Kotval, J.:— We are concerned in this appeal with an election from the Nagpur Umrer Parliamentary Constituency held to fill a casual vacancy in the House of the People as required by s. 149 of the Representation of the People Act, 1951, Act No. XLIII of 1951) (hereinafter referred to as the Act).
2. The following dates are material for the purposes of the appeal:
The notification calling upon the Constituency to fill the vacancy (under s. 149 of the Act) was issued on December 10, 1958.
The last date for filing nominations by candidates standing for the election (under s. 30) was December 20, 1958.
The last date for withdrawing one's candidature (under s. 37) was December 26, 1958.
The actual polling at the election (under s. 56) took place on January 31 and February 1, 1959.
3. The counting of votes was commenced on February 2, 1959, and completed by February 3, 1959, on which date the result of the election was declared. At the election, the contest was between throe persons. They were (1) the respondent Madhav Shrihari Aney who was supported by the Congress Party and by the Vidarbha Andolan Samity; (2) Rajabhau Khobragade who was supported by the Samyukta Maharashtra Samiti: and (3) Haridas Damaji Awade who stood as an independent candidate. There was a fourth person who had filed his nomination, N.L Belekar, but he withdrew his candidature within the time allowed and was not a contesting candidate. The successful candidate was the respondent M.S Aney, who secured 1,27,025 votes, Rajabhau Khobragade secured 68,957 votes and Haridas Damaji Awade secured 11,448 votes.
4. Consequent upon the declaration of the result of the election, a petition was presented under s. 81 of the Act on March 18, 1959, by the appellant Baburao Tatyaji Bhonsale praying that the election of the respondent should be declared void. There was no prayer that any other candidate standing for the election should be declared elected as contemplated by s. 82(a) of the Act.
5. In the election petition the appellant-petitioner claimed that he was a voter whose name was duly entered in the electoral roll of the said constituency, a fact, which is not in dispute before us. According to the petitioner, the respondent's election was liable to be declared void because either the respondent or his agents and other persons working for him wore guilty of certain corrupt paractices as defined in s. 123 of the Act.
6. The allegations in the petition are brief and it is worthwhile reproducing the material paragraph because most of the questions argued in appeal turn upon the recitals in that paragraph. In para 6 of the petition the petitioner stated his case regarding corrupt practices as follows:
“In the course of the propaganda carried on by the respondent for his election, systematic appeals were made by the respondent and with the consent of the respondent by his agents and other persons who were canvassing votes for him, to vote for the respondent and to refrain from voting for Shri Rajabhau Khobragade on grounds of caste, race, community and religion. The respondent and with his consent his agents and other persons working for him used the election symbol of the respondent viz. two bullocks with yoke on and appealed to it as a symbol of Buddhist religion and the Hindu religious symbol of cow was used and appeal made to it for the furtherance of the prospects of the respondent's election. These appeals, uses and appeals were made at various meetings held at Nagpur and other places, particulars of which are given in Schedule I, by articles and items published in the newspapers (filed herewith) viz., Dainik Vidarbha Andolan and Daily Maharashtra, published at Nagpur particulars of which are given in Schedule II and by pamphlets and handbills published at Nagpur, the particulars of which are given in Schedule III.”
7. In para 7 of the petition, the petitioner also alleged other forms of corrupt practices with the details of which we are not concerned in this appeal. In para 16 the petitioner stated that on account of the commission of the above corrupt practices and the instances of non-compliance with the provisions of the Constitution, the Act, Rules and orders made under the Act, the result of the election, in so far as it concerned the respondent, had been materially affected. Appended to the petition were six schedules in which particulars of the corrupt practices were given and the details of the contraventions of the Act. In Schedules I and II the petitioner stated, with reference to para 6 reproduced above, the particulars of the several meetings wherein speeches were made making appeals which amounted to corrupt practice within the meaning of s. 123(3) of the Act. The petitioner merely gave the dates of the meetings and the places of the meetings. In Schedule II the petitioner referred to several articles published in newspapers and items of news appearing in two newspapers, namely, the Dainik Vidarbha Andolan and the Dainik Maharashtra. We shall later on refer to certain specific items out of these two schedules attached to the petition.
8. Before the Election Tribunal the petition had a chequered and unfortunate career. The petition was filed on March 18, 1959. The respondent replied to it on July 23, 1959. By para 18 of his reply, the respondent alleged that the averments' as to corrupt practices, particularly the averments in para 6 of the petition, were far too general, vague and indefinite and they did not furnish the particulars requisite under law. The respondent averred that the petitioner ought to disclose who were the agents referred to in para 6 of the petition and by which other persons the working or canvassing for the respondent was done. The respondent prayed that for want of these particulars regarding corrupt practices in terms of s. 123(3) of the Act, the pleadings were liable to be struck off. Pursuant to this objection, the petitioner applied for amendment of his petition on July 25, 1959.
9. In his application for amendment, the petitioner alleged that he desired to add some particulars to those already given in his petition and for that purpose he wanted to amend Schedules I-VI as stated in the list appended to the application for amendment. The petitioner also prayed for amendment upon another ground, namely, that the petitioner had through inadvertence not given a few particulars in the petition and that inadvertent omission should be permitted to be supplied. He appended to the application for amendment two statements, among others, which he wished to be added to Schedules I and II of the petition.
10. In Schedule I, he wished to add “names of speakers who made the appeal or use referred to in s. 123(3) of the Representation of the People Act” and among the names mentioned was at items 1 and 3 the name of N.L Belekar, the candidate who had withdrawn. In Schedule II, the petitioner wished to add the names of persons. Who were parties to the corrupt practices. It may be mentioned here that in Schedule II which had already been filed, against item No. 6 under the heading “Author” appeared the name of Haridas Awale referring back to item No. 5 in the original Schedule which item was as follows:
“Date of issue Votume No. Page Caption of articles and items. 26-1-1959 Vol. I. No. 7 I Khobragade Na Mat Dewoon Paksha Droha Wa Dharma Droha Karoon Naka. (Be not treacherous to (your) party and (your) religion by giving (your) votes to Khobragade)”
11. The application for amendment was opposed by the respondent. By an additional statement filed on July 28, 1959 (exh. 9) it was objected by the respondent that these particulars which the petitioner sought to add had been invented later on. It was also objected that the adding of these particulars virtually meant presenting a fresh election petition which could not be done after the period of limitation was over, nor could it be done except with the permission of the Election Commission. The respondent also alleged that the application for amendment was not bona fide.
12. The Election Tribunal allowed part of the application by its order dated August 26, 1959 (exh. 12). The Tribunal took the view that in so far as the petitioner desired to give the particulars of corrupt practices already alleged, he was entitled to do so but that he could not give by way of amendment any further instances of corrupt practices, because that was expressly prohibited by the provisions of s. 90(5) of the Act. The Tribunal took the view that so far as the omission to give the particulars was concerned, it was a case of negligence or inadvertence and that for a fair and effectual trial of the petition, the petitioner ought to be allowed to amend his petition by giving those particulars.
