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Subodh Kr. Beuria Vs. Bhairab Ch. Mohanty - Court Judgment

LegalCrystal Citation
SubjectElection
CourtOrissa High Court
Decided On
Case NumberElection Petn. No. 6 of 1971
Judge
Reported inAIR1972Ori169
ActsRepresentation of the People Act, 1951 - Sections 77 and 86(5); Representation of the People (Amendment) Act, 1956
AppellantSubodh Kr. Beuria
RespondentBhairab Ch. Mohanty
Appellant AdvocateB. Misra and ;S.C. Roy, Advs.
Respondent AdvocateB.K. Ray, ;B.H. Mohanty, ;S.C. Mohanty and ;R. Mohanty, Advs.
Cases Referred(Kashinath v. Kudsia Begum
Excerpt:
.....in the use of the vehicle orc 7646 after the word 'vehicle' in the first line at page 4 of the amendment petition. we are, therefore, satisfied that there is no difference in the language of subsection (5) of section 90 which militates against the application of the decision of their lordships of the supreme court. but if he has alleged a corrupt practice, he is entitled, on showing good cause and in accordance with law of procedure, to give instances of that corrupt practice. omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. and exhorted the voters present to vote for him and to see that he is elected in which case he will try his best to help the club financially......of the ground or whether by allowing the amendment, there will be a change in or addition to the ground alleged in the election petition. in the proposed amendment also, the substance of the allegation is that the respondent committed the corrupt practice by making payment by cheque through an agent and promising to pay the balance towards the price of the mike. the proposed amendment does not amount to making an allegation that the corrupt practice was committed by the agent. the proposed amendment only seeks to furnish further particulars by citation of additional instances and amplification of the ground already taken. the second amendment proposed refers to addition of alleged user of certain vehicles, the expenses of which were not included in the return of election expenses, as.....
Judgment:
ORDER

A. Misra, J.

1. The petitioner filed the application for amendment of his election petition on 20-9-71. The respondent filed his counter on 7-10-71. When this matter came up for hearing on 8-10-71, petitioner filed another application for amendment of certain particulars in the amendment petition on the ground of inadvertent omission and typographical error. Both parties were heard on that day in the matter of the two amendment petitions filed and orders were reserved. On 22-10-71, respondent filed a petition for amendment of his counter to the first amendment petition on the ground that it is necessitated in view of the application filed on 8-10-71.

2. The petitioner Subodh Kumar Beuria claiming to be an elector in the Cuttack City Assembly constituency filed the election petition challenging the election of the respondent. The result of the election was declared on 10-3-71 under Section 66 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act). The election petition was filed in this Court on 23-4-71 within the period as prescribed under Section 81(1) of the Act. The respondent filed his written statement on 9-8-71. Issues were settled on 23-8-71.

3. By the application filed by the petitioner on 8-10-71, he seeks to make two amendments in the original amendment petition. The first relates to correction of the registration number of one of the vehicles mentioned at page 3 of the the amendment petition by making it ORC 3183 in the place of ORC 3188. This is said to be a typographical error. The second relates to addition of the words 'as well as the expenses incurred in the use of the vehicle ORC 7646 after the word 'vehicle' in the first line at page 4 of the amendment petition. By this, user of one more vehicle is sought to be added to those already referred to in the amendment petition. If the amendment petition is to be allowed addition of one more vehicle would not make 'any difference and if the amendment is not to be allowed even by amending the petition, nothing material can be achieved. Therefore, in my opinion, there can be no objection to allow the application dated 8-10-71 permitting amendment of the amendment petition as prayed for.

4. The primary question for consideration is whether the amendments sought by the application dated 20-9-71 are to be allowed. From the averments of the election petition, it appears that the election of the respondent has been assailed under Section 100(1) (b), (d) (ii) and (iv).

5. It is not seriously disputed that the Code of Civil Procedure applies and the Court has power to allow amendments. In two decisions of the Supreme Court reported in AIR 1957 SC 444 and AIR 1969 SC, 677, their Lordships indicated that the tribunal has power under Order 6, Rule 17, C. P. C. to allow amendments, but this is subject to the provisions of the Act and the rules made thereunder. In dealing with the question of exercise of powers by the Court under Order 6, Rule 17 or Order 1, Rule 10, C. P. C., in the latter decision, it is observed:

'The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder.'

