Harish Chandra Bajpai vs Triloki Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 333 of 1956

Decision Date: 21 December 1956

Coram: Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, S.K. Das, Venkatramia Ayyar

In this case the Supreme Court of India delivered its judgment on 21 December 1956. The matter was titled Harish Chandra Bajpai versus Triloki Singh. The petition was brought by Harish Chandra Bajpai, who is described as the petitioner, and the respondent was Triloki Singh. The judgment was pronounced by a bench comprising Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha and Justice S. K. Das. The official citation of the decision appears as 1957 AIR 444 and 1957 SCR 370. The issues in the dispute related to the Election Dispute-Petition grounded on alleged corrupt practices, the interpretation of the term “matter” as opposed to “particulars”, the meaning of “trial” in the context of procedure, the scope of amendment powers, the authority of the Election Tribunal, the definition of a person employed for election purposes, distinctions between contracts of service and contracts for services, and the application of various provisions of the Representation of the People Act, 1951 (sections 81, 83(1)-(3), 90(2), 92, 123(7) and 123(8)) together with the relevant rule of the Code of Civil Procedure (Order VI, rule 17).

The respondent, Triloki Singh, filed a petition under section 81 of the Representation of the People Act seeking to set aside the election of the appellant, Harish Chandra Bajpai, to the Uttar Pradesh Legislative Assembly on the ground that the appellant had committed corrupt practices. The material allegations relied upon were twofold: first, that the appellant “could in the furtherance of his election enlist the support of certain Government servants”; and second, that the appellant had employed two persons in excess of the number prescribed for election-related work. The petition did not attach a list of particulars of the alleged corrupt practices as required under section 83(2) of the Act. Subsequently, the respondent applied under section 83(3) for an amendment of the petition to add the names of certain village headmen (Mukhias) who were alleged to have worked for the appellant and later to have served as his polling agents. The Election Tribunal permitted this amendment, noting that a fresh petition on those fresh allegations would have been barred by limitation. The Tribunal held that the amendment merely supplied further particulars of the charge already made and found that the appellant had indeed committed corrupt practices under sections 123(8) and 123(7). Accordingly, the Tribunal declared the election void under section 100(2)(b) of the Act.

The appellants contended that the Election Tribunal lacked authority to entertain the amendment either under section 83(3) of the Representation of the People Act or under Order VI, rule 17 of the Code of Civil Procedure, and that the Tribunal’s finding that the appellant had employed two extra persons was legally erroneous. The Supreme Court examined the scope of the term “matter” in section 83(3) and held that it possessed a wider import than the “particulars” required by section 83(2), encompassing the grounds on which an election may be set aside. However, the Court clarified that section 83(3) was not an exhaustive source of amendment power; its operation was limited to allegations of corrupt and illegal practices. Consequently, for matters beyond such allegations, the power to amend a petition remained available under Order VI, rule 17 of the Code of Civil Procedure read with section 90(2) of the Representation of the People Act, and this power was not displaced by the provisions of section 83(3).

The Court explained that the maxim of exclusio alterius does not apply in this context. It observed that the term “trial” in section ninety of the Act is meant in a broad sense, covering the entire proceedings before the Tribunal from the moment the petition is transferred to it under section eighty-six until the Tribunal pronounces its award. The Court found no conflict between the word “procedure” in section ninety and the term “powers” in section ninety-two. Consequently, when an application falls within the scope of section ninety, the Tribunal possesses the authority to issue the necessary order on that application. The purpose of enacting section ninety-two, the Court said, was to elevate the Tribunal’s powers with respect to the matters enumerated in that provision above the general provisions of the Code of Civil Procedure. The Court cited the decision in Sitaram v. Yograjsing, A.I.R. (1953) Bombay 293, which it approved, as well as Jagan Nath v. Jaswant Singh, (1954) S.C.R. 892. It noted that Sheo Mahadeo Prasad v. Deva Sharan, A.I.R. (1955) Patna was disapproved.

The Court then held that while the Election Tribunal undoubtedly had the power under section eighty-three(3) to permit an amendment concerning particulars of illegal or corrupt practices, or to allow new instances to be included provided the grounds or charges were specifically stated in the petition, it could not use Order seventeen of the Code of Civil Procedure to introduce entirely new grounds or charges that would effectively transform the petition into a fresh one, especially where a new petition on those allegations would be barred by time. The Court referred to the authorities Beal v. Smith, (1869) L.R. 4 C.P. 145; the Greenock Election Case, (1869) L.R. 4 C.P. 150; the Carrickfergus Case, (1869) 1 O’M. & H. 264; the Dublin Case, (1869) 1 O’M. & H. 270; and Maude v. Lowley, (1874) L.R. 9 C.P. 165. It expressly declined to follow Chayan Das v. Amir Khan, [1920] L.R. 47 I.A. 255.

Further, the Court concluded that the amendment in question introduced a new charge, altered the character of the petition, and therefore exceeded the Tribunal’s jurisdiction. It also observed that no evidence had been produced to substantiate the alleged additional employment, and consequently no corrupt practices under clause seven or clause eight of section one hundred twenty-three could be found. In determining whether a person beyond the number permitted by the Act had been employed by a candidate for election purposes, the Court stressed the well-established distinction between a contract for services and a contract of service. In the absence of evidence showing that the contract with the person engaged was one of service—meaning the individual was to perform the work personally, with or without assistance—such a person could not be deemed employed in law, citing Collins v. Hertfordshire Central Council, (1947) K.B. 598.

