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Saeed Ahmad Vs. Murli Dhar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1132 of 1966
Judge
Reported inAIR1971All331
ActsConstitution of India - Article 226; Uttar Prades Town Areas Act, 1914; Uttar Prades Town Areas Rules - Rules 50 and 52; Code of Civil Procedure (CPC) - Order 6, Rule 17; Representation of the People Act, 1951 - Sections 90(2), 100 and 101
AppellantSaeed Ahmad
RespondentMurli Dhar and anr.
Appellant AdvocateS.S. Bhatnagar, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition partly allowed
Excerpt:
civil - elections - rule 50 and 52 of u.p. town areas act, 1914 - amendment of election petition under order 6 rule 17 of code of civil procedure, 1908 - power of tribunal - limitation - within 30 days of date of election - beyond this period not allowed. - - according to him such an amendment is clearly permissible, under the provisions of order 6, rule 17, civil procedure code which gives a very wide discretion to a court to allow amendment of pleadings at any stage and in such manner as may be considered to be just......tribunal had no jurisdiction to allow amendment of an election petition under order 6, rule 17, civil procedure code. learned counsel for the petitioner, however, argued that by seeing the amendment, respondent no. 2 was levelling a new charge of corrupt practice against the petitioner, much beyond the period of limitation within which an election petition could be filed. he contended that in such circumstances, it was not open to the election tribunal to permit the amendment sought for by respondent no. 2. 7. learned counsel for the respondent no. 2, however, argued that according to rule 50 of the government notification laying down the procedure for challenging the election of a chairman of a town area the ground on which the election was being challenged is to be mentioned in the.....
Judgment:
ORDER

H.N. Seth, J.

1. Sayeed Ahmad has filed this petition under Article 226 of the Constitution of India, praying that three orders, dated 1-1-1966, 20-1-1966 and 10-3-1966, passed by the Election Tribunal constituted under the U. P. Town Areas Act, be quashed. Copies of these orders have been filed as Annexures IV, VI and A to the writ petition.

2. Briefly stated, the facts leading to this petition are, that election for the office of Chairman Town Area Committee, Phalawda was held on November 29, 1964, in which the petitioner and respondent No. 2 Alim Uddin were the two contesting candidates. The petitioner having secured 1786 votes as against 1778 votes secured by respondent No. 2, was declared elected. Respondent No. 2 Alim Uddin then filed an election petition callenging the election of the petitioner under Section 8A (4-A) of the Town Areas Act. On 23rd December, 1964, election of the petitioner was challenged on several grounds. One of the grounds, as stated in paragraph 7 (iii) of the petition was, that the petitioner himself and through his agents, workers and supporters procured votes of several voters mentioned in Schedule C by impersonation. It was alleged that the voters mentioned in the schedule were not present at Phalawda on the date of election. In Schedule C names of four such voters were mentioned. The petitioner filed written statement denying the allegations made in the petition.

On 1-1-1968 respondent No. 2 Alim Uddin moved an application for adding the names of seven more persons in Schedule C to the election petition, as persons who were also not present at Phalawda on the date of election and whose votes had been procured by the petitioner, his agents, workers and supporters by impersonation The Election Tribunal without affording any opportunity to the petitioner to contest the amendments proposed, allowed the application for amendment on the very same date on which it was presented i.e., 1-1-1966. When the petitioner came to know about the order made by the Tribunal, he moved an application dated 10-1-1966 for recalling it and to deal with the amendment application after permitting the petitioner to file his objection and after hearing him. The Tribunal by its order dated January 20, 1966 dismissed the petitioner's application dated January 10, 1966 and confirmed the order dated January 1, 1966 by which he had allowed the respondent's application for amendment.

3. Subsequently, the petitioner moved another application before the Election Tribunal contending that it had no jurisdiction to hear an election petitionunder the provisions of the U. P. Town Areas Act. It was contended on his behalf that under the provisions of the Town Areas Act an election petition could be heard only by a 'Judicial Officer'. According to him, there is a class of Judicial Officers which is different from the Presiding Officers of a Civil Court. As the Tribunal was being presided over by a Civil Judge, who was a Presiding Officer of a Civil Court, he was not competent to hear the election petition. This application, was also rejected by the Tribunal by its order dated March 10, 1966 (Annexure A to the petition).

4. The order dated 1-1-1966 (Annexure IV) granting amendment of election petition and the order dated January 20, 1966 (Annexure VI) rejecting petitioner's application dated January 10, 1966 for recalling the order dated 1-1-1966 and confirming the same has been challenged by the petitioner on the ground that the Election Tribunal acted illegally in allowing the amendment without giving an opportunity to the petitioner to file his objections and without hearing him. The order dated January 20, 1966 refusing to recall the order dated January 1, 1966 was erroneous on the face of it and deserved to be quashed.

