1956 (12) TMI 43 - SC - Indian Laws

Supreme Court rules election tribunal cannot allow new grounds in petition after statutory limitation period expires

Harish Chandra Bajpai Versus Triloki Singh

SC held that election tribunal exceeded its powers by allowing amendment of election petition to introduce new grounds beyond the statutory limitation ... Applications for framing of fresh issues for better particulars and for amendment of the election petition - powers of amendment u/s 83 (3) of the Representation of the People Act Order VI, Rule 17 of the Civil Procedure Code - Employment of Additional Persons Beyond Permissible Limit - HELD THAT:- 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, r. 17 that the fact that a suit on the claim sought to be raised would be barred on the date of the application would be a material element in deciding whether it should be allowed or not but would not affect the jurisdiction of the court to grant it in exceptional circumstances as laid down in Charan Das v. Amir Khan, [1920 (7) TMI 1 - BOMBAY HIGH COURT]. But this is to ignore the restriction imposed by s. 90(2) that the procedure of the Court under the Code of Civil Procedure in which O. VI, r. 17 is comprised, is to apply subject to the provisions of the Act, and the rules, and there being no power conferred on the Tribunal to extend the period of limitation prescribed, an order of amendment permitting a new ground to be raised beyond the time limited by s. 81 and r. 119 must contravene those provisions and is, in consequence, beyond the ambit of authority conferred by s. 90(2). We are accordingly of opinion that the contention of the appellants on this point is well-founded, and must be accepted as correct. The result of the foregoing discussion may thus be summed up: (1) Under s. 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 O. VI, r. 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. 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. That is wholly insufficient to establish that there was a contract of employment of those persons by him. It was argued for the respondent that there could be a contract of employment in respect of piece-work as of time-work, and that the evidence of the first appellant was material on which the Tribunal could come to the conclusion to which it did. It may be conceded that a contract of employment may be in respect of either piece-work or time-work; but it does not follow from the fact that the contract is for piece-work that it must be a contract of employment. There is in law a well- established distinction between a contract for services, and a contract of service, and it was thus stated in Collins v. Hertfordshire Central Council. Neither of the grounds on which the election of the appellants has been declared void, could be supported. We must accordingly allow the appeal, set aside the order of the Tribunal and dismiss the election petition filed by the respondent, with costs of the appellants throughout. Appeal allowed. Election petition dismissed. Issues Involved:1. Amendment of Election Petition2. Employment of Government Servants in Election Campaign3. Employment of Additional Persons Beyond Permissible LimitDetailed Analysis:1. Amendment of Election Petition:The primary issue revolved around whether the Election Tribunal had the authority to permit amendments to the election petition, specifically to include new instances of corrupt practices. The appellants contested that the Tribunal lacked this power under Section 83(3) of the Representation of the People Act, arguing that the amendment introduced new charges rather than merely providing particulars of existing charges. The court observed that Section 83(3) allows the Tribunal to amend particulars in a list to ensure a fair and effectual trial, and this power extends to allowing fresh instances of charges if they relate to a charge already contained in the petition. The court concluded that the Tribunal has the authority to allow such amendments under Order VI, Rule 17 of the Civil Procedure Code, provided the amendments do not introduce new grounds or charges that would make the petition a new one in substance.2. Employment of Government Servants in Election Campaign:The Tribunal had found that the appellants obtained the assistance of four village officers (Mukhias) in furtherance of their election prospects, which constituted a corrupt practice under Section 123(8) of the Act. The appellants argued that this charge was not originally pleaded in the petition and was introduced only by an amendment, which they claimed the Tribunal had no power to allow. The court examined the allegations in the original petition and found them to be vague and not amounting to a clear charge under Section 123(8). The court emphasized that charges of corrupt practices must be clear and precise and held that the amendment introduced new matters, thus altering the character of the petition substantially. Consequently, the court set aside the Tribunal's finding on this ground.3. Employment of Additional Persons Beyond Permissible Limit:The Tribunal had also found that the first appellant employed two additional persons, Ganga Prasad and Viswanath Pande, for payment in connection with the election, thereby exceeding the number of persons permitted under Rule 118 read with Schedule VI, constituting a corrupt practice under Section 123(7) of the Act. The appellants contended that these individuals were not employed but were contracted for specific tasks. The court noted that whether a person is an employee is a question of fact and found that there was no evidence to support the Tribunal's finding that Ganga Prasad and Viswanath Pande were employed by the first appellant. The court highlighted the distinction between a contract for services and a contract of service and concluded that the Tribunal's finding was based on no evidence.Conclusion:The Supreme Court allowed the appeal, set aside the order of the Election Tribunal, and dismissed the election petition filed by the respondent. The court held that the Tribunal had no power to permit the amendment that introduced new charges and that there was no evidence to support the finding of employment of additional persons beyond the permissible limit. The election of the appellants was thus upheld.