# November zo. I959 S.M. Banerji v. Sri f(ri!ihna Agarwal Subba Rao]

- **Citation:** [1960] 2 S.C.R. 289
- **Court:** Supreme Court of India
- **Decided:** 1958-12-10
- **Case number:** Civil Appeal No. 301 of 1959
- **Bench:** B. P. Sinha, P. B. GAJENDRAGADKAR K. SuBBA RAo, K. C. Das Gupta, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/november-zo-i959-s-m-banerji-v-sri-f-ri-ihna-agarwal-subba-rao-1860
- **Pages:** 23

## Headnote

Election Petition-Amendment of-Petition alleging improper
acceptance of nomination-Amendment introducing ground of noncompliance with provisions-Whether can be allowed-Discretion of
Election Tribunal-Interference by High Court in appeal-Representation of the People Act, I95I (43 of I95I), ss. 33(3) and IOO.
The appellant held an office under the Government and was
dismissed from service on January 24; 1956, for a reason other
than corruption or disloyalty to the State. He filed his nomination paper for election to Parliament which did not disclose any
disqualifications. No objection was taken to the nomination and
it was accepted without making any enquiry. After the poll
the appellant was declared duly elected. The respondent filed
an election petition challenging the election of the appellant on
the ground, inter alia, that the nomination of the appellant had
been improperly accepted as he was dismissed from Government
service and he had failed to obtain a certificate from the Election
Commission that he had not been dismissed for corruption or
disloyalty to the State. After limitation for filing the petition
had expired, the respondent applied to the Election Tribunal for
amendment of the petition seeking to add to this ground the
statement that the nomination paper was not accompanied by
the prescribed certificate. The Tribunal disallowed the amendment on the ground that the amendment sought to introduce a
\)
1959
November zo.
I959
S.M. Banerji
v.
Sri f(ri!ihna
Agarwal
Subba Rao].
290
SUPREME COURT REPORTS [1960 (2)]
new ground after the period of limitation and then dismissed the
election petition holding that the appellant was qualified to stand
for the election and his nomination was not improperly accepted.
On appeal, the High Court held that the amendment should have
been allowed as it merely asked for a clarification and not the
introduction of a ne\v ground and consequently it set aside the
order of the Tribunal and directed a retrial of the issue invoh ed.
The appellant obtained special leave and appealed.
field, that the amendment could not be allowed as it sought
to introduce a new ground in the petition after the period of
limitation. The ground taken in the petition was that there was
an improper acceptance of the nomination covered bys. roo(1)(d)(i)
of the Representation of the People Act, l95I. But there was
no improper acceptance of the nomination for the nomination
paper ex facie did not disclose any defect or disqualification.
There being ·no subsisting prayer seeking to raise the ground
under S. 100(1 )(d)(iv) for non-compliance with the provisions of
s. 33(3) of the Act, the amendment was foreign to the scope of
the enquiry under the ground covered bys. roo(1)(d)(i).
Durga Shankar Mehta v. Thakur Raghuraj Sin.gh, [1955)
l S.C.R. 267 and Harish Chandra Bajpai v. Triloki Singh [1957)
S.C.R. 370, followed.
'
Veluswami v. Raja Nainar, A.LR. 1959 S.C. 422, referred to.
There was no jurisdiction in the High Court to interfere with
the discretion of the Election Tribunal refusing to allow the
amendment after the entire petition had been disposed of. It is
undesirable for an appellate Court to interfere with the order of
a subordinate Tribunal made in the exercise of its discretion
without exceeding the limits of its powers, unless it has acted
perversely or has taken a view which is clearly wrong.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 301 of 1959.
Appeal by special leave from the judgment and
order dated December 10, 1958, of the Allahabad High
Court, in First Appeal No. 382 of 1958, arising out of
the judgment and order dated August 6, 1958, of1;he
Election Tribunal, Kanpur, iμ Election Petition No.
284of1957.
N. C. Chatterjee, R. /(. Garg, S. C. Agarwal, D. P.
Singh, V. A. Sayid Muhammad,, Janardan Sharma and
M. K. Ramamurthi, for the appellant.
A. V. Viswanatha Sastri and K. P. Gupta, for the
respondent.
-
S.C.R.
SUPREME COURT REPORTS
291
1959. November 20.
The Judgment of the Court
was delivered b

## Text

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-
S.C.R.
