R D PARANJPE Vs. RAM JETHMALANI

JUDGEMENT

(1.) This election petition arises out of the election in respect of the seat for the Lok Sabha from Bombay North-West Constituency No. 18 in the election held in March 1977. There were six contesting candidates including the petitioner and respondents Nos. 1 and 2 in respect of this seat. As per the results declared by the Returning Officer, respondent No. 1, Ram Jethmalani secured 2,46,446 votes, respondent No. 2, H.R. Gokhale secured 1,52,947 votes and the petitioner secured 1,721 votes. The other candidates secured a smaller number of votes than these three. The Returning Officer, therefore, declared respondent No. 1 to have been duly elected. In this petition, the petitioner has prayed, inter alia, that the election of respondent No. 1 be declared to be null and void, that respondent No. 2 be declared as disqualified and the petitioner be declared to have been duly elected and returned to the Parliament from the Bombay North-West Constituency No. 8 (hereinafter referred to as 'the said Constituency').

(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,'663 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. 616,260, 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 Section 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 Section 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 duty nominated as a candidate from the said constituency. Prof. Varde was, therefore, a candidate as denned in Section 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 Section 40 of the said Act. It was incumbent on the petitioner to join the said Prof. Varde as respondent under the provisions of Section 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 be dismissed under the provisions of Sec, 36 (1) of the said Act.

(3.) On 5th September 1977 respondent No. 2 took out a Notice of Motion praying that the petition should be dismissed in limine by reason of the failure of the petitioner to implead Prof. Varde, who was a candidate and was an election agent of respondent No. 1 and that this issue may be tried as a preliminary issue. On 27th September 1977 at the hearing of the aforesaid Notice of Motion, the following issue was directed to be tried as a preliminary issue: "Whether the petition is liable to be dismissed under the provisions of Section 86 of the Representation of the People Act, 1951, read with Section 82 (b) of the said Act on account of the failure of the petitioner to join Prof. Sadanand Varde as a party to the petition?" On 15th October 1977 when the petition reached hearing, it was conceded by the petitioners that Prof. Sadanand Varde was duly nominated as a candidate for the Bombay North-West Parliamentary Constituency at the said election and that he duly withdrew his nomination on the last day fixed for the withdrawal of nominations. It was stated on that day that it was agreed between the Advocates of respondents Nos. 1 and 2 and the petitioner that, in view of this, the only surviving dispute relevant to the determination of the preliminary issue raised was whether Prof. Sadanand Varde was duly appointed as the election agent of respondent No. 1 for the election in question and whether he continued to be such election agent till the result of the said election was announced.