HARI RAJ SINGH Vs. SHAH NAWAZ KHAN

JUDGEMENT

(1.) This writ petition filed under Article 226/227 of the Constitution by one of the electors arises out of an election matter. The petitioner has prayed; (1) to issue a writ or certiorari, order or direction in the nature of ceniorari to quash the order of the Election Tribunal, respondent No. 3, dated 24th October 1962; (2) to issue a writ, order or direction in the nature of mandamus directing the Election tribunal to decide the amendment application of the petitioner on merits; and (3) to issue any other suitable writ, order or direction.

(2.) Briefly stated the facts are, that the petitioner, Sri Hart Raj Singn, who \$ an elector of 81 Meerut LOK Sabha Constituency, tiled an election petition questioning the election of Sri Shah Nawaz Khan, respondent No. 1, on the ground that the said respondent committed corrupt practices as defined in Section 123(3) of the Representation of we people Act through his agents, supporters and workers. The corrupt practices have been enumerated in sub-paragraphs (a) to (j) of paragraph 12 of the petition. A written statement on behalf of respondent No. 2 was filed on 28th August 1962. The present petitioner filed an application for amendment of the particulars of the corrupt practices alleged in the petition. These amendments are narrated in sub-paragraphs (a) to (z) of paragraph 4 and also in paragraph 8 of the application. This application was opposed on benalf of respondent No. 1 and one of the objections which has prevailed with the learned Election Tribunal, was that according to the proviso added to Section 83 in 1961 every petition is require to be accompanied by an affidavit in support of the allegations of the corrupt practices and the particulars thereor. consequently this provision operated as a bar to any subsequent amendment of the particulars of corrupt practices given in the petition. It was also urged that this provision of law has impliedly repealed Sub-section (5) of Section 90. The learned Election Tribunal framed the following issue on this question: "Whether the provision of the affidavit brought in by the amendment of Section 83 of the Representation of the People Act operates as a bar for any subsequent amendment of the petition by the introduction of particulars?"

(3.) The learned Member of the Election tribunal did not consider the amendment application on merits and held that "the mandatory provision of affidavit introduced in Section 83 abrogates the provisions of Section 90(0). Section 90(5) should be deemed to have been impliedly repealed." The Election Tribunal rejected the amendment application. It is this order of the Election Tribunal which has been questioned before us by means of this writ petition.