6. It is urged on behalf of the petitioner that the proposed amendments do not amount to adding any fresh grounds in assailing the validity of the election. They are more in the nature of amplification of the grounds of corrupt practice already alleged and citation or furnishing of additional particulars regarding the said grounds. Besides traversing the correctness of the facts averred, Mr. Ray, learned Counsel for respondent, on the other hand, contends that without the proposed amendments, the petition is a defective one entailing summary dismissal under Section 86(1), and therefore, the proposed amendments should not be allowed beyond the period of limitation in respect of such a defective petition. It is also urged by him that one of the amendments will have the effect of altering the nature of the grounds itself.

7. To appreciate the merits of the respective contentions, it is necessary to consider the relevant provisions of the Act on which validity of an election can be questioned. Section 81 of the Act provides for challenging any election on one or more of the grounds specified in Sections 100 and 101, For the present purpose, Section 101 is not relevant. The first subsection of Section 100 enumerates the grounds for declaring any election to be void. These include corrupt practices committed by the candidate, his election agent or any person with the consent of the returned candidate or his agent and non-compliance with the provisions of the Act or any rules or orders made under it. One of the proposed amendments relates to the grounds of corrupt practice and the other contravention of the provisions contained in Section 77 of the Act. There are many kinds of corrupt practices which are defined in Section 123 of the Act. Paragraph 10 (iii) of the election petition alleges commission of a particular kind of corrupt practice by the candidate. Section 83 of the Act which provides for the contents of an election petition lays down that it shall contain a concise statement of the material facts on which the petitioner relies, and further, he must 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 commission of each such corrupt practice. Section 86(5) runs as follows:

'86 (5). The High Court may, upon such terms as to costs or 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.'

8. According to learned Counsel for petitioner, the grounds having already been alleged in the election petition in paragraphs 10 (iii) and 21, what is now sought to be added by way of amendment is furnishing of further particulars or amplification of the grounds already given and not addition of a ground or change of the ground in assailing the validity of the election. In this connection, he refers to Section 83(3) of the old Act which was replaced as Sub-section (5) of Section 90 of the Amending Act of 1956 and embodied as Section 86 (5) of the 1966 Act are identical in terms, except that in the place of the word 'tribunal' the words 'High Court have been substituted. The scope and interpretation of Section 83(3) or the original Act came up for consideration before their Lordships of the Supreme Court in the decision reported in AIR 1957 SC 444 (Harish Chandra v. Triloki Singh). After examining the relevant provisions, their Lordships in paragraph 23 of the Judgment observed as follows:

'The result of the foregoing discussions may thus be summed up: (1) 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, (2) The tribunal has power under Order 6, Rule 17 to order amendment of a petition but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred.'

9. From the aforesaid pronouncement, it is manifest that under Section 83(3) of the original Act, new instances of corrupt practice in respect of which a ground has already been taken in the petition could be furnished subsequently. The next question is whether any change in the legal position was brought about by the amendment in 1956 in making a corresponding provision in Sub-section (5) of Section 90. In a decision of the Madhya Pradesh High Court reported in 34 Ele LR 72 = (AIR 1958 Madh Pra 175) Babulal Sharma v. Brijnarain Brajesh, this aspect came up for consideration and their Lordships observed:

'We are, therefore, satisfied that there is no difference in the language of Subsection (5) of Section 90 which militates against the application of the decision of their Lordships of the Supreme Court.'

Accordingly, it was held that no person who has not alleged corrupt practice, is entitled to give particulars or instances; but if he has alleged a corrupt practice, he is entitled, on showing good cause and in accordance with law of procedure, to give instances of that corrupt practice. In a subsequent decision reported in AIR 1969 SC 1201, (S.N. Balakrishna v. Fernandez), while dealing with the question of amendment, the Court explained the difference between the words 'material facts' and 'particulars' occurring in Section 83(3) as follows:

'What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct..... The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action.'

After explaining the difference between the two, their Lordships examined the scope of Sub-section (5) of Section 86 and observed:

'The power of amendment is given in respect of particulars but there is a prohibition against an amendment 'which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.' One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice.'