5. It is true, that the Election Tribunal allowed amendment of the election petition by its order dated 1-1-1966 on the very same day on which the amendment application was moved, without affording any opportunity to the petitioner to object to the proposed amendment. Proceedings in connection with the hearing of the election petition are quasi judicial proceedings and no order on the application for amendment of election petition should have been passed without affording an opportunity to the petitioner to have his say in the matter. The order dated January 20, 1966, however, shows that before confirming the order dated 1-1-1966 allowing amendment, the Tribunal asked the petitioner to state his objection to the amendment required to be made by Alim Uddin, On behalf of the petitioners it was contended that it was not open to the person challenging the election to add 7 more names in Schedule C of the election petition after the period of limitation for filing the same had expired. This objection was rejected by the Tribunal as being devoid of any merits.

It will thus be seen that when the petitioner moved an application for setting aside the order dated 1-1-1966, he was heard in support of his objection to the amendment application. He raised such objections which he desired. Even after hearing the petitioner, the Tribunal was of opinion that the amendment sought for ought to have been allowed, and, therefore the order dated 1-1-1968 was confirmed. In the circumstances it is clear that the petitioner has been given an opportunity to state his objections to the amendment sought to be made in the election petition. He has stated his objectionand has been heard by the Tribunal in support of his objection. After hearing the petitioner, the Tribunal has come to the conclusion that there are no merits in the objection raised by the petitioner, and that the tribunal still was of opinion that the prayer for amendment was rightly allowed. Although, to begin with, the order dated 1-1-1956 was passed without complying with the principles of natural justice, but, subsequently, all that should have been done by the Tribunal has been done and no question of any prejudice to the petitioner on this account now arises. I am therefore, of opinion that the order dated 1-1-1956 as confirmed by the order dated 22-1-1966 need not be interfered with in exercise of extraordinary powers of this Court under Article 226 of the Constitution on the ground that the amendment application moved by the respondent No. 2 has been allowed without following the principles of natural justice and that the Tribunal has made an error apparent on the face of the record by refusing to set aside such an improper order.

6. In view of the decision of this Court in the case of Amir Ullah v. L. P. Nigam, reported in 1956 All LJ 189, learned counsel for the petitioner did not argue that the Election Tribunal had no jurisdiction to allow amendment of an election petition under Order 6, Rule 17, Civil Procedure Code. Learned counsel for the petitioner, however, argued that by seeing the amendment, respondent No. 2 was levelling a new charge of corrupt practice against the petitioner, much beyond the period of limitation within which an election petition could be filed. He contended that in such circumstances, it was not open to the Election Tribunal to permit the amendment sought for by respondent No. 2.

7. Learned counsel for the respondent No. 2, however, argued that according to Rule 50 of the Government Notification laying down the procedure for challenging the election of a Chairman of a Town Area the ground on which the election was being challenged is to be mentioned in the petition within thirty days from the date on which the election is held. The grounds on which an election can be challenged have been stated in Rule 48, Sub-rule (b) of which provides that an election can be quashed on the ground that returned candidate has committed corrupt practice as defined in Rule 49. According to Clause (iii) of Rule 49, if a candidate gives or procures giving of a vote in the name of a voter who is not the person giving such a vote, he commits a corrupt practice.

Learned counsel contended that the grounds pertaining to such corrupt practice have been specified in paragraph 7 (iii) of the election petition. In that paragraph, apart from mentioning the specific corrupt practice the respondent had given four instances in which that corrupt practice waspractised. The amendment sought for did not in any way alter the ground for challenging the election, but by it only further instances of same corrupt practice were being brought to the notice of the Tribunal. According to him such an amendment is clearly permissible, under the provisions of Order 6, Rule 17, Civil Procedure Code which gives a very wide discretion to a court to allow amendment of pleadings at any stage and in such manner as may be considered to be just.

8. It is true that provisions of Order 6, Rule 17, Civil Procedure Code give a very wide discretion to a court to allow amendment of pleadings, although as a general rule, a plaintiff is not to be allowed to amend his plaint by introducing a new cause of action, which, since the date of the plaint has become barred by limitation. As held in the case of Charan Das v. Amir Khan, AIR 1921 PC 50, the Court has jurisdiction to allow amendment of plaint even In such cases. The fact that the claim has since become barred by time is a factor which has to be taken into consideration in determining whether the amendment sought for should be allowed or not. The decision of the Privy Council has been approved by the Supreme Court in the case of Leach and Co. Ltd. v. Jardine Skinner Co. : [1957]1SCR438 . It is, however, to be seen whether the provisions of Order 6, Rule 17, apply to the hearing of an election petition under the Town Areas Act in its full vigour, whether the right to permit amendment under Order 6, Rule 17, Civil Procedure Code, given to an Election Tribunal under the U. P. Town Areas Act, is subject to any restrictions.

