MAHADEO PRASAD Vs. DEVA SHARAN SINHA

JUDGEMENT

(1.) BY this application under Articles 226 and 227, Constitution of India the petitioner seeks to have a writ in the nature of 'certiorari' issued for quashing the order of the Election Tribunal, whereby an amendment to the election petition filed by opposite party No. 1 was allowed.

(2.) THE petitioner and opposite party Nos. 1 to 8 were candidates at the by-election of the Bihar State Assembly from the Fatwa Constituency, Opposite party Nos. 3 to 8 withdrew their candidature, and the petitioner and opposite party Nos. 1 and 2 contested the said election. THE polling station with which we are concerned in the present proceeding was at Saidanpur, where there were two polling booths, namely, booth No. 1 and booth No. 2. THE polling was held in the entire Fatwa Constituency including the two booths of Saidanpur on 7-6-1953. It is alleged that the ballot boxes of polling booth No. 2 of Saidanpur polling station were attempted to be tampered with by one Kamleshwar Prasad Yadava, polling agent of the petitioner, Sheo Mahadeo Prasad. Since the attempt to tamper with the ballot boxes failed as the alleged culprit was caught red-handed, the polling continued with the consent of the agents of all that candidates concerned. Some of the ballot boxes of polling booth No. 1 were found to have been tampered with, and therefore, there was repolling in that booth on 11-6-1953. THE counting having been done on 12-6-1953, at Barh, the result was announced on the same day by the returning officer of the Fatwa Constituency, and the petitioner was declared to have been duly elected. THE election of the petitioner was declared by notification published in the India Gazette, Extra-ordinary, dated 16-6-1953. THEreafter, opposite party No. 1, Deva Sharan Singh, filed an election petition under Section 81, Representation of the People Act of 1951 (hereinafter to be called the Act) to the Election Commission on 8-8-1953, on the allegations that the nomination papers of opposite party No. 2 had been wrongly accepted by the returning officer and that some corrupt practices had been committed by the men of the petitioner at the time of the election. This election petition was sent to the Election Tribunal, Patna, for trial and was published in the Bihar Gazette by the Chairman of the said Tribunal. THE petitioner filed written statement on 10-11-1953, and issue was also settled on the same day. In the meantime, a criminal case was started against the aforesaid Kamleshwari Prasad Yadava, polling agent of the petitioner, for his attempt to tamper with the ballot boxes in Saidnapur booth No, 2 and that case was proceeding before the Munsif-Magistrate at Barh. During the trial of that case it transpired that the ballot boxes of booth No. 2 were not at all counted, but the tampered ballot boxes as well as ballot boxes containing repolled ballot papers of booth No. 1 of Saidanpur polling station were counted. It is alleged on behalf of opposite party No. 1 that he got this information on 18-12-1953. THEreafter, he filed on 21-12-1953, an application before the Election Tribunal for amendment of the election petition by adding an additional ground that the ballot boxes of polling booth No. 2 of Saidanpur polling station were not at all included in the counting and they were not counted and Instead the ballot papers polled on 7-6-1953, at polling booth No. 1 at Saidanpur polling station, the boxes of which had been tampered with, were included in the counting and the election was materially and prejudicially affected. By the amendment opposite party No. 1 also sought to add a new prayer for declaration that the election of the Fatwa Constituency was vitiated, and the election of the returned candidate is void by reason of the fact that the ballot papers polled at polling booth No. 2 of Saidanpur polling station were not included in counting and the ballot papers of the polling booth No. 1 of Saidanpur polling station polled on 7-6-1953, were included in the counting which should have been excluded. THE petitioner objected to the amendment being made, but the Election Tribunal relying in the provisions of Section 90(2) of the Act read with Order 6, Rule 17, Civil P. C., allowed the amendment. THE petitioner has, therefore, come to this Court for getting that order quashed.

(3.) SECTION 64 of the Act read with Rule 46 made thereunder provides for the supervision of tile counting of votes by candidates' election agents and counting agents who are entitled to inspect the ballot boxes and their seals for satisfying themselves that they are in order. SECTION 81 deals with the presentation of an election petition on such ground or grounds as are specified in SECTIONs 100 and 101 of the Act and specifically lays down that such an application has to be presented within such time as may be prescribed. Rule 119 prescribes time within which an election petition has to be presented. According to this rule, in the case where such petition is against a returned candidate, it has to be presented at any time after the date of publication of the name of such candidate under SECTION 67, but not later than fourteen days from the date of publication of the notice in the Official Gazette under Rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer; and in the case where there are more returned candidates than one at an election and the election petition calls in question the election as a whole, it has to be presented at any time after the date of publication of the names of all the returned candidates under SECTION 67 but not later than sixty days from the expiration of the time specified in Sub-rule (1) of Rule 112 for the lodging of the returns of election expenses of those candidates with the Returning officer. Subsections (1) and (2) of SECTION 83 make provisions for the contents of an election petition and for the particulars that may support the allegations. SECTION 117 requires a deposit of security to be made by the petitioner in an election petition. SECTION 85 runs as follows: "If the provisions of section 81, section 83 or section 117 are not complied with, the Election Commission shall dismiss the petition: Provided that, if a person making the petition satisfies the Election Commission that sufficient cause existed for his failure to present the petition within the period prescribed therefor, the Election Commission may, in its discretion, condone such failure". If the petition is not dismissed under SECTION 85, the Election Commission is to appoint an Election Tribunal for the trial of the petition under SECTION 86. SECTION 90(4) lays down that notwithstanding anything contained in SECTION 85, the Tribunal may dismiss an election petition which does not comply with the provisions of SECTION 81, SECTION 83 or SECTION 117. Sub-section (1) of SECTION 90, requires the Tribunal to cause a copy of the petition together with a copy of the list of particulars referred to in Sub-section (2) of 83 to be served on each respondent to be published in the official Gazette, and provides that at any time within fourteen days after such publication, any other candidate may be entitled to be joined as a respondent if he gives such security for costs as the Tribunal may direct. A perusal of the various sections and the rules referred to above gives a clear indication that the scheme of the Act is that sufficient opportunity should be given to the candidates to know what they may have to allege in their election petitions if they choose to file such petitions and that before the prescribed period it should be ascertained once for all what the petition is and what charges are to be met by the respondents. This rules out the possibility of permitting an amendment to be made in the election petition by raising new charges after the prescribed period. It seems to me that if the Election Tribunal is called upon to deal with any charge not laid before the authority within the prescribed period, it would be acting beyond its jurisdiction. In my opinion, therefore, when once an election petition is filed, there should be no amendment unless it is specifically provided in the Act.