Judgment Case ID: 812

Judgment:
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	 of the Election Tribunal	 Kanpur	 in Election Petition No. 284 of 1957. N. C. Chatterjee	 R. K. Garg	 section 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. 291 1959. November 20. The Judgment of the Court was delivered by SUBBA RAO J. This appeal by special leave is directed against the judgment 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 section 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 than corruption or disloyalty to the state; and he was duly qualified to stand for the election. He also filed his nomination paper within the prescribed time and ex facie 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 accepted it under section 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 the manner prescribed by the Act and referred the petition to the said Tribunal for trial. On July 17	 1957	 i.e.	 after the prescribed period 292 of limitation of 45 days had expired	 the respondent filed an application for amendment 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 presented 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 round 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 section 116A of the Act to the High Court. Before the High Court the learned Counsel for the respondent	 withdrew the prayer for amendment of 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	 i.e.	 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 in the case under section 100(1)(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: The ground for relief in the election petition was based on improper acceptance of the appellant 's nomination within the meaning of section 100(1)(d)(i) of the Act and no alternative ground tinder sub cl.(iv) of cl.(d) section 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 section 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 vs Thakur Raghuraj Singh (1) and for the second on the decision of this Court in Harish Chandra Bajpai vs Triloki Singh (2). Mr. A. V. Viswanatha Sastry	 the learned Counsel for the respondent	 contends 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 (1) [1955] 1 S.C.R. 267. (2) ; 38 294 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 article 136 of the Constitution. At the outset the relevant provisions of the Act may be noticed. The said provisions read: section 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 under that clause. " section 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 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. " section 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 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 section 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 failure to comply with any of the provisions of section 33 or section 34; or (c) * * * section 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 nomination paper does not disclose any such defect and if the 296 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 100(1)(d)(i) of the Act deals with improper acceptance of any nomination and section 100(1)(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 vs Thakur Raghuraj Singh (1). This decision turns upon the provisions of sub section (1)(c) and sub section (2)(c) of section 100 of the Representation of the People Act	 1951 before it was amended by Act XXVII of 1956. Sub section (1)(c) and sub section (2)(c)	 in so far as they are material to the present discussion correspond to section 100(1)(d)(i) and section 100(1)(d)(iv) respectively of the amended Act. This case arose out of an election held in December	 1951	 for the double member Lakhnadon Legislative Assembly Constituency in Madhya Pradesh	 one of the seats being reserved 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 other 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 article 173 of the Constitution. The Election Tribunal held that the (1) (1955) 1 S.C.R. 267. 297 acceptance by the Returning Officer of the nomination of respondent No. 2 amounted to an improper acceptance of nomination within the meaning of section 100(1)(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 section	 (2)(c) of section 100 and not under sub section (1)(c) thereof This Court accepted the contention and in that context defined the import of " improper acceptance " within the meaning of section 100(1)(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 298 of these things happened	 the acceptance of the nomination by the Returning Officer must 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. Mr. 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 proceeding		 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 section 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 statutory 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 section 33(3) of the Act. In support of this contention reliance is placed upon another decision of this Court in Veluswami vs 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 Govern ment aided school	 and therefore be was disqualified under section 7	 cls. (d) and (e) of the Act. The Returning (1) ; 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 section 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 section 36 is summary in character. He may make " such summary enquiry	 if any	 as he thinks necessary "; be can act suo motu. Such being the nature of the enquiry	 the right which is given to a party under section 100(1)(c) and section 100(1)(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 vs 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." (1) [1955] 1 S.C.R. 267. 