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2010 DIGILAW 27 (CHH)

Narayan Das Inklab Gandhi v. Shakrajit Nayak

2010-02-01

SATISH K.AGNIHOTRI

body2010
ORDER Satish K. Agnihotri, J. 1. I.A. No. 3 This is an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short "the Code of Civil Procedure ") read with Section 87 of the Representation of the People Act, 1951 (for short "the RP Act, 1951") for amendment in the election petition. 2. The facts, in nutshell, for disposal of the application (I.A. No. 3), are that the election Petitioner - Narayan Das Inklab Gandhi (for short "the election Petitioner ") filed the instant election petition under Section 80/80-A read with Sections 100 & 101 of the RP Act, 1951 on 22-1-2009 seeking declaration that the election of the Respondent No. 1 - Shakrajit Nayak (for short "the returned candidate ") from 16 Raigarh constituency, District Raigarh for the Chhattisgarh Legislative Assembly Election 2008 to be held as illegal & void and further to declare the election Petitioner as duly elected from the same constituency on the grounds that nomination papers filed by the Respondents were not in accordance with the prescribed from i.e. Form 2-B as prescribed under Rule 4 of the Conduct of Election Rules, 1961 (for short "the Rules, 1961"), on that ground that the nomination forms of the Respondents were wrongly accepted and consequent thereupon the election results be declared as void & illegal. 3. The nomination papers of the candidates for election to the Chhattisgarh Legislative Assembly Election 2008 were filed between 27-10-2008 and 3-11-2008 pursuant to notification dated 14-10-2008. The election Petitioner has filed his nomination as an independent candidate on 27-10-2008. Thereafter, polling took place on 20-11 -2008 and the result of the election was declared after counting of votes on 8-12-2008. 4. Summons were issued on 17-2-2009. On receipt of summons the returned candidate filed an application (I.A. No. 1) on 28-3-2009 under Order 7 Rule 11 of the Code of Civil Procedure read with Section 86 of the RP Act 1951 seeking dismissal of the election petition on the ground that the election Petitioner has not raised a specific pleading setting out all material facts as required under Section 100 (1) (d) (i) of the RP Act, 1951 and. as such, there was no cause of action. 5. as such, there was no cause of action. 5. On the request of learned Counsel appearing for the election Petitioner, on 1-4-2009, two weeks time was granted to file response to I.A. No. l. Thereafter, the election Petitioner filed an application on 8-9-2009, being I.A. No. 3. under Order 6 Rule 17 of the Code of Civil Procedure read with Section 87 of the RP Act, 1951 seeking amendment in the election petition by adding following paragraphs after paragraph 10 of the election petition. The same reads as under: 10-A. It is further submitted that in terms of Article 173 (a) of the Constitution of India, a person shall not be qualified to be chosen to fill a seat in the legislature of a State unless he is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule. Further Form "A" contained in Part VII of Third Schedule to the Constitution of India prescribes the form of oath and affirmation to be made by a candidate for election to the legislature of a State. 10-B. That, in pursuance of power conferred under Article 173 (a) of the Constitution of India, the Election Commission of India by its notification No. 3/6/68 (1) dated 18th of March, 1968 has authorized (i) the concerned Returning Officer and all his subordinate Asstt. Returning Officers (ii) All Sambalik (Vetnik) Presidency Magistrates and All Sambalik (Vetnik) First Class Magistrates, and (iii) All District Judges and such other persons than District Judges, who are members of State Judicial Service of a State, before whom a person has to make and subscribe oath or affirmation according to the form set out for the purpose in the third Schedule to the Constitution of India. The Petitioner relied upon a the notification dated 18.3.1968 as published at page 129 (in 1984 and reprinted in 1991) by the Election Commission of India in its Book titled as "Ummeedwaron Ke Liya Pustika", in support of the above contention and a copy (extract) of the same is filed as Annexure P/39. The Petitioner relied upon a the notification dated 18.3.1968 as published at page 129 (in 1984 and reprinted in 1991) by the Election Commission of India in its Book titled as "Ummeedwaron Ke Liya Pustika", in support of the above contention and a copy (extract) of the same is filed as Annexure P/39. 