Amin Lal vs Hunna Mal

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 670 of 1964

Decision Date: 29 September 1964

Coram: J.R. Mudholkar, P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, Raghubar Dayal

Amin Lal versus Hunna Mal was decided by the Supreme Court of India on 29 September 1964. The judgment was authored by Justice J. R. Mudholkar and was delivered by a bench consisting of Justices J. R. Mudholkar, P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah and Raghubar Dayal. The case is reported in 1965 AIR 1243 and 1965 SCR (1) 393, and it has been cited in subsequent decisions including 1967 SC 836, 1969 SC 677, 1969 SC 872, and 1976 SC 744. The statutory provisions that formed the core of the dispute were Section 90(3) of the Representation of the People Act, 1951 (the Act), the competency of the Tribunal to allow amendments to an election petition, and Order I, Rule 10 of the Code of Civil Procedure, 1908, which deals with the joinder of parties and the limitation period for filing an election petition.

The petitioner, Amin Lal, challenged the election of the respondent, Hunna Mal, to the State Legislative Assembly on the ground that the respondent, certain agents, and other persons had committed corrupt practices. The respondent raised a preliminary objection, arguing that the allegations of corrupt practices were vague and indefinite. The election Tribunal found that the petition indeed suffered from those defects and would have to be dismissed unless the petitioner either sought leave to amend the petition or supplied more detailed particulars regarding the alleged corrupt practices. The petitioner subsequently filed both a petition for amendment and an amended election petition. The respondent then moved the Tribunal for dismissal of the election petition on the basis that one of the persons alleged to have engaged in corrupt practices was himself a candidate for election, making him a necessary party who had not been impleaded; consequently, the respondent argued that the petition should be dismissed under Section 90(3) of the Representation of the People Act. After hearing arguments, the Tribunal dismissed the election petition. An appeal to the High Court was rejected. In the appeal before the Supreme Court, the petitioner contended that (i) Section 90(3) applied only to petitions as originally filed and not to amended petitions; (ii) no allegation of corrupt practice was made against the candidate who had not been impleaded; (iii) the Tribunal lacked the authority to permit or direct amendment of the election petition; and (iv) the Tribunal should either have allowed the petitioner to join the un‑impleaded candidate as a respondent or to further amend the petition by deleting all reference to that candidate. The Court held that Section 90(3) confers an independent power on the Tribunal to dismiss an election petition for non‑compliance with Sections 81 and 82 of the Act, even when the Election Commission has not chosen to dismiss it under Section 85. Because the Tribunal may permit an election petition to be amended, an amended petition becomes the petition before it, and the Tribunal may accordingly exercise the power conferred by Section 90(3) in relation to such an amended petition.

In relation to the amended petition, the Court observed several points. First, it noted that the allegations directed at the candidate who had not been impleaded were, in fact, allegations of corrupt practice, as reflected in the record at page 400E. Second, the Court held that the Election Tribunal possessed the authority to permit the appellant to amend the petition or to provide an option for amendment. By granting such an option to amend or to furnish more detailed particulars, the Tribunal was not assisting the appellant in remedying the defect concerning the presentation of the petition or the joinder of parties under sections 81 and 82 of the Representation of the People Act, a view supported by the citation at pages 402A‑B. The Court also referred to the precedent set in Harish Chandra Bajpai v. Triloki Singh, [1957] S.C.R. 370, which was expressly followed. Moreover, even assuming that the Tribunal could allow the joinder of parties, the Court found that the appellant’s application made under Order I Rule 10 of the Code of Civil Procedure (Act 5 of 1908) was filed after the period prescribed for presenting an election petition, and therefore could not be entertained. The Court emphasized that the question lay within the discretion of the Tribunal, a discretion that this Court would not lightly disturb. Consequently, the Tribunal was correct in refusing any further amendment, for allowing such an amendment solely to evade the penalty provided under section 90(3) would have been grossly improper, as recorded at pages 40 D‑G.