The Court examined an appeal filed by special leave against the order of the Election Tribunal at Lucknow dated 23 March 1955 in Election Petition No. 320 of 1952. The appeal, recorded as Civil Appeal No. 333 of 1956, was heard in the Civil Appellate Jurisdiction. The judgment was delivered on 21 December 1956 by Justice Venkatarama Aiyar. The parties were represented by counsel for the appellant, which included the Solicitor General of India and other advocates, and counsel for respondent No. 1. The matter arose from a challenge to the declaration that the election of the appellants to the Legislative Assembly of Uttar Pradesh, from the Lucknow Central Constituency, was void under Section 100(2)(b) of the Representation of the People Act, 1951. The constituency was a double-member constituency, one seat being reserved for a member of the Scheduled Castes. The election was held on 31 January 1952, and the two appellants were returned as the successful candidates, having secured the highest number of votes. On 10 June 1952 the respondent filed a petition under Section 81 of the Act alleging that the appellants had engaged in several corrupt practices and seeking a declaration that the election be wholly set aside. The appellants responded with written statements denying the allegations. Issues were framed on 17 January 1953. Thereafter a series of procedural applications were filed, seeking fresh issues for better particulars and amendments to the election petition. Because of these applications the hearing did not commence until September 1954. On 23 March 1955 the Tribunal delivered its judgment, and by a majority held that the election was void on two grounds: first, that the appellants had obtained the assistance of four village officers, known as Mukhias, to further their election prospects, thereby violating Section 123(8) of the Act; and second, that the first appellant had employed, for payment in connection with the election, two persons, namely Ganga Prasad and Viswanath Pande, in excess of the number permitted by Rule 118 read with Schedule VI, thus contravening Section 123(7) of the Act.

The appellants contested the correctness of both conclusions. Regarding the first ground, they maintained that the allegation of employing four Mukhias to aid their election was not part of the original petition as filed and had been introduced only through an amendment dated 28 November 1953. They argued that the Tribunal lacked authority to order such an amendment and that, consequently, the finding based on the amended allegation should be disregarded. In order to appreciate the arguments of each side, the Court found it necessary to set out the factual background that gave rise to the amendment. The material allegations contained in the petition as presented on 10 June 1952 are set out in paragraph 7(c) of the petition, which formed the basis for the subsequent proceedings and the eventual amendment that introduced the charge concerning the four Mukhias.

In the petition that was filed on 10 June 1952, paragraph 7(c) set out a series of specific allegations against respondents numbered one and two. The petition claimed that the two respondents had, in order to promote their election campaigns, secured the support of certain government servants. It was alleged that the District Magistrate of Lucknow had arranged for the opening of eye-relief camps and that these events had been used as platforms for election propaganda on behalf of respondents one and two. The petition further stated that an eye-relief camp was scheduled to be opened on 16 December 1951 at Kakori by Sri C. B. Gupta, who was then the Minister of Civil Supplies for Uttar Pradesh and described as one of the chief organisers of the respondents’ election efforts. According to the petition, a meeting of the respondents’ workers was advertised to be held at a short distance from the proposed eye-relief camp on the same day, and that meeting was to be addressed by Sri G. B. Pant, the Chief Minister of Uttar Pradesh, by Sri C. B. Gupta himself, and by respondent one. The petition further asserted that the meeting was attended by the Patwaris and the Qanungo of the Kakori Circle, the Tahsildar of Lucknow and the Duty Superintendent of Police, Lucknow.

Subsequently, the petition recounted that on 27 December 1951 another eye-relief camp was organised and opened at Kakori. This time the ceremony was performed by Mrs Vijay Lakshmi Pandit, and immediately after the ceremony, from the same platform and at the same location, election speeches were delivered in which the audience was exhorted to vote for Mrs Vijay Lakshmi Pandit, a candidate for the House of the People from that area, as well as for respondents one and two. The petition said that this second meeting was attended by the District Magistrate of Lucknow, the Sub-Divisional Magistrate of Lucknow, the Deputy Superintendent of Police, Lucknow, the Tahsildar of Lucknow, and the Patwaris and Qanungo of the Kakori Circle. The petition concluded that by using this device the respondents had created the impression among voters that they enjoyed the support of district officials. The petition did not attach a list of particulars as required under section 83(2) of the Act.

On 15 December 1952, the first appellant filed his written statement. In that statement, with reference to paragraph 7(c) of the petition, the first appellant declared that the allegations were “wrong” and denied that the answering respondent, in furtherance of his election, had enlisted the support of any government servant. He further contended that the allegations were not accompanied by a list, were vague, lacked particulars and therefore should be struck out. The second appellant filed a written statement on 20 December 1952, which mirrored the same denials and objections raised by the first appellant. Respondent number four, who was a defeated candidate and had supported the respondent in the present case, filed a written statement on 3 December 1952. In his statement he alleged that the appellants had obtained the services of village officers, specifically Lambardars and Sarpanches, to further their election prospects. Respondent number nine, another defeated candidate, filed a written statement on the same day, adopting the allegations of respondent four and additionally adding Mukhias to the list of village officials whose assistance had been procured by the appellants.

On 10 January 1953 the respondent filed a replication to the written statements of the appellants, asserting that the denial by respondents numbered one and two was wholly incorrect because many government servants had worked for, issued appeals on behalf of, and acted as polling agents for those two respondents; the replication further alleged that numerous government servants had participated in meetings at Kakori and had aided the election efforts of respondents one and two by urging the public to vote for them.

Subsequently, on 24 January 1953 the appellants submitted a written statement objecting to the acceptance of the replication, contending that the petitioner had no legal right to file such a document and that it was merely a device intended to introduce additional matters into the original petition; on the same day the appellants also filed an application requesting a preliminary hearing on certain issues raised in their written statements, specifically that the allegations contained in the petition were vague and should be struck off for lack of particulars, and the tribunal scheduled this preliminary hearing for 25 February 1953.

Arguments on the preliminary issues were heard on the scheduled date of 25 February 1953 and were thereafter revisited on 25 August 1953 and on several subsequent days; finally, on 31 October 1953 the tribunal issued an order striking off some of the allegations contained in the petition and directing the petitioner to furnish particulars with respect to the remaining allegations. Concerning paragraph 7(c) of the petition, the order stated that the paragraph was not vague and would therefore remain unchanged; it further observed that the corresponding paragraph of the replication introduced new matters and therefore must be disregarded, and it directed the petitioner to supply the names of the government officials, including patwaris and qanungoes, whose participation had not been identified.

During the course of the preliminary argument and before its conclusion, the respondent filed on 27 February 1953 an application under section 83(3) of the Act seeking to amend his petition; the amendment sought permission to add the words “Village Headmen” together with the names of those headmen, and to state that they had worked for the respondents, issued appeals, and subsequently became polling agents for respondents one and two, and for the first time the application identified the names of the mukhias whose assistance the appellants were alleged to have obtained.

