Amir Ullah v. Mr. L. P. Nigam — 1955 DIGILAW 167 (ALL)

JUDGMENT Mootham, C.J. - This is a petition Under Article 226 of the Constitution which has been moved in the following circumstances. The Petitioner was one of four candidates for election as a member of the Municipal Board of Sitapur from Ward Kot. Ward Kot was a two member constituency; the election was held on 26-10-1953, and on the following day the result was declared, the votes obtained by the candidates being-- Amir Ali 821 Abdul Qadir (Respondent) 480 Amir Ullah (Petitioner) 407 Mohammad Jafar 322 The Returning Officer declared Amir Ali and the Respondent to be duly elected. 2. Thereafter within the period of 30 days prescribed by Section 20 of the UP Municipalities Act, 1916, the Petitioner presented a petition challenging the validity of the election of the Respondent and praying that the election of the Respondent be set aside and that he be declared to have been duly elected. 3. The validity of the Respondent's election was challenged on a number of grounds. It was alleged in para. 3 of the petition that the Respondent was not qualified to be nominated as a candidate as he was disqualified u/s 13-D of the Act as he held a place of profit in the gift and at the disposal of the Board; in para. 4 that the Respondent by himself and through his agents and workers procured the giving of a large number of votes in the name of voters who were not the persons giving such vote; and in para. 5 that the Respondent by himself, his agents and workers canvassed for votes within the Polling Station and within a distance of twenty five yards therefrom. It is important to observe that para. 4 concluded with the following sentence: Some particulars are given below and more particulars would be given after inspection Under Para. 72 of the UP Municipalities (Conduct of Election of Members) Order, 1953. 4. Para. 6 is also important; it is in fact the corner-stone, as will appear, of the Petitioner's case. It is in these terms: That for the reasons stated above the election of the Respondent is liable to be set aside and the Petitioner is entitled to have a declaration to the effect that he has been duly elected by a majority of votes and is entitled to be substituted in the room of the Respondent on the Municipal Board of Sitapur. 5. On 24-4-1954, the Respondent filed a written statement in which he denied the allegations in paras. 3 to 6 of the petition and in para. 9 said-- That the Respondent was duly elected according to law. 6. Thereafter on some date which has not been disclosed the Petitioner obtained from the Election Tribunal an ex parte order permitting him Under Rule 72 of the UP Municipalities (Conduct of Election of Members) Order, 1953, to inspect the voting papers. There is no evidence before me as to the grounds upon which the order was made; but there can I think be little doubt that the application was made and permission was granted on the basis of the concluding words of para. 4 of the petition which I have already quoted. During this inspection however the Petitioner discovered, or believed that he had discovered, that the Returning Officer had improperly admitted no less than 78 votes which were counted as valid votes in favour of the Respondent. 7. The Petitioner then filed what he called a replication to the Respondent's written statement on 11-5-1954; and in this document he said, with reference to para. 9 of the written statement-- Para. 9 Denied. The Respondent was not elected by a majority of lawful votes. A large number of votes which should have been rejected at the time of counting by the Returning Officer, were wrongly admitted in favour of the Respondent. On exclusion of such wrongly admitted votes, the Petitioner would receive more votes than the Respondent and would be duly elected by a majority of lawful votes. Details of such wrongly admitted votes are given in the particulars filed. 8. The attached particulars contained a list of the 78 instances in which it was said the Returning Officer had improperly admitted votes. In para. 17 of the replication the Petitioner stated that he was entitled to be substituted as an elected member in place of the Respondent "as he had procured a majority of lawful votes over the Respondent." 9. On 6-7-1954, the Tribunal proceeded to frame issues. The Petitioner urged that he had alleged in the latter part of para. 6 of his original petition that certain votes counted for the Respondent had been improperly admitted, and he asked the Tribunal to frame ah issue with regard to those allegations and to the allegations contained in paras. On 6-7-1954, the Tribunal proceeded to frame issues. The Petitioner urged that he had alleged in the latter part of para. 6 of his original petition that certain votes counted for the Respondent had been improperly admitted, and he asked the Tribunal to frame ah issue with regard to those allegations and to the allegations contained in paras. 