SUPREME COURT REPORTS
289
measurements of the house for effecting partition of
i959
the property, when the plaintiff raised objection, and
Rukhmabai
thereafter in 1940, filed the suit. From the aforesaid
v.
facts, it is manifest that the plaintiff's right to the Lala Laxminarayan
property was not effectively threatened by the appeland Others
lant till the Commissioner came to divide the property.
It was only then there was an effectual threat to his
Subba Rao f . .
right to the suit property and the suit was filed within
six years thereafter. We, therefore, hold that the
suit was within time.
In. the result, the appeal fails and is dismissed with
costs.
Appeal dismissed.
S. M. BANERJI
v.
'SRI KRISHNA AGARWAL
( B. P. SINHA, C.J., P. B. GAJENDRAGADKAR
K. SuBBA RAo, K. C. DAS GUPTA and J.C. SHAH, JJ.)
Election Petition-Amendment of-Petition alleging improper
acceptance of nomination-Amendment introducing ground of noncompliance with provisions-Whether can be allowed-Discretion of
Election Tribunal-Interference by High Court in appeal-Representation of the People Act, I95I (43 of I95I), ss. 33(3) and IOO.
The appellant held an office under the Government and was
dismissed from service on January 24; 1956, for a reason other
than corruption or disloyalty to the State. He filed his nomination paper for election to Parliament which did not disclose any
disqualifications. No objection was taken to the nomination and
it was accepted without making any enquiry. After the poll
the appellant was declared duly elected. The respondent filed
an election petition challenging the election of the appellant on
the ground, inter alia, that the nomination of the appellant had
been improperly accepted as he was dismissed from Government
service and he had failed to obtain a certificate from the Election
Commission that he had not been dismissed for corruption or
disloyalty to the State. After limitation for filing the petition
had expired, the respondent applied to the Election Tribunal for
amendment of the petition seeking to add to this ground the
statement that the nomination paper was not accompanied by
the prescribed certificate. The Tribunal disallowed the amendment on the ground that the amendment sought to introduce a
\)
1959
November zo.
I959
S.M. Banerji
v.
Sri f(ri!ihna
Agarwal
Subba Rao].
290
SUPREME COURT REPORTS [1960 (2)]
new ground after the period of limitation and then dismissed the
election petition holding that the appellant was qualified to stand
for the election and his nomination was not improperly accepted.
On appeal, the High Court held that the amendment should have
been allowed as it merely asked for a clarification and not the
introduction of a ne\v ground and consequently it set aside the
order of the Tribunal and directed a retrial of the issue invoh ed.
The appellant obtained special leave and appealed.
field, that the amendment could not be allowed as it sought
to introduce a new ground in the petition after the period of
limitation. The ground taken in the petition was that there was
an improper acceptance of the nomination covered bys. roo(1)(d)(i)
of the Representation of the People Act, l95I. But there was
no improper acceptance of the nomination for the nomination
paper ex facie did not disclose any defect or disqualification.
There being ·no subsisting prayer seeking to raise the ground
under S. 100(1 )(d)(iv) for non-compliance with the provisions of
s. 33(3) of the Act, the amendment was foreign to the scope of
the enquiry under the ground covered bys. roo(1)(d)(i).
Durga Shankar Mehta v. Thakur Raghuraj Sin.gh, [1955)
l S.C.R. 267 and Harish Chandra Bajpai v. Triloki Singh [1957)
S.C.R. 370, followed.
'
Veluswami v. Raja Nainar, A.LR. 1959 S.C. 422, referred to.
There was no jurisdiction in the High Court to interfere with
the discretion of the Election Tribunal refusing to allow the
amendment after the entire petition had been disposed of. It is
undesirable for an appellate Court to interfere with the order of
a subordinate Tribunal made in the exercise of its discretion
without exceeding the limits of its powers, unless it has acted
perversely or has taken a view which is clearly wrong.
CIVIL
APPELLATE
JURISDICTION:
Civil Appeal
No. 301 of 1959.
Appeal by special leave from the judgment and
order dated December 10, 1958, of the Allahabad High
Court, in First Appeal No. 382 of 1958, arising out of
the judgment and order dated August 6, 1958, of1;he
Election Tribunal, Kanpur, iμ Election Petition No.
284of1957.
N. C. Chatterjee, R. /(. Garg, S. C. Agarwal, D. P.
Singh, V. A. Sayid Muhammad,, Janardan Sharma and
M. K. Ramamurthi, for the appellant.
A. V. Viswanatha Sastri and K. P. Gupta, for the
respondent.
-
S.C.R.
