S. M. Banerji Vs. Sri Krishna Agarwal
[1959] INSC 139 (20 November 1959)
SUBBARAO, K.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
P.B.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1960 AIR 368 1960 SCR (2) 289
ACT:
Election PetitionAmendment of-Petition
alleging improper acceptance of nomination--Amendment introducing ground of
noncompliance with Provisions--Whether can be allowedDiscretion of Election
Tribunal-interference by High Court in appeal-Representation of the People Act,
1951 (43 of 1951), ss. 33(3) and 100
HEADNOTE:
The appellant held an office under the
Government and was dismissed from service on January 24, 1956, for a reason
other than corruption or disloyalty to the State. He filed his nomination paper
for election to Parliament which did not disclose any disqualifications. No
objection was taken to the nomination and it was accepted without making any
enquiry. After the poll the appellant was declared duly elected. The respondent
filed an election petition challenging the election of the appellant on the
ground, inter alia, that the nomination of the appellant had been improperly
accepted as he was dismissed from Government service and he had failed to
obtain a certificate from the Election Commission that he had not been
dismissed for corruption or disloyalty to the State. After limitation for
filing the petition had expired, the respondent applied to the Election
Tribunal for amendment of the petition seeking to add to this ground the
statement that the nomination paper was not accompanied by the prescribed
certificate.
The Tribunal disallowed the amendment on the
ground that the amendment sought to introduce a 290 new ground after the period
of limitation and then dismissed the election petition holding that the appellant
was qualified to stand for the election and his nomination was not improperly
accepted. On appeal, the High Court held that the amendment should have been
allowed as it merely asked for a clarification and not the introduction of a
new ground and consequently it set aside tile order of the Tribunal and
directed a retrial of the issue involving. The appellant obtained special leave
and appealed.
Held, that the amendment could not be allowed
as it sought to introduce a new ground in the petition after the period of
limitation. The ground taken in the petition was that there was an improper
acceptance of the nomination covered by s. 100(1)(d)(1) of the Representation
of the People Act, 1951. But there was no improper acceptance of the nomination
for the nomination paper ex facie did not disclose any defect or
disqualification. There being no subsisting prayer seeking to raise the ground
under s. 100(1)(d)(iv) for non-compliance with the Provisions of s. 33(3) of
the Act, the amendment was foreign to the scope of the, enquiry under the
ground covered by s. 100(1)(d)(1).
Durga Shankar Mehta v. Thakur Raghuraj Singh,
[1955] 1 S.C.R. 267 and Harish Chandra Bajpai v. Triloki Singh [1957] S.C.R.
370, followed.
Veluswami v. Raja Nainay, A.I.R. 1959 S.C.
422, referred to.
There was no jurisdiction in the High Court
to interfere with the discretion of the Election Tribunal refusing to allow the
amendment after the entire petition had -been disposed of. It is undesirable
for an appellate Court to interfere with the order of a subordinate Tribunal
made in the exercise of its discretion without exceeding the limits of its
powers, unless it has acted perversely or has taken a view which is clearly
wrong.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 301 of 1959.
Appeal by special leave from the judgment and
order dated December 10, 1958, of the Allahabad High Court, in First Appeal No.
382 of 1958, arising out of the judgment and order dated August 6, 1958, of the
Election Tribunal, Kanpur, in Election Petition No. 284 of 1957.
N. C. Chatterjee, R. K. Garg, S. C. Agarwal,
D. P. Singh, V. A. Sayid Muhammad Janardan Sharma and M. K. Ramamurthi, for the
appellant.
A. V. Viswanatha Sastri and K. P. Gupta, for
the respondent.
291 1959. November 20. The Judgment of the
Court was delivered by SUBBA RAO J.-This appeal by special leave is directed
against the judgment of the High Court of Judicature at Allahabad, setting
aside that of the Election Tribunal, Kanpur, dismissing the petition filed by
the respondent for setting aside the election of, the appellant as a member of
the Parliament from the Kanpur constituency.
In February-March 1957, elections were held
to fill up a parliamentary seat from the single-member constituency No. 331,
Kanpur. Sri S. M. Banerji, Sri Suraj Prasad and four others were candidates for
the said election. The said persons filed their nomination papers between 19th
and 29th January, 1957. The appellant was employed as Supervisor 'A' Grade at
the Government Ammunition Factory, Kirkee, and was dismissed from service on
January 24, 1956, for a reason other than corruption or disloyalty to the
state; and he was duly qualified to stand for the election. He also filed his
nomination paper within the prescribed time and ex facie it complied with all the
provisions of the Representation of the People Act, 1951 (43 of 1951), as
amended by Act XXVII of 1956, (hereinafter called the Act), and did not
disclose any disqualifications. The Returning Officer held scrutiny of the
nomination papers on February 1, 1957. As no objection was taken to the
appellant's nomination, the Returning Officer accepted it under s. 36 of the
Act without making any enquiry. The polling took place on March 6, 1957, and
the result was declared on March 13, 1957. The appellant having secured the
largest member of votes, was declared duly -elected. On April 24, 1957, the
respondent, who is one of the voters in the said constituency, presented a
petition before the Election Commission, New Delhi, praying that the election
of the appellant be declared void.
