# S. B. ADITYAN v. S. KANDASWAMI AND OTHERS

- **Citation:** [1959] 1 S.C.R. 868
- **Court:** Supreme Court of India
- **Decided:** 1957-11-01
- **Case number:** Civil Appeal No. 130 of 1958
- **Bench:** Gajendraqadkar, A. K. Sarkar, Subba Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-b-adityan-v-s-kandaswami-and-others-1563
- **Pages:** 11

## Headnote

Election Peli tion-C ormpt practice-Bribery-Acceptance of
gratification, if cori·upt practice of bribery-Representation of the
People Act, I95I (43 of r95r), ss. 82, 90(3) and I23.
After the poll the appellant was declared elected to the
Madras Legislative Assembly. Respondent No. l filed an election petition praying that it be declared that the election of the
appellant was void. In.the petition it was alleged that two of
the candidates at the election accepted money paid to them by
the appellant and his election agent to induce them to abandon
the contest and they actually abandoned the contest. .These
two candidates were not made parties to the petition. The
appellant applied to the Election Tribunal to dismiss the petition
.under s. 90(3) of the Representation of the People Act, 1951, for
non-compliance with the provisions of s. 82 of the Act on the
ground that allegations of a corrupt practice were made
against the two candidates and Respondent No. r had failed to
make them parties to the petition as required bys. 82:
Held, that the acceptance of gratification is not a corrupt
practice within the meaning of s. 123(1) of the Act and consequently it could not be said that allegations of corrupt practice
had been made against the two candidates. There was thus no
non-compliance with the provisions of s. 82 and the election petition was not liable to be dismissed under s. 90(3).

## Text

May ao.
868
SUPREME COURT REPORTS
[1959]
S. B. ADITYAN
v.
S. KANDASWAMI AND OTHERS
(GAJENDRAQADKAR, A. K. SARKAR and SUBBA
RAO JJ.)
Election Peli tion-C ormpt practice-Bribery-Acceptance of
gratification, if cori·upt practice of bribery-Representation of the
People Act, I95I (43 of r95r), ss. 82, 90(3) and I23.
After the poll the appellant was declared elected to the
Madras Legislative Assembly. Respondent No. l filed an election petition praying that it be declared that the election of the
appellant was void. In.the petition it was alleged that two of
the candidates at the election accepted money paid to them by
the appellant and his election agent to induce them to abandon
the contest and they actually abandoned the contest. .These
two candidates were not made parties to the petition. The
appellant applied to the Election Tribunal to dismiss the petition
.under s. 90(3) of the Representation of the People Act, 1951, for
non-compliance with the provisions of s. 82 of the Act on the
ground that allegations of a corrupt practice were made
against the two candidates and Respondent No. r had failed to
make them parties to the petition as required bys. 82:
Held, that the acceptance of gratification is not a corrupt
practice within the meaning of s. 123(1) of the Act and consequently it could not be said that allegations of corrupt practice
had been made against the two candidates. There was thus no
non-compliance with the provisions of s. 82 and the election petition was not liable to be dismissed under s. 90(3).
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
130 of 1958.
Appeal by certificate granted by the Madras High
Court against its judgment and order dated November
1, 1957, in W. P. Nos. 623 and 624 of 1957.
1958.
April 30. May 1. A. V. Viswanatha. Sastri,
T. R. Venkatltrama Iyer, K. R. Sharma and K. R.
Ghoudhri, for the appellant. The petition is liable to
be dismissed for non-joinder of Muthu and Meganathan
who were candidates as defined in s. 79(b) of the
Representation of the People Act, 1951. The allegation is tha.t Meganathan accepted a gift of. Rs. 10,000
• and in pursuance thereof withdrew his candidature,
and also that ·Muthu accepted a gratification of
Rs. 5,000 and in pursuance thereof, he retired from
•
S.C.R.
SUPREME COURT REPORTS
S69
the contest. On the language of s. 123(1) of the Act,
such acceptance constitutes a 'corrupt practice'. The
words 'by a candidate or his agent or by any other
person ' in the section are to be read with the words
' offer or promise ' and not with ' gift '. In view of the
provisions of the Transfer of Property Act, a ' gift ' is
a bilateral Act and it includes both the giving of the
gift and the acceptance of that gift. Section 99 of the
Act shows that a receipt of a bribe is a corrupt practice. See ss. 82 (b), 98 and 99 of the Representation
of the People Act, 1951. Under s. 99 the Tribunal has
to record a finding whether a corrupt· practice has been
committed with the consent of any candidate. When
a candidate accepts a gift with the object of inducing
him to withdraw his candidature, he consents to the
corrftpt practice of bribery being committed and such
a candidate is liable to be named under the section.
