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Hari Raj Singh Vs. Shah Nawaz Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3321 of 1962
Judge
Reported inAIR1964All196
ActsRepresentation of the People Act, 1951 - Sections 83(1) and 90(5)
AppellantHari Raj Singh
RespondentShah Nawaz Khan and ors.
Appellant AdvocateM.A. Ansari, Adv.
Respondent AdvocateK.L. Misra, Adv. General
DispositionPetition allowed
Excerpt:
election - corrupt practice - sections 83(1) proviso, 90(5) of representation of people act, 1951 - petition filed for quashing of election on ground of corrupt practice irregularity can be removed - there is no inconsistency between sub-section(5) of section 90 and the proviso added to section 83(1) - held, the court to harmonize various provisions of act. - - in paragraph 14 he has certainly observed that the petitionerhaving failed to give in the original petition the namesof parties alleged to nave committed corrupt practice andthe date and place of commission of each such practice asrequired by section 83 of the representation of the people actcannot now be permitted to amend the original petition bygiving the said particulars......of sri shah nawaz khan, respondent no. 1, on the ground that the said respondent committed corrupt practices as defined in section 123(3) of the representation of we people act through his agents, supporters and workers. the corrupt practices have been enumerated in sub-paragraphs (a) to (j) of paragraph 12 of the petition. a written statement on behalf of respondent no. 2 was filed on 28th august 1962. the present petitioner filed an application for amendment of the particulars of the corrupt practices alleged in the petition.these amendments are narrated in sub-paragraphs (a) to(z) of paragraph 4 and also in paragraph 8 of the application. this application was opposed on benalf of respondentno. 1 and one of the objections which has prevailed withthe learned election tribunal,.....
Judgment:

Mithan Lal, J.

1. This writ petition filed under Article 226/227 of the Constitution by one of the electors arises out of an election matter. The petitioner has prayed; (1) to issue a writ or certiorari, order or direction in the nature of ceniorari to quash the order of the Election Tribunal, respondent No. 3, dated 24th October 1962; (2) to issue a writ, order or direction in the nature of mandamus directing the Election tribunal to decide the amendment application of the petitioner on merits; and (3) to issue any other suitable writ, order or direction.

2. Briefly stated the facts are, that the petitioner, Sri Hart Raj Singn, who $ an elector of 81 Meerut LOK Sabha Constituency, tiled an election petition questioning the election of Sri Shah Nawaz Khan, respondent No. 1, on the ground that the said respondent committed corrupt practices as defined in Section 123(3) of the Representation of we people Act through his agents, supporters and workers. The corrupt practices have been enumerated in sub-paragraphs (a) to (j) of paragraph 12 of the petition. A written statement on behalf of respondent No. 2 was filed on 28th August 1962. The present petitioner filed an application for amendment of the particulars of the corrupt practices alleged in the petition.

These amendments are narrated in sub-paragraphs (a) to(z) of paragraph 4 and also in paragraph 8 of the application. This application was opposed on benalf of respondentNo. 1 and one of the objections which has prevailed withthe learned Election Tribunal, was that according to theproviso added to Section 83 in 1961 every petition is requireto be accompanied by an affidavit in support of the allegations of the corrupt practices and the particulars thereor.consequently this provision operated as a bar to any subsequent amendment of the particulars of corrupt practicesgiven in the petition. It was also urged that this provision of law has impliedly repealed Sub-section (5) of Section 90. Thelearned Election Tribunal framed the following issue onthis question:

'Whether the provision of the affidavit brought in by the amendment of Section 83 of the Representation of the People Act operates as a bar for any subsequent amendment of the petition by the introduction of particulars?'

3. The learned Member of the Election tribunal did not consider the amendment application on merits and held that 'the mandatory provision of affidavit introduced in Section 83 abrogates the provisions of Section 90(0). Section 90(5) should be deemed to have been impliedly repealed.' The Election Tribunal rejected the amendment application. It is this order of the Election Tribunal which has been questioned before us by means of this writ petition.

4. sri M. A. Ansari, advocate, who has appeared on behalf of the petitioner, has contended that there is no inconsistency or repugnancy between Sub-section (5) of Section au and the proviso to Section 83; and that the proviso, which was added in 1961, by Section 18 of Amending Act 40 of 1961, has not brought about any change in the existing law. If only requires that in addition to the verification of the election petition the petitioner, who questions the election, should also file an affidavit in support of the particulars of any corrupt practice. In the instant case such an affidavit was filed. The said proviso does not in any way anrogate the provisions of Sub-section (5) of Section 90. In the alternative if has been submitted that when there is nothing in the Representation of the People Act to show any intention of the Legislature that Sub-section (5) of Section 90 was repealed as a whole or even partly any enactment of the proviso to Section 83, the presumption is against the repeal. In any case while interpreting the various provisions of any statute the Court should not adopt a construction which tends to make any part of the statute meaningless or ineffective and an attempt should always be made to reconcile the relevant provisions so as to advance the remedy intended by the statute.