13. With the allowance of the amendment application commenced all the difficulties which the petition encountered before the Tribunal culminating in its dismissal. On September 14, 1959, the respondent raised a preliminary objection to the petition founded upon the provisions of s. 82(b) of the Act (exh. 23). According to the respondent, the candidate Haridas Awade against whom allegations of corrupt practices had been preferred in the petition as amended was a necessary party to the petition because of s. 82(b), and since the said candidate had not been joined, the petition was liable to be dismissed in limine.
14. The petitioner made frantic efforts to avoid the effect of the objection. On September 21, 1959 he replied to the objection stating that the objection had not been taken by the respondent in his written reply and that, therefore, it should not be entertained. The petitioner denied that any allegations had been made in the petition that the candidate Haridas Damaji Awade had committed any corrupt practice. He stated that any amendment of the petition to the effect that the candidate Haridas Damaji Awade had committed corrupt practices could not have been allowed by the Tribunal and would be outside the scope of the petition. The petitioner added that he had no objection to joining the candidate Haridas Damaji Awade as a respondent, but did not apply to join him.
15. The Tribunal heard arguments as to the preliminary objection raised, and upon submissions of counsel as to the pleadings, it came to the conclusion that it was not clear whether the petitioner wished to refer to the candidate Haridas Damaji Awale or Awade. The Tribunal, therefore, made an order on September 23, 1959 (exh. 28) that the petitioner should make the position clear by filing another written statement with proper verification. In compliance with this order, the petitioner filed a written statement on September 23, 1959, as follows:
“That the allegation of corrupt practice made by him in the petition amended on 28-8-1959 is made against one Haridas Awade, the author of the item entitled, “Khobragade Na mat Dewoon Paksha Droha wa Dharma Droha Karoon Naka” and published in Dainik “Vidarbha Andolan dated 26-1-1959 and not against Haridas Damaji Awade one of the contesting candidates in the election who is a different person.”
16. Consequent upon this clarification the Tribunal framed the additional issue No. 15(a) upon which the petition came to be subsequently dismissed.
17. Meanwhile, on the same day on which the ‘petitioner filed his reply to the preliminary objection viz., on September 21, 1959, he also prayed for a further amendment (exh. 25). By that application, he practically wanted to withdraw most of the amendments which he had applied for on July 25, 1959, and which had been opposed by the respondent but notwithstanding the opposition had been allowed by the Tribunal by its order dated August 26, 1959. The subsequent application for amendment clearly shows that the petitioner had fully appreciated the lethal nature of the objection raised by the respondent that the petition could not be proceeded with in the absence of the candidate Haridas Damaji Awade.
18. On September 24, 1959, the Tribunal passed a lengthy order whereby it rejected the second application for amendment. The Tribunal held that the respondent had by then acquired a right to have the petition dismissed under the provisions of s. 82(b) read with s. 90(3) of the Act and the allowance of the second amendment would take away that right. The petitioner, therefore, could not be allowed to resile from the amendments which he had previously sought and which had been allowed in the teeth of opposition by the respondent.
19. Simultaneously with the framing of the additional issue there were several other issues framed upon the morits of the allegations in the petition, particularly as regards the corrupt practices alleged. With the pleadings on this part of the petitioner's case and the issues framed thereon we are not concerned in this appeal, for, as we have already stated, the petition has been dismissed by the Tribunal upon the preliminary ground that it did not lie because the necessary parties were not joined as required by s. 82(b) of the Act. On September 28, 1959, the respondent applied that the additional issue No. 15(a) which had been framed by the Tribunal should be tried as a preliminary issue. This was opposed by the petitioner and ultimately the Tribunal rejected the application by its order dated October 1, 1959, and decided to proceed with the trial of all the issues simultaneously. The evidence recorded in the case was recorded on all the issues, though, in the result, after hearing arguments, the Tribunal, has dismissed the petition only on the preliminary ground and not given its findings on the merits of the petition. It is one of the points raised by the appellant in this appeal that the Tribunal ought to have decided all the issues, in the circumstances.
20. It remains to be mentioned here that the petition has not merely been dismissed for the non-joinder of the candidate Haridas Damaji Awade but also because of the non-joinder of another candidate N.L Belekar. How this issue came to be raided may now be explained. N.L Belekar was a candidate who had filed his nomination paper in the election but he had withdrawn the nomination under s. 37 of the Act. This is not disputed in the appeal before us. Since allegations had been made in Schedule I of the petition against N.L Belekar of having committed corrupt practices as mentioned in para 6 of the petition, the candidate N.L Belekar was examined as a witness on behalf of the respondent. In his evidence as R.W 2 at exh. 210, N.L Bolokar admitted that he was a candidate and had withdrawn his nomination. He had stood as an independent candidate. Consequent upon this admission, the respondent applied on October 25, 1959 (exh. 331) that no had come to learn during the evidence that N.L Belekar was a candidate and had withdrawn his candidature and that, therefore, he was also a necessary party under s. 82(b) and that since he was not joined the petition was liable to be dismissed under s. 90(3) of the Act. In reply to this objection (exh. 333), the petitioner admitted that N.L Belekar had not been joined as a respondent to the petition but he denied that N.L Belekar was a candidate. According to the petitioner, N.L Belekar had withdrawn his candidature under s. 37 of the Act and “thereby he ceased to be a candidate”. The petitioner also denied that he had made any allegation that N.L Belekar had committed corrupt practices as a candidate. The petitioner also urged that the Tribunal had no power to order the amendment of the petition so as to show that N.L Belekar had committed corrupt practices and that in any case the objection was outside the scope of the issues raised. The Tribunal appears to have decided to try this issue. It did not pass any formal orders but in its judgment it framed additional points for determination which are stated in para 11 as follows:
“(1) Whether the respondent proves that the allegations made in para 6 of the election petition and the Schedule I of the election petition are the allegation of corrupt practice made against Shri N.L Bolekar, the candidate?
(2) If so, whether the election petition is liable to be dismissed under section 90(3) of the Representation of the People Act, 1951, on account of the non-joinder of this candidate as a party to the election petitions?”
21. In a judgment which is by no means remarkable for its brevity, the Tribunal has held that the petition was liable to be dismissed under s. 82(b) read with s. 90(3) of the Act, because the two candidates whom it was necessary to join as parties to the petition, namely, Haridas Awade and N.L Belekar, were not joined. It negatived the contention raised on behalf of the petitioner that Haridas Awale referred to in Schedule II read with para 6 of the petition was not the candidate Haridas Damaji Awade. It held that the allegations of corrupt practices made in the petition were made only against the candidates Haridas Damaji Awade and N.L Belekar and no other persons bearing those names. It also held that the allegations in the petition amounted to allegations of corrupt practice against these persons as candidates and that, therefore, they ought to have been joined under s. 82(b) of the Act as parties to the petition, and since they were not so joined, the petition was liable to be dismissed under s. 90(3). In view of this finding, the Tribunal further held that it was unnecessary for it to go into the other issues framed in the case. It rejected the contention that the Tribunal was bound to decide them under s. 99(1) because; they were issues pertaining to the allegations of corrupt practice.
