Bhim Sen v. Gopali — 1960 DIGILAW 115 (SC)

JUDGMENT : P.B. Gajendragadkar, J. 1. The appellant Bhim Sen had filed an election petition under Section 81 of the Representation of the People Act, 1951 (hereinafter called the Act) in which he challenged the validity of the election of Chhattar Singh, Respondent 3 and Gopali, Respondent 1, and claimed a declaration that he had himself been validly elected at the election to the Legislative Assembly of the State of Uttar Pradesh from Constituency No. 45 Khurja Double Member Assembly Constituency at the General Election held in 1957. This petition was filed on 22-4-1957. Respondent 1 then filed his written statement on 24-7-1957, and on the pleadings thus filed the Election Tribunal framed twelve issues on 26-9-1957. It appears that the appellant applied for amendment of his election petition on 5-10-1957, and Respondent 1 objected on 8-10-1957. On 14-10-1957, the Election Tribunal overruled the objections of Respondent 1, allowed the amendment prayed for by the appellant and framed two additional Issues 13 and 14. At the end of the trial the Election Tribunal held that the election of Respondents 3 and 1 was invalid and gave the appellant the declaration that he had been validly elected. This decision of the Election Tribunal is based solely on its findings on Issues 13 and 14 in favour of the appellant. 2. Respondent 1 challenged the said decision of the Election Tribunal by preferring an appeal before the High Court at Allahabad; and the High Court has reversed the said decision on the ground that the Tribunal had erred in law in allowing the amendment in question. In the result the High Court has set aside the decision of the Election Tribunal and ordered that the appellant's election petition should be dismissed with costs. It is against this order that the appellant has come to this Court by special leave, and the main contention which has been urged on his behalf before us by Mr Pathak is that the High Court itself was in error in holding that the amendment in question should not have been allowed. It may be mentioned that Kewal Singh, Respondent 6, had also filed an election petition in which he challenged the validity of the election of Respondent 3. It may be mentioned that Kewal Singh, Respondent 6, had also filed an election petition in which he challenged the validity of the election of Respondent 3. The said petition was allowed by the Election Tribunal and its decision was successfully challenged by Respondent 3 before the High Court; but with the validity of the election of Respondent 3 we are not concerned in the present appeal. The dispute in the present appeal is between the appellant and Respondent 1. 3. The 45 Khurja Assembly Constituency is a double member constituency in which one seat is reserved for the Scheduled Castes. At the General Election in question the candidates for the said reserved seat were the appellant and Respondents 1 and 2; Respondents 3, 4, 5 and 6 contested the general seat. The polling for the election took place on 6-3-1957, at 178 polling stations in the constituency. The counting of votes followed on 7 and 8-3-1957, and the result was declared on 9-3-1957. It was announced that Respondents 1 and 3 had been duly elected. It is this result that was challenged by the appellant, in his election petition. 4. In order to appreciate the controversy between the parties in regard to the amendment allowed in the appellant's petition it is necessary to set out the main allegations in the original petition at the outset. In his petition the appellant had challenged the validity of the election of Respondent 1 on several grounds. Para 8 of thepetition alleged that "the result of the election insofar as it, concerns the election of Respondents 1 and 2 (3 in this appeal) has been materially affected, inter alia, (iii) because Respondents 1 and 2 (3 in this appeal) received votes which were void, and (iv) because the provisions of the Representation of the People Act, 1951 and/or the rules 22 ELR 288 and orders made thereunder were not complied with". It was further alleged that the appellant and Respondent 6 had in fact received a majority of valid votes or that but for the votes obtained by Respondents 1 and 2 (3 in this appeal) by corrupt practices alleged in the petition the appellant and Respondent 6 would have obtained the majority of the valid votes and would have been declared duly elected. Para 10 of the petition proceeded to give a concise statement of the material facts and particulars on which the appellant relied. Paragraph 10A(iii)(c) alleged that the Returning Officer himself did not discharge the duty of rejecting the ballot paper and (d) that being a double member constituency it was incumbent upon the Returning Officer to go into each case of double voting in order to reject one of the two votes cast in contravention of sub-(l) of Section 63 of the Act. Para 10-B added that Respondents 1 and 2 (3 in this appeal) got votes cast in their favour with their own knowledge and/or connivance the following improper or void votes; and 10.8(d) specified that the Returning Officer having failed to discharge his duty of rejecting ballot papers in contravention of Section 63, sub-section (3) the appellant believed that Respondents 1 and 2 (3 in this appeal) could receive many void votes. 