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Sangappa and anr. Vs. Shivamurti Swamy and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 197 and 201 of 1957
Judge
Reported inAIR1958Kant120; AIR1958Mys120; ILR1958KAR25; (1958)36MysLJ67
ActsRepresentation of the People Act, 1951 - Sections 81(1), 83, 83(1), 83(2), 83(3), 90(5), 100, 100(1), 100(2), 101 and 123; Representation of the People (Amendment) Act, 1956 - Sections 83 and 90(5); Code of Civil Procedure (CPC), 1908
AppellantSangappa and anr.
RespondentShivamurti Swamy and ors.
Appellant AdvocateK. Rajah Iyer, Adv.
Respondent AdvocateS.V. Patil, Adv.
Excerpt:
.....form the grounds on which the election is questioned. (b) shall set forth full particulars of any corruptpractice that the petitioner alleges, including as full a statement aspossible of the names of the parties alleged to have committed such corruptpractice and the date and place of the commission of each such practice ;and (2) the petition shall beaccompanied by a list signed and verified in like manner setting forth fullparticulars of any corrupt or illegal practice which the petitioner alleges,including as full a statement as possible as to the names of the partiesalleged to have committed such corrupt or illegal practice and the date andplace of the commission of each such practice. under sub-section (3) of the old section 83 the tribunal was permitted 'to allow the particulars..........or the material facts on which the petitioner relies;(b) shall set forth full particulars of any corruptpractice that the petitioner alleges, including as full a statement aspossible of the names of the parties alleged to have committed such corruptpractice and the date and place of the commission of each such practice ; and(2) the petition shall beaccompanied by a list signed and verified in like manner setting forth fullparticulars of any corrupt or illegal practice which the petitioner alleges,including as full a statement as possible as to the names of the partiesalleged to have committed such corrupt or illegal practice and the date andplace of the commission of each such practice. (c)shall be signed by the petitioner and verified in the manner laid down in thecode of civil.....
Judgment:

S.R. Das Gupta, C.J.

1. The question involved in these two petitions is the same, viz., whether or not instances of a corrupt practice, which were not in the original petition, can be allowed to be filed after the time for filing an election petition has expired. There is hardly any dispute on questions of fact. The dispute centres round the construction of Section 90, Sub-section (5) of the Representation of the People Act as it stands after amendment in 1956.

2. The petitioners in both these petitions had filed their respective election petitions for setting aside the elections in which they respectively stood as candidates. The petitioners in their respective petitions referred to various corrupt practices which the respondents are said to have committed and for which the elections were sought to be avoided and gave several instances in each ease of such corrupt practices.

Thereafter they made the applications which have given rise to the present petitions for allowing them to give further Instances of such corrupt practices. The said petitions were opposed by the respondents in each case but were allowed by the Tribunal. Hence the present petitions have been filed to this court for appropriate writs quashing the said order of the Tribunal dated 2-9-1257.

3. The principal contention raised by Mr. Rajah Iyer in support of both these petitions was-that the Tribunal had no jurisdiction to allow such instances to be furnished beyond the period of time mentioned in the Act for filing the election petition. I should mention that it is not disputed before us that these applications were filed beyond such time.

Mr. Rajah Iyer further contended before us-that Section 90 (5) of the Representation of the People (Amendment) Act, 1956, under which the Tribunal purported to make the said order, only permits the Tribunal to allow particulars of any-corrupt practice which have already been given-to be amended or amplified and does not permit fresh instances of such corrupt practice to be filed.

4. Before I deal with this contention of Mr. Rajah Iyer, it would be necessary to set out the relevant sections of the Representation of the People Act as it stood after its amendment in 1956. Section 83 of the said Act provides as. follows:

'Contents of petition -- (1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth 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; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908) for verification of pleadings.

(2) Any schedule of annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.'

5. Sub-section (5) of Section 90, which is the-material provision for our present purpose, reads as follows :

'The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, 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.'

