Power of Election Commissioner to order amendment of an election petition.

Rajamannar, C.J.-The only question in this writ appeal is whether an Election Commissioner appointed to enquire into an election petition filed to set aside an election to a District Municipality has got the power to amend the petition by adding another ground on which the election is sought to be set aside, after the time for presenting the election petition has elapsed. Rajagopalan, J., held that the Election Commissioner has no jurisdiction to order an amendment in such circumstances.

The facts may be set out very briefly. An election for a seat in the Municipality from Municipal Ward No. 11, R.S. Puram, Coimbatore, was held on 16th September, 1952. There were three competing candidates of whom the 1st respondent was declared elected on 29th September, 1952, having secured the largest number of votes. The appellant before us filed an election petition before the Subordinate Judge, Coimbatore, who was the duly constituted Election Commissioner, challenging the validity of the 1st respondent’s election on two grounds, namely (1) that the 1st respondent was not validly nominated and (2) that there was an unauthorised inclusion of a number of voters in the electoral roll. On 27th October, 1952, before the enquiry began but after the time for presenting an election petition had elapsed, the appellant filed an application to amend his petition by adding another ground on which he wanted to challenge the validity of the election, namely, that the 1st respondent was disqualified under section 49 (2)(c) of the District Municipalities Act, as he had an interest in a subsisting contract with the Municipality. That petition was allowed on 1st November, 1953. The Election Commissioner found against the appellant on the two grounds originally put forward in the election petition. But he held that the additional ground included by the amendment had been made out, and on that ground set aside the election of the 1st respondent. It was to quash this order of the Election Commissioner that W.P. No. 133 of 1953 was filed by the 1st respondent. Rajagopalan, J., allowed the petition, holding that the Election Commissioner had no jurisdiction to order the amendment. This appeal is against the judgment of Rajagopalan, J.

The learned Judge did not discuss the question, because he followed an earlier decision of Rajagopala Ayyangar, J., in W.P. No. 74 of 1953 on an identical question, with which he agreed entirely. It was urged before Rajagopalan, J., that the 1st respondent before us was not entitled to invoke the jurisdiction of the Court having taken advantage of the Election Commissioner’s order granting the amendment by way of drawing out the costs ordered by the Election Commissioner to be paid to him when the Election Commissioner allowed the application for amendment. The learned Judge overruled this objection. There was another contention before him that the 1st respondent had submitted to the jurisdiction of the Election Commissioner, and therefore should not be permitted to invoke the jurisdiction of this Court under Article 226 of the Constitution. This contention was not accepted and it was not pressed before us. The material provisions relating to the main question in issue are to be found in the Rules for Decision of Election Disputes under the Madras District Municipalities Act, 1920. Rule 1(1) of these Rules says that no election held under the Act shall be called in question except by an election petition presented in accordance with the rules to an Election Commissioner by a candidate or elector. Such a petition shall be presented within seven days of the date of the declaration of the result of the election. (Rule 2(1)). Rule 2(2) provides that the petition shall contain a statement in concise form of the material facts on which the petitioner relies and the particulars of any corrupt practice which he alleges. Rule 6 is in the following terms:

"Every election petition shall be inquired into by the Election Commissioner as nearly a

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