5. Section 63(1) provides that in plural-member constituencies every elector shall have as many votes as there are members to be elected but no elector shall give more than one vote to any candidate. Sub-section (2) lays down that if an elector gives more than one vote to any one candidate in contravention of the provisions of sub-section (1), then at the time of counting of votes not more than one of the votes given by him to such candidate shall be taken into account and all other votes given by him to such candidate shall be rejected as void. It would be noticed that one of the allegations made by the appellant in his petition has reference to these provisions of Section 63. 6. Respondent 1 traversed all the allegations made by the appellant in his petition, and in regard to the non-compliance with Section 63 of the Act he alleged that the Returning Officer had discharged his duties of rejecting void ballot papers correctly. According to him it was wrong to say that the Returning Officer had failed to discharge his duties, and so the plea of the appellant that the respondent could receive any void votes is wrong and is not borne out by facts. 7. According to him it was wrong to say that the Returning Officer had failed to discharge his duties, and so the plea of the appellant that the respondent could receive any void votes is wrong and is not borne out by facts. 7. On these pleadings the Tribunal did not frame any issue about the non-compliance of Section 63 and its effect; but in the meanwhile the ballot box was opened in the presence of the parties and their lawyers and it was found that 37 void votes had been counted in favour of Respondent 1. That is why the appellant applied to the Tribunal under Order 6 Rule 17 of the Code of Civil Procedure for amendment of his election petition in certain particulars. He stated that he had drafted para 10. B(d) of the petition on the basis of information received and believed to be true. Full details about the double voting were not in his possession at that time, and that in view of the disclosure made by the inspection of the ballot papers he wanted to amend the said paragraph and make a specific statement about his allegation that 37 void votes had in fact been counted in favour of Respondent 1. In other words, in para 10.8(d) he wanted the words "alleges" and "did" to be substituted respectively for the words "believes" and "could". Along with this application he filed Annexure E giving the particulars of void votes. This application was opposed by respondent I but the Tribunal was not impressed by the arguments of Respondent 1 and so it allowed the amendment. In its order the Tribunal observed that there was nothing in the Act which required the petitioner to give particulars of double voting and that is because at the time of counting it well nigh impossible for any candidate to know with exactitude how many cases of double voting have occurred. The Tribunal also thought that there was a definite allegation of double voting made in the petition and that was sufficient in law. After the amendment was thus allowed the Tribunal framed two additional issues as Issues 13 and 14 in these words: "Issue 13. The Tribunal also thought that there was a definite allegation of double voting made in the petition and that was sufficient in law. After the amendment was thus allowed the Tribunal framed two additional issues as Issues 13 and 14 in these words: "Issue 13. Did the Returning Officer fail to reject the ballot paper cast in contravention of Section 63, sub-section (3) of the Act, and were ballot papers mentioned in Annexure E filed with the two petitions, counted in favour of Chatter Singh and Gopali respectively as alleged? Issue 14. Whether the question in Issue 13 cannot be gone into by the Tribunal because it has no power to go behind the result sheet?" As we have already indicated the Election Tribunal has answered both these issues in favour of the appellant and allowed his election petition. 8. The validity of the order allowing amendment was challenged before the High Court, and the High Court held that the Election Tribunal was in error in allowing the amendment. This conclusion of the High Court is based on the view that the principles laid down by this Court in the case of Harish Chandra Bajpai v. Triloki Singh, (1957) SCR 370 applied to the facts of the present case, and in fact the verbal similarity between the amendments sought for and allowed by the Tribunal in both the cases has considerably influenced the decision of the High Court. The High Court has also observed that there was another important defect in the pleadings of the appellant in that it had nowhere been stated in the original petition that the mistakes committed by the Returning Officer materially affected the result of the election. This observation is, with respect, obviously erroneous because, as we have already indicated, para 8 of the petition has specifically made the averment in question. The scheme of the petition is clear. Para 8 has set out the grounds on which the election of Respondents 3 and 1 was challenged by the appellant and para 9 and 10 give particulars in that behalf. Therefore, the High Court was not justified in assuming that the relevant allegation about the material effect of the alleged irregularities on the election had not been made in the petition. Therefore, the High Court was not justified in assuming that the relevant allegation about the material effect of the alleged irregularities on the election had not been made in the petition. Thus the only substantial question which arises for decision is whether the High Court was right in holding that the principles enunciated by this Court in the case of Harish Chandra Bajpail led to the conclusion that the amendment in the present- case should not have been allowed. 