Amin Lal Vs. Hunna Mal [1964] INSC 206
(29 September 1964)
29/09/1964 MUDHOLKAR, J.R.
MUDHOLKAR, J.R.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
HIDAYATULLAH, M.
DAYAL, RAGHUBAR
CITATION: 1965 AIR 1243 1965 SCR (1) 393
CITATOR INFO:
F 1967 SC 836 (8) C 1969 SC 677 (9,11)
E&D 1969 SC 872 (21) R 1976 SC 744 (26)
ACT:
The Representation of the People Act (43 of
1951), s. 90(3)-Applicability to amended petition-Competency of Tribunal to
allow amendments-Code of Civil Procedure (Act V of 1908), O.I, r. 10- Joinder
of parties-Limitation.
HEADNOTE:
The appellant challenged the election of the
respondent to the State Legislative Assembly by alleging corrupt practices
against the respondent, his agents and other persons. The respondent raised a
preliminary objection that the allegations regarding corrupt practices were
vague and indefinite. The Tribunal held that the election petition suffered
from those defects and was liable to be dismissed unless the appellant either
applied for leave to amend the petition or amplified the particulars as to
corrupt practices. The appellant filed a petition for amendment as well as an
amended election petition. Thereupon, the respondent filed an application
praying for the dismissal of the election petition on the grounds, that one of
the persons who was alleged by the appellant to have been guilty of corrupt
practices was a candidate for election, that he was therefore a necessary party
to the petition and that as he was not made a party, the election petition was
liable to be dismissed under s. 90(3) of the Representation of the People Act
(43 of 1951). The Tribunal, after arguments, dismissed the election petition.
The appeal to the High Court was unsuccessful. In the appeal to the Supreme
Court it was contended that : (i) section 90(3) of the Act applied only to
petitions as originally filed and not to amended petitions, (ii) there was no
allegation of corrupt practice against the candidate who was not impleaded,
(iii) the Tribunal had no power to allow or direct amendment of the election
petition and (iv) the Tribunal should have either allowed the appellant to join
as a respondent the candidate who was not impleaded or allowed him to further
amend the petition by deleting all reference to that candidate.
HELD : (i) Section 90(3) give in independent
power to the Tribunal to dismiss an election petition on the ground of
non-compliance with the provisions of ss. 81 and 82 despite the fact that the
Election Commission bid not chosen to dismiss it under s. 85. Since an election
petition could be permitted by the Tribunal to be amended, a petition which had
been amended would be the only petition before it and the Tribunal could
exercise the powers conferred upon it by s. 90(3) with respect to such an
amended petition. [399G-H].
(ii) The allegations against the candidate
who was not impleaded amounted to allegations Of currupt practice.
[400E].
(iii) The Tribunal was competent to allow or
give an option to the appellant to amend the petition. By giving such option to
amend or furnish better particulars the Tribunal was not enabling the appellant
to remove the defect pertaining to the presentation of the petition or the
joinder of parties under ss. 81 and 82 of the Act. [402A-B].
394 Harish Chandra Bajpai v. Triloki Singh,
[1957] S. C. R. 370, followed.
(iv) Assuming that the Tribunal could permit
joinder of parties, the presentation of the application of the appellant under
O. I r. 10 of the Code of Civil Procedure (Act 5 of 1908) was beyond the period
prescribed for presenting an election petition and therefore, could not be
granted. In any event the matter was within the descretion of the Tribunal with
which this Court would not lightly interfere. The Tribunal was also right in
not allowing a further amendment, as to allow such an amendment for avoiding
the penalty under s. 90(3) would have been grossly improper. [40 D-G].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 670 of 1964.
Appeal from the judgment and order dated
August 27, 1963 of the Punjab High Court in F.A.0. No. 4E of 1963.
M. C. Setalvad, Anand Swaroop and Janardan
Sharma, for the appellant.
Veda Vyasa and B. D. Jain, for the
respondent.
The Judgment of the Court was delivered by
Mudholkar J. The short point for consideration in this appeal from the judgment
of the Punjab High Court is whether the Election Tribunal, Rohtak, was
justified in dismissing the election petition under sub-s. (3) of s. 90 of the
Representation of the, People Act, 1951 (hereafter referred to as the Act)
preferred by the appellant on the ground that it did not comply with the
provisions of s. 82 of the Act.
