Subba Rao, J. - (1.) This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad setting aside that of the Election Tribunal, Kanpur, dismissing the petition filed by the respondent for setting aside the election of the appellant as a member of the Parliament from the Kanpur constituency.
(2.) In February-March 1957 elections were held to fill up a parliamentary seat from the single-member constituency No. 331, Kanpur. Sri S. M. Banerji, Sri Suraj Prasad and four others were candidates for the said election. The said persons filed their nomination papers between 19th and 29th January, 1957. The appellant was employed as Supervisor 'A' Grade at the Government Ammunition Factory, Kirkee, and was dismissed from service on January 24, 1956, for a reason other than corruption or disloyalty to the State; and he was duly qualified to stand for the election. He also filed his nomination paper within the prescribed time and ex facie it complied with all the provisions of the Representation of the People Act, 1951 (43 of 1951), as amended by Act XXVII of 1956, (hereinafter called the Act), and did not disclose any disqualifications. The Returning Officer held scrutiny of the nomination papers on February 1, 1957. As no objection was taken to the appellant's nomination, the returning Officer accepted it under S. 36 of the Act without making any enquiry. The polling took place on March 6, 1957, and the result was declared on March 13, 1957. The appellant having secured the largest number of votes, was declared duly elected. On April 24, 1957, the respondent, who is one of the voters in the said constituency, presented a petition before the Election Commission, New Delhi, praying that the election of the appellant be declared void. In the petition he alleged ten grounds to sustain his petition. The Election Commission constituted an Election Tribunal in the manner prescribed by the Act and referred the petition to the said Tribunal for trial. On July, 17, 1957, i.e., after the prescribed period of limitation of 45 days had expired, the respondent filed an application for amendment of the election petition. The amendments sought to be made in the election petition were as follows: "(a) In paragraph No. 5 clause (i), figure '9' between the words 'under section' and 'clause' is a typing mistake for figure '33'. In place of figure (9) figure '33' be substituted. (b) In paragraph No. 5 (d) at the end of the paragraph, the following sentence be added: "The nomination paper of the respondent presented before the Returning Officer was not accompanied by a certificate of the Election Commission to the effect that he has not been dismissed for disloyalty or corruption. The improper acceptance of the nomination paper being that of the returned candidate, there is a presumption that the result of the election has been materially affected." On August 3, 1957, the respondent filed another application for amendment seeking the second amendment in an abbreviated form. The proposed amendment was as follows: "b. In paragraph No. 5 (d) at the end of paragraph, the following sentence be added in the petition: "and such a certificate did not accompany the nomination paper of the respondent and the acceptance of his nomination paper materially affected the result of the election." By an order dated August 12, 1957, the Election Tribunal dismissed the petition on the grounds that the amendments sought to introduce a new ground after the prescribed period of limitation and therefore it had no power to allow the same. After dismissing the application, the Tribunal took up the main petition for disposal and, after recording the findings on the issues raised, dismissed the same with costs. Against the said judgment the respondent preferred an appeal under S. 116A of the Act to the High Court . Before the High Court the learned Counsel for the respondent withdrew the prayer for amendment of sub-paragraph (i) of paragraph (5) of the election petition and confined his relief only to the amendment asked for in paragraph 5(d) of the election petition i.e., he sought to bring in the amendment under the head "improper acceptance of the nomination paper". The High Court found, on the construction of the pleadings, that the allegations found in the original petition were sufficient to bring in the case under S. 100 (1) (d) (i) of the Act i.e., under the head "improper acceptance", and, therefore, the amendment asked for was only a clarification but not an introduction of a new ground:in the result, the High Court set aside the order of the Tribunal and directed it to decide the issues that arose out of the averment made in the amended paragraph 5(d) of the election petition. The present appeal was filed by special leave against the said judgment of the High Court.
(3.) The contentions of the learned Counsel, Mr. N. C. Chatterjee, for the appellant may be briefly put thus:The ground for relief in the election petition was based on improper acceptance of the appellant's nomination within the meaning of S. 100 (1)(d)(i) of the Act, and no alternative ground under sub-cl. (iv) of cl. (d) of S. 100 (1) was alleged. There was proper acceptance of the nomination paper and, therefore, the High Court or the Tribunal had no power to introduce by amendment a new ground, namely, that the result of the election had been materially affected by the non-compliance with the provisions of the Act, and particularly when the ground based upon S. 33 of the Act was given up by the respondent.;