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1977 DIGILAW 194 (KER)

K. R. SARASWATHI AMMA v. S. THANKAPPAN PILLAI

1977-07-15

N.D.P.NAMBOODIRIPAD

body1977
Judgment :- 1. In the general elections held on 19-3-1977 to the Legislative Assembly of the Kerala State, the petitioner and respondents 1 to 3 contested from No. 108 Chengannur Assembly Constituency. Poll was taken on 19-3-1977 and counting took place on 20-3-1977. On the same day the Returning Officer declared that the first respondent was duly elected to the Legislative Assembly from the concerned constituency. The petitioner, one of the defeated candidates, challenges the election essentially on the ground that the first respondent is guilty of corrupt practices. The first respondent, on acceptance of summons, entered appearance and filed a written statement traversing the allegations contained in the petition. Thereafter the first respondent filed C.M.P No. 9642 of 1977 raising a fresh ground to the effect that the election petition is liable to be dismissed summarily for non-compliance with S.82(b) of the Representation of the People Act, 1951 (briefly the 'Act'). To that petition a reply affidavit has been filed by the petitioner alleging that the petition is properly constituted and it does not suffer the vice pointed out by the 1st respondent in CMP. No. 9642 of 1977. 2. The short case put forward by the 1st respondent is that in view of the allegations contained in Para.7 of the petition there is non-complianc: with S.82(b) of the Act and that the court is bound to dismiss the petition before further trial in view of the mandatory provision contained in S.86(1) of the Act. To appreciate the respective cases of the contesting parties it is necessary to read Para.7 of the petition: "One Shri P.C. Varghese, President of the Chengannoor Panchayat filed nomination to contest as a candidate in the election from the 108 Chengannoor Assembly Constituency. He was promised by the Transport Minister Shri. K. Narayana Kurup with the consent and knowledge of the returned candidate¬lst respondent-to appoint him as a member of the Advisory Board of the Kerala State Road Transport Corporation or as a member of the Regional Transport Authority as a gratification for his withdrawing from the contest. Accordingly the said P. C. Varghese withdrew bis candidature. Subsequently be was appointed as a member of the Advisory Board of the Kerala State Road Transport Corporation. Accordingly the said P. C. Varghese withdrew bis candidature. Subsequently be was appointed as a member of the Advisory Board of the Kerala State Road Transport Corporation. This is a corrupt practice falling under S.123(1)(A) of the Representation of the People Act, 1951." According to the first respondent the averments in Para.7 of the petition amounted to a definite allegation to the effect that Shri P. C. Varghese, who withdrew from candidature, is guilty of corrupt practice. S.82(b) may be read in this connection: "82. Parties to the petition.-A petitioner snail join as respondents to his petition - (b) any other candidate against whom allegations of any corrupt practice are made in the petition." If there is an allegation of any corrupt practice against Shri P. C Varghese, who admittedly was a candidate on the petitioner's own showing, then certainly, Sri. Varghese is a necessary party, and in so far as Shri Varghese has not been impleaded as a party to the petition, the petition must fail. The argument advanced by the petitioner in answer to the above contention is that the allegations contained in Para.7 of the petition do not amount to an allegation "against" Shri P. C. Varghese within the meaning of S.82(b) of the Act So the dispute is regarding the true import of the averments contained in Para.7 of the petition. From the statements contained in Para.7 extracted above what one would naturally and normally gather is that there was a definite offer at the first respondent's instance to appoint Shri P C. Varghese as a member of the Advisory Board of the Kerala State Road Transport Corporation or as a member of the Regional Transport Authority as a gratification for his withdrawing from the contest. The petitioner then avers in Para.7 "accordingly, the said P. C. Varghese withdrew his candidature." The remaining allegation in Para.7 is that subsequent to that withdrawal, as a matter of fact. Shri P. C. Varghese was appointed as a member of the Advisory Board of the Kerala Road Transport Corporation. Reading Para.7 as a whole there cannot be any doubt that there is an allegation against Shri P. C. Varghese which, if proved, would undoubtedly make him guilty of corrupt practice within the meaning of S.123 of the Act. Shri P. C. Varghese was appointed as a member of the Advisory Board of the Kerala Road Transport Corporation. Reading Para.7 as a whole there cannot be any doubt that there is an allegation against Shri P. C. Varghese which, if proved, would undoubtedly make him guilty of corrupt practice within the meaning of S.123 of the Act. The argument advanced by the learned counsel for the petitioner is that in Para.7 it is not categorically stated that Shri P C Varghese "accepted" the offer. I do not think that the absence of the word 'accepted' is of much significance as far as the averments in Para.7 are concerned. A reading of Para.7 as a whole leaves no room for any doubt that there was an offer of illegal gratification for withdrawal at the instance of the first respondent and that there was in consequence of that offer a withdrawal, and that as a matter of fact the illegal gratification promised was carried out also. If the allegations in Para.7 are proved, I have not the slightest hesitation to hold that Shri P. C. Varghese will also be guilty of corrupt practice. It is true that the petitioner has mentioned in Para.7 only S. i23 (1) (A) of the Act. But that by itself is of little consequence. Reading the entire Para.7 it is clear that the averments attract S.123 (1) (B) also. 3. The learned counsel for the petitioner vehemently argued that the averments in Para.7 of the petition are practically the same as the averments considered by the Supreme Court in the decision reported in Mohan Singh v. Bhanwarlal (AIR. 1964 SC. 1366). The real proposition laid down in that decision has been considered by the Supreme Court in Krishan Chander v. Ram Lal (AIR. 1973 SC. 2513) No doubt, in Krishan Chander's case the illegal gratification for withdrawal was payment of money. 