300 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 in 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 27 of 1956. Section 83(3) of the Act before the amendment corresponds to section 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 had committed corrupt practices	 the material 301 allegations being	 (i) that the appellants " could in the furtherance of their election enlist the support of certain Government servants "	 and (ii) that the appellant No. 1 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 for 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 declared their election void under section 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 section 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 considered 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 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 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 39 302 by the amendment	 namely	 that two village Headmen section worked for the appellants and later on became their polling agents	 so 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 construction of section 83	 sub sections (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 period 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	 Civil Procedure Code to the proceedings before the Tribunal is not excluded by section 83(3). " It was contended for the appellant in that case that even if section 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 section 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 303 raised beyond the time of limitation prescribed by section 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 doubt 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 jurisdiction of the court to grant it in exceptional circum stances as laid down in Charan Das vs Amir Khan (1). But this is to ignore the restriction imposed by section 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 section 81 and r. 119 must contravene those provisions and is	 in consequence	 beyond the ambit of authority conferred by section 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 the argument. We 	are bound by this decision	 (1) (1920) L.R. 47 I.A. 255. 304 As this stage	 we must guard against one possible misapprehension. Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations	 and undue emphasis on technicalities or enlarging their scope would cramp their powers	 diminish their effectiveness and defeat the very purpose for which they are constituted. We 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 the 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 observed	 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 the matter and not the form. " The foregoing discussion yelds the following results: (1) Sub cls. (i) and (iv ) of section 100(11)(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 acceptance	 it is open to the petitioner to question the validity of the election under section 100(1)(d)(iv) on other grounds	 namely	 that the candidate whose nomination was accepted was not qualified 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 section 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 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 accrued 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)	 (b) 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 aid 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 candidate 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 nomination paper by the Returning Officer i.e.	 the ground 306 covered by section 100(1)(d)(i) of the Act. The reason for sustaining the said ground is stated to be that	 having been dismissed from Government service	 he did not obtain a certificate in the prescribed manner from the Election Commission. Ex facie this sub paragraph does not refer to section 33(3) or to the contents of that sub section. 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 dis loyalty to the State: vide section 33(3); and (ii) the candidate has been disqualified for being chosen as a member of Parliament: vide section 9(3). In this subparagraph 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 must 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 "	 indicate 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 section 100(1)(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 section 33(3) of the Act. Subparagraphs (e)	 (f) and (g) relate to the objections 307 which are not material for the present inquiry. Sub paragraph (h) contains a general statement that the appellant was disqualified to be chosen to fill the parli mentary seat. Sub paragraph (i) specifically refers to section 9(3) of the Act. We are not also concerned with the allegations in sub para (j). The foregoing analysis of the allegations in the petition so far as they are relevant to the question raised	 discloses the following two circumstances : (i) the ground taken in the petition was that there was an improper acceptance of the nomination covered by section 100(1)(d)(i) for the reason that the appellant	 having been dismissed from Government service	 did not obtain a certificate in the prescribed manner; and (ii) there was no ground which would fall under sub cl. (iv) of section 100(1)(d) of the Act. viz.	 that the appellant was not to be deemed to be duly nominated as a candidate as his nomination paper was not accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he had not been dismissed for corruption or disloyalty to the State. In the application for amendment which was filed after the prescribed period of limitation	 two amendments were asked for one to sub para (i) of para 5 and the other to sub para (d) thereof. The former was for substituting the figure " 33 " for the figure " 9 " and the latter to introduce a statement in that paragraph to the effect that the nomination paper was not accompanied by the prescribed certificate. The subsequent petition	 as we have already noticed	 sought for the same amendment to para (5)(d) in an abbreviated form. But what is important to notice is that even the proposed amendment sought to bring in the said statement under the ground of "improper acceptance" and not under section 100(1)(d)(i) of the Act. The appellant filed a counter affidavit opposing both the amendments. The Tribunal noticed the judgment of this Court and applied the principles laid down therein to the facts before it. It also considered in detail the allegations in the petition and arrived at the following findings: (i) " All what has been urged throughout is that the respondent was a Government servant or a 308 dismissed Government servant and no certificate having been obtained from the Election Commission about his dismissal not being for corruption or disloyalty	 he was not eligible for election as a candidate to the House of the People "	 and (ii) sub section (3) of section 33 which is a provision laying down a certain procedure was never in the mind of the petitioner while the petition was being drafted or prepared	 and that is why we find no reference to the certificate not being filed with the nomination paper." He concludes his discussion thus : "It would thus be seen that the amendment sought by the petitioner offends against the conditions laid down by their lordships of the Supreme Court in Harish Chandra Bajpai vs Triloki Singh (1) relating to the application of Order VI	 rule 17 of the Civil Procedure Code to proceedings before an Elettion Tribunal. It has been specifically laid down that an amendment will not be allowed if the effect of it be to permit a new ground or charge to be raised or to so alter its character as to make it in substance a new petition. That would exactly be the effect of the amendment sought by the petitioner It will be seen	 therefore	 that the Tribunal has put before itself the correct principles governing its powers of amendment and found	 on a construction of the allegations in the petition	 that by the proposed amendment	 the respondent was seeking to introduce a new ground after the period of limitation. This order was made by the Tribunal in the exercise of its discretion in strict conformity with the principles laid down by this Court. The next question is whether the High Court was justified in setting aside that order. It was argued before the High Court that the amendment application was wrongly refused and that even as the election petition stood without the amendment it contained sufficient averment of facts to make out a ground under section 100(1)(d)(i) of the Act	 and in the alternative that it made out a ground under section 100(1)(d)(iv) of the (1) (1957) S.C.R.370. 309 Act. Before the High Court the learned Counsel for the respondent withdrew his prayer for the amendment of sub para(1) of para 5 of the election petition; with the result the only paragraph on which reliance was placed by the respondent was sub para (d) of para 5. The High Court also noticed the judgment of this Court in Harish Chandra Bajpai 's Case (1) and posed the following question for its decision: " The important thing is whether in substance the petition contains the particular ground of attack or not. " It proceeded to consider whether the original subpara (d) of para 5 contained any ground and if so	 what?: and whether a new ground was sought to be raised in the garb of an amendment. After reading the said sub para	 it expressed the view that the ground	 in its opinion	 would fall under section 100(1)(d)(i) of the Act; and that conclusion was based on the allegations in the said sub para that there was an improper acceptance of the nomination and that the appellant had not obtained the necessary certificate from the Election Commission. It has stated that in the circumstances of the case the respondent meant to state that	 as the certificate had not been obtained	 it could not have accompanied the nomination paper. The learned Judges of the High Court concluded their discussion thus: " We also think that the Tribunal should have permitted the amendment because the ground of attack had been clearly made out and the only mistake committed by the appellant was not to put it in proper words	 In short, the view of the High Court was that sub. para (d) contained the ground under section 100(1)(d)(i) of the Act and what was asked for by way of amendment was only a clarification of that ground. The High Court, in our view, has missed the real point raised before it. We have already pointed out that, in view of the judgment of this Court in Durga Shankar Mehta 's Case (2)there was no improper (1) ; (2) (1955) 1 S.C.R. 267. 40 310 acceptance of the nomination paper by the Returning Officer. for, the nomination paper ex facie did ' not disclose any defect or disqualification. The petition for amendment asked for inserting a statement in sub para (d) of para 5 under the ground of improper acceptance of the nomination paper, viz., that the prescribed certificate did not accompany the nomination paper of the candidate, and that at the appellate stage the other proposed amendment based upon section 33(3) of the Act was given up. The result was that no relief for raising the ground under section 100(1)(d)(iv) had survived and that the ground under section 100(1)(d)(i) was not open to the respondent. In the circumstances, the amendment would be foreign to the scope of the enquiry under the ground governed by section 100(1 )(d)(i) of the Act. That apart, could it be said that the High Court was justified in the circumstances of this case to interfere with the discretion of the Tribunal ? An appellate Court has no doubt an unquestioned right to review or modify the order made by a subordinate Court; but it is undesirable to do so when the subordinate Court made an order in the exercise of its discretion without exceeding the limits of its power, unless it acted perversely or unless the view taken by it is clearly wrong. In this case, the Election Tribunal neither exceeded its powers nor acted perversely; and indeed its order advanced the cause of justice in that it helped to maintain the election of a candidate who was duly qualified and who secured a large majority of votes over all the rival candidates. We have carefully considered the 'reasons set out in the judgment of the High Court in support of its decision that the amendment should have been allowed by the Tribunal, and in our opinion the said reasons are unsatisfactory and on some points farfetched. In the circumstances, we do not see any justification, after the entire petition was disposed of, for the High Court to interfere with the said discretion. We therefore set aside the order of the High Court. It is represented to us by the learned counsel for the appellant that in the High Court the only 311 point argued was that the amendment should have been allowed and no other point was pressed. The learned counsel for the respondent does not accept this position. In the circumstances, we have no other option but to remand the case to the High Court for disposal in accordance with law. The respondent will pay the costs to the appellant. Appeal allowed. 