SUPREME COURT REPORTS
291
1959. November 20.
The Judgment of the Court
was delivered by
SuBBA RAo J.-This. appeal by special leave is
directed against the j~dgment 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.
/
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 thari corruption or disloyalty to the state;
and he was duly qualified to stand for the election.
He also filed his nomination paper within the pre_scribed time and ex Jacie 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 a.ccepted 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 member 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 th~ manner prescr,ibed by the
Act and referred the petition to the said Tribunal for
trial. On July 17, 1957, i.e., after the prescribed period
r959
S.M. Banerji
v.
Sri J( rishna
Agarwal
Subba Rao].
IOj?
S.M. Banerji
v.
Sri Krishna
Agarwal
Subba Rao].
292
SUPREME COURT REPORTS [1960 (2)]
of limitation of 45 days had expired, the respondent
filed an application for amel)dment 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 present·
ed 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 ground 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
r
\
S.C.R.
SUPREME COURT REPORTS
293
sub-paragraph (1) 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, Le.,
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 i.n the case under s. lOO(l)(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 para. 5(d)
of the election petition. The present appeal was filed
by special leave against the said judgment of the
High Court.
The contentions of the learned Counsel, Mr. N. C.
Chatterjee, for the appellant may be briefly put thus:
'l'he ground for relief in the election petition was based
on improper acceptance of the appellant's nomination
within the meaning of s. lOO(l)(d)(i) of the Act, and
no alternative ground under sub-cl.(iv) of c1.(d) 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.
He relies upon for the first proposition on the decision of this Court in Durga Shankar Mehta v. Thakur
Raghuraj Singh (1) and for the second on the decision
of this Court in Harish Chandra Bajpai v. Triloki
Singh (2).
Mr. A. V. Viswanatha Sastry, the learned Counsel for
the respondent, co"ntends that the said two decisions
were wrongly decided and require reconsideration,
and that, in any event, the amendment asked for
clearly falls within the scope of the later decision. He
(I) [1955] I S.C.R. 267.
(2) [1957] S.C.R. 370.
38
I959
S. M. Banerji
v.
Sri Krishna
Agarwal
Subba Rao].
I959
S. M. Banerji
v.
Sri Krishna
Agarwal
Subba Rao].
294
SUPREME COURT REPORTS [1960 (2)]
further contends that, on a fair reading of the relevant
allegations in the petition as originally presented, it
would be clear that the respondent stated all the
necessary facts to sustain the ground he had taken in
the amendment petition, and that by the amendment
he was only seeking to clarify the said ground. In any
·view, he argues that the appellate Court on a careful
construction of the pleadings has held that the petition
in substance disclosed the said ground ; and the question of correctness of the said decision does not legitimately fall within the discretionary jurisdiction of
this Court under Art. 136 of the Constitution.
At the outset the relevant provisions of the Act may
be noticed. The said provisions read :
S. 9 (3) : "If any question is raised as to whether
a person who, having held any office referred to in
clause (f) of section 7, has been dismissed is disqualified under that clause for being chosen as a
member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a
State, the production of a certificate issued in the
prescribed manner by the Election Commission to
, the effect that such person has not been dismissed
for corruption or disloyalty to the State shall be
conclusive proof that he is not disqualified unc;ler
that clause."
S. 33 (3): "Whern 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 a 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."
S. 36: "(1) On the date fixed for the scrutiny of
nominations under section 30, the candidates, their
election agents, one proposer of each candidate, and
one other person duly authorized in writing by each
candidate, but no other person, may attend at such
-
-
...
S.C.R.
SUPREME COURT REPOR'.rS
295
time and place as the returning officer may appoint;
and the returning officer shall give them all reasonable facilities for examining the nomination papers
of all candidates which have been delivered within
the time and in the manner laid down in sectfon 33.
(2) The returning officer shall then examine the
nomination papers and shall decide all objections
which may be made to any nomination, and may,
either on such objection · or on his own motion,
after such summary inquiry, if any, as he thinks
necessary, reject any nomination on any of the
following grounds :-
(a)
*
* ,
•
(b) that there has been a failu:re to comply witl_i
any of the provisions of section 33 or section 34; or
(c)
*
*
*
S. 100: "(1) Subject to the provisions of sub-section (2), if the Tribunal is of opinion-
*
*
•
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-
(i) by the improper acceptance of any nomination, or
*
•
*
(iv) by any non-compliance with the provisions
of the Constitution or of this Act or of any other
rules or orders under this Act,
the Tribunal shall declare the election of the
returned candidate to be void.