In the petition he alleged ten grounds to
sustain his petition. The Election Commission constituted an Election Tribunal
in the manner prescribed by the Act and referred the petition to the said
Tribunal for trial. On July 17, 1957, i.e., after the prescribed period 292 of
limitation of 45 days had expired, the respondent filed an application for
amendment of the election petition. The amendments sought to be made in the
election petition were as follows:
"(a) In paragraph No. 5 clause 'i',
figure '9' between the words 'under section' and 'clause' is a typing mistake
for figure '33'. In place of figure (9) figure '33' be substituted.
(b) In paragraph No. 5(d) at the end of the
paragraph, the following sentence be added:
"The nomination paper of the respondent
presented before the Returning Officer was not accompanied by a certificate of
the Election Commission to the effect that he has not been dismissed for
disloyalty or corruption. The improper acceptance of the nomination paper being
that of the returned candidate, there is a presumption that the result of the
election has been materially affected".
On August 3, 1957, the respondent filed
another application for amendment seeking the second amendment, in an
abbreviated form. The proposed amendment was as follows:
" (b) In paragraph No. 5(d) at the end
of paragraph, the following sentence be added in the petition :
" and such a certificate did not
accompany the nomination paper of the respondent and the acceptance of his
nomination paper materially affected the result of the election." By an
order dated August 12, 1957, the Election Tribunal dismissed the petition on
the -round that the amendments sought to introduce a new ground after the
prescribed period of limitation, and therefore it had no power to allow the
same. After dismissing the application, the Tribunal took up the main petition
for disposal and, after recording the findings on the issues raised, dismissed
the same with costs. Against the said judgment the respondent preferred an
appeal under s. 116A of the Act to the High Court.
Before the High Court the learned Counsel for
the respondent, withdrew the prayer for amendment of 293 sub-paragraph (1) of
paragraph (5) of the election petition and confined his relief only to the
amendment asked for in paragraph 5(d) of the election petition, i.e., he sought
to bring in the amendment under the head "improper acceptance of the
nomination paper". The High Court found, on the construction of the
pleadings, that the allegations found in the original petition were sufficient
to bring in the case under s. 100(1)(d)(i) of the Act i.e., under the head
"improper acceptance", and, therefore, the amendment asked for was
only a clarification but not an introduction of a new ground: in the result,
the High Court set aside the order of the Tribunal and directed it to decide
the issues that arose out of the averment made in the amended para.
5(d) of the election petition. The present
appeal was filed by special leave against the said judgment of the High Court.
The contentions of the learned Counsel, Mr.
N. C. Chatterjee, for the appellant may be briefly put thus: The ground for
relief in the election petition was based on improper acceptance of the
appellant's nomination within the meaning of s. 100(1)(d)(i) of the Act and no
alternative ground tinder sub-cl.(iv) of cl.(d) s. 100(1) was alleged.
There was proper acceptance of the nomination
paper and, therefore, the High Court or the Tribunal had no power to introduce
by amendment a new ground, namely, that the result of the election had been
materially affected by the noncompliance with the provisions of the Act, and
particularly when the ground based upon s. 33 of the Act. was given up by the
respondent.
He relies upon for the first proposition on
the decision of this Court in Durga Shankar Mehta v. Thakur Raghuraj Singh (1)
and for the second on the decision of this Court in Harish Chandra Bajpai v.
Triloki Singh (2).
Mr. A. V. Viswanatha Sastry, the learned
Counsel for the respondent, contends that the said two decisions were wrongly
decided and require reconsideration, and that, in any event, the amendment
asked for clearly falls within the scope of the later decision. He (1) [1955] 1
S.C.R. 267. (2) [1957] S.C.R. 370.
38 294 further contends that, on a fair
reading of the relevant allegations in the petition as originally presented, it
would be clear that the respondent stated all the necessary facts to sustain
the ground he had taken in the amendment petition, and that by the amendment he
was only seeking to clarify the said ground. In any view, he argues that the
appellate Court on a careful construction of the pleadings has held that the
petition in substance disclosed the said ground; and the question of
correctness of the said decision does not legitimately fall within the
discretionary jurisdiction of this Court under Art. 136 of the Constitution.