The appellants opposed the amendment on three principal grounds: they argued that the amendment did not fall within the scope of section 83(3); that the matters proposed to be introduced constituted new charges rather than merely particularising existing ones; and that permitting the amendment would alter the fundamental character of the petition, a change that could not be sanctioned because a fresh petition bearing those new allegations would be barred as of that date. It should be mentioned that in January the fourth respondent had filed an application to raise additional issues regarding the alleged assistance of village officers, an application that was likewise contested by the appellants, and both this application and the amendment petition appear to have been heard together.

On 22 January 1953 respondent number four filed an application seeking to introduce additional issues, alleging that the appellants had obtained assistance from village officers. The appellants opposed this application. The Tribunal heard this application together with the earlier amendment petition filed by respondent number two. On 10 November 1953 the Tribunal, by a majority decision, dismissed the fourth respondent’s application for additional issues. Later, on 28 November 1953, the Tribunal again sat by a majority and allowed the amendment application. The Tribunal held that the matters the respondent sought to introduce were only further particulars of the charge contained in paragraph 7(c) of the petition, namely that respondents one and two could, in furtherance of their election, enlist the support of certain government servants. The Tribunal also observed that Order VI Rule 17 of the Civil Procedure Code applied to proceedings before the Election Tribunal. The appellants challenge this finding. They argue that the Tribunal possessed no authority, either under section 83(3) of the Representation of the People Act or under Order VI Rule 17, to order the amendment in question. Moreover, they contend that even assuming such power existed, the amendment order was not justified on the merits and was therefore erroneous.

To understand the statutory framework, the Court set out the relevant provisions. Section 81(1) provides that an election petition challenging any election may be presented on one or more grounds specified in sub-sections (1) and (2) of section 100 and section 101 to the Election Commission, by any candidate at the election or any elector, in the prescribed form, and within the time prescribed, but not earlier than the date of publication of the name or names of the returned candidate or candidates under section 67. Section 83(1) requires that an election petition contain a concise statement of the material facts on which the petitioner relies, and that it be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908. Section 83(2) mandates that the petition be accompanied by a list, also signed and verified, setting out full particulars of any corrupt or illegal practice alleged, including, as far as possible, the names of the parties alleged to have committed such practice and the date and place of each alleged practice. Section 83(3) empowers the Tribunal, on such terms as to costs and otherwise as it may direct, at any time to allow the particulars included in the list to be amended or to order further and better particulars in regard to any matter referred to therein, as it deems necessary to ensure a fair and effectual trial of the petition. Finally, section 85 provides that if the provisions of sections 81, 83 or 117 are not complied with, the Election Commission shall dismiss the petition, a provision reiterated in section 90(2).

Subject to the provisions of the Election Act and any rules made thereunder, the Tribunal was required to try every election petition, as closely as possible, in a manner that followed the procedural rules applicable under the Code of Civil Procedure, 1908, to the trial of civil suits. Notwithstanding any provision contained in section 85, the Tribunal retained the power to dismiss an election petition that failed to comply with the requirements of sections 81, 83 or 117. The Tribunal was also vested with all powers that a court exercising jurisdiction under the Code of Civil Procedure, 1908, possesses when trying a suit, including the authority to order discovery and inspection of documents, to enforce the attendance of witnesses and to require the deponent to bear his own expenses, to compel the production of documents, to examine witnesses on oath, to grant adjournments, to receive evidence presented on affidavit, and to issue commissions for the examination of witnesses. In addition, the Tribunal could summon and examine on its own initiative any person whose evidence appeared material, and it was to be deemed a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898. The discussion then turned to section 83(3), which confers on the Tribunal the power to amend the particulars set out in a list. The Court considered the scope of that power, asking whether the Tribunal, acting under this provision, could direct that new instances of corrupt practices be added to the list, and whether such a direction had been taken in the present case. Counsel for the appellants, the learned Solicitor-General, argued that section 83(3) did not authorize the inclusion of new instances of corrupt practice; rather, it could only require the petition to provide fuller particulars of the instances already mentioned in the petition. The argument in support of this view was articulated as follows: section 81 requires that an election petition state the grounds on which it is founded; section 83(1) mandates that the petition contain a concise statement of the material facts upon which the petitioner relies; and section 83(2) obliges the petition to be accompanied by a list containing full particulars of the alleged corrupt or illegal practices. When the three provisions are read together, the legislature appears to have drawn a distinction between the grounds specified in section 81(1), the facts described in section 83(1), and the full particulars required by section 83(2). In this context, the “facts” of section 83(1) refer to the instances of the charge on which the petition is based, and the “particulars” referred to in section 83(3) can only relate to those instances already set out in the petition pursuant to section 83(1). Consequently, an instance of corrupt practice that is not mentioned in the original petition cannot be introduced under section 83(3). On that basis, it was contended that the Tribunal’s order dated 28 November 1953, which permitted the respondent to allege that the appellants had obtained the assistance of four Mukhias named for the first time in the amendment petition, fell outside the scope of the power conferred by section 83(3).

The Court observed that the respondent’s argument that the Tribunal lacked authority under section 83(3) to permit the inclusion of four Mukhias—whose names first appeared in the amendment petition—was not persuasive. In the Court’s view, when sections 81(1) and 83, subsections (1) and (2), are properly interpreted, they support the respondent’s claim that the Tribunal possessed the power to allow an amendment even if it introduced new instances, provided those instances related to a charge already set out in the original petition. The Court first examined section 81(1), which allows a petition to call an election into question on any of the grounds listed in sections 100(1)-(2) and 101. Those sections enumerate various reasons for setting aside an election, including the corrupt practices enumerated in section 123 of the Act; consequently, the different categories of objections mentioned in sections 100(1)-(2), 101 and 123 constitute the grounds referred to in section 81(1). Turning to section 83(1), the Court noted that it requires the petition to contain a concise statement of the material facts, which includes facts concerning the conduct of the election, its result, the grounds for seeking to set it aside, the petitioner’s right to bring the petition, and similar matters. Section 83(2) further mandates that when an allegation of a corrupt or illegal practice is made, the particulars of that allegation must be listed separately. The Court explained that if the grounds for challenging an election do not involve corrupt or illegal practices—such as an improper acceptance of a nomination or a question of the candidate’s eligibility—section 83(2) does not apply, and the requirements of section 83(1) are satisfied by stating the relevant facts. Accordingly, the facts required under section 83(1) differ from the particulars required under section 83(2). When an election is contested on the basis that the candidate engaged in the corrupt practices set out in section 123, the particulars of those practices fall under section 83(2) rather than section 83(1). The Court therefore concluded that the power conferred by section 83(3) to permit further and better particulars also includes the authority to admit fresh instances of the charges that form the basis of the election challenge. This conclusion was reinforced by reference to decisions of English courts dealing with comparable statutory provisions. The Court cited section 20 of the Parliamentary Elections Act 1868, which requires that an election petition be in the form and contain the matters prescribed by the rules, and noted that Rule 2 of the Parliamentary Election Rules similarly governs the content and form of such petitions.