46	N: Criminal Appeals Nos. 45 to 49 of 1951. Appeals from the judgments and orders dated 20th August, 1951, of the High Court of Judicature at Simla (Bhandari and Soni 33.) in Criminal Writ 'Cases Nos. 46 to 50 of 1951. Jai Gopal Sethi (R. L. Kohli and Sri Ramkumar, with him) for the appellants in Cr. Appeals Nos. 45 and 49. 20 N.C. Chatterjoe (Hardyal Hardy and R.L. Kohli with him) for the appellant in Cr. Appeal No. 46. Hardyal Hardy for the appellant in Cr. Appeal No. 48. S.M. S.M. Sikri, Advocate General of the Punjab (N. section Doabia. with him) for the respondent in all the appeals. M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the Intervener in Cr. Appeal No. 45. October 4. The Judgment of the Court was delivered by KANIA C.J. These are five companion appeals from the judgments of the High Court of East Punjab and the principal point argued before us is as to the legality of the deten tion of the appellants under the Preventive Detention Act on the ground that they are engaged in black marketing in cotton piecegoods. The Jullundur Wholesale Cloth Syndicate was formed to work out the distribution of cloth under the Government of Punjab Control (Cloth) Order passed under the Essential Supplies Act. Certain persons who held licences as whole sale dealers in cloth formed themselves into a corporation and all cloth controlled by the Government was distributed in the district to the retail quota holders through them. The Government allotted quotas to the retailers and orders were issued by the Government for giving each retailer certain bales under the distribution control. If some of the retail licence holders did not take delivery of the quotas allotted to them under the Notification of the 4th of October, 1950, issued by the Government of India, Department of Industries and Supplies, it was, inter alia, provided that the wholesale syndicate may give the bales not so lifted to another retail dealer. It may be noted that all along the price for the cloth to be sold wholesale and retail had been fixed under Government orders. The Syndi cate was suspected to be dealing in black market and had been warned against its activities by the District Magis trate of Jullundur several times. On the 7th of June, 1951, 21 an order was issued by the District Organiser, Civil Sup plies and Rationing, Jullundur, to the managing agents of the wholesale cloth corporation, Jullundur City, intimating that they were strictly forbidden to dispose of any uplifted stock against unexpired terms without his prior permission in writing. They were further directed that thenceforth no such stock would be allowed to be sold to an individual retailer, but permission would be granted to sell the same to associations of retailers only. It was stated that this letter was not in accordance with clause 5 of the Notifica tion of the Government of India dated the 4th October, 1950, which authorized the wholesale syndicate to be at liberty to sell uplifted cloth to any other retailer or an association of retail dealers of the same district. It may be further noted that the Cotton Cloth Control Order was in operation even prior to 1950. For some time control on the distribu tion of cloth was lifted but the price remained under the control of the Government. During that time it has been alleged that the appellants and several others sold cloth at rates higher than those fixed by the Government. Even when the distribution and price were both controlled, the manu facturing mills were allowed to sell at prices fixed by the Government a certain percentage of cloth which was not taken by the Government under its control. This was described as free sale cloth and it was alleged that the appellants and several others were doing black marketing in this free sale cloth. By an order passed by the District Magistrate on 19th June, 1951, he directed that the appellants be detained under section 3 (2) of the Preventive Detention Act to prevent them from acting in a manner prejudicial to the maintenance of supplies of cloth, essential to the communi ty. On the 2nd July, 1951, the District Magistrate, Jullun dur, directed that the appellants be committed to District Jail, Jullundur, from the 2nd July until the 1st October, 1951. The appellants were detained accordingly. The grounds for their detention were given to them on the morn ing of the 6th July. The grounds set out the activities of 22 the appellants as managing agents or partners in different firms or employees of the said firms or corporations. It was stated ,that they had been disposing of most of the stocks of cloth received for the Jullundur District in the black market at exhorbitant rates from June, 1949, to Octo ber, 1950, during the period when control on distribution was removed and that even after the reimposition of that control in October, 1950, they disposed of cloth which has been frozen under the directions of Director of Civil Sup plies in the short interval between the passing of the order and its service on them. The second ground was in respect of their individual activities as members of the firm in which they were partners in disposing of stocks of cloth in black market at rates higher than the controlled ones, to various dealers, through agents. The particulars were speci fied in Appendix 'A '. They refer to the free sale cloth. In the third ground it was alleged that ' by illegal means they deprived the rightful claimants of the various stocks of cloth with a view to pass the same into black market at exorbitant rates. We do not think it necessary to go into greater details of these grounds or refer to the other grounds. On the 9th of July, 1951, petitions under article 226 of the Constitution of India were filed in the East Punjab High Court asking for writs of habeas corpus against the State on the ground that the detention of the appellants under