JUDGMENT <NAME>, J.

1. By this application under Articles 226 and 227, Constitution of India the petitioner seeks to have a writ in the nature of 'certiorari' issued for quashing the order of <ORG>, whereby an amendment to the election petition filed by opposite party No. 1 was allowed.

2. The petitioner and opposite party Nos. 1 to 8 were candidates at the by-election of <ORG> from the Fatwa Constituency, Opposite party Nos. 3 to 8 withdrew their candidature, and the petitioner and opposite party Nos. 1 and 2 contested the said election. The polling station with which we are concerned in the present proceeding was at Saidanpur, where there were two polling booths, namely, booth No. 1 and booth No. 2. The polling was held in the entire Fatwa Constituency including the two booths of Saidanpur on 7-6-1953. It is alleged that the ballot boxes of polling booth No. 2 of Saidanpur polling station were attempted to be tampered with by one <NAME>, polling agent of the petitioner, <NAME>. Since the attempt to tamper with the ballot boxes failed as the alleged culprit was caught red-handed, the polling continued with the consent of the agents of all that candidates concerned.

Some of the ballot boxes of polling booth No. 1 were found to have been tampered with, and therefore, there was repolling in that booth on 11-6-1953. The counting having been done on 12-6-1953, at Barh, the result was announced on the same day by the returning officer of the Fatwa Constituency, and the petitioner was declared to have been duly elected. The election of the petitioner was declared by notification published in <ORG>-ordinary, dated 16-6-1953. Thereafter, opposite party No. 1, <NAME>, filed an election petition under Section 81, Representation of the People Act of 1951 (hereinafter to be called the Act) to <ORG> on 8-8-1953, on the allegations that the nomination papers of opposite party No. 2 had been wrongly accepted by the returning officer and that some corrupt practices had been committed by the men of the petitioner at the time of the election.

This election petition was sent to <ORG>, Patna, for trial and was published in <ORG> by the Chairman of the said <ORG>. The petitioner filed written statement on 10-11-1953, and issue was also settled on the same day. In the meantime, a criminal case was started against the aforesaid <NAME>, polling agent of the petitioner, for his attempt to tamper with the ballot boxes in Saidnapur booth No, 2 and that case was proceeding before the Munsif-Magistrate at Barh. During the trial of that case it transpired that the ballot boxes of booth No. 2 were not at all counted, but the tampered ballot boxes as well as ballot boxes containing repolled ballot papers of booth No. 1 of Saidanpur polling station were counted. It is alleged on behalf of opposite party No. 1 that he got this information on 18-12-1953. Thereafter, he filed on 21-12-1953, an application before <ORG> for amendment of the election petition by adding an additional ground that the ballot boxes of polling booth No. 2 of Saidanpur polling station were not at all included in the counting and they were not counted and Instead the ballot papers polled on 7-6-1953, at polling booth No. 1 at Saidanpur polling station, the boxes of which had been tampered with, were included in the counting and the election was materially and prejudicially affected. By the amendment opposite party No. 1 also sought to add a new prayer for declaration that the election of the Fatwa Constituency was vitiated, and the election of the returned candidate is void by reason of the fact that the ballot papers polled at polling booth No. 2 of Saidanpur polling station were not included in counting and the ballot papers of the polling booth No. 1 of Saidanpur polling station polled on 7-6-1953, were included in the counting which should have been excluded.

The petitioner objected to the amendment being made, but <ORG> relying in the provisions of Section 90(2) of the Act read with Order 6, Rule 17, Civil P. C., allowed the amendment. The petitioner has, therefore, come to this Court for getting that order quashed.

3. The only question that requires consideration in this case is whether <ORG> had any jurisdiction to allow the amendment of the election petition. Mr. <NAME>, appearing for the petitioner, has contended that there is no provision in the Act for allowing the amendment of the election petition by adding either a new ground of attack or a new prayer. On the other had, Mr. <NAME>, appearing for opposite party No. 1, has contended that Section 90(2) of the Act read with Order 6, Rule 17, Civil P. C., gives ample jurisdiction to <ORG> to allow such amendment.

4. Section 90(2) of the Act provides that, subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the <ORG>, as nearly as may be, in accordance with the procedure applicable under the Civil P. C., 1908 (Act V of 190S), to the trial of suits. Section 92 of the Act states as follows:

"The <ORG> shall have the powers which are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters:

(a) Discovery and inspection;

(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses;

(c) compelling the production of documents;

(d) examining witnesses on oath;

(e) granting adjournments;

(f) reception of evidence taken on affidavit and

(g) issuing commissions for the examination of witnesses, and may summon and examine 'suo motu', any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)".

5. Mr. <NAME> has contended that, though under Sub-section (2) of Section 90 general provision has been made for the application of <ORG>, to the trial of an election petition Section 92 has restricted the application of the Code to the matters enumerated in that section; in other words, his argument is that the provisions of Civil P. C., only with respect to the matters contained in Section 92 can be applicable to the trial of an election petition. In my opinion, the argument is not valid. Section 92 of the Act deals with the powers of the <ORG>, and the Election <ORG> is entitled under that section to exercise all the powers which are vested in a court under the Code of Civil Procedure with respect to the items enumerated in Clauses (a) to (g) of that section. The exercise of the powers with respect to those items is not controlled by any provision of the Act; in other words, the Election <ORG> has got the uncontrolled powers with respect to those items which are vested in a court under <ORG>

Apart from those items, there are other matters in respect of which also the procedure adopted in the Civil P. C., may have to be applied in trying an election petition. But the application of those provisions is made subject to any provision made in the Act or in the rules made thereunder. This is clear from Section 90(2) of the Act. Reading the two sections together, therefore the position seems to be clear that, whereas <ORG> can exercise the powers which are vested in court under the Civil P. C., with respect to the items enumerated in Section 92 of the Act without any restriction, the provisions of the Code in other respects may also be applicable to the trial of an election petition subject to the restrictions made by the Act or the rules framed under the Act.

This view of the two sections gains support from a Bench decision of <ORG> in -- 'Sitaram Hirachand v. Yograjsingh', AIR 1953 Bom 293 (A), wherein <NAME>, C. J. accepted the contention raised on behalf of the opponents that, whereas Sub-section (2) of Section 90 is made subject to not only the provisions of the Act but of any rules, made thereunder, Section 92 is not made subject to any rules and the scheme of the Act is that the powers conferred upon the <ORG> under Section 92 are minimum powers which cannot be taken away by any rules framed under the Act, whereas the general power of procedure given to the <ORG> under Section 90(2) is a power which is subject to the rules and the rules may modify, limit or restrict the power that a <ORG> may exercise similar to the power exercised by a <ORG> under the Civil P. C. The contention of Mr. <NAME> is, therefore, rejected.

6. Order 6, Rule 17, Civil P. C., empowers the court at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and as may be necessary for the purpose of determining the real question in controversy between the parties. Ordinarily, if not otherwise restricted, this provision of the Code will be applicable to the trial of an election petition and <ORG> shall have the power under this provision to allow amendment of an election petition. But the question is whether the Act or the rules made thereunder have in any way, restricted or limited the exercise of that power. Section 90(2) itself speaks that the application of the provisions of the Civil P. C. shall be subject to the provisions of this Act and of any rules made thereunder. We have, therefore, to examine the various sections of the Act and the rules made thereunder to find out as to what was the scheme of the Act and how far the power of amendment of election petitions has been restricted or limited by the Act or the rules.

7. Section 64 of the Act read with Rule 46 made thereunder provides for the supervision of tile counting of votes by candidates' election agents and counting agents who are entitled to inspect the ballot boxes and their seals for satisfying themselves that they are in order. Section 81 deals with the presentation of an election petition on such ground or grounds as are specified in Sections 100 and 101 of the Act and specifically lays down that such an application has to be presented within such time as may be prescribed. Rule 119 prescribes time within which an election petition has to be presented.

According to this rule, in the case where such petition is against a returned candidate, it has to be presented at any time after the date of publication of the name of such candidate under Section 67 , but not later than fourteen days from the date of publication of the notice in the Official Gazette under Rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer; and in the case where there are more returned candidates than one at an election and the election petition calls in question the election as a whole, it has to be presented at any time after the date of publication of the names of all the returned candidates under Section 67 but not later than sixty days from the expiration of the time specified in Sub-rule (1) of Rule 112 for the lodging of the returns of election expenses of those candidates with the Returning officer. Subsections (1) and (2) of Section 83 make provisions for the contents of an election petition and for the particulars that may support the allegations.

Section 117 requires a deposit of security to be made by the petitioner in an election petition. Section 85 runs as follows:

"If the provisions of section 81 , section 83 or section 117 are not complied with, <ORG> shall dismiss the petition: Provided that, if a person making the petition satisfies <ORG> that sufficient cause existed for his failure to present the petition within the period prescribed therefor, <ORG> may, in its discretion, condone such failure".

If the petition is not dismissed under Section 85 , <ORG> is to appoint <ORG> for the trial of the petition under Section 86 . Section 90(4) lays down that notwithstanding anything contained in Section 85 , the <ORG> may dismiss an election petition which does not comply with the provisions of Section 81 , Section 83 or Section 117 . Sub-section (1) of Section 90 , requires the <ORG> to cause a copy of the petition together with a copy of the list of particulars referred to in Sub-section (2) of 83 to be served on each respondent to be published in the official <ORG>, and provides that at any time within fourteen days after such publication, any other candidate may be entitled to be joined as a respondent if he gives such security for costs as the <ORG> may direct.

