1. This is an appeal by an unsuccessful candidate who then filed an election Petition before the High Court of Himachal Pradesh. The election was to the 11 Doon Assembly Constituency of the State of Himachal Pradesh. The first respondent was the successful candidate. His election was challenged by the appellant on the ground of corrupt practices covered by Sections 123(4) and (8) of the Representation of the People Act, 1951 (hereinafter called " the"). Sub-section (4) of Section 123 refers to the publication by a candidate or his agent or by any other person with the consent of the candidate or his election agent of a false statement concerning a candidate which is known to be false. Sub-section (8) of Section 123 refers to booth-capturing.

2. In the election petition, the appellant averred that the aforesaid corrupt practices had been committed by the first respondent and Harbhajan Singh, his son, who was his election agent; also, by one Amarnath Kaushal, who was the counting agent of the first respondent. Both Harbhajan Singh and Amarnath Kaushal had been candidates at the election but had withdrawn their candidature. They were not impleaded as respondents to the election petition. The High Court, basing itself upon the provisions of Section 82 of the Act, came to the conclusion that the election petition was not maintainable and dismissed it.

3. Section 82 reads thus.

"82. Parties to the Petition 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 of 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."

4. The High Court took the view that Harbhajan Singh and Kaushal fell within the purview of sub-section (b) of Section 82 for they had been candidates at the said election before they withdrew their candidature and allegations of corrupt practice had been made against them in the election petition.

5. Learned counsel for the appellant submitted that the allegations of corrupt practice in the election petition against Harbhajan Singh and Kaushal had not been made in their capacity of candidates at the election, but in their capacity of election and counting agents respectively of the first respondent and that, therefore, the provisions of Section 82(b) were not attracted. He submitted that the capacity in which the allegations were made against Harbhajan Singh and Kaushal was very relevant and ought to have been taken into consideration by the High Court. Emphasis was laid upon the fact that a remedy against Harbhajan Singh and Kaushal for their alleged commission of corrupt practices was available by the invocation of the provisions of Section 99 whereby the High Court could have given them notice and heard them before passing appropriate orders on the election petition. It was emphasised that it was the function of the advocate who had drafted the election petition to arraign the proper respondents therein and that neither the appellant nor the Constituency should suffer for his default; it was in the interest of both that the serious charges of corrupt practice should be investigated.

6. Learned counsel for the first respondent submitted that the provisions of Section 82(b) were perfectly clear and the High Court was obliged to dismiss an election petition which did not comply with its provisions.

7. It will be seen that sub-section (a) of Section 82 uses the words "contesting candidates" and sub-section (b) uses the words "any other candidate". The combined effect of sub-sections (a) and (b) is, plainly, to require the impleadment in an election petition of all candidates at an election against whom allegations of corrupt practice are made. This would apply not only to those who actually contested the election, but also to those who stood for election but withdrew their candidature before the polling date. The person being the same, it is of no consequence that the allegation of corrupt practice is made in relation to a point of time when the candidature had been withdrawn and the person was now acting as the agent of a contesting candidate.

8. This view is supported by the decision of this Court in Mohan Raj v. Surendra Kumar Taparia. In this case, seven candidates had been nominated for election to a parliamentary constituency, but two withdrew. The first respondent, one of the remaining five candidates, was declared elected, and his election was challenged by the appellant who was an elector. Only the returned candidate and the other four contesting candidates were made parties. On the objection of the first respondent that the allegations in the petition were vague, the petition was amended and in the amended petition, with reference to one of the grounds, namely, the offering of bribes to voters, the appellant gave instances of bribes having been offered or paid by the first respondent, his election agents, and others. Two persons were referred to as the election agents of the first respondent. One of them was one of the candidates who had withdrawn his candidature and had not been impleaded as a party to the election petition. The first respondent contended that the election petition should be dismissed having regard to the provisions of Section 82(b). The appellant then filed an application for amendment of the election petition wherein he stated that by "election agent", he did not mean the candidate who had withdrawn, that there was never an intention to make an allegation against that candidate and that that candidates name should be deleted. The High Court dismissed the election petition. This Court held that Section 86 of thewas a peremptory provision. It required dismissal of an election petition if there was non-compliance with the requirements of Section 82. Section 82 made it incumbent that a candidate against whom a charge of corrupt practice was made should be joined as a party. A candidate was defined by Section 79 to mean a person who had been or claimed to have been duly nominated as a candidate at the election, and any such person should be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out to be a prospective candidate. The argument that the person concerned, who was named Periwal, was not a candidate at the election since he had withdrawn and that Section 82(b) should be limited to contesting candidates was rejected and it was held that a candidate who was duly nominated continued to be a candidate for the purposes of Section 82(b) in spite of withdrawal. Judgments of this Court taking an identical view were referred to in support.

9. Learned counsel for the appellant laid emphasis on the penultimate paragraph of the aforesaid judgment which reads thus.

"Lastly, it is submitted that Periwal was being charged in his character as an election agent and not as a candidate. This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined. The argument really contradicts the last amendment petition and cannot be entertained." *

He submitted that the allegations of corrupt practice made against a person who, though he had been a candidate, had withdrawn in his capacity as the election agent of another candidate, did not necessitate his impleadment and this question had been left open in the aforesaid judgment. It is difficult to agree. By reason of the contradiction, the argument was not entertained. But it is clear from what was stated therein above that a candidate who is duly nominated continues to be a candidate for the purposes of Section 82(b) in spite of his withdrawal and, if allegations of corrupt practice are made against him, he must be impleaded as a party to the election petition or the election petition must fail

10. Learned counsel for the first respondent cited the decision in Udhav Singh v. Madhav Rao Scindia. It has been held there that the provisions of Section 82 are based upon a fundamental principle of natural justice - that nobody 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 corrupt practice are made. A respondent cannot by consent waive these provisions or condone them. Even inaction, laches or delay on the part of the respondent in pointing out the defect of non-joinder cannot relieve the court of its statutory obligation of dismissing such an election petition. In our view, the observations in the case of Udhav Singh are wide enough to cover a situation where non-impleadment is shown to be because of an advocates default

11. In the result, we find no merit in the appeal and it is dismissed. No order as to costs.