The foregoing provisions, so far relevent to the
present enquiry, may be summarised thus: If a
candidate
has been dismissed from Government
service and a period of five years has not elapsed since
dismissal, he will have to file along with the nomination paper a 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. If it has not been done, the Returning Officer,
either suo motu or on objections raised by the opposite
party, has to reject the nomination, If the nominatfon
paper does not disclose any such defect and if· the
I959
S. M. Banerji
v.
.Sri Krishna
Agarwa,I
Subba Rao].
'959
S. ft1. Banerji
v.
Sri Kt'ishna
4.garwal
Subba Rao].
296
SUPREME COURT REPORTS [i960 (2))
Returning Officer has no knowledge of that fact, he has
no option but to accept the nomination. The Returning Officer may improperly accept a nomination paper
though it discloses the said defect and though an
objection is raised to its reception on that ground.
Section lOO(l)(d)(i) of the Act deals with improper
acceptance of any nomination and s. lOO(l)(d)(iv)
permits an attack on the ground, among others, of
non-compliance with the provisions of the Act.
Before we consider the contentions of the parties,
it would be convenient to appreciate the true scope of
the two decisions of this court in the light of the
arguments advanced by the learned Counsel. The first
decision is in Durga Shankar Mehta v. Thakur Raghuraj
Singh (1). This decision turns upon the provisions of
sub-s. (l)(c) and sub-s. (2)(c) of s. 100 of the Representation of the People Act, 195 l before it was amended by
Act XXVII of 1956.
Sub-s. (l)(c) and sub-s. (2)(c), in
so far as they are material to the present discussion
correspond to s. lOO(l)(d)(i) and s. IOO(l)(d)(iv) respectively of the amended Act. This case arose out of
an election held in December, 1951, for the doublemember Lakhnadtm Legislative Assembly Constituency
in Madhya Pradesh, one of the seats being rese:r:ved
for Scheduled Tribes. The appellant and respondents
1, 3, 5 and 7 therein were duly nominated candidates
for the general seat in the said constituency, while
respondents Nos. 2, 4 and 6 were nominated for the
reserved seat. No objection was taken before the
Returning Officer in respect of the nomination of
either the appellant or respondent No. 2.
The appellant and respondent No. 2 were declared elected to
the general and reserved seat respectively. The respondent No. 1 filed an election petition against the
appellant and the at.her respondents for setting aside
the election as wholly void. One of the allegations
was that the respondent No. 2, was, at all material
times, under 25 years of age and was consequently
not qualified to be chosen to fill a seat in the Legislative Assembly of a State under Art. 173 of the
Constitution. The Election Tribunal held that the
(I) (1955) I s.c.R. 267.
\
,
-
•
_.
-
...
-
/.
S.C.:R.
SUPREME dOURT REPORTS
297
acceptance by the Returning Officer of the nomination
ofrespondent No. 2 amounted to an improper acceptance of nomination within the meaning of s_ lOO{l)(c)
of the Act, and on that ground declared that the entire
election was void. The candidate, who was elected
to the general seat preferred an appeal to this Court
and contended that his nomination had been properly
accepted by the Returning Officer and, therefore, if
respondent No. 2 was not duly qualified to be elected,
his election alone should be declared void on the
ground that such disqualification shall fall under
sub-s. (2)(c) of s. 100 and not under sub-s. (l)(c) thereof ..
This Court accepted the contention and in that context defined the import of "improper acceptance "
within the meaning of s. lOO(l)(c) of the Act. Mukherjea, .J., as he then was, delivering the judgment of the
Court observed at p. 277 :
" If the want of qualification of a candidate does
not appear on the face of the nomination paper or
of the. electoral roll, but is a matter which could be
established only by evidence, an enquiry at the stage
of scrutiny of the nomination papers is required
under the Act only if there is any objection to the
nomination. The Returning Officer is then bound
to make such enquiry as he thinks proper on the
result of which he can either accept or reject the
nomination. But when the candidate appears to
be properly qualified on the face of the electoral roll
and the nomination paper and no objection is raised
to the nomination, the Returning Officer has no
other alternative but to accept the· nomination.
This would be apparent from section 36, subsection (7) of the Act ... ".
The learned Judge proceeded to state at p. 278 :
"It would have been an improper acceptance, if
the want of qulification was apparent on the electoral roll itself or on the face of the nomination paper
and the Returning Officer overlooked that defect or
if any objection was raised and enquiry made as to
the absence of qualification in the candidate and
the Returning Officer came to ·a wrong conclusion
on the materials placed before him. When neither
I959
S. M. Banerji
v.