The Court explained that the election petition must declare the holding and result of the election and must briefly set out the facts and grounds upon which the prayer is based. Rule 5 prescribes the form of an election petition, and its third paragraph instructs that the petitioners should state “the facts and grounds on which the petitioners rely.” The true scope of these provisions was examined in the case of Beal v. Smith. In that case the petition merely alleged that “the respondent by himself and other persons on his behalf was guilty of bribery, treating and undue influence.” The respondent then moved to have the petition struck out on the ground that it listed only the grounds and not the detailed facts required by Rule 2. As an alternative, the respondent asked that the petitioners be ordered to provide particulars of the various corrupt practices alleged. The Court rejected the request to strike out the petition. Chief Justice Bovill observed that the petition, though general, complied with the spirit and intention of the rules and that no injustice would result from its generality because the rules already allowed the respondent to obtain any necessary particulars by an order for details deemed reasonable by the judge. Accordingly, the Court considered it unnecessary to require any further statement in the petition beyond what was already presented. Regarding the alternative prayer, the Court held that directing the petitioners to furnish the required particulars three days before the trial was an appropriate order.

The Court further noted that a similar decision had been rendered in the Greenoch Election Case, which is recorded in a footnote at page 150 of Beal v. Smith. These authorities demonstrate that the requirement to set out grounds and facts is satisfied when the charge on which the election is sought to be set aside is mentioned in the petition; the absence of detailed particulars of corrupt or illegal practices does not render the petition non-maintainable, and it is sufficient that such particulars be ordered to be supplied within a reasonable time before the trial commences. Applying the same reasoning, the Court concluded that sections 81(1) and paragraph 83(1) are complied with when the petition states the grounds for setting aside the election—namely, the matters mentioned in section 100 sub-sections (1) and (2), section 101, and section 123 (which is attracted by section 100(2)(b)). The detailed particulars relating to those grounds, being charges of corrupt or illegal practices, fall under paragraph 83(2). The Court observed that English election law contains no provision corresponding to paragraph 83(2), and therefore the English practice does not require petitioners to list particulars of corrupt practices in the petition, whereas under paragraph 83(2) such particulars must be annexed as a separate list. However, this difference is largely a matter of form rather than substance, because paragraph 83(3) allows particulars to be called for and furnished during the proceedings, and it does not limit the Tribunal’s power to permit new instances to be pleaded.

In this case the Court noted that section 83(2) left the issue of particulars to be dealt with under the rules that governed the trial of causes. The practical effect of this provision was that, unlike the English practice where petitioners were not required to set out particulars of corrupt practices in their petition, Indian law demanded that a statement of those particulars be placed in the petition as a separate list annexed to it. The Court observed, however, that this distinction was essentially one of form rather than of substance because section 83(3) allowed the Tribunal to call for and receive the particulars during the course of the proceedings. Section 83(3) also authorised the list of particulars to be amended or enlarged, and the Court stressed that this did not mean that particulars already mentioned in the body of the petition could not be altered. The reference in section 83(3) to a list had to be read together with the requirement in section 83(2) that the particulars be set out in a list attached to the petition. Consequently, the substance of the provision was that under section 83(3) the particulars could be amended and supplemented, and the power to do so could be exercised even when the particulars were contained in the petition’s main body. Moreover, the Court held that even where no list had been filed, as was the situation before it, the Tribunal retained the competence to allow an amendment that introduced for the first time instances of corrupt practice, provided that such corrupt practice was already pleaded as a ground of attack in the petition.

The Court then turned to another argument raised by the appellants. Their contention was based on the wording of section 83(3). The appellants argued that the section first permitted amendment of the particulars included in the list and secondly allowed “further and better particulars in regard to any matters referred to therein”. According to the appellants, the phrase “any matters referred to therein” referred only to the particulars already set out in the list. From this interpretation they contended that the power to order further and better particulars could be exercised only with respect to particulars that had already been furnished, whether they appeared in the body of the petition or in the list, and that therefore an order permitting the addition of new instances lay outside the scope of section 83(3). The appellants’ reasoning was founded on the assumption that the word “matter” in section 83(3) meant the same as “particulars”. The Court saw no justification for adopting such a narrow construction. It held that the term “matter” was of a broader import than “particulars” and was intended also to encompass the grounds on which the election was sought to be set aside. If the appellant’s construction were accepted, the relevant portion of section 83(3) would read as “further and better particulars in regard to”.

In its view, the words “any particulars referred to therein” cannot be read in a narrow way that limits the provision to a natural or reasonable interpretation of the enactment. Considering the overall scheme of the Act, the Court understood that section 83(3) was intended to give the Tribunal a broad authority. That authority permits not only the amendment of particulars that have already been supplied, but also the addition of fresh particulars and the pleading of new instances, provided that those new matters relate to a ground that was set out in the original petition. The Court noted that this approach conforms with the law and practice of the Election Courts in England. For example, in the Carrickfergus case, the Judge allowed an application to amend the particulars so that matters which had only recently become known to the petitioner could be included. The Judge observed that the petitioner was, in some respects, plainly unaware of the exact grounds on which several charges were based, and therefore it was reasonable to permit amendment of the bill of particulars by adding newly discovered facts. He further emphasized that when the purity of an election is questioned, the inquiry must be as thorough as possible and the Judge must provide every facility to aid that investigation. Similarly, in the Dublin case the Court issued an order directing a list of particulars to be amended and declared that it would allow the greatest latitude to amend unless the party had deliberately withheld information at the time the list was furnished. Accordingly, the order of amendment under consideration could not be attacked merely on the basis that it allowed new instances to be raised. The true issue, the Court said, was whether those instances truly constitute particulars that relate to a ground presented in the petition, or whether, in substance, they represent new grounds of attack.

