- (1.) THIS is an appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as the Act), by one Sunder Lal Chechani whose petition challenging the validity of the election of Sampat Lal respondent to the mavli constituency of the Rajasthan Legislative Assembly at the general election of 1962 was dismissed by the election Tribunal, Udaipur, on August 7, 1962.
(2.) THE petition, as originally filed on April 11, 1962, was based, on two grounds contained in paragraphs 4 and 5 of the petition which run as follows,-- "4. That the order of the Returning Officer rejecting the nomination paper of Shri Kesar Singh is illegal on the ground that the said Kesar singh was never dismissed for corruption or disloyalty to the State and that no disqualification under Section 7 (f) of the Representation of the people Act, 1951 could be attached to him; that the said Shri Kesar singh was qualified to stand as a candidate in the election and his nomination had been improperly and illegally rejected. 5. That the second ground of rejection of nomination paper of Shri Kesar singh as given by the Returning Officer was that his number of the electoral roll was not correctly given in the nomination paper. This is illegal and improper as the identity of the candidate was never in doubt and that in the nomination paper his name was shown at No. 11 part 108 of the electoral roll of the Constituency which is correct. The name of Shri Kesar Singh does occur at No. 11 of Part 108 of the electoral roll of the Mavli Assembly constituency. " The respondent filed his written statement on July, 2, 1962, in which, in reply to paragraph 4, it was inter alia, pleaded that the Tribunal had no jurisdiction to go into the question as to whether the dismissal of Kesar Singh was or was not ordered on the ground of corruption, or disloyalty to the State, in view of the provisions of Section 33 (3 ). In reply to paragraph 5, it was stated that it was wrong to say that nomination paper of Kesar Singb was rejected by the Returning officer because his electoral roll number was not correctly given in it but that the nomination paper was rejected because the name of the constituency in which he was enrolled as an elector was not mentioned in the "form". The following issues were framed by the Tribunal on the date on which the written statement was filed, namely, on July 2, 1962, and July 17, 1962 was fixed for recording the evidence of the petitioner,--"1. Whether Shri Keshar Singh was not dismissed on account of corruption or disloyalty? 2. Whether it was not necessary to mention in the nomination paper the name of the Constituency to which the candidate belonged? 3. (a) Even if Shri Kesar Singh was not dismissed on account of corruption or disloyalty, still was it necessary for Keshar Singh to have filed along with nomination paper a certificate to the effect that he had not been dismissed for corruption of disloyalty to the State? (b) If it was so necessary, what is the effect? 4. Whether it was necessary for the proposer to have mentioned in the nomination paper the name of the Constituency to which he belonged? 5. Whether the defect mentioned in issue No. 4 can be ultilised to uphold the order of the Returning Officer rejecting the nomination paper, although the Returning Officer has not based his order on the said defect? 6. What is the relief?. " on July 17, the petitioner moved an application for the amendment of the petition. The application was based on two grounds, firstly, that the amendments sought were only amplifications of the grounds already taken and, secondly, that they were by way of a correction of techincal mistakes which has crept in the petition on account of a wrong reading of the order of the Returning Officer rejecting the nomination paper of Kesar Singh. The following amendments were sought,-- "1. In Para 4 of the election petition after 'is illegal on the ground that the said Kesar Singh' and before 'was never dismissed' insert the following :--'was not dismissed but was only removed and as such Section 33 (3) of the Representation of People Act, 1951 does not apply and further if it be held that he 2. In Para 5 of the election petition the following clause should be removed : 'his number of the electoral roll was not correctly' and instead the following should be substituted-'the name of the constituency of which the electoral roll number and part formed part was not. ' 3. At the end of this para the following be inserted :-- "the electoral roll of Mavli Constituency was with the Returning officer and he should have checked the number and part with the least trouble and delay and got corrected the nomination paper, Shri Kesar Singh was never pointed out the omission of the name of the constituency in the nomination paper at the time of the presentation. At scrutiny this point was not raised either by the candidate or by the Returning Officer and the attention of Kesar Singh was not drawn to this otherwise he could have requested the Returning Officer to check it with the electoral roll of the Mavli constituency which was with him. " The application was opposed on behalf of the respondent. The Tribunal recorded the evidence of the petitioner on the same day without passing an order on the amendment application. The respondent did not lead any evidence in rebuttal. After hearing the arguments, the Tribunal delivered its judgment rejecting the election petition. By the same judgment, the amendment application was also rejected with the following observations,--"before finally parting with the case I should like to mention that during the course of the trial. an application for amendment was moved by the petitioner. The purpose behind the said application was to plead specifically that Shri Kesar Singh was not dismissed from service but was merely removed from service. Another point which the petitioner desired to bring in his petition was that the non-mentioning of the constituency in columns 2 and 5 of the nomination paper was not a defect of a substantial character. Since I have discussed both these points and found against the petitioner, I do not think, the amendment if allowed, is going to benefit the case of the petitioner in any way. I, therefore, reject the application for amendment. " the attention of the Tribunal was not drawn to the decision of their Lordships of the Supreme Court in Harish Chandra v. Triloki Singh, (S) AIR 1957 SC 444 (Paras 21 and 23 ). It was held in that case that in view of Section 90 (2) of the Act, the provisions of Order 6, Rule 17, Civil Procedure Code, are only applicable subject to the provisions of the Act and the Rules and there being no power conferred on the tribunal to extend the period of limitation prescribed, an order of amendment permitting a new ground to be raised beyond the time limited for filing an election petition must contravene those provisions and is in consequence beyond the ambit of the authority of Section 90 (2) of the Act. The Tribunal is, however, not precluded from allowing the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition for which specific provision has been made under Section 90 Sub-clause (5 ). The present petition was not based on the commission of any corrupt practice. No amendment of it was permissible beyond the period of limitation prescribed under Section 81 (1) of the Act so as to incorporate a new ground even to "rectify a position taken in the petition" on account of the so called misreading of the order of the Returning Officer. We accordingly hold that no amendment of the petition was permissible in pursuance of the petitioner's application dated July 17, 1962, permitting a new ground to be raised. We shall, accordingly, confine ourselves to the grounds taken in the petition as originally filed.
(3.) KESAR Singh was dismissed from service by an order of the Superintendent of police, Udaipur dated May 29, 1961 (Ex. 3) and five years had not elapsed since then. The disqualification prescribed under Section 7 (f) therefore continued to subsist. In paragraph 4 of the petition it was alleged that the dismissal of Kesar singh was not based on the finding of corruption, or disloyalty to the State and therefore Section 7 (f) was not applicable. Further, it was contended on his behalf before us that the provision contained in Section 33 (3) is only applicable to corruption, or disloyalty to the State. We are unable to accept this contention. In our opinion such a contention is completely ruled out by Section 33 (3) which runs as follows,- " 33. (3) Where the candidate is a person who, having held any office referred to in Clause (f) of Section 7, has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State. " Under the above provision, an exclusive jurisdiction has been conferred on the election Commission to determine whether the dismissal was for corruption, or disloyalty to State. So in every case where a government servant, who has been dismissed from service, wishes to contest an election to the Parliament or the assembly, it is incumbent on him to obtain a certificate from the Election commission to the effect that he has not been dismissed for corruption, or disloyalty to the State. Under Section 9 (3) the finding of the Election Commission on the point is conclusive and cannot be challenged by an election petition. In this connection we may only refer to the decision of their Lordships of the Supreme court in S. M. Banerji v. Sri Krishna Agarwal, 22 Ele LR 64 at p. 71 : (AIR 1960 SC 368 at p. 371 ).;