22. Mr. S.G Kukdoy, on behalf of the appellant-petitioner has raised several contentions both on the facts and in law. On the facts it was urged that the allegations which were made in the petition were not allegations against any candidate. Before the Tribunal it appears to have been contended that Awale and Awade are not the names of one and the same person and that the candidate was Haridas Damaji Awade and not Haridas Awale mentioned in Schedule II of the petition. A great part of the judgment of the Tribunal has been devoted to this controversy but in the appeal before us it has been conceded that the candidate is known as either Awale or Awade and that nothing turns upon this difference in the spelling of the name.
23. [His Lordship after considering the evidence on the point hold that Haridas Damaji Awade or Awale referred to in the petition and the schedules appended thereto was none other than the candidate Haridas Damaji Awade.].
24. It was then urged that assuming that the allegations of corrupt practice in para 6 of the petition referred to the candidate Haridas Damaji Awade, the allegations themselves are not such as to attract the application of s. 82(b). We have already reproduced para 6 of the petition. It was urged that all that the allegations in that paragraph show is that systematic appeals were made either by the respondent M.S Anoy, or with the consent of the respondent by his agents and other persons who were canvassing votes for him, to vote for the respondent and to refrain from voting for Rajabhau Khobragade on grounds of caste, race, community and religion. Even accepting the finding to which we have come that the Haridas Awale in Schedule II was the candidate and that, therefore, the allegations in para 6 were in relation to him, it was urged that those allegations did not amount to saying that the candidate Haridas Damaji Awade carried on the propaganda or made systematic appeals as a candidate but only as an agent or other person canvassing votes for the respondent. It was urged that under the provisions of s. 82(b) the allegations must be allegations which are made of corrupt practices against a candidate qua candidate, i.e of corrupt practices in his own interests as a candidate and that the recitals in para 6 of the petition read with Schedule II did not amount to such allegations.
25. In our opinion, the provisions of s. 82(b) do not warrant any such interpretation. The section reads as follows:
“Parties to the petition.—A petitioner shall join as respondents to his petition—
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.”
26. It may be observed that there is no qualification put on the words “any other candidate” occurring in cl. (b). We do not see any reason why any other meaning should be imported into the clause. Thus, the plain meaning of the clause would be that so long as allegations of corrupt practices are made in the petition against a candidate, he must be made a party to the petition. It is not necessary that the allegation must be that he committed the corrupt practices as a candidate or even that he committed the corrupt practices in his own interests.
27. The word “candidate” is defined in s. 79(b) as follows:
“‘candidate’ means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when with the election in prospect, he began to hold himself out as a prospective candidate.”
28. Mr. Kukdey urged that the definition in s. 79(b) is prefaced by the words “Unless the context otherwise requires” and that here the context indicates a contrary intention. The candidate Haridas Damaji Awade satisfied this definition and even though it is alleged in para 6 of the petition that the carried on propaganda on behalf of the respondent for the latter's election, we do not see how, because of such an allegation, Haridas Damaji Awade would cease to fall within the definition or within cl. (b) of s. 82.
29. The contention of the petitioner in substance amounts to this that one Haridas Damaji Awade, an individual, made the appeals or carried on the propaganda on behalf of the respondent on grounds of caste, race, community or religion, and though he incidentally happens to be a candidate also, he need not be joined under cl. (b) of s. 82 because the allegations are made against him not as a candidate but only as an unconnected person working for the respondent or as a mere representative of the respondent. We do not think that we can accede to such an interpretation of s. 82(b). On the other hand, it seems to us that the Legislature intended that a candidate guilty of corrupt practices shall be joined as a party to a petition whether he committed the corrupt practices in his own interests or in the interests of some other candidate. In conceivable cases moreover it would be extremely difficult, if not impossible, to decide whether a person who is a candidate committed corrupt practices in furtherance of his own election or for the benefit of another candidate and, therefore, merely as an individual. Moreover, where the Legislature intended to limit the nature of the corrupt practice as being in the interests of the candidate himself, they have clearly said so: see for example cls. (3) and (5) of s. 123. No such limitation or qualification has been laid down in s. 82(b). The context, therefore, does not require us to construe the word “candidate” in any other sense than in s. 79(b). We therefore hold, agreeing with the Tribunal, that the parson named in Schedule II against whom allegations of corrupt practices were made in para 6 of the petition was the candidate Haridas Damaji Awade and that he should have been joined as a party to the petition under s. 82(b) of the Act. The consequence of non-joinder is that the petition is liable to be dismissed.
30. We then turn to the contention raised on behalf of the appellant by Mr. Kukdey upon the objection raised as to non-joinder of the other candidate N.L Belekar. This candidate, as we have already stated, filed his nomination but withdrew it under s. 37 of the Act. His withdrawal is proved by his evidence and the fact was not disputed by the appellant. He has stated that he had filed his nomination as an independent candidate and that he withdrew it because he himself did not wish to contest the election and not because of any other candidate. This evidence has not been disputed before us. In the petitioner's reply to the objection raised by the respondent the petitioner admitted that the candidate N.L Belekar had withdrawn his candidature under s. 37 of the Act, but his contention was that thereby he ceased to be a candidate and, therefore, it was not necessary to join him as a respondent to the petition. The contention in short is that though s. 82(b) speaks of any other candidate against whom allegations of corrupt practice are made in the petition, a candidate who has withdrawn his candidature under s. 37 after filing his nomination ceases to be a candidate and, therefore, would not fall within the words “any other candidate” in cl. (b) of s. 82.
31. Apart from the authorities to which we shall presently refer, we may here refer to certain provisions of law. Under Part V of the Act, there are prescribed five distinct stages in the conduct of elections: The first is the appointment of a date for nominations and the making of nominations; the second is the scrutiny of nominations; the third is the withdrawal of candidatures and publication of the names of candidates; the fourth is the taking of the poll; and the fifth, the counting of votes and the announcement of the result. Section 32 provides for nomination of candidates for election and indicates that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under; the provisions of the Constitution and the Act. Therefore, so far as s. 32 is concerned, it is in the contemplation of law that a person becomes a candidate for election at least at the very moment of time that he presents his nomination. We shall show presently that the definition goes farther. The person presenting a nomination paper is referred to as a candidate also in s. 33 even prior to the time when he presents his nomination paper before the Returning Officer. Section 36 which provides for the scrutiny of nominations refers in sub-s. (8) to “validly nominated candidates” as opposed to other candidates.
32. Then we turn to the provision for withdrawal of candidature. Section 37 says that “any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed,” before the time fixed for the withdrawal of nominations. Thus, it will appear that under the Act a person who files his nomination paper as a candidate at an election and a person who withdraws under s. 37 are both referred to in the Act as candidates.
