Net Ram vs Indraj Singh and others

Shamsher Bahadur, J.—This petition under Articles 226 and 227 of the Constitution of India by Net Ram, sitting member of the Punjab Legislative Assembly, challenges two orders of the Election Tribunal, Rohtak, passed on 10th of September, 1962 and 28th of September, 1962. By the earlier order of 10th of September, 1962, the Election Tribunal declined to strike off paragraph 8 of the amended petition. The subsequent order of 28th of September, 1962 rejected another application of the Petitioner under Order 15, Rule 3 of the CPC for trial of one of the issues in the petition as a preliminary issue.

The Petitioner was declared elected in the last General Elections to the Punjab Legislative Assembly from Hissar Saddar Constituency. An election petition to challenge the election of the Petitioner was made by Respondents Nos. 1 and 2, Indraj Singh and Raghubir Singh under Sections 60 and 81 of the Representation of the People Act, (hereinafter called the Act;. In paragraph 8 of the original petition it was alleged that the Petitioner Net Ram had been guilty of the corrupt practice of obtaining assistance for the furtherance of the prospects of his election, from persons in the service of the Government. It was further averred in this paragraph that Net Ram "persuaded some members of the Armed Forces of the Union to take leave and to canvass for him in the families of the members of the Armed Forces, in various villages of the constituency. One Shri Ram Chander Dalai who was a sepoy then serving in some infantry battalion of the Indian Army" had been asked to take leave before the polling started in the constituency and actually canvassed for him in various villages. Ram Chander is also stated to have been appointed a polling agent by Net Ram Petitioner at village Mohabbatpur polling station No. 3. In the written statement filed by the Petitioner, the allegations made in paragraph 8 were described as "vague, indefinite and without full particulars". The part assigned to Shri Ram Chander was denied. In the amended petition the averments in paragraph 8(a) read as under:

The Respondent No. 1 (Net Ram) persuaded Sarvshri Bahadar Singh and Ram Chander Dalai members of the Armed Forces of the Union of India, to canvass for him and then to work as polling agents for him under his written authority on the 24th of February, 1962, at polling station No. 2 and 3 at village Mohabbatpur respectively. Shri Bahadur Singh canvassed votes for the Respondent No. 1, in his company on the 22nd February, 1962, in village Baroli and Shri Ram Chander Dalai canvassed votes in village Badon Bangharan, on 20th February, 1962, in the company of Respondent No. 1 himself. Shri Ram Chander also canvassed votes for Respondent No. 1(sic), at his instance at Dhani Mohabbatpur in the night between 23rd and 24th February, 1962, and also in the morning of 24th February, 1962.

Shri Bahadar Singh is a reservist serving in the 18th Cavalry.... His No. is 101S823 His present address is......

Shri Ram Chander is a sepoy serving in the 5th Battalion.... His address is C/O. 56 A.P.O.

The Tribunal was moved to strike off the amended paragraph 8 on the ground that it introduced a fresh charge altogether which was not permissible under Sub-Section 5 of Section 90 of the Act, which vests a discretionary power in an Election Tribunal "upon such terms as to costs and otherwise as it may deem fit" to "allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition". Before examining the contention of the learned Counsel for the Petitioner, it would be useful to set out briefly some other relevant provisions of the Act.

An election petition u/s 81 can question any election on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the Election Commission. Section 100(1) enumerates the grounds on which the election could be declared void, one of these being set out in Clause (b) relating to corrupt practice committed by a returned candidate or by any other person with the consent of a returned candidate or his election agent. "Corrupt Practice" is defined in Section 123 and is categorised under seven different groups, the seventh being the "obtaining or procuring or abetting" the assistance for the furtherance of the prospects of that candidate''s election, from any person in the service of the Government, this including the members of the Armed Forces of the Union. The other heads of corrupt practices are bribery, undue influence, the appeal by candidate on religious or racial grounds, publication of false statements injurious to the personal character or conduct of any candidate, the hiring or procuring of any vehicle or vessel for the conveyance of electors and the incurring of unauthorised expenditure. The election petition, u/s 83 is required to contain a concise statement of the material facts on which the Petitioner relies and the full particulars of any corrupt practice that the Petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.

