MOHAN SINGH LAXMAN SINGHJI RAJPUT Vs. BHAWARLAL NAHTA

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution for the issue of a writ of certiorari for quashing an order of the Election Tribunal, Ratlam, rejecting the petitioner's application asking for dismissal of the election petition filed by the respondent No. 1, Bhawarlal Nahta, as required by Section 90 (3) of the representation of the People Act, 1951. (hereinafter referred to as the Act), on the ground that the said respondent had failed to join one Himmatsingh as a respondent to his petition.

(2.) THE relevant facts are these. The petitioner was duly elected to the Madhya pradesh State Legislative Assembly at the last general election held in February, 1962, from Sitaman constituency, in Mandsaur district. The respondents Nos. 1 to 3, one Himmat Singh and other persons were also duly nominated for election in that constituency. Himmat Singh later on withdrew his candidature. After the petitioner was declared to be elected, the first respondent, who was defeated in the election, filed an election petition impleading the petitioner and the respondents Nos. 2 and 3 as party respondents to that petition and praying that the election of the petitioner be declared void and that he himself be declared duly elected, and, further, the petitioner be declared disqualified for having committed certain corrupt practices. The election petition contains inter alia the following averment -" that on 2oth January. 1962, respondent No. 1 offered at Nahargarh to shri Himmat Singh an independent candidate to help in procuring a job for him in Dalauda Sugar Factory or elsewhere to withdraw his candidature from the Election. That as a consequence of this offer of illegal gratification Shri Himmat Singh withdrew his candidature from sitamau Constituency (Assembly ). " it must be noted that in the affidavit (annex. B to the return), which the respondent No. 1 filed in support of the allegations of corrupt practices made in the petition and the particulars thereof, the said respondent stated -"that the statements made in paragraph II-A, B, D, E, F, G, H, I, J, K, L and M of the said petition about the commission of the corrupt practice of offer of illegal gratification. . . . . are true to my information. " this affidavit says nothing as to whether the allegations, if any, about the receipt of, or agreement to receive any, gratification are true to his information. After the framing of the issues in the trial of the petition, the applicant moved the Tribunal for the dismissal of the petition under Section 90 (3) of the Act contending that an allegation of corrupt practice had been made in the petition against Himmat Singh and, that, therefore, he should have been made a party to the petition as required by Section 82 (b) and as that had not been done, there was no compliance with the provisions of Section 82 and so the petition had to be dismissed under Section 90 (3 ). The Tribunal rejected this contention of the petitioner taking the view that the allegation that the petitioner offered to help Himmat Singh in procuring a job for him if he were to withdraw his candidature did not amount to an allegation of any corrupt practice at all as denned under Section 123 (r) (B) of the Act the Tribunal also observed that there was no allegation in the petition whether himmat Singh received "the reward" or agreed to receive "the reward" promised by the petitioner and that it was possible that Himmat Singh withdrew his candidature out of sheer disgust at the offer made by the petitioner. Relying on the decision of the Bombay High Court in Baburao Tatyaji Bhosle v. Madhao shrihari Aney, 22 Ele LR 321 : (AIR 1961 Bom 29), the Tribunal expressed the view that a candidate who had withdrawn his candidature under Section 37 after filing his nomination was "any other candidate" within the meaning of Section 82 (b) and therefore he must be made a party to an election petition if allegations of any corrupt practices are made against him in the election petition. As the Tribunal found that there was no allegation of any corrupt practice against Himmatsingh, the petitioner's objection was ultimately overruled.

(3.) IT was argued by Shri Dharmadhikari, learned counsel for the petitioner, that under the Explanation to Section 123 (1) (B) gratifications were not restricted to pecuniary gratifications or gratifications estimable in money but also included all forms of employment for reward and acceptance or receipt of any gratification or agreement to receive any gratification was also a corrupt practice under Section 123 (1) of the Act as amended in 1958; that a mere offer of help to secure employment or a promise to secure some post or situation amounted to a corrupt practice; that the allegation made by the respondent No. 1 that the petitioner offered to help Himmatsingh in procuring a job for him in Dalauda Sugar Factory or elsewhere if he were to withdraw his candidature was an allegation of corrupt practice against Himmatsingh; and that, therefore, Himmatsingh wan a necessary party to the election petition as required by Section 82 (b ). It was said that on a true construction of Section 82 (b) the words "any other candidate" occur- ring therein included a candidate who had withdrawn his candidature under Section 37 after filing his nomination; that Section 90 (3) laid down in mandatory terms that the Tribunal shall dismiss an election petition" not complying with the provisions of Section 82; and that consequently the election petition filed by the respondent No. 1 should have been dismissed for non-joinder of Himmatsingh. In support of his contentions, learned counsel relied on 22 Ele LR 321 : AIR 1961 Bom 29 (supra), and Dera Ghazi Khan Hazrat Hafis Sadid-ud-din v. Khwaja Ghulam Murtaza, 1 IECD Vol. 1 p. 107. He also referred us to the english decision in Plymouth Case, (1853) 2 Pow R and D 238 noted in Parker's election Agent and Returning Officer (6th Edn. ,) at p. 285, to support his contention that a mere offer or promise to secure some post or" situation was a corrupt practice. Learned counsel did not dispute that in coming to the decision that it did, there was no illegal exercise of jurisdiction by the Tribunal. He, however, urged that there was an error of law apparent on the face of the record which should and could be corrected by us in proceedings under Article 226 of the constitution. Learned counsel invited us to exercise our jurisdiction under Article 226 and quash the order of the Tribunal on the authority of Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687, Calcutta Discount Co. , Ltd. v. I. T. Officer, AIR 1961 SC 372, and shri Ambica Mills Co. v. S. B. Bhatt, AIR 1961 SC 970. It was said that if the election petition is liable to be dismissed for non-joinder under Section 90 (3) of the Act, then the order of the Tribunal should be quashed in order to save the petitioner from unnecessary harassment, trouble and expenses that would be involved in controverting the allegations made against him and in examination of witnesses.