33. We have already reproduced the definition contained in s. 79(b). The words “a person who has been or claims to have been duly nominated as a candidate at any election” and certainly the words “shall be deemed to have been a candidate as from the time when with the election in prospect, he began to hold himself out as a prospective candidate” would clearly show that a person may be a candidate even prior to the filing of his nomination and even after he has withdrawn from contest by withdrawing his candidature under s. 37 as the candidate N.L Belekar has done in the instant case. No doubt, the definition would not apply to any of the sections in Part V. In terms it only applies to Parts VI, VII and VIII, but we have shown above that much the same result ensues on a consideration of some of the provisions of Part V itself, which serves to reinforce our conclusions as to the interpretation of s. 82(b). So far as s. 82(b) is concerned a candidate who has withdrawn his candidature under s. 37 must be made a party to the petition if allegations of corrupt practice are made against him in the petition.
34. In support of his contention that a candidate who has withdrawn under s. 37 ceases to be a candidate Mr. Kukdey relied on Kapildeo v. Suraj Narayan.1 The reasons given in this case were adopted by Mr. Kukdey and he urged that having regard to the provisions of cl. (a) of s. 82, it is clear that the provisions of cl. (b) cannot apply to a candidate who has withdrawn.
35. Section 82 runs as follows:
“Parties to the petition.—A petitioner shall join as respondent to his petition—
(a) where the petitioner, in addition to claiming a 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.”
36. The Patna case emphasised the words “any other candidate has been duly elected” in cl. (a). It was held that these words show that the candidate must have stood for election and that a person who has withdrawn his candidature therefore, cannot be a candidate within the meaning of cl. (a). The further reasoning adopted by the learned Judge who delivered the judgment on behalf of the Division Bench was as follows (p. 252):
“The meaning of the word ‘candidate’ here has to be given according to the definition given in S. 79(b) with reference to the context. Similarly, the words ‘any other candidate’ used in cl. (b) must, with reference to the context of that clause itself, mean any candidate who did not withdraw his candidature under S. 37 of the Act, because the question of corrupt practice practically arises only on publication of a list of contesting candidates under S. 38 of the Act after the withdrawal of the candidature by any candidate under S. 37 of the Act. On a proper construction of S. 82, my opinion is that a candidate who had been duly nominated as a candidate at an election but has withdrawn his candidature under S. 37 of the Act a not a candidate within the meaning of S. 82(b) of the Act to be required to be made a party to the election petition.”
37. The argument thus was that if this was the requirement of cl. (a), then the use of the words “any other candidate” in cl. (b) must also refer to a candidate who has stood for election and has not merely withdrawn his candidature. The definition of the word “candidate” in s. 79(b) is preceded by the words “unless the context otherwise requires” and that reading the provisions of s. 82 as a whole, the context in which cl. (b) occurs shows that the definition as contained in s. 79(b) must mutatis mutandis be modified and be read to exclude a candidate who has withdrawn from election.
38. In the first place, and with the greatest respect, we are unable to see how the provisions of cl. (a) of s. 82 can affect the question of interpretation of cl. (b) thereof. The two clauses are not in pari materia and deal with wholly different subjects. Clause (a) refers to a particular type of petition where in addition to a prayer that the election of all or any of the returned candidates should be declared void, a further declaration is asked for that the petitioner or any other candidate has been duly elected. In such a case, all the contesting candidates other than the petitioner must be joined if the further declaration is claimed, and where no such declaration in claimed, only the returned candidates need be joined. The subject-matter of cl. (b) of s. 82 is, however, wholly different. It deals with corrupt practices and all that it requires is that where allegations of corrupt practices are made in the petition against any other candidate, that is to say, other than the petitioner, such other candidate shall be joined as a respondent. In view of this, it seems to us that it would not be possible to construe cl. (a) in the light of the provisions of cl. (b) and we say so with the greatest respect.
39. If we turn to the definition of “corrupt practices” in s. 123 of the Act, it will be seen from cls. (a) and (b) of sub-s. (1) that the corrupt practice mentioned in that sub-section, namely, of bribery, may be committed by a person even before he files his nomination paper. If the interpretation for which Mr. Kukdey contends were to be accepted, all such persons if they withdrew then candidature, need not be made parties to the petition, with the result that any corrupt practice committed by such persons would not be within the scope of an election petition. The definition in s. 79(b) moreover clearly indicates that such a person would fall within the meaning of the word “candidate” and must be joined as a party under s. 82(b). Nothing in the context of cl. (b) of s. 82 indicates that the meaning of the word “candidate” in s. 79(b) must be modified. On the other hand, it seems to us that having regard to the nature of the corrupt practices mentioned in s. 123, it is necessary that the moaning of the word “candidate” should extend even to persons who, to quote the wording of the definition, are persons who hold themselves out as prospective candidates, with the election in prospect.
40. The Allahabad High Court has in Chaturbhuj v. Election Tribunal . [1958] A.I.R All. 809. taken a view contrary to that of the Patna High Court. Though it was decided earlier, we do not find that the Allahabad case was referred to by the Patna High Court when it decided Kapildeo's case. The Allahabad High Court has, upon a consideration of the provisions of cls. (a) and (b) of s. 82 clearly held that the subject-matter of the two clauses is wholly different and that, therefore, cl. (a) cannot be used as a guide to the interpretation of cl. (b). At page 812, col. 2, their Lordships observed:
“Clearly, therefore, cl. (b) of S. 82 of the Act introduces the requirement of certain persons being impleaded as respondents in the petition with a purpose which is entirely different and distinct from the purpose for which persons are to be impleaded as respondents under cl. (a) of S. 82 of the Act or the purpose for which persons were to be impleaded as respondents, in an election petition under S. 82 of the unamended Act.”
41. We are, with respect, unable to accept the line of reasoning adopted in the Patna case.
42. Reference was also made by Mr. Kukdey to a case of this Court reported in Sitaram Hirachand Birla v. Yograjsing . 1952 55 Bom. L.R 334.. That was, however, a decision given under the provisions of the Act of 1951. Under the Act of 1951 the provisions of s. 82 made no distinction between a petition founded upon allegations of corrupt practice and a petition upon any other ground, nor between the nature of the relief claimed as in the present section. Section 82 under that Act merely provided that “a petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated”. The provisions of S. 82 as it then stood were thus wholly different from the provisions of the two clauses in the present s. 82. Sitaram's case, therefore, cannot apply here. In our opinion, though the candidate N.L Belekar had in the instant case withdrawn his candidature under s. 37, he would still fall within the meaning of the words “any other candidate” in cl. (b) of s. 82 and the petitioner was, therefore, bound to join him as a respondent to the petition.
43. [His Lordship after dealing with a point not material to this report, proceeded.]