The Court then turned to the alternative argument raised on behalf of the respondent. The respondent contended that even if the Tribunal lacked power to order the amendment under section 83(3) of the Act, it nonetheless possessed authority to do so under Order VI, rule 17 of the Civil Procedure Code, and that the Supreme Court should not interfere with the Tribunal’s discretion in a special appeal. This raised a question that has been widely debated in both Election Tribunals and the High Courts of the States: whether Order VI, rule 17 applies to proceedings before Election Tribunals. Counsel for the respondent argued that it does apply by virtue of section 90(2) of the Act, which directs that the Tribunal must try a petition “as …” (citation omitted). The Court indicated that resolving this point was essential before addressing the substantive question of the amendment’s validity.

In this case, the Court considered the contention that the procedure prescribed in Order VI, Rule 17 of the Code of Civil Procedure applied to the proceedings before the Election Tribunal, notwithstanding section 90(2) of the Act. The argument relied upon a quotation from Lord Westbury in A G v Sillem, wherein he explained that the term “practice” – and consequently “procedure” – denotes the rules that govern the conduct of a cause within the confines of a court. The Court noted that this definition, as also reiterated in Poyser v Mixors, encompasses every step that may be taken in the prosecution or defence of a case, including an application for amendment. The Court then referred to the decision in Maude v Lowley, which addressed whether the power granted to an Election Court by section 21(5) of the Corrupt Practices (Municipal Elections) Act 1872 to try a petition, as if it were a cause within its jurisdiction, included the authority to order amendment of that petition. The Court observed that the earlier decision held that such power did exist, and identified this as the precise issue under consideration.

The appellants argued that Order VI, Rule 17 could not be held to apply to Tribunal proceedings for four reasons. First, they maintained that section 90(2) requires only the trial of the election petition itself to conform to the provisions of the Code of Civil Procedure, and that amendment of the petition occurs at a stage prior to the trial. Second, they pointed to section 92, which enumerates specific matters in which the Tribunal possesses the powers of a court under the Code, and observed that amendment of pleadings is not among those enumerated matters, thus excluding Order VI, Rule 17 from its jurisdiction. Third, they asserted that the Act distinguishes between procedure and powers, and that section 90(2) extends the Code’s procedural provisions to Tribunal proceedings only, leaving the power to amend under Order VI, Rule 17 outside that extension. Fourth, they argued that section 90(2) is subject to the provisions of the Act and the rules made thereunder; since section 83(3) limits amendment to particulars, the general power of amendment conferred by Order VI, Rule 17 must be excluded.

The Court then turned to the first contention and examined the meaning of the word “trial” in section 90(2). The appellants proposed a narrow interpretation, limiting “trial” to the final hearing of the petition, which would include the examination of witnesses, filing of documents and the presentation of arguments. The respondent, however, contended that “trial” should be understood to cover the entire proceedings before the Tribunal, starting from the moment the petition is transferred to the Tribunal under section 86 of the Act until the award is pronounced. The Court recognized that the term “trial” can be susceptible to both narrow and broader senses, and determined that its proper meaning in section 90(2) must be ascertained by considering the context and purpose of the enactment. The Court noted that section 90(2) appears in Chapter III, headed “Trial of election petitions,” and that section 86(4) provides that if, during the course of the trial, a Tribunal member is unable to perform his functions, the Election Commission shall appoint a replacement and the trial shall continue. This provision applies even to retirement or relinquishment before the hearing commences, indicating that “during the course of the trial” includes stages prior to the hearing. Similarly, section 88 also refers to the trial being held at…

In this case, the Court examined the meaning of the word “trial” in section 90(2) of the Act, noting that the term can be understood in either a narrow sense, referring only to the final hearing of the petition, or in a broader sense, encompassing the entire proceeding before the Tribunal from the moment the petition is transferred under section 86 until the award is pronounced. To determine the appropriate meaning, the Court emphasized that the context and setting of the enactment must be considered. The Court observed that the provision appears in Chapter III, which is headed “Trial of election petitions,” thereby indicating that the term is meant to cover the whole process of trying an election petition. Section 86(4) provides that if, during the course of the trial, any member of the Tribunal is unable to perform his functions, the Election Commission shall appoint a replacement and the trial shall continue. The Court held that “during the course of the trial” must include stages that occur before the hearing itself, such as the retirement or relinquishment of a member prior to the hearing. Section 88 further provides that the trial shall be held at places appointed by the Election Commission, which necessarily includes preliminary matters such as settlement of issues and issuance of directions. The Court explained that after a petition is transferred to the Election Tribunal under section 86, several steps must be taken before the hearing can be set, including the filing of the respondent’s written statement and the settlement of issues. If “trial” were interpreted to mean only the hearing, the Court asked what provision would authorize the Tribunal to call for written statements and settle issues. Section 90(4) allows the Tribunal to dismiss a petition that does not comply with sections 81, 83 or 117, but if it does not dismiss, the Tribunal must have the power to order rectification of defects arising from such non-compliance. Since that power is not expressly conferred by section 92, it can only be exercised under section 90(2), which is possible only if “trial” includes the pre-hearing proceedings. Section 92 vests in the Tribunal powers analogous to those of a court under the Civil Procedure Code when trying a suit, including discovery, inspection, compelling attendance of witnesses and production of documents—activities that clearly precede the hearing. Consequently, the Court concluded that, read as a whole, Chapter III demonstrates that “trial” in section 90(2) is intended to mean the entire sequence of proceedings before the Tribunal from the transfer of the petition under section 86 until the award is pronounced.