6. Section 100 gives the grounds for declaring elections to be void. That section mentions amongst other grounds that if the Tribunal is of opinion 'that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent, the Tribunal shall declare the election of the returned candidate to be void.' The only other section, to which I need refer for the present is Section 123. It mentions what are deemed to be corrupt practices for the purpose of this Act, e. g.-

'(1) Bribery, that is to say, any gilt, 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:

(b) an elector to vote or refrain from voting at an election; .............

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere, on the part of the candidate or his agent, or of any other person, with the free exercise of any electoral right; .............

(3) The systematic appeal by a candidate or his agent or by any other person to vote or refrain from voting on grounds of caste, race, community or religion or the use of, or appeal to, religious symbols or the use of, or appeal to, national symbols, such as the national nag or the national emblem, for the furtherance of the prospects of that candidate's election.

(4) The publication by a candidate or his agent or by any other person, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to personal character or conduct of any candidate or in relation to the candidature, or withdrawal, or retirement from contest, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election'.

I need not set out all the other items of corrupt practices mentioned in the said section.

7. For the purpose of deciding the present contention of the petitioners it would also be necessary to set out the provisions of Section 83 of the Representation of the People Act as it stood before its amendment in 1956.

The said section reads as follows:

'83. Contents of petition-

(1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908) for the verification of pleadings.

(2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice.

(3) The Tribunal may, upon such terms as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be amended (or order such further and better particulars in regard to any matter referred to therein to be furnished) as may in its opinion be necessary for the purpose of ensuring a fair and effectual trial of the petition.'

8. These being the material provisions of the Act as it stood before and after amendment in 1956, the material question which we shall have to decide in these petitions is what is meant by the expression, 'The Tribunal may allow the particulars of any corrupt practice alleged in the petition to be amended or amplified' as used in Section 90 (5) of the amended Act. Is it meant that the Tribunal may allow further instances of any corrupt practice to be given or is it meant that he would only allow fuller details to be given of the instances which have already been supplied?

Mr. Rajah Iyer contended before us that Section 90 (5) of the amended Act only allows further details of the instances, which have already been supplied, to be given and does not permit fresh instances to be supplied. He contended that thisis clear from the fact that the said sub-section only says that the Tribunal may allow particulars to be 'amended or amplified'.

He also drew our attention to the fact that in the last portion of the said sub-section it is definitely stated that the petitioner will not be permitted to introduce particulars of a corrupt practice not previously alleged in the petition. This last part of Section 90 (5) according to him, shows that fresh instances of a corrupt practice should not be allowed to be given.

9. At the very outset it should be mentioned that in a recent decision of the Supreme Court Harish Chandra v. Triloki Singh, (S) : [1957]1SCR370 (A) the effect of Section 83 of the old Act came to be considered and their Lordships held that under the said section new instances were permissible. Their Lordships held that under Section 83 (3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds or charges and this power extends to permitting new instances to be given.

Their Lordships held that it would be competent to the Tribunal to allow the amendment giving for the first time instances of corrupt practice, provided such corrupt practices have been made a ground of attack in the petition. Their Lordships in their judgment observed as follows :

'In our opinion Section 81 (1) and Section 83, Sub-sections (1) and (2), when correctly understood, support the contention of the respondent 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. Taking first Section 81 (1), it enacts that a petition may be presented calling an election in question on one of the grounds specified in Section 100, Sub-sections (1) and (2) and Section 101.

These sections enumerate a number of grounds on which the election may be set aside, including the commission of the corrupt practices mentioned in Section 123 of the Act, and quite clearly it is the different categories of objections mentioned in Section 100, Sub-sections (1) and (2), Section 101 and Section 123 that constitute the grounds mentioned in Section 81 (1). Then we come to Section 83 (1).

It says that the petition should contain a concise statement of the material facts and that would include facts relating to the holding of the election, the result thereof, the grounds on which it is sought to be set aside, the right of the petitioner to present the petition and the like. Then Section 83 (2) enacts that when there is an allegation of corrupt or illegal practice, particulars thereof should be given in a separate list.