At the outset the relevant provisions of the
Act may be noticed. The said provisions read:
S. 9 (3) : " If any question is raised
as to whether a person who, having held any office referred to in clause (f )of
section 7, has been dismissed is disqualified under that clause for being
chosen as a member of either House of Parliament or of the Legislative Assembly
or Legislative Council of a State, the production of a certificate issued in
the prescribed manner by the Election Commission to the effect that such person
has not been dismissed for corruption or disloyalty to the State shall be
conclusive proof that -he is not disqualified under that clause." S. 33
(3): " Where the candidate is a person who, having held any office
referred-to in clause (f) of section 7, has been dismissed and a period of five
years has not elapsed since the dismissal, such person shall not be deemed to
be duly nominated as a candidate unless his nomination paper is accompanied by
a certificate issued in the prescribed manner by the Election Commission to the
effect that he has not been dismissed for corruption or disloyalty to the
State." S. 36: " (1) On the date fixed for the scrutiny of
nominations under section 30, the candidates, their election agents, one
proposer of each candidate, and one other person duly authorized in writing by
each candidate, but no other person , may attend at such 295 time and place as
the returning officer may appoint; and the returning officer shall give them
all reasonable facilities for examining the nomination papers of all candidates
which have been delivered within the time and in the manner laid down in
section 33.
(2) The returning officer shall then examine
the nomination papers and shall decide all objections which may be made to any
nomination, and may, either on such objection or on his own motion, after such
summary inquiry, if any, as he thinks necessary, reject any nomination on any
of the following grounds:(a) * * * (b) that there has been a failure to comply
with any of the provisions of section 33 or section 34; or (c) * * * S. 100:
(1) Subject to the provisions of sub-section (2), if the Tribunal is of opinion*
* * (d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected(i) by the improper acceptance of any
nomination, or (iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any other rules or orders under this Act, the
Tribunal shall declare the election of the returned candidate to be void.
The foregoing provisions, so far relevant to
the present enquiry, may be summarised thus: If a candidate has been dismissed
from Government service and a period of five years has not elapsed since
dismissal-, he will have to file along with the nomination paper a certificate
issued in the prescribed manner by the Election Commission to the effect that
he has not been dismissed for corruption or disloyalty to the State. If it has
not been done, the Returning Officer, either suo motu or on objections raised
by the opposite party, has to reject the nomination. If the nomination paper
does not disclose any such defect and if the 296 Returning Officer has no
knowledge of that fact, he has no option but to accept the nomination. The
Returning Officer may improperly accept a nomination paper though it discloses
the said defect and though an objection is raised to its reception on that ground.
Section 100(1)(d)(i) of the Act deals with improper acceptance of any
nomination and s. 100(1)(d)(iv) permits an attack on the ground, among others,
of non-compliance with the provisions of the Act.
Before we consider the contentions of the
parties, it would be convenient to appreciate the true scope of the two
decisions of this court in the light of the arguments advanced by the learned
Counsel. The first -decision is in Durga Shankar Mehta v. Thakur Raghuraj Singh
(1). This decision turns upon the provisions of sub-s. (1)(c) and subs. (2)(c)
of s. 100 of the Representation of the People Act, 1951 before it was amended
by Act XXVII of 1956. Sub-s.
(1)(c) and sub-s. (2)(c), in so far as they
are material to the present discussion correspond to s. 100(1)(d)(i) and s.
100(1)(d)(iv) respectively of the amended
Act. This case arose out of an election held in December, 1951, for the double
member Lakhnadon Legislative Assembly Constituency in Madhya Pradesh, one of
the seats being reserved for Scheduled Tribes. The appellant and respondents 1,
3,5 and 7 therein were duly nominated candidates for the general seat in the
said constituency, while respondents Nos. 2, 4 and 6 were nominated for the
reserved seat. No objection was taken before the Returning Officer in respect
_of the nomination of either the appellant or respondent No. 2. The appellant
and respondent No. 2 were declared elected to the general and reserved seat
respectively. The respondent No. 1 filed an election petition against the
appellant and the other respondents for setting aside the election as wholly
void. One of the allegations was that the respondent No. 2, was, at all
material times, under 25 years of age and was consequently not qualified to be
chosen to fill a seat in the Legislative Assembly of a State under Art. 173 of
the Constitution. The Election Tribunal held that the (1) (1955) 1 S.C.R. 267.
297 acceptance by the Returning Officer of
the nomination of respondent No. 2 amounted to an improper acceptance of
nomination within the meaning of s. 100(1)(c) of the Act, and on that ground
declared that the entire election was void. The candidate, who was elected to
the general seat preferred an appeal to this Court and contended that his
nomination had been properly accepted by the Returning Officer and, therefore,
if respondent No. 2 was not duly qualified to be elected, his election alone
should be declared void on the ground that such disqualification shall fall
under sub-s., (2)(c) of s. 100 and not under sub-s. (1)(c) thereof This Court
accepted the contention and in that context defined the import of "
improper acceptance " within the meaning of s. 100(1)(c) of the Act.