A perusal of the various sections and the rules referred to above gives a clear indication that the scheme of the Act is that sufficient opportunity should be given to the candidates to know what they may have to allege in their election petitions if they choose to file such petitions and that before the prescribed period it should be ascertained once for all what the petition is and what charges are to be met by the respondents. This rules out the possibility of permitting an amendment to be made in the election petition by raising new charges after the prescribed period. It seems to me that if <ORG> is called upon to deal with any charge not laid before the authority within the prescribed period, it would be acting beyond its jurisdiction. In my opinion, therefore, when once an election petition is filed, there should be no amendment unless it is specifically provided in the Act.

8. In, practically, a similar state of law it was held in -- 'Maude v. <NAME>', (1874) 9 C.P. 165 (B), that a petition against the election of a town-councillor cannot, after the expiration of the period for its presentation, be amended by the introduction of a substantially new charge. Lord <NAME>, C. J., in the course of his judgment, observed as follows:

"Sub-section 5 of Section 21, which deals with the jurisdiction of the <ORG>, is as follows: 'The Superior <ORG> shall, subject to the provisions of this Act, have the same powers, jurisdiction, and authority with reference to an election petition and the proceedings thereon as it would have if the petition were an ordinary cause within its jurisdiction'. It may be taken, therefore, that, if not limited and restrained by the Act, this <ORG> would have power to amend the petition. But I am of opinion that the words "subject to the provisions of this Act" do limit and restrain the power of the <ORG>, and prevent the exercise of the jurisdiction sought to be exercised in this case. The 2nd Sub-section of Section 13 of the Act, which prescribes the time within which a petition shall be presented, enacts that a petition shall be presented within twenty-one days after the day on which the election was held, unless it complains of the election on the ground of corrupt practices, and specifically alleges a payment of money or other reward to have been made or promised since the election by a person elected at the election, or on his account or with his privity, in pursuance or furtherance of such corrupt practices, in which case it may be presented at any time within twenty eight days after the date of the alleged payment or promise, whether or not any other petition against such person has been previously presented on tried.

The enactment is distinct, that the petition must be presented within twenty-one days, except in the one specified case of an offence not discovered since the election, but which has taken place since the election; and in such case the petition may be presented at any time within twenty-eight days, not after the discovery of the offence, but from the taking place of that which constitutes the offence. That is extremely strong to show the intention of the legislature that, except in the specifically excepted case, the petition must be presented within twenty-one days after the day of the election.

Then, does the introduction of the additional allegation make this in effect a new petition ? It is said that it is merely expanding and making more plain that which is already expressed. But that is not, in my opinion, a well-founded contention, because the petition as originally framed charges only one of the offences pointed out by Section 7 , and as amended it charges both. To allow such amendment, therefore, would far exceed the jurisdiction given us by Section 21 , Sub- section 5 . The respondent has a right to know once for all within the twenty-one days what are the precise charges which he has to meet, and may then destroy any documents and vouchers he may possess that might have reference to any other charges. Mr. <NAME> has also pointed out that, after the expiration of the twenty-one days, it would be too late for any one else to present a fresh petition; and that to allow a petitioner to amend so as substantially to make the amended petition a fresh one, would be conferring upon him a privilege which no other person could possess".

9. <NAME>, <NAME> in his concurrent judgment observed as follows:

"It was clearly the intention of the legislature that the persons elected should know within a limited time whether or not their election was to be questioned, and also the grounds upon which it was to be questioned. And for that purpose Sub-section 2 of Section 13 requires that the petition shall be presented within twenty-one days save in the excepted case of bribery since the election. Anything which materially adds to the charge, especially if it introduces an additional charge, would constitute not an amendment but a fresh petition".

10. This case seems to be on all fours with the present case and for the reasons given by their Lordships in that case, I would hold that <ORG> had no jurisdiction to allow the amendment by adding a new charge. It may be noted here that it is undisputed in the present case that the amendment sought to be made is beyond the prescribed period both under Clauses (a) and (b) of Rule 119.

11. Reliance has been placed by Mr. <NAME> appearing for the respondents on the case of --Dickering v. <NAME>', (1873) 28 L. T. (N. Section) 111 (C). In that case a petition against a municipal election was filed on the grounds of treating, bribery, and intimidation; the petitioner found, on inspection that the returning officer had neglected to insert in the counterfoils of twenty-nine of the voting papers used at the election the number of the voters appearing on the burgess roll and that certain "tendered" ballot papers were used as ballot papers and were put into the ballot box and afterwards counted in favour of the respondent. The petitioner thereupon sought amendment of his petition by adding the above facts. It was held in that case that the questions intended to be raised by the amendment were of importance and might seriously affect the election, and therefore, the amendments should be allowed.

In that case the <ORG> Judge in accordance with the practice, refused inspection oil the votes until the petition was filed. The order of inspection was made subsequent to the filing of the petition, and, therefore, obviously the grounds that were sought to be put in by amendments could not have been taken at the time of the filing of the petition. That case is, therefore, no authority for the proposition that an amendment by way of putting in new charges to an election petition should be allowed after the prescribed period. Our attention has also been drawn to the following observation in --'Aldridge v. <NAME>', (1876) 1 C. P. D. 410 (D), made by <NAME>, J.:

"We by no means decide that this court has no power to make amendments in petitions, provided it sees that no injurious or unjust result or that a beneficial result will follow".

In that case an amendment was sought to be made in an election petition by striking out a part of the prayer, viz., that which claims the seat for Major <NAME> the petitioner, and certain other allegations applying to a scrutiny which would be dependent on this claim. In that case also reliance was placed on the provisions which invested that court subject to the provisions of the Act with the same powers, Jurisdiction and authority with reference to an election petition and the proceedings thereon as it would have if such petition were an ordinary cause within its jurisdiction. It was held in that case that the powers there given were subject to the provisions of the Act; the jurisdiction conferred by the Act could not in all respects be the same as that of the court in ordinary causes. The prayer of the petitioner was rejected and in rejecting that prayer the following observation was made:

"It appears to us that it would be an infringment of this right, if, a petition having been presented by one person (in this case a candidate) claiming the seat, the claim to the seat could be withdrawn by the mere motion of the person presenting it, after the twenty-one days, when no other petition could be presented, and thus the voters be prevented from claiming the seat for one who may be the duly elected representative".

Towards the end of the judgment, however, <ORG> made the observation which has been quoted in the beginning and on which reliance has been placed on behalf of the opposite party, namely, that "we by no means decide that this court has no power to make amendment in petitions, provided it sees that no injurious or unjust result or that a beneficial result will follow".

His Lordship, however, just after the observation referred to the case of (1873) 28 L. T. (N. S.) 111 (C), where the prayer for amendment was allowed, and to the case of (1874) 9 C. P. 165 (B), where the amendment was refused. I have already dealt with these two cases. It is, therefore, clear that the observation was made, not as a rule of general application, but only as being applicable to special cases. In my opinion, this case, instead of supporting the opposite party, lends support to the contention raised by the petitioner that no amendment should have been allowed after the period prescribed for the presenting of an election petition.

12. Before dealing with other cases cited before us it will be better to consider another ground according to which also <ORG> will have no jurisdiction to allow such an amendment to be made in the election petition. Section 83 (1) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Civil P. C., 1908 (Act V of 1908) for the verification of pleadings. Sub-section (2) of that section enacts that the petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice. Then comes Sub-section (3), which has a very important bearing on the question under consideration. That sub-section is as follows:

"The <ORG> may, upon such term as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may, in its opinion, be necessary for the purpose of ensuring a fair and effectual trial of the petition".

The provision made under this sub-section is parallel to that given in Order 6, Rule 17, Civil P. C. Mr. <NAME> has contended that, though under Section 90 (2), the procedure laid down in the Civil P. C., has been made applicable to the trial of an election petition, the Act itself by enacting Sub-section (3) to Section 83 , has made provision for the amendment of particulars referred to in Sub-section (2) of that section, and therefore, the Act contemplates that the provisions of amendment of pleadings as laid down in the Civil P. C., have not to be applied in considering the amendment of an election petition. There seems to be much substance in this contention.

If the legislature wanted that the election petition could be amended on all possible points at the discretion of <ORG>, the provision made in Sub-section (2) of Section 90 , was enough to give that power to <ORG>, and there was no necessity to enact Sub-section (3) of Section 83 . The very fact that the legislature has made provision for the amendment of the ejection petition in the Act itself goes to show that the general provision of amendment of pleadings as laid down in Order 6, Rule 17, Civil P. C., was not contemplated to be applicable for the amendment of the election petition. I am, therefore, of the opinion that the contents of an election petition could be amended only under the provisions of Section 83 (3) of the Act, and Order 6, Rule 17, Civil P. C. is not applicable for making amendments thereof.