Mr. Sachar, the learned Counsel for the Petitioner, submits that paragraph 8 of the ameded petition cannot be admitted and should be struck down for the simple reason that it has the effect of introducing particulars of a corrupt practice of which no mention was made in the previous petition The language of Sub-section (5) of Section 90, however, makes it clear that only particulars of corrupt practices not previously alleged are barred. If a corrupt practice has definitely been stated to be a ground for declaring the election void the particulars of it can always be taken in by way of amendment or amplification. In paragraph 8 of the original petition it was stated that while the known particulars of the corrupt practices are reproduced the others will be furnished when known. About the known particulars mention is made of Ram Chander Dalal who is a sepoy in the Indian Army. In the amended petition the name of Bahadur Singh is added and full particulars of both Bahadur Singh and Ram Chandra Dalai are furnished. Can it be said that the furnishing of these particulars constitutes a new head of corrupt practic ? This particular problem came up for discussion before their Lordships of the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, In dealing with fresh instances of corrupt practices in an amended petition, it was observed by Mr. Justice Venkatarama Ayyar, speaking for the Court, at page 451, "that the Tribunal has authority to allow an amendment even when that involves inclusion of new instances provided they relate to a charge contained in the petition". It is no doubt true that, their Lordships of the Supreme Court were construing the provisions of the Representation of People Act, 1951, but on a comparative examination of the relevant provisions of it and those of the Act, it appears that there is no difference in substance in so far as this aspect of the matter is concerned. Section 81 of the Act of 1951 says that an election petition can call in question any election on the grounds set forth in Section 100 and corrupt practice of bribery or of undue influence is one of the grounds of attack. Section 83(1) requires that an election petition should contain a concise statement of the material facts on which the Petitioner relies and under Sub-section (2) full particulars of any corrupt or illegal practice which the Petitioner alleges have to be given Sub-section (3) of Section 83 which is equivalent to Sub-section (5) of Section 90 of the Act, empowers a Tribunal to ask for further and better particulars. In the opinion of their Lordships of the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, if the election petition is founded on a corrupt practice which is clearly stated in the petition even fresh instances not included in the original petition may be taken in by way of amendment. Mr. Sachar contends that the subsequent rulings of different High Courts have taken the view that a fresh instance of corrupt practice constitutes new charge altogether and is not admissible as an amendment. M.A. Muthiah Chettiar v. Saw. Ganesan 13 E.L.R. 201 is a Division Bench authority of the Madras High Court consisting of Rajagopalan, Offg. C.J. and Rajagopala Ayyangar J. The learned Judges of the Madras High Court discussed the ruling of the decision in Harish Chandra Bajpai Vs. Triloki Singh, and observed at page 219 that: "Where a charge of corrupt practice is made, fresh instances of such corrupt practice might by wofamendment be added even after the period of limitation for the filing of a petition had elapsed, by reason of the use of the expression ''at any time'' in Section 83(3). Where, however, a new charge of corrupt practice and not merely a fresh instance of an already formulated charge is sought to be added, this would not be covered by Section 83(3) and the jurisdiction to allow it would be dependent on the proper construction of Section 90(2) of the Act." In that particular case, a new fact was sought to he introduced by an amendment and the purpose was not merely to explain or clarify a material fact already stated. In that case it was stated in the original petition that disqualification resulted as a result of a particular contract. In the amendment a new contract altogether was sought to be introduced to establish disqualification. In the words of Chief Justice Rajagopalan, at page 222 of the report, "the election petition did not contain any general statement which could cover contracts other than the one specified in it". In the present case, as has already been emphasised, the corrupt practice as specified in Sub-section (7) of Section 123 of the Act had been alleged and it is definitely asserted that services of the members of the Armed Forces of the Union had been galvanised for the support of the successful candidate. The particulars of a corrupt practice under any of the different heads in Section 123 mentioned in the petition can always be called for in the discretion of the Tribunal u/s 90(5) of the Act. The Tribunal is precluded from adopting such a course where the specific corrupt mode is not made a ground of attack in the petition. Any instance of such a corrupt practice by way of amplification or even addition in the amended petition is a mere particular and cannot be equated as a new ground or a new charge. The fresh instance of Bahadur Singh in the amended petition would be covered by the ruling of the decision of the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, The second authority relied upon by Mr. Sachar is that of Balwan Singh v. Election Tribunal, Kanpur 15 E.L.R. 199 and is a decision of a Division Bench of the Allahabad High Court consisting of Bhargave and Chaturvedi JJ. In that case it was stated in the original petition that A and B had appealed to the electors to vote on the ground of caste, while in the amended petition it was stated that C and D had made that appeal, and not A and B. Holding that the power of an Election Tribunal to allow amendments is limited by the principle that no new ground can be introduced by amendment, it was held by the Allahabad High Court that the substitution of two different names constituted in reality a new ground of attack and could not, therefore, be introduced by way of amendment. The third authority relied upon by Mr. Sachar is a decision of Balkrishna Ayyar J. in T.L. Sasivarna Thevar v. V. Arunzgiri 17 E.L.R. 313. It was held that if the amendment has the result of formulating a new and a specific charge it cannot be allowed. This judgment was affirmed in appeal by a Division Bench of the Madras High Court in T.L. Sasivarna Tharu v. Aruna Giri 19 E.L.R. 200. The decision of the Division Bench, however did not take into account the ruling of the decision in Harish Chandra Bajpai Vs. Triloki Singh,

