The election of the sole respondent as the returned candidate from No.17 Pathanamthitta Constituency of the House of the People (Lok Sabha) has been called in question in these Election Petitions. The petitioners in the Election Petitions are electors enrolled as voters in the Adoor Assembly Constituency forming part of No.17 Pathanamthitta Constituency and have allegedly cast their votes. There were 16 candidates in the poll fray and the respondent had defeated his nearest rival by name Adv.Peelipose Thomas by a margin of 56191 votes. The specific case of the petitioners is that the respondent and his agents along with his brother induced another person by name Peelipose Thomas to contest as a candidate. There was an illegal gratification by payment of ` 25,000/- as bribe to the said Peelipose Thomas which was done through an account maintained in the Bank. 2. The respondent has raised a preliminary objection to the maintainability of the Election Petitions referring to the provisions of the Representation of the People Act, 1951 ('the Act'). The alleged illegal gratification by the payment of `.25,000/- to Peelipose Thomas who had also contested the election is 'bribery' which is deemed to be a corrupt practice under the Act. The respondent contends that Peelipose Thomas against whom also allegations of corrupt practice are made ought to have been joined as a respondent in the Election Petitions. The failure to join Peelipose Thomas as a respondent to the Election Petitions is fatal warranting the same to be dismissed as not maintainable at the threshold.
3. I heard Mr.K.Shaj, Advocate on behalf of the petitioners and Mr.K.Ramakumar, Senior Advocate duly instructed by Mr.Saiby Jose Kidangoor, Advocate on behalf of the respondent.
4. The expression 'Corrupt Practices' has been defined under Section 123 of the Act as follows:-
“123. Corrupt practices:- The following shall be deemed to be corrupt practices for the purposes of this Act:-
(1) “Bribery”, that is to say, -
(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing-
(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or as a reward to-
(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward -
(a) by a person for standing or not standing as, or for withdrawing 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 to withdraw or not to withdraw his candidature.
Explanation:- For the purposes of this clause the term “gratification” 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 of 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.”
Section 123(1)(A)(a) of the Act speaks of gratification to any person with the object of inducing him to stand or not to stand or to withdraw or not to withdraw as a candidate at an election. Section 123(1)(B)(a) of the Act speaks of the receipt of any gratification as a reward or motive for standing or not standing or for withdrawing or not withdrawing as a candidate. The averments in the Election Petitions are to the effect that there was an illegal gratification by the payment of ` 25,000/- by the respondent to Peelipose Thomas. The respondent has been alleged to have induced Peelipose Thomas to stand as a candidate who in turn is alleged to have accepted the gratification to stand as a candidate in the election. Peelipose Thomas was so chosen since his name bears close similarity to Adv.Peelipose Thomas in a bid to mislead the voters and split his votes. Thus bribery amounting to corrupt practice has obviously been alleged in the Election Petitions not only against the respondent but also against the said Peelipose Thomas.
5. The persons who are to be joined as respondents in an Election Petition are enumerated in Section 82 of the Act as follows:-
“82. Parties to the petition:- A petitioner shall join as respondents to his petition-
(a) where the petitioner, in addition to claiming 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 are made in the petition.” (emphasis supplied) Peelipose Thomas is the 'other candidate against whom allegations of corrupt practice are made' in the Election Petitions who however has not been joined as a respondent thereto. Peelipose Thomas who has been accused of accepting the gratification to stand as a candidate ought to have been joined as a respondent in the Election Petitions. The failure to implead Peelipose Thomas as a respondent in the Election Petitions is fatal and this Court can only dismiss the Election Petitions therefore. Section 86 of the Act mandates that the High Court shall dismiss an Election Petition which does not comply with the provisions of Sections 81, 82 and 117 of the Act.
6. The Supreme Court adverting to the decision in Mohan Singh v. Bhanwarlal [AIR 1964 SC 1366] has observed in Har Swarup v. Brij Bhushan Saran [AIR 1967 SC 836] as follows:-
“Where, for example, there is no claim for a further declaration in an election petition, only returned candidates would be made respondents under clause (a). But if there are allegations of corrupt practice against any candidate other than the returned candidate, he would have to be made a party under clause (b) as 'any other candidate'. Similarly where a declaration is asked for in the petition that a particular candidate has been duly elected, all the returned candidates as well as all the contesting candidates have to be made parties under clause (a). Even in such a case if there is allegation that any other candidate besides the returned candidates and the contesting candidates has been guilty of corrupt practice, clause (b) requires that he should also be made a respondent.”
The law is settled that even the failure to join a candidate who has withdrawn from the contest and against whom allegations of corrupt practice exist is fatal to the Election Petitions.
7. The question as to whether the Election Petitions could be dismissed as not maintainable on this Count has been answered in Udhav Singh v. Madhav Rao Scindia [AIR 1976 SC 744] as follows:-
“19. Behind this provision, is a fundamental principle of natural justice viz., that no body should be condemned unheard. A charge of corrupt practice against a candidate, if established, entails serious penal consequences. It has the effect of debarring him from being a candidate at an election for a considerably long period. That is why Section 82(b) in clear, peremptory terms, obligates an election petitioner to join as a respondent to his petition, a candidate against whom allegations of any corrupt practice are made in the petition. Disobedience of this mandate, inexorably attracts Section 86 which commands the High Court in equally imperative language, to 'dismiss an election petition which does not comply with the provisions of Section 82'.
20. The respondent cannot by consent, express or tacit, waive these provisions or condone a non compliance with the imperative of Section 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 Section 86. As soon as the non compliance of Section 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 Section 86. (emphasis supplied)
8. The non compliance of Section 82(b) of the Act is a lethal defect about which this Court has been alerted by the respondent in his preliminary objection to the Election Petitions. I sustain the preliminary objection and dismiss the Election Petitions as not maintainable under Section 86 of the Act which shall be duly communicated under Section 103 of the Act.
The Election Petitions are dismissed. No costs.
nj.
Sd/-
V.CHITAMBARESH, Judge.