9 and 17 of the replication. The Tribunal refused to frame such an issue and on the same day the Petitioner filed a formal application for the amendment of his petition. In that application he prayed that his petition be amended by the addition thereto a new paragraph 5A which reads as follows: 5A. That the Respondent was declared to be elected by reason of improper admission of a majority of votes and was not therefore duly elected by a majority of lawful votes. On a recount and after the rejection of the said improper admitted votes, the Petitioner is entitled to be declared to have been duly elected by a majority of lawful votes. The detail of the said improperly admitted votes found in the ballot boxes of Respondent is attached herewith. 10. The Tribunal in a careful order dated the 27th July, 1954, rejected the application for amendment on two grounds. It held, first, that it had no power to amend the petition; and, secondly, that had it the power it could not exercise it to allow the amendment as to do so would, in effect, convert the original petition into a new one after the expiry of the period of limitation prescribed for the filing of election petitions. The Petitioner thereupon filed the present petition in which he prays for the issue of a writ of certiorari quashing the order of the Election Tribunal dated 27-7-1954, and for a mandamus directing the Tribunal to allow the amendment of his petition. By an order of this Court dated 5-8-1954, the proceedings before the Election Tribunal were stayed pending the disposal of the petition. 11. In my opinion the Tribunal was wrong in law in holding that it had no power to allow the petition to be amended. By an order of this Court dated 5-8-1954, the proceedings before the Election Tribunal were stayed pending the disposal of the petition. 11. In my opinion the Tribunal was wrong in law in holding that it had no power to allow the petition to be amended. Sub-section (1) of Section 23 of the UP Municipalities Act provides that 23(1) Except so far as may be otherwise provided by this Act or by rule, the procedure provided in the CPC in regard to suits, shall, so far as it is not inconsistent with this Act or any rule and so far as it can be made applicable, be followed in the hearing of election petitions. 12. In the opinion of the Tribunal the "hearing'' of an election petition refers only to "what happens in open Court when witnesses are examined and cross-examined, addresses delivered by counsel and judgment is delivered''; it does not include any proceedings which are anterior in time to this. The Tribunal' relied on certain passages in the judgment of the Bombay High Court in Sitaram Hirachand Birla Vs. Yograjsing Shankarsing Parihar and Others, AIR 1953 Bom 293 . In the course of its judgment, which was delivered by Chagla, C.J. the Court was of opinion that the trial of a suit does not mean the same thing as the hearing of a suit, and that the latter was only a part of the trial and was restricted to what happens in open court. The Court had however in that case to consider the meaning and effect of Section 90(2) of the Representation of the People Act, 1951, which provides that 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, to the trial of suits. 13. There is in my opinion no clearly accepted difference in meaning between a trial and a hearing. The learned editor of Wharton's Law Lexicon (14th Edition) treats both terms as having the same meaning, a trial being defined by him as the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land. The learned editor of Wharton's Law Lexicon (14th Edition) treats both terms as having the same meaning, a trial being defined by him as the hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land. Item 81 of the Scale of Costs in Appendix N to the Rules of the Supreme Court in England refers to the fee on a brief "on hearing or trial'', and an examination of the provisions of Order 36 of the English Rules of the Supreme Court shows that the word 'trial' is used in that order as meaning the hearing of the action: see, for example, Rules 1 (Mode and Place of Trial) 11 to 16 (Notice and Entry of Trial) 31 (Default of appearance by defendant at trial) and 34 (Adjournment of Trial). 