PETITIONER:
SHRI BALWAN SINGH
Vs.
RESPONDENT:
SHRI LAKSHMI NARAIN & OTHERS
DATE OF JUDGMENT:
23/02/1960
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SINHA, BHUVNESHWAR P.(CJ)
IMAM, SYED JAFFER
SARKAR, A.K.
WANCHOO, K.N.
CITATION:
1960 AIR 770 1960 SCR (3) 91
CITATOR INFO :
RF 1972 SC1302 (24)
R 1975 SC 290 (32)
R 1975 SC 667 (9)
RF 1976 SC1187 (7,32)
R 1978 SC 351 (4)
R 1984 SC1516 (6)
D 1987 SC1577 (26,27)
RF 1991 SC1557 (18)
ACT:
Election Petition-Corrupt Practice--Hiring vehicle for con-
veyance of electors-Pleadings-Particulars of contract of
hiring, if necessary-Representation of the People Act, 1951,
(43 of 1951), ss. 83(1)(b), 90(3) and 123(5).
HEADNOTE:
The first respondent filed an election petition for an order
that the election of the appellant be declared void on the
ground that the appellant had committed the corrupt practice
under s. 123(5) of the Representation of the People Act,
1951, in that he had hired a tractor for conveying women
electors from their houses to places of polling and back.
By an amendment application the first respondent gave
particulars about the conveying of voters, but he did not
give any particulars regarding the contract of hiring nor
did the appellant ask for such particulars. At the trial
t~he first respondent led evidence in respect of t~he
contract of hiring and the appellant raised no objection to
the relevance of that evidence. The Election Tribunal
dismissed the petition but on appeal the High Court held the
charge proved and declared the election of the appellant
void. The appellant contended that the election petition
ought to have been dismissed because particulars of the
contract of hiring which was an essential ingredient of the
corrupt practice had not been given.
Held, (per Sinha Lc. J., jafer Imam, K. N. Wanchoo and J.
C. Shah, jj), that the corrupt practice under s~. I23~(5)
was the conveying of electors to and from the polling
station and not the contract of hiring. If the election
petition gave particulars about the use of a vehicle for
conveying of electors to' and from the polling station, the
failure to give particulars of the contract of hiring, as
distinguished from the fact of hiring, did not render the
petition defective. An election petition was not liable to
be
92
dismissed in limine merely because full particulars of a
corrupt practice alleged were not set out. If an objection
was taken and the Tribunal was of the view that full
particulars had not been set out the petitioner had to be
given an opportunity to amend or amplify the particulars.
It was only in the event of noncompliance with the order to
supply the particulars that the charge which remained vague
could be struck out. Besides, in the present case no
material prejudice was caused to the appellant by the
absence of the particulars of the contract of hiring.
Sarkar J.-Under s. 123(5) the hiring of the vehicle for
conveyance of electors was an essential element of the
corrupt practice and it was necessary to give particulars of
the contract of hiring. But the failure to give such
particulars did not render the petition liable to be
dismissed. Section 83 of the Act did not provide for the
dismissal of the petition for failure to furnish particulars
nor did s. 90(3) empower the Tribunal to dismiss a petition
for non-compliance with the provisions of s. 83. The
appellant was entitled to apply for particulars but he did
not do so; he could not at a later stage complain about the
absence of the particulars.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 411 of 1959.
Appeal by special leave from the judgment and order dated
9th January 1959 of the Allahabad High Court in First Appeal
No. 448/A of 1958.
L. K. Jha, P. Rama Reddy R. K. Garg and R. Patnaik for the
appellant.
G. S. Pathak, G. N. Dikshit, Udai Pratap Singh,
J. P. Goval, M. S. Gupta and P. C. Aggarwala, for
respondent No. 1.
1960. February, 23. The Judgment of Sinha, C. J. Imam,
Wanchoo and Shah, JJ. was delivered by Shah, J. Sarkar, J.
delivered a separate Judgment.
