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TMI Blog1960 (2) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant and/ or his election agent and/or other persons with his consent, had committed corrupt practices and the result of the election was materially affected by such corrupt practices committed in his interest. In Cl. (f) of para 9 of the petition, which is material for this appeal, it was averred by the first respondent, that in villages set out in annexure D, the appellant, his agents and workers with the consent of the appellant, hired and procured bullock carts and tractors for conveying women electors to and from the polling station. In Sch. D, was set out a list of 30 villages. This election petition was referred for trial to the District Judge, Kanpur, who was constituted the Election Tribunal for trying the petition. The appellant by his written statement contended that the averments made in Cl. (f) of para. 9 were untrue; that neither he nor his agents or workers had ever hired or procured bullock carts or trucks to convey women voters from the villages set out in Annexure D or any other village to the polling station. He also submitted that the first respondent had not disclosed the names of the voters nor the particulars of the conveyances, and that the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that the Tribunal had jurisdiction to review its earlier order, and that in the circumstances of the case it was unnecessary to decide whether the order dated September 13, 1957, was properly passed, because the order dated. July 29, 1957, was unjust and improper , and the matter having been brought before it in a proceeding under art. 227 of the Constitution, the High Court could rectify the error by setting aside the earlier order. Pursuant to the order passed by the High Court, the averments made in Cl. (f) of para. 9 were restored, and Ann. D-1 was incorporated in the petition. By its order dated August 16, 1958, the Tribunal dismissed the petition holding that the first respondent failed to establish the corrupt practices on which (1) 13 E.L.R. 310 the petition was founded. Dealing with the corrupt practice set out in Cl. (f) of para. 9, the Tribunal observed that the corrupt practice described in s. 123 (5) of the Representation of the People Act, lies in the act of hiring or procuring vehicles by a candidate or his agent, and that this corrupt practice is not committed merely by conveying the voters, and as the particulars of hiring and procuring of the vehicles we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll. Neither in the petition as originally filed nor as amended, the date and place of hiring the tractor which was alleged to have been used for conveying the voters, and the names of the persons between whom the contract of hiring was settled, were set out. The question which then falls to be determined is : Whether the election petition was liable to be rejected because it did not set forth particulars of the date and place of hiring the vehicle alleged to have been used in conveying voters? In the opinion of the High Court the corrupt practice described in s. 123(5) being the hiring or procuring of a vehicle for conveying voters to the polling station, in the absence of a detailed statement as to the time and place of the hiring, the petition was defective. In so opining, the High Court relied upon an earlier decision of that Court, Madan Lal v. Syed Zargham Haider and others (1). In that case, Bhargava, J., delivering the judgment of the Court, observed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge of the other party, and expose the petition to a penalty of dismissal if those particulars could not be given. If particulars in support of the plea of the vehicle being hired or procured by the candidate or his agent or by another person was used for conveying voters to or from the polling station are set out, failure to set out particulars of the contract of hiring or arrangement of procuring will not render the petition defective. By The Representation of the People Act, 195 1, as amended by Act 27 of 1956, a penalty of dismissal of a petition or the striking out of the plea of a corrupt practice merely because particulars in that behalf are not set out is not imposed. By s. 90, cl. (5) of the Act the Tribunal is authorised to allow particulars of any corrupt practice alleged in the petition, to be amended or amplified in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial of the petition. By s. 90(1) of the Act every election petition is, subject to the provisions of the Act and Rules made thereunder to be tried as nearly as may be in accordance with the procedure appli- cable under the Civil Procedure Code to the trial of suits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to meet the charges made against him. Even after the petition was amended, no such objection was raised by the appellant. Before the Tribunal, at the hearing of the argument, a plea that the petition was defective, because of lack of particulars relating to the names of the persons who entered into the contract of hiring, and the time and place thereof was apparently raised. But all the evidence relating to the hiring and the time and place thereof, was without objection admitted on the record. It is not even suggested that because of the absence of the particulars, the appellant was embarrassed in making his defence, or that he could not lead evidence relevant to the plea of corrupt practice set up by the first respondent. We are therefore unable to hold that any material prejudice was occasioned because of the absence of those particulars in the petition. The order of the Tribunal rejecting the application of the first respondent for amplification of the particulars of the corrupt practice alleged in the election petition was, for reasons already set out, erroneous; and in that view the question whether the High Court misdirected itself in holding itself bound, at the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tractor belonging to Chandra Bahadur Pandey of village Chapargatha, near the polling station; that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant. He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam, an agent of the appellant, had taken all these voters and had given them slips of paper. Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the Naholi polling station to exercise their franchise on the trailer attached to the tractor; that a red flag was hoisted and posters were pasted on the trailer; and that there was on the posters the legend that votes be cast in favour of the appellant. It is established by unimpeachable evidence that a tractor was brought to Naholi Polling Station on the date of the polling. The Tribunal accepted the evidence of Mr. Malik, but rejected the testimony of other witnesses on somewhat fanciful theories. The Tribunal observed that at the material time no tractor was brought near the polling booth, and if one was brought, the ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the substitution of annexure D by annexure DI. The appellant moved the High Court at Allahabad under arts. 226 and 227 of the Constitution against the latter order of the Tribunal. The High Court held that the Tribunal had the power to review any order made by it and that the order made on review allowing the amendment was correct. It also held that if the Tribunal had no power of review, the High Court being itself seized of the matter, would be deemed to have set aside the first order of the Tribunal and made an order allowing the amendment. The appellant did not appeal from this order of the High Court. The parties then went to trial before the Tribunal. The appellant led his evidence without any objection as to the petition being defective for want of any particulars. The Tribunal took the view that the corrupt practice alleged had not been proved and dismissed the petition. On appeal the High Court held that the corrupt practice had been proved and set aside the election of the appellant. Hence this appeal. It is said that the election petition should have been dismissed because sufficient particulars of the corrupt practice alleged had not been given in the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a vehicle is not enough. The vehicle must be a hired vehicle. Hence there is no corrupt practice unless the hiring of the vehicle, that is, the contract of hire in respect of it is established. Whether a simple contract of the hiring of a vehicle for the conveyance of electors without actual conveyance of them would amount to a corrupt practice or not, is a question that does not arise in this case. But it seems to me that whatever view is taken of that question, that would not make the contract of hiring any the less an essential element of the corrupt practice described in s. 123(5). In my view therefore the appellant was entitled to the particulars the want of which he now complains. The question then is what is the effect of the failure to supply these particulars ? I am unable to agree that the petition was thereupon liable to be dismissed. It has not been shown to us that the Act provides for such dismissal. Section 83 does not say that on failure to furnish the prescribed particulars the petition shall be dismissed. On the other hand, s. 90(3) of the Act provides that, The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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