10. The two decisions of the Supreme Court -- one reported in AIR 1957 SC 444 which dealt with the old Section 83(3) and the other reported in AIR 1969 SC 1201, which deals with the present Section 86(5)--make the legal position clear that if the allegations in the election petition relating to any corrupt practice amount to a complete cause of action or ground, subsequent amendment by way of furnishing further instances or amplification of the ground is permissible. If a petitioner has omitted to allege facts constituting a complete cause of action of illegal or corrupt practice, he cannot be permitted to give particulars of the same by way of subsequent amendment. In the decision reported in AIR 1969 SC 1201, this distinction is illustrated by the following observations:

'If for example the charge is bribery of voters and the particulars give a few instances other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa.'

11. Learned Counsel for respondent refers to the decisions reported in AIR 1969 SC 677, (Mohan Raj v. Surendra Kumar) and AIR 1971 SC 372, (Kashinath v. Kudsia Begum), in support of his contention that a defective petition cannot he allowed to be amended. The facts in both these cases are entirely different and not relevant to the point involved here. In the former case, the election petition was dismissed for non-compliance with Section 82(b) in not impleading one of the candidates who had withdrawn his nomination, but against whom allegation of corrupt practice had been made. By the amendment, an attempt was made to withdraw his name to save the petition. In those circumstances, it was held that an amendment of a defective petition cannot be allowed. In the latter decision, a similar defect occurred and the proposed amendment was that the corrupt practice was committed by one Sanitary Inspector in the company of a candidate who had withdrawn the allegations in the original petition having attributed corrupt practice to such candidate who had not been impleaded as a party. These are cases where the petitions were defective and entailed peremptory dismissal and not cases where by the proposed amendment further particulars or amplification of a ground already alleged was sought to be made.

12. The next question is whether in the circumstances of the present case, there is any legal bar to allowing the amendments. In paragraph 10 (iii) of the election petition, the allegation is to the following effect:--

'That the opposite party attended a meeting of the 'Youth-club' at Dewanbazar on 2-3-71 at 7.30 p. m. and exhorted the voters present to vote for him and to see that he is elected in which case he will try his best to help the club financially. He immediately promised a mike and paid money for it.

Under Section 123(1), 'bribery' has been defined as any gift, offer or promise by a candidate or his agent or any other person with the consent of a candidate or his election agent of any gratification to any person whomsoever with the object directly or indirectly of inducing, etc. The averments in paragraph 10 (iii) of the election petition contain allegations of a complete cause of action, i. e., a corrupt practice mentioning the date, time and place where the respondent is alleged to have promised some gratification, if the electors voted for him. The point is whether the proposed amendment is intended to furnish further particulars or amplification of the ground or whether by allowing the amendment, there will be a change in or addition to the ground alleged in the election petition. In the proposed amendment also, the substance of the allegation is that the respondent committed the corrupt practice by making payment by cheque through an agent and promising to pay the balance towards the price of the mike. The proposed amendment does not amount to making an allegation that the corrupt practice was committed by the agent. The proposed amendment only seeks to furnish further particulars by citation of additional instances and amplification of the ground already taken. The second amendment proposed refers to addition of alleged user of certain vehicles, the expenses of which were not included in the return of election expenses, as required under Section 77 of the Act. Already in paragraph 21, the allegation contains a charge of violation of the requirements of Section 77 by non-inclusion of the expenses of certain vehicles in the return of election expenses. By the amendment, a few more instances are sought to be added to it. Therefore, there can he no legal bar to such an amendment.

13. Respondent filed his written statement on 9-8-71 and the issues were settled on 23-8-71. The petitioner could have filed this amendment petition much earlier. However, considering the fact that the particulars sought to be added by way of amendment are similar in nature to those already alleged in the petition, the respondent will not be seriously prejudiced, if the proposed amendments are allowed. Accordingly I order that the amendments as prayed for in the petition dated 20-9-71 be allowed together with the corrections as prayed for in the petition dated 8-10-71, subject to the petitioner paying Rs. 200/-(two hundred) as costs to the respondent within ten days, failing which, the amendment petition shall stand rejected. The counter of the respondent be also allowed to be amended as prayed for in his petition dated 22-10-71.


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