14. What therefore has to be determined is the meaning, in Section 28(1) of the UP Municipalities Act, of the expression "the hearing of elections petitions" 15. Now the procedure provided in the Act for the disposal of petitions against the election of a member of a Board is to be found in Sections 19 to 25. Section 19 provides that the election of a member can be challenged on certain specified grounds, and Section 12 deals with the form and presentation of the petition. Section 22 is important for the present purpose for it provides that every election petition "shall be heard by the Tribunal" appointed by the State Government, and I do not think that there can be any real doubt that the hearing for which provision is made in this section includes everything which is done by the Tribunal from the time when the petition comes before it until judgment as finally delivered. In other words the expression "shall be heard by a Tribunal" in Section 22 of the Municipalities Act means exactly the same thing as "shall be tried by the Tribunal" in Section 90(2) of the Representation of the People Act. Indeed the words "heard" and "tried" appear to be used in this part of the former Act without any distinction in meaning. Indeed the words "heard" and "tried" appear to be used in this part of the former Act without any distinction in meaning. Thus Sub-section 2(a) of Section 23 reads thus: Provided that two or more persons whose election is called in question may be made Respondents to he same petition, and their cases may be tried at the same time, and any two or more election petitions may be heard together; but, so far as is consistent with such joint trial (sic) hearing, the petition shall be deemed to be a separate petition against each Respondent; 16. Here there is reference to 'case' being 'tried', to 'petitions' being 'heard' and to a 'joint trial or hearing'; and the Sub-section 2(e) of the same section then is a reference to the 'hearing' of a 'case.' 17. In the circumstances I am of opinion that the procedure provided in the Code of Civil Procedure, except as otherwise provided by the Act or any rule, applies to the entire proceedings before the Election Tribunal; and as it is not suggested that there is any other provision which is relevant, I hold that the Tribunal could exercise the powers of amendment conferred on a Court by Order 6, Rule 17 of the Code. 18. In these circumstances it is necessary to consider whether the refusal of the Tribunal to allow the Petitioner to amend his petition constitutes an error of law apparent on the face of the record. In my opinion there is no such error. Sir Iqbal Ahmad has strenuously urged that the Petitioner is not setting up a new case at all, because the present averment that the Returning Officer had improperly admitted votes is to found, albeit in different words, in the concluding part of paragraph 6 of his petition. I do not think that the words upon which Sir Iqbal Ahmad relies can be so construed, and when paragraph 6 is read as a whole, as necessarily it must, it is clear in my opinion that "for the reasons stated above"--that is, in the preceding paragraphs, the paragraph does no more, and was intended to do no more, than state the relief to which the Plaintiff claimed he was entitled. It was suggested in argument that the Petitioner was aware when he filed his petition that the Returning Officer had improperly admitted certain votes, but that he knew no details. It was suggested in argument that the Petitioner was aware when he filed his petition that the Returning Officer had improperly admitted certain votes, but that he knew no details. This suggestion is without foundation, as is shown in paragraph 8 of his affidavit in which the Petitioner swears on his personal knowledge that he came to know of these facts "for the first time" when he inspected the voting papers. 19. I have no reason to doubt that this statement is correct, and that it was not until sometime after the period of limitation had expired that the Petitioner believed that he had discovered another ground upon which the Respondent's election could be attacked. 20. Sir Iqbal Ahmad has argued that a Petitioner cannot know whether a Returning Officer has improperly admitted votes until after he has been permitted to make an inspection of the voting papers Under Rule 72 of the Conduct of Election of Members Order. I do not accept this as wholly correct for the Petitioner may have some evidence, for instance, that voting papers intended for use at one polling both have been brought to another; but whether that be so or not Sir Iqbal Ahmad admitted, and I think properly so, that there is no basic difference bet-when the attempt to add to an election petition a new charge of bribery and one of the improper admission by the Returning Officer of votes. If there is no knowledge and no evidence of the offence before the expiry of the period within which the petition can be filed, knowledge and evidence subsequently acquired are of no avail to the Petitioner. 21. The Tribunal was held that to allow the addition of a further charge would in substance constitute hot an amendment but a fresh petition; and in my judgment the Tribunal was right Mauds v. Lovely L.R. 9 C.P. 165. 22. In my opinion this petition fails, and it is dismissed with costs.