The appellant is a voter in 64-Hissar city
constituency of tile Punjab Legislative Assembly and the respondent was a
candidate for election to the Assembly from that constituency, the polling in
which took place on February 24, 1962. Eleven persons had been nominated for
election from that constituency, one of whom was Suraj Bhan, brother of the
respondent. Five candidates, including Suraj Bhan, withdrew their candidature
within the time prescribed for the purpose with the result that names of only
six candidates were published under s. 38 of the Act. Several grounds were set
out by the appellant in his election petition for setting aside the election.
One of those grounds was that the respondent, his agents and other persons
acting with the consent of the respondent were guilty of committing corrupt
practices. In paragraph 9 (c) (i) of the petition as presented to the Election
Commission on April 8, 1962 the appellant ]had alleged as follows:
"That the respondent by himself and
through his agents with his consent has been guilty of the corrupt practice of
promoting or attempting to promote feelings 395 of enmity and hatred between
different classes of the citizens of India on grounds of religion, community
and language. The respondent was in fact a candidate sponsored by Shri Devi Lai
of Chautala a rebel Punjab Congress leader who had left the Congress fold and
joined hand with Professor Sher Singh, Leader of the Hariana Lok Samiti. The
very creed of this Samiti was the promotion of or attempt to promote feelings
of enmity and hatred between the residents of the Punjab region and residents
of Hindi region. This Samiti has in a way divided the Punjab State into two
communities Punjabis and non-Punjabis. The chief target of the leaders,
workers, candidates sponsored by the Simiti and their agents and workers were
the Congress candidates, who were pitched against them in every constituency of
the Hindi region whom they described as being the henchmen of Shri Partap Singh
Kairon, the Chief Minister of the Punjab, who, according to respondent and his
agents was a staunch Sikh and chief supporter of the cause of the residents of
Punjabi region at the cost of the residents of the Hindi region and specially
the non-Sikhs among them. They described the Congress candidate Shri Balwant
Rai in this constituency as being an enemy of the residents of Hindi region
specially and non-Sikh residents of the Hindi region and preached that if
elected be would be a great obstacle in the way of the non-Sikh residents of
the Hindi region and would be a cause Of the death knell of Hindi language as
well. This poisonous propaganda on the basis of two communities Punjabis and
non-Punjabis and also on the basis of two religions Sikhs and non-Sikhs and on
the basis of two languages Hindi and Punjabi was resorted to by the respondent,
his chief agent Shri Devi Lal with his consent throughout the constituency
right from the date of the filing of the nomination paper by the respondent up
to the date of. poll through the various pamphlets, posters and the writings in
the paper titled as 'Hariana Kesri' a mouth- piece of the ideology of Shri Devi
La[ rebel congress leader. These pamphlets, posters and newspapers containing the
poisonous propaganda were got published by the respondent or by the office of
the group beaded by Ch. Devi Lal from the office of the 'Hariana Kesri'
controlled by Shri Devi Lal with the consent of the respondent and got
distributed by the respondent through his workers and agents throughout 396
.lm15 the constituency at a large scale. 'These writings will be got produced
later on when available." In the written statement filed by the respondent
on July 11, 1962 he raised certain preliminary objections, one of which was to
the effect that the petition failed to comply with the requirements of the
provisions of s. 83(1) of the Act as it did not contain a concise statement of
material facts and as it did not set out full particulars of the alleged corrupt
practices. According to him, the allegations were false and that the vagueness
consisted in failing to give the names of the agents or other persons who were
alleged to have committed corrupt practices. The appellant in his reply
asserted that all the known particulars so far as possible in respect of the
various allegations of corrupt practices had been given in detail. Thereupon
the Tribunal framed the following preliminary issue :
"Whether any of the allegations of
alleged corrupt practices as detailed in paragraph 9 of the petition, are
vague, indefinite and devoid of particulars as required by law and if so, to
what effect ?" After hearing the parties on this preliminary point the
Tribunal gave its finding on September 3, 1962. According to the Tribunal the,
petition suffered from the defects pointed out by the respondent. It,
therefore, gave an option to the appellant either to apply for leave to amend
the petition or to amplify the particulars of corrupt practices in the light of
the observations made by it in its order and directed that if the appellant did
not choose to do either of these things the charges which were vague would be
struck off. In pursuance of this order the appellant made an application for
amendment of the petition and filed along with it an amended petition. This was
done on September 6, 1962. One of the portions of the petition which was
amended was the latter part of para 9(c) (i) and as amended it reads thus :
"This poisonous propaganda on the basis
of two communities Punjabis and non-Punjabis and also on the basis of two
religions Sikhs and non- Sikhs and on the basis of two languages Hindi and
Punjabi was resorted to by the respondent, his chief agent Shri Devi Lal with
his consent throughout the constituency through the various pamphlets. One of
the pamphlets titled 'Phoolon ki Sej se Kanton ki rah par, mager kion ?'
containing the speech of Shri Devi Lal dated 5-2-1962 of the type the one of
which is attached with this amended petition, the title page of 397 which
purports to have been printed from the Half-Tone Art Press, Delhi by one Dr.