Mukherjea, J., as he then was, delivering the judgment of the Court observed at
p. 277:
" If the want of qualification of a
candidate does not appear on the face of the nomination paper or of the
electoral roll, but is a matter which could be established only by evidence, an
enquiry at the stage of scrutiny of the nomination papers is required under the
Act only if there is any objection to the nomination. The Returning-Officer is
then bound to make such enquiry as he thinks proper on the result of which he
can either accept or reject the nomination. But when the candidate appears to
be properly qualified on the face of the electoral roll and the nomination
paper and no objection is raised to the nomination, the Returning Officer has
no other alternative but to accept the nomination. 'This would be apparent from
section 36, subsection (7) of the Act . . .".
The learned Judge proceeded to state at p.
278:
" It would have been an improper
acceptance, if they want of qualification was apparent on the electoral roll
itself or on the face of the nomination paper and the Returning Officer
overlooked that defect or if any objection was raised and enquiry made as to
the absence of qualification in the candidate and the Returning Officer came to
a wrong conclusion on the materials placed before him. When neither 298 of
these things happened, the acceptance of the nomination by the Returning
Officer must be deemed to be a proper acceptance." This judgment,
therefore, is a clear authority for the proposition that if the want of
qualification does not appear on the face of the nomination paper and if no
objection is raised on that ground before the Returning Officer, the acceptance
of the nomination must be deemed to be a proper acceptance.
Mr. A.V. Viswanatha Sastry, the learned
Counsel for the respondent, attacks the correctness of this decision.
Broadly stated, his criticism is that the
proceedings before the Returning Officer are summary proceeding,, and that the
election petition is not an appeal from the order of the Returning Officer, but
is an original petition seeking to set aside the election and that in such a
petition the aggrieved party has the right to seek to set aside the election on
all or any of the grounds mentioned in s. 100 of the Act and that, as one of
the grounds is the improper acceptance of the nomination paper, he could
establish by evidence that the acceptance of the nomination by the Returning
Officer was in the derogation of the statutory provisions, such as those
relating to the absence of qualification in the candidate or the filing of his
nomination paper unaccompanied by a certificate within the meaning of s. 33(3)
of the Act. In support of this contention reliance is placed upon another
decision of this Court in Veluswami v. Raja Nainar (1). The point raised and
decided in that case was whether an enquiry before the Election Tribunal was
not restricted to the material placed before the Returning Officer relating to
a ground, but all evidence bearing on that ground could be adduced before that
Tribunal. There unlike here, at the time of scrutiny of the nominations
objection was taken to the nomination of the candidate on the ground that he
was the Head Master of the National Training School, Tiruchendur, which was a
Government-aided school, and therefore be was disqualified under s. 7, cls. (d)
and (e) of the Act. The Returning (1) A.I.R. 1959 S.C. 422.
299 Officer upheld the objection. In a
petition to set aside the election, the returned candidate pleaded that the
candidate whose nomination was rejected was not qualified to be chosen not
merely on the ground put forward before the Returning Officer but also on other
grounds. This Court held that. it is open to a party to put forward all grounds
in support or negation of the claim subject only to such limitations as may be
found in the Act, notwithstanding that some of the grounds were not taken before
the Returning Officer. The reason for the decision is found at p. 426 and it
reads :
" An election petition is an original
proceeding instituted by the presentation of a petition under s. 81 of the
Act........... All the parties have the right to adduce evidence and that is of
the essence of an original proceeding as contrasted with a proceeding, by way
of appeal. That being the character of the proceedings, the rule applicable is
that which governs the trial of all original proceedings; that is, it is open
to a party to put forward all grounds in support of or negation of the claim,
subject only to such limitations as may be found in the Act." The learned
Judge elaborated the point at a subsequent stage of the judgment thus:
" The enquiry which a returning officer
has to make under S. 36 is summary in character. He may make " such
summary enquiry, if any, as he thinks necessary "; be can act suo motu.
Such being the nature of the enquiry, the right which is given to a party under
S. 100(1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of
rejection or acceptance of a nomination paper would become illusory, if the
Tribunal is to base its decision only on the materials placed before the
returning officer." When the attention of the Court was invited to the
decision in Durga Shankar Mehta v. Thakur Raghuraj Singh(1), the Court
distinguished that decision in the following manner:
" This is not a direct pronouncement on
the point now in controversy, and that is conceded." (1) [1955] 1 S.C.R.
267.
300 The two decisions can stand together and
they deal with two different situations : in the former, no objection was
raised at all to the nomination, while in the latter an objection was raised on
the ground of disqualification; but in the election petition additional grounds
of disqualification were alleged and sought to be proved: one is concerned with
a case of improper acceptance and the other with a case of improper rejection.