13. Under Sub-section (1) of Section 83 , a concise statement of the material facts on which the petitioner relies, has to be given in the election petition, and Sub-section (2) further requires that a list setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, has to be accompanied along with the election petition. Sub-section (3), however, empowers the <ORG> to permit amendments only with regard to the particulars included in the said list as required by Sub-section (2) of that section, and no provision has been made for the amendment of the statement of the material facts which has to be given under Sub-section (1) of Section 83 . The position, therefore, is this that, whereas the legislature has definitely made provision for the amendment of the particulars, it deliberately omitted to make any such provision for the statement of the material facts to be given in the election petition. It thus appears that the intention of the legislature was not to allow any amendment to be made with regard to the statement of the material facts on Which the petitioner relies for challenging an election.

When the legislature definitely made provision for the amendment of the particulars, but omitted to make any provision for the amendment of the charges or the statement of the material facts as required to be given under Sub-section (1) of Section 83 , it was clearly the intention of the legislature that the charges in an election petition being of a very serious nature should be formulated in definite terms and this should not be brought by the petitioner after the expiry of the statutory period. If, therefore, the amendment of the charges is allowed, the intention of the Act that they should be formulated within a definite period would be entirely frustrated. A statute cannot be extended to meet a case for which provision has been clearly and deliberately omitted. It is, therefore, clear that under the provision of the Act itself <ORG> had no Jurisdiction to allow the amendment in question.

14. Counsel for the opposite party has drawn our attention to the <ORG> decision of <ORG> in --' <CITATION> ', AIR 1926 Mad 1043 (E), where under the provisions parallel to those in Section 90(2) of the Act amendment of an election petition was allowed. That case related to the election under the Madras District Municipalities Act. The report does not show as to what was the law under that Act, but from the statement of the case in -- ' <CITATION> ', AIR 1926 Mad 947 (P), the law appears to have been that the election petition shall contain a statement in concise form of the material facts on which the petitioner relies and shall be inquired into by a judge as nearly as may be in accordance with the procedure applicable under the Civil P. C. Under that state of law the Full Bench in the '<NAME>'s case (E)' held that it is quite clear that the intention was that the tribunal should be guided, wherever possible, in its procedure by the provisions of the Civil P. C. and it is obvious that it would be a great hampering to the course of justice if, in a proper case with proper safeguards, the learned Judge were not allowed to entertain an amendment in accordance with the evidence.

It is, however, not clear whether the application of the Civil P. C. was subject to any restriction as made in the present Act or whether there was any special provision for amendment as laid down in Sub-section (3) of Section 33 of the present Act. It is, therefore, not possible to apply the principle enunciated in the <ORG> decision to the facts of the present case. Reliance has also been placed on behalf of the opposite party on the case of --' <CITATION> ', AIR 1935 Cal 773 (G). That was a case under the Bengal Municipal Act of 1932, which made the procedure of the Civil P. C. applicable to trials of election petitions by the District Judge under the Act. The point raised in that case was whether the District Judge could entertain an application for review of the order or the judgment after the publication of the result of the election in the gazette as provided by Section 50 of the Act. It was held that, since the Civil P. C. including the provisions for review thereunder was applicable to trials of election petitions, the District Judge could entertain a review application. This was not a case of an amendment of an election petition. Prom the report it does not appear that the application of the provision for review as laid down in the Civil P. C. was made applicable to trials of election petitions subject to any restriction. This case also, therefore, has no application to the facts of the present case.

15. Reliance has also been placed on behalf of the opposite party on cases which have held that election petitions could be amended by adding new parties or by allowing varifications to be made. <CITATION> ', AIR 1954 SC 210 (H), an election petition was filed on the date which was the last date under the law for presentation of such petition. Along with other candidates who were made parties in that election petition there was one candidate named <NAME> whose nomination had been accepted, but who had withdrawn his candidature subsequently. He was not made a party. A preliminary objection was raised that the omission to implead <NAME> was fatal to the maintainability of the election petition. It was contended on behalf of the petitioner that <NAME> was neither a necessary nor a proper party, and, in the alternative, it was claimed that permission might be given to the petitioner to implead him. <ORG> held that <NAME> was a proper party, but not a necessary party, and his non-joinder in the election petition was not fatal to the petition. The <ORG>, however, directed that he be added as a respondent in the petition and notice of the petition be served on him.

Against that order, an application under Articles 226 and 227, Constitution of India was made to <ORG> for quashing that order which was summarily rejected. The matter was taken up to <ORG>. Their Lordships examined the provisions of Sections 85 and 90(4) of the Act and observed that, whereas the non-compliance with the provisions of Sections 81 , 83 and 117 entailed the dismissal of the application, the legislature did not state the consequences of non-compliance of Section 82 of the Act which required that all the candidates who were duly nominated at the election shall be joined as respondents. Their Lordships also took the view that the provisions of Section 82 of the Act are in terms similar to the provisions under Order 34, Rule 1, Civil P. C., which provided that all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage and as there is ample authority for the view that this is merely a directory provision and non-joinder of any party is not a fatal defect unless the party omitted is a necessary party in the sense that in his absence no relief could be given at all even as regards the party actually on record, the non-joinder of <NAME> in the election petition is not fatal.

Their Lordships, therefore, upheld the order at amendment. Their Lordships, however, made it perfectly clear that in that case it was not necessary to express any final opinion on matters specifically covered by Sections 81 , 83 and 117 and dealt with by Section 85 of the Act. An observation made in the course of the judgment in this connection is very important:

"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but it is a purely statutory proceeding unknown to the common law and that the court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law."

In AIR 1953 Bom 293 (A), the election petition and the list that was accompanied with the petition were not verified as required by Section 83(1) and Section 83(2) , and one of the candidates who was duly nominated for the election but had withdrawn his candidature before the valid nominations were published, was not made a party. <ORG> gave permission to remove both the defects by amendment. <ORG> refused to quash the order of amendment: The amendment of the petition by permitting to give the proper verification is, more or less, of a formal nature, and there is ample authority for the proposition that the omission or defect in verification is not fatal to the pleadings of the parties. The real question that was mooted out before their Lordships in that case was about the omission of the said candidate from being arrayed as a party as appears from the report winch is to the following effect:

"The more substantial opposition that has been presented to the order made by the <ORG> is that the <ORG> has added a party to the petition when it had no jurisdiction to do so."

Their Lordships took the view that the omitted candidate was not a necessary party. In those circumstances their Lordships dismissed the application. The effect of the omission of party who is not a necessary party has already been dealt with by <ORG> in the case referred to above. <CITATION> ', AIR 1954 Mad 336 (I), which was a case of defective verification of the election petition, it was held that the amendment was of a formal nature. In -- 'Mahadeo Murlidhar v. Jwalaprasad Mishra', AIR 1954 Nag 26 (J), one of the declarations which was sought, was barred by time under Rule 119 (b) and the amendment was sought to be made by withdrawing that declaration. The declarations are required to be made under Section 84 of the Act, the non-compliance of which stands on the same footing as that 6f Section 82 . That case, therefore, cannot be of any help for the decision of the present case. The only other case that was cited is a Bench decision of this Court in -- ' <CITATION> ', AIR 1954 Pat 225 (K), which also is a case of the nonjoinder of a duly nominated candidate who had withdrawn his candidature. It was held in that case that the nonjoinder was not fatal to the petition. In my opinion, the cases referred to above which dealt with the effect of the non-compliance of Section 82 or Section 84 of the Act or with the amendment of verification which is a matter of formal nature, have no bearing on the question under consideration.

16. I have already dealt with the cases and the provisions of the Act which are relevant on the question at issue and hold that <ORG> had no jurisdiction to allow the amendment by adding a new charge or an independent new prayer.

17. The result, therefore, is that this application succeeds. Let a writ in the nature of 'certiorari' be issued against the opposite party quashing the order of amendment dated 30-1-1954, passed by <ORG>. The petitioner is entitled to his costs which will be payable by opposite party No. 1. Hearing fee is assessed at Rs. 50.

Ramaswami, J.

18. I agree.


JUDGMENT <NAME>, J.

(1) This appeal under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') challenges the judgment and order dated 16-7-1981 of <ORG>, Delhi dismissing the claim petition of the appellant on the ground that the <ORG> has no jurisdiction to award compensation against persons other than those mentioned in Section 110-B of the Act. The appellant <NAME> filed a petition under Section 110-A of the Act claiming Rs. 25,000.00 as damages against the respondents, namely. <ORG>, Contractor of the <ORG> and <ORG>, alleging that on 24-7-1979 he was driving two-wheeler scooter on ring road with front head-light on between 10 a and 11 P.M., that the front wheel of the scooter fell in a pit on the road and the scooter overturned as a result of which he fell down and received grievous injuries, that the accident occurred on account of the negligence of the employees of <ORG> and of the contractors engaged by the <ORG> in digging the pit and not putting the warning or indication at the pit, that respondents owed a duty towards him in providing safe road and they failed in their duty by not putting up any red-light sign or any other signal the place to warn the users of the road. it has been further alleged by him that his helmet was broken and scooter was damaged, that he spent Rs. 100.00 on repairs of scooter, and the cost of helmet was Rs. 100.00 , that he remained under plaster for about two months and the treatment is still continuing, that he cannot bend his right leg nor can sit or squat, that he could not look after his business and his business suffered. He thus claimed Rs. 25,000.00 as compensation. His scooter No. Dhp 9148 is insured with <ORG> The respondents raised a preliminary objection that the petition against them was not maintainable. The <ORG> by the impugned judgment held that the petition was not maintainable as the <ORG> has no jurisdiction to award compensation against persons other than insurer, owner or driver of the vehicle involved in the accident. Hence this first appeal.

