meaning
of Section 123(l)(B) of the Act.

The argument of Mr. Krishnamani, learned senior counsel appearing for G
the appellant, however, is that since Cardozo had withdrawn from the contest
he could not be treated as a candidate who was necessarily required to be
imp leaded as a party-respondent under section 82(b) of the Act and if the
corrupt practice was committed by him as a voter only, he was not required to
be impleaded as a party respondent in the election petition. This argument does H
82 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A not appeal to us. Section 79(b) of the Act defines a 'candidate' to mean a person
who has been or claims to have been duly nominated as a candidate at any
election. There is no dispute that Cardozo had been duly nominated as a
candidate at the election in question. A similar argument as raised by Mr.
Krishnamani came up for consideration in Har Swarup & Anr. v. Br(j Bhushan
Saran & Others, [ 1967] 1 SCR 342.
B
Wanchoo, J. speaking for a three judge Bench opined :-

"But the argument is that as the alleged corrupt practice was
committed after the date of his withdrawal he would not be a candi-
date within the meaning of S. 82(b ). We are of opinion that if the
c effect of withdrawal is said to be that a person nominated can no
longer be considered to be a candidate only after his withdrawal, the
date of withdrawal cannot be a dividing line as to the time upto which
he can be treated as a candidate and the time after which he cannot
be treated as a candidate. {f purity of elections has to be maintained
D a person who is a candidate as de.fined in section 79(b) of the Act will
remain a cwulidale even qfter he withdraws till the election is over,
and if he commits a corrupt practice whether before or qfter his
withdrawal he would be a necesswy party under s. 82(b) of the Act."

[emphasis ours]
E
In Ram Pratap Chandel v. Chw1dhW}' Laiia Ram and Others, [1998]
8 SCC 564, the requirements of Section 82 of the Representation of the People
Act were dealt with and the Bench opined that a candidate against whom a
charge of corrupt practice had been made in the election petition was required
to be joined as a party to the election petition, irrespective of the fact whether
F he had withdrawn his candidature and not contested the election as such and
had committed the corrupt practice after his withdrawal.

The Bench in Ram Pratap Chandel's case considered the judgment in
Mohan Raj v. Surendra Kumar Taparia & Ors., [1969] l SCR 630 which has
been pressed into aid by Mr. Krishnamani before us distinguished it in the
G
following words :-

"Lastly, it is submitted that Periwal was being charged in his
character as an election agent and not as a candidate. This submission
runs counter to the amendment petition which says that he was not an
H election agent and, therefore, he was really charRed in his capaCity as
GADNIS BHAWANI SHANKAR v. FALEIRO EDUARDO MARTINHO 83
an individual and as he was a duly nominated candidate he had to A
be joined. The argument really contradicts the last amendment petition

- and cannot be entertained.

He submitted that the allegations of corrupt partice made against
a person who, though he had been a candidate, had withdrawn in his
capacity as the election agent of another candidate, did not necessitate B
his impleadment and this question had been left open in the aforesaid
judgment. It is difficult to agree. By reason of the contradiction, the
argument was not entertained. But it is clear from what was stated
there in above that a candidate who is duly nominated continues to
be a candidate for the purposes of Section 82(b) in spite of his C
withdrawal and, if allegations of corrupt practice are made against
him, he must be impleaded as a party to the election petition or the
election petition must fail."

[emphasis ours]
D
We are in complete agreement with the exposition of law, as made
above.

In our opinion the allegations which have been made in the election
petition are allegations of corrupt practice against Cardozo besides some
others. Since, Cardozo was a nominated candidate, it was necessary to implead E
him as a party-respondent under Section 82(b) of the Act, irrespective of the
fact that before the actual date of election, he had withdrawn his candidature
and aliegedly committed the corrupt practice after his withdrawal from the
election. Thus, the answer to the question posed in the earlier part of the
judgment is in the affirmative.
F
The learned Sing1e Judge of the High Court committed no error in
dismissing the election petition for non-compliance with the provisions of
Section 82(b) of the Act. The appeal has no merits. It fails and is dismissed.
Parties to bear their own costs.

v.s.s. G
Appeal dismissed.