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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 141 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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142 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. 143 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 144 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 145 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 19 146 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 148 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 149 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. 150