10-C. That, the oath and affirmation as stated above in the prescribed from is mandatorily required to be made by a candidate for election to the legislature of a State before the person authorized in that behalf by the Election Commission, otherwise he shall not be qualified to be chosen to fill a seat in the legislature of a State as provided in Article 173 of the Constitution of India, Further Section 32 of the Representation of People Act, 1951 provides that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provision of the Constitution and the Act of 1951 or under the provisions of the Govt, of Union Territories Act, 1963 (20 of 1963), as the case may be. The effect of omission of the above requirements on the part of a candidate desirous of contesting election to the State Legislature, is provided in Clause (a) of Sub-section (2) of Section 36 of the Act of 1951 which stipulates that nomination of such a candidate may be rejected by the Returning Officer. 10-D. That, in the light of the above submissions, it was incumbent upon the Respondent No. l who was a candidate from 16-Raigarh Constituency of the State of C.G. to have made and subscribed before the Returning Officer of that constituency or any of all other persons authorized in that behalf by the Election Commission of India to take oath or affirmation as stated above, according to the form set out in the third Scheduled of the Constitution of India i.e. Form "A" contained in Part-VII of Third Schedule to the Constitution of India, for being qualified to be chosen to fill the seat from 16-Raigarh constituency. 10-E. That, however as stated in foregoing paragraphs of the petition, as per programme of election, 27.10.2008 to 3.11.2008 was the time fixed for filing of nominations and the date 4.11.2008 was fixed for Scrutiny thereof. 10-E. That, however as stated in foregoing paragraphs of the petition, as per programme of election, 27.10.2008 to 3.11.2008 was the time fixed for filing of nominations and the date 4.11.2008 was fixed for Scrutiny thereof. On behalf of the Respondent No. l who was an approved candidate of recognized political party viz. Indian National Congress, total 4 sets of nomination papers were submitted, two sets of which (Annexure P/3 and P/4) on 31.10.2008 and rest two sets on 3.11.2008 (i.e. Annexures P/5 and P/6). A perusal of the forms of oath or affirmation accompanying the nomination papers Annexure P/3 and P/4, would reveal that the Respondent No. 1 has failed to make and subscribe an oath or affirmation according to the prescribed form prescribed in Part-VII of Third Schedule to the Constitution of India as required under Article 173 (a) thereof, in as much as, in the space meant for filling in the name of the candidate in the prescribed fonns, the Respondent No, 1 has mentioned in Hindi "Raigarh-16". Similarly, A perusal of the forms of oath or affirmation accompanying the nomination papers submitted on 3.11.2008 vide Annexure P/5 and P/6, would reveal that the Respondent No. l has failed to make and subscribe an oath or affirmation before any person authorized for the purpose by the Election Commission of India in pursuance of Article 173 (a) thereof, in as much as, no endorsement to that effect has been made by any authorized person in the prescribed forms of oath and affirmation. Thus, on the date of scrutiny of the nominations i.e. 4.11.2008, the Respondent No. 1 was not qualified to be chosen to fill a seat in the legislature in terms of Article 173 (a) of the Constitution of India. 10-F. The Petitioner most respectfully submits that the Respondent No. 1 having failed to make and subscribe an oath and affirmation as required under Article 173 of the Constitution of India, had earned disqualification for being nominated as a candidate for election to fill the seat from 16-Raigarh Constituency in terms of Section 32 of the Act of 1951 and the Returning Officer of that Constituency had committed serious illegality in accepting and not rejecting his nomination in the teeth of provisions Clause (a) of Sub-section (2) of Section 30 of the Act of 1951. 6. 6. The returned candidate filed his response denying the averments made in the paras 1 to 5 of the application (I.A. No. 3). The amendment was sought to be made after the period of limitation prescribed for filing of election petition and, as such, the same deserves to be rejected in view of the fact that the proposed amendment would entirely change the nature of election petition. 