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PETITIONER: AMIN LAL

       Vs.

RESPONDENT: HUNNA MAL

DATE OF JUDGMENT: 29/09/1964

BENCH: MUDHOLKAR, J.R. BENCH: 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

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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].

JUDGMENT:     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

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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

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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

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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

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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

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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

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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

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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. 403