Prasanna Kumar Patasani Vs. Janaki Ballav Pattnaik - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....orderr.k. dash, j. 1. this order disposes of two petitions -- one filed by the petitioner for amendment of his pleadings, which is registered as misc. case no. 4 of 1996 and the second by the respondent to strike off certain paragraphs of the petitioner's pleadings as irrelevant, which is registered as misc. case no. 15 of 1996. earlier to the filing of misc. case no. 15 of 1996, the respondent had filed a similar petition which was registered as misc. case no. 94 of 1995, but since the said petition was not signed and verified by the respondent himself, he filed another petition. for the sake of convenience i shall first take up petitioner's case regarding amendment of his pleadings. 2. the petitioner has challenged the respondent's election to the orissa legislative assembly on the.....

Judgment:
ORDER

R.K. Dash, J.

1. This order disposes of two petitions -- one filed by the petitioner for amendment of his pleadings, which is registered as Misc. Case No. 4 of 1996 and the second by the respondent to strike off certain paragraphs of the petitioner's pleadings as irrelevant, which is registered as Misc. Case No. 15 of 1996. Earlier to the filing of Misc. Case No. 15 of 1996, the respondent had filed a similar petition which was registered as Misc. Case No. 94 of 1995, but since the said petition was not signed and verified by the respondent himself, he filed another petition. For the sake of convenience I shall first take up petitioner's case regarding amendment of his pleadings.

2. The petitioner has challenged the respondent's election to the Orissa Legislative Assembly on the ground of corrupt practice under Section 100(1)(b) of the Representation of the People Act, 1951 (for short, 'the Act'). By filing the present petition for amendment he seeks to amplify the particulars of corrupt practice, material facts of which have been set out in paragraphs 18, 19 and 21 (A) to 21(S) of the election petition. Since such prayer has been seriously challenged by the respondent, for better appreciation of the contentions raised, it is necessary to refer the same in seriatim.

3. It is stated that name of one Bhikari Pattanaik appearing in paragraph 19 of the petition is an inadvertent mistake and so his name be deleted by substituting the name of one 'Gajendra Naik'.

4. In paragraph 21(D) of the petition, it is alleged that the respondent in order to enhance the prospect of his election instructed the Government to instal tube-wells throughout Begunia constituency in war footing and accordingly 590 tube-wells were rapidly installed in various places. By the proposed amendment the petitioner has sought to introduce two incidents regarding alleged involvement of the respondent as well as his election agent. So far as respondent is concerned, it is stated that on 9-5-95 at about 9 a.m. he visited village Simor along with the Executive Engineer, P.H.D. and in presence of the villagers directed the Executive Engineer to instal a tube-well at once so that the voters would vote in his favour and in fact tube-wells were installed much before the date of polling. As regards the second incident, it is stated that on 21-5-95 at about 3 p.m. respondent's election agent Shri Lalatendu Bidya-dhar Mohapatra visited village Haja along with the Executive Engineer, P.H.D. and directed him to instal tube-wells within two days.

5. The next amendment is in respect of paragraph 21(E) of the main petition. Originally the petitioner pleaded that the respondent in order to influence the voters to cast vote in his favour utilised the services of Pratap Chandra Patnaik, P.W.D. Executive Engineer on 3-5-95 onwards and directed him to construct road and small culverts and do similar works out of Government funds. In the proposed amendment he has sought to bring two other new facts, one concerning the respondent and the other relating to respondent's election agent Lalatendu Bidyadhar Mohapatra. So far as the respondent is concerned, petitioner's case is that on 7-5-95 he along with his election agent Lalatendu Bidyadhar Mohapatra and Sri Pratap Chandra Patnaik, Executive Engineer, P.W.D., visited Begunia constituency and directed the Executive Engineer Sri Pratap Chandra Patnaik in presence of villagers to start metalling of Atri-Baghamari Road, and Govindpur-Kantabada College Road and complete the work before the date of polling. As to the second incident, it is alleged that on 15-5-95 the election agent of the respondent Lalatendu Bidyadhar Mohapatra along with the Executive Engineer Pratap Chandra Patnaik visited village Ganapur and in presence of the villagers directed Shri Patnaik to construct new culvert on Sanapur-Ostapur-Road.

