Full Judgment Text
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PETITIONER:
DINABANDHU SAHU
Vs.
RESPONDENT:
JADUMONI MANGARAJ AND OTHERS.
DATE OF JUDGMENT:
25/04/1954
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
BOSE, VIVIAN
BHAGWATI, NATWARLAL H.
CITATION:
1954 AIR 411 1955 SCR 140
CITATOR INFO :
F 1955 SC 610 (4)
R 1957 SC 397 (30)
R 1959 SC 459 (50)
F 1968 SC 22 (4)
RF 1986 SC 441 (4)
ACT:
Constitution of India-Article 136-Supreme Court-If and
when can interfere with findings of facts in appeal-
Representation of the People Act (XLIII of 1951), ss. 85,
90(4)-Requisites and finality of condonation of delay under
s. 85 and powers conferred thereunder-Scope and extent of
powers given to an Election Tribunal under s. 90(4).
HEADNOTE:
Held, that the Supreme Court does not, when hearing
appeals under Article 136 of the Constitution, sit as a
Court of further appeal on facts, and does not interfere
with findings given on a consideration of evidence, unless
they are perverse or based on no evidence and this is
particularly so when the findings under challenge are those
of Election Tribunals.
The rights under litigation in election proceedings are not
common law rights but rights which owe their existence to
statutes and the extent of those rights must be determined
by reference to the statutes which create them.
The proviso to section 85 of the Representation of the
People Act, 1951, does not contemplate the Election
Commission giving to the respondent notice of the petition
for condonation of the delay, or the holding of an enquiry
as to the sufficiency of the grounds in his presence before
passing an order under it. The policy underlying the
provision is to treat the question of delay as one between
the Election Commission and the petitioner, and to make the
decision of the Election Commission on the question final
and not open to question at any later stage of the
proceedings.
Under section 90(4) of the Act, when the petition does not
comply with the requirements of section 81, section 83 or
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section 117, the Election Tribunal has a discretion either
to dismiss it or not, "notwithstanding anything contained in
section 85". The scope of the power conferred on the
Election Tribunal under section 90(4) is that it overrides
the power conferred on the Election Commission under section
86 to dismiss the petition. It does not extend further and
include a power in the Election Tribunal to review any order
passed by the Election Commission under section 85 of the
Act. The words of section 90(4) are, "notwithstanding
anything contained in section 85" and not "notwithstanding
anything contained in section 85 or any order passed
thereunder". An order of the Election Commission under
section 85 dismissing a petition as barred will, under the
scheme of the Act, be final, and the same result must follow
under section 90(4) when the order is one excusing the
delay. Section 90(4) will be attracted only when the
Election Commission passes the petition on to the Tribunal
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without passing any order under section 85. If the Election
Commission can thus pass a final order condoning delay
without notice to the respondent, there is no reason why it
should not pass such an order suo motu. In this respect,
the position under the proviso to section 85 is materially
different from that under section 5 of the Limitation Act,
under which an order excusing delay is not final and is
liable to be questioned by the respondent at a later stage.
The proviso advisedly confers on the Election Commission
wide discretion in the matter, and the obvious intention of
the Legislature was that is should be exercised with a view
to do justice to all the parties. The Election Commission
might therefore be trusted to pass the appropriate order
when there is avoidable and unreasonable delay. That a
power might be liable to be abused is no ground for denying
it, when the statute confers it, and where there is an abuse
of power by statutory bodies the parties aggrieved are not
without remedies under the law.
While the proviso to section 85 requires that "the person
making the petition" should satisfy the Election Commission
that there was sufficient cause for delay, it does not
require that he should do so in person.
Jagan Nath v. Jaswant Singh ([1954] S.C.R. 892); Krishnasami
Ranikondar v. Ramsami Cheitiar (45I.A. 25); Krishna v.
Chathappan (I.L ’R. 13 Mad. 269) referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of
1954.
Appeal by Special Leave granted by the Supreme Court of
India by its Order dated the 11th December, 1953, from the
Judgment and Order dated the 16th November, 1953, of the
Election Tribunal, Cuttack, in Election Case No. 4 of 1952.
K. S. K. Iyengar, ( V. N. Sethi, B. K. P. Sinha,
S. B. Jathar and S. S. Shukla, with him) for the
appellant.
S. P. Sinha, (R. Patnaik and R. C. Prasad, with him) for
respondent No. 1.
J. N. Bannerji, (R. Patnaik and Ratnaparkhi Anant Govind,
with him) for respondent No. 2.