SHAH J.-Three candidates, Balwan Singh (hereinafter referred
to as the appellant), Ram Dulari and Gaya Prasad, contested
the election to the U. P. Legislative Assembly from the
Akbarpur Rural Assembly Constituency No. 6, at the last
general elections held in 1957. ‘The polling of votes took
place on February 28, 1957, and the result of the election
was declared on March 2, 1957. The appellant secured the
highest number of votes and was declared duly elected. A
voter named Lakshmi Narain-who will hereinafter be referred
to as the first respondent-submitted an application to the
Election Commission of India to declare the election of the
appellant Balwan Singh
93
void on the ground inter alia that the appellant ” and/ or
his election agent and/or other persons with his consent,
had committed corrupt practices and the result of the
election was materially affected by such corrupt practices
committed in his interest. ” In Cl. (f) of para 9 of the
petition, which is material for this appeal, it was averred
by the first respondent, that in villages set out in
annexure D, the appellant, his agents and workers with the
consent of the appellant, hired and procured bullock carts
and tractors for conveying women electors to and from the
polling station. In Sch. D, was set out a list of 30
villages. This election petition was referred for trial to
the District Judge, Kanpur, who was constituted the Election
Tribunal for trying the petition. The appellant by his
written statement contended that the averments made in Cl.
(f) of para. 9 were untrue; that neither he nor his agents
or workers had ever hired or procured bullock carts or
trucks to convey women voters from the villages set out in
Annexure D or any other village to the polling station. He
also submitted that the first respondent had not disclosed
the names of the voters nor the particulars of the
conveyances, and that the latter could not in view of the
defective pleading be permitted to challenge the election of
the appellant on that charge. On July 15, 1957, the first
respondent applied for leave to amplify the particulars set
out in the various clauses of para. 9, including the
particulars set out in Cl. (f) and prayed for leave to
amplify the recitals in that clause by incorporating Ann.
D-1 in the petition. In Ann. D-1, the first respondent set
out the nature of the vehicles used, the names of the owners
of the vehicles, the names of ‘the villages from -which
women voters were conveyed at the expense of the appellant
to the polling station and back, the hire paid, and the
description of the families to which the women voters who
were conveyed belonged. The appellant submitted in rejoinder
that by his application, the first respondent in substance
sought not to amplify the particulars given by him, but to
make allegations about fresh corrupt practices, and prayed
that several clauses including Cl. (f) of para. 9 be
deleted. On July 29, 1957, the Election Tribunal
94
rejected the application of the first respondent. He
observed that:
” Merely saying that the corrupt practice was followed in
the villages whose list was given in annexure ‘D’ does not
amount to giving particulars as were required to be
furnished by the aforesaid Section 83 (1)(b) of the
Representation of the People Act. ”
and directed that certain paragraphs including Cl. (f) para.
9 and Annexure D be struck off.
Relying upon a judgment of the Allahabad High Court
delivered on September 9, 1957, Mubarak Mazdoor v. K. K.
Banerji and another (1) in which, the practice to be
followed in dealing with allegations of corrupt practices,
made in an election petition, on the ground of vagueness,
was enunciated the first respondent applied for review of
that order. The Election Tribunal, by its order, dated
September 13, 1957, accepted the plea of the first
respondent for review of the order, and directed that the
order dated July 29, 1957, beset aside.
The appellant applied under Art. 227 of the Constitution, to
the High Court of Judicature at Allahabad, challenging the
correctness and propriety of the order ,of the Election
Tribunal reviewing its order dated July 29, 1957. By its
order dated March 6, 1958, the High Court substantially
confirmed the order passed by the Tribunal. The High Court
observed that the Tribunal had jurisdiction to review its
earlier order, and that in the circumstances of the case it
was unnecessary to decide whether the order dated September
13, 1957, was properly passed, because the order dated.