In this case, the parties argued that if the entire Code of Civil Procedure were applicable to the trial of election petitions, there would be no need for section 92 to give the Tribunal the powers of a court, because those powers would already flow from section 90(2). The Court observed that this argument ignored the different scope of section 90(2) and section 92. Section 90(2) applied the provisions of the Code of Civil Procedure only to the extent that they were not inconsistent with the Act and the rules made thereunder. By contrast, the powers expressly conferred by section 92 were not subject to any such limitation. The legislature, therefore, intended that the Tribunal’s powers listed in section 92 should stand on a higher plane than the other procedural provisions of the Code. The Court cited the decision in Sitaram v. Yoqrajising, AIR 1953 Bom 293, to note that the powers mentioned in section 92 represented the irreducible minimum that the Tribunal must possess.

The parties further contended that section 92 dealt with powers, whereas section 90(2) dealt only with procedure, and therefore the power to amend a petition could be claimed only under section 92 and not under section 90(2). The Court rejected this distinction, holding that there was no conflict between “procedure” in section 90(2) and “powers” in section 92. When the respondent applied to the Tribunal for amendment, he was taking a procedural step, and that step was clearly permissible under section 90(2). The question of power arose only with respect to the order that the Tribunal would pass after hearing the petition. The Court found no merit in the suggestion that a petition could be presented but no order could be issued on it. Finally, the parties argued that section 90(2) limited the application of the Code of Civil Procedure, and that section 83(3), a special provision on amendment of particulars, excluded the application of Order VI, rule 17. The Court considered this contention untenable. It clarified that the limitation in section 90(2) operates only when the same subject-matter is covered both by a provision of the Act or its rules and by a provision of the Code, and a conflict exists. In matters of amendment of particulars, section 83(3) applies and excludes any conflicting rule of the Code, though no such conflicting rule appears to exist. Where the amendment sought does not relate to particulars, Order VI, rule 17 will apply. The Court thereby rejected the appellants’ reliance on the maxim “expressio unius exclusio alterius” and affirmed that section 83(2) requires the particulars to be stated separately in a list attached to the petition.

In this matter the Court explained that when a provision of the Civil Procedure Code and a provision of the Act both deal with the same subject-matter and there is a conflict between them, the provision of the Act must prevail over the Code. That rule of limitation, however, does not apply when the two provisions relate to different subjects. Section 83(3) of the Act concerns only the amendment of particulars; consequently, if the amendment sought relates to particulars, section 83(3) will apply and any rule of the Civil Procedure Code that might conflict with it is displaced, although the Court noted that no such conflicting rule appears to exist. By contrast, when the amendment sought does not concern particulars, the field is outside the reach of section 83(3) and the procedural rule O.VI, r. 17 of the Civil Procedure Code will therefore govern. The Court pointed out that the appellants erred in assuming that section 83(3) constitutes a comprehensive enactment covering every possible amendment, which it does not. Because of that mistaken assumption, the maxim “expressio unius exclusio alterius” cannot be applied as the appellants suggested. The Court further observed that the requirement in section 83(2) to list the particulars separately in an annexure to the petition is a provision that is peculiar to the Indian statute, and the legislature may have deliberately introduced a power of amendment for that purpose out of abundant caution. In such a situation the aforementioned maxim has no relevance. The Court referred to the commentary in Maxwell on Interpretation of Statutes (tenth edition, pages 316-317), which explains that statutes sometimes contain limited provisions that merely restate the existing law, and that the maxim is inapplicable to such “superfluous” provisions; the only inference is that the legislature was either unaware of the actual state of the law or acted with excessive caution. The Court also cited Halsbury’s Laws of England (Hailsham’s edition, volume 31, page 506, paragraph 651) to support this view. Accordingly, the Court held that the application of O.VI, r. 17 of the Civil Procedure Code to the proceedings before the Tribunal is not barred by section 83(3). Turning to precedent, the Court cited the decision in Jagan Nath v. Jaswant Singh, wherein a petition to set aside an election was filed without impleading a withdrawn candidate, Baijnath, in contravention of section 82 of the Act. The respondent sought dismissal of the petition on the ground that the petition could not proceed without Baijnath. The Tribunal, however, held that the non-joinder of Baijnath was not fatal to the maintainability of the petition and directed that he be impleaded.

In that earlier case, the Tribunal had found the petition maintainable and had issued an order requiring the additional party to be impleaded. That order was subsequently challenged on the ground that the Tribunal possessed no authority to compel the joinder of a new party. The Supreme Court rejected this objection, examining the relevant statutory provisions, including section 90(2) of the Act, and concluded that the Tribunal could exercise the power to implead a new party by relying on Order 1, rules 9, 10 and 13. This decision therefore provides direct authority that the term “trial” for purposes of section 90(2) embraces the procedural steps occurring before the petition is actually heard, and that the word “procedure” in that provision confers the authority to issue orders on matters that are not specifically listed in section 92. The Court further referred to the decision in Sitaram v. Yograjsingh, where it was held that the expressions “procedure” in section 90(2) and “powers” in section 92 are interchangeable, that the procedure contemplated by section 90(2) is broader than the procedure applicable to an ordinary suit, and that the Tribunal, in a proper case, may order the amendment of a petition. By contrast, in Sheo Mahadeo Prasad v. Deva Sharan, it was held that the application of Order VI, rule 17 to proceedings before the Tribunal was excluded by section 83(3) of the Act. The present Court, however, disagreed with that view, reaffirming the correctness of the earlier Sitaram v. Yograjsingh ruling and holding that, in appropriate circumstances, the Tribunal does have the authority to direct amendment of a petition under Order VI, rule 17. The appellants further argued that even if section 83(3) does not bar the application of Order VI, rule 17 to Tribunal proceedings, any exercise of that rule must nevertheless conform to the conditions laid down in section 81 for the presentation of an election petition, one such condition being that the petition must be presented within the time prescribed by the statute. Accordingly, the appellants submitted that no amendment should be permitted if it defeats this time-limit requirement. They relied upon the authorities in Maude v. Lowley and Birkbeck and others v. Bullard to support their position. In Maude v. Lowley, an election petition contended that the successful candidate had employed paid canvassers from the ward, rendering the election void. A subsequent application sought to amend the petition by alleging similar employment of residents from other wards, and this amendment was ordered by Baron Pollock. The correctness of that order was challenged on the ground that, on the date of the amendment application, a fresh petition on those new allegations would have been barred, meaning the Court lacked jurisdiction to make the order. Lord Coleridge, C.J., upheld this contention, observing that section 21(5) imposed a jurisdictional limitation on the power to amend, which must be exercised in accordance with the statutory time-limit provisions.