9. According to Rule 52, procedure provided in the Code of Civil Procedure in regard to suits shall so far as it is not inconsistent with the rules framed for questioning the election of Chairman of Town Area, and so far as it can be made applicable to be followed in the hearing of election petition. It is, therefore, clear that various provisions of hearing of a suit, as contained in the Code of Civil Procedure, including Order 6, Rule 17, will apply to hearing of an election petition in so far as they do not contravene the provisions of the rules framed for questioning the election of Chairman of a Town Area. The power of amendment under Order 6, Rule 17, Civil Procedure Code, therefore, cannot be exercised in a manner so as to contravene the provision contained in the notification laying down the procedure for questioning the election of a Chairman.

10. According to Rule 50 an election petition specifying the grounds on which the election is to be challenged has to be presented within 30 days of the date on which the election is held. The question that arises for consideration is whether the proposed amendment by the respondent will,if allowed, contravene the provisions of this rule.

11. Similar question arose for consideration before the Supreme Court, in the case of Harish Chandra v. Trilok Singh : [1957]1SCR370 , while considering the provisions of the Representation of the People Act. According to Section 81 of the Representation of the People Act an election petition questioning the election of any candidate is to be presented on the ground mentioned in Sections 100 and 101 within a certain period. Provisions of the Code of Civil Procedure have been made applicable to the hearing of the election petition under Section 90(2) of the Act, which runs as follows:

'Subject to the provisions of this Act and of any 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.'

Provisions of Section 90 (2) of the Representation of the People Act are almost similar to that contained in Rule 52 of the Rules framed for questioning the election of a Chairman under the Town Areas Act.

The Supreme Court approved the decision in the case of Maude v. Lowley, (1874) 9 CP 165 = 43 LJCP 103 and held that the Tribunal has power under Order 6, Rule 17, Civil Procedure Code to order amendment of a petition but the power cannot be exercised so as to permit a new ground or charges to be raised or to so alter the character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred.

12. Facts in the case of (1874) 9 C. P. 165 were that election petition was filed alleging that the successful candidate had employed as paid canvassers residents of the ward and that the election was, in consequence, void. Then an application was filed for amending the petition by alleging that residents of other wards were also similarly employed and that was ordered by Baron Pollock. The correctness of this order was questioned on the ground that on the date of the application for amendment a fresh petition on these allegations would be barred and that, therefore, the Court had no jurisdiction to pass the order which it did.

Lord Coleridge, C. J., observed that Section 21(5) gave power to the Court to amend the petition. That power was subject to the provisions of the Act, that one of these provisions was Section 13(2) which prescribed the period within which an election petition should be filed, that the power of amendment could be exercised only subject to this provision, and that accordingly an amendment which raised a new charge should be rejected if a fresh petition on that charge would be barred on that date. He also observed that the matter was not one of discretion but of jurisdiction.

13. Facts in the case before me are quite similar to those of the case of (1874) 8 CP 165. Here the respondent in his election petition charged the petitioner with having committed corrupt practice by procuring the giving of votes in the name of four voters whose particulars were mentioned in the Schedule C to the petition. He now wants to charge the petitioner by adding that he committed the corrupt practice in relation to seven more persons. The petition, on the basis of allegations and charges sought to be introduced by the amendment application, would have been barred by the rule of limitation contained in Rule 50. As the provisions of the Code of Civil Procedure have been made applicable to the hear-ing of an election petition, in so far as they are not inconsistent with the Rules, the Tribunal had no jurisdiction to grant such an amendment while exercising its power under Order 6, Rule 17, Civil Procedure Code.

14. Learned counsel for the petitioner, however; did not advance any argument to show that the order of the Tribunal dated March 10, 1966 (Annexure A to the petition) holding that a Civil Judge has jurisdiction to hear election petition challenging the election of a Chairman of a Town Area, is erroneous. In my opinion, the Tribunal has correctly interpreted the Rules and has rightly held that an election petition challenging the election of Chairman of a Town Area can be heard by a Civil Judge and that there is no defect in that order.

15. As I have come to the conclusion that the order of amendment made by the Tribunal on 1-1-1966 as confirmed by the order dated 20th January, 1966 is without jurisdiction, both the orders deserve to be quashed.

16. In the result, I allow the petition in part. I quash the orders dated 1-1-1966 and 20-1-1906 (Annexures IV and VI to the petition). I, however, reject the petition in so far as the prayer for quashing the order dated March 1, 1966 (Annexure A to the petition), is concerned. The stay order made in the case is discharged. Since the petitioner has succeeded only in part, I direct the parties to bear their own costs.


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