Though some of the observations in the later decision may well have been
advanced to come to a contrary conclusion in the earlier decision, Venkatarama
Ayyar, J., who was party to both the decisions, distinguished the earlier one
on the ground that it was not a direct pronouncement on the question raised in
the later. The earlier decision is that of five Judges but the later is of
three Judges. The learned Judges, who decided the later case, did not see any
conflict between their decision and that of the earlier one.
Though there is some force in the argument
advanced by Mr. A. V. Viswanatha Sastry, and, if it were res integra, some of
us might be inclined not to agree with the reasoning and the conclusion of the
earlier judgment, this Court is bound by its earlier decision and we do not see
any justification to refer the question to a larger bench, particularly as we
have come to the conclusion that the High Court was not justified in
interfering with the order passed by the Tribunal in its discretion disallowing
the material amendment.
The second case is a decision of four Judges
and it defines the powers of the Election Tribunal in the matter of amendment
of pleadings. This decision also turns upon the relevant provisions of Act 43
of 1951 before it was amended by Act 27 of 1956. Section 83(3) of the Act
before the amendment corresponds to s. 90(5) of the amended Act. In other
respects, so far, as it is material to the question raised, no change has been
introduced in the other relevant sections. In this case, the respondent in the
appeal filed an election petition challenging the election of the appellants to
the U.P. Legislative Assembly on the ground that they had committed corrupt
practices, the material 301 allegations being, (i) that the appellants "
could in the furtherance of their election enlist the support of certain
Government servants ", and (ii) that the appellant No. 1 had employed two
persons in excess of the prescribed number for his election purposes. No list
of particulars of corrupt practices was attached to the petition. Long after
the period of limitation prescribed for the filing of election petitions, the
respondent applied for amendment of his petition by adding the names of certain
village Headmen (Mukhias) as having worked for the appellants and later on
becoming their polling agents. The Election Tribunal allowed the amendment on
the ground that the allegations sought to be introduced by the amendment were
mere particulars of the charge already made. Holding that corrupt practice had
been committed by the appellants, it declared their election void under s.
100(2)(b) of the Act.
The appellants preferred an appeal against
that order to this Court and contended that the Election Tribunal had no power
either under s. 83(3) of the Act or under Order VI, rule 17 of the Code of
Civil Procedure to allow the amendment. In that context, this Court elaborately
considered the scope of the power of the Election Tribunal to amend the
pleadings in an election dispute and summarized its views in the following two
propositions, at p. 392:
" (1) Under s. 83(3) the Tribunal has
power to allow particulars in respect of illegal or corrupt practices to be
amended, provided the petition itself specifies the grounds or charges, and
this power extends to permitting new instances to be given.
(2) The Tribunal has power under 0. VI, r. 17
to order amendment of a petition, but that power cannot be exercised so as to
permit new grounds or charges to be raised or to so alter its character as to
make it in substance a new petition, if a fresh petition on those allegations
will then be barred." On the basis of those propositions this Court held
that the petition as originally presented did not allege that the appellants
had committed corrupt practices and, therefore, that the allegations sought to
be introduced 39 302 by the amendment, namely, that two village Headmen s.
worked for the appellants and later on became their polling agents, so
radically altered the character of the petition as originally framed as to make
it practically a new petition, and so it was not within the power of the
Tribunal to allow amendments of that kind. Even if the Tribunal had the power
under 0. VI, r. 17 of the Code of Civil Procedure to permit an amendment
raising a new charge, the Court held that it did not under the circumstances
exercise a sound and judicial discretion in permitting the amendment in
question.
It may be noticed that in that case the
question turned upon the construction of s. 83, sub-ss. (2) and (3), of the
Act.
Though in that case this Court was concerned
with the powers of an Election Tribunal to amend the petition beyond the period
of limitation, the discussion of the Court covered a wider field, presumably,
because the Court intended to settle the principles governing the power of
Election Tribunals to amend pleadings with a view to prevent confusion and to
stabilize the procedure. This Court rejected the argument that 0. VI, r. 17 of
the Civil Procedure Code, does not apply to election petitions. It was observed
at p. 389:
" We are accordingly of opinion that the
application of 0.
VI, r. 17, Civil Procedure Code to the
proceedings before the Tribunal is not excluded by s. 83(3)." It was
contended for the appellant in that case that even if s. 83(3) of the Act did
not exclude the application of 0.