Sri Krishna
Agarwal
Subba Rao ].
I959
S . • 11. Banerji
v.
Sri Krishna
Agarwal
S11bba Rao].
298
SUPREME COURT REPORTS [i960 (2)]
of these things happened, the acceptance of the
nomination by the Returning Officer mnst be
deemed to be a proper acceptance."
This judgment, therefore, is a clear authority for the
proposition that if the want of qualification does not
appear on the face of the nomination paper and if no
objection is raised on that ground before the Returning Officer, the acceptance of the nomination must
be deemed to be a proper acceptance.
:M:r. A. V. Viswanatha Sastry, the learned Counsel
for the respondent, attacks the correctness of this
decision. Broadly stated, his criticism is that the
proceedings before the Returning Officer are summary
proceedings and that the election petition is not an
appeal from the order of the Returning Officer, but is
an original petition seeking to set aside the election
and that in such a petition the aggrieved party has
the right to seek to set aside the election on all or any
of the grounds mentioned in s. 100 of the Act and that,
as one of the grounds is the improper acceptance of
the nomination paper, he could establish by evidence
that the acceptance of the nomination by the Returning Officer was in the derogation of the st(1tutory
provisions, such as those relating to the absence of
qualification in the candidate or the filing of his
nomination paper unaccompanied by a certificate
within the meaning of s. 33(3) of the Act. In
support of this contention reliance is placed upon
another decision of this Court in V eluswaini v.
Raja Nainar (1).
The point raised and decided in
that case was whether an enquiry before the Election
Tribunal was not restricted to the material placed
before the Returning Officer relating to a ground, but
all evidence bearing on that ground could be adduced
before that Tribunal. There unlike here, at the
time of scrutiny of the nominations objection was
taken to the nomination of the candidate on the
ground that he was the Head Master of the National
Training School, Tiruchendur, which was a Government-aided school, and therefore he was disqualified
under s. 7, els. (cl) and (e) of the Act.
The Returning
(I) A.I.R. 1959 S.C. 422,
/
-
S.C.R.
SUPREME COURT REPORTS
299
Officer upheld the objection. In a petition to set aside
the election, the returned candidate pleaded that the
candidate whose nomination was rejected was not
qualified to be chosen not merely on the ground put
forward before the Returning Officer but also on other
grounds. This Court held that it is open to a party to
put forward all grounds in support or negation of the
·claim subject only to such limitations as may be found
in the Act, notwithstanding that some of the grounds
were not taken before the Returning Officer.
The
reason for the decision is found at p. 426 and it
reads:
" An election petition is an original proceeding
instituted by the presentation of a petition under
s. 81 of the Act.
. .... All the parties have the
right to adduce evidence and that is of the essence
of an original proceeding as contrasted with a proceeding by way of appeal. That being the character
of the proceedings, the rule applicable is that which
governs the trial of all original proceedings; that is,
it is open to a party to put forward all grounds in
support of or negation of the claim, subject only to
such limitations as may be found in the Act."
The learned Judge elaborated the point at a subsequent
stage of the judgment thus :
" The enquiry which a returning officer has to
make under S. 36 is summary in character. He may
make "such summary enquiry, if any, as he thinks
necess!Lry "; he can act suo motu. Such being the
nature of the enquiry, the right which is given to a
party under S. IOO(l)(c) and S. IOO(l)(d)(i) to challenge the propriety of an order of rejection or
acceptance of a nomination paper would become
illusory, if the Tribunal is to base its decision only
on the materials placed before the returning officer."
When the attention of the Court was invited to the ·
decision in Durga Shankar Mehta v. Thakur Raghuraj
Singh (1 ), the Court distinguished that decision in the
following manner :
"This is not a direct pronouncement on the point
now 'in controversy, and that is conceded,"
(r) [r955J r S,C,R, 267.
r959
S. M. Banerji
v.
Sri Krishna
Agarwal
Subba Rao].
'959
S. M. Banerji
v.
Sri Krishna
'
Agarwal
Subba Rao].