·Alternatively, the term gratification in s. 123 is very
wide and includes the withdrawal of candidature by a
candidate to induce another candidate to stand at an
election. Affording of such gratification amounts to a
corrupt practice within s. 123.
Section 82(b) talks of
' allega.tions of any corrupt practice ' and it, therefore,
contemplates any allegation relating to or concerning,
a corrupt practice.
O. K. Daphtary, Solicitor-General of India, A. N.
Sinha and N. H. Hingorani for respondent No. 1.
A
candidate who accepts a gift from a returned candidate
does not commit 'corrupt practice ' within the meaning of s. 123(1) and therefore is not necessary party
to the election petition under s. 82(b) of the Act. The
section defines the corrupt practice of bribery and the
words ' gift, offer or promise by a candidate or his
agent or by any other person ' clearly contemplates
the making of a gift. Further, s. 1!?3(1) does not
include the acceptance of a gift as a. corrupt practice.
This is also apparent from consideration of s. 124(3) of
the Act which was deleted by the amending Act
XXVII of 1956. Section 124(3)
made receipt of
gratification by candidate or intending . candidate
a
minoc corrupt practice and s. 123 (1) made•
bribery by a candidate or' his · agent, a major
Adityan
v.
Kandaswami
Adityan
v.
Kandaswami
•
870
SUPREME COURT REPORTS
[1959]
corrupt practice.
The
amending Act has done
away with the classification of major and minor
corrupt practices. Some of the minor corrupt practices
have been retained as corrupt practices and the rest
dropped altogether.
The amending Act has dropped
the provision making acceptance and agreement to
accept a bribe, a corrupt practice with no material
change in s. 123(1) to bring within it these cases. By
omitting s. 124(3) from the Act ·Parliament, therefore,
intended that acceptance of a bribe was no longer to
be treated . as a corrupt practice.
Section 99 does
not purport to define a corrupt practice mentioned in s. 82(b); s. 99 read in the light of definition section does not support the appellant.
Cur. adv. vult.
1958. May 20.
The Judgment of the Comt" was
delivered by
Sarkar J.
SARKAR J.-In the 1957 general elections, nine
persons filed nomination papers for election to the
Madras Legislative Assembly from the Sathankulam
constituency all of which were found on scrutiny to
be valid.
Among these persons were the appellant,
the respondent Kandaswami and two others called
JVI. R. Meganathan and G. E. Muthu.
Meganathan,
Muthu and three others whom it is not necessary to
name as they are not concerned with this appeal, did
not go to the poll and dropped out of the election earlier.
At the end the election was actually contested by the
appellant, the respondent Kandaswami and two other
candidates with whom also this appeal is not concerned. The appellant was successful at the poll and was
on March 6, 1957, declared elected.
On April 15, 1957, the respondent Kandaswami
w horn we will• hernafter refer to as the respondent,
preferred an election petition under the provisions of
the RepreRentation of the People Act, 1951, for a declaration that the election of the appellant was void.
The appellant was made the first respondent to the
petition bqt Meganathan and Muthu were not made
• parties to it at ~ll. Some of the other candidates at
the election :vere ·also made parties to the petition but
...
•
•
S.CJ~,.
SUPREME COURT REPORTS
871
it is unnecessary for the purpose of this appeal to refer
to them.
The petition was referred to an Election Tribunal
for trial. The appellant then made an application to
the Election Tribunal which was marked I. A. No. I
of 1957 for the dismissal of the petition under s. 99(3)
of the Act. That section provides that, "The Tribu11al shall dismiss an election petition which does not
comply with the provisions of section 81, section 82 or
section 117 ". The appellant's case was that the petition had not complied with the provisions of s. 82.
Section. 82 states:
" A petitioner shall join as respondents to his
petition-
(~ any other candidate against whom allegations of any corrupt practice are made in the
petition."
The appellant contended that allegations of corrupt
practice were made in the petition against Meganathan
and Muthu and· they should, therefore, have been
made parties to. the petition undei.; 8. 82 and as that
had not been done, that section had not been complied
with · and so the petitfom had to be ·dismissed under
s. 90(3). It is not in dispute that non-compliance with
the provisions of s. 82 entails the dismissal of an
election petition. · · The respondent's answer to . the
application was that no allegation of corrupt. praotice
had been. 1nade in the petition against Meganathan or
Muthu. . The Tribunal accepted the contention of the
respondent and dismissed the application of t~e appellant .