July 29, 1957, was ” unjust and improper “, and the matter
having been brought before it in a proceeding under art. 227
of the Constitution, the High Court could rectify the error
by setting aside the earlier order. Pursuant to the order
passed by the High Court, the averments made in Cl. (f) of
para. 9 were restored, and Ann. D-1 was incorporated in the
petition.
By its order dated August 16, 1958, the Tribunal dismissed
the petition holding that the first respondent failed to
establish the corrupt practices on which
(1) 13 E.L.R. 310
95
the petition was founded. Dealing with the corrupt practice
set out in Cl. (f) of para. 9, the Tribunal observed that
the corrupt practice described in s. 123 (5) of the
Representation of the People Act, lies in the act of hiring
or procuring vehicles by a candidate or his agent, and that
this corrupt practice is not committed merely by conveying
the voters, and as the particulars of hiring and procuring
of the vehicles were not furnished in the petition, and the
evidence adduced by the first respondent to support his case
of hiring or procuring vehicles was unsatisfactory the case
of the .first respondent about the commission of a corrupt
practice by the appellant stood unsubstantiated.
In an appeal under s. 116A of the Respresentation of the
People Act, against the order of the Election. Tribunal the
High Court of Judicature at Allahabad set aside the order
and declared the election of the appellant void. The High
Court held that the petition was defective in that it
omitted to set out the date and place of the hiring of the
tractor, which was proved to have been used for conveying
voters to the polling station, but no prejudice was caused
to the appellant as a result of that omission. In the view
of the High Court the testimony of A. P. Malik, the
Presiding Officer at Naholi polling station, corroborated by
exh. 22, a petition submitted on the date of the polling by
one Raghuraj Singh, agent of Ram Dulari, a contesting
candidate, and further supported by the evidence of witness
Kalika Prasad and another witness Raghuraj Singh,
established that voters were conveyed in a trailer attached
to a tractor, at the instance of the appellant to the Naholi
polling station, and that the evidence of one Hanuman Singh
established the contract of hiring the tractor used for
conveying voters to the polling station. The High Court
accordingly held that the appellant had committed the
corrupt practice of hiring a vehicle for conveying voters to
the polling station. Against the order passed by the High
Court declaring the election of the appellant void, this
appeal has by special leave been filed.
Section 83(1)(b) of the Representation. of the People Act,
as amended provides that an election petition
96
shall set forth full particulars of any corrupt practice the
petitioner alleges, including as full a statement as
possible of the names of parties alleged to have committed
such corrupt practice and the date and place of the
commission of each such practice. Section 123 sets out what
shall be deemed to be corrupt practices for the purposes of
the Act, and by Cl. (5) thereof, as it stood at the material
date, it was in so far as it is relevant, provided:
” The hiring or procuring, whether on payment or otherwise,
of any vehicle or vessel by a candidate or his agent or by
any other person for the conveyance of any elector (other
than the candidate himself, the members of his family or his
agent) to or from any polling station provided under section
25 or a place fixed under sub-section (1) of section 29 for
the poll.”
Neither in the petition as originally filed nor as amended,
the date and place of hiring the tractor which was alleged
to have been used for conveying the voters, and the names of
the persons between whom the contract of hiring was settled,
were set out. The question which then falls to be
determined is : Whether the election petition was liable to
be rejected because it did not set forth particulars of the
date and place of hiring the vehicle alleged to have been
used in conveying voters? In the opinion of the High Court
the corrupt practice described in s. 123(5) being the hiring
or procuring of a vehicle for conveying voters to the
polling station, in the absence of a detailed statement as
to the time and place of the hiring, the petition was
defective. In so opining, the High Court relied upon an
earlier decision of that Court, Madan Lal v. Syed Zargham
Haider and others (1). In that case, Bhargava, J.,
delivering the judgment of the Court, observed:
“…… under s. 123(5) of the Representation of the People
Act, a corrupt practice consists in the act of hiring or
procuring certain types of vehicles by a candidate or his
agent or by any other person for the conveyance of any
elector to or from any polling station. A corrupt, practice
is, therefore,
(1) 13 E.L.R. 456,
97
committed not by conveying the voter but by the act of
hiring or procuring the conveyance. In clause (b) of
section 83(1), an election petitioner is required to set
forth full particulars of the corrupt practice including as
full a statement as possible of the 1 names of the parties
alleged to have committed such corrupt practice and the date
and place of the commission of each such practice. The
language used in this provision of law requires the setting
forth of the full particulars of the corrupt practice and
specially mentions at leapt three particulars which must be
given. These are the names of the parties alleged to have
committed the corrupt practice, the date when the corrupt
practice was committed and the place of the commission of
the corrupt practice.”