The judgment proceeded to set out the procedural history of the appeal. This was a civil appeal numbered 670 of 1964, filed against the judgment and order dated 27 August 1963 of the Punjab High Court in FA 04E of 1963. Counsel for the appellant and counsel for the respondent were noted, and the judgment was delivered by Justice Mudholkar. The central issue on appeal concerned whether the Election Tribunal at Rohtak was justified in dismissing the election petition under subsection (3) of section 90 of the Representation of the People Act, 1951, because the petition allegedly failed to comply with the requirements of section 82 of the Act. The appellant, a registered voter in the 64‑Hissar City constituency of the Punjab Legislative Assembly, challenged the election of the respondent, who had stood as a candidate in the poll held on 24 February 1962. There had been eleven nominations, one of which was Suraj Bhan, the respondent’s brother; five candidates, including Suraj Bhan, withdrew within the prescribed time, leaving six names published under section 38 of the Act. The appellant raised several grounds for setting aside the election, the principal one alleging that the respondent, his agents, and others acting with his consent had engaged in corrupt practices. In paragraph 9(c)(i) of the petition, filed with the Election Commission on 8 April 1962, the appellant specifically alleged that “the respondent by himself and through his agents with his consent has…”

In the petition the appellant alleged that the respondent had committed the corrupt practice of promoting feelings of enmity and hatred between different classes of the citizens of India. The allegation specified that the promotion was attempted on the grounds of religion, community and language. The respondent was a candidate who had been sponsored by Shri Devi Lal of Chautala. Shri Devi Lal was a rebel leader who had left the Punjab Congress and allied himself with Professor Sher Singh, the leader of the Hariana Lok Samiti. The declared creed of the Hariana Lok Samiti was the promotion, or the attempt to promote, feelings of enmity and hatred between the residents of the Punjab region and the residents of the Hindi region. According to the petitioner the Samiti had, in effect, partitioned the Punjab State into two communal groups, namely Punjabis and non‑Punjabis. The principal target of the Samiti’s leaders, workers, sponsored candidates and their agents were the Congress candidates. The Congress candidates were portrayed in every constituency of the Hindi region as henchmen of Shri Partap Singh Kairon, the Chief Minister of Punjab. The petitioner further claimed that the respondent and his agents described the Chief Minister as a staunch Sikh who favoured the Punjabi region at the expense of the Hindi region, especially the non‑Sikh population thereof.

The petition further alleged that the respondent, his chief agent Shri Devi Lal, and their supporters described the Congress candidate Shri Balwant Rai in this constituency as an enemy of the Hindi‑region residents, particularly non‑Sikhs. They warned that his election would become a great obstacle to non‑Sikh inhabitants and would herald the death knell of the Hindi language. This poisonous propaganda, based on the dichotomies of Punjabis versus non‑Punjabis, Sikhs versus non‑Sikhs, and Hindi versus Punjabi, was said to have been employed by the respondent and Shri Devi Lal throughout the constituency. The employment of the propaganda began from the date the nomination paper was filed and continued until the polling day. The means of dissemination included various pamphlets, posters, and articles printed in the newspaper titled ‘Hariana Kesri’, which served as the mouthpiece of Shri Devi Lal’s rebel Congress faction. The pamphlets, posters and newspaper copies containing the inflammatory material were either published directly by the respondent or produced by the office of the group headed by Shri Devi Lal. These copies were taken from the ‘Hariana Kesri’ office with the respondent’s consent and were distributed on a large scale by the respondent’s workers and agents across the constituency. The petitioner indicated that the actual copies of these writings would be produced at a later stage when they became available. In a written statement filed by the respondent on 11 July 1962, he raised preliminary objections. One of those objections claimed that the petition failed to comply with the requirements of section 83(1) of the Act because it did not contain a concise statement of material facts. The objection further asserted that the petition did not set out full particulars of the alleged corrupt practices.