Sri K. L. Misra, learned Advocate General, who appeared on behalf of the respondent, has conceded before us that Sub-section (5) of Section 90 has not been repealed as a whole. To put it in his own words, he conceded 'that the power of amendment under Sub-section (b) of Section 90 of the Act can be used only in amending or amplifying a particular of a corrupt practice already given in the petition. Such a power is not available for introducing any new particular and the conflict will only arise when by amendment a new particular is sought to be introduced and for this purpose he has said emphasis on the expression 'the petition snail also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars tuereot'. hiS contention is that by the amendment application, which was presented on behalf of the petitioner, new particulars, such as names of parties, date and place of the alleged corrupt practice, and even some new corrupt practices, were sought to be added which was not permissible because it could only be done by means of an affidavit accompanying the petition.

5. The question, which arises for consideration in this petition, is whether there is any inconsistency or repugnancy between the proviso to Section 83 and Sub-section (b) of Section 90 which cannot be reconciled and which has the effect of an implied repeal of the provisions of Sub-section (5) of Section 90.

6. Section 90, which lays down the procedure before the Tribunal, states in Sub-sections (1) and (2) that the provisions of the Code of Civil procedure and of the Indian evidence Act shall apply subject to the previsions of the Act and the Rules made thereunder. Sub-section (3) gives the Tribunal a power to dismiss the election petition, under certain circumstances, while Sub-section (4) empowers the Tribunal to add a person as a respondent, in case he was a candidate and was not already a respondent. Sub-section (5), which is material for our purposes, lays down as follows:

'The Tribunal may, upon such 1erms 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'.

Sub-section (6) only relates to the trial of the election petition in an expeditious manner and we are not concerned with the provisions of that sub-section.

7. Section 83 which relates to the contents of the election petition lays down:--

'83 (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 C. P. C. 1908 (5 of 1908), For the verification of pleadings;

Provided that where the petitioner alleges any corrupt practice the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation or such corrupt practice and the particulars thereof.

2. Any schedule or annexure to the petition snail also be signed by the petitioner and verified in the same manner as the petition'.

8. For the purposes of this petition the important provision is Clause (b) of Sub-section (1) of Section 83 read with the proviso. That clause provides that 'an election petition shall set forth full particulars of any corrupt practice the petitioner alleges including as full a statement as possible of the names of the parties etc'. Co-related with this provision of law is the provision of Section 123(3) of the Act which sets out the corrupt practices for the purposes of the Act. The Amending Act No. 40 of 1961 has not introduced any changes in Clause (b) of Section 83(1). The only amendment which had been made is the addition of a proviso which has been mentioned above. That means the raw which existed in relation to Clause (b) of Section 83(1) prior to the amendment continued to so exist and the Legislature in its wisdom by addition of the proviso only required that in support of the alleged corrupt practices the petition should be accompanied by an affidavit in the prescribed form. This provision has been made over and above the provision of verification given in Clause (c).

Whatever amendment of the election petition was permissible under Sub-section (5) of Section 90 of the Act still remained permissible and the Jearned Member of the Election Tribunal was wrong in thinking that the proviso has introduced any inconsistency or repugnancy with the provisions of Section 90 (5). It was also not the argument of the learned Advocate General who represented the respondent that there is any unqualified repugnancy between the provisions of Sub-section (5) of Section 90 and the provisions of Section 83(1)(b) read with proviso. The argument of the learned Advocate General goes only to this extent that after introducing a proviso in Section 83 the Election Tribunal is no more possessed of a power for introducing a new particular as according to him such a particular, which was not accompanied by an affidavit in the prescribed form along with the election petition, could not be brought on record through an amendment. To us this argument appears to be more fallacious than real because the former power of amendment or amplification of the particulars of any corrupt practice has in no way been affected by the addition of proviso to Section 83(1). The argument of the learned Advocate General can hardly be accepted.