(2) The question for decision in this appeal is : what is the extent of jurisdiction of <ORG> constituted under Section 1  10 of the Act ? Sections 110 to I I Of were substituted in the Act by Act 100 of 1956 with effect from 16-2-1957. Previously all claims for compensation arising out of motor accident were treated as ordinary civil suits to be adjudi- cated by Civil Courts. By insertion of the said sections in the Act a cheap remedy was provided to the person who sustained injury and to his legal heirs. The intention was to save the heirs from payment of court fees on claims and to have a speedy remedy against the driver, the owner and the insurer of the vehicle involved in the accident. Sections 110 and 1103 of the Act read as under : "110.(1) A State Government may, by notification in <ORG>, constitute one or more Motor Accidents Claims Tribunals (hereinafter referred to as Claims Tribunals) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or If damages to any property of a third party so arising, or both : -, Provided that where such claims includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant may, at his option, refer the claim to <ORG> for adjudication, and where a reference is so made, <ORG> shall have no jurisdiction to entertain any question relating to such claim. (2) A claims Tribunal shall consist of such number of members as the State Government may think fit to appoint and where it consists of two or more members, one of them shall be appointed as the Chairman thereof. (3) A person shall not be qualified for appointment as a member of <ORG> unless he- (a) is, or has been, a judge of <ORG>, or (b) is, or has been a District Judge, or (c) is qualified for appointment as a Judge of <ORG>. (4) Where two or more Claims Tribunals are constituted for any area, the State Government may, by general or special order, regulate the distribution of business among them."

110-B.On receipt of an application for compensation made under Section 110-A , <ORG> shall, after giving the parties an opportunity of being heard, hold an inquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid ; and in making the award <ORG> shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be."

Under the former section <ORG> by notification is authorised to constitute one or more <ORG>s for the purpose of adjudicating upon claims for compensation in respect of accidents arising out of the use of motor vehicles. Under the latter section the <ORG> is required to specify the amount of compensation payable by the driver, the owner and the insurer when there is an accident and injury is caused to the person or property of the victim. The injured person may claim compensation against any person who may be held negligent. Under the Act , however a special provision has been made to claim compensation on account of death or bodily injury to the the person caused by the use of motor vehicle. It also provides for recovery of damages to any property of a third person on account of the accident by a motor vehicle. Under Section I IO-A of the Act such an application for compensation can be filed by a person who has sustained injuries, by the owner of the property or by all or any of the legal representatives of the deceased. The Act provides that the <ORG> shall hold an enquiry into the claim and make an award determining the amount of compensation and specifying the persons to whom the compensation shall be paid. Further Section 110 B provides that the <ORG> shall specify the amount which shall be paid by the insurer, owner or driver of the vehicle involved in the accident. In other words the scope of adjudication by the <ORG> is restricted against the driver, owner or insurer of the motor vehicle involved in the accident. The Act does not provide for claiming compensation against each and every person who may be negligent and responsible for the damage caused to a person or his property. A person against whom the compensa- tion is claimed must be a person or authority having connection with the motor vehicle involved in the accident. The compensation is claimed under the Act on account of the use of the motor vehicle by the opposite party. If the opposite party had no connection with the vehicle involved in the accident he cannot be made liable under the Act. In the instant case the appellant was driving his two-wheeler scooter, his front wheel of the scooter fell into a pit on account of which the scooter overturned and he received injuries. This may be a case of negligence on the part of the <ORG> authorities in not properly maintaining the roads, but it has not arisen on account of the use of motor vehicle. The Municipal <ORG> of Delhi has no connection with the scooter of the appellant. The respondents are not involved in any motor vehicle accident and as such the claim against them cannot be entertained by a Claims <ORG> under the Act. The remedy if any against the respondents on account of their negligence in properly maintaining the roads lies only before <ORG> and not before the <ORG>. Under Section 110 of the Act claim for compensation arises when there is injury or damage to the property arising out of the use of motor vehicle. This motor vehicle must be connected in one way or the other to the party against whom the compensation is being claimed. In the instant case the appellant himself is the owner driver of the scooter. The respondents have no connection with his scooter. It therefore cannot bs said that injury to the person or property of the appellant has arisen out of the use of the motor vehicle within the meaning of Section 110 of the Act.- The respondent is neither a driver nor owner of any vehicle in the instant case. The intention of the legislature was not to include claims for compensation against all persons. The claims for compensation are restricted to the category of persons mentioned in Section 110B of the Act, i.e. the driver, owner or the insurer of the vehicle involved in the accident. These sections occur in the chapter dealing with insurance of motor vehicles against third party risk. The object behind these sections is only to provide for a speedy and effective machinery to persons injured in accident. Learned counsel for the appellant submits that Section 1  10 postulates enquiry of all claims arising out of any accident of the motor vehicle. To accept the contention of the learned counsel that it would include claims against all persons, would lead to consequences which were never contemplated by the legislature in amending and substituting Sections 110 to 110-Fof the Act. A person proceeding on a motor vehicle may be injured by an accident resulting from a fall of a tree. It cannot be said that the injured person can lay a claim before the Claims <ORG> under the Act, against the owner of the tree, if it was due to the negligence of such owner that such accident occurred. I do not think that the provisions of the Act were intended to enable a person injured to make a claim against any party simply because the accident arose out of the use of motor vehicle. In my view the claims referred in Section 1  10 of the Act are applicable only to cases of claims against the insurer, driver, or owner of the vehicle involved in the accident. The proper forum for adjudicating a claim against the strangers is <ORG>.

(3) Learned counsel for the appellant then submits that the jurisdiction of <ORG> is barred under Section 110-F of the Act. The claim of the appellant against respondents who were strangers to the accident would be maintainable in <ORG> and is not barred under Section 110-F of the Act. This Section bars the jurisdiction of <ORG> to entertain any claim for compensation over which <ORG> have jurisdiction. As already stated the jurisdiction of <ORG> to award compensaon is restricted against driver, owner or the insurer of the vehicle involved in the accident as mentioned in Section 110-B of the Act. In The. Oriental Fire. & General Insurance. <CITATION> , it has been held that the claims referred to in Section 110 are applicable only to cases of claims against the owner, the driver of the motor vehicle or the insurer as the case may be and not against strangers. It has further been held that proper forum for adjudicating a claim against strangers in <ORG> and that the jurisdiction of <ORG> in such a case is not barred by Section 110-F of the Act for adjudicating claims against strangers. Similar observations were made in <CITATION> 1974 Gauhati 31. I am therefore of the view that the <ORG> was correct in holding that the claim petition against the respondent who arc stangers to the alleged accident was not maintainable under Section 1  10 read with Section IIO-B of the Act. There is no infirmity in the judgment of the <ORG>. The appeal is therefore dismissed. No order as to costs.


JUDGMENT <NAME>, J.

1. This is an appeal under Section 116A of the Representation of the People Act of 1951 (hereinafter called the Act) against the judgment of <ORG> dismissing the election petition filed by the appellant.

2. The appellant <NAME> is an elector in the double member of <ORG> Constituency No. 179 known ay Meja Constituency, in the district of Allahabad. One seat in the constituency was reserved for a member of the scheduled caste and the other seat was a general one. The respondent No. 1 <NAME> was a candidate for the general seat and was set up by the <ORG> party and respondent No. 3 <NAME> was also a candidate for the seat and was set up by <ORG>.

The two Scheduled caste candidates were respondent No. 2 <NAME> on behalf of the <ORG> party, and respondent No. 4 <NAME> on behalf of <ORG>. The poll was held on the 25th February, 1957, but it subsequently transpired that at the polling centre Babhni-Hather ballot papers had been wrongly issued. The Returning Officer brought this fact to the notice of <ORG>, and <ORG> ordered a repoll in Babhni-Hather.

Counting of votes for all the centres, excepting Babhni-Hather, took place on the 1st and 2nd March 1957 in the presence of all the candidates and their counting agents, and it was known to these persons that both the <ORG> candidates had secured more votes than the candidates set up by <ORG>. The repoll at Babhni-Hather took place on the 7th March, 1957. Counting of votes for this centre was held on the 8th March, 1957. <NAME>, respondent No. 1, secured 41653 total votes and <NAME>.

The two candidates set up by <ORG>, namely, <NAME> and <NAME> received 36590 and 40053 votes respectively. The respondents Nos. 1 and 2 were accordingly declared to have been elected to <ORG> from this constituency.

3. The appellant, as an elector, preferred an election petition and sent it to <ORG> within time allowed by law. <ORG> appointed <NAME>, a retired Judge of this Court, as <ORG> and referred the election petition for trial to <NAME>. The main prayers contained in the election petition are that the election of the respondents Nos. 1 and 2 be declared to be void and that it further be declared that the respondent No. 4 <NAME> is the duly elected member of <ORG> from this constituency. Numerous grounds for setting aside the election were mentioned in the election petition and they were all denied by the respondents Nos. 1 and 2, who alone contested the election petition. The pleadings gave rise to as many as 21 issues. Many of these issues were overlapping and <ORG> has considered such issues together. It has decided all the issues against the appellant.