the Preventive Detention Act was illegal. The District Magis trate filed his affidavit in reply challenging the allega tion of mala fides and setting out in some detail instances of the activities of the appellants and contended that on the reports received by him he was satisfied that the deten tion of the appellants was necessary. Early in August, 1951, the executive authorities cancelled the licence of the appellants as cloth dealers. The High Court dismissed the petitions and the petitioners have come on appeal to us. Section 3 of the , pro vides that the Central Government or the State Government may, if satisfied with respect to any person that 23 with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained. The power to act in accordance with the terms of this provision was given by section 3 (2) to a District Magistrate. Such Magistrate however was required to make a report to the State Govern ment to which he was subordinate about the order and also to send the grounds on which the order had been made and such other particulars as, in his opinion, had a bearing on the necessity of the order. It is not disputed that an order under section 3 (2) of the to prevent black marketing can be passed by the District Magistrate. On behalf of the appellants it is contended that in the grounds for their detention reference is made to their activities prior to June, 1951, only. This cannot be considered objectionable because having regard to those activities it is alleged that the satisfaction required under the section had arisen. It was next argued that such loophole as existed in the total control of distribution and ' sale and price of piecegoods in the district was sealed by the order of the District Orga niser dated the 7th June, 1951. By virtue of that order the syndicate or corporation could not sell any cloth without an express order in writing from the District Organiser, and therefore there could be no black marketing after that date by any of the appellants and the order was therefore unjus tified. It was next contended that in any event now as their licences are cancelled they cannot deal in cloth and the order of detention now maintained against them is more in the nature of punishment than prevention. It was argued that orders under the were for the purpose of preventing a person from acting in future in the objectionable way contemplated by the Act and it was beyond the scope of the Act to pass orders in respect of their alleged activities anterior to June, 1951. In our opinion the High Court approached the matter quite correctly. Instances of past activities are relevant 24 to be considered in giving rise to the subjective mental conviction of the District Magistrate that the appellants were likely to indulge in objectionable activities. The grounds which were given for the detention are relevant and the question whether they are sufficient or not is not for the decision of the Court. The Legislature has made only the subjective satisfaction of the authority making the order essential for passing the order. The contention that because in the Amending Act of 1951 an Advisory Board is constitut ed, which can supervise and override the decision taken by the executive authority, and therefore the question whether the grounds are sufficient to give rise to the satisfaction has become a justifiable issue in Court, is clearly unsound. The satisfaction for making the initial order is and has always been under the , that of the authority making the order. Because the Amending Act of 1951 establishes a supervisory authority, that discretion and subjective test is not taken away and by the establish ment of the Advisory Board, in our opinion, the Court is not given the jurisdiction to decide whether the subjective decision of the authority making the order was right or not. Proceeding on the footing, therefore, that the jurisdiction to decide whether the appellants should be detained under the on the grounds conveyed to the appellants is of the District Magistrate. In the present cases, two arguments were advanced on behalf of the appel lants. It was strenuously urged that by reason of the order of the District Organiser of the 7th June, 1951, the only loophole which remained in the scheme of distribution and sale of cloth under control of the Government was sealed and it was impossible after that order to do any blackmarketing by any of the appellants. We are unable to accept this contention. In the first place, this order appears to be an administrative order and is in the nature of a warning. It is at variance with the provisions of clause 5 of the Order of the Central Government of the 4th October, 1950. Moreover this order does not bring about the result claimed for it. A lot 25 of cloth which the manufacturers are permitted to distribute through persons outside the Government agencies can still be secured and sold at exhorbitant rates, i.e., at rates higher than those fixed by the Government. The second argument was that as the licences of the appellants are now cancelled they cannot deal in textile cloth at all and therefore there can be no apprehension of their indulging in black market activities. We are unable to accept this argument also because it is common knowledge that licences can be obtained in the name of nominees. Again while these people may not have their licences in Jullundur District they may have or may obtain licences in other districts. From the fact that their licences have been cancelled a month after the order of detention was passed we are unable to hold that it is impossible on that ground for the appellants to indulge in black market activities. In this connection an extract from the further affidavit of the District Magistrate of Jullun dur dated 1st August, 1951, may be usefully noticed. He stated: There have been orders for the release of certain