1964 SC. 1366). The real proposition laid down in that decision has been considered by the Supreme Court in Krishan Chander v. Ram Lal (AIR. 1973 SC. 2513) No doubt, in Krishan Chander's case the illegal gratification for withdrawal was payment of money. When Mohan Singh v. Bhanwarlal was cited the Supreme Court observed as follows: "The case of Mohan Singh v. Bhanwarlal, AIR 1964 SC 1366 cited by the petitioner has no application, because on the facts of that case there was no express averment that one of the candidates bad withdrawn his candidature as a consequence of a promise made to him by the successful candidate that a job will be secured for him as such it was held that it did not disclose an allegation of corrupt practice." So the allegations which formed the basis of the decision in Mohan Singh's case was treated by the Supreme Court in Krishan Chander v. Ram Lal as not constituting the proper averment that the withdrawal was in consequence of the promise. I think, the averments in Para.7 of the petition in this case leave no room for any doubt regarding the acceptance of the offer by Shri. P. C. Varghese. To repeat, after alleging the offer the petitioner averred in Para.7 as follows: "Accordingly the said P. C. Varghese withdrew his candidature". I think, that makes the position absolutely clear, and further the succeeding sentence in Para.7 shows, that he was actually appointed also to the promised position. So this is a case where there is not only acceptance but also implementation of the offer, and Shri P. C. Varghese the recipient of that reward by no stretch of imagination can be said to be not guilty of corrupt practice within the meaning of S.123 of the Act if the averments in Para.7 are proved satisfactorily. 4. The learned counsel for the petitioner further contended that in Para.13 of the written statement filed by the first respondent there is no indication that the first respondent understood the averments in Para.7 of the petition as an allegation against Shri. P. C. Varghese. There is nothing in Para.13 of the written statement to support that argument. That apart, assuming that sufficient details are not contained in Para.13 of the written statement that by itself cannot save the petition. There is nothing in Para.13 of the written statement to support that argument. That apart, assuming that sufficient details are not contained in Para.13 of the written statement that by itself cannot save the petition. In the first place the position has been clarified by C.M.P. No 9642 of 1977 filed by the first respondent specifically drawing the attention of the court to the averments in Para.7 and raising the contention that there is an allegation against Shri. P. C. Varghese, and by the omission to implead Shri. P C. Varghese the petition does not satisfy the requirements of S.82 (b) of the Act. Even assuming that no specific objection containing all the necessary details were raised by the first respondent, that by itself does not stand is the way of the court discharging its duty in view of the mandatory provision contained in S.86 (1) of the Act, which enjoins that the High Court shall dismiss an election petition which does not comply with the provisions of S 81, or S.82 or S.117. The duty of the court in this respect has been pointed out by the Supreme Court in Udhav Singh v. M R. Scindia (AIR. 1976 SC. 744). The Supreme Court has held that the pleading has to be read as a whole to ascertain its true import and that S.82 (b) in clear peremptory terms obligates an election petitioner to join as respondent to his petition, a candidate against whom allegations of any corrupt practice are made in the petition. The Supreme Court held further: "The respondent cannot by consent, express or tacit, waive these provisions or condone a non-compliance with the imperative of S 82(b). Even inaction, laches or delay on the part of the respondent in pointing out the lethal defect of non joinder cannot relieve the court of the statutory obligation cast on it by S 86. As soon as the non-compliance with S 82(b) comes or is brought to the notice of the court, no matter in what manner and at what stage, during the pendency of the petition, it is bound to dismiss the petition in unstinted obedience to the command of S.86." 5. As soon as the non-compliance with S 82(b) comes or is brought to the notice of the court, no matter in what manner and at what stage, during the pendency of the petition, it is bound to dismiss the petition in unstinted obedience to the command of S.86." 5. I am satisfied that the averments in Para.7 of the petition do contain an allegation of corrupt practice against Shri P C. Varghese, who was a candidate, and since he is not impleaded in the petition the petitioner has not complied with the mandatory provisions of S.82 (b) of the Act. I am, therefore, bound to dismiss this petition under S.86 (1) of the Act, and I do so. In the result, this election petition is dismissed with costs, of Rs. 250/-to the Ist respondent. The office will communicate the substance of this decision to the Election Commission and to the Speaker of the Legislative Assembly of Kerala, and it shall also forward an authenticated copy of this order as soon as it is ready to the Election Commission as provided in S.103 of the Act. Dismissed.