MALIK, CJ. :- This writ petition has been filed by Kari Shankar Prasad Gupta under Art. 226 of the Constitution. The reliefs claimed by him are as follows :

(a) A writ in the nature of quo Warranto be issued against the opposite-party no. 1 calling upon him to show the authority under which he has been duly appointed a Member of the Election Tribunal and (b) a writ in the nature of prohibition be issued directing the opposite-party No. 1 not to proceed with the hearing of the Election Petition No. 224 of 1952.

2. The applicant, Hari Shankar Prasad Gupta, was elected to the House of the People of Uttar Pradesh from the North Constituency, district Gorakhpur. Shibban Lal Saksena was a rival candidate. He filed an election petition challenging the election of the applicant. The petition was numbered as Election Petition No. 224 of 1952. The Election Commission appointed an Election Tribunal to hear this petition and Sri Brij Narain, District Judge, Gorakhpur, was appointed the Chairman of the Election Tribunal. The two members nominated by the Election Commission were, Sri Brij Behari Lal, Retired District Judge of Uttar Pradesh, and Sri Sukhdeo Prasad, Advocate, Gorakhpur.

The Election Tribunal proceeded with the hearing of the petition and examined as many as 43 witnesses for the petitioner, Sri Shibban Lal Saksena, and, on the close of his evidence 67 witnesses for Hari Shankar Prasad Gupta, the applicant. The Tribunal has said that the statement of Hari Shankar Prasad and a few short witnesses on his behalf remained to be recorded. It was at this stage that Hari Shankar Prasad Gupta filed an application before the Election Tribunal challenging the appointment of Sri Sukhdeo Prasad on the ground that he was not an advocate of 10 years standing. This application was dismissed by the Election Tribunal by its order dated 28th August, 1953. There was an appeal filed before the Election Commission which was dismissed on 15th September, 1953. It was while that appeal was pending before the Election Commission that this writ petition was moved on 2nd September, 1953.

3. The opposite party has raised two preliminary objections, firstly, that this Court has no jurisdiction to entertain the application and reliance was placed on a decision of the Supreme Court in - Election Commission, India v. Saka Venkata Rao, AIR 1953 SC 210 (A), and secondly, that certain necessary parties, namely, the Election Commission and the Registrar of the High Court have not been impleaded.

4. It is not necessary for me to go into the preliminary objections as I propose to dismiss the application on the merits. The Election Tribunal as also the Election Commission have characterised the objection as a belated one. The Election Tribunal has said that"respondent no. 1 is an advocate practising in Gorakhpur and he could have raised the present objection in the beginning of the trial but he did not do so. As such the present belated application can be deemed to be for harassment of the petitioner as has been contended by the learned advocate for the petitioner."

The Election Commission has said that "in any opinion, therefore, this belated application challenging the due constitution of the tribunal is without substance and it is hereby rejected."

The fact that the application is a belated application cannot be denied. It is, however, urged that the applicant did not know that Sri Sukhdeo Prasad was not an advocate of ten years standing. This is difficult to believe as the applicant and Sri Sukhdeo Prasad both belong to the Gorakhpur Bar. Even if Sri Sukhdeo Prasad was not qualified on the date of his appointment, there can be no doubt that he is qualified today and there is nothing to bar his reappointment now. On these grounds alone the petition should fail, but even on the merits. I am not satisfied that this application has any force.

5. Reliance has been placed on S. 86 of the Representation of the People Act, 1951, (Act XLIII of 1951). Section 86 provides