6. The fourth amendment sought for relates to paragraph 21 (F) of the petition. The grievance of the petitioner at the outset was that the respondent was utilising the Government machinery for his election propaganda and more particularly he availed of the services of Government vehicle OAX 746 in the election. By seeking amendment the petitioner has sought to introduce altogether a new story that the Government vehicle OAX 746 was used by Lalatendu Bidyadhar Mohapatra, the election agent of the respondent and Harihar Sahu, Ex M.L.A.

7. The fifth amendment relates to paragraph 21(H) of the petition. Initially the petitioner alleged that the respondent and his cabinet colleagues held several public meetings to vote in favour of the respondent and in those meetings they committed corrupt practice by bribing the voters. One of such meeting was held on 23-5-95 at Raj Suna-khala Tala Bazar where the Deputy Chief Minister Shri Basanta Kumar Biswal influenced the voters to vote for the respondent. In the proposed amendment the petitioner has sought to introduce altogether a new story alleging that in the meeting (meaning thereby the meeting dated 23-5-95) the election agent of the respondent was in the dias along with Shri Basanta Kumar Biswal and before Shri Biswal spoke anything, the agent introduced Shri Biswal as the great supporter of the respondent and declared that what he (Shri Biswal) would speak on the dias has the full consent and approval of the respondent.

8. The sixth amendment sought for is with regard to paragraph 21 (K). In the election petition the petitioner has alleged that Rahamatulla Khan, the Executive Engineer, Irrigation, Khurda Division, actively participated during the election to further the election prospect of the respondent. By way of amendment the petitioner seeks to introduce the details of the alleged participation of Shri Khan, inasmuch as he allegedly held meetings of Muslims on 22-5-95 along with the respondent and promised to arrange sufficient money for Wakf Board for the well being of the mosque and requested the Muslim voters to vote for the respondent. In another meeting at Sunakhala near the local mosque Shri Khan addressed the gathering of Muslims to vote for the respondent.

9. The seventh proposed amendment sought for is in respect of paragraph 21(L) of the petition. It was initially pleaded that the respondent, his agent and supporters in order to rouse the religious sentiment of the voters engaged three women as 'Kalisi'. In the proposed amendment the petitioner has sought to introduce altogether a new story alleging involvement of the respondent's election agent Lalatendu Bidyadhar Mohapatra. It is stated that the election agent requested the public that as the 'Kalisi' was saying that the respondent would win the election and the same being the version of Goddess, everyone should vote for the respondent.

10. The last amendment relates to certain typographical mistake appearing in paragraph 21(p) of the petition. It is stated that in place of the words 'election agent', 'polling agent' be substituted.

11. The respondent has objected to the petitioner's prayer for amendment. Referring to Section 87 of the Act it is urged that no doubt the High Court in exercise of discretionary power may allow the particulars of any alleged corrupt practice to be amended or amplified in such manner as in its opinion be necessary, but it cannot allow the amendment which will have the effect of introducing particulars of corrupt practice not previously alleged in the petition. Therefore, the amendment sought for if allowed will change the very basis of the allegations, The further case of the respondent is that by way of amendment the petitioner has tried to introduce altogether a new story regarding the corrupt practice alleged to have been committed by the respondent's election agent and this being contrary to the provisions of the Act and the law enunciated by the apex Court, cannot be allowed.

12. Shri B. B. Mohanty appearing for the petitioner by referring to Sections 83(1)(b) and 86(5) of the Act, contended that where the election of a returned candidate is challenged on the ground of corrupt practice, full particulars of such corrupt practice are to be set forth in the election petition and when amendment with regard to the particulars is sought for, the same should be allowed, provided it does not have the effect of introducing the particulars not previously alleged. So once the amendment sought falls within the purview of Section 86(5) the High Court should be liberal in allowing the same unless in the facts and circumstances of the case it finds it unjust and would cause prejudice to the respondent. In support of such submission he relied upon a decision of the Apex Court in the case of F.A. Sapa v. Singora, AIR 1991 SC 1557.