If the grounds on which an election is sought to be set aside are something other than the commission of corrupt or illegal practices, as for example, when it is stated that the nomination had been wrongly accepted or that the returned candidate was not entitled to stand for election, then Section 83 (2) has no application, and the requirements of Section 83 (1) are satisfied when the facts relating to those objections are stated.

The facts to be stated under Section 83 (1) are thus different from the particulars which have to be given under Section 83 (2). When, therefore, an election is challenged on the ground that the candidate has committed the corrupt practices mentioned in Section 123, instances constituting particulars thereof will properly fall within Section 83 (2) and not Section 83 (1).

The result is that the power under Section 83 (3) to allow further and better particulars will include a power to allow fresh instances of the charges, which form the grounds on which the election is questioned.'

Their Lordships further observed as follows :

'The substance of the matter, therefore, is that under Section 83 (3) particulars can be amended and supplemented, and the reason of it requires that the power could be exercised even when the particulars are contained in the body of the petition. And even when there is no list filed, as in the present case, it would be competent to the Tribunal to allow an amendment giving for the first time instances of corrupt practice, provided such corrupt practice has been made a ground of attack in the petition.'

Their Lordships referred to an English decision in Carrickfergus Case (1869) 1 O'M and H 264 (B) with approval for the proposition that in ordering an application for amending particulars new matters may be added.

10. Mr, Rajah Iyer did not dispute before us that the Supreme Court did hold in that case that by 'particulars' was meant 'instances' of a corrupt practice and such instances can be allowed to be given under Section 83 of the old Act. He, however, contended before us that the said decision of the Supreme Court was given on a construction of Section 83 of the old Act.

The law, according to him, has undergone a change and the provisions of Section 90 (5) of the amended Act are not the same as the provisions of Section 83 of the old Act. He contended that Section 90 (5) is differently worded and the effect of this change is to disallow fresh instances of corrupt practice being given. I am unable to accept this contention of Mr. Rajah Iyer. The matters contained in Section 83 of the old Act have been distributed in Section 83 and Section 90 (5) of the new Act.

For the sake of convenience, I shall set out below the two sections side by side which will show at a glance that there is no substantial difference between the old Section 83 on the one hand and Section 83 and Section 90 (5) of the new Act on the other. They are as follows :

BEFORE AMENDMENT. AFTER AMENDMENT. 83. Contents of petition :--

83. Contents of petition : --

(1) An election petitionsnail contain a concise statement of the material facts on which thepetitioner relies and shall be signed by the petitioner and verified in themanner laid down in the Code of Civil Procedure, 1908 (Act V of 1908, for theverification of pleadings.

(1) An electionpetition--

(a) shall contain a concise statement or the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corruptpractice that the petitioner alleges, including as full a statement aspossible of the names of the parties alleged to have committed such corruptpractice and the date and place of the commission of each such practice ; and

(2) The petition shall beaccompanied by a list signed and verified in like manner setting forth fullparticulars of any corrupt or illegal practice which the petitioner alleges,including as full a statement as possible as to the names of the partiesalleged to have committed such corrupt or illegal practice and the date andplace of the commission of each such practice.

(c)shall be signed by the petitioner and verified in the manner laid down In theCode of Civil Procedure, 1908, for the verification of pleadings.

(2) Any schedule orannexure to the petition shall also be signed by the petitioner and verifiedin the same manner as the petition.

(3) The Tribunal may, uponsuch terms as to coats and otherwise as it may direct at any time, allow theparticulars included in the said list to be amended (or order such furtherand setter particulars in regard to any matter referred to therein to be furnished)as may In Its opinion be necessary for the purpose of ensuring a fair andeffectual trial of the petition.

S.90 (5) -- The Tribunal mayupon such terms as to costs and otherwise as it may deem fit, allow theparticulars of any corrupt practice alleged in the petition to be amended oramplified in such manner as may in its opinion be necessary for ensuring afair and effective trial of the petition, but shall not allow any amendmentof the petition which will have the effect of introducing particulars of acorrupt practice not previously alleged in the petition.