Not the contract of hiring but the fact of hiring for
conveying voters to and from the polling station is declared
by s. 123(5) a corrupt practice. A petition which sets
forth the particulars about the use of a vehicle for
conveying voters to and from the polling station, with
details as to the time and place coupled with as full a
statement as possible in support of the plea that the
vehicle was hired or procured by the candidate or his agent
or another person substantially complies with the
requirement of s. 83(1)(b). In considering whether a
corrupt practice described in s. 123(5) is committed,
conveying of electors cannot be dissociated from the hiring
of a vehicle. The corrupt practice being the hiring or
procuring of a vehicle for the conveyance of the electors,
if full particulars of conveying by a vehicle of electors to
or from any polling station are given, s. 83 is duly
complied with, even if the particulars of the contract of
hiring, as distinguished from the fact of hiring, are not
given. Normally, the arrangement for hiring or procuring a
vehicle, is within the special knowledge of the parties to
that agreement and it is difficult to assume that it was
intended to require the petitioner in an election dispute to
set out the particulars of facts within the special
knowledge of the other party, and expose the petition to a
penalty of dismissal if those particulars could not be
given. If particulars in support of the
13
98
plea of the vehicle being hired or procured by the candidate
or his agent or by another person was used for conveying
voters to or from the polling station are set out, failure
to set out particulars of the contract of hiring or
arrangement of procuring will not render the petition
defective.
By The Representation of the People Act, 195 1, as amended
by Act 27 of 1956, a penalty of dismissal of a petition or
the striking out of the plea of a corrupt practice merely
because particulars in that behalf are not set out is not
imposed. By s. 90, cl. (5) of the Act the Tribunal is
authorised to allow 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. By s. 90(1) of
the Act every election petition is, subject to the
provisions of the Act and Rules made thereunder to be tried
as nearly as may be in accordance with the procedure appli-
cable under the Civil Procedure Code to the trial of suits:
and for failure to furnish particulars after being so
ordered but not before the Tribunal may strike out a
defective plea. The practice to be followed in cases where
insufficient particulars of a corrupt practice are set forth
in an election petition is this. An election petition is
not liable to be -dismissed in limine merely because full
particulars of a corrupt practice alleged in the petition,
are not set out. Where an objection is raised by the
respondent that a petition is defective because full
particulars of an alleged corrupt practice are not set out,
the Tribunal is bound to decide whether the objection is
wellfounded. If the Tribunal upholds the objection, it
should give an opportunity to the petitioner to apply for
leave to amend or amplify the particulars of the corrupt
practice alleged; and in the event of noncompliance with
that order the Tribunal may strike out the charges which
remain vague. Insistence upon full particulars of corrupt
practices is undoubtedly of paramount importance in the
trial of an election petition, but if the parties go to
trial despite the absence of full particulars of the corrupt
practice alleged, and evidence of the contesting parties is
led on the plea
99
raised by the petition, the petition cannot thereafter be
dismissed for want of particulars, because the defect. is
one of procedure and not one of jurisdiction of the Tribunal
to adjudicate upon the plea in the absence of particulars.
The appellate court may be justified in setting aside the
judgment of the Tribunal if it is satisfied that by reason
of the absence of full particulars, material prejudice has
resulted; and in considering whether material prejudice has
resulted failure to raise and press the objection about the
absence of particulars before going to trial must be given
duo weight.
