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PATNA HIGH COURT
V.Ramaswami and Choudhary JJ.
Sheo Mahadeo Prasad
Versus
Deva Sharan Sinha
Miscellaneous Judicial Case No. 59 of 1954 ;
Decided On : APRIL 30, 1954
ELECTION PETITION - AMENDMENT - JURISDICTION OF ELECTION TRIBUNAL - SECTION 90(2) OF THE REPRESENTATION OF THE PEOPLE ACT, 1951 - ORDER 6, RULE 17, CIVIL PROCEDURE CODE, 1908 - SECTION 83(1), (2) AND (3) OF THE ACT - ELECTION TRIBUNAL HAS NO JURISDICTION TO ALLOW AMENDMENT OF ELECTION PETITION BY ADDING NEW GROUND OR PRAYER - AMENDMENT OF PARTICULARS UNDER SECTION 83(3) OF THE ACT - INTENTION OF THE LEGISLATURE - STRICT COMPLIANCE WITH STATUTORY REQUIREMENTS OF ELECTION LAW - ELECTION CONTEST IS NOT AN ACTION AT LAW OR SUIT IN EQUITY BUT A PURELY STATUTORY PROCEEDING.
Fact of the Case:
Election petition was filed challenging the election of the petitioner. The Election Tribunal allowed an amendment to 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. The petitioner challenged the order of the Election Tribunal.
Finding of the Court:
The Election Tribunal had no jurisdiction to allow the amendment of the election petition by adding a new ground or an independent new prayer. The provisions of Section 90(2) of the Representation of the People Act, 1951, read with Order 6, Rule 17, Civil Procedure Code, 1908, do not give the Election Tribunal the power to allow such amendment. 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. The amendment of particulars under Section 83(3) of the Act is the only amendment that can be allowed in an election petition. The intention of the legislature is 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.
Issues: Whether the Election Tribunal had jurisdiction to allow the amendment of the election petition by adding a new ground or prayer.
Ratio Decidendi: The provisions of Section 90(2) of the Representation of the People Act, 1951, read with Order 6, Rule 17, Civil Procedure Code, 1908, do not give the Election Tribunal the power to allow an amendment of the election petition by adding a new ground or an independent new prayer. 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. The amendment of particulars under Section 83(3) of the Act is the only amendment that can be allowed in an election petition. The intention of the legislature is 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.
Final Decision: The order of the Election Tribunal allowing the amendment of the election petition was quashed.
Choudhary, 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 the Election Tribunal, 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 the Bihar State Assembly 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 Kamleshwar Prasad Yadava, polling agent of the petitioner, Sheo Mahadeo Prasad. 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 the India Gazette, Extra-ordinary, dated 16-6-1953. Thereafter, opposite party No. 1, Deva Sharan Singh, filed an election petition under Section 81, Representation of the People Act of 1951 (hereinafter to be called the Act) to the Election Commission 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 the Election Tribunal, Patna, for trial and was published in the Bihar Gazette by the Chairman of the said Tribunal. 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 Kamleshwari Prasad Yadava, 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 the Election Tribunal 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 inclu
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