4. At the hearing before us the learned counsel for the appellant urged four points. They are as follows :--

1. The first point urged by him is that the respondent No. 1 has been proved to be guilty of the corrupt practice mentioned in Sub-section (7) of Section 123 of the Act, inasmuch as he obtained or procured assistance for the furtherance of the prospects of his election, from <NAME>, Sub-Inspector of Police, Sri <NAME>, Consolidator employed in the department of <ORG>, and Sri <NAME>, a lekhpal.

2. The second point urged by him is that the counting of votes obtained by the candidates at polling stations other than Babhni-Hather, before the repoll at Babhni-Hather had taken place, was a breach of the provisions of the Representation of the People Act , according to which the counting of votes should have been done only after polling had taken place at all the polling stations in the constituency.

3. The third point taken by the learned counsel is that another breach of the Constitution and of the Act was committed at all the polling stations, inasmuch as the peons posted at these polling stations were asked to instruct the voters that they would get two ballot papers but they should not put both of them in the box of the same candidate.

The learned counsel contends that the peons should have further instructed the voters to put one ballot paper in one out of the two boxes of the two scheduled caste candidates and the other ballot paper in one of the two boxes of the two candidates for the general seat. The argument is that the omission to give full instructions has resulted in the voters putting both their ballot papers in the boxes for the two candidates for the general seat. He further says that in cases where a voter cast both his votes in favour of the two candidates for the general seat, one of the votes should have been declared to be invalid, because the voter was bound to cast at least one vote in favour of one of the two scheduled caste candidates, if he wanted to exercise his right of franchise in respect of both of his votes.

4. The fourth point taken by the learned counsel is that the cumulative effect of the commission of corrupt practice, mentioned in point No. 1, and the illegalities, mentioned in points Nos. 2 and 3, was that the result of the election had been materially affected.

We may now proceed to consider the different points urged by the learned counsel for the appellant.

Point No. 1.

5. That the respondent No. 1 has been proved to be guilty of the corrupt practice mentioned in Sub-section (7) of Section 123 of the Act inasmuch as he obtained or procured assistance for the furtherance of the prospects of his election from Sri <NAME>, Sub-Inspector of Police, Sri <NAME>, a consolidator employed in the department of Consolidation of Holdings, and Sri <NAME>-pal. <ORG> framed issue No. 5 on this point and the relevant averments in the election petition are contained in Clause (h) of paragraph 10.

Originally in this paragraph it was averred that the respondents Nos. 1 and 2 and their agents and supporters, with the consent of the said respondents, obtained and procured the assistance of a number of persons in the service of <ORG> and belonging to one or the other of the classes mentioned in Section 123(7) of the Act. This was said to have been done for the furtherance ot the prospects of the election of the respondents Nos. 1 and 2 and had also materially affected the result of the election. Schedule A attached to the election petition, which refers to <NAME>, Sub-Inspector of Police, mentions four actions of the Sub-Inspector of Police, namely, canvassing, distribution of cards, threatening voters and inducing voters.

The villages where the above four actions had been committed have been mentioned in the second column and the period of the commission of all these acts is given as every day about two months prior to the date of the Poll." In the remark column it is stated that the complaint against the Sub-Inspector was made to <ORG> by sending a telegram.

6. Schedule C relates to Sri <NAME>, <NAME>, <ORG>, and he is said to be responsible for the commission of 8 kinds of improper actions and the villages where they were committed have been mentioned. The period of the commission of the acts is shown as ''every day about a fortnight prior to the date of Poll". In the remarks column it is stated that written objections were filed at Upraura polling station against <NAME>.

7. Schedule E gives a list of 38 lekhpals with the names of the villages where these lekhpals canvassed for the respondents and the period of canvassing is given as 20th January to 25th February 1.957. Reference need not be made to other schedules.

8. Subsequently, the appellant filed an application for the amendment of his pleadings, some of which were allowed by <ORG> by its order dated 14-9-1957. Before passing the order, it recorded the statements of the counsel for the parties with respect to some matters under controversy before it. With respect to the averments in Clause (h) of paragraph 10, counsel for the respondents objected that full particulars had not been supplied, as the names of persons who procured the assistance from the Government servants had not been mentioned nor had the nature of assistance, the manner in which it was obtained and the time and place at which it was obtained or procured had been disclosed.

He prayed for rejecting the application made for amending the pleadings in this respect and for refusing to let this matter proceed to trial. <NAME>, counsel for the appellant, then stated before the <ORG> that so far as Clause (h) of paragraph 10 was concerned he would "lead evidence only about assistance having been obtained and procured by respondents Nos. 1 and 2. I do not want to lead any evidence on this subject concerning their agents and supporters".

On this statement having been made, the words and their agents and supporters" were deleted. The clause, as it stands now, only contains the averment that respondents Nos. 1 and 2 obtained and procured assistance of persons in the service of <ORG>. In Schedule A a list of persons was added, who were said to have been threatened by <NAME>.

9. After the deletion of the portion, mentioned above, from Clause (h) of paragraph 10, it was no longer open to the appellant to lead evidence of the fact that the agents and workers of the contesting respondents had obtained or procured assistance from any persons in the service of the <ORG>, whether with or without the consent of the said respondents. The appellant was only entitled to prove that the respondents Nos. 1 and 2 themselves had obtained or procured assistance. Having been faced with this situtaion, the learned counsel for the appellant argued that, if the respondents Nos. 1 and 2 happened to receive any assistance from any person in the service of the <ORG>, it should be held that the said respondent had obtained such assistance.

He conceded that this would not amount to procuring assistance but urged that obtaining assistance may be a mere passive act and, if the respondents happened to receive any assistance, they should be held guilty of the commission of corrupt practice mentioned in Section 123(7) of the Act. We do not agree with the learned counsel that a mere passive receipt of assistance without the consent or will of the candidate concerned can be said to fall under Sub-section (7). It is true that the <ORG> has used two words 'obtaining' and 'procuring' with the disjunctive word 'or' between them, and generally speaking it may be held that when the <ORG> chooses to use two words in a disjunctive manner, the words generally are not synonyms. <NAME> in his book on "Interpretation of Statutes", 10th edition has said at page 321 :

"Where analogous words are used each may be presumed to be susceptible of a separate and distinct meaning, for the <ORG> is not supposed to use words without a meaning".

But the above is not a rule of universal application and the very next sentence is, "But the use of tautologous expressions is not uncommon in statutes, and there is no such presumption against fullness, or even superfluity of expression, in statutes, or other written instruments, as amounts to a rule of interpretation controlling what might otherwise be their proper construction".

10. In Shorter Oxford English Dictionary the meaning given of the word 'procure' is "to bring about by care or by pains; to obtain by care or effort; to acquire".

It is not necessary to consider further the meaning of the word 'procure', for the learned counsel for the appellant conceded that in order to prove that assistance from a person in the service of the <ORG> had been procured, it must be shown that the candidate had consciously done some positive act in order to bring about the result of receiving assistance from the person. His main contention was that the use of the other word 'obtain' did not necessarily signify that the assistance must have been obtained as a result of some positive and conscious action of the candidate.

He said that the word 'obtain' meant nothing more than to get or receive. The meaning of the word 'obtain' in the dictionary, mentioned above is given as, "to procure or gain as the result of purpose or effort; to get."

11. We think that the word 'obtain' in Section 123(7) has been used in the sense of the meaning which connotes 'purpose' or 'effort' behind the action of the candidate. The word has not been used in the Sub-section in the sense of a mere passive receipt of assistance without the candidate being even conscious of the fact that the assistance has been ren-dered. In order to bring the case under Sub-section (7) it must be shown that the candidate did some effort or performed some purposeful act in order to get the assistance.

The receipt of assistance must be the result of either purpose or effort, which implies that the getting of the assistance should be the result of some conscious action of the candidate and not a mere passive happening of his getting the assistance, it further appears to bo unreasonable to impute to the <ORG> an intention that the election of a candidate should be declared to be void, even though the candidate had no knowledge even of the tact that some person in the service of Government had taken into his head to assist a particular candidate.

12. This would be inconsistent with the entire scheme of the Act, as it stands after its amendment by Act No. XXVII of 1956. The grounds for declaring an election to be void are mentioned in subsection (1) of Section 100 and, as far as the commission of corrupt practice goes, the scheme appears to be that, if the corrupt practice has been committed by a returned candidate or his election agent or by any other person, with the consent of a returned candidate or his election agent, the case would fall under Section 100(1)(b) and the commission of corrupt practice by itself would be sufficient for declaring his election to be void; but if the corrupt practice has been committed by a person other than the persons mentioned above, the election of the returned candidate is not declared to be void unless the commission of the corrupt practice has materially affected the result of the election, in so far as it concerns the returned candidate.

All agents other than the election agents would fall within the expression 'any other person' so that it is quite clear that even if a corrupt practice is committed by an agent, as defined in Explanation 2 attached to Sub-section (7) of Section 123 , the case would not fall under Clause (b) of Section 100(1) , unless it is further proved that the said agent committed the corrupt practice with the consent of the returned candidate or of his election agent. In this connection the learned counsel for the appellant argued that a reading of Sub-section (2) of Section 100 would show that a candidate is always liable for the actions of his agents. Sub-section (2) begins by saving :

"If in the opinion of the <ORG>, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice".

