MUBARAK MAZDOOR Vs. K K BANERJI

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution in which the petitioner challenges the validity of an order made by an Election Tribunal sitting at Allahabad dated 27-7-1957.

(2.) At the last general election the petitioner and the second respondent, together with certain other persons, were candidates for election to the Lok Sabha from the Allahabad Parliamentary Constituency. On 13-3-1957, the second respondent was declared duly elected, and on 27-4-1957 the petitioner filed an election petition challenging the validity of the election of the second respondent on a number of grounds. The petition was presented to the Election Commission which under Section 86 of the Representation of the People Act (hereinafter called the Act) referred the petition to an Election Tribunal at Allahabad and informed the parties that the petition would be heard on 22-7-1957. On that date the parties appeared before the Tribunal, which is the first respondent, and a preliminary objection to the petition was taken, on behalf of the second respondent. That objection was that paragraphs 15, 16, 17, 18 and 19 of the petition contained only allegations of a general nature of corrupt practices and did not contain those particulars which the petitioner was required, to give under Section 83 of the Act, and that paragraph 27 did not disclose any ground upon which the election could be avoided and the second respondent prayed that these paragraphs and the relevant schedules be struck out under Order 6, Rule 16, of the Code of Civil Procedure. The Tribunal heard the parties and by the order the validity of which is the subject of the present petition acceded to the prayer so far as paragraphs 15, 16, 17, 18 and 27 were concerned and directed that these paragraphs be struck out. The petitioner thereupon filed the petition which is now before us in which the principal relief sought is the issue of writ of certiorari quashing the order of the Tribunal dated 27-7-1957. Learned counsel for the petitioner contends that the petitioner is entitled to the relief which he now seeks on two grounds : first, that the Tribunal exceeded its jurisdiction in ordering that the offending paragraphs be struck out and, secondly, that if the Tribunal acted within its jurisdiction, it committed an error of law, apparent on the face of the record in striking out the offending paragraphs. The submission on the first ground is that the Tribunal's order could be made only under Order 6, Rule 16 of the Code of Civil Procedure or by virtue of such inherent powers as the Tribunal might possess. Order 6, Rule 16, did not apply at the stage of the proceedings then before the Tribunal, and the latter being a creature of statute had only such powers as were conferred on it by the Act. It accordingly had no inherent powers. It is however unnecessary for us to consider the second branch of this argument as the first branch is not in our opinion sustainable. Section 90(1) of the Act provides that, subject to the provisions of the Act & of any rules made thereunder, an election petition shall be tried by the Election Tribunal as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits, and the argument addressed to us is that (save in the special cases for which provision is expressly made in Section 90(4) and Section 97) the trial commences only at that point of time at which the Tribunal proceeds to frame issues. The only provisions of the Code of which use could be made by the Tribunal were accordingly Order 14 and the succeeding Orders, Orders 1 to 13 being excluded. In Harish Chandra Bajpai v. Triloki Singh, 12 El LR 461: ((S) AIR 1957 SC 444) (A), the Supreme Court on a consideration of the Representation of the People Act, 1951, prior to its amendment by the Representation of the People (Amendment) Act, 1956, (Act 26 of 1956) held that 'trial means the entire proceedings before the Tribunal from the time when the petition is referred to it until the pronouncement of the award and in Bhikaji Keshao v. Brijlal Nandlal, 10 El LR 357: ((S) AIR 1955 SC 610) (B), the Supreme Court itself exercised the power which it was or opinion the Election Tribunal might itself have exercised of striking out certain paragraphs of an election petition under Order 6, Rule 16. Mr. Gopi Nath Kunzru for the petitioner Seeks however to distinguish these cases on the ground that the Supreme Court was considering only the unamended Act, & he argues that the changes effected by the Amending Act so directly affected the question that the earlier decisions of the Supreme Court no longer conclude the matter.

(3.) Chapter III of Part VI of the unamended Act, which consisted of Sections 86 to 107, is entitled "Trial of of election petitions", and it was upon a consideration of this chapter as a whole that the Supreme Court in Harish Chandra Bajpai's case (A) was of opinion (a) that, subject to the provisions or the Act and the rules made thereunder, the procedure of the Code of Civil Procedure applicable to the trial of suits applied to the entire proceedings before the Tribunal and