The Court explained that although section 83(3) gave the Tribunal the authority to amend an election petition, that authority was limited by the provisions of the governing Act, specifically section 13(2), which fixed the time limit within which an election petition could be filed; consequently, any amendment that introduced a new charge had to be refused if a fresh petition on that charge would be barred at the date of the amendment. The Court emphasized that this limitation was not a matter of discretionary judgement but of jurisdiction, a view that had been endorsed in Clark v. Wallond. In the earlier case of Birbeck and others v. Bullard, an application to add a new charge after the statutory limitation period for filing election petitions had been rejected on the ground that the power to grant amendment was “subject to the provisions of the Act.” Relying on these authorities, the appellants argued that even if the Tribunal possessed a general power to order amendments under Order VI, rule 17, that power could not be exercised to raise a new ground or charge when the application was made beyond the limitation period prescribed for filing election petitions. The Tribunal attempted to overcome this obstacle by invoking the well-settled principle that, for amendments under Order VI, rule 17, the fact that a suit on the newly raised claim would be barred on the date of the application is a relevant consideration, but that it does not affect the court’s jurisdiction to grant the amendment in exceptional circumstances, as stated in Charan Das v. Amir Khan. However, the Court held that this approach ignored the restriction imposed by section 90(2), which mandates that the procedure prescribed under the Code of Civil Procedure, including Order VI, rule 17, must be applied subject to the provisions of the Act and its rules. Because the Tribunal had no power to extend the statutory limitation period, an order permitting a new ground to be raised after the time limited by section 81 and rule 119 would violate those provisions and exceed the authority conferred by section 90(2). Accordingly, the Court found the appellants’ contention on this point to be well-founded and correct. In summary, the Court held that under section 83(3) the Tribunal may allow the amendment of particulars relating to illegal or corrupt practices provided the original petition already specifies the charges, and this power extends to permitting additional instances of the same charge, but it does not allow the introduction of entirely new charges beyond the prescribed limitation period.

In this case, the Tribunal possessed authority under Order VI, Rule 17 to order the amendment of a petition, but that authority could not be exercised in a manner that introduced new grounds or charges, nor could it transform the petition into a substantially new one where a fresh petition on those allegations would be barred. The Court therefore needed to determine, applying the principles previously set out, whether the amendment order dated 28 November 1953 was proper and within the Tribunal’s competence. To decide that issue, the Court examined whether the respondent’s proposed amendment sought merely to elaborate the particulars of an existing charge in the petition or whether it attempted to introduce an entirely new charge. The relevant portion of the petition was paragraph 7(c), which had been reproduced in full earlier. Apart from the allegations concerning the meetings held at Kakori, the remaining part of that paragraph asserted only that “respondents I and II could, in furtherance of their election, enlist the support of Government servants.” The use of the word “could” indicates that the respondents were in a position to obtain such support; it does not state that they actually did so. The respondent argued that paragraph 7(c) was intended to mean that the appellants had, in fact, enlisted the support of Government servants, thereby constituting a violation of section 123(8) of the Act for procuring the assistance of Government servants to further their election prospects. The Court questioned why the petition did not express this allegation plainly. The distinction between “could” and “did” is elementary and cannot be confused. In other paragraphs addressing different charges, the respondent explicitly and categorically stated what the appellants and their agents had done. Consequently, the Court noted the inconsistency in the phrasing used in paragraph 7(c). Moreover, the remainder of the paragraph focused on details of the two Kakori meetings and concluded with the claim that “the respondents I and II, by this device, succeeded in creating an impression on the voters that they had the support of the District officials.” This language suggests that the respondent’s charge was that the appellants publicly associated themselves so closely with high officials as to give voters the impression of official endorsement, rather than a direct allegation of bribery or corrupt practice. Accordingly, the Court could not discern from the original wording of paragraph 7(c) any clear, categorical statement constituting a charge under section 123(8) or any other provision of the election law. The respondent did not dispute that the wording of paragraph 7(c) did not expressly allege the commission of a corrupt practice, and the Court found no basis to read a more specific charge into that ambiguous language.

The respondent asserted that the defect in paragraph 7(c) was only a question of expression and that the appellants had correctly taken the allegation to mean that they themselves had committed corrupt practices. It was acknowledged that pleadings should not be interpreted with excessive rigidity and that the substance of the claim, rather than its precise form, should be considered. Nevertheless, the Court examined what substantive charge could be inferred from a vague and general allegation that the appellants “could” enlist the support of Government officials. The Court reminded that accusations of corrupt practices are quasi-criminal in nature and therefore must be stated with sufficient clarity and precision to place the candidates on definite notice. By that measure, the allegation contained in paragraph 7(c) was found to be wholly inadequate. The respondent’s suggestion that the appellants understood the allegation as an admission of corrupt conduct was not supported by the record. In the application filed by the appellants on 24 January 1953 seeking a trial of certain preliminary questions, paragraph 7 was quoted and described as vague and indefinite, noting that it did not allege that respondents No 1 and No 2 had obtained, procured, abetted, or attempted to obtain the assistance of any government servants. Moreover, in the objection lodged by the appellants to the respondent’s application for amendment, they expressed doubt that even the original wording of paragraph 7(c) could be characterised as a major corrupt practice under section 123(8) of the Act. The Tribunal, however, did not address this point and simply presumed that the petition as presented raised a charge under section 123(8). The Court held that such a presumption was erroneous and that the Tribunal’s finding was consequently vitiated. Even assuming that the word “could” in paragraph 7(c) was to be read as “did”, the Court found it difficult to derive a charge under section 123(8). The allegation did not specify whether the Government servants were asked by the appellants to support their candidature or to assist them in furthering their electoral prospects, and it contained no allegation that the servants actually provided any assistance. On that basis, it was difficult to conclude that the petition truly raised a charge under section 123(8). The Court also observed that the amendment introduced for the first time an assertion that certain Mukhias had assisted the appellants in furtherance of their election prospects, thereby creating a corrupt practice under section 123(8). This new material fundamentally altered the character of the original petition, effectively making it a new petition, and the Tribunal lacked the authority to permit such a substantial amendment.

