- (1.) THIS petition is directed against an order of the Sub-Divisional Officer dated 12th July, 1973, allowing amendments in the election petition filed against the peti tioner.
(2.) CHARAN Singh petitioner and Gandharwa Sain, respondent No. 2, contested election for the office of Pradhan of Gaon Sabha. The petitioner was declared elected on 2nd June, 1972. Respondent No. 2 filed an application under Section 12-C of the U. P. Panchayat Raj Act questioning the petitioner's election on a number of grounds. The Sub-Divisional Officer, Sikandrabad, be fore whom the election petition was pending trial, permitted inspection of ballot papers by respondent No. 2. After inspection, res pondent No. 2 made an application for amendment of the election petition. By the proposed amendment he sought to challenge the validity of counting of ballot papers on the ground that a number of ballot papers which should have been cancelled had been wrongly counted in petitioner's favour which materially affected the result of the election. The petitioner, who was the returned candi date and respondent to the election petition, contested the amendment application. The Sub-Divisional Officer by his order dated 12th July, 1973, allowed the amendment applica tion on payment of Rs. 10.00 as costs. The petitioner thereupon approached this Court under Article 226 of the Constitution chal lenging the validity of the said order of the Sub-Divisional Officer. Section 12-C of the U. P. Pan chayat Raj Act lays down that an application questioning the election of a pradhan shall be filed in the manner prescribed on the ground enumerated therein. Sub-section (4) of S. 12-C further lays down, that the autho rity to whom the application is made, shall follow such procedure for the trial, of the petition which may be prescribed. Rules 24 and 25 framed under the Act lay down the manner and procedure for trial of election petition. Rule 24 requires that an application under sub-section (1) of S. J2-C should be presented before the Sub-Divisor ail Officer within 90 days. The election petition is fur ther required to contain the grounds on which the election of the returned candidate is ques tioned and it must contain a summary of circumstances to justify the questioning of election on those grounds. Rule 25 presc ribes procedure required to be followed at the hearing of the election petition. According to that rule, every election petition is re quired to be tried by the Sub- Divisional Of ficer as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits subject to the provisions of the Act and the Rules framed there under. The scheme of the Act and the Rules is similar to that laid down in the Representation of the People Act relating to the trial of election petitions. In Harish Chandra v. Triloki Singh, (AIR 1957 SC 444), the Supreme Court considered the provisions of Sections 90, 92 and 83 of the Representa tion of the People Act and held that an elec tion tribunal hearing an election petition has jurisdiction to amend the election petition and for that purpose it could exercise powers under Order 6, Rule 17 of the Code of Civil Procedure but the power of Amendment was subject to the provisions of the Act and the Rules framed there under. Their Lordships of the Supreme Court observed as under:- "The Tribunal has power under Order 6, Rule 17 to order amendment of a petition but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in sub stance a new petition, if a fresh petition on those allegations will then be barred." The law laid down by the Supreme Court in Harish Chandra Bajpai's case is fully ap plicable to the trial of an election petition under the U. P. Panchayat Raj Act.
(3.) IN the instant case, a perusal of the election petition, a copy of which has been filed as Annexure 1 to the petition, shows that respondent No. 2 did not ques tion the petitioner's election on the ground that there was gross non-compliance with the provisions of the Act and the Rules framed there under in counting ballot papers or in determining the result of the election. Respon dent No. 2, therefore, did not challenge the petitioner's election on the ground of any illegality or irregularity committed at the counting of ballot papers. But the amend ment permitted by the Sub-Divisional Officer made out a new ground of challenge that a number of votes which were liable to be re jected had been wrongly counted in peti tioner's favour. The amendment clearly made out a new ground to challenge the petitioner's election which was neither pleaded nor raised in the election petition. The amendment ap plication was filed in 1973 after the expiry of the limitation of 90 days. An election petition on the grounds raised in the amend ment application was not maintainable after the expiry of 90 cays. The Sub-Divisional Officer had no power or jurisdiction to allow amendment of the election petition challeng ing the petitioner's election on a groans not raised within time. I, therefore, hold lost the Sub-Divisional Officer acted without juris diction in permitting amendment of the elec tion petition.;