7. Shri Ratan Pusty, learned Counsel appearing for the election Petitioner, would submit that the amendment does not bring out a new cause of action. The returned candidate failed to make and subscribe an oath and affirmation as required under Article 173 of the Constitution of India and, as such, had earned disqualification. The Returning Officer had committed serious irregularities and illegalities in accepting and not rejecting the nomination in the teeth of provisions of Clause (a) of Sub-section (2) of Section 36 of the RP Act, 1951. Shri Pusty would further submit that the bar of limitation would come into play only in the event a new ground of challenge has been raised. In the present case, the subsequent amendment is simply explanation of the earlier grounds of improper acceptance of nomination from. All the grounds raised are with regard to defects in the nomination paper that leads to improper acceptance of nomination papers of all the Respondents including the returned candidate. 8. On the other hand, Shri Sanjay K. Agrawal, learned Counsel appearing with Shri Sudeep Agrawal, learned Counsel for the returned candidate (Respondent No. 1), would submit that the election Petitioner introduced new/fresh grounds of challenge i.e. firstly; the returned candidate has failed to make and subscribe an oath and affirmation as required under Article 173 of the Constitution of India, which earned disqualification was not taken in the main election petition; and secondly; the scrutiny of nomination form was not properly done as provided under Clause (a) of Sub-section (2) of Section 36 of the RP Act of 1951 was also a new ground. The ground has been raised after the period of limitation of 45 days. Election Petitioner has sought amendment to save the election petition from dismissal, as the main petition does not disclose any triable cause of action. 9. I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto. 10. The ground has been raised after the period of limitation of 45 days. Election Petitioner has sought amendment to save the election petition from dismissal, as the main petition does not disclose any triable cause of action. 9. I have heard learned Counsel appearing for the parties, perused the pleadings and the documents appended thereto. 10. In the election petition, there was no ground of qualification/disqualification of the candidate under the provisions of Article 173 of the Constitution of India and proper scrutiny was not done in accordance with Clause (a) of Sub-section (2) of Section 36 of the RP Act of 1951. The sole ground raised in the main election petition was that the nomination form was not in accordance with the prescribed form i.e. Form 2-B as prescribed under Rule 4 of the Rules, 1961. The proposed amendments basically not deal with the earlier ground of not filing the nomination form in Form 2-B, but raised new ground i.e. not subscription of oath or affirmation according to the form set out for the purpose in the Third Schedule before some person authorized in that behalf by the Election Commission. It was further submitted that the Form "A" contained in Part-VII of Third Schedule to the Constitution of India prescribed the form of oath made by a candidate for election to the legislature of a State and, as such, the proposed amendment seeks to alter the nature of main election petition. The proposed J amendment to the effect that the scrutiny of nomination form was not done in accordance with Clause (a) of Sub-section (2) of Section 36 of the RP Act of 1951 was also added as a new ground. 11. Indisputably Section 81 of the RP Act, 1951 provides for presentation of election petitions within 45 days from the date of election of the returned candidate, The election result of the returned candidate was declared on 8-12-2008. The main election petition was filed on 22-1-2009 i.e. within a period of 45 days. The ground raised in the main election petition was improper acceptance of any nomination form i.e. Form 2-B as prescribed under Rule 4 of the Rules, 1961. The proposed amendment introduces new grounds i.e. non-compliance with the provisions of the Constitution of India and Section 100 (1) (d) (i) and 100 (1) (d) (iv) of the RP Act, 1951. The ground raised in the main election petition was improper acceptance of any nomination form i.e. Form 2-B as prescribed under Rule 4 of the Rules, 1961. The proposed amendment introduces new grounds i.e. non-compliance with the provisions of the Constitution of India and Section 100 (1) (d) (i) and 100 (1) (d) (iv) of the RP Act, 1951. Thus, it is clearly held that the proposed amendment introduces new grounds and new facts after the period of limitation of 45 days. 12. The Supreme Court in Harish Chandra Bajpai and