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TMI Blog1956 (12) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... llants had committed a number of corrupt practices, and prayed that the election might be declared wholly void. The appellants filed written. statements denying these allegations, and on the pleadings, issues were framed on January 17, 1953. Then followed quite 'a spate of proceedings, consisting of applications for framing of fresh issues for better particulars and for amendment of the election petition, to which a more detailed reference will presently be made. As a result of these proceedings, it was not until September, 1954, that the hearing of the petition began On March 23, 1955, the Tribunal delivered its judgment and, by a majority, it set aside the election on two grounds, (1) that the appellants had obtained the assistance of four village officers, Mukhias, in furtherance of. their election prospects and had thereby contravened s.123(8) of the Act; and (2) that the first appellant had employed for payment in connection with high election two persons in addition to' the number permitted by Rule 118 read with Schedule VI, 'namely, Ganga Prasad and Viswanath Pande, and had there by infringed s. 123(7) of the Act. Before us, the appellant's dispute the corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the support of the district officials. There was no list of particulars attached to the petition as provided in s. 83 (2) of the Act. On December 15, 1952, the first appellant filed his written statement, and therein he stated with reference to para 7(c) that it was "wrong and denied that the answering respondent in furtherance of his election enlisted the support of any government servant." He also stated that the allegations were not accompanied by a list, and were vague and lacking in particulars and were liable to be struck off. The written statement of the second appellant filed on December 20, 1952, was also on the same lines as those of the first appellant. Respondent No. 4, who was' a defeated candidate and supported the respondent herein, filed a written statement on December 3, 1952, wherein he alleged that the appellants had obtained services of village officers, such as Lambardars and Sarpanches in furtherance of their election prospects. Respondent No. 9 who was another defeated candidate also filed a written statement on the same day, adopting the allegations in the statement of the fourth respondent adding Mukhias to the list of village officials whos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of respondents Nos. 1 and 2. It mentioned for the first time the names of the Mukhias whose assistance the appellants have been held to have obtained. This application was opposed by -the appellants on the ground that the amendment did not fall within s. 83(3),that, the matters sought to be introduced thereby were new charges, and if admitted, they would alter the very character of the petition, and that it should not be granted, as a fresh petition on those allegations would be barred on that date. It should be mentioned that oh January 22, 1953, respondent No. 4 had filed an application to raise additional issues on his averments that the appellants had obtained assistance from the village officers. That application was also contested by the appellants. It would appear that this application and the amendment petition were heard together. On November 10, 1953, the Tribunal by a majority passed an order dismissing the application of the fourth respondent for additional issues. 'On November 28, 1953, it allowed, again by a majority, the application of the respondent for amendment observing that the matters sought to be introduced were merely particular in respect of the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Act V of 1908), to the trial of suits. 90 (4). Notwithstanding anything' contained in s. 85, the Tribunal may dismiss an election petition which does not comply with the provisions of s. 81,a. 83 or s. 117. 92.T he Tribunal shall have the powers, which are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of, the following matters: (a) discovery and inspection; (b) enforcing the attendance of witnesses and requiring the depositor their expenses; (c) competing the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses, -and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of ss. 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)." Now, we start with this that s. 83(3) grants a power to the Tribunal to amend particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on may be set aside, including the commission of the corrupt practices mentioned in s. 123 of the Act, and quite clearly it is the different categories of Objections mentioned in s. 100, sub-ss. (1) and (2), S. 101 and s. 123 that constitute the grounds mentioned in s. 81(1). Then we come to s. 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 s. 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 s. 83(2) has no application, and the requirements of s. 83(1) are satisfied when the facts relating to those objections are stated. The facts to be stated : un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing further to be stated in the petition than appears here." With reference to the alternative prayer, it was held that an order that the particulars be furnished three days prior to the trial was a proper one to be passed. A similar decision was given in the Greenoch Election Case, a report of which is given in a footnote at page 150 of Beal v. Smith. These decisions establish that the requirement as to statement of grounds and facts is satisfied when the charge on which the election is sought to be set aside is set out in the petition, that the fare to give therein particulars of corrupt and illegal practices on which it is founded is not fatal to its maintainability, and that it is sufficient if the particulars are ordered to be furnished within a reasonable time before the commencement of the trial. On the same reasoning, the conclusion should follow that s. 81 (1) and a. 83 (1) are complied with, when the