VI, r. 17, Civil Procedure Code, to the
proceedings before the Tribunal, the exercise of the power under that rule
must, nevertheless, be subject to the conditions prescribed by s. 81 for
presentation of an election petition, that one of those conditions was that it
should be presented within the time allowed therefor, and that accordingly, no
amendment should be allowed which would have the effect of defeating that
provision. After considering the English decisions on the statutory provisions
which are pari materia with our enactments, the Court held that the Election
Tribunal had no power to permit a new ground to be 303 raised beyond the time
of limitation prescribed by s. 81 of the Act. Mr. A. V. Viswanatha Sastry
contended that the learned Judges, having rightly conceded the power of the
Election Tribunal to amend the pleadings under 0. VI, r. 17, Civil Procedure
Code, went wrong in limiting that power in the way they did, and that the
reason advanced by them in limiting that power equally applies to the pleadings
in a suit, for, it is said, under the Indian Limitation Act, every suit filed
beyond the prescribed period of limitation shall be dismissed although
limitation has not been set up as a defence. There is no doubt some force in
this contention, but this argument was presumably advanced before the learned
Judges and was negatived on the following ground stated at p. 392:
" The Tribunal sought to get over this
difficulty by relying on the principle well-established with reference to
amendments under 0. VI, r. 17 that the fact that a suit on the claim sought to
be raised would be barred on the date of the application would be a material
element in deciding whether it should be allowed or not but would not affect
the jurisdiction of the court to grant it in exceptional circumstances as laid
down in Charan Das v. Amir Khan (1). But this is to ignore the restriction
imposed by s. 90(2) that the procedure of the court under the Code of Civil
Procedure in which 0. VI, r. 17 is comprised, is to apply subject to the
provisions of the Act and the rules, and there being no power conferred on the
Tribunal to extend the period of limitation prescribed, an order of amendment
permitting a new ground to be raised beyond the time limited by s. 81 and r.
119 must contravene those provisions and is, in consequence, beyond the ambit
of authority conferred by s.
90(2)." This passage indicates that the
learned Judges were aware of the argument now advanced and, for the reason
mentioned by them, namely, that unlike a civil suit wherein the Court can extend
the period of limitation in a proper case, the Tribunal has no such power,
rejected the argument. We ,are bound by this decision, (1) (1920) L.R. 47 I.A.
255.
304 As this stage, we must guard against one
possible misapprehension. Courts and Tribunals are constituted to do justice
between the parties within the confines of statutory limitations, and undue
emphasis on technicalities or enlarging their scope would cramp their powers,
diminish their effectiveness and defeat the very purpose for which they are
constituted. We must make it clear that within the limits prescribed by the
decisions of this Court the discretionary jurisdiction of the Tribunals to
amend the pleadings is as extensive as that of a civil Court. The same
well-settled principles laid down in the matter of amendments to the pleadings
in a suit should also regulate the exercise of the power of amendment by a
Tribunal.. This aspect has not been ignored by this Court in the aforesaid
decision, and the Court observed, at p. 394:
" It is no doubt true that pleadings
should not be too strictly construed, and that regard should be had to the
substance of the matter and not the form." The foregoing discussion yelds
the following results: (1) Sub-cls. (i) and (iv-) of s. 100(11)(d) of the Act
provide for two distinct grounds the former for the case of improper acceptance
of any nomination, and the latter for that of non-compliance with the
provisions of the Constitution or of the Act, or of any rules or orders made
under the Act; (2) when the candidate appears to be properly qualified on the
face of the electoral roll and the nomination paper and no objection is raised
to the nomination, the acceptance of the said nomination by the Returning
Officer must be deemed to be proper acceptance ; (3) even if there is a proper
acceptance, it is open to the petitioner to question the validity of the
election -under s. 100(1)(d)(iv) on other grounds, namely, that the candidate
whose nomination was accepted was not qualified at all or could not be deemed
to be duly nominated as a candidate for the reason that he did not comply with
the provisions of s. 33(3) of the Act; and (4) if the second ground in
substance is not taken in the petition-substance is more important than
form-the Tribunal has no power after the prescribed period of limitation for
the filing 305 of the petition to allow an amendment introducing the second
ground.
With this background we shall proceed to
scrutinize the pleadings in the light of the rival contentions. The election
petition contains seven paragraphs. The relief claimed is that the election of
the appellant from the parliamentary constituency No. 331, Kanpur, be declared
void. The first paragraph gives the credentials of the petitioner to enable him
to file the petition. Paragraphs 2 and 3 give the sequence of events which
ended in the declaration of the appellant as duly elected from the constituency
to the Parliament. Paragraph 5 states that the election of the appellant is
void and is liable to be set aside on the ten grounds, among others, specified
therein.
Paragraph 6 states that the cause of action
accrued to the petitioner on or about January 29, 1957, when the nomination
papers were filed for the said election, and subsequent thereto. Now coming to
the grounds in sub-para(a), (b) and (c) of para 5, it is stated that the
,appellant had been dismissed by Government from service on charges of
disloyalty and gross misconduct on January 24, 1956, but he did not submit to
the aid order and filed a writ petition in the High Court at Calcutta
questioning the validity of the said order, that under the circumstances, he
should be deemed to be a Government servant and, therefore, he was not
competent to be nominated as a candidate for election to Parliament.
