KSHATRAPAL SINGH Vs. F A CHISTI

JUDGEMENT

(1.) This petition under Article 226 of the Constitution is directed against an order of the Election Tribunal at Etah by which the tribunal disallowed two applications for amendment of the election petition which had been presented by the petitioner and which was entrusted to the tribunal at Etah under Section 86 (1) of the Representation of the People Act, 1951, as amended upto-date. The facts given in the various affidavits do not disclose the date on which the copy of the petition was published in the official gazette under Section 86 (1) of the Representation of the People Act, 1951. Learned Counsel for the opposite parties has, however, produced the copy of the gazette which shows that the publication took place in the gazette dated 15-5-1957. On 10-6-1957 the respondents appeared and filed their written statements. On 16-7-1957, an application for amendment of the election petition was presented by the present petitioner before the Tribunal. The date, on which that application was disposed of, has not been mentioned in the affidavits, but it appears from one of the amendment applications in question that that first application for amendment was disposed of by the order dated 24-7-1957. Thereafter, on 30-7-1957, the petitioner presented two more applications for amendment of the election petition. There applications were disposed of by the election tribunal by the order now impugned. In the order impugned the tribunal has held that it was, no doubt, permissible under the Code of Civil Procedure to present any number of applications for amendment of the petition and that the tribunal had the power to allow the amendment at any time. The tribunal then proceeded to notice the fact that a limitation was placed by the statute during which an election petition could remain pending and proceeded to hold that the petition had to be determined within six months. It was further held that if the application for amendment had to be allowed in accordance with the provisions of the Code of Civil Procedure, it would not be possible to determine the dispute between the parties within the prescribed time and, consequently the tribunal disallowed the applications.

(2.) We have heard learned Counsel for the parties on the point raised on behalf of the petitioner that this order passed by the tribunal is arbitrary and capricious and is not an exercise of judicial discretion vested in the tribunal to allow or disallow an amendment application so that the order suffers from a manifest error apparent on the face of the record. The tribunal itself recognised the fact that the amendment applications were competent under the Code of Civil Procedure and that the tribunal had the power to allow those applications. Presumably, the court was referring to the provisions of Order VI, Rule 17, of the Code of Civil Procedure. That provision of law has already been held by this Court to be applicable to election petitions being tried by an election tribunal under the Representation of the People Act, 1951. Further, an amendment application could be moved under Sub-section (5) of Section 90 of the Representation of the People Act, 1951, though the considerations for deciding whether an amendment application should or should not be allowed are not indicated in that provision of law. Neither, Order VI, Rule 17, of the Code of Civil Procedure nor Sub-section (5) of Section 90 of the Representation of the People Act, 1951, makes any reference to the provision made in Sub-section (6) of Section 90 of the Representation of the People Act that an endeavour should be made to conclude the trial within six months from the date of the publication of the copy of the petition in the official gazette under Sub-section (1) of Section 86 of the Representation of the People Act. Thus, neither of the provisions of law, under which an amendment application can be made and dealt with by the court, lays down that the directive in Sub-section (6) of Section 90 of the Representation of the People Act is to be one of the considerations for deciding the application for amendment of an election petition. The considerations, on which such applications for amendment have to be decided by a tribunal, are only those which come within the purview of Sub-section (5) of Section 90 of the Representation of the People Act or within the scope of the principles which govern the exercise of the discretionary powers of the court under Order VI, Rule 17, of the Code of Civil Procedure. In the present case, it is clear that the tribunal has disallowed the amendment applications on a ground which was not to be taken into consideration at all either under Sub-section (5) of Section 90 of the Representation of the People Act or under Order VI, Rule 17, of the Code of Civil Procedure. It was urged by learned Counsel for the opposite parties that the delay in moving an application for amendment can be one of the grounds for disallowing an amendment application. It is not necessary for us to express any opinion on this point. Any delay, which can be taken into account, would only be such as would be covered by the principles laid down in or applicable to the two provisions of law mentioned above which apply to the amendment of an election petition. The result of the delay envisaged by the election tribunal in the present case that the petition would not be decided within the six months' period mentioned in Sub-section (6) of Section 90 of the Representation of the People Act, 1951, is, in no case, a relevant consideration. Consequently, it is clear that the election tribunal has dismissed the amendment applications on a ground which cannot be considered to be a judicial exercise of the discretionary powers vested in the tribunal, so that its order is liable to be vacated.

(3.) We, consequently, allow this petition and quash the order of the election tribunal dated 30-71957, to the extent that that order disallows the two amendment applications dated 30-7-1957. The case will now go back to the tribunal for deciding these applications in accordance with law. The petitioner will be entitled to his costs from opposite party No. 2 who is the only opposite-party who has appeared to oppose this petition in this Court.