Anr. v. Triloki Singh and Anr. AIR 1957 SC 444, observed as under: 22. On these authorities, it is contended for the Appellants that even if the Tribunal is held to possess a power to order amendments generally under Order 6, Rule 17, an order under that rule cannot be made when a new ground or charge is raised, if the application is made beyond the period of limitation prescribed for filing election petitions. The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under Order 6, Rule 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 jurisdiction of the court to grant it in exceptional circumstances as laid down in Charan Das v. Amir Khan, 47 Ind. App. 255: (A.I.R. 1921 P.C. 50) (L). But this is to ignore the restriction imposed by Section 90 (2). If that the procedure of the court under the Code of Civil Procedure in which Order 6, Rule 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 Section 81 and Rule 119 must contravene those provisions and is, in consequence, beyond the ambit of authority conferred by Section 90(2). We are accordingly of opinion that the contention of the Appellants on this point is well-founded, and must be accepted as correct. 23. We are accordingly of opinion that the contention of the Appellants on this point is well-founded, and must be accepted as correct. 23. The result of the foregoing discussion may thus be summed up: (1) Under Section 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 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 substance a new petition, if a fresh petition on those allegations will then be barred. 13. In Mohan Raj v. Surendra Kumar Taparia and Ors. AIR 1969 SC 677, the Supreme Court observed as under: 11...This cannot be permitted since it will defeat the provisions of Section 86 (1). Every election petition can be saved by amendment in this way but that is not the policy of the law. The dismissal is peremptory and the law does not admit of any other approach.... 14. The decision of the Supreme Court rendered in D.P. Mishra v. Kamal Narayan Sharma and Anr. AIR 1970 SC 1477, relied by Shri Pusty, learned Counsel appearing for the election Petitioner, is to the effect that particulars of a corrupt practice not alleged in the main election petition, but in this application for amendment, therefore, the same is not applicable to the facts of the present case, as the main election petition was filed on the ground of improper acceptance of nomination form and subsequently by amendment grounds of non-compliance with the constitutional provisions and proper scrutiny of nomination form in accordance with Clause (a) of Sub-section (2) of Section 36 of the RP Act of 1951 were added. 15. The Supreme Court in L.R. Shivaramagowda and Ors. v. T.M. Chandrashekar (dead) by LRs and Ors. (1999)1 SCC 666, the Supreme Court observed as under: 11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between "material facts" and "material particulars". 15. The Supreme Court in L.R. Shivaramagowda and Ors. v. T.M. Chandrashekar (dead) by LRs and Ors. (1999)1 SCC 666, the Supreme Court observed as under: 11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment.... 16. The Supreme Court while considering the provisions of Order 6 Rule 17 of the Code of Civil Procedure, in Revajeetu Builders & Developers v. Narayanaswamy & Sons and Ors. JT 2009 (13) SC 366, observed as under: 67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case ? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 17. In Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar JT 2009 (10)SC 684, the Supreme Court observed as under: 65. In the context of a charge of corrupt practice, "material facts" would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the Petitioner (Respondent herein) is bound to substantiate before he can succeed on that charge. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. 18. It is also well-settled that if "material facts" are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. 18. Applying the well settled principles of law to the facts of case on hand and for the reasons stated hereinabove, I am of the considered view that the subsequent proposed amendments, changing the nature of the main election petition and further raising new grounds for declaring the election of the returned candidate as void and illegal, cannot be permitted at this juncture, as the same is barred by limitation. The new amendments cannot be allowed to save the main election petition. The main election petition has not been filed on the ground of corrupt practices. 19. In the result, the application (I.A. No. 3) is rejected.