DINABANDHU SAHU versus JADUMONI MANGARAJ AND OTHERS.

VENKATARAMA AYYAR J.-This is an appeal by special leave against die order of the Election Tribunal, Cuttack, setting aside the election of· the appellant to the Legislative Assembly, Orissa, from the Kendrapara Constituency.· :F,our. • persons, . t)le: appellant, and . r~s-. pondents Nos. 1 to 3,· wei:e duly nominated .for election to. the se~t. ·One of them, L<iknath Das (the third respondent herein), • withdrew h,is prididature, !saving the contest to .the other three. At· the ,election which'' was held between 9th and 15th 'January, 1952, the appel-' !ant secured the largest number .of votes and was declared elected. · The respondent, Jadumoni Marigaraj, then pre~nted a petition under section 81 of the Representation of the People Act, · (Act No. XLIII of 1951) alleging various corrupt , practices on' the · p~rt of the appellant, and prayi!)g that the el~ction 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 Aprp, 1952, for being sent by registered 'post, and actually reached the Election Commission at Delhi on 5th April; 1952, a day beyond , the period pressri):ied. It was ;i.lso defective in its verification. Sec- .ti0n. '83(1) of the Act enacts that the. petition ;hoµld be verified in the manner laid down in the Civil Procedure Cqde for the. verification of the pleadings. Order Vi, rule ·is, sub-clause (2), of the Civil Proceciure 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 'inform~tion received and believed to be true." The verification in the ·petition did not speeify which of the paragraphs were verified on personal , knowledge and· which, on information received , and believed to be tme. 0n 2nd July, 1952, the Election Commission passed an order condoning the delay in the presenta,. tion of the petition. By another comi;1mnication, dated 3rd July, 1952, it drew the attention of the petitioner to the defect in the verification, and suggested that he might apply to the Tribunal for amending. it. On 15th Jilly, 1952, :in order was passed up,der section 86 of' the Act appointing the Election Tribunal, Cuttack, for the hearing of the petition. The petitioner then applied· to the Election '.f'ribun~l for amending the verificat\on,. That -was ordered, and the verification was al,llended on 24th Julyr 1952, so .. as., to conform· to the .prescriptions laid down· in Grde.r V:I, .rule: .15(2), of the Civil Procedure Code.

pp. 141–142

· In' the· written statement filed· by the appellant; . he raised the .-contention ·that ·as the' petition · was· ·present~ .ed 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, a:tid ··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 agairist ·the · appellant. -They· were ( 1) that the: appellant had, in violation of section 123(1) of the - Act, induced the third respondent . to . withdraw , f.ro1Il the election on . .a· promise . to get him employment. ; . (2), that he.had, in brnach. of -.section, 123(6) .of.the; Act, .µ~ed Bus No. 0.R.C 1545 Jor co1:i.veying tpe,, elec,:tors to polling· 'booths.;.and.{3) that he.• .had, .in cqnt~:i.yeption of section 123(8) ·of the Act; obtained the. assist;mt;:<; qf Extra. Departmental • Agents in branch post . ofli<:es . 11:nd of ·Presidents of .choukidari Union. in_ can:vassiµg : for him in the .election, they being in tJ:.!e . vie~ of,, .the Election . Tribunal; Go:vernment servants as. defined in that provision. On these findings, the. Electiq.n . Tribunal passed an order setting aside .. Jhe election. of ~l).e appellant, .. The matter now. comes before us :Qn .special leave under. article 136 of the Constitution. . . " . ' ' . Jr' i~ ofo1ious that·· ·~ny one ofihe;e, .finding~;', if ac,:cepted, would . 'be sufficient to support . the ordei' of the Election tr1buriaL Whh reference to· the' last of the findings, it is , podsible to ~rge' with ~brD.'t for~e th'at · Extra · Departmental· Agents· and Presidents of Chaukidari Union · are not; •having regard· · to· . their functions, Governme:ht &ervants, and that :·accordingly there was no .contravention· of section 123(8)J But· the position is- different as regards · the other t:Wo findings. They · a:r'e pure· qudtioris of· fact, depending ori :appreciation 'of evidence. ' Mt. Krishnaswami Ayyangar,;. learned counsel . for the appellant; ai:gued that . . the; ; conclusions of'fhe ·majority· were not ··justified•by 'the: .,evidence· .on record; ' a:hd that the : :findings ·of the third -member in h:l~ dissentient' i ·opinion- were . the right . bnes to•. corrie- to;

p. 143

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.

p. 144

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 as not maintainable. The proviso to section 85 of the Act runs as follows :

p. 144

"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."

p. 144

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 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 ar.e not impressed by this contention. As was pointed out by this Court in /agan Nath v. /aswant Singh(1), the rights under litigation in these 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 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 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 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 .s.c ..

pp. 144–145

SuPREME 00.URT REPORTS [r1955j ·on to :the 'T rjbunal' without< passing any order under seG- :tiori ·85. · 'If the Election Commission tan thus· pass a ·final ordet condoning :delay without notice to the·· respondent, ·there'. is no reason ·'why it should not pass SuGh ·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 liabk to be questioned by the respondent at a later. stage. [ Vide the decision of ·the l'iivy Council in Krishnasdmi· Panikondar v. Ramasdmi Ghettiar(')].

p. 146

It was argued that in this view' the respondent would 'be without remedy even .jf the EleGtion commission should choose tO · condone delays-it might be o~ . years-, and that that would result ".in great )lardship. But the p'roviso advisedly confers on the 'Election Commission ·wide discretion in the· matter, and the 6bvicius intention ~f the Legislature' was that it should be exercised with a view· to do justice to all the parties~ The Election . Commission.. might therefore be ti'.ust~d · to pass the apprqpriate order when .. th~re is avoidable arid unreasonable delay. That a power might be· liable · to be abused is no ground for denying it, when the statute cqnfers it; and where there is an · abuse of power by statutory bodies, the parties aggrieveo are not . without ample rimedies under the law. With P,articul.~r ~efer­ ence to the order dated. 2nd July, 1952, it ·is .difficult to come to any "conclusion other tpan tha,t in passing 'that order the discr<;tion up.der the proviso ''to, sectii;ih." 85 has heeii properly exercised. The petition .h~d. been presented at ,the post office one" ,day earlier;. ;ind' r~ath­ e<;L the' Election Commission· one day later thari the due ·date .. £vep.' if the matter ha·a .. to be judged' urid~r· sectiori 5 of the Limitation Act, it . would have 'been a pr,oper e~erdse .of tqe powe~ under that: section"'to" h~ve . excused· the delay: .. As was ~},s~rv~d ip. ~the full ):lench decisio~ . i'n, Kris~;ia.: v. ,Cha,:J;app~~ V), .i!i' , ~}~