44. We then turn to the next contention raised in appeal arising out of the non-joinder of both the candidates Haridas Damaji Awade and N.L Belekar. The contention raised is that the allegations in para 6 of the petition are not allegations which amount to corrupt practices within the meaning of those words used in s. 82(b) if read with the provisions of s. 123(3) of the Act. Sub-section (3) of s. 123 defines one class of corrupt practice as follows:
“The systematic appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent, to vote or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to, religious symbols, or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of that candidate's election.”
45. The contention is based upon the last clause occurring in this sub-section, namely, “for the furtherance of the prospects of that candidate's election”. The contention is that where the systematic appeal contemplated by the section is made either by a candidate or his agent or by any other person with the consent of a candidate or his election agent, it must be an appeal for the “furtherance of the prospects of that candidate's election” and that the allegations in the present petition do not show that the appeals referred to in para 6 of the petition were for the furtherance of the prospects of that candidate's election, meaning thereby the candidates Haridas Damaji Awade or N.L Belekar.
46. The point is a point of some importance, and it was conceded on both sides that it is not covered by authority. Omitting the words in the sub-section with which we are not concerned, an analysis of the sub-section shows three categories of individuals contemplated by whom the systematic appeal is made. Thus analysed the sub-section would run as follows:
“The systematic appeal by—
(i) a candidate, or
(ii) his agent, or
(iii) by any other person with the consent of a candidate or his election agent, to vote or refrain from voting on grounds of caste, race, community or religion…for the furtherance of the prospects of that candidate's election.”
47. The contention of Mr. Kukdey has been that the words in the last clause “for the furtherance of the prospects of that candidate's election” govern all the three categories of persons referred to above, namely, a candidate, his agent, or any other person, and that, therefore, in the present case the allegations in para 6 of the petition which refer only to Haridas Damaji Awade or N.L Belekar having acted on behalf of the respondent as “any other person” would not amount to allegations of corrupt practice as contemplated by the section. Now, upon a perusal of para 6 read with the findings which we have already reached that the persons referred to in para 6 were the candidates Haridas Damaji Awade and N.L Belekar, there is no doubt that the allegations were that the said persons made the systematic appeals on behalf of the respondent and with the latter's consent or that they as “any other person” were canvassing votes for him and made the appeals to vote for the respondent and to refrain from voting for Rajabhau Khobragade on grounds of caste, race community and religion.
48. The question, however, is whether the words “for the furtherance of the prospects of that candidate's election” apply to the first category mentioned in the sub-section, namely, “a candidate”. It is nobody's case that the persons who made the appeals in the instant case were agents of any one else. Therefore, these persons can either fall within the first category of “a candidate” or in the third category of “any other person with the consent of a candidate or his election agent”. We find great difficulty in upholding the contention of Mr. Kukdey that the words “for the furtherance of the prospects of that candidate's election” apply also to the first category “a candidate”. If the contention were upheld, the provisions of the sub-section would read:
“The systematic appeal by a candidate to vote or refrain from voting on grounds of caste, race, community or religion…for the furtherance of the prospects of that candidate's election.”
49. It seems to us that upon such a construction the deliberate use of the word “that” in the latter clause of the section would become nugatory and lead to some absurdity. Thus read, the language of the sub-section becomes ungrammatical. The word “that” preceding the words “candidate's election” is a demonstrative adjective qualifying “candidate's election”. As such, the simple demonstrative is used “to indicate a thing or person either as being actually pointed out or present, or as having just been mentioned and being thus montally pointed out”: see Shorter Oxford English Dictionary, vol. II, p. 2162. Therefore, the use of the word “that” can only be justified when we consider that the legislative draftsman intended to distinguish between one candidate and another or a candidate and any other person. But if the first category were alone to be considered then the use of the word “that” becomes unnecessary. It is surely bad English to say “the systematic appeal by a candidate for the furtherance of the prospects of that candidate's election”. Therefore, it is clear that the la?t clause of sub-s. (3) of s. 123 cannot apply to the first category mentioned in the sub-section, namely, “a candidate”. In our opinion, the last clause can only apply in the context of the sub-section to the third category mentioned in the sub-section, namely, “by any other person with the consent of a candidate or his election agent”. Here the word “candidate” is used in contradistinction with his election agent and any other person, and therefore the use, of the words “that candidate's election” refers to the candidate who has given his consent to another person. In such a case, the use of the demonstrative “that” would be justified and perfectly grammatical.
50. But apart from this construction of the sub-section which commends itself to us, we see no reason why a candidate himself should not come in the third category “any other person with the consent of a candidate or his election agent” simply because he is also a candidate. There is no doubt upon the recitals in para 6 of the petition that consent of the respondent has been pleaded, as also of the respondent's agent. Therefore, that requirement of the sub-section has been fulfilled. We see no reason why a candidate should not also fall under the third category “any other person”. It was urged that the sub-section itself makes a classification and divides persons making appeals into three categories, namely, a candidate, his agent, or any other person. Therefore, the word “candidate” and the word “agent” have been used in contradistinction with “any other person”, and so would not be included in those words. No doubt, that would be a possible construction of the sub-section, if it were not for the fact that the requirements in the case of each category of persons are different. In the case of a candidate or his agent, all that is necessary is a systematic appeal, whereas in the case of any other person, the sub-section requires an additional condition to be fulfilled, namely, that the systematic appeal must be by such other person “with the consent of a candidate or his election agent”. The legislative draftsman was, therefore, faced with the necessity of reciting this additional condition in the case of the third category, namely, “any other person” and with the necessity of reciting such a condition, we do not see how he could have stated the provision except by distinguishing between a candidate, his agent or any other person with the consent of a candidate or his election agent. It was not disputed before us that the words “with the consent of a candidate or his election agent” govern only “any other person” and not “a candidate” or “his agent”.
51. Mr. Kukdey has urged that the reason which we have stated as the reason which impelled the draftsman to distinguish between the three categories, namely, a candidate, his agent, or any other person, in sub-s. (3) of s. 123, as being the necessity for providing that any other person should have acted with the consent of the candidate or his election agent, cannot prevail if we consider the sub-section as it stood in the Act before its amendment by Act No. LVIII of 1958. The words “with the consent of a candidate or his election agent” were introduced by s. 36 of act no. lviii of 1958, and it was urged that in the unamended section those words were not there. Nevertheless, the distinction between a candidate, his agent, or any other person was still there. We may point out that even in the sub-section as it stood before amendment the same error would be apparent if the sub-section were to be analysed as we have done in the case of the amended sub-section. Except for the omission of the words “with the consent of a candidate or his election agent”, the sub-section before amendment was in identical language, and we cannot see how the words in the last clause “for the futherance of the prospects of that candidate's election” could, even in the unamended section, possibly apply to the words “the systematic appeal by a candidate” or even to “the systematic appeal by his agent”. We have already pointed out how such a construction would become ungrammatical and we think that, whether amended or unamended, the only proper construction consistent with making the text of the sub-section grammatical would be to hold that the last clause “for the furtherance of the prospects of that candidate's election” applies only to the third category, namely, any other person, and not to the first two categories, a candidate or his agent. That the error existed in the unamended section and was not pointed out earlier would not be a ground for holding that the construction should be that the last clause would apply to all the three categories mentioned in the sub-section. The error which was obvious in the unamended section ceased to be an error after amendment once we hold that it can properly and grammatically apply to the third category, namely, any other person with the consent of a candidate or his election agent. In any case, we have already indicated that we see no reason why the candidate Haridas Damaji Awade should also not fall in the third category, namely, any other person with the consent of a candidate or his election agent.