300
SUPREME COURT REPORTS [1960 (2)]
The two decisions can stand together and they deal
with two different situations: in the former, no objection was raised at all to the nomination, while in the
latter an objection was raised on the ground of
disqualification; but in the election petition additional
grounds of disqualification were alleged and sought to
be proved: one is concerned with a case of improper
acceptance and the other with a case of improper
rejection. Though some of the observations in the
later decision may well have been advanced to come
to a contrary conclusion in the
earlier decision,
Venkatarama Ayyar, J., who was party to both the
decisions, distinguished the earlier one on the ground
that it was not a direct pronouncement on the question
raised in the later. The earlier decision is that of five
Judges but the later is of three Judges. The learned
Judges, who decided the later case, did not see any
conflict between their decision and that of the earlier
one.
Though there is some force ii;i the argument
advanced by Mr. A. V. Viswanatha Sastry, and, if it
were res integra, some of us might be inclined not to
agree with the reasoning and the conclusion of the
earlier judgment, this Court is bound by its earlier
decision and we do not see any justification to refer
the question to a larger bench, particularly as we have
come to the conclusion that the High Court was not
justified in interfering with the order passed by the
Tribunal. in its discretion disallowing the material
amendment.
The second case is a decision of four Judges and it
defines the powers of the Election Tribunal in the
matter of amendment of pleadings. This decision also
turns upon the relevant provisions of Act 43 of 1951
before it was amended by Act 27of1956. Section 83(3)
of the Act before the amendment corresponds to
s. 90(5) of the amended Act. In other respects, so far
as it is material to the question raised, no change has
·been introduced in the other relevant sections. In
this case, the respondent in the appeal filed an election
petition challenging the election of the appellants to
the U.P. Legislative Assembly on the ground that
they ~ad.committed corrupt practices, the !llaterial
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S.C.R.
SUPREME COURT REPORTS
301
allE'.gations being, (i) that the appellants "could in the
furtherance of their election enlist the support of
certain Government servants", lbnd (ii) that the
appellant No. l had employed two persons in excess of
the prescribed number for his election purposes. No
list of particulars of corrupt practices was attached to
the petition. Long after the period of limitation
prescribed for the _filing of election petitions, the
respondent applied fo.r amendment of his petition by
adding the names of certain village Headmen (Mukhias)
as having worked for the appellants and later on
becoming their polling agents. The Election Tribunal
allowed the amendment on the ground that the allegations sought to be introduced by the amendment were
mere particulars of the charge already made. Holding
that corrupt practice had been ·committed by the
appellants, it decll!>red their election void under
s. 100(2)(b) of the Act. The appellants preferred an
appeal against that order to this Court and contended
that the Election Tribunal had no power either under
s. 83(3) of the Act or under Order VI, rule 17 of the
Code of Civil Procedure to allow the amendment. In
that context, this Court elaborately conside:r;ed the
scope of the power of the Election Tribunal to amend
the pleadings in an election dispute and summarized
its views in the following two propositions, at p. 392 :
"(1) Under s. 83(3) the Tribunal has power to
allow particulars in respect of illegal or corrupt
practices ·to be amended, provided the petition
itself specifies the grounds or charges, and this
power extends to permitting new instances to be
given.
(2) The Tribunal has power under 0. VI, r. 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 substance a new'petition, if a fresh petition on those allegations will then be barred."
On the basis of those propositions this Court held that
the petition as originally presented did not allege that
the appellants had committed corrupt practices and,
therefore, that the allegations sought to be introduced
39
1959
S. M. B6!n1rji
v.
Sri Krishna
Agarwal
Stlbba Rao f,
1959
S. M. Banerii
v.
Sri Kf'ishna
Agarwal
Subba Rao j.
302
SUPREME COURT REPORTS (1960(2)]
by the amendment, namely, that two village Headmen
worked for the appellants and later on became their
polling agents, 80 radically altered the character of the
petition as originally framed as to make it practically
a new petition, and so it was not within the power of
the Tribunal to allow amendments of that kind. Even
if the Tribunal had the power under 0. VI, r. 17 of
the Code of Civil Procedure to permit an amendment
raising a new charge, the Court held that it did not
under the circumstances exercise a sound and judicial
discretion in permitting the amendment in question.
It may be noticed that in that case the question turned
upon the constrnction of s. 83, sub-ss. (2) and (3), of
the Act. Though in that case this Court was concerned with the powers of an Election Tribunal to amend
the petition beyond the peFiod of limitation, the discussion of the Court covered a wider field, presumably,
because the Court intended to settle the principles
governing the power of Election Tribunals to amend
pleadings with a view to prevent confusion and to
stabilize the procedure.