. The appellant then moved the High Court at
Madras by two applications, one for the issue of a writ
of certiorari quashing . the order of the .. ~ribunal dismissing his application and the other for the issue of a
writ of prohibition directing the Tribunal not to proceed with the hearing of the election petition. The
High Court by its judgment dated November 1, 1957,
dismissed both the applications, taking the sa:me view
r958
Aditya·n
v.
Kandaswami
Sarkar].·
as the Tribunal. Hence this appeal.
•.
III
Adityan
v.
Kandaswami
Sarkaf J.
•
872
SUPREME COURT REPORTS
[1959]
It is not in dispute that Meganathan and Muthu were
candidates. A candidate has been defined in s. 79 of
the Act as meaning among others, a person who has
been duly nominated as a candidate at any election
and both Meganathan and Muthu had been so nominated.
·
The only question that arises in this appeal is
whether allegations of corrupt practice are made against
them in the election petition. The statements in the
petition which are said to constitute such allegations
are in these terms :
"IV-A. The returned candidate has committed
the following acts of bribery-corrupt practices according to section 123(1) of Act 43 of 1951 :-
••••••••••••••••••••••••••••••••••••••••••••••••••••••••• IJ' •••••••
(2)
Sri M. R. Meganathan was candidate for
Sattankulam and Tiruchandur Assembly Constituencies at the election. The first respondent and his
election Agent paid him a gift of Rs. 10,000 to induce
him to withdraw from being a candidate at the election
from Sattankulam Constituency and in pursuance
thereof Sri M. R. Meganathan withdrew his candidature at the election from Sattankulam. Constituency .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • .................................. .
(4) One Sri G. E. Muthu, candidate at the election
in this Constituency was paid a gratification of
Rs. 5,000 by the first respondent and his Election
Agent for the purpose of making him retire from contest and in pursuance thereof he retired ··from the
contest.
.
.
.
.
.
"
.................................................................
Putting it $hortly', the allegations in the petition are
that the appellant and his election agent paid Meganathan Rs. 10,000 and Muthu Rs. 5,000 to induce
them to drop out of the election and they accordingly
abandoned the election contest. So all that is said
here against Meganathan and Muthu,-and we are
·concern<'ld only with allegations against them- is that
•
they accepted ,money paid to them to induce them
•
--
S.C.R,
SUPREME COURT REPORTS
873
to abandon the contest and actually abandoned the
contest.
Is an allegation then, that a candidate accepted
money paid to him to induce him to drop out of the
election contest and actually so dropped out, an allegation of corrupt practice against such a candidate?
The High Court held that it was not and that only the
giving of a bribe was a corrupt practice and not an
acceptance of it. We are in agreement with this view.
The Act contemplates various kinds of corrupt
practices and defines them in s. 123.
We are concerned with the corrupt practice of bribery which is the
corrupt practice alleged in the petition. Bribery again
is of several varieties. We are concerned with a gift to
a candidate for inducing him to aba_ndon his candidature. This form of the corrupt practice of bribery is
thus defined in the Act :
"Section 123-The following shall be deemed to
be corrupt practices for the purposes of this Act:-
(1)
Bribery, that is to say, any gift, offer or promise by a candidate or his agent or by any other
person, 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 from being, a candidate, or to retire from
contest, at an election;
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 any expenses bona fide incurred at, or for
the purpose of, any election and duly entered in the
account of election expenses referred to iK section 78."
Is an acceptance of a bribe, by which w-0rd we mean
a gift made with the intention specified, a . corrupt
practice within this definition ? We do not think it is.
What this definition makes the corrupt practice of
bribery is a " gift, offer or promise by a candidate or
his agent or by any other person, of any gratification'~ •
•
made with the object mentioned. Th.e words " gift,
Adityan
v.
Kandaswami
Sark•r ].
874
SUPREME COURT REPORTS
[1959)
I95B
offer or promise by a candidate or his agent or by any
other person " clearly show that what is contemplated
Adityan
·
k
f
d
h JI
·
v.
1s the ma ing o a gift.