52. To give the section any other interpretation would lead to several anomalies, one of them being that the candidate who is guilty of this particular corrupt practice would with impunity continue to commit the corrupt practice so long as it was not in furtherance of the prospects of his election. Similarly, his agent could continue to commit any corrupt practice referred to in this sub-section so long as it was not for the furtherance of the prospects of the election of the candidate whose election agent he was. That could not possibly have been the intention of the Legislature. The various provisions of the Act clearly indicate that special attention has boon paid by the Legislature to eradicating and preventing corrupt practices in elections. Throughout, the ground of corrupt practice as vitiating elections has been dealt with on a special basis in the Act. In s. 82(b) it is, as a matter of procedure, dealt with separately. Section 123 is concerned with the detailed enumeration of various classes of corrupt practices. Section 99 shows that before the Tribunal makes an order dismissing a petition where a charge of corrupt practice is preferred, the Tribunal is bound to inquire into any allegation of corrupt practice irrespective of the result of the petition. Similarly, corrupt practices entail special disqualifications as shown by ss. 140 and 141. We cannot, therefore, think that in defining the corrupt practice in sub-s. (3) of s. 123, the Legislature could possibly have made a provision where a candidate or his agent committing the corrupt practice would be allowed to go unchallenged or unpunished so long as the corrupt practice mentioned in sub-s. (3) was not committed by such candidate or his agent “for the furtherance of the prospects of that candidate's election”. It is easy to contemplate cases where a candidate may not only work in his own interest but also in the interests of another candidate and it must be held that if, while acting even in the interests of another candidate, he commits the corrupt practice mentioned in sub-s. (3) of s. 123, it will fall within the definition in that sub-section.
53. The other requirements of sub-s. (3) of s. 123 are undoubtedly fulfilled by the recitals contained in para 6 of the petition read with the schedules attached thereto and this was not disputed before us. Section 82(b) does not require any proof of corrupt practices. All that it requires is that allegations of any corrupt practice should be made in the petition in which case it becomes obligatory upon the petitioner to join as respondents any other candidate against whom such allegations are made. We hold that such allegations have been made in the petition and that s. 82(b) was, therefore, attracted in the present case, and the allegations would be sufficient in law to amount to allegations of corrupt practices.
54. A similar contention was raised before the Madhya Pradesh High Court in relation to the provisions of sub-s. (4) of s. 123, which also uses a similar expression, in Shriniwas v. R. Raman.4 Sub-section (4) of s. 123 runs as follows:
“The publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be falsa or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal of, any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.”
55. In the case referred to above, the last clause in sub-s. (4) “a statement reasonably calculated to prejudice the prospects of that candidate's election” came up for construction before a Division Bench of that Court and the Division Bench held that the use of the word “that” in the clause referred to above intended to distinguish between two candidates and could not refer to “a candidate” mentioned in the opening clause of the sub-section. At page 245, col. 1, the Division Bench held:
“Though the word ‘any’ has been used and that might have, included all the candidates, including the one who had published the statement the latter part of the fourth sub-section clearly shows by its demonstrative adjective ‘that’ that some other candidate is meant. The sub-section, therefore, as it stands, cannot but be construed to mean that one candidate should publish a false statement in relation to the candidature of some other candidate.”
56. It seems to us that these remarks made with reference to a construction of sub-s. (4) of s. 123 are equally apposite in construing sub-s. (3) of that section. In our opinion, the Tribunal rightly held that there were allegations of corrupt practice made in the petition, which allegations amount to corrupt practice within the meaning of s. 82(b); that both the candidates Haridas Damaji Awade and N.L Belekar against whom those allegations were made ought to have been joined as party respondents to the petition; and that for their non-joinder the petition is liable to be dismissed. Thus, so far as the petition itself is concerned, it is clear that it was rightly dismissed.
57. There then remains to be considered the argument advanced on behalf of the petitioner that it is not the petition before the Election Tribunal that should, be looked at but the petition as it was received and accepted by the Election Commission. If the contention wore to prevail, then the questions which we have so far discussed would not arise because the amendments made cannot be looked at. But it seems to us that upon a consideration of the provisions of the Act, this contention cannot possibly be upheld. Section 85 deals with the power of the Election Commission to dismiss a petition. It states that if the provisions of s. 81 or s. 82 or s. 117 have not been complied with, the Election Commission shall dismiss the petition. A proviso is added to this section that the petition shall not be dismissed without giving the petitioner an opportunity of being heard. So far as we can see this is the only power of dismissal that the Election Commission has vis-a-vis the petition. The contention advanced would have us hold that if the Election Commission does not dismiss the petition, then it becomes, so to say, a valid petition, upon which along the trial of the election petition should further proceed. It will be seen that s. 85 is part of Chap. II of Part VI of the Act. Part VI deals with disputes regarding elections and Chap. II thereof, with presentation of election petitions to the Election Commission. We stress that Chap. II only deals with presentation and that until the stage contemplated in Chap. II is reached, the trial of the election petition does not begin. This is clear when wo consider the provisions of Chap. III which is entitled “Trial of Election Petitions”. Section 85 upon which reliance has been placed occurs in Chap. II, “Presentation of Election Petitions to Election Commission,” and the first section in Chap. III dealing with the trial of election petitions, deals with the appointment of an Election Tribunal. It is clear, therefore, that it is only consequent upon the appointment of an Election Tribunal by the Election Commission that the trial of the election petition begins. What is more, s. 90 provides for the procedure which the Tribunal is to follow in the trial of election petitions and sub-s. (3) of s. 90 confers an analogous power upon the Tribunal in almost the identical language used in conferring the self-same power upon the Election Commission under s. 85. Sub-section (3) of s. 90 states:
“The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85.”
58. We are not concerned for the time being with the explanation added to sub-s. (3). It is clear from the sub-section which we have quoted above that notwithstanding that the Election Commission allows a petition to pass to the Election Tribunal for trial, the Tribunal is entitled, or rather we should say, is bound, to consider whether the provisions of s. 81, s. 82 or s. 117 have been complied with, and if it comes to the conclusion that they have not been complied with, albeit contrary to the decision of the Election Commission, still it is bound to dismiss the petition.