stocks of cloth in respect of other mills	 as free sale cloth after the 9th June	 1951. Any quantity of cloth not paid for and lifted by the owners ' nominees will revert to the Mills for free sale: vide letter No. CYC 2/ SLM	 dated the 31st May	 1951	 from the Textile Commissioner	 Bombay	 to all selected Mills in Bombay and Ahmedabad. This cloth can be purchased by any wholesale dealer of cloth of India	 without any restriction. Not only this	 free sale cloth can be transported from one district to another without a per mit: vide Memo No. 28894 CS (C) 50/48791	 dated 2nd January	 1951	 from the Joint Director	 Civil Supplies	 and Under Secretary to Government Punjab to the District Organiser	 Civil Supplies and Rationing	 Ludhiana. Again free sale cloth is also procurable from individual firms who conspired to make profit by black marketing. The only information which is supplied by a purchaser of wholesale cloth to the District Magistrate is as to what quantity of such cloth has been imported 4 26 into the district. According to the report of the District Organiser no such cloth was imported into Jullundur by the corporation but there are reasons to believe that the Corpo ration had been making their purchases in free sale cloth from the Mills and using those bales to make up the defi ciency in the bales of quota cloth of superior quality which they used to dispose of in the black market in collusion with the Mills. Besides	 the firm Rattan Chand Mathra Dass	 as would be evident from the attached lists signed by the District Organiser	 had been dealing in free sale cloth and had also been importing cloth as Reserve of Kangra and also Provincial Reserve. Most of this quota also found its way into the black market. Similarly the firm Madan Gopal Nand Lall and Company had been dealing in free sale cloth on a large scale. It would be evident from the attached list. Santi Sarup	 the Secretary of the Corporation	 is believed to be a partner in the firm Hari Chand Bindra Ban and this firm also had been dealing in free sale cloth. The free sale cloth acquired by them used to be invariably sold in the black market as reported by the District Organiser in his Memo No. 6306/6734 M/CT/Do. 7 dated 1st August	 1950	 in reply to my Memo. No. nil dated 30th July	 1951. There is absolutely no bar for the wholesale cloth corporation	 Jullundur	 to its getting free sale cloth from the Mills or other wholesale dealers nor is there any bar for the firms Rattan Chand Mathra Dass and Madan Gopal Nand Lal and Co. to the acquiring of free sale cloth. " It was next argued on behalf of the appellants that the only order of detention made against them was the order of the 2nd July and that did not refer to any section of the and did not suggest that there was any satisfaction of the detaining authority. It was argued that no order of the 19th of June was ever shown to any of the appellants or served on them and therefore their deten tion was illegal. It should be pointed out that these con tentionsare raised in the affidavits not of the detained persons	 but of their relations. Their affidavits do not show that they have any personal knowledge. The affidavits 27 on this point are based only on their belief and information and the source of the information is not even disclosed. As against this	 there is the affidavit of the District Magis trate which expressly states that the terms of the Order of the 19th of June were fully explained to each of the dete nus. The petitions for the writs of habeas corpus were filed within a week after the service of the detention order and we do not think there is any reason to doubt the cor rectness of the statements of the District Magistrate. In our opinion this ground of attack on the order of detention has no substance and the detention cannot be held illegal on that ground. The judgment of the High Court was attacked on these grounds and as we are unable to accept any of these contentions the appeals must fail. One of the appellants is the secretary of one corpora tion and another is a salesman and clerk in one of the firms. On their behalf it was urged that they could not indulge in black market activities. We are unable to accept this contention in view of what is stated in the affidavits of the District Magistrate. It is there pointed out that in addition to being a secretary or a clerk and in those capac ities actively participating in the black market activities of their principals	 they were themselves indulging in black market activities in cloth. If these and other facts in respect of the appellants are disputed the matter will be considered by the Advisory Board. The question of the truth of those statements however is not within the jurisdiction of this Court to decide. As all the grounds urged against the judgment of the High Court fail	 all the five appeals are dismissed. Appeals dismissed. Agent for the appellants in all the appeals: R.S. Naru la. Agent for the respondent and Intervener: P.A. Mehta.

Summary:
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 290 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 new ground and consequently it set aside tile order of the Tribunal and directed a retrial of the issue involving. The appellant obtained special leave and appealed. Held	 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 by section 100(1)(d)(1) of the Representation of the People Act	 1951. 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 section 100(1)(d)(iv) for non compliance with the Provisions of section 33(3) of the Act	 the amendment was foreign to the scope of the	 enquiry under the ground covered by section 100(1)(d)(1). Durga Shankar Mehta vs Thakur Raghuraj Singh	 [1955] 1 S.C.R. 267 and Harish Chandra Bajpai vs Triloki Singh ; 	 followed. Veluswami vs Raja Nainay	 ; 	 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.