Assuming that in the case before us, the petition was
defective because particulars as to the persons between whom
the contract of hiring was entered into, and the date and
place thereof,. have not been set out, the High Court, was
right in holding that no material prejudice was occasioned
thereby. In the written statement to the petition as
originally filed, it was not expressly contended that
because of the absence of particulars as to the names of the
persons between whom the contract of hiring took place, and
the date and place of the contract, the appellant was unable
to meet the charges made against him. Even after the
petition was amended, no such objection was raised by the
appellant. Before the Tribunal, at the hearing of the
argument, a plea that the petition was defective, because of
lack of particulars relating to the names of the persons who
entered into the contract of hiring, and the time and place
thereof was apparently raised. But all the evidence
relating to the hiring and the time and place thereof, was
without objection admitted on the record. It is not even
suggested that because of the absence of the particulars,
the appellant was embarrassed in making his defence, or that
he could not lead evidence relevant to the plea of corrupt
practice set up by the first respondent. We are therefore
unable to hold that any material prejudice was occasioned
because of the absence of those particulars in the petition.
The order of the Tribunal rejecting the application of the
first respondent for amplification of the particulars of the
corrupt practice alleged in the election
100
petition was, for reasons already set out, erroneous; and in
that view the question whether the High Court misdirected
itself in holding itself bound, at the hearing of the
appeal, by its earlier judgment delivered on the writ
petition, does not fall to be determined.
Counsel for the appellant urged that in any event, the High
Court was not justified in disagreeing with the considered
judgment of the Tribunal on questions purely of appreciation
of evidence. But this appeal has been filed with special
leave granted under Art. 136 of the Constitution. It is the
settled practice of this Court to grant leave to appeal
under Art. 136 only if exceptional and special circumstances
exist, or that substantial and grave injustice has been done
and the case presents features of sufficient gravity to
warrant a review of the decision appealed against. Merely
because the appeal has been admitted by special leave, the
entire case is not at large, and the appellant is not free
to contest the findings of fact of the subordinate
tribunals. Only those points on which special leave may
initially be granted, can be urged at the final hearing; and
normally, special leave will not be granted by this Court
under Art 136(1) of the Constitution on a plea of error
committed by the Courts below in the appreciation of
evidence.
This would be sufficient to justify us in refusing to
entertain the argument advanced by the counsel for the
appellant. We may, however, observe that even on a review
of the evidence, we are satisfied that the High Court was
right in its conclusion. There was before the Tribunal the
evidence of Mr. A. P. Malik, the Presiding Officer at the
Naholi polling station, who testified that he had seen on
the day Of Polling a tractor at a distance of 100 to 150
yards from the polling booth. The witness stated that be
did not remember having seen any flag or poster on the
tractor. The witness, however, had made a note in his diary
about an application submitted to him by Raghuraj Singh. P.
W. 30. A copy of that application has been produced, and it
is recited in that application that a tractor had come to
the polling booth and was parked near “the line of voters”;
that some persons a majority of whom were women, were
sitting on the
101
tractor; that a red flag was hoisted and posters of the
socialist party were pasted on the tractor; and that some
men and women, who came on the tractor, were placed in the
queue of voters. There was also the evidence of. Raghuraj
Singh, P.W. 38, a voter in the constituency. He stated that
he had seen the tractor belonging to Chandra Bahadur Pandey
of village Chapargatha, near the polling station; that a red
flag was hoisted and posters were pasted over the tractor
with the symbol of a banyan tree which was the emblem of the
party of the appellant. He further stated that one Kalika
Prasad and some female members of his family had come on the
trailer and Radhey Shyam, an agent of the appellant, had
taken all these voters and had given them slips of paper.