The learned counsel argued that the words, quoted above, clearly showed that a returned candidate could be held to be guilty because of the action of his agent. The learned counsel referred to Clause (a) of the sub-section and said that Sub-section (2) could only apply where the corrupt practice was committed without the consent of the returned candidate. Still the words, quoted above, contemplated a case where a candidate could be held to be guilty by some action of his agent. This contention of the learned counsel cannot be accepted for various reasons.

13. Sub-section (2) is not a disqualifying clause at all and was never intended to lay down conditions on proof of which the election of a candidate was to be declared to be void. It is concerned only with the cases of a trivial nature in which the corrupt practice was committed without the consent and contrary to the orders of the candidate or his election agent, and in which the candidate or his election agent took all reasonable means for preventing the commission of the corrupt practice. It is in the nature of an exception to Sub-section (1) and mentions four conditions on the fulfilment of all of which alone Sub-section (2) can come into operation.

The provisions of Sub-section (2) will apply only to a case where, in the opinion of the <ORG>, a returned candidate is held to be guilty because of some of his agent. But this can never happen under Sub-section (1) unless it has been established that the returned candidate had consented to his agent committing the corrupt practice. The words "a returned candidate has been guilty by an agent" presuppose that the guilt of the returned candidate has been established and they do not purport to create a ground by themselves of declaring the election to be void.

14. A reference to Section 100 , as it stood before the amendment of 1956, makes the position clear. In the unamended section, Sub-section (2)(b) was to the effect that if the <ORG> was of opinion that any corrupt practice specified in Section 123 had been committed by a returned candidate or his agent or by any other person with the connivance of a returned candidate or his agent, the <ORG> was to declare the election of the candidate to be void. Then came Sub-section (3) which was word for word the same, as the present Sub-section (2), excepting for an insignificant difference. Sub-section (3) then had a meaning because it provided an exception to Clause (b) of Sub-section (2), though Sub-section (2) began by saying that it was subject to the provisions of Sub-section (3). After the amendment, Sub-section (2) of Section 100 appears to be a wholly superfluous and meaningless piece of legislation. No case falling under Sub-section (2) can even fall within the ambit of Sub-section (1) of Section 100 . A case which fulfils all the requirements of Clauses (a) to (d) of Sub-section (2) will never fall under Section 100(1)(b) or Section 100(1)(d)(ii) of the Act.

15. We may now refer to the unsatisfactory nature of pleadings on this question of obtaining assistance from persons in the service of Government. In Schedule A it is stated that <NAME>-Inspector did canvassing, distribution of cards, threatening voters and inducing voters, and he did this for every day about two months prior to the date of the polls. The villages in which different kind of assistance was given have been mentioned, but the time of all the types of canvassing done in the villages is "every day about 2 months prior to the date of the polls".

This means that in all the villages <NAME> was doing all these different kinds of canvassing work every day for a period of two months. The pleading is, to say the least, very unsatisfactory, and is in line with the general trend followed in this election petition of trying to allege all sorts of corrupt practices, leaving it open to the appellant to furnish such evidence subsequently as he might be able to collect. <NAME> is said to have afforded assistance by doing eight kinds of work in these villages every day for about a fortnight prior to the date of poll.

It is impossible for a respondent in an election petition to meet allegations like this. This fact that these allegations were made without any sense of responsibility is proved from the nature of evidence that ultimately could be produced. The learned counsel for the appellant argued that sufficient particulars of the commission of corrupt practice had been given, but as a matter of fact very few particulars of the commission of corrupt practice were really given. The corrupt practice is the obtaining or procuring of assistance either by the candidate or by others for him and not the actions of <ORG> servants. The petition does not disclose the date, the time and the place when the respondent <NAME> obtained or procured assistance from any of the <ORG> servants mentioned in the election petition.

The pleadings really were not in compliance with Section 83 of the Representation of the People Act as remarked by <ORG>, but as the case has gone to trial and evidence has been adduced on the point, we think that it should not be discarded at this stage of the case on the ground that the pleadings in the case were very defective. We consequently proceed to consider it, keeping in view the fact that the appellant did not or could not make any definite allegations till the stage of leading evidence except in two matters, namely the complaint by <NAME>, <NAME>, against <NAME> and by <NAME> against <NAME>.

16. It may also be stated that no evidence has been produced to prove that either respondent No. 1 or respondent No. 2 approached any of the Government servants to afford assistance to them for the furtherance of the prospects of their election. An attempt has only been made to prove that the respondent No. 1 or some of his workers were present at the time when the persons in the service of the Government were affording assistance for the furtherance of the prospects of the election of respondent No. I.

The evidence of the presence of the workers or supporters of the respondent No. 1 at such times need not be considered at all, because the case that the workers and supporters of the respondents obtained or procured assistance from the persons in the service of the <ORG> was expressly given up before the <ORG>, by the learned counsel for the appellant. We have also held above that mere proof that some assistance was offered by a person in the service of the <ORG> is not sufficient by itself to bring the case within the ambit of Sub-section (7) of Section 123 of the Act. It must further be proved that assistance was obtained or procured from a person in the service of the <ORG>.

(After discussing evidence their Lordships decided point No. 1 against the appellant and proceeded.)

17. We agree with the findings of <ORG> as regards the credibility of the oral evidence produced by the appellant on point No. 1 except in regard to distribution of cards by <NAME> in village Sunderpur.

Point No. 2.

18. Whether the counting of votes before the repoll at village Babhni Hather was against the provisions of the Representation of the People Act .

19. This point was made the subject matter of issue No. 15(a) and (b). The relevant averments in the election petition are contained in paragraph 10(t). In their written statements both the respondents Nos. 1 and 2 have denied that any irregularity was committed.

20. The relevant facts with respect to this point are that the polling at all stations took place on 25-2-1957, but it was discovered that wrong ballot papers had been issued at Babhni Hather and a reference was made to <ORG> by the Returning Officer, Allahabad. <ORG> directed, by its telegram dated 1-3-1957, "taking of fresh polls for either election under Section 58 of the Representation of the People Act, 1951, in polling station number fifty-four of Meja Assembly Constituency forming a component part of Allahabad Parliamentary Constituency on seventh March between 8-30 a. m. and 4-30 p. m."

The date and hour of fresh poll was to be notified and a fresh set of ballot paper boxes was to be issued. In compliance with the above direction, the 7th of March was fixed tor the repoli at Babhni Hather, but the counting with respect to the other polling stations took place on the 1st and 2nd Mar. 1957.

As a result of this counting, it became apparent that even if all the voters of this polling stations-cast their votes in favour of respondent No. 3, the said respondent could not succeed as the total number of votes secured by Sri <NAME> and <NAME>. (Sie) Respondent No. 3 says that for this reason he took no further interest in the polling at Babhni Hather on 7-3-1957 as a result of which he did not get any vote at this polling station. Altogether 883 votes were cast, out of which 11 were declared invalid and 872 were in favour of the respondent No. 1.

21. P. W. 59 Sri <NAME> was the District Election Officer and also the Returning Officer of Meja Constituency in the last election. From his statement it appears that the actual mistake committed by the Presiding Officer at Babhni Hather was that, the constituency being a double member constituency, each voter should have got two ballot papers of the same series, having the same serial number, but this instruction of <ORG> was not observed.

The Presiding Officer did issue ballot papers marked A and B to each voter, but did not in some cases issue the ballot papers of the same series to them. When the counting for other stations started, the candidates or their counting agents who were present at the time, were told on 1-3-1957, that the votes for <NAME> would not be counted due to the above mistake but none of them took any objection to the counting of the rest of the votes. The contention of the learned counsel for the appellant is that the case fell under Section 57 of the Representation of the People Act, and the last sentence of that section enjoins that counting of votes should be done after the polling at all the centres had taken place.

It is true that there is this direction contained in the last sentence of the section, but the section deals with cases in which the taking of poll has to be adjourned, before it hay been held. It enumerates the conditions under which the poll should not be held at all and should be postponed. It has nothing to do with a case where the polling has actually taken place. <ORG> purported to act under Section 58 , which specifies the conditions on the happening of which a repoll is to be ordered.

This section does not contain any direction that the counting of votes should take place after the polling at all the centres had been finished. But the conditions enumerated in this section, on the happening of which a repoll can be ordered, do not include a case like the one before us. The section does not say that a repoll is to take place if the Returning Officer has committed a mistake in issuing the ballot papers.

The case thus does not fall under Section 58 either. As Section 57 of the Act did not apply, there was no prohibition against counting of votes polled at other centres. The above decision is sufficient for disposing of the point argued by the learned counsel; but connected with it is the question whether the votes cast in favour of respondent No. 1 at <NAME> on 7-3-1957 were wrongly counted in favour of the said respondent and whether this illegality affected the result of the election.