11. It appears on a comparison of those sections that the matters contained in sub-paragraph (1) of the old Section 83 have been set out in Clauses (a) and (c) of the new Section 83. The matters contained in Sub-section (2) of the Old Section 83 have been set out in Clause (b) of the new Section 83. The matters contained in Sub-section (3) of Section 83 have been incorporated in Section 90 (5) of the new Act,

It appears to me that there is no substantial difference between the provisions of the old Section 83 and the new Sections 83 and 90 (5). The contents of Sub-section (1) of the old Section 83 and those of Sub-clauses (a) and (c) of Sub-section (1) of the new Section 83 are the same. So are the contents of Sub-section (2) of the old Section 83 and the Clause (b) of Sub-section (I) of the new Section 83.

Both of them require full particulars of a corrupt or illegal practice which the petitioner alleges including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice to be submitted; the only difference being that, whereas in Sub-section (2) of the old Section 83 such particulars have to be set out in a separate list, in Clause (b) of Sub-section (1) of the new Section 83 no such separate list is required to be filed and the particulars mentioned may be set out in the petition itself.

Coming to Sub-section (3) of the old Section 83 and Section 90 (5) of the new Act, I also do not find any material difference between the two regarding the point in question. Under Sub-section (3) of the old Section 83 the Tribunal was permitted 'to allow the particulars included in the said list to be amended' or 'order such further and better particulars in regard to any matter referred to therein to be furnished,' whereas under Section 90 (5) of the new Act the Tribunal may 'allow the particulars of any corrupt practice alleged in the petition to be amended or amplified.'

In the first place, I see no reason as to whythe meaning of the word 'particulars' used in Section 90 (5) should be held to be different from the meaning Of that word used in Sub-section (3)of the old Section 83. In my opinion, the reasons given by their Lordships of the Supreme Court in the case to which I have referred for holding that the word 'particulars' in Section 83 means in stances of corrupt practice would equally applyto Section 90 (5) of the new Act in construingthe meaning of the same word.

In other words, the same principle, which has been laid down by their Lordships in construing the provisions of Section 83 of the old Act would apply in construing the provisions of Section 83 and Section 90 (5) of the new Act. They are substantially the same and I find no reason to hold that the word 'particulars' in Section 83 and Section 90 (5) of the new Act means something different from what was meant by the same word used in Section 83 of the old Act.

In my opinion, the word 'particulars' in Section 83 and Section 90 (5) also means instances of a corrupt practice. As observed by their Lordships of the Supreme Court in the said case, the corrupt practices mentioned in the petition are the grounds, and instances of such corrupt practices are particulars thereof. For instance, if it is alleged in a petition of this kind that the respondent has been guilty of any of the corrupt practices mentioned in Section 123, then he would be setting forth the ground on which he seeks to have the election set aside.

But then he has to give instances of such a corrupt practice and those instances would be the particulars of that ground. It follows therefrom that when it is said that the particulars of a corrupt practice are to be stated, it is meant that Instances of such corrupt practice have to be mentioned. In my opinion, therefore, in construing Section 83 and Section 90 (5) of the new Act, the word 'Particulars' will have to be understood in the same sense in which it was used in Section 83 of the old Act, as construed by their Lordships of the Supreme Court.

If that be so, then the next question which arises is whether or not there is any material alteration in Section 90 (5) of the new Act which would justify the view that further instances of a corrupt practice are not permitted to be given under the said section. On this point Mr. Rajah Iyer laid considerable emphasis in his argument on the use of the word 'amended or amplified' as distinct from the words 'further and better particulars in regard to any matter referred to therein to be furnished' as used in Sub-section (3) or the old Section 83.

He contended that, when it is said that particulars may be amended, it is only meant that whatever particulars have been given -- even if we hold that 'particulars' mean 'instances' --can be corrected. According to him, amending particulars does not mean adding to them in the sense that new particulars or new instances can be given. In other words, it is the same particulars, which have been given, that call be altered by way of amendment and no new particulars can be introduced.