On the other hand Shri B. Mishra, Senior Counsel for the respondent, submitted that in the election petition the petitioner has narrated corrupt practice alleged to have been committed by the respondent and nothing has been whispered against his election agent, but in the proposed amendment he has mostly alleged about the respondent's election agent having resorted to corrupt practice and the same being contrary to Section 86(5) of the Act cannot be allowed. Section 100 of the Act enumerates the grounds under which an election can be declared void. Clause (b) of Sub-Section (1) of the said Section provides that the High Court shall declare the election of a returned candidate void if the returned candidate or his election agent or any other person with the consent of the returned candidate or his election agent has committed any corrupt practice. For the purpose of the Act, corrupt practices have been set out in Section 123 and as provided in Sub-Section (7) thereof, obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or by any other person with the consent of the candidate or his election agent any assistance for the furtherance of the prospects of the candidate's election from any person in the service of the Government as enumerated therein will amount to corrupt practice. In most of the paragraphs of the proposed amendments allegations are against the respondent's election agent that to further the election prospects of the respondent he obtained/procured the services of the Executive Engineers and the Deputy Director, Social Forestry and all these being introduction of new material facts not previously pleaded, cannot be brought on record for the first time by way of amendment. Shri Misra further submitted that as provided in Section 81, an election petition calling in question any election will be presented within 45 days from, but not earlier than the date of election of the returned candidate. But the proposed amendment to introduce particulars of alleged currupt practice by the respondent's election agent having been made much after the period of limitation prescribed for filing the petition, cannot be allowed for the reason that on the date of filing of the petition for amendment, the petitioner could not have maintained the election petition.

13. Section 83 of the Act enjoins that an election petition shall contain a concise statement of 'material facts' and shall refer to 'particulars' of any corrupt practice which the petitioner alleges. Section 86(5), as presently stands, empowers the High Court to allow the 'particulars' of any corrupt practice alleged in the petition to be amended or amplified, provided that the amendment does not have the effect of widening the scope of the election petition by introducing particulars of corrupt practice not previously pleaded. In other words, the amendment or amplification must relate to particulars of a corrupt practice already pleaded and the same must not be an effort to expand the scope of the inquiry by introducing particulars of altogether a different courrupt practice not earlier pleaded. Only the particulars of that corrupt practice, germ of which exists in the election petition can be amended or amplified and there cannot be introduction of any new corrupt practice. It is significant to note that Section 86(5) permits 'particulars' of any corrupt practice alleged in the petition to be amended or amplified and not the 'material facts'. It is, therefore, clear from Clause (a) and (b) of Section 83 and Sub-Section (5) of Section 86 that there is a distinction between 'material facts' referred to in Clause (a) 'particulars' referred to in Clause (b) and what Section 86(5) permits is the amendment/ amplification of the latter and not the former. Thus, the power of amendment granted by Section 86(5) is relatable to Clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to Clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. This becomes crystal clear on the plain words of the closely connected trinity of Sections 83(1)(a), 83(1)(b) and 86(5) of the Act See F.A. Sapa v. Singora and others, AIR 1991 SC 1557, Samant N. Balkrishna v. George Fernandez, (1969) 3 SCR 603 : AIR 1969 SC 1201, and D.P. Mishra v. Kamal Narayan Sharma (1971) 1 SCR 8 : AIR 1970 SC 1477.

14. In the case in hand the petitioner while challenging the election of the respondent has not given concise statement of the material facts of corrupt practice, if any, committed by the election agent of the respondent. In the proposed amendment he has sought to introduce material facts as also the particulars thereof for the first time and the same being impermissible in view of the authoritative pronouncements of the Apex Court referred to above, cannot be allowed. In that view of the matter, that part of the amendment which relates to the alleged corrupt practice of the respondent's election agent is disallowed. For clarity, the rest part of the amendment given in the schedule of the petition which is allowed is reproduced hereunder:

A. In paragraph 19 at page 8 the name written as 'Bhikari Pattanaik' in line 6 and in line 14 of the paragraph be delete and in its place name of 'Sri Gajendra Naik' be substituted.