22. The learned Advocate General relied upon Article 324 of the Constitution, which provides that superintendence, direction and control of elections to the <ORG> of every State, as well as some others, shall vest in <ORG>. <ORG> has thus been conferred very wide powers in the conduct of elections like the one before us, and the superintendence, direction and control over the elections vest in <ORG>. Article 327 of the Constitution says that, subject to the provisions of the Constitution, <ORG> may from time to time, by law, make provisions with respect to all matters relating to or in connection with elections to either House of the <ORG> of a State or to either House of <ORG>.

It is under this provisions of the Constitution that the Representation of the People Act has been enacted by the <ORG> and in matter governed by the Representation of the People Act , the position appears to be that <ORG> is bound to follow the provisions of the Act in respect of the express directions contained in the Act passed by the <ORG>, in the exercise of its powers under Article 327 of the Constitution. Article 327 has been made subject to the provisions of the Constitution and Article 324(1) is one of such provisions, but the power contained in Article 324(1) is a general power and <ORG>, therefore, would be bound to carry out the specific provisions contained in any Act passed by the <ORG>.

But where the Act itself omits to provide for a contingency and does not contain any provision for meeting the situation, the general power conferred upon <ORG> by Article 324(1) of the Constitution will come into play, and the commission will have a right to pass the necessary orders, if they fall within the ambits of its powers, enumerated in Article 324(1). The question whether a repoll should be held or not at a particular polling station is one which falls under the words 'conduct of an election'.

23. For the above reasons, we are inclined to think that <ORG> was empowered to direct a repoll under Article 324(1).

But we need not express any final opinion on the point, because even if all the votes polled at Babhni Hather are held to be invalid, the result of the election could not be different, as the difference in the number of votes secured by the respondent No. 1 and the respondent No. 3 exceeds six thousands. Following the principle laid down in the case of <CITATION> reported in AIR 1954 SC 513 (A), it must be held that the result of the election so far as the respondents No. 1 and 3 are concerned has not been materially affected by the irregularity, assuming there was one. No such argument has been advanced to us with respect to respondent No. 2, <NAME>, and it has not been contended that <ORG> did not receive any votes at the repoll at Babhni Hather.

The votes previously polled have not been counted at all and we think that, in view of the principle laid down in <CITATION> reported in (S) AIR 1955 SC 233 (B), the votes previously cast must be held to be invalid as wrong ballot papers had been issued. This point, therefore, must also be answered against the appellant.

Points No. 3.

24. The third point urged by the learned counsel for the appellant is that wrong instructions were issued to voters by the peons posted at different polling stations, and, as the same wrong instructions were given at all the polling stations, the irregularity must be held to have materially affected the result of the election.

25. Issues Nos. 1 (a) and (b) were framed by <ORG> and the relevant averments are contained in paragraph 10(a) of the election petition. They are to the effect that one vote in this-double member constituency was reserved for the scheduled caste candidate, but, on the day of and during the election, the peons on duty at the entrance of the polling compartments used to warn every voter that he should insert the two ballot papers in two different boxes if he wanted both of his votes to be counted, and if he inserted both the ballot, papers in the same box, one of the votes would be rejected.

The complaint of the appellant is that the voters should further have been told that they could insert only one ballot paper in either of the two boxes kept for the candidates for the general seat and they could not insert both the ballot papers in each of the two boxes kept for the two candidates for that seat. The learned counsel has argued that one of the seats having been reserved for a scheduled caste candidate, the voter could elect only one person for the general seat and therefore he could not cast both of his votes in favour of the two candidates for the general seat thus omitting to vote entirely for any candidate of the scheduled caste.

It is contended that special provisions nave been made relating to elections to seats reserved for the scheduled castes, in Part XVI of the Constitution, and Article 332 of the Constitution contains speci-fic directions that seats shall be reserved for the scheduled castes and the scheduled tribes in every State. The Article also lays down the number of seats to be reserved, which should be in proportion to the total number of seats and the population of the scheduled castes in the State.

But the learned counsel has not been able to point out any specific provision either in the Constitution or in the Representation of the People Act , which restricts the right of the elector to cast his vote in favour of any candidate or candidates of his choice, and the argument has been based on the general scheme laid down in the Constitution conferring special scheme laid down in the Constitution. We do not dunk that the contentions of the learned counsel for the appellant have any force and the rate about the reservation of seats necessarily implies the reservation of vote also for members of the scheduled caste.

The Constitution has avoided even the shadow of separata electorates. Even the reservation of seats is for a definite period of time. The right of fran-chise which every adult citizen enjoys has not in any way been restricted and every elector has a right of expressing his choice for two candidates in a double member constituency. There having been placed no restriction on this choice, the elector can cast both of his votes in favour of any two candidates. It is admitted that he can cast both of his votes in favour of both the candidates for the scheduled castes and the law is not likely to have contemplated the conferment of any further favour on the members of the scheduled castes, by imposing a further restriction on the right of the elector to ex-press his choice only for one candidate in a double member constituency.

Section 55 of the Representation of the People Act makes it clear that it is possible that both members of the scheduled castes may be elected in a double member constituency, though both members not belonging to such caste cannot be elected. The instructions mat were issued by the peons on duty, to the electors, were fully in accordance with the provisions of Section 63 of the Representation of the People Act and we think that the instructions were full and complete. This point also, therefore, must be decided against the appellant.

Point No. 4.

26. The 4th point is whether the result of the election had been materially affected by the commission of any of the corrupt practices committed by persons other than the respondent No. 1 and his election agent, but with the consent of either of them; and by the alleged irregularities which were the subject matter of points Nos. 2 and 3.

27. We have held that, as far as the commission of the corrupt practice by obtaining or procur-ing assistance from persons in the service of the Government is concerned, no such case has been established against the respondent No. 1 or respondent No. 2 at all, and the case that the workers and supporters of the said respondents committed the corrupt practice had been specifically given up by the learned counsel for the appellant on the date of the settlement of issues. We have already said that there was no irregularity committed as far as point no. 3 is concerned, and with regard to point No. 2 also we have held that there was probably no irregularity, but even if there was one, it did not materially affect the result of the election.

28. For the reasons given above, this appeal should fail and it is accordingly dismissed with costs. We assess counsel's fee at Rs. 400/-.


PETITIONER: STATE OF ORISSA Vs. RESPONDENT: DR. (MISS) BINAPANI DEI & ORS. DATE OF JUDGMENT: 07/02/1967 BENCH: <NAME>, J.C. BENCH: <NAME>, J.C. MITTER, G.K. CITATION: 1967 AIR 1269 1967 SCR (2) 625 CITATOR INFO : F 1968 SC 240 (8) RF 1968 SC 292 (11) R 1970 SC 150 (19) D 1970 SC 158 (10) E 1970 SC1896 (7) RF 1971 SC 40 (11,12) D 1971 SC 173 (7) RF 1972 SC2185 (6) F 1973 SC 205 (5) R 1973 SC 834 (20) MV 1973 SC 855 (43) R 1974 SC 87 (11) R 1975 SC 569 (3,4) D 1975 SC2057 (9) F 1976 SC 667 (4) RF 1976 SC1207 (266) RF 1977 SC1980 (14) F 1977 SC2328 (42) D 1978 SC 597 (32,59) E&R 1978 SC 851 (66) R 1979 SC 592 (37,39) RF 1981 SC 136 (7) RF 1981 SC 818 (19,26) RF 1981 SC 873 (67) R 1981 SC1481 (1) R 1983 SC 75 (7) RF 1985 SC1416 (100) R 1988 SC 686 (12) D 1988 SC1737 (87) RF 1989 SC1038 (6) R 1990 SC1402 (22) C 1991 SC 101 (150) RF 1991 SC1309 (3) RF 1992 SC 61 (5) RF 1992 SC1020 (12,17,25) ACT: Natural Justice- Government servant-Enquiry held into date of birth-Report and evidence not disclosed-Opportunity to meet evidence not given-Date re-fixed and compulsory retirement ordered-order whether sustainable. Constitution of India, Art. 226- High Court's discretion to go into questions of fact. HEADNOTE: The first respondent joined the service of the <ORG> Government in 1938. In 1961 the <ORG> held an enquiry into her date of birth. She was then asked to show cause why a certain date should not be taken as her date of birth. The report of the enquiry officer was not disclosed, and the first respondent was not given an opportunity to meet the evidence used against her. The Government refixed the date of birth of the first respondent and ordered that she be compulsorily retired. The first respondent then filed a writ petition in <ORG> which was allowed. The <ORG> appealed It was contended on behalf of the appellant <ORG> that (i) <ORG> in dealing with a petition under Art. 226 of the Constitution ought not to have proceeded to determine disputed questions of fact, (ii) & order refixing the date of birth of the respondent was an administrative order and <ORG> had no power to sit in appeal over the decision of the <ORG> authorities. HELD : (i) Under Art. 226 of the Constitution <ORG> is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition, the High curt may in appropriate cases decline to enter upon the enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of the jurisdiction of the Court. No interference with the exercise of the discretion of <ORG> in the present case was called for. [627 G] (ii)Even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case of the <ORG> and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. In the present case no such steps were admittedly taken; <ORG> was therefore right in setting aside the order of the <ORG>. [630 G] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 499 of 1965. Appeal from the judgment and order dated May 6, 1964 of <ORG> on O. J. C. No. 254 of 1963. <NAME> and <NAME> for the appellant. <NAME>, for the respondents.