Ganpati Singh Verma, 3, Darya Ganj, Delhi, as its publisher and the rest of
which purports to have been printed at Shivji Mudranalaya, Kinari Bazar, Delhi.
And the other one titled, 'The case of Hariana and Hindi Region' by Professor
Sher Singh, President, Hariana Lok Samiti presented to Dass Commission in which
the case of Hariana was put in before the Dass Commission by Professor Sher
Singh in such a way as to spread hatred between the Sikhs and non-Sikhs
population of Punjab State through the various figures given in it of the State
Government servants of all ranks employed in the two regions, were distributed
by respondent No. 1, his brother Sh. Suraj Bhan and his near relation Shri Lakshmi
Chand Gupta, Contractor Gurgaon at a large scale in Hissar town on the 11th
February, 1962 and at Adampur Mandi and Uklana Mandi on the 12th February, 4962
and at Barwala on the 13th February, 1962." On September 9, 1962 the
respondent filed a written statement in answer to the amended election
petition. In respect of paragraph 9(c)(i) the respondent, besides denying the
contents of that paragraph, again asserted that the allegations were vague.
This was followed by the replication by the appellant dated September 11, 1962.
On September 12, 1962 issues were framed. On that very day the respondent
preferred an application before the Tribunal for dismissing the petition under
s. 90(3) of the Act. One of the grounds on which he sought the dismissal of the
petition was that Suraj Bhan who was alleged by the appellant to have been
guilty of corrupt practices was a candidate validly nominated for election,
that he was a necessary party to the petition and that as he was not made a
party thereto the petition was liable to be dismissed under sub-s. (3) of s. 90
of the Act. On November 16, 1962 the appellant filed a reply to the
respondent's application in which lie said that the allegation against Suraj
Bhan was not of corrupt practices and that Suraj Bban could not be said to have
been a candidate for election within the meaning of s. 82(b) of the Act. He
further contended that the requirement of making a candidate a party does not
extend to the amended petition especially when the amended petition was filed
in pursuance of an order of the Tribunal. On the same day he made an
application under O. 1, r. 10 of the Code of Civil Procedure for permission to
join Suraj Bban as a respondent to the petition. In paragraph 9 398 of that
application the appellant made an alternative prayer to the effect that in case
he was not permitted to join Suraj Bhan as a respondent to the petition he may
be allowed to further amend the petition by the deletion of the words "his
brother Shri Suraj Bhan" in paragraph 9 (c) (i) of the amended petition,
in the 5th line from the bottom of cl. (c) (i) of para 9. His application was
opposed by the respondent,. The Tribunal, after hearing the parties dismissed
the appellant's application dated November 16, 1962 as well as the election
petition. The appellant then preferred an appeal before the High Court of
Punjab but that appeal failed. The High Court, however, granted him a
certificate under Art. 133(1)(c) of the Constitution and that is how it has
come up to this Court.
The ground on which the petition has been
dismissed by the Tribunal is that it does not comply with the requirements of
cl. (b) of s. 82. The relevant provision reads thus :
"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." Clause, (b) of s. 79 defines a
candidate thus " 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." Suraj
Bhan was a duly nominated candidate and though he withdrew his candidature
within the time permitted by the rules he must, for the purpose of s. 82, still
be regarded as a candidate. As pointed out by this Court in Mohan Singh v.
Bhanwarlal(1) a person who was duly nominated as a candidate for election would
not cease to be a candidate for the purpose of Parts VI, VII and VIII of the
Act merely because he withdrew his candidature. Therefore, according to this
Court where a petition contained any imputation of corrupt practice against
such a person it could not be regarded as properly constituted unless he was
impleaded as a respondent.
Mr. Setalvad's contention, however, is that
what sub-s. (3) of s. 90 of the Act contemplates is a petition as originally
filed by the (1) A.I.R. 1964 S.C. 1366.