9. As regards the scope of Sub-section (5) of Section 90 in relation to Section 83(1)(b) of the Act, the pronouncements of their Lordships of the Supreme Court in the cases of S. M. Banerji v. Sri Krishna Agarwal, 22 Ele. lR 64: (AIR 1960 SC 368) and Balwan Singh v. Laksnmi Narain, 22 Ele. LR 273: (AIR 1960 SC 770) are not at all affected by the addition of the proviso to Sub-section (1) of Section 83. Their Lordships laid down that under Sub-section (5) of Section 90 of the Act the Tribunal is authorised to allow 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.

It has already been stated earlier that by adding the proviso the legislature introduced only the requirement of filing an affidavit along with the election petition in support of the allegations of any corrupt practice and the particulars thereof. The proviso neither adds anything to Clause (b) of Sub-section (1) of Section 83 nor subtracts anything from that provision. It only lays down the manner of verification of the corrupt practice and Its particulars. If any of the particulars of corrupt practice could be amended or amplified by exercise of the power under Sub-section (5) of Section 90, that power still vests In the Tribunal. To our mind there is absolutely no inconsistency between Sub-section (5) of Section 90 and the proviso added to Section 83(1) of the Act and so there is no question of any Implied repeal.

10. This view is further supported by the tact that the Legislature, while inserting the proviso to Section 83(1), did not consider It necessary to make any consequential changes in Section 90(5) of the Act. If the Legislature thought that there was any repugnancy or inconsistency such an amendment would have been made. This shows the Intention of the Legislature against the argument of implied repeal, on the contrary, it raises a presumption against any intention to repeal wholly or partially Section 90(5) of the Act

11. We do not agree with the argument of the learned Advocate General that because an affidavit is required to be filed along with the election petition, under the new proviso, no subsequent amendment as contemplated by Section 90 (5) of the Act could He made. The requirement of filing an affidavit was Intended to avoid reckless allegations of corrupt practices so that the person who made the allegations should be held responsible and may be visited with penal consequences if it was found that the allegations were incorrect. The introduction of the proviso in Section 83(1) does not bring about any change in the substantive law laid down in Clause (b) of Sub-section (1). It only relates to a. procedural matter and to our mind the power of amendment given to the Tribunal by Sub-section (5) of Section 90 of the Act remains unaffected. Under the existing law a petitioner cannot introduce any corrupt practice by way of amendment or by calling it an amplification, but he is certainty entitled to seek amendment or amplification of the particulars of the alleged corrupt practice if that was necessary for ensuring a fair and effective trial of the petition.

To us it appears that on a true construction of the two provisions of law no anomalous results follow and the provisions have to be given effect to as they stand. The learned Election Tribunal was wrong in holding that Section 90 (5) of the Act has been impliedly repealed by the proviso added to Section 83(1).

12. We may, however, also observe that if on a true construction of two provisions of the same statute two views are possible, one resulting in an anomaly and the other in harmony it is the duty of the Court to adopt the latter view and not the former. The Court in such cases should make an attempt to harmonise the various provisions of the Act and reconcile them, if possible, instead of making the provisions inconsistent or repugnant to each other. In this behalf we may refer to the observations of the Supreme court in the case of N. T. Veluswami Thevar v. G. Raja Nafnar, AIR 1959 SC 422 at p. 427:

'It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other, not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies'.

We nave already pointed out that the provisions of Sectioin 90(5) and the proviso to Section 83(1) are in no way inconsistent or repugnant to each other; but even if they had been, the view which we have taken would make the provisions consistent. It appears to us that there has been no implied repeal of Sub-section (5) of Section 90 by the addition of the proviso to Section 83(1) of the Act. The learned member of the Election Tribunal committed an error in thinking otherwise.

13. The learned member of the Election Tribunal hasnot considered the amendment application on merits at all.In paragraph 14 he has certainly observed that the petitionerhaving failed to give In the original petition the namesof parties alleged to nave committed corrupt practice andthe date and place of commission of each such practice asrequired by Section 83 of the Representation of the People Actcannot now be permitted to amend the original petition bygiving the said particulars. But this observation cannot betreated to have decided the amendment application onmerits because the whole paragraph is qualified by theopening expression 'in view of the above.' In the lastparagraph the learned member further observed that It wasnot necessary to consider which of the particulars mentioned in the application for amendment are by way ofintroduction of corrupt practice not previously alleged. ascrutiny of the amendment application should have beenmade by the learned member of the Tribunal. The orderpassed by the Tribunal must, therefore, be quashed and nobe directed to proceed with the amendment applicationaccording to law.

14. He allow this petition and quash the order of theElection Tribunal dated the 24th October 1962 dismissingthe amendment application of the petitioner. We furtherdirect that the Election Tribunal shall dispose of thatapplication according to law. we make no order as to costs.


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