The respondent contended that the election petition did not provide complete particulars of the alleged corrupt practices. He asserted that the allegations were false and that the petition was vague because it omitted the names of the agents or other individuals purported to have committed the corrupt acts. In response, the appellant maintained that every known detail that could be supplied concerning the various alleged corrupt practices had been set out in full. Consequently, the Tribunal framed a preliminary issue asking whether any of the allegations of corrupt practices described in paragraph 9 of the petition were vague, indefinite, and lacking the particulars required by law, and, if so, what legal effect should follow. After hearing arguments on this preliminary point, the Tribunal delivered its finding on 3 September 1962. The Tribunal held that the petition indeed suffered from the defects identified by the respondent. It therefore offered the appellant two alternatives: either to obtain leave to amend the petition or to enlarge the particulars of the corrupt practices in accordance with the observations contained in the Tribunal’s order. The Tribunal further directed that, should the appellant fail to pursue either alternative, the vague charges would be struck off. Acting upon this direction, the appellant filed an application for amendment of the petition together with an amended petition on 6 September 1962. In the amended petition, the latter part of paragraph 9(c)(i) was altered to read as follows: “This poisonous propaganda, based on the two communities of Punjabis and non‑Punjabis, the two religions of Sikhs and non‑Sikhs, and the two languages of Hindi and Punjabi, was employed by the respondent, his chief agent Shri Devi Lal, with the respondent’s consent, throughout the constituency through various pamphlets. One such pamphlet, titled ‘Phoolon ki Sej se Kanton ki rah par, mager kion ?’, contained a speech of Shri Devi Lal dated 5‑2‑1962; the copy attached to the amended petition shows that its title page claimed publication by the Half‑Tone Art Press, Delhi, under the name of Dr Ganpati Singh Verma, 3 Darya Ganj, Delhi, while the remainder of the pamphlet purported to have been printed at Shivji Mudranalaya, Kinari Bazar, Delhi. Another pamphlet, titled ‘The case of Hariana and Hindi Region’, was authored by Professor Sher Singh, President of the Hariana Lok Samiti, and was presented to the Dass Commission. The pamphlet sought to present the Hariana case before the Commission in a manner that would incite hatred between the Sikh and non‑Sikh populations of Punjab State by using figures concerning State Government servants of all ranks employed in the two regions; these pamphlets were distributed by respondent No. 1, his brother Shri Suraj Bhan, and his relative Shri Lakshmi Chand.”

In the matter before the Tribunal, the respondent submitted a written statement on 9 September 1962 in answer to the amended election petition. The respondent specifically denied the allegations contained in paragraph 9(c)(i) of the petition and reiterated that those allegations were vague. The appellant responded to this denial with a replication dated 11 September 1962. On the following day, 12 September 1962, the issues for trial were framed. On the same day the respondent moved before the Tribunal for dismissal of the petition under section 90(3) of the Act, contending that Suraj Bhan, who had been alleged by the appellant to have engaged in corrupt practices, was a validly nominated candidate and therefore a necessary party to the petition. The respondent argued that because Suraj Bhan had not been impleaded, the petition should be dismissed pursuant to sub‑section (3) of section 90.

On 16 November 1962 the appellant filed a reply to the respondent’s application. In that reply the appellant asserted that the allegation against Suraj Bhan did not constitute a corrupt practice and further maintained that Suraj Bhan could not be said to be a candidate for election within the meaning of section 82(b) of the Act. The appellant also submitted that the rule requiring a candidate to be made a party to the petition should not apply to the amended petition, particularly because the amendment had been filed in accordance with an order of the Tribunal. On the same date the appellant made an application under Order 1, Rule 10 of the Code of Civil Procedure seeking permission to join Suraj Bhan as a respondent to the petition. In paragraph 9 of that application the appellant offered an alternative prayer: if the Tribunal would not allow Suraj Bhan to be joined as a respondent, the appellant requested that the words “his brother Shri Suraj Bhan” be deleted from paragraph 9(c)(i) of the amended petition, specifically the fifth line from the bottom of clause (c)(i) of paragraph 9. The respondent opposed this application.