This Court rejected the argument that 0. VI, r. 17 of the Civil Procedure Code,
does not apply to election petitions. It was observed at p. 389:
" We are accordingly of opinion that the application of 0. VI, r. 17, Ci vii Procedure Code to the
proceedings before the Tribunal is not excluded by
s. 83(3)."
It was contended for the appellant in that case that
even ifs. 83(3) of the Act did not exclude the application of 0. VI, r. 17, Civil Procedure Code, to the proceedings before the Tribunal, the exercise of the power
under that rule must, nevertheless, be subject to the
conditions prescribed by s. 81 for presentation of an
election petition, that one of those conditions was that
it should be presented within the time allowed therefor, and that accordingly, no amendment should be
allowed which would have the effect of defeating that
provision. After considering the English decisions on
the statutory provisions which are pari materia with
our enactments, the Court held that the Election
Tribunal had no power to permit a new ground to be
•,
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S.C.R.
SUPREME COURT REPORTS
303
raised beyond the time of limitation prescribed by
s. 81 of the Act. Mr. A. V. ;Viswanatha Sastry ·contended that the learned Judges, having rightly conceded the power of the Election Tribunal to amend the
pleadings under 0. VI, r. 17, Civil Procedure Code,
went wrong in limiting that power in the way they
did, and that the reason advanced by them in limiting
that power equally applies to the pleadings in a suit,
for, it is said, under the Indian Limitation Act, every
suit filed beyond the prescribed period of limitation
shall be dismissed although limitation has not been set
up as a defence. There is no dou ht some force in this
contention, but this argument was presumably advanced before the learned Judges and was negatived on the
following ground stated at p. 392 :
"The Tribunal sought to get over this difficulty
by relying on the principle well-established with
reference to amendments under 0. VI, r. 17 that
the fact that a suit on the claim sought to be raised
would be barred on the date of the application would
be a material element in deciding whether it should
be allowed or not but would not affect the jurisdic"
tion of the court to grant it in exceptional circum·
stances as laid down in Cha.ran Das v. Amir Khan (1),
But this is to ignore the restriction imposed by
s. 90(2) that the procedure of the court under the
Code of Civil Procedure in which 0. VI, r. 17 is
comprised, is to apply 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 by s. 81 and r. 119 must contravene those
provisions and is, in consequence, beyond the ambit·
of authority conferred by s. 90(2)."
This passage indicates that the learned Judges were
aware of the argument now· advanced and, for the
reason mentioned by them, namely, that unlike a civil
suit wherein the Court can extend the period of limitation in a proper case, the Tribunal has no such power,
rejected t~ argument. We are bound by this decision.
(1) (1920) L.R. 471.A. 255,
I959
S. M. Banerji
v.
Sri Krishna
Agarwal
Subba Rao].
,
~· r /
\("
,\ '
r959
,
. '
304.
•
SUPRE~IB COURT. REPORTS [l960(2)J
As this stage we must guard against one possible
misapprehension. · Courts and -Tribunals are consti_v.
tuted to do justice between the parties within the con~
Sri Krishna
fines of statutory limitations, and undue emphasis on
Agarwa,1 ,,-- -- ·technicalities or enlarging their scope would cramp
Subba Rao J.
their powers, diminish their effectiveness and defeat
tho very purpose for which they are constituted. \Ve
must make it clear that within the limits prescribed
-
-~- -
'
-
,
by the decisions of this Court the discretionary jurisdiction of the Tribunals to amend the pleadings
is as extensive as that of a civil Court. The same
well-settled ·principles laid down in the matter of
· amendments to the pleadings in a suit should also
regulate tho exercise of the power of amendment by a
. Tribunal. . This aspect has not been ignored by this
Court in the aforesaid decision, and the Court o bserv -
ed, at p. 394 :
.
. "It is no doubt true that pleadings should not be .
too strictly construed, and that regard should be had
to the substance of tho matter and not the form."
. The foregoing discussion yields the following results :·
(l) Sub-els. (i) and (iv) of s. lOO(l)(d) ·of the Act provide
--
for two distinct grounds; the former for the case of
. improper acceptance of any nomination, and the latter
for that of non-compliance with the provisions of the
Constitution or of the Act, or of any rules or orders
made under the Act; (2) when the- candidate appears
to be properly qualified on the face of the electoral
roll and the nomination paper and no objection is
raised to the nomination, the acceptance of the said
nomination by the Returning Officer must be deemed to
be proper acceptance; (3) even if there is a proper
acceptunce, it is open to the petitioner to question the
validity of the election under a. lOO(l)(d)(iv) on other
grounds, namely, that the candidate whose nomination
was accepted was not quulificd at all or could not be
deemed to be duly nominated as a candidate for the
reason that he did not comply with the provisions of
s. 33(3) of the Act; and (4) if the second ground in
substance is not taken in the petition--substance is
more important than form-the Tribunal has no power
after the prescribed period of limitation for the filing
•
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S.C.R
SUPREME COURT R.EPORTS
305
of the petition to allow an amendment introducing
the second ground.