Kalika Prasad was also examined and he stated that he and
his wife and several other villagers had gone to the Naholi
polling station to exercise their franchise on the trailer
attached to the tractor; that a red flag was hoisted and
posters were pasted on the trailer; and that there was on
the posters the legend that votes be cast in favour of the
appellant. It is established by unimpeachable evidence that
a tractor was brought to Naholi Polling Station on the date
of the polling. The Tribunal accepted the evidence of Mr.
Malik, but rejected the testimony of other witnesses on
somewhat fanciful theories. The Tribunal observed that at
the material time no tractor was brought near the polling
booth, and if one was brought, the owner of the tractor may
possibly have given a free lift to the voters to the polling
station and back. The Tribunal also suggested that the
tractor may have been brought without the consent of the
appellant or his agents. But the fact that a tractor was
brought to the polling station, is clearly established by
the evidence of Mr. Malik. That on the tractor was carried
a red flag of the party of the appellant, is established by
the evidence of the two witnesses, Raghuraj Singh, P.W. 30
and Raghuraj Singh P.W. 38, and also by the evidence of
Kalika Prasad. It is also established on the evidence that
on the tractor, were displayed posters bearing the symbol of
a banyan tree, which was the election emblem of the party of
the appellant at the election. There was no
102
sufficient reason for discarding this testimony. Witness
Hanuman Singh P.W. 56 deposed that he was present at the
time of the settlement of the bargain of hiring the tractor
belonging to Chandra Bahadur for conveying voters. The High
Court accepted that evidence and we do not think, judged in
the context of the other evidence that the High Court, was
in error in so doing.
The appeal, therefore, fails and is dismissed with costs.
SARKAR, J. I agree that this appeal fails.
The appellant had been declared elected at an election. The
first respondent filed an election petition under the
Representation of the People Act, 1951 to to have the
appellant’s election declared void. Among other things it
was said that the appellant had committed a corrupt practice
which was described in the petition substantially in these
words: In villages mentioned in annexure D the appellant
hired a tractor for conveying women electors from their
houses to places of polling and back.
The appellant applied to have this allegation struck out as
it did not contain sufficient particulars of the corrupt
practice alleged. The respondent in his turn sought
permission to give particulars of this corrupt practice by
amending his petition by the substitution of a new annexure
to his petition marked DI in the place of the existing
annexure D. The Election Tribunal first made an order
refusing the, amendment and striking out the allegation as
desired by the appellant. Later it made another order
reviewing its earlier order and thereby cancelled that
order. By this order it directed the restoration of the
allegation struck out and the substitution of annexure D by
annexure DI.
The appellant moved the High Court at Allahabad under arts.
226 and 227 of the Constitution against the latter order of
the Tribunal. The High Court held that the Tribunal had the
power to review any order made by it and that the order made
on review allowing the amendment was correct. It also held
that if the Tribunal had no power of review, the High Court
103
being itself seized of the matter, would be deemed to have
set aside the first order of the Tribunal and made an order
allowing the amendment. The appellant did not appeal from
this order of the High Court.
The parties then went to trial before the Tribunal. The
appellant led his evidence without any objection as to the
petition being defective for want of any particulars. The
Tribunal took the view that the corrupt practice alleged had
not been proved and dismissed the petition. On appeal the
High Court held that the corrupt practice had been proved
and set aside the election of the appellant. Hence this
appeal.
It is said that the election petition should have been
dismissed because sufficient particulars of the corrupt
practice alleged had not been given in the petition. The
corrupt practice alleged is of the kind mentioned in s. 123
(5) of the Act which is in these words:
The hiring or procuring, whether on payment or otherwise, of
any vehicle or vessel by a
candidate …………………… for the conveyance of any
elector …………… to or from any polling station.
It is contended that the hiring of the vehicle is an
essential element of the corrupt practice mentioned in this
section. I am leaving out of consideration the procuring of
a vehicle because that is not the case here. It is said
that the petition must, therefore, state the particulars of
the date and place of the contract of hiring and the parties
to it. Reference is made to s. 83 of the Act where it is
provided that, ” An election petition shall 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 the commission of each
such corrupt practice.” The question thus arises whether the
particulars of the parties to the contract of hiring and the
date when, and the place where, it had been made should have
been given.