Sub-paragraph (d) is the most important paragraph to the present enquiry and
therefore it may be extracted in full. It reads:
" That apart from the above mentioned
reasons the nomination paper of the respondent was also improperly accepted by
the Returning Officer, in-as much-as, the respondent having been dismissed from
Government Service did not obtain a certificate in the prescribed manner from
the Election Commission to the effect that he had not been dismissed for
corruption or disloyalty to the State." This sub-paragraph in clear and
unambiguous terms raises the ground of improper acceptance of the nomination
paper by the Returning Officer i.e., the ground 306 covered by s. 100(1)(d)(i)
of the Act. The reason for sustaining the said ground is stated to be that,
having been dismissed from Government service, he did not obtain a certificate
in the prescribed manner from the Election Commission. Ex facie this
sub-paragraph does not refer to s. 33(3) or to the contents of that subsection.
A nomination paper may be accepted by the Returning Officer in spite of one or
other of the following two defects: (i) the candidate who has been dismissed
may have filed the nomination -paper without its being accompanied by a
certificate issued in the prescribed manner by the Election Commission to the
effect that he has not been dismissed from service for corruption or dis
loyalty to the State: vide s. 33(3); and (ii) the candidate has been
disqualified for being chosen as a member of Parliament:
vide s. 9(3). In this subparagraph in support
of the ground that the nomination of the appellant was improperly accepted,
reference was made to the second defect and not to the first. That this must
have been the intention of the respondent is also made clear from the
circumstance that in sub-para (i) reference was made to the latter sub-section
but not to the former. The argument that the opening words of sub-para (d),
" That apart ", indicate that this is a ground in addition to the
ground based on the non-obtaining of a certificate in the prescribed manner,
and, therefore, should only refer to the non-accompaniment of a certificate,
has no force; for, sub-paras (a), (b) and (c), which precede sub-para (d) raise
a different point altogether, namely, that notwithstanding the dismissal, as
the appellant had filed a petition in the High Court questioning the validity
of the order of dismissal, he was still a Government servant on the crucial
date. Be it as it may, the important point to be noticed is that sub-paragraph
(d) raises a ground under sub-cl. (i) and not under subcl. (iv) of s. 100(1)(d)
of the Act, and even if the facts mentioned therein are disannexed from the
ground, they refer only to the disqualification of the appellant to stand as a
candidate for the election and not to the procedural defect covered by s. 33(3)
of the Act. Subparagraphs (e), (f) and (g) relate to the objections 307 which
are not material for the present inquiry. Subparagraph (h) contains a general
statement that the appellant was disqualified to be chosen to fill the parlimentary
seat. Sub-paragraph (i) specifically refers to s. 9(3) of the Act. We are not
also concerned with the allegations in -sub-para (j).
The foregoing analysis of the allegations in
the petition so far as they are relevant to the question raised, discloses the
following two circumstances : (i) the ground taken in the petition was that
there was an improper acceptance of the nomination covered by s. 100(1)(d)(i)
for the reason that the appellant, having been dismissed from Government
service, did not obtain a certificate in the prescribed manner; and (ii) there
was no ground which would fall under sub-cl. (iv) of s. 100(1)(d) of the Act.
viz., that the appellant was not to be deemed to be duly nominated as a
candidate as his nomination paper was not accompanied by a certificate issued
in the prescribed manner by the Election Commission to the effect that he had
not been dismissed for corruption or disloyalty to the State. In the
application for amendment which was filed after the prescribed period of limitation,
two amendments were asked for-one to sub-para (i) of para 5 and the other to
sub-para (d) thereof. The former was for substituting the figure " 33
" for the figure " 9 " and the latter to introduce a statement
in that paragraph to the effect that the nomination paper was not accompanied
by the prescribed certificate. The subsequent petition, as we have already
noticed, sought for the same amendment to para (5)(d) in an abbreviated form.
But what is important to notice is that even the proposed amendment sought to
bring in the said statement under the ground of "improper acceptance"
and not under s. 100(1)(d)(i) of the Act. The appellant filed a
counter-affidavit opposing both the amendments. The Tribunal noticed the
judgment of this Court-and applied the principles laid down therein to the
facts before-it. It also considered in detail the allegations in the petition
and arrived at the following findings: (i) " All what has been urged
throughout is that the respondent was a Government servant or a 308 dismissed
Government servant and no certificate having been obtained from the Election
Commission about his dismissal not being for corruption or disloyalty, he was
not eligible for election as a candidate to the House of the People ", and
(ii) sub-section (3) of s. 33 which is a provision laying down a certain
procedure was never in the mind of the petitioner while the petition was being
drafted or prepared, and that is why we find no reference to the certificate
not being filed with the nomination paper." He concludes his discussion
thus :
"It would thus be seen that the
amendment sought by the petitioner offends against the conditions laid down by
their lordships of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh
(1) relating to the application of Order VI, rule 17 of the Civil Procedure
Code to proceedings before an Elettion Tribunal. It has been specifically laid
down that an amendment will not be allowed if the effect of it be to permit a
new ground or charge to be raised or to so alter its character as to make it in
substance a new petition.