These wor s are w .o y mKanda>wami
appropriate to· describe the acceptance of a gift. The
words "with the object, directly or indirectly, of
Sarkar J.
inducing" also indicate that only the making of a gift
is contemplated, for the object is of the person making
the gift, and clearly not of the person accepting it.
Mr. Sastri who appeared for the appellant contended
that the words "by a candidate or his agent or by any
other person " are not to be read with the word " gift"
but only with the words" offer or promise". It seems
to us that this is an impossible reading of the section
as it is framed.
Even on this reading, the section
would still contemplate a gift "to any person " and
therefore only the giving and not an acceRtance,
of it.
That s. 123(1) does not contemplate the acceptance
of a gift to be a corrupt practice is also apparent from
a consideration of s. 124 of the Act which was deleted
by an amendment made by Act XXVII of 1956.
Under cl. (3) of that section the receipt of or an agreement to receive a gift with substantially the same
object as mentioned in s. 123 was a corrupt practice.
As legislative provisions are not duplicated, such a
receipt of or an agreement to receive a gratification
was clearly not. a corrupt practice within s. 123(1) as
it stood before the amendment. The amending Act
has dropped the provision making acceptance and an
agreement to accept a bribe, a corrupt practice but
luis made no change in s. 123(1) to bring within it
these cases. Section 123(1) cannot therefore be read
as including within the definition of a bribe contained
in it an acceptance of it.
By omitting s. 124(3) from
the Act therefore the. legislature intended that acceptance of a bribe was no longer to be treated as a
coJTupt practice. In view of this clear indication of
intention, it would be idle to enquire why the legislature thought fit to exclude the acceptance of a bribe
from the definition of corrupt practice. If the omission
• '.is accidental, then it is for the legislature to take the
nec<;issary action in that behalf. We cannot allow any
•.
•
S.C.H.
SUPHEME COUHT HEPOHTS
875
consideration of the reason for the qmission to affect
the plain meaning of the language used in s. 123(1).
Mr. Sastri then contended that in view of the provisions of the Transfer of Property Act, there can be
no gift without an acceptance of it by the donee, and
therefore whenever a gift is mentioned both the giving
and the acceptance of the thing given are necessarily
simultaneously contemplated. He said that, it followed from this that the corrupt practice of bribery by a
gift mentioned in s. 123(1) included the acceptance .of
the gift. It is true that a gift contemplates b<?th a
giving and an acceptance; but these are none the less
different acts and it is open to the legislature to attach
certain consequences to one of them only. It was
therefore open to t.he legislature in enacting s. 123(1)
to pr~vide that the making, that is to say, the giving
of a gift alone should be a corrupt practice. This is
what it has done: it -has not made the receipt of a
gift a corrupt practice. It has deliberately omitted
the acceptance of a gift from corrupt practices described in the Act.
Though a gift cannot be made
without an acceptance of it, such acceptance has not
been made a corrupt practice.
Mr. Sastri also contended that s. 99 of the Act
showed that the receipt of a bribe was a corrupt practice.
Section 98 states that at the conclusion of the
trial of an election petition the Tribunal shall make
one or other of the orders therein mentioned. Then
comes s. 99 which states that in certain circumstances
besides these orders, certain other orders have also to
be made by the Tribunal. ·The material portion of
this section is in these terms :
"S. 99-(l) At the time of making an order
under section 98 the Tribunal shall also ii:1ake 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 by, or
with the consent of, any candidate or his agent at the •
election, and the nature of that corrupt :practice; and
Adityan
v.
Kantlaswami
Sarkar.].
Aditjtin
v.
Kandaswami
Sarkar J.
876
SUPREME COURT REPORTS
(1959]
(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; and
"
Mr. Sastri contended that under this section the
Tribunal has to record a finding whether a corrupt
practice has been committed with the consent of any
candidate. He said that when a candidate accepts a
gift made to him with the object of inducing him to
withdraw his candidature, he consents to the corrupt
practice of bribery being committed and such a candidate is liable to be named under the section. He
added that in order that such a candidate can be so
named a charge of the corrupt practice has to be
made against him in the election petition. The result,
therefore, according to Mr. Sastri, is that a carniidate
who consents to a bribe being paid to him to withdraw
his candidature is guilty of a corrupt practice and
therefore an allegation of such a corrupt practice can
be made in the petition if it is intended to have him
named under s. 99 and once such an allegation is made
in the petition, s. 82(b) would be attracted and the
candidate has to be made a party to the petition. He
says such allegations were made against Meganathan
and Muthu.