In this case, the Court observed that the amendment sought by the respondent was framed in such a way that it effectively created a new petition, and that the Tribunal did not possess the authority to permit an amendment of that character. The counsel for the appellants further argued that even if the Tribunal had power under O. VI, rule 17 to allow an amendment introducing a new charge, it had not exercised sound judicial discretion in doing so under the circumstances. The Court noted that the original election petition had been filed on 10 June 1952, which was the final date permissible under a. 81 and rule 119. The petition contained in paragraph 7(c) only the minimal elements of a charge under a. 123(8), assuming that such a charge could be inferred from the language. No additional discussion of this charge appeared until December 1952, when respondents 4 and 9, who had traveled with the petitioner, submitted statements alleging that the appellants had obtained assistance from Government servants, including Mukhias, to further their electoral prospects. On 16 January 1953, the respondent filed a replication attempting to incorporate these allegations into the existing petition, but the Court described the result as a mere patchwork. It was pointed out that there was no statutory provision granting a right to file a replication, nor was there any order from the Tribunal authorising such a filing. Subsequently, on 25 February 1953, the appellants presented their arguments at the hearing of the preliminary issue, and, in order to rectify the defects that had presumably been highlighted, the respondent lodged the present application for amendment. Even that application was found to be defective and required further amendment. Notably, the respondent made no effort to explain why the amendment was filed after such a prolonged delay nor why the new allegations had not been included in the original petition. The respondents maintained that the amendment merely expressed what was already implicit in paragraph 7(c). The Tribunal, however, held that despite these shortcomings, the amendment should be allowed in the public interest of preserving the purity of elections. The Court cautioned that the public interest also demands that election disputes be resolved swiftly, which is why a special jurisdiction and tribunals are established for the speedy trial of election petitions, citing the observations of Lord Simonds L.C. in Senanayake v. Navaratne. Considering the circumstances, the Court concluded that the order permitting the amendment would invite serious criticism even in ordinary litigation and is indefensible in an election matter. While acknowledging the respondent’s strongest argument that a special appeal should not interfere with the Tribunal’s discretion, the Court held that further discussion was unnecessary because it was of the opinion that the order of amendment

In the present case the Court observed that the order dated 28 November 1953 was, for the reasons already set out, beyond the jurisdiction of the Tribunal. Consequently the order had to be set aside and the finding that the appellants had committed the corrupt practice prescribed in section 123(8) of the Act was required to be reversed. The Court further held that because the amendment was declared ultra vires, it was unnecessary to consider the appellants’ further submission that there was no legal evidence to support the Tribunal’s finding that they had obtained the assistance of four Mukhias to advance their election prospects. The Court noted that this issue could be disregarded in view of the earlier determination that the amendment itself was invalid.

The next point before the Court concerned whether the first appellant, as held by a majority of the Tribunal, had also violated section 123(7) of the Act. The Tribunal’s factual findings recorded that a person named Ganga Prasad had been engaged by the first appellant to prepare three carbon copies of the Electoral Rolls and had been paid a total of Rs 550 at a rate of Re 0-8-0 per hundred voters. Similarly, a person named Viswanath Pande had been engaged to enter voters’ names on printed cards and had been paid Rs 275 at a rate of Re 0-4-0 per hundred cards. The Court recognized that these payments were unquestionably expenses incurred in connection with the election and that the first appellant had disclosed them in column K of the return of election expenses. The respondent contended, and the Tribunal accepted, that both Ganga Prasad and Viswanath Pande should be regarded as employees hired for the election, and that their inclusion caused the number of persons employed under Schedule VI to exceed the permissible limit, thereby constituting the corrupt practice under section 123(7). The Solicitor-General, however, argued that the facts did not show that the two individuals were employed by the first appellant and that the Tribunal’s conclusion was based on a misinterpretation of law. The Court noted that the determination of whether a person is an employee is a question of fact; if sufficient evidence had been adduced, the Court would not have interfered with the Tribunal’s finding in the special appeal. The burden of proving a contravention of rule 118 lay with the respondent, which it had failed to meet, as no evidence beyond the first appellant’s own statement was presented. The first appellant had merely testified that Ganga Prasad and Viswanath Pande were asked to perform the work on a contract basis, which the Court held was insufficient to establish a contract of employment. The respondent argued that a contract of employment could be based on piece-work as well as time-work and that the appellant’s testimony was material for the Tribunal’s conclusion. While the Court conceded that employment contracts may involve either piece-work or time-work, it emphasized that such a classification alone did not automatically establish an employment relationship.

The Court observed that the mere fact that a contract was for piece-work could not be taken to mean that the contract necessarily constituted a contract of employment. It pointed out that under law there is a well-established distinction between a contract for services and a contract of service, and it quoted the proposition set out in Collins v. Hertfordshire Central Council (1) that in a contract for services the master may order or require what is to be done, whereas in a contract of service the master may not only order or require what is to be done but also prescribe how it shall be done. The Court further noted that it had examined this issue in some detail in Dharangadhara Chemical Works Ltd. v. State of Saurashtra (2), where it held that the proper test for deciding whether a contract was one of employment was to determine whether the agreement was for the personal labour of the person engaged. The Court explained that if the agreement was for personal labour, the contract was to be treated as a contract of employment irrespective of whether the work was performed on a time-work basis or on a piece-work basis, and regardless of whether the employee performed the entire work himself or obtained assistance from others. Consequently, the Court stated that before it could be concluded that Ganga Prasad and Viswanath Pande were employed by the first appellant, it was necessary to show that the contract with them required them personally to carry out the work, whether or not they received help from other persons. The Court found that no such evidence had been produced; the record contained no proof that the two individuals were bound to perform the work personally. In the absence of any evidence, the Court held that the finding that they had been employed by the first appellant could not stand and must be set aside. The Court also concluded that neither of the grounds on which the election of the appellants had been declared void could be supported. Accordingly, the Court allowed the appeal, set aside the order of the Tribunal and dismissed the election petition filed by the respondent, awarding costs to the appellants throughout. Appeal was allowed and the election petition was dismissed. (1) [1947] K.B. 598, 615. (2) [1957] S.C.R. 152.