After hearing both parties, the Tribunal dismissed the appellant’s application dated 16 November 1962 and also dismissed the election petition. The appellant subsequently appealed to the High Court of Punjab, but that appeal was unsuccessful. Nevertheless, the High Court granted the appellant a certificate of appeal under Article 133(1)(c) of the Constitution, and the matter therefore reached this Court. The Tribunal’s dismissal of the petition was based on the ground that the petition failed to satisfy clause (b) of section 82, which requires a petitioner to join as respondents any other candidate against whom allegations of any corrupt practice are made.

In this case the Court explained that Section 79(b) of the Act defines a “candidate” as a person who has been or claims to have been duly nominated as a candidate at any election, and that such a person is deemed to be a candidate from the moment, when the election is foreseeable, he begins to present himself as a prospective candidate. Accordingly, Suraj Bhan, who had been duly nominated, remained a candidate for the purposes of Section 82 even though he withdrew his candidature within the time allowed by the rules. The Court referred to its earlier decision in Mohan Singh v. Bhanwarlal, A.I.R. 1964 S.C. 1366, where it held that a person who was duly nominated does not cease to be a candidate for the purposes of Parts VI, VII and VIII of the Act merely because he later withdrew. Consequently, the Court stated that any election petition that alleges corrupt practice against such a person cannot be properly constituted unless that person is joined as a respondent. The counsel for the petitioner argued, however, that sub‑section (3) of Section 90 contemplates only the petition as originally filed and not an amended petition. He submitted that, under that provision, both the Tribunal and the Election Commission possess the authority to dismiss an election petition on the ground of non‑compliance with Section 82. He further asserted that there is no statutory provision permitting amendment of an election petition while the Election Commission is dealing with it, and that because sub‑section (3) of Section 90 makes the Tribunal’s powers identical to those of the Election Commission under Section 85, the term “election petition” must be understood to mean an unamended petition. The Court noted that it need not decide whether the Election Commission itself can allow amendment; even assuming it cannot, that does not mean the Tribunal, to which the petition has been referred for trial, lacks the power to dismiss the petition after the petitioner amends it. The Court then turned to the procedural scheme for trial of election petitions, which is set out in Chapter III of the Act, beginning with Section 86. Section 86 provides for the appointment of an Election Tribunal and states that if the Election Commission does not dismiss the petition under Section 85, the petition shall be referred to the Tribunal for trial. Sub‑section (1) of Section 90 further provides that, subject to the Act and any rules made thereunder, every election petition shall be tried by the Tribunal, as far as possible, in accordance with the procedure prescribed by the Code of Civil Procedure, 1908, for the trial of suits. Accordingly, under Order VI, Rule 17 of the Code of Civil Procedure, a civil court has the power to permit amendment of pleadings, and the Court observed that the Tribunal can likewise exercise the same power with respect to a petition referred to it for trial.

The Court observed that a civil court possesses the authority to allow amendment of pleadings, and consequently the Election Tribunal, when it receives a petition for trial, may exercise the same authority with respect to that petition. Sub‑section (3) of section 90 states that the Tribunal shall dismiss the petition if it fails to comply with the provisions of sections 81 or 82, even if the Election Commission has not dismissed the petition under section 85. This language indicates that the Tribunal’s power to dismiss an election petition is independent of any earlier decision by the Election Commission. The provision therefore creates a distinct power for the Tribunal to dismiss a petition on the ground of non‑compliance with sections 81 and 82, regardless of whether the Commission chose to dismiss it on those grounds. Because the Tribunal may permit amendment of any election petition, once a petition is amended it becomes the only petition before the Tribunal, and the Tribunal may exercise the powers conferred by sub‑section (3) of section 90 in respect of that amended petition. To hold otherwise would render the legislative grant of powers ineffective for a class of election petitions, which the Court found inconsistent with the purpose of the statute. The Court saw no language in section 90 that withdraws any of the Tribunal’s powers after an amendment, and no other provision was identified that would curtail the express authority given to the Tribunal by sub‑section (3) of section 90. Accordingly, the Court could not accept the contention that amendment deprives the Tribunal of its dismissal power.