This contention seems to us to be clearly fallacious.
Section 99 does not purport to define a corrupt practice. The definition of corrupt practice occurs in s. 123
and the corrupt practice mentioned in s. 99 has to be
a corrupt practice as so defined. A corrupt practice
committed with the consent of a candidate is not in
itself a new kind of corrupt practice. When s. 99
talks of a corrupt practice having been committed
with the consent of a candidate it means a corrupt
practice as deJined in s. 123 having been committed
and a candidate having consented to its commission.
The consent by a candidate to the commission of a
corrupt practice by some one else whatever its consequences under the Act may be, is not itself a corrupt
practice. Therefore, to say that a candidate consented
• to a corrupt practice being committed by accepting a
gift made to l\im to induce him to withdraw his
-,
S.O.R.
SUPREME COURT REPORTS
877
candidature, is not to say that he himself committed a
r958
corrupt practice. Such a statement in an election
Adityan
petition is not an allegation of corrupt practice against
v.
the consenting candidate. Hence s. 82(b} does not
Kandaswa111i
require that he should be made a party to the petition.
We wish to make it clear that we are not to be underSarkar J.
stood as holding that a candidate accepting a gift
made to him to induce him to withdraw his candidature is one who consents to a corrupt practice being
committed. We do not think it necessary to say anything on that question in this case.
Mr. Sastri then said that the term gratification in
s. 123 was very wide and would include the withdrawal of his candidature by a candidate to induce
another candidate to stand at an election. He contendoo that the affording of such a gratification would
amount to a corrupt practice within s. 123.
He submitted that such corrupt practices had been alleged
in the petition against Meganathan and Muthu and
they should therefore have been made parties to
the petition under s. 82(b).
We are wholly unable
to agree that the withdrawal of his candidature
by a candidate to induce another
candidate to
stand at an election would be gratification within
s. 123.
But assume it is so.
That does not help
the appellant at all. Here, there is no allegation
in the petition that Meganathan and Muthu withdrew their candidature in order to induce the
appellant to stand at the election, so there is no allegation in the petition of corrupt practices having been
committed by them by . so withdrawing their candidature. It was therefore not necessary to make Meganathan and Muthu _parties to the petition . under
s. 82(b).
.
.
.
- Lastly, Mr. Sastri contended that s. 8!(b) talked of
" allegations of any corrupt practice " and it therefore
contemplated any allegation relating to or concerning,
a corrupt practice. He said that the election petition
contained allegations against Meganathan and Muthu,
relating to a corrupt practice inasmuch as .it stated.
that they accepted the gratifications paid to them to •
withdraw their candidature and actiuall;y withdrew
•
878
SUPREME COURT REPORTS
[1959]
Adityan
v.
J(andaswanii
such candidature. Hence, he said, s. 82{b) required
that they should have been made parties to the petition.
W' e are of opinion that when s. 82(b) talks of
allegations of corrupt practice against a candidate it
means allegations that a candidate has committed a
corrupt practice. Allegations can hardly be said to
be "against" one unless they impute some default to
him. So allegations of corrupt practice against a
candidate must mean that the candidate was guilty of
corrupt practice.
vVe are also unable to appreciate
how an allegation that a candidate accepted a gratification paid to him to withdraw his candidature is an
allegation relating to a corrupt practice. The acceptance of the gratification does not relate to any
corrupt practice, for we have earlier shown that the
corrupt practice consists in the giving of the gift and
not in the acceptance of it.
Sarkar J.
¥ay ao.
In the result this appeal fails and it is dismissed
with costs.
Appeal dismissed,.
BISHAN SINGH & OTHERS
v.
KHAZAN SINGH & ANOTHER
(S .. R. DAs C. J., BHAGWATI, S. K. DAS and SUBBA
RAO JJ.) ·
Pre-emption, nature of the right-Pre-emptor filing suit and
obtaining decree-Second pre-emptor of equal degree filing suit for·
pre-emption-Fii'st pre-emptor depositing pwchase money and obtaining possession-If suit of second pre-emptor can succeed-Lis
pendens-Scope-Punjab Pre-emption
Act (Pun. I of I9I3),
ss .. r7, 28.
Upon the sale of certain village land the appellants filed a
suit for pre-emption, and a compromise decree \Vas passed allO\Ving pre-emption provided the appellants deposited the purchase
• amount by a certain date. The appellants deposited the am~unt
and got posses.sion of the land.
Before the appellants deposited