59. Sub-section (5) of s. 90 further gives power to the Tribunal to allow a petition to, be amended in certain circumstances. The procedure laid down in s. 90, it has been observed, provides a self-contained code for the trial of election petitions and it is clear from all those provisions that the Tribunal has complete seisin over the election petition and it is not bound by the decision of the Election Commission not to dismiss the petition under s. 85. Since the power of permitting amendments has also been given to the Tribunal and in the instant case, amendments were actually sought by the petitioner and allowed at his instance, we do not see how the petitioner can now turn round and say that those very amendments should not be looked at and that the Tribunal was bound to have regard to the unamended petition as it stood before the Election Commission. The appellant himself having invoked the power of amendment and having obtained order in his favour to amend the petition cannot now turn round and say that the amendments must be ignored and the petition read in the form in which it stood before the Election Commission.
60. Then we turn to a contention on behalf of the appellant which really does not affect the decision given by the Tribunal so far as this petition is concerned but is directed to showing that its findings are incomplete under law. The contention is that though the Tribunal dismissed the appellant's petition in limine on the ground that parties who ought to have been joined had not been joined, still allegations of corrupt practices had been made in the petition and it was incumbent upon the Tribunal to have decided those allegations irrespective of the fact whether the petition was dismissed or allowed. The contention is based upon the provisions of sub-s. (1)(a) of s. 99 which runs as follows:
“Other orders to be made by the Tribunal.—(1) At the time of melting an order under section 98 the Tribunal shall also make an order—
(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording—
(i) a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; and
(ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice;”
61. It was argued that this petition was dismissed under s. 98(a) which provides that at the conclusion of the trial of an election petition, the Tribunal shall make an order dismissing the election petition, and that, therefore, under s. 99(1)(a) the Tribunal was bound to give further findings relativo to the charges of corrupt practice made in the petition.
62. With the other powers mentioned in s. 98 we are not here concerned. The present petition was actually dismissed under the powers given to the Tribunal under s. 90(3) which we have reproduced above. An explanation to s. 90(3) was added by s. 28 of act I of 1958. The explanation runs as follows:
“An order of the Tribunal dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of s. 98.”
63. Thus, the order under s. 90(3) is now deemed to be an order under s. 98(a).
64. Prior to the amendment there was some controversy as to whether an order passed under s. 90(3) was an order under s. 98(a). But even upon the unamended section, the controversy was set at rest by the decision of the Supreme Court of India in Chandrika Prasad v. Shiv Prasad.5 In that case an election petition was dismissed under s. 117 of the Act which enjoins upon the petitioner that he shall deposit a certain sum of money along with the election petition, and s. 85 requires the Election Commission to dismiss the petition if the provisions of s. 117 have not been complied with. The same power is given to the Tribunal under s. 90(3). In Chandrika Prasad's case the Election Tribunal had dismissed the petition under s. 90(3) on the ground that no deposit by way of security for costs had been made as required by s. 117. The petitioner then filed an appeal under the provisions of s. 116A(1) of the Act. Section 116A(1) prescribes that an appeal shall lie from every order made by a Tribunal under s. 98 or s. 99 to the High Court of the State in which the Tribunal is situated. The question raised before their Lordships was that the order of dismissal under s. 90(3) was not an order under s. 98 and, therefore, no appeal would lio. The High Court had overruled the objection and had entertained the appeal and against the decision of the High Court, special leave was granted by the Supreme Court. The Supreme Court held that there could be no doubt that the order passed under s. 90(3) was an order passed at the conclusion of the trial as required by s. 98 and that, therefore, it was properly an order coming under s. 98(a). Upon this authority, therefore, it must be held that orders passed dismissing election petitions under s. 90(3) were even prior to the amendment orders passed under s. 98(a).
65. Since the pronouncement of their Lordships of the Supreme Court, however, the explanation has come into force and, in our opinion, the explanation makes good the lacuna which necessitated the decision in the Supreme Court case. The explanation no doubt was brought into force before the decision of the Supreme Court in the case cited above, but it seems to us that it was made in order to obviate an objection such as was raised in the Supreme Court case that an order under s. 96(3), as it then stood, was not an order under s. 98(a).
66. The question, however, still remains whether, assuming that an order under s. 90(3) is deemed to be an order under s. 98(a), s. 99 would be attracted and the Tribunal was, therefore, bound in the present case to give its finding upon all the other issues relating to corrupt practices.
67. It will be noticed that in this respect there is an apparent conflict between the provisions of s. 90(3) and the provisions of s. 99(1). Section 90(3) enjoins that the Tribunal shall dismiss an election petition which does not comply with the provisions of s. 82. In this case, the non-compliance of s. 82 was that the other candidates against whom allegations of corrupt practices were made in the petition had not been joined. But s. 99(1) states that at the time of making an order under s. 98 the Tribunal shall also make an order recording a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice, and the Tribunal is also enjoined to state the names of all the persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that corrupt practice. This may lead to some very anomalous results. If orders under s. 90(3) are orders under s. 98, then s. 99 requires certain findings on charges of corrupt practices. This would mean that the Tribunal must pronounce on charges of corrupt practices though the parties against whom the charges are preferred are not on record and for whose absence the petition is liable to be dismissed and who may be seriously prejudiced by any decision as to their corrupt practice. Did the Legislature contemplate the possibility of charges of corrupt practices being found and the persons guilty of corrupt practices being named [s. 99(d)(ii)] in their absence and without a hearing? We cannot think that the Legislature contemplated such a result.
68. It seems to us that this apparent conflict between the two provisions is resolved by a consideration of the opening words of sub-s. (1) of s. 99 “At the time of making an order under section 98”. In contrast to these words, the words used in s. 98 are “At the conclusion of the trial of an election petition”. It is clear from the explanation to s. 90(3) that an order under s. 90(3) is deemed to be an order under s. 98. If an order under s. 90(3) is made, it can only be an order of dismissal of an election petition.
69. Therefore, though it may be “deemed to be” an order under s. 98, there remains no further order to be passed. The petition is already dismissed. Therefore, in such a case there can remain nothing to which the opening words of sub-s. (1) of s. 99 “At the time of making an order under section 98” can apply. The opening words of sub-s. (1) of s. 99 clearly contemplate a case where an order under s. 98 still remains to be passed. But if the petition is dismissed as in the case of an order under s. 90(3), there can be no further order remaining to be passed under s. 98.
70. The same conclusion follows looking at the question from another angle. The opening words of sub-s. (1) of s. 99 refer to an order under s. 98. But an order under s. 90(3) is by virtue of the explanation not an order under s. 98 but is only deemed to be an order under s. 98, and it is upon this vital distinction that we find that there is no conflict between the two provisions. An order which is deemed to be under s. 98 may conclude the election petition and, therefore, s. 99 cannot be attracted in such a case. Section 99 only applies to actual orders passed under s. 98, and not to orders deemed, to be under s. 98, such as an order under s. 90(3).