399 petitioner and not an amended petition.
His argument is that under this provision not merely the Tribunal but also the
Election Commission has the power of dismissing an election petition on the
ground that it does not comply with the provisions of s. 82. Since there is,
according to him, no provision for amendment of an election petition during the
time the Election Commission is seized with it, and since under sub-s. (3) of
S. 90 the powers of the Tribunal are identical with those of the Election
Commission under s.
85, we must take the expression
"election petition" to mean an unamended election petition. It is not
necessary for us to consider whether the Election Commission can permit
amendment of an election petition, but assuming that it has no such power it
does not follow that the Tribunal to whom the petition has been sent for trial
has no power to dismiss it after it has been amended by the petitioner. The
procedure regarding the trial of election petitions is contained in Chapter III
of the Act, the first section in which IS s. 86. That section deals with the
appointment of an Election Tribunal. It provides that if the petition is not
dismissed under S. 85 by the Election Commission, it shall be referred to an
Election Tribunal for trial. Sub- section (1) of s. 90 provides that subject to
the provisions of the Act and rules made thereunder, every election petition
shall be tried by the Tribunal, as nearly as may be, in accordance with the
procedure applicable under the Code of Civil Procedure, 1908 to the trial of
suits. Under O. VI, r. 17 of the Code of Civil Procedure a civil court has
power to permit amendment of pleadings and, therefore, it is obvious that the
Tribunal can exercise the same power with respect to a petition referred to it
for trial as the civil court. Sub-section (3) provides that the Tribunal shall
dismiss the petition if it does not comply with the provisions of S. 81 or S.
82 notwithstanding that it has not been dismissed by the Election Commission
under S. 85. It would follow from this that the power of the Tribunal to
dismiss an election petition is not in any way affected by the fact that it was
not dismissed by the Election Commission under S. 85. Indeed, this provision
gives an independent power to the Tribunal to dismiss an election petition on
the ground of non-compliance with the provisions of ss. 81 and 82 despite the
fact that the Election Commission has not chosen to dismiss it upon those
grounds under S. 85. Since ail election petition can be permitted by the
Tribunal to be amended, a petition, which has been amended would, from the date
of amendment, be the only petition before it. Therefore, that would be the
petition with respect to which it could exercise the powers conferred upon it
by sub-s. (3) of S. 90. To hold otherwise would lead to the result that the
powers conferred by the legislature on 400 the Tribunal by this provision will
become non-exercisable in respect of one category of election petitions. There
is nothing in S. 90 which deprives the Tribunal of any of the powers conferred
upon it by the aforesaid provision. No other provision has been brought to our
notice which has the effect of taking away the express powers conferred by
sub-s.
(3)) of s. 90 on the Tribunal by reason of an
amendment of the petition. We cannot, therefore. accept his contention.
The next contention is that there was no
allegation of corrupt practice against Suraj Bhan. We have already set out the
amended portion of paragraph 9(c)(i) of the petition and there the appellant
had clearly alleged that certain pamphlets were distributed, amongst others, by
Suraj Bban, one of which was titled : "Phoolon ki sej se kanton ki rah
per, mager kion ?" and the other was "The case of Hariana and Hindi
Region." It is alleged that these pamphlets were couched in language which
tended to spread hatred between the Sikhs and non-Sikhs in the State Of Punjab.
Under sub- s. (3-A) of s. 123 of the Act the promotion of, or attempt to
promote, feelings of enmity or hatred between different classes of the citizens
of India on grounds of religion, race, caste, community or language, by a candidate
or his agent or any other pet-son with the consent of a candidate or his
election agent for the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of any candidate amounts
to a corrupt practice. The allegations against Suraj Bhan are thus obviously
allegations of corrupt practice.
Mr. Setalvad then contended that the
appellant did not thereby allege that it was the intention of Suraj Bhan to
promote or attempt to promote feelings of enmity etc. He also contended that
the allegations in the petition are, strictly speaking against the respondent
and not Suraj Bhan and that merely alleging that Suraj Bhan distributed the
pamphlets without imputing to him the knowledge, express or implied, of the
contents of the pamphlets does not amount to an allegation of corrupt practice,
In support of this he pointed out that the appellant had expressely submitted
to the Tribunal that no allegation of corrupt practice was ever intended to be
made against Suraj Bhan. This is not quite correct because the Tribunal in para
16 of its order has observed as follows:
"It has not been seriously challenged
that (sic) in fact it cannot be challenged that the allegations made against
Suraj Bhan in the amended petition amount to allegations of corrupt
practice." 401 Apart from that the allegation against the respondent
himself is in practically the same terms as that against Suraj Bhan and other
persons mentioned in paragraph 9(c)(i) of the petition. The appellant did not say
in his petition that the respondent had no knowledge express or implied of the
contents of the pamphlets. Yet, according to him, he was guilty of corrupt
practice by distributing and causing the distribution of the pamphlets through
Suraj bhan and others. If the averments contained in the aforesaid para- graph
are, therefore, not to be regarded as allegations of corrupt practice against
Suraj Bhan they could also not be regarded as allegations of that type against
the respondent.