B. In paragraph 21(D) of the election petition following Sub-paragraph be added:

'The respondent after filing his nomination being the Chief Minister in order to enhance the election prospects directed the Executive Engineer, Public Health Department (P.H.D., Khurda) to instal Tubewells in different Villages of Begunia Constituency. On 9-5-1995 at about 9 a.m. the respondent visited Village Simor along with Executive Engineer, P.H.D. and in presence of the Villagers he directed the Executive Engineer to instal of Tubewell at once so that the voters of the Village vote in his favour. The Exeutive Engineer immediately promised before the people that he will complete the instalation of Tubewells within two days and in fact the P.H.D., Executive Engineer installed the Tubewells much before the date of polling. One of the villager named Ramakant Mohanty who was present in the Village when the respondent and the P.H.D., Executive Engineer visited on 9-5-1995 and heard the direction of the respondent to the Executive Engineer and also the undertaking of the Executive Engineer before the Villagers.' C. In paragraph 21(E) following Sub-paragraph be added at the end of the paragraph :

'On 7-5-1995 the respondent along with his election agent Sri Lalatendu Bidyadhar Mohapatra and Sri Pratap Chandra Patta-naik P.W.D., Executive Engineer toured the Begunia Constituency and at village Kanta-mali, Village Ganapur and Village Govindpur the respondent stopped and in presence of the Villagers he directed P.W.D., Executive Engineer, Sri Pratap Chandra Pattanaik to start metalling of Atri-Baghamari Road, Govindpur-Kantabada College Road and also directed Sri Patnaik, the Executive Engineer to complete the works before the date of polling and the Executive Engineer promised to oblige the respondent before the Villagers to start the works immediately and in fact the works were started by the Executive Engineer immediately. Sri Parikhita Martha of Kantamali and Durga Charan Martha of Ganapur and Radha Mohan Panda of Gobindpur were present when the respondent directed the Executive Engineer to start the road construction work.' D. The following Sub-para be added after Sub-para 21(k):

'During the election Campaign from date 4-5-1995 till dated 25-5-1995, the respondent used to make night halt in the house of Sri Rahamatulla Khan and Sri Rahamatullah Khan was entertaining him and looking after his dinner. He was also accompaning him to different muslim area such as Kadaba, Manikagoda, Jamuishahi, Arakhapalli etc. and pursuading the muslim voters to vote for respondent and this is being done at the instance of the respondent on dated 22-5-1995 in the Village Kusapulli in a meeting of Muslims near Kusapulli mosque, Rahimutullah Khan along with the respondent promised to arrange sufficient money through wakf Board for the well being of the mosque and Sri Khan requested the Muislim voters to vote for Sri Patnaik. This has been seen by one of the local person named Dayan Khan. Similarly in another meeting in Sunakhala near the local Mosque, Sri Ranamtutllah Khan addressed the gathering of Muslims and Sri Khan requested the Muslims to vote for Sri Patnaik. This meeting was also attended by Sardar Jalil Khan of Pananagar (Sunakhala). It is relevant to mention that during the stay of respondent in the house of Sri Rahamtullah Khan he used to talk about election strategy with Sri Patnaik and other supporters and the fact of night halt during the election Campaign, as well as Sri Khan was accompaning the respondent was seen by Sri Krushna Chandra Pradhan of Vill. Bolgarh.' E. In paragraph 21(p) at page 19 of the election petition in the second line the word 'election agent' be deleted and the word 'polling agents' be substituted.

15. Next I shall refer to the question of striking off certain paragraphs of the petitioner's pleading as prayed for by the respondent. It is urged that the respondent's election having been challenged on the ground of corrupt practice and the only question to be determined being whether respondent resorted to corrupt practice to win over the election, the petitioner ought not to have made false and vexatious insinuations against him and the same having no nexus with the issue involved, should be struck off from the pleadings. In reply, the petitioner contends that while challenging the respondent's election on the ground of corrupt practice he has narrated about his political image which having been shattered, damaged his prospect in the election and therefore, it is necessary to bring all his anticidents into evidence in order to prove the corrupt practice resorted to during the election. Paragraphs 3, 4, 7, 8, 10, 11 and 12 relate to the respondent's alleged political image within Congress party and certain incidents allegedly happended in the previous elections. All these allegations even remotely do not have any nexus with the fact in issue of the present case. So far as paragraphs 6, 13 and 14 are concerned it is stated about his involvement in Illustrated Weekly case and vigilance case. In most of the above paragraphs there has been assassination of the respondent's character and in my opinion, the same cannot be allowed to remain.

16. In view of my discussions made above, paragraphs 3, 4, 6, 7, 8, 10, 11, 12, 13 and 14 of the petition are struck off from the pleadings.

17. Both the above Misc. Cases are accordingly disposed of. In the circumstances, there shall be no order as to costs.