The Court then addressed the second contention that the amended petition did not allege a corrupt practice against Suraj Bhan. The Court referred to the amended portion of paragraph 9(c)(i) of the petition, wherein the appellant clearly alleged that certain pamphlets were distributed, among others, by Suraj Bhan. One pamphlet bore the title “Phoolon ki sej se kanton ki rah per, mager kion?” and another was titled “The case of Hariana and Hindi Region.” The petition claimed that the language of these pamphlets was intended to foster hatred between Sikhs and non‑Sikhs in the State of Punjab. Under sub‑section (3‑A) of section 123 of the Act, the promotion or attempted promotion of enmity or hatred between different classes of citizens on the basis of religion, race, caste, community or language by a candidate, his agent, or any other person with the consent of a candidate or his election agent, for the purpose of influencing the election, constitutes a corrupt practice. The Court concluded that the allegations against Suraj Bhan therefore fall squarely within the definition of a corrupt practice as articulated in the statute.

Mr. Setalvad argued that the petitioner’s amendment did not amount to an accusation that Suraj Bhan intended to foster or attempt to foster feelings of enmity, hatred or any similar sentiment. He further maintained that, strictly speaking, the allegations contained in the petition were directed against the respondent and not against Suraj Bhan. According to his submission, merely stating that Suraj Bhan had distributed the pamphlets, without attributing to him either express or implied knowledge of the pamphlet contents, could not be read as an allegation of corrupt practice. To bolster this position, he pointed out that the petitioner had expressly told the Tribunal that no allegation of corrupt practice was ever meant to be made against Suraj Bhan. The Court, however, observed that this characterization was inaccurate. In paragraph 16 of its order the Tribunal had stated that the allegations made against Suraj Bhan in the amended petition were indeed allegations of corrupt practice. Moreover, the allegation levelled against the respondent was framed in practically identical terms to those levelled against Suraj Bhan and the other individuals mentioned in paragraph 9(c)(i) of the petition. The petitioner’s affidavit did not claim that the respondent lacked either express or implied knowledge of the pamphlet contents, yet it accused the respondent of corrupt practice for distributing the pamphlets through Suraj Bhan and others. Consequently, if the statements in paragraph 9(c)(i) were not to be treated as allegations of corrupt practice against Suraj Bhan, they could not be treated as such against the respondent either. To treat them otherwise would strip paragraph 9(c)(i) of any meaning or significance. Both the High Court and the Tribunal have interpreted those allegations as allegations of corrupt practice, and the Court saw no reasonable alternative construction.

Mr. Setalvad further contended that the Tribunal lacked authority to permit or direct amendment of an election petition because such a petition was not a suit between two parties but a proceeding in which the entire electorate had an interest. He referred to two earlier Supreme Court decisions, K. Kamarai Nadar v. Kunju Thevar and Mallappa Bassappa v. Basavarai Ayyappa, to support his view. The Court noted that, prior to the 1956 amendment of the Act, the provisions of the Code of Civil Procedure concerning the trial of suits were made applicable to the trial of election petitions by way of section 90(2). Those provisions now appear in section 90(1) of the amended Act. Regarding allegations of corrupt or illegal practices, section 83(2) – together with the present provision in section 83(1)(a) – required that full particulars of the parties alleged to be guilty of such practices be supplied. Earlier, subsection (3) had authorized the Tribunal to permit amendment of those particulars, but that subsection has since been deleted. While subsection (3) was in force, the Supreme Court had held in the Harish Chandra Bajpai v. Triloki Singh case that, notwithstanding the provision, the Tribunal possessed the power to allow amendment under Order VI, rule 17 of the Code of Civil Procedure for matters that did not fall within subsection (3) of section 83. Justice Bhagwati, who participated in those earlier decisions, had not dissented from that view. He had observed that the Tribunal could not grant permission to amend the petition so as to enable a petitioner, whose filing failed to comply with sections 81 or 82, to cure the defect. In the present case, however, the Tribunal offered the petitioner an option either to amend the petition, to furnish the required particulars, or to have paragraph 9(c)(i) struck out on the ground of vagueness, thereby allowing the petitioner to remedy the defect in the presentation of the petition.