The Judgment of the Court was delivered by <NAME>, J. The first respondent who holds the degree of M.B.B.S. of <ORG>, the Diploma in Gynecology and Obstetrics from <ORG> and the Diploma in Obstetrics from <ORG> of London was appointed on June 12, 1938,.as Assistant Surgeon in <ORG>. At the time of her appointment by the Orissa Government, the first respondent declared that her date of birth was April 10, 1910. The first respondent claims that her claim was supported by documentary evidence tendered by her father which was verified and accepted and the birth date was recorded in the Civil List and in the History of Service of Gazetted Officers of the Government of Orissa maintained by the Accountant General of the State. In the normal course the first respondent would have been due for superannuation on April 10, 1965, after completing the age of 55 years. But in consequence of a notification of the State of Orissa dated May 21, 1963, the age of superannuation was ,raised from 55 to 58 years in respect of all Government servants who were to retire after December 1, 1962.

Some anonymous letters were addressed to the Accountant General that the first respondent had misstated her age when she was admitted to service of the <ORG>. After an inquiry the first respondent was required to show cause why her date of birth should not be accepted as April 4, 1907. The first respondent submitted that her date of birth was correctly recorded and that certain school record relied upon by the <ORG> "was erased, altered or overwritten". By letter dated June 27, 1963, <ORG> determined the date of birth of the first respondent as April 16, 1907, and declared that she should be deemed to have retired on April 16, 1962, subject however to extension of service granted from April 16, 1962 till the afternoon of July 15, 1963. By this order the first respondent Who should have on her case retired on April 10, 1968 was deemed to have retired on July 15, 1963.

The first respondent then applied to <ORG> for a writ declaring that the order of retirement passed by the <ORG> Government was contrary to law and against the Constitution and principles of natural justice, and that in any event the order was passed maliciously by the Government to the prejudice of the first respondent, and for a writ of mandamus or certiorari quashing ,the order passed on June 27, 1963, and declaring the respondent to be entitled to continue in service till April 10, 1968. The first respondent claimed that the order made by the <ORG> amounted to an order of compulsory retirement contrary to the rules governing her service and was violative of the principles of natural justice, that the same was arbitrary and mala fide, that the order of retirement amounted to punishment involving consequences such as loss of pay, status and deprivation of service and since it was not made in consonance with Art. 31 1 of the Constitution, the order was liable to be quashed as invalid. <ORG> held that the order declaring the first respondent to be superannuated on April 16, 1962, on the footing that her date of birth was April 16, 1907, amounted to compulsory retirement before she attained the age of superannuation and was contrary to the rules governing her service conditions and amounted to removal within the meaning of Art. 311 of the Constitution, and since the first respondent was not given a reasonable- opportunity of showing cause against the action proposed to be taken in regard to her the order was invalid. <ORG> did not expression opinion on the plea of <NAME> as it raised questions of fact Which could not in the view. of the Court appropriately be determined in a petition under Art. 226 of the Constitution. With certificate granted by <ORG> this appeal has been preferred by the <ORG> of Orissa. Counsel for the <ORG> raised two, contentions in support of this appeal:

(1) that the petition raised disputed questions of fact and <ORG> should not have decided those questions in a writ petition; and (2) that the order refixing the age of the first respondent, was an administrative order and the High Count had no power to sin in appeal over the decision of the <ORG> authorities refixing the age of the first respondent.

In our view these contentions are without substance. It was the case of the first respondent in her petition before <ORG> that the <ORG> had arbitrarily fixed her date of birth as April 16, 1907, and on that basis had declared her superannuated before she attained the age of 58 years. On behalf of the <ORG> it was denied that the true date of birth of the first respondent was April 10, 1910, and that the authorities of the <ORG> had arbitrarily and maliciously chosen to refix her date of birth. Under Art. 226 of the Constitution <ORG> is not precluded from entering on upon a decision on quests s of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition under Art. 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined, <ORG> may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the <ORG>. In the present case the question in dispute was about the regularity of the enquiry and <ORG> was apparently of the view that the question whether the <ORG> acted arbitrarily did not raise any M2Sup.CI/67-11 question of investigation into complicated issues of fact. No interference with the exercise of the discretion of <ORG> is therefore called for.

It is common ground between the parties that no enquiry in accordance with the provisions of Art. 311 was made by the <ORG> Government. It was the plea of the <ORG> in <ORG> that Art. 31 1 has no application to the case of the first respondent, because she has not been dismissed or removed from service. The <ORG> contended that the true date of birth of the first respondent was April 16, 1907, and she had been properly declared superannuated in consonance with the finding arrived at in an enquiry, held for that purpose by the <ORG>.

The date of birth disclosed by the first respondent at the time when she entered service was accepted by the <ORG>. She claims that a statement was made by her father on that occasion relying on which the date of her birth was determined and entered in the service register, and thereafter the <ORG> sought arbitrarily to refix the date of her birth. In considering that plea the relevant Service Rules regarding superannuation may be noticed in the first instance. Rule 13 of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962, sets out the penalties which may be imposed "for good and sufficient reasons" on a <ORG> servant and the seventh penalty is "compulsory retirement". But the Explanation to the rule states that "compulsory retirement" of a <ORG> servant in accordance with the provisions relating to his superannuation or retirement is not a penalty within the meaning of the rule. Rule 459(b) of the Civil Service Regulations provides that officers, other than ministerial, who have attained the age of 55, should ordinarily be required to retire on completion of that age. By notification dated May 21, 1963, the age of superannuation was fixed at 58 in respect of all public servants who were to retire after December 1, 1962.

The first respondent held office in <ORG>. She as holder of that office, had a right to continue in service according to the rules framed under Art. 309 and she could not be removed from office before superannuation except"for good and sufficient reasons." The <ORG> was undoubtedly not precluded, merely because of the acceptance of the date of birth of the first respondent in the service register, from holding an enquiry if there existed sufficient grounds for holding such enquiry and for refixing her date of birth. But the decision of the <ORG> could be based upon the result of an enquiry in manner consonant with the basic concept of justice. An order by the <ORG> to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity of correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitution 'setup that every citizen is protected against exercise of arbitrary authority by the <ORG> or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be perform; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the tails of justice be ignored and an order to the prejudice of 'a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

The <ORG> has undoubtedly authority to compulsorily retire a public servant who is superannuated. But when that person disputes the claim he must be informed of the case of the <ORG> and the evidence in support thereof and he must have a fair opportunity of meeting that case before a decision adverse to him is taken.

In this background, the facts of the case may be reviewed. In. 1957 anonymous letters were received by the Director of Health Services that the first respondent had misstated her age, but no steps, were taken immediately to hold an enquiry. In 1961 some investiture was undertaken through <ORG>. The Secretary to the Government in <ORG> on August 23, 1961 informed the first respondent that the Government of Orissa had information that when she was admitted into Class X in <ORG>, her date of birth was 15 years, and when she was admitted into the First Year Class on July 9, 1924, her age was 17 years and 2 months, and she was required to show cause why May 9, 1907, should not be accepted as her date of birth on the basis of the entry in the Admission Register of the First Year Class. The first respondent submitted her explanation stating that she did not recollect if she had ever attended <ORG>. After 6 correspondence the Admission Register was examined by the first respondent in the presence of the Director of Health services and the officers of <ORG>, and thereafter on March 19, 1962, she wrote a letter pointing out the irregularities in the entries relating to age in <ORG> School Admission Register. The Additional Director of Family Planning Dr. <NAME> was then asked to make a report. In his report Dr. <NAME> largely relied upon a letter written by the Principal, <ORG>, Delhi, that the birth date of the first respondent was April 4, 1908. In the course of the enquiry before Dr. <NAME> the letter was shown to the first respondent but she declined "to make any comments thereon." Thereafter on September 28, 1962 there was a notice from the Secretary in <ORG> stating that according to the, school Admission Register her date of birth was August 22, 1906, and according to <ORG> it was April 1907, and it was intended to treat the latter date as the date of her birth, and the first respondent was called upon to show cause why that date should not be accepted. The report which Dr. <NAME> had submitted to the <ORG> was not disclosed to the first respondent. It may be recalled that there were four different dates before the <ORG> authorities ; (1)- the entry in <ORG> showing the date of birth as August 22, 1906, (2) the entry in the Admission Register of the First Year Class showing the date of birth as some date in April, 1907; (3) the report of the Principal, <ORG>, Delhi, showing the date of birth as April 4, 1908, as recorded in <ORG>; and (4) the first respondent's statement supported by her father's statement at the time when she joined the service in 1938 giving her date of birth as April 10,1910. If an enquiry was intended to be made, the <ORG> authorities should have placed all the materials before the first respondent and called upon her to explain the discrepancies and to give her explanation in respect of those discrepant and to tender evidence about her date of birth.

It is true that some preliminary enquiry was made by Dr. <NAME>. But the report of that Enquiry Officer was never disclosed to the first respondent. 'The rafter the first respondent was required to show cause why April 16, 1907, should not be accept das the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated must be made consistently with the rules of natural justice after informing the first respondent of the case of the <ORG>, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; <ORG> was, in our judgment, right in setting aside the order of the <ORG>.

The appeal therefore fails and is dismissed with costs. <NAME>

Appeal dismissed.