If that were so, the whole of paragraph
9(c)(i) would lose its meaning and significance. Indeed, both the High Court
and the Tribunal have regarded the allegations therein as allegations of
corrupt practices and we ourselves do not see how else they could be construed.
Mr. Setalvad then contended that the Tribunal
had no power to allow or direct the amendment of the election petition as it is
not a suit between two parties but is a proceeding in which the entire
constituency is interested and referred in this connection to two decisions of
this Court in K. Kamarai Nadar v. Kunju Thevar(1) and Mallappa Bassappa v.
Basavarai Ayyappa (2) .
In the Act as it stood prior to its amendment
in 1956 the provisions of the Code of Civil Procedure relating to trial of
suits were made applicable to trial of election petitions by s. 90(2). Those
provisions are now reproduced in s.
90(1) of the Act. As regards allegations of
corrupt and illegal practices s. 83(2) provided, as does s. 83(1)(a) now, that
full particulars of the parties alleged to be guilty of such practices be
given. Subsection (3) empowered the Tribunal to permit amendment of the
particulars. This latter provision has been deleted. But while it was still in
force this Court held in Harish Chandra Bajpai v. Triloki Singh (3) that
despite this provision, the Tribunal had power to permit amendment under 0. VI,
r. 17, Code of Civil Procedure in regard to matters other than those failing
within sub-s. (3) of s. 83. Bhagwati J., who was a party to this decision and
who delivered the judgment of the Court in the two cases earlier referred to
has not expressed any dissent from this view. What he did say in those cases,
in so far as permission to amend is concerned was that the Tribunal had no
power to grant it so as to enable the petitioner whose petition did not comply
with the provisions of s. 81 or s. 82 to remedy (1) [1959] S.C.R. 583.
(3) [1957] S.C.R. 370.
(2) [1959] S.C.R. 611.
402 the defect. in the case before LIS, the
Tribunal did by giving an option to the appellant either to amend the petition
or furnish particulars or to have para 9(c) (i) struck off as being vague
enable the appellant to remove a defect pertaining to the presentation of a
petition or joinder of parties (which are matters dealt with by ss. 81 and 82).
We agree, with what has been said in Harishchandra Bajpai's case(1) and hold
that the Tribunal was competent to allow or give an option to the appellant to
amend the petition.
The next contention of learned counsel is
that since the petition had become defective by reason of the amendment the
Tribunal should either have permitted the appellant to join Suraj Bhati as a
respondent or to further amend the petition by deleting reference to Suraj
Bhan. A patty can avail himself of the provisions of O. I. r. 10(1),C.P.C.
subject to the law of limitation. Assuming that a Tribunal can permit the
joinder of parties, we must point out that under S. 81 of the Act an election
petition has to be presented within 45 days of the date of the election of the
returned candidate. The application under 0. 1. r. 10 was made more than eight
months after the election of the respondent and was thus inordinately late and
could, therefore, not be granted. As regards joinder of Suraj Bhan in exercise
of the powers conferred on a court by 0. I. r. 10(2) all that we need say is
that the matter was in the discretion of the Tribunal and we would not lightly
interfere with what the Tribunal has done. As regards the last submission, it
cannot be forgotten that the appellant did have the choice when the Tribunal
made its order on September 3, 1962 to decline to amend and suffer para 9(c)(i)
being struck off.
He chose to amend and has lost the right to
adopt the alternative. Moreover, though the decision in Kamraj Nadar'scase (2)
may not strictly apply to allow a further amendment for avoiding the penalty
under S. 90(3) of the Act would have been grossly improper and the Tribunal was
right in rejecting it.
In the circumstances we dismiss the appeal
but make no order as to costs.
Appeal dismissed.
(1) [1957] S.C.R. 370.
(2) [1959] S.C.R 583.
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