The respondent does not deny that the particulars of the
contract of hiring had not been stated in the
104
petition. According to him the corrupt practice mentioned
in s. 123 (5) is not committed by the contract of hiring but
by the conveyance of the electors in a hired vehicle.
Hence, he says that no question as to these particulars
arise&
In my view the appellant’s contention is wellfounded. Under
the section the hiring of the vehicle for the conveyance of
electors is the corrupt practice. It is of the essence of
this corrupt practice that the vehicle must have been hired,
that is to say, a contract for the hiring of the vehicle
must have been made. I am unable to imagine how a vehicle
can be hired without a contract. Therefore it seems to me
that particulars of that contract should be given.
I am also unable to appreciate the respondent’s contention.
It seems to me that to say that the corrupt practice is
committed by the conveyance of electors in a hired vehicle
is the same thing as saying that electors had been conveyed
by a vehicle which had been hired, that is, a vehicle in
respect of which a contract of hiring had been made. Simple
conveyance of electors in a vehicle is not enough. The
vehicle must be a hired vehicle. Hence there is no corrupt
practice unless the hiring of the vehicle, that is, the
contract of hire in respect of it is established.
Whether a simple contract of the hiring of a vehicle for the
conveyance of electors without actual conveyance of them
would amount to a corrupt practice or not, is a question
that does not arise in this case. But it seems to me that
whatever view is taken of that question, that would not make
the contract of hiring any the less an essential element of
the corrupt practice described in s. 123(5).
In my view therefore the appellant was entitled to the
particulars the want of which he now complains. The
question then is what is the effect of the failure to supply
these particulars ? I am unable to agree that the petition
was thereupon liable to be dismissed. It has not been shown
to us that the Act provides for such dismissal. Section 83
does not say that on failure to furnish the prescribed
particulars the petition shall be dismissed. On the other
hand, s. 90(3) of the Act provides that, ” The Tribunal
shall
105
dismiss an election petition which does not comply with the
provisions of section 81, section 82 or section 117. ” This
section does not include s. 83. It therefore seems to me
that the appellant was not entitled to a dismissal of the
petition for want of the particulars.
The appellant was certainly entitled to apply for the
particulars. I conceive he would have such a right under s.
83 and also s. 90(1) of the Act which made the provisions of
the Code of Civil Procedure applicable to a trial before an
Election Tribunal, in the view that I have taken, that the
contract of hiring is an essential element of the corrupt
practice’ mentioned in s. 123(5) of the Act. The appellant
however made no such application. Instead he went to trial
and led evidence without making any grievance that he was
hampered in his defence for want of the particulars. He
cannot at a later stage complain about the absence of the
particulars. It is unnecessary to consider what would have
happened if upon the appellant’s application the respondent
had been directed to furnish the particulars and had failed
to do so, for no such order had been made.
It only remains for me to say that it is not open for the
appellant to contend now that the Tribunal was wrong in
reviewing its order. The High Court rejected that
contention in the order made on the application under arts.
226 and 227 of the Constitution. For greater safety it also
made an order allowing the amendment sought by the
respondent. The High Court’s decision not having been
questioned by the appellant by an appeal, is binding on him.
He must therefore accept the position that the amendment of
the petition was proper. I may also state that if the
amendment had not been properly allowed that would not have
made any difference. The only result would have been that
some more particulars.of the corrupt practice alleged would
have been wanting. For the reasons earlier stated this
would not have entailed a -dismissal of the election
petition.
14
106
The only other point that was argued at the bar was a
question of fact, namely, whether the corrupt practice
alleged had been proved. On that point I am in perfect
agreement with the view expressed by my learned brothers and
have nothing to add.
Appeal dismissed.