He further contended that the word 'amplified' used in Section 90 (5) of the new Act also suggests that no fresh particulars or instances can be given but what has already been given may be made more clear and fuller in details. Mr. Rajah Iyer, further submitted before us that the last portion of Section 90 (5) which says

'The Tribunal 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'

also supports his contention that new instances of a corrupt practice cannot be given.

12. In my opinion, none of these contentions of Mr. Rajah Iyer can be accepted as sound. In the first place, it should be noted that in Sub-section (3) of Section 83 of the old Act, it was also-provided that the Tribunal may allow the particulars set out to be amended and, as I have already mentioned, their Lordships of the Supreme Court clearly held in the said case of (S) : [1957]1SCR370 (A) that the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended provided the petition itself specifies the grounds or charges and this power extends to new instances to be given.

It should also be mentioned that Section 90 (5) of the new Act has made no change in this respect. In other words, Section 90 (5) has also retained the power for the Tribunal to allow amendments of the particulars of any corrupt practice alleged. So in this respect there is no difference even in language between Sub-section (3) of Section 83 of the old Act and Section 90 (5) of the new Act.

The contention of Mr. Rajah Iyer as now put forth before us on this point was not accepted by their Lordships of the Supreme Court in the said case and I have already mentioned that their Lordships referred to Carrickfergus case (B) with approval in holding that in ordering an application for amending particulars new matters can be included.

13. The result therefore is that on this ground, namely that the Tribunal has power to allow amendment of the particulars which include the power to allow fresh instances to be given, the contention of the petitioners must fail.

14. I am also unable to accept the, other two contentions of Mr. Rajah Iyer. The dictionary meaning of the word 'amplification' is to increase or enlarge. If therefore we hold that the word 'particulars' means 'instances' then the question is what is meant by saying that such instances can be enlarged. In my opinion, when it is said that instances of corrupt practice may be amplified, it means such instances may be increased or, in other words, more instances can be given of such corrupt practice.

That seems to me to be the natural meaning of the expression 'amplified' if it is to be read in connection with the word 'instances.' I concede that if by the word 'particulars' is meant details of facts already stated, then 'amplification' would mean giving more details of those facts. But if by the word 'particulars' is meant 'instances,' then 'amplification of instances'', in my opinion, can only mean 'giving more instances.'

Mr. Rajah Iyer further contended before us that what is stated in Section 90 (5) is that particulars may be allowed to be amplified meaning thereby that amplification is to be of those particulars which are already given. On this basis he contended that when it is said that the particulars can be amplified, it can only mean that the particulars already given may be amplified, that is to say, those particulars may be made fuller in details.

I must concede that there is some ingenuity in this contention but it should be noted that the words used are -- 'particulars of any corrupt practice' and it is such particulars which are to be amplified. If therefore by the word 'particulars of corrupt practice' is meant 'instances of corrupt practice,' then amplification of such particulars would mean amplification of such instances. I am unable to accept this part of Mr. Rajah Iyer's contention.

15. The last contention on this point seems to me to be equally untenable. Mr. Hajah Iyer's contention on this part of his argument really rests on the assumption that the words 'not previously alleged in the petition' governs the word 'particulars.' It is on this assumption that he contends that if instances are not previously alleged in the petition, then such instances cannot be given.

In my opinion, the words 'not previously alleged in the petition' refer to 'corrupt practice' and not to 'particulars.' It seems to me to be quite clear that the effect of Section 90 (5), reading it as a whole, is that, if a corrupt practice has been alleged, then further instances of such corrupt practice can be given but if a corrupt practice has not been alleged in the petition, then by trying to give particulars of a corrupt practice which has been alleged, particulars of a corrupt practice which has not been alleged cannot be introduced. This seems to me to be the true effect of Section 90 (5) of the new Act.

16. In my opinion, therefore, all the contentions of Mr. Rajah Iyer fail and the petitions are dismissed with costs. He allow advocate's fee at Rs. 150/- in each of these petitions.

A.R. Somnath Iyer, J.

17. I agree.

18. Petitions dismissed.


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