The amendments introduced in the Representation of People Act in 1956 did not bring about any substantial difference in the statutory requirements justifying an amendment of this nature. It was observed by a Full Bench of the Madhya Pradesh High Court consisting of M. Hidavatullah C.J. (now a Justice of Supreme Court). B.K. Choudhuri and H.R. Krishnan JJ in Babulal Sharma v. Brijnarain Brajesh 14 E.L.R. 72, that the decision of the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, that if a corrupt practice has been alleged in an election petition, the Tribunal has power to allow amendment of the petition by adding fresh instances or particulars of such corrupt practice, is good law even after the amendment of the Representation of the People Act, 1951, by the Amending Act 27 of 1956. The omission of the words ''or order such further and better particulars in any mattter referred to therein to be furnished'' in Section 90(5) of the Act as amended in 1956 (which corresponds to Section 83(i) of the Act before it was amended), affects only the Tribunal''s power to order further and better particulars; it does not take away the Tribunal''s power to allow an application by the Petitioner for amendment for adding further or better particulars". A similar view was adopted by a Division Bench of the Patna High Court (Ramaswami C.J. and Chowdhary J.) in Singheshwar Prasad Varma v. Kamlnath Tiwari 16 E.L.R. 95. It was reiterated in this case by the Division Bench that the principle of the decision in Harish Chandra Bajpai Vs. Triloki Singh, , applies even after the amendment of the Representation of the People Act in 1956.

The ratio decidendi of the Supreme Court decision in Harish Chandra Bajpai Vs. Triloki Singh, in my opinion, is fully applicable and the introduction of one new instance is covered by the provisions of Sub-section (5) of Section 90 of the Act. Besides, it is discretionary with Election Tribunal to allow amendments in the petition. This is essentially an interlocutory order and as an appeal is provided for by Section 116-A of the Act it would not be appropriate to interfere with the orders of the Tribunal in such cases.

With regard to the second order of the Tribunal passed on 28th of September, 1962, it would be sufficient to say that the decision on issue No. 5 which the Petitioner claims should first be decided as a preliminary issue would not dispose of the petition in its entirety. The election is challenged on many grounds and though the ground covered by issue No. I may be important from the point of view of the Petitioner, there are other grounds of attack forming subject-matter of the other issues. As rightly observed by the Election Tribunal the objection of the Petitioner in effect is that even if the allegations made in the election petition are accepted as correct mere inducement of a person not to withdraw does not amount to corrupt practice. A decision in favour of the Petitioner on this issue would not dispose of the petition and therefore, the decision of the Election Tribunal not to decide it as a preliminary issue is correct and not open to any challenge.

This petition therefore, fails and is dismissed with costs.