9. Before answering this question it would be material to consider what this Court has decided in the case of Harish Chandra Bajpail. According to the said decision the Election Tribunal undoubtedly has power under Section 83(3) of the Act to allow an amendment in respect of any particulars of illegal and corrupt practices or to permit new instances to be included provided of course the grounds of charges were specifically stated in the petition. It was further held that Order 6 Rule 17 of the Code of Civil Procedure could not be invoked so as to permit new grounds of charges to be raised or the character of the petition to be so altered as to make it in substance a new petition at a time when a fresh petition on those allegations would be time-barred. In that case paragraph 7(c) of the original petition had alleged that Respondents 1 and 2 could, in furtherance of their election, enlist the support of certain Government servants. The rest of the allegations in that paragraph were too vague and general. The Election Tribunal then passed an order that the petitioner shall supply the names of officials including those of the Patwaris and Qanungoes mentioned in para 7(c). Thereafter an application was presented by the petitioner for amendment of paragraph 7(c) by adding the words "Village Headmen" with their names and the fact that they worked and issued appeal and subsequently they became the polling agents of Respondents 1 and 2. It was in this application for the first time that the names of the Mukhias were mentioned as persons whose assistance had been obtained by Respondents 1 and 2 and this amendment was allowed. Dealing with the validity of the order allowing this amendment this Court observed that the provisions of Order 6 Rule 17 did not justify the order. It was in this application for the first time that the names of the Mukhias were mentioned as persons whose assistance had been obtained by Respondents 1 and 2 and this amendment was allowed. Dealing with the validity of the order allowing this amendment this Court observed that the provisions of Order 6 Rule 17 did not justify the order. It would be noticed that the allegations of misconduct like those made in the petition in that case are governed by the provisions of Section 83(l)(b) of the Act, and it was patent that the relevant particulars in regard to the alleged corrupt practice had not been mentioned in paragraph 7(c) of the original petition; they were sought to be introduced for the first time much later, and that was held to be improper. It is true that in dealing with the said amendment this Court observed that the difference between "could" and "did" was too elementary to be mistaken but this observation must be read in the light of the relevant allegations contained in the original petition and the addition sought to be made by way of amendment. It is significant that the change from "could" to "did" in that case sought to introduce an entirely new allegation altogether and that was held to be outside the jurisdiction of the Tribunal. The powers of the Tribunals to allow amendments has been subsequently considered by this Court in the case of S.M. Banerji v. Sri Krishna Agarwal, Civil Appeal No. 301 of 1959, D/d. 20.11.1959 and this Court has observed that within the limits prescribed by the decisions of this Court discretionary jurisdiction of the Tribunals to amend the pleadings is as extensive as that of a civil court. The same well-settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by a Tribunal; and it was pointed out that in dealing with this question it should always be remembered that substance is more important than form. 10. What then is the position in substance in regard to the pleadings contained in the appellant's original petition? We have already referred to the relevant allegations made in paras 8, 9 and 10 of the petition. 10. What then is the position in substance in regard to the pleadings contained in the appellant's original petition? We have already referred to the relevant allegations made in paras 8, 9 and 10 of the petition. It is quite clear from those allegations that the appellant had specifically averred that the failure of the Returning Officer to discharge his duty under Section 63 of the Act had inevitably resulted in the fact that double votes had been obtained by Respondent 1. Para 8(3) as well as para 10-B positively stated that void votes had been received by Respondent 1. It is in the light of these positive averments that para 10-B(d) must be construed. Thus construed the averment in the said para also indicates that according to the plea of the appellant, Respondent 1 could get void votes because of the failure of the Returning Officer to discharge his duty. In the contest "could receive" really meant "did receive" and not "might have received". In this connection it must be borne in mind that particulars in regard to the allegation of this kind could be more definitely supplied only after the ballot box is opened and not till then. Rule 138 provides for the production and inspection of election papers. Until the said papers are produced and inspected as provided by the said rule it would be difficult, if not impossible, for any party to allege affirmatively how many void votes had been counted in favour of the candidate declared to be duly elected. Considerations which apply to the allegations of misconduct specified in Section 83(1)(b) would not be relevant in the case of the present allegations; and so, reading the original petition itself we are satisfied that the material allegations had been made with sufficient clarity by the appellant. In that view we are inclined to hold that the Tribunal was in error in not framing Issue 13 on the original petition itself. If that be the true position the application for amendment may be treated merely as an application for the clarification of the pleading and no more, and so the verbal similarity between the amendments allowed in this case and the amendment disapproved by this Court in the case of Harish Chandra Bajpai cannot justify the conclusion of the High Court that the amendment in the present case should not have been allowed. 