grounds on which the election is sought to be set aside, are stated in the petition, those grounds being, as already stated, the matters mentioned in s. 100, sub-ss. (1) and (2), s. 101 and s. 123, which is attracted by s. 100 (2) (b), and that the particulars in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the list, and that, therefore, an order permitting inclusion of new instances is outside the purview of s. 83(3). The assumption underlying this contention is that the word "matter" in s. 83 (3) means the same thing as "particulars". We see no reason why we should put this narrow construction on the word "matter". That word is, in our opinion, of wider import than particulars, and would also comprehend the grounds on which the election is sought to be set aside. If the construction contended for by the appellant is correct, the relevant portion of s. 83 (3) will read as " further and better particulars in regard to any particulars referred to therein", and that does not appear to us to be either a natural or a reasonable reading of the enactment. Having regard to the scheme of the Act stated above, we think that s. 83 (3) is intended to clothe the Tribunal with a general power to allow not merely an amendment of particulars already given but also inclusion of fresh particulars, pleading new instances, subject to the condition that they are in respect of a ground set out in the petition. This is in accordance with the law and practice obtaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the trial of suits." Now, in A. G. v. Sillem, [1864] 10 H.L.C. 704,723; II E.R. 1200, 1209 it was stated by Lord Westbury that the word "practice" and it means, as observed in Poyser V. Mixors, [1881]7 Q.B.D. 329,333 the same - thing as procedure- denotes " the rules that make or guide the Curcus cirise, and regulate the proceedings in a cause within the walls or limits of the Court itself ". And these proceedings include all ,steps, which might be taken in the prosecution or defence thereof, including an application for amendment. In Maude v. Lowley, (1874) L.R. 9 CP. 165. 172 the point arose for decision whether the power conferred on the Election Court by s. 21(5) of the Corrupt Practices (Municipal Elections) Act, 1872, to try the petition, subject to the provisions of the Act, as if it were a cause within its jurisdiction, carried with it a power to order amendment of the petition. It was held that it did. That precisely is the point here. But it is contended for the appellants that O. VI, r. 17 cannot be held to apply to proceedings before the Tribunal by reason of s. 90 (2), because (1) under that section, it is only the trial of the election pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ages prior to the hearing. Section 88 again provides that the trial is to be held at such places as the Election Commission may appoint. The trial here must necessarily include the matters preliminary to the hearing such as the settlement of issues, issuing directions and the like. After the petition is transferred to the Election Tribunal under s. 86,, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement ; issues have to be settled. If 'trial' for the purpose of s. 90(2) is to be interpreted as meaning only the hearing, then what is the provision of law under which the Tribunal is to call for written statements and settle issues ? Section 90(4) enacts that when an election petition does not comply with the provisions of s. 81, s. 83 or s. 117, the Tribunal may dismiss it. But if it does not dismiss it, it must necessarily have the powers to order rectification of the defecte arising by reason of non-compliance with the requirements of s. 81, s. 83 or section 117. That not being a power expressly conferred on it under s. 92 can only be sought under 'Is. 90(2), and resort to that section can be had on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to do under s. 90(2). The question of power arises only with reference to the order to be passed on the petition by the Tribunal. Is it to be held that the presentation of a petition is competent, but the passing of any order thereon is not? We are of opinion that there is no substance in this contention either. (4) The last contention is based on the provision in s. 90(2) that the procedure prescribed in the Code of Civil Procedure is to apply subject to the provisions of the Act and the Rules. It is argued that s. 83(3) is a special provision relating to amendments, -and that it must be construed as excluding O. VI, r. 17. The result, according to the appellants, is that if an amendment could not be ordered under s. 83(3), it could not be ordered under O. VI, r. 17. This contention appears to us to be wholly untenable. The true scope of the limitation enacted in s. 90(2) on the application of the procedure under the Civil Procedure Code is that when the same subject-matter is covered both by a provision of the Act or the rules and also of the Civil Procedure Code, and there is a conflict between them, the former is to prevail over the latter. This limitation cannot operate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t case, a petition to set aside an election was filed without impleading one of the candidates, Baijnath, who had been nominated but had withdrawn -from the contest. That was against s. 82 of the Act. The respondent then applied for an order dismissing the petition on the ground that it could not go on in the absence of Baijnath. The Tribunal held on this petition that the non-joinder of Baijnath was not fatal to the maintainability of the petition, and passed an order directing him to be impleaded. This order was challenged on the ground that there was no power in the Tribunal to order a new party to be impleaded. But this Court repelled this contention, and held on a review of the provisions of the Act including s. 90(2) that the Tribunal had the power to pass the order in question under O. 1, rr. 9, 10 and 13. This is direct authority for the position that trial for purposes of s. 90(2) includes the stages prior to the hearing of the petition, and the word I procedure' therein includes power to pass orders in respect of matters not enumerated in s. 92. In Sitaram v. Yograjsingh, A.I.R. [1953] Bom. 293 it was held that 'Procedure' in s. 90(2) and I powers' in s. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cised 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. This was followed in Clark v. Wallond, (1883) 52 L.J.Q.B.321. In Birbeck and others v. Bullard, (1885-86) 2 Times Law Reports 273 the application was to amend the petition by adding a new charge, and it was held the that could not be done after the expiry -of the period of limitation fixed in the Act for filing an election petition, and the decision was put on the ground that the power to grant amendment was "subject to the provisions of the Act." On these authorities, it is contended for the appellants that even if the Tribunal is held to possess a power to order amendments generally under O. VI, r. 17, an order under that Rule cannot be made when a new ground or charge is raised, if the application is made beyond the period of limitation prescribed for filing election petitions. The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under O. VI, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re in a position to enlist the support of Government servants. It does not amount to an averment that, in fact, they so enlisted their support. It is argued for the respondent that the allegation in para 7(c) really means that the appellants had, in fact, enlisted the support of Government servants, and that that amounts to a charge under s. 123(8) of the Act of procuring the assistance of Government- servants for furtherance of their election prospects. Why then does the petition not state it in plain terms ? The difference between "could" and "did" is too elementary to be mistaken. The respondent has in other paragraphs relating to other charges clearly and categorically asserted what the appellants did and what their agents did. And why was a different phraseology adopted in para 7(c) 9 It is to be noted that apart from this allegation, the rest of the paragraph is taken up with details of the two meetings at Kakori, and it winds up with the following allegation: " The respondents 1 and 2 by this device succeeded in creating an impression on the voters that they had the support of the District officials." This suggests that the charge which the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 123(8). We are of opinion that this assumption is erroneous and that its finding is vitiated thereby. But even if we are to read " could " in para 7(c) as meaning " did ", it is difficult to extract out of it a charge under s. 123(8). The allegation is not clear whether the Government servants were asked by the appellants to support their candidature, or whether they were asked to assist them in furtherance of their election prospects, and there is no allegation at all that the Government servants did, in fact, assist the appellants in the election. On these allegations, it is difficult to hold that the petition in fact raised a charge under s. 123(8). It is a long jump from the petition as originally laid to the present amendment, wherein for the first time it is asserted that certain Mukhias no Mukhias are mentioned in the petition assisted the appellants in furtherance of their election prospects, and that thereby the corrupt practice mentioned in s. 123(8) had been committed. The new matters introduced by the amendment so radically alter the character of the petition as originally framed as to make it practically a new petition, and it was not within the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances stated above, the order of amendment would be open to grave criticism even if it had been made in an ordinary litigation, and in an election matter, it is indefensible. The strongest point in favour of the respondent is that we should not in special appeal interfere with what is a matter of discretion with the Tribunal. It is not necessary to pursue this matter further, as we are of opinion that the order of amendment dated November 28, 1953, is, for the reasons already stated. beyond the powers of the Tribunal, and therefore must be set aside and the finding based on that amendment that the appellants had committed the corrupt practice mentioned in s. 123(8) of the Act must be reversed. In this view, it becomes unnecessary to deal with the further contention of the appellants that there is no legal evidence in support of the finding of the Tribunal that they had obtained the assistance of four Mukhias in furtherance of their election prospects. Then there is the question whether the first -appellant has, as held by the Tribunal, again by a majority, contravened s. 123(7) of the Act. The facts found are that one Ganga Prasad was engaged by the first appellant to prepare thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire what is to be done while in the other case he can not only order or require what is to be done but how it shall be done." This Court had occasion to go into this question somewhat fully in Dharangadhara Chemical Works Ltd. v. State of Saurashtra, [1957] S.C.R. 152 and it was there held that the real test for deciding whether the contract was one of employment was to find out whether the agreement was for the personal labour of the person engaged, and that if that was so, the contract was one of employment, whether the work was time- work or piece-work or whether the employee did the whole of the work himself or whether he obtained the assistance of other persons also for the work. Therefore, before it could be held that Ganga Prasad and Viswanath Pande were employed by the first appellant, it must be shown that the contract with them was that they should personally do the work, with or without the assistance of other persons. But such evidence is totally lacking, and the finding, therefore, that they had been employed by the first appellant must be set aside as based on no evidence. Neither of the grounds on which the election of the appellants has been declared void, cou ..... 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