Back
HIGH COURT OF BOMBAY
CHAGLA,DIXIT, JJ.
Sitaram Hirachand Birla
Versus
Yograjsing Shankarsing Parihar
Civil Appln. No.2017 of 1952
Decided On : 19-12-1952
ELECTION PETITION - AMENDMENT OF PETITION - ADDITION OF PARTY - JURISDICTION OF TRIBUNAL - LIMITATION - LIST OF CORRUPT PRACTICES - SUFFICIENCY - INTERPRETATION OF STATUTES.
Fact of the Case:
The petitioner, a successful candidate in an election, filed a petition challenging the election of opponent 1. Opponent 7, who was duly nominated but withdrew from the contest, was not made a party to the petition. The Tribunal allowed the petitioner to amend the petition and add opponent 7 as a party. The petitioner challenged the Tribunal's jurisdiction to amend the petition and add a party beyond the limitation period.
Finding of the Court:
1. The Tribunal had the jurisdiction to amend the petition under S.90(2) of the Representation of the People Act, 1951, as the power to try a petition in accordance with the procedure applicable under the Code of Civil Procedure included the power to amend the petition. 2. The Tribunal had the jurisdiction to add opponent 7 as a party to the petition, as the expression "all the candidates who were duly nominated at the election" in S.82 of the Act referred to candidates who were duly nominated and contested the election, and not to candidates who withdrew their candidature. 3. The addition of opponent 7 as a party beyond the limitation period did not render the petition liable to be dismissed, as the law of limitation only provided that the petition must be deemed to have been presented against opponent 7 when he was made a party, and it was for the Tribunal to consider whether the petitioner was entitled to any relief in the absence of opponent 7 during the limitation period.
Issues: 1. Whether the Tribunal had the jurisdiction to amend the petition under S.90(2) of the Representation of the People Act, 1951. 2. Whether the Tribunal had the jurisdiction to add opponent 7 as a party to the petition. 3. Whether the addition of opponent 7 as a party beyond the limitation period rendered the petition liable to be dismissed.
Ratio Decidendi: 1. The power to try a petition in accordance with the procedure applicable under the Code of Civil Procedure included the power to amend the petition, as S.90(2) of the Act was made subject to the provisions of the Act and any rules made thereunder, and S.92, which conferred certain powers upon the Tribunal, was not made subject to any rules. 2. The expression "all the candidates who were duly nominated at the election" in S.82 of the Act referred to candidates who were duly nominated and contested the election, and not to candidates who withdrew their candidature, as the expression "at the election" emphasized the point of time when the election took place and the candidate was a contestant at the election. 3. The law of limitation only provided that the petition must be deemed to have been presented against opponent 7 when he was made a party, and it was for the Tribunal to consider whether the petitioner was entitled to any relief in the absence of opponent 7 during the limitation period.
Final Decision: The petition was dismissed with costs.
CHAGLA, C.J. :- This is a petition filed by a successful candidate at an election held for a seat in the Bombay Legislative Assembly from the Erandol Taluka Constituency. A petition was filled by opponent 1 challenging the petitioners election. Seven nominations were received for this election. Opponent 7, although he was duly nominated, withdrew from the contest. The scrutiny of the nominations was held on 27-11-1951, and on 28-11-1951, the Returning Officer published the list of valid nominations. The election took place on 7-1-1952, the counting of votes took place on 12-1-1952, and the result of the election was declared on 19-1-1952, and as already pointed out the petitioner was declared to be duly elected. The first opponent filed his election petition on 25-3-1952, and it reached the Election Commission on 27-3-1952. The Election Commission referred the petition to an Election Tribunal which was appointed for the trial of the petition, and the petitioner has now come before us for a writ directed against the Tribunal calling upon the Tribunal to dismiss the election petition.
2. Mr. Patwardhan who appear, for the petitioner has pointed out various defects which appear in the petition. It is pointed out that when the petition was presented it was not properly verified, and S.83(1), Representation of the People Act, provides that an ejection 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 Code of Civil Procedure for the verification of pleadings. Admitted y, the verification of the petition as presented to the Election Commission did not comply with the provisions of the Code. A list was also furnished to the Commission in accordance with S.83(2) and that sub-section provides 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 a3 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. The verification of this list was not also in accordance with the Civil Procedure Code. A further additional list was also sent to the Commission and the Commission
In referring the petition to the Tribunal also forwarded with the petition the list and the additional list which was submitted to it.
3. In the first peace, it is contended that the Election Commission should have dismissed the petition and should not have appointed an Ejection Tribunal for the trial of the petition under S.86 of the Act. Section 85 of the Act provides that if the provisions of S.81, S.83 or S.117 are not complied with, the Election Commission shall dismiss the petition. Mr. Patwardhan contends that inasmuch as the petition and the list were not verified as required by S.83(1) and S.83(2), it was obligatory upon the Election Commission to dismiss the petition. Now, this petition is not directed against the Election Commission. The petitioner goes not require any mandamus against the Ejection Commission to discharge its statutory obligation. The election petition is directed against the Tribunal, and what we have to consider in this petition is not the statutory obligations of the Election Commission but the statutory obligations of the Tribunal. If the Election Commission failed to dismiss the petition, assuming that it was under an obligation to do so under S.85, even so, once the election petition is referred to an Election Tribunal, the duty of the Ejection Tribunal is to dispose of it according to law. It is not open to the Election Tribunal to challenge the competence of the Election Commission to appoint the Tribunal or to refer the election petition to it for trial.
4. It is then urged that if the Commission failed to dismiss the petition, the Tribunal itself und
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