71. We are fortified in the view we have taken by the observations in two recent decisions of the Supreme Court of India. The first of these we have already referred to, namely, Chandrika Prasad v. Shiv Prasad. At page 830 Mr. Justice Gajendragadkar, delivering the judgment on behalf of the Court, remarked:
“…Therefore, we think it would be reasonable to hold that, where the tribunal dismisses an election petition by virtue of the provisions contained in S. 90, sub-s. (3), the order of dismissal must be deemed to have been made under S. 98. (This is precisely what the new explanation now lays down.) Similarly s. 99(1)(b) which empowers the tribunal to fix the total amount of costs payable and to specify the person, by and to whom that shall be paid in terms refers to cases where an order is made under s. 98. It cannot be suggested that, where an order of dismissal is passed under S. 90, sub-s. (3), the tribunal cannot make an appropriate order of costs. This provision also indicates that the order passed under S. 90, sub-s. (3) is in law and in Substance an order passed under S. 98(a). It is true that in cases where such an order is passed S. 99(1)(a) would not come into operation, but that can hardly affect the position that an order under S. 90, sub-s. (3) is nevertheless an order under S. 98.” (Italics ours).
72. It was urged that the words which we have italicised do not constitute the ratio decidendi of the case and that at most those remarks were obiter. But with the greatest respect, in our opinion, even the obiter dicta of the Supreme Court are binding upon us. This is already settled so far as this Court is concerned, vide Raja Narayanlal Bansilal v. Maneck Phiroze Mistry* and also the remarks of their Lordships of the Supremo Court in I.T Commr. v. Vazir Sultan & Sons . [1959] A.I.R S.C 814., though the latter remark is also an obiter dictum.
73. The precise question which arose before us was not before their Lordships of the Supreme Court in the case cited above, but it arose in a more pointed form before them in a subsequent case reported in O.P Jain v. Gian Chand.7 That was also a case where the petition was dismissed for not depositing the security under s. 117. But a contention was advanced in the form in which it is advanced before us that when a petition contains a charge of corrupt practice and is dismissed under the power contained in s. 90(3), the Tribunal was bound to give a finding whether the commission of corrupt practice had or had not been proved. Their Lordships answered the contention as follows (p. 840):
“It is centended that such a position would be senseless for it would prevent the Tribunal from ever disposing of an election petition summarily on a preliminary ground: Therefore it is said that all Orders dismissing an election petition are not orders under S. 98, and that supports the view that an order under S. 90(3) is not an order under S. 98. We are not impressed by this argument. If the proper construction of S. 99 is that an election petition cannot be dismissed on a preliminary point raised under S. 90(3) whore it contains charges of corrupt practices having been committed, as the learned counsel for the appellant contends, that construction must have effect however senseless it may appear. Suppose an election is Bought to be avoided on the grounds, that the returned candidate was not qualified or that one of the nomination papers had been improperly rejected and also on the ground of corrupt practices having been committed by the returned candidate all of which are good grounds for setting aside an election under S. 100 of the Act. In such a case too, if the construction put upon S. 99 by the learned counsel for the appellant is right, the tribunal cannot allow the petition on any one of the first two grounds, which it could have done after a very summary trial, but must proceed to decide the charges of corrupt practice alleged. This can be said to be equally senseless as whore having dismissed a petition for non-compliance with S. 117 the Tribunal is made to record a finding on the corrupt practices alleged. On the other hand, if it is not senseless in one case it is not senseless in the other. We do not therefore find much force in the argument based on an interpretation of S. 99 supposed to produce senseless results.”
74. That was also a case to which the Explanation to s. 90(3) did not apply. It was decided on the law as it stood before amendment. The explanation now clearly lays down that an order dismissing an election petition under s. 90(3) shall be deemed to be an order made under cl. (a) of s. 98. Now, when it is said in the Explanation that orders under s. 90(3) shall be deemed to be orders under s. 98, it is clear that the Legislature did not regard them as orders under s. 98. Otherwise, there was no need to enact the fiction. The meaning and effect of such a fiction and of the words “deemed to be” has been construed in several cases. We need only refer to two of these, People's Own Prov. & Gen. Ins. Co. v. Gurucharya . 1945 47 Bom. L.R 852. and Sawatram Ramprasad Mills, Co., Ltd. v. Vishnu.9
75. Mr. Bobdo on behalf of the respondent referred to a number of cases in all of which allegations of corrupt practices were made, but the issues as to corrupt practices were not tried and the petition was dismissed in limine under the provisions of s. 90(3). These eases are Yeshvantrao v. K.T Mangalmurti . 1957 60 Bom. L.R 353.; K. Kamaraja Nadar v. Kunju Thevar11 and Chandrika Prasad v. Shiv Prasad. It is always unsafe to attempt to deduce a principle because a relevant point was not taken in several decided cases. It may be that in the cases referred to above the contention was not raised but we can hardly hold for that reason that the contention is necessarily unsound. We would prefer to found our decision to reject the contention on more logical grounds.
76. There is one other point upon which the interpretation which we have thought fit to place upon the provisions of ss. 98 and 99 can be supported. Sub-section (3) of s. 90 was substituted for sub-s. (4) of s. 90 of the old Act. The explanation to sub-s. (3) as it stands today was added by s. 28 of act no. lviii of 1958. The former sub-s. (4) which contained analogous provisions was as follows:
“Notwithstanding anything contained in section 85 the Tribunal may dismiss an election petition which does not comply with the provisions of section 81, section 83 or section 117.”
77. It will be noticed that the important change was to substitute the word “shall” in sub-s. (3) for the word “may” in the former sub-s. (4) and to add the further clause “notwithstanding that it has not been dismissed by the Election Commission under section 85” at the end of the sub-section. This power which was formerly discretionary has now been made mandatory. Now, it is curious that notwithstanding these vital changes in sub-s. (3) of s. 90 and the addition of an explanation making the orders under that sub-section as being fictional orders under s. 98(a), the provisions of s. 98 and 99 have remained the same. Thus, when ss. 98 and 99 were originally enacted, it was clear that s. 99 only applied to orders as such passed under s. 98 and to no other orders. Though by the present explanation to sub-s. (3) of s. 90, orders under that sub-section are deemed to be orders under s. 98, no alteration was made in the language of s. 99 in order to make provision for such fictional orders. It seems to us that this was advisedly done because it could not have been the intention of the Legislature to treat such fictional orders as being orders under s. 98 referred to under s. 99. This further supports the view which we have taken. We hold, therefore, that it was not necessary for the Tribunal to have given findings on the issues as to corrupt practices in the present case.
78. At the fag end of the argument in appeal, an oral request was made to us to permit amendment of the petition.
79. It was urged that the petition is being dismissed because of a technical plea of non-joinder and it is not just to the petitioner nor in the interests of the public that it should fail in this manner. It was urged that even at this stage it is open to this Court to permit the joinder of the necessary parties. All this could well have been done before the Tribunal itself, but there, as we have already pointed out, though the petitioner was aware of the objection, he merely stated that he had no objection to joining Haridas Damaji Awade but till the end did not apply for his joinder or of the other candidate N.L Belekar. We think that it is now too late at the stage of appeal to permit any such joinder.
80. The appeal fails and is dismissed with costs.
81. Appeal dismissed.
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