Deciding Authority: The Supreme Court of India
Name of the Judges: R.C.Lahoti, S.V.Patil
Date of Judgement: 03/01/2000
Facts : Elections for the legislative seat of No.216, Sabang Legislative Assembly Constituency in the district of Midnapore, West Bengal were held in May, 1996. There were four candidates in the fray. The appellant secured 60453 votes. The respondent no.1 secured 59628 votes. The other two candidates received 594 and 453 votes respectively. On 12.5.1996 the appellant was declared elected by a margin of 825 votes over his nearest rival, the respondent no.1. On 17.6.1996, the respondent no.1 filed an election petition laying challenge to the election of the appellant and seeking a declaration that the result of the election was void. A declaration that the respondent no.1 was duly elected was also sought for. On trial the High Court has allowed the election petition and set aside the election of the appellant declaring the same to be void. No other direction has been made.
Judgement : Considering all aspects of the matter the bench was of the view that corrupt practice under Sections 123(2), 123(4) and 123(7) of the Representation of the People Act, 1951 by the respondent no.1 and/or his agents has been proved in this case. Accordingly it is declared that the election of the respondent no.1 being the returned candidate from Sabang Legislative Assembly Constituency is void.
Further , Their were several parties in the case which were not made parties is the case . In view of the bench , the High Court has failed in discharging its statutory obligation cast by Section 98 and 99 of the the RPA resulting in vitiating the judgment.
The ambit and scope of Sections 98 and 99 of the Act was considered in Dr. Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte & Ors., (1996) 1 SCC 130 wherein this court held:- While deciding the election petition at the conclusion of the trial and making an order under Section 98 disposing of the election petition in one of the ways specified therein, the High Court under Section 99 is required to record the names of all persons guilty of any corrupt practice which has been proved at the trial. Proviso to sub-section (1) then prescribes that a person who is not a party to the petition shall not be so named unless the condition specified in the proviso is fulfilled. The requirement of the proviso is only in respect of a person who is not a party to the petition and is to be named so that he too has the same opportunity which was available to a party to the petition.
The opportunity which a party to the petition had at the trial to defend against the allegation of corrupt practice is to be given by such a notice to that person of defending himself if he was not already a party to the petition. In other words, the notice has to be equated with a party to the petition for this purpose and is to be given the same opportunity which he would get if he was made a party to the petition. The bench also relied on the decision gave by the Hon’ble Supreme Court of India in case of Manohar Joshi Vs. Nitin Bhaurao Patil & Anr., (1996) 1 SCC 169 .
The High Court cannot make an order under Section 98 recording a finding of proof of corrupt practice against the returned candidate alone and on that basis declare the election of the returned candidate to be void and then proceed to comply with the requirement of Section 99 in the manner stated therein with a view to decide at a later stage whether any other person also is guilty of that corrupt practice for the purpose of naming him then under Section 99 of the R.P. Act. The High Court has no option in the matter to decide whether it will proceed under Section 99 against the other persons alleged to be guilty of that corrupt practice along with the returned candidate inasmuch as the requirement of Section 99 is mandatory since the finding recorded by the High Court requires it to name all persons proved at the trial to have been guilty of the corrupt practice. The expression the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice in sub-clause (ii) of clause (a) of sub-section (1) of Section 99 clearly provides for such proof being required at the trial which means the trial of an election petition mentioned in Section 98, at the conclusion of which alone the order contemplated under Section 98 can be made.
Therefore, the election of the appellant in the present case could not be declared void by making an order under Section 98 on the ground contained in Section 100(1)(b) of the R.P. Act without prior compliance of Section 99. Absence of notice under Section 99 of the R.P. Act vitiates the final order made under Section 98 by the High Court declaring the election to be void. The Court relied on judgments by a three judges of this court In Chandrakanta Goyal Vs. Sohan Singh Jodh Singh Kohli, (1996) 1 SCC 378 and Moreshwar Save Vs. Dwarkadas Yashwantrao Pathrikar, (1996) 1 SCC 394. A division bench view in case of Dr. Vimal (Mrs.) Vs. Bhaguji & Ors. (1996) 9 SCC 351 was also affirmed.
The judges too were of the opinion that the fatal defect in the present case vitiates the judgment under appeal and an appropriate course, in the facts and circumstances of the case, would be to set aside the judgment under appeal and remand the case to the High Court for deciding the election petition afresh after compliance with the provisions of Section 99 of R.P. Act. In view of the above said remand, I.A. No.3 and 4 are rendered redundant. The applicants in the two applications seeking intervention before us shall obviously be now noticed by the High Court and they would have a right of hearing in accordance with Section 99 of the RPA before the High Court.
Held : The appeal is allowed and the impugned order of the High Court is to be set aside followed by a remand to the High Court.
By Tejasv Anand ,IV th year,Amity Law School,Delhi.
A COMPREHENSIVE WEBSITE FOR ALL LEGAL DEVELOPMENTS