R. Palaniswami Goundar vs V. Palaniswami Goundar

Ganapatia Pillai, J.—This civil revision petition is directed against the order of the Election Commissioner, Dharapuram, refusing amendment

of the petition in O.P. No. 51 of 1958 on his file. The petitioner before me is the applicant in that proceeding. By that proceeding he sought to set

aside the election of the respondent as President of Velappanaickanvalasu Panchayat Board. The President of the Panchayat Board had to be

elected by the members of the Panchayat Board from among themselves. A meeting of the Panchayat Board was held on 1st July 1958 at its office

for electing the President, and at this meeting the respondent was declared elected as the President by the presiding officer, since the respondent

obtained 8 votes as against 7 votes obtained by the petitioner. Certain illegalities and irregularities which were alleged to have been resorted to in

the election have been listed in paragraph 6 of the petition. Paragraph 7 in the petition deals with corrupt practices alleged against the respondent.

The purport of the amendment sought was to add a new ground to the illegalities by showing that the presiding officer at the election permitted the

transgression of R. 6 of the election rules relating to Panchayats. That rule runs thus:

No candidate shall take part in a ballot, but a candidate may withdraw at any stage and after so withdrawing, may take part in any ballot. Similarly,

a candidate who has been eliminated at any stage under clause (ii) of Sub-R. (5) of R. 5 may take part in any ballot at subsequent stages.

The allegation sought to be introduced by way of amendment was that both the candidates had taken part in the ballot, and, therefore, the

election was illegal. The Election Commissioner refused to allow the amendment, mainly relying on decisions which relate to elections held under

the Representation of the People Act. He took the view that the amendment sought to introduce a new ground of attack, and that in the case of

such a new ground of attack he had no jurisdiction to allow the amendment if it was sought after the prescribed period of limitation.

Learned Counsel, appearing for the petitioner, controverted the correctness of this view of the Election Commissioner. In support of his

contention, he cited a decision of the Supreme Court in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., The rules framed under the

Representation of the People Act specifically provide for the power to allow amendment in election petitions filed under the rules. No such rule is,

however, found in the case of rules governing decision of disputes relating to elections to Municipal Councils and Panchayat Boards. Nonetheless

this Court has held that the power of amendment could be enjoyed by Tribunals constituted to decide disputes about elections to Municipal

Councils and Panchayat Boards. It may not be necessary to notice all the decisions touching this point except a Bench decision of this Court in

Thangalakshmi Ammal Vs. Arunachalam and Others, to which I was a party. That case related to a municipal election and one of the questions for

decision was whether a Tribunal set up to hear an election petition filed under the rules relating to election to Municipal Councils has jurisdiction to

allow an amendment. The amendment in that case related to corrupt practices. The contention urged before the Bench was that even though the

Election Tribunals enjoyed the power of amendment conferred upon civil Courts under O. 6, R. 17, C. P. C. such power should be limited in the

case of petitions attacking municipal elections to the period of one month within which the petitions themselves should be filed. Though this

contention was not accepted in its extreme form, the Bench held that in the case of municipal election petitions the power of amendment under O.

6, R. 17, C. P. C. could be exercised by the Tribunals without reference to the limitation period of one month, but restricted to giving further

names of persons guilty of corrupt practices and material irregularities already alleged in the petition. The result is that in a case of such

amendments to election petitions the rule of limitation was held to be not a limiting factor.

The Supreme Court observed in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., at page 362 thus:

It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on

the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should he ordered,

and does not affect the power of the Court to order it, if that is required in the interests of justice.

The amendment contemplated in the Supreme Court case did not relate to a petition to set aside an election. The law thus laid down by the

Supreme Court with reference to the power of amendment of civil Courts, it is however contended, must apply to the power of the Tribunal in an

election case also. Even accepting this position as correct, the question will still arise whether the amendment sought in the present case was an

amendment introducing a new charge. The Bench decision in Thangalakshmi Ammal Vs. Arunachalam and Others, already by referred to, has set

out the limits of the power of amendment in the case of petitions relating to municipal elections. What they said was that the power of amendment

without the qualification of period of limitation of one month would apply only in the case of giving instances of corrupt practices already alleged in

the election petition. That is no authority for the contention that in the case of a new charge sought to be introduced by an amendment the period of

limitation can be overlooked.

That the power of civil Courts under O. 6, R. 17, C. P. C. is not circumscribed by the rule of limitation is the law laid down by the Supreme

Court. But that would not be enough for the appellant to succeed in this case. He has to go further and show that the Election Commissioner

improperly refused to exercise his discretion. Ultimately that will depend upon the question of the nature of the amendment. Learned Counsel for

the appellant was at pains to point out that though the charge now sought to be introduced by the amendment is not listed in the petition, yet it is

based upon the allegation of fact already found there. Elaborated, the point is this. In the opening paragraphs of the petition there is an allegation

that the respondent secured 8 votes at the election, while the appellant secured 7 votes. It is stated that the Panchayat Board consisted of 15

members, and if 15 votes were cast at the election, it must necessarily imply that both contesting candidates took part in the ballot. This inference

may follow from the facts pleaded. But that does not mean that the charge which is now levelled again the legality of the election is not a new

charge. In the first place, it is clear that the appellant did not think at the time when he drafted the petition impugning the election that this was an

irregularity which he could take advantage of. In the second place, this is a case where illegalities and irregularities are set forth in the petition in

precise terms and seriatim. It is not, therefore, possible to agree with the learned Counsel for he appellant when he contends that the effect of

allowing the amendment would not be to introduce a new charge. It may be one thing to make a statement of fact, but it would be another thing to

rely upon certain facts stated as the basis of charge to impugn the election.

A Bench of this Court in Komaraswami Pillai Vs. S. Venkatarama Rao and Others, had to deal with the question whether an Election

Commissioner appointed to enquire into an election petition filed to set aside an election to a Municipality has got power to amend the petition by

adding another ground on which the election was sought to be set aside, after the time for presenting the election petition had expired. The Bench

held that the Election Tribunal in such a case had no power to permit new charges to be introduced by way of amendment after the expiry of the

period within which alone an election petition could be filed. This decision reviews at length the relevant English cases on the point and it will be

apposite to quote the following passage occurring at page 44 :

In our opinion, the plain language of O. 6, R. 17, C. P. C, does not permit a new charge to be added by a way of an amendment. The real

question in controversy between the parties was whether the election of the respondent was liable to be set aside on the grounds set out in the

election petition, For the purpose of determining this question, it is not necessary to add an altogether new ground attacking the validity of the

election.

The principle deductible from all these decisions is that though in the case of Municipal and Panchayat Board elections no specific power of

amendment is conferred upon the Election Tribunals, such power analogous to the power of Civil Courts under O. 6, R. 17, C. P. C., could

however be exercised by such Tribunals. But that power does not extend to allowing a new charge to be added after the period of limitation has

expired. It may be that this qualification is not a limitation upon the ambit of the power, but is a limitation only upon its exercise. To this extent the

lower Court erred in stating the rule applicable but that does not make any difference in the result, as I am not satisfied that the discretion exercised

by the Election Commissioner was improperly exercised. The petition, therefore, fails and is dismissed with costs.