In the earlier decision of Chandra Bajpai v. Triloki Singh (3), the Court observed that despite the statutory provision, the Tribunal possessed the authority to permit amendment under O. VI, r. 17 of the Code of Civil Procedure for matters that did not fall within sub‑section (3) of s. 83. Justice Bhagwati, who participated in that decision and authored the judgments in the two cases previously referred to, did not express any dissent from this view. However, Justice Bhagwati did state, with respect to permission to amend, that the Tribunal could not grant an amendment which would enable a petitioner whose petition failed to comply with the provisions of s. 81 or s. 82 to remedy the defect. The judgments cited for this principle are recorded in (1) [1959] S.C.R. 583, (3) [1957] S.C.R. 370 and (2) [1959] S.C.R. 611. In the case before LIS, the Tribunal, by offering the appellant the alternative either to amend the petition, to furnish additional particulars, or to have para 9(c)(i) struck off as vague, effectively enabled the appellant to correct a defect concerning the presentation of the petition or the joinder of parties—issues governed by ss. 81 and 82. The Court agrees with the reasoning expressed in Harishchandra Bajpai’s case (1) and holds that the Tribunal was competent to give the appellant the option to amend the petition. The next contention raised by counsel is that, because the petition became defective by reason of the amendment, the Tribunal should either have permitted the appellant to join Suraj Bhati as a respondent or to further amend the petition by deleting reference to Suraj Bhan. A party may avail himself of the provisions of O. I. r. 10(1), C.P.C., subject to the law of limitation. Assuming that a Tribunal can permit the joinder of parties, the Court notes that under s. 81 of the Act an election petition must be presented within forty‑five days of the date of the election of the returned candidate. The application under O. I. r. 10 was made more than eight months after the election of the respondent and was therefore excessively delayed and could not be granted. With respect to the joinder of Suraj Bhan exercised under the powers conferred by O. I. r. 10(2), the matter was within the discretion of the Tribunal and the Court will not lightly interfere with the Tribunal’s decision. Finally, it cannot be forgotten that the appellant had the choice, when the Tribunal made its order on 3 September 1962, to decline amendment and suffer para 9(c)(i) being struck off. The appellant chose to amend and consequently lost the right to adopt the alternative. Moreover, although the decision in Kamraj Nadar’s case (2) may not strictly apply to allow a further amendment for avoiding the penalty under s. 90(3) of the Act, permitting such an amendment would have been grossly improper, and the Tribunal was

The Court observed that the lower tribunal was clearly justified in rejecting the amendment that had been sought. In light of the entire record and the arguments presented, the Court concluded that the appeal could not be sustained. Accordingly, the Court ordered that the appeal be dismissed and expressly declined to make any order regarding the award of costs. The dismissal of the appeal therefore leaves the earlier decision of the tribunal in force without any alteration. The Court further noted that no costs would be awarded to either party, thereby leaving each side to bear its own expenses. The final order thus reads that the appeal is dismissed with no costs ordered by the court herein. The Court cited an earlier authority reported in the 1957 volume of the Supreme Court Reports at page 370. It also referred to a second authority appearing in the 1959 volume of the Supreme Court Reports at page 583. Both cited decisions dealt with similar procedural questions and were considered appropriate to support the present conclusion clearly. No further relief was sought or granted, and the matter stands concluded as directed by the Court here. Consequently, the judgment is final and binding on the parties, and no further application on the same issue may be entertained.