That would exactly be the effect of the
amendment sought by the petitioner It will be seen, therefore, that the
Tribunal has put before itself the correct principles governing its powers of
amendment and found, on a construction of the allegations in the petition, that
by the proposed amendment, the respondent was seeking to introduce a new ground
after the period of limitation. This order was made by the Tribunal in the
exercise of its discretion in strict conformity with the principles laid down
by this Court.
The next question is whether the High Court
was justified in setting aside that order. It was argued before the High Court
that the amendment application was wrongly refused and that even as the election
petition stood without the amendment it contained sufficient averment of facts
to make out a ground under s. 100(1)(d)(i) of the Act, and in the alternative
that it made out a ground under s. 100(1)(d)(iv) of the (1) (1957) S.C.R.370.
309 Act. Before the High Court the learned
Counsel for the respondent withdrew his prayer for the amendment of subpara(1)
of para 5 of the election petition; with the result the only paragraph on which
reliance was placed by the respondent was sub-para (d) of para 5. The High
Court also noticed the judgment of this Court in Harish Chandra Bajpai's Case
(1) and posed the following question for its decision:
" The important thing is whether in
substance the petition contains the particular ground of attack or not."
It proceeded to consider whether the original subpara (d) of para 5 contained
any ground and if so, what?: and whether a new ground was sought to be raised
in the garb of an amendment. After reading the said sub-para, it expressed the
view that the ground, in its opinion, would fall under s. 100(1)(d)(i) of the
Act; and that conclusion was based on the allegations in the said sub-para that
there was an improper acceptance of the nomination and that the appellant had
not obtained the necessary certificate from the Election Commission. It has
stated that in the circumstances of the case the respondent meant to state
that, as the certificate had not been obtained, it could not have accompanied
the nomination paper. The learned Judges of the High Court concluded their
discussion thus:
" We also think that the Tribunal should
have permitted the amendment because the ground of attack had been clearly made
out and the only mistake committed by the appellant was not to put it in proper
words," In short, the view of the High Court was that sub. para (d)
contained the ground under s. 100(1)(d)(i) of the Act and what was asked for by
way of amendment was only a clarification of that ground.
The High Court, in our view, has missed the
real point raised before it. We have already pointed out that, in view of the
judgment of this Court in Durga Shankar Mehta's Case (2)there was no improper
(1) (1957) S.C.R. 370. (2) (1955) 1 S.C.R. 267.
40 310 acceptance of the nomination paper by
the Returning Officer.
for, the nomination paper ex facie did' not
disclose any defect or disqualification. The petition for amendment asked for
inserting a statement in sub-para (d) of para 5 under the ground of improper
acceptance of the nomination paper, viz., that the prescribed certificate did
not accompany the nomination paper of the candidate, and that at the appellate
stage the other proposed amendment based upon s. 33(3) of the Act was given up.
The result was that no relief for raising the ground under s. 100(1)(d)(iv) had
survived and that the ground under s. 100(1)(d)(i) was not open to the
respondent. In the circumstances, the amendment would be foreign to the scope
of the enquiry under the ground governed by s. 100(1 )(d)(i) of the Act.
That apart, could it be said that the High
Court was justified in the circumstances of this case to interfere with the
discretion of the Tribunal ? An appellate Court has no doubt an unquestioned
right to review or modify the order made by a subordinate Court; but it is
undesirable to do so when the subordinate Court made an order in the exercise
of its discretion without exceeding the limits of its power, unless it acted
perversely or unless the view taken by it is clearly wrong. In this case, the
Election Tribunal neither exceeded its powers nor acted perversely; and indeed
its order advanced the cause of justice in that it helped to maintain the
election of a candidate who was duly qualified and who secured a large majority
of votes over all the rival candidates. We have carefully considered the 'reasons
set out in the judgment of the High Court in support of its decision that the
amendment should have been allowed by the Tribunal, and in our opinion the said
reasons are unsatisfactory and on some points farfetched. In the circumstances,
we do not see any justification, after the entire petition was disposed of, for
the High Court to interfere with the said discretion. We therefore set aside
the order of the High Court.
It is represented to us by the learned
counsel for the appellant that in the High Court the only 311 point argued was
that the amendment should have been allowed and no other point was pressed. The
learned counsel for the respondent does not accept this position. In the
circumstances, we have no other option but to remand the case to the High Court
for disposal in accordance with law.
The respondent will pay the costs to the
appellant.
Appeal allowed.
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