11. 11. The fact that 37 void votes have been taken into account in favour of Respondent 1 is clearly established and it is no longer in dispute. That being so, the Tribunal was right in holding that the election of Respondent 1 was invalid. Respondent 1 had polled 28,556 votes whereas the appellant had polled 28,548 votes. If 37 votes are deducted from the votes polled by Respondent 1 it inevitably leads to the conclusion that the appellant got more votes than Respondent 1. 12. It appears that the petition filed by the appellant had impleaded Respondent 5, Sheodan Singh, as one of the candidates who contested the election. His father's name was, however, shown as Ram Sarup when in fact it was Nanak Chand. This clerical mistake was sought to be corrected by the appellant by his application presented on 27-7-1957, and the Tribunal allowed the correction to be made. This order of the Tribunal was challenged before the High Court, but the High Court held that in the circumstances the amendment had been rightly allowed. This finding of the High Court is challenged by Mr Sadhan Gupta on behalf of Respondent 1. He contends that the amendment in question really introduced a new party to the proceedings after limitation had expired, and so the petition of the appellant should be dismissed on the ground that the contesting party had not been properly impleaded at the outset. We are not impressed by this argument. It is clear that Respondent 5 Sheodan Singh had been impleaded as a contesting candidate and it had been specifically averred that he had secured 4060 valid votes and 327 invalid votes. Thus there was no doubt about the identity of Respondent 5 and no mistake about it either. The mistake crept in the description of the name of Respondent 5's father and that mistake which was purely clerical was allowed to be corrected. In our opinion, the High Court and the Tribunal were obviously right in holding that the correction thus allowed did not amount to permitting the appellant to add a new party at all. 13. Then it was urged by Mr Sadhan Gupta that Respondent 1 should have been allowed the inspection of the voting papers cast in favour of the appellant in order to see if the appellant also got the benefit of void votes. 13. Then it was urged by Mr Sadhan Gupta that Respondent 1 should have been allowed the inspection of the voting papers cast in favour of the appellant in order to see if the appellant also got the benefit of void votes. In our opinion it is too late to raise such a contention now. As we have already pointed out, in his first written statement Respondent 1 made a positive averment that no void votes had been allowed to be used by the Returning Officer and that the Returning Officer had fully discharged his duties under Section 63. It is true that after it was discovered that he had received 37 void votes Respondent 1 attempted to make an allegation that the appellant may likewise have received similar void votes, but it was too late then because the time for making such an allegation by way of a recriminatory proceeding had elapsed and Respondent 1 had failed to furnish the security of Rs. 1000 as required by Section 97(2) of the Act. If under these circumstances Respondent 1 was not allowed to pursue his allegation against the appellant he is to blame himself. In any event we are not satisfied that the Tribunal was in error in not giving Respondent 1 the opportunity in question. 14. Mr Sadhan Gupta also tried to contend that though the election of Respondent 1 may be declared to be invalid there is no justification for giving the appellant the declaration that he had been validly elected. His argument is that such a declaration can be given only if it is shown that the appellant has secured the largest number of valid votes. It is clear that this point was not argued before the High Court, and so we cannot allow it to be raised before us. If Respondent 1 had a grievance against the declaration granted by the Tribunal in favour of the appellant he should have taken a specific point in that behalf and urged it before the High Court. Apparently Respondent 1 felt that in the absence of any allegation or proof that the appellant had secured void votes it would be futile to contend that he had not been validly elected. Apparently Respondent 1 felt that in the absence of any allegation or proof that the appellant had secured void votes it would be futile to contend that he had not been validly elected. In any event, we do not think it would be open to Respondent 1 to raise such a contention before us when it was not argued before the High Court. 15. In the result the appeal is allowed, the order passed by the High Court is set aside and the decision of the Tribunal is restored with costs throughout.