With this background we shall proceed to scrutinize
the pleadings in the light of the rival contentions. The
election petition contains seven paragraphs.
The
relief claimed is that the election of the appellant from
the parliamentary constituency No. 331, Kanpur, be
declared void. The first paragraph gives the credentials of the petitioner to enable him to file the petition.
Paragraphs 2 and 3 give the sequence of events which
ended in the declaration of the appellant as duly
elected from the constituency to the Parliament.
Paragraph 5 states that the election of the appellant
is void and is liable to be set aside on the ten grounds,
among others, specified therein. Paragraph 6. states
that the cause of action ~ccrued to the petitioner on
or about January 29, 1957, when the nomination
papers were filed for the said election, and subsequent
thereto. Now coming to the grounds in sub~para
(a), (bj and (c)
of para 5, it is stated that the
appellant had been dismissed by Government from
service on charges of disloyalty and gross misconduct
on January 24, 1956, but he did not submit to the
said order and filed a writ petition in the High Court
at Calcutta questioning the validity of the said order,
that under the circumstances, he should be deemed
to be a Government servant and, therefore, he was
not competent to be nominated as a cap.didate for
election to Parliament. Sub-paragraph (d) is the most
important paragraph to the present enquiry and therefore it may be extracted in full. It reads :
" That apart from the above mentioned reasons
the nomination paper of the respondent was also
improperly accepted by the Returning Officer, in-asmuch-as, the respondent having been dismissed from
Government Service did not obtain a certificate in
the prescribed manner from the Election Commission to the effect that he had not been dismissed for
corruption or disloyalty, to the State."
This sub-paragraph in clear and unambiguous terms
raises the ground of improper acceptance of the nomin~
ation paper by the Returning Officer i.e., the wound
I959
S. M. Banerji
v.
Sri Krishna
Agarwal
Subba Rao /.
1959
S. }.{, Banerji
v.
Sri Krishna
.Agarwal
Subba Rao j.
306
SUPREME COURT REPORTS [1960 (2)]
covered by s. lOO(l)(d)(i) of the Act. The reason for
sustaining the said ground is stated to be that, having
been dismissed from Government servicP, he did not
obtain a certificate in the prescribed manner from the
Election Commission. Ex fa.cie this sub-paragraph
does not refer to s. 33(3) or to the contents of that suhsection.
A nomination paper may be accepted by the
Returning Officer in spite of one or other of the following two defects: (i) the candidate who has been
dismissed may have filed the nomination paper without its being accompanied by a certificate issued in the
prescribed manner by the Election Commission to the
effect that he has not been dismissed from service for
corruption or disloyalty to the State : vide s. 33(3);
and (ii) the candidate has been disqualified for being
chosen as a member of Parliament: vide s. 9(3). In
this sub-paragraph in support of the ground that the
nomination of the appellant was improperly accepted,
reference was made to the second defect and not to
the first. That this niust have been the intention of
the respondent is also made clear from the circumstance that in sub-para (i) reference was made to
the latter sub-section but not to the former. The argument that the opening words of sub-para (d), "That
apart ", indimite that this is a ground in addition to the
ground based on the non-obtaining of a certificate in
the prescribed manner, and, therefore, should only
refer to the non-accompaniment of a certificate, has
no force; for, sub-paras (a), (b) and (c), which precede
sub-para (d) raise a different point altogether, namely,
that notwithstanding the dismissal, as the appellant
had filed a petition in the High Court questioning the
validity of the order of dismissal, he was still a Government servant on the crucial date. Be it as it may, the
important point to be noticed is that sub-paragraph (d)
raises a ground under sub-cl. (i) and not under subcl. (iv) of s. lOO(l)(d) of the Act, and even if•the facts
mentioned therein are disannexed from the ground,
they refer only to the disqualification of the appellant
to stand as a candidate for the election and not to the
procedural defect covered by s. 33(3) of the Act. Subparagraphs (e), (f) and (g) relate to the objections
'
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S.C.R.
SUPREME COURT REPORTS
307
which are not material for the present inquiry.