1954. April 25. The Judgment of the Court was delivered by
VENKATARAMA AYYAR J.-This is an appeal by special leave
against the order of the Election Tribunal, Cuttack, setting
aside the election of the appellant to the Legislative
Assembly, Orissa, from the Kendrapara
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Constituency. Four persons, the appellant and respondents
Nos. 1 to 3, were duly nominated for election to the seat.
One of them, Loknath Das (the third respondent herein),
withdrew his candidature, leaving the contest to the other
three. At the election which was held between 9th and 15th
January, 1952, the appellant secured the largest number of
votes and was declared elected. The respondent Jadumoni
Mangaraj, then presented a petition under section 81 of the
Representation of the people (Act No. XLIII of 1951)
alleging various corrupt practices on the part of the
appellant, and praying that at the election might be set
aside. The last date for presenting the petition was 4th
April, 1952. It was delivered at the post office at Cuttack
on 3rd April, 1952, for being sent by registered post, and
actually reached the Election Commission at Delhi on 5th
April, 1952, a day beyond the period prescribed. It was
also defective in its verification. Section 83(1) of the
Act enacts that the petition should be verified in the
manner laid down in the Civil Procedure Code for the
verification of the pleadings. Order VI, rule 15, sub-
clause (2), of the Civil Procedure Code provides that "the
person verifying shall specify by reference to the numbered
paragraphs of the pleading what he verifies on his own
knowledge and what he verifies upon information received and
believed to be true." The verification in the petition did
not specify which of the paragraphs were verified on
personal knowledge and which on information received and
believed to be true. On 2nd July, 1952, the Election
Commission passed an order condoning the delay in the
presentation of the petition. By another communication,
dated 3rd July, 1952, it drew the attention of the peti-
tioner to the defect in the verification, and suggested that
he might apply to the Tribunal for amending it. On 15th
July, 1952 an order was passed under section 86 of the Act
appointing the Election Tribunal, Cuttack, for the hearing
of the petition. The petitioner then applied to the
Election Tribunal for amending the verification. That was
ordered, and the verification was amended on 24th July,
1952, so as to conform to the prescriptions laid down in
Order VI, rule 15(2), of the Civil Procedure Code.
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In the written statement filed by the appellant, he raised
the contention that as the petition was presented out of
time and as the verification was defective, it was liable to
be dismissed by the Election Commission under section 85 of
the Act, and that, in consequence, the Election Tribunal
ought to dismiss it as not maintainable. Disagreeing with
this contention, the Election Tribunal proceeded to hear the
petition on the merits, and by its judgment dated 16th
November, 1953, it held by a majority that three of the
corrupt practices set out in the petition had been
established against the appellant. They were (1) that the
appellant had, in violation of section 123(1) of the Act,
induced the third respondent to withdraw from the election
on a promise to get him employment; (2) that he had, in
breach of section 123(6) of the Act, used Bus No. O.R.C.
1545 for convoying the electors to polling booths; and (3)
that he had, in contravention of section 123(8) of the Act,
obtained the assistance of Extra Departmental Agents in
branch post offices and of Presidents of Choukidari Union in
canvassing for him in the election, they being in the view
of the ’Election Tribunal, Government servants as defined in
that provision. On these findings, the Election Tribunal
passed an order setting aside the election of the appellant.
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The matter now comes before us on special leave under
article 136 of the Constitution.
It is obvious that any one of these findings, if accepted,
would be sufficient to support the order of the Election
Tribunal. With reference to the last of the findings, it is
possible to urge with some force that Extra Departmental
Agents and Presidents of Chaukidari Union are not, having
regard to their functions, Government servants, and that
accordingly there was no contravention of section 123(8).
But the position is different as regards the other two
findings. They are pure questions of fact, depending on
appreciation of evidence. Mr. Krishnaswami Ayyangar,
learned counsel for the appellant, argued that the
conclusion of the majority were not justified by the
evidence or record, and that the findings of the third
member in his dissentient opinion were the right ones to
come to
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But this Court does not, when hearing appeals under article
136, sit as a Court of further appeal on facts, and does not
interfere with findings given on a consideration of the
evidence, unless they are perverse or based on no evidence.
This is particularly so, when the findings under challenge
are those of Election Tribunals. the findings in this case
that the appellant got the third respondent to withdraw on a
promise to get him employment, and had used Bus No. O.R.C.
1545 for conveying voters to the polling booths, are
supported by the evidence, and cannot be characterised as
perverse, and are therefore not open to attack in this
appeal.
in this view, counsel for the appellant concentrated on the
issues relating to the maintainability of the petition. He
contended that as the petition was not presented within the
time as required by section 81 of the Act, it was liable to
be dismissed under the mandatory provision in section 85,
and that when the matter came before the Election Tribunal,
its jurisdiction was only to pass the order which the
Election Commission ought to have passed, and that the
petition should accordingly have been dismissed in limine us
not maintainable. The proviso to section 85 of the Act runs
as follows:
"Provided that if a person making the petition satisfies the
Election Commission that sufficient cause existed for his
failure to present the petition within the period prescribed
therefor, the Election Commission may in its discretion
condone such failure."
It was in exercise of the discretion vested in it under this
provision that the Election Commission condoned the delay by
its order dated 2nd July, 1952. It is not disputed that if
this order is valid, there can be no question of dismissing
the petition on the ground of delay. The contention of Mr.
Krishnaswami Ayyangar is that the order is not valid,
because it was passed not on any application of the party
praying that the delay might be excused but suo motu; and
such an application, it is contended, is a condition to the
exercise of jurisdiction under that proviso, Support for
this
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contention was sought in the decisions under section 5 of
the Limitation Act, holding that it was incumbent, on the
party praying that delay might be excused under that section
to clearly allege and strictly prove the grounds therefor,
We are not impressed by this contention. As was pointed,
out by this Court in Jagan Nath v. Jaswant Singh(1), the
rights under litigation in these proceedings are not common
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law rights but rights which owe their existence to statutes,
and the extent of those rights must be determined by
reference to the statutes which create them. The proviso to
section 85 does not contemplate the Election Commission
giving to the respondent notice of the petition for con-
donation of the delay, or the holding of an enquiry as to
the sufficiency of the grounds in his presence before
passing an order under it. The policy underlying the
provision is to treat the question of delay as ’one between
the Election Commission and the petitioner, and to make the
decision of the Election Commission on the question final
and not open to question at any later stage of the
proceedings. Under section 90(4) of the Act, when the
petition does not comply with the requirements of section
81, section 83 or section 117, the Election Tribunal has a
discretion either to dismiss it or not, " notwithstanding
anything contained in section 85." The scope of the power
conferred on the Election Tribunal under section 90(4) is
that it overrides the power conferred on the Election
Commission under section 85 to dismiss the petition. It
does not extend further and include a power in the Election
Tribunal to review any order passed by the Election
Commission under section 85 of the Act. The words of
section 90(4) are, it should be marked, "notwithstanding
anything contained is section 85 " and not "notwithstanding
anything contained in section 85 or any order passed
thereunder." An order of the Election Commission under
section 85 dismissing a petition as barred will-,, under the
scheme of the Act, be final, and the same result must follow
under section 90(4) when the order is one excusing the
delay. Section 90(4) will be attracted only when the
Election Commission passes the petition
(1) A.I.R. 1954 S.C. 210
19
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on to the Tribunal without passing any order under section
85. If the Election Commission can thus pass a final order
condoning delay without notice to the respondent, there is
no reason why it should not pass such an order suo motu. In
this respect, the position under the proviso to section 85
is materially different from that under section 5 of the
Limitation Act, under which an order excusing delay is not
final, and is liable to be questioned by the respondent at a
later stage. [ Vide the decision of the Privy Council in
Krishnasami Panikondar v. Ramasami Chettiar(1)].
It was argued that in this view the respondent would be
without remedy even if the Election Commission should choose
to condone delays-it might be of years-, and that that would
result in great hardship. But the proviso advisedly confers
on the Election Commission wide discretion in the matter,
and the obvious intention of the Legislature was that it
should be exercised with a view to do justice to all the
parties. The Election Commission might therefore be trusted
to pass the appropriate order when there is avoidable and
unreasonable delay. That a power might be liable to be
abused is no ground for denying it, when the statute confers
it, and where there is an abuse of power by statutory
bodies, the parties aggrieved are not without ample remedies
under the law. With particular reference to the order dated
2nd July, 1952, it is difficult to come to any conclusion
other than that in passing that order the discretion under
the proviso to section 85 has been properly exercised. The
petition had been presented at the post office one day
earlier, and reached the Election Commission one day later
than the due date. Even if the matter had to be judged
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under section 5 of the Limitation Act, it would have been a
proper exercise of the power under that section to have
excused the delay. As was observed in the Full Bench
,decision in Krishna v. Chathappan(2), in a passage which
has become classic, the words "Sufficient cause" should
receive "a liberal construction so as to advance substantial
justice when no negligence nor inaction nor want of bona
fides is imputable to the appellant." We
(1) 45 I.A. 25.
(2) I.L.R. 13 Mad. 269,
147
have, therefore, no hesitation in holding that the order
dated 2nd July, 1952, is on the facts a proper one to pass
under the proviso to section 85.
It wag also argued for the appellant that the power
conferred by the proviso to section 85 could, on its true
construction, be exercised only when the petitioner moved
the matter in person, and as the Election Tribunal had found
that that was not done, there was no jurisdiction in the
Election Commission to pass the order which it did. We do
not see anything in the language of the section to support
this contention. While the proviso requires that "the
person making the petition " should satisfy the Election
Commission that there was sufficient cause for delay, it
does not require that he should do so in person. And there
is. nothing in the character of the proceedings requiring
that the petitioner should make the representations under
that proviso in person. It is only a question of satisfying
the Election Commission that there was sufficient ground for
excusing the delay, and that could be done otherwise than by
the personal appearance of the petitioner. None of the
objections advanced against the validity of the order dated
2nd July, 1952, being tenable, the contention that the
petition was liable to be dismissed under section 85 as
presented out of time must be rejected.
There is another ground on which also the contention of the
appellant that the petition is not maintainable should fail.
When the election petition came before the Election Tribunal
by virtue of the order under section 86 of the Act, the
appellant moved for its dismissal under section 90(4) on the
grounds, firstly that it was not presented within the time
prescribed by section 81, and secondly, that it was not
verified in accordance with section 83; but the Election
Tribunal declined to do so. If it was within the competence
of the Election Tribunal to pass such an order, that would
itself furnish a complete answer to the contention of the
appellant that the petition was not maintainable. Mr.
Krishnaswami Ayyangar sought to get over this difficulty by
contending that the order of the Election Commission sending
the petition for hearing by the
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Election Tribunal under section 86 of the Act, was without
jurisdiction, because an order under that section could be
passed only when the petition is not liable to be dismissed
under section 85 as when the requirements of sections 81, 83
or 117 are complied with ; but that when those provisions
are not complied with, its only power under that Act was to
dismiss it under section 85; that, in consequence, the
Election Tribunal acquired no jurisdiction to hear the
petition by virtue of that order, and that all the
proceedings taken under it culminating in the order now
under appeal were a nullity. This contention is, in our
judgment, wholly untenable. The jurisdiction to pass an
order under section 86 arises "if the petition is not
dismissed under section 85." That has reference to the
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factual position whether the the petition was, in fact,
dismissed under section 85 and not to the legal position
whether it was liable to be dismissed. That is the plain
meaning of the words of the section, and that is made
plainer by section 90(4) which provides that,
Not withstanding anything contained in section 85, the
Tribunal may dismiss an election petition which does not
comply with the provisions of section 81, section 83 or
section 117."
This provision clearly contemplates that petitions which are
liable to be dismissed for non-compliance with sections 81,
83 or 117 might not have been so dismissed, and provides
that when such petitions come before the Election Tribunal,
it is a matter of discretion with it to dismiss them or not.
The power of the Election Tribunal to condone delay in
presentation or defective verification is thus unaffected by
the consideration whether that petition was liable to be
dismissed by the Election Commission under section 85. The
effect of an order under section 90(4) declining to dismiss
the petition on the ground of delay or defective
verification is clearly to condone those defects.
In the instant case, with reference to the, plea of limi-
tation the position stands thus: The delay was condoned by
the Election Commission under the proviso to section 85, and
by reason of, that order, the question
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is,as already held no longer open to consideration at any
later stage. Even assuming for the sake of argument that
the Election Commission had no jurisdiction to pass an order
of condonation suo motu, and further accepting the finding
of the Election Commission that the order dated 2nd July,
1952, was so made, and that it was therefore a nullity, when
the matter came before the Election Tribunal by transfer
under section 86, it had jurisdiction to pass appropriate
orders under section 90(4), and its order declining to
dismiss the petition is sufficient to condone the defect.
The position as regards verification is slightly different.
There is no provision corresponding to the proviso to
section 85 conferring express power on the Election
Commission to permit amendment of the verification. Whether
it has inherent power to permit such amendment, it is not
necessary to decide, because when it did not, in fact,
dismiss the petition under section 85 for not complying with
section 83 and passed an order under section 86 appointing
an Election Tribunal for the hearing of the petition, the
matter is thereafter governed by section 90(4) of the Act,
and it is a matter of discretion with the Election Tribunal
either to dismiss the petition for defective verification or
not. In the present case, the Election Tribunal directed
the verification to be amended on 24 July, 1952, and further
declined to dismiss the petition under section 90(4) for
defective verification. These are not orders with which
this Court will interfere in appeal under article 136 of the
Constitution.
The objection to the maintainability of the petition on the
ground of delay in presentation and of defective
verification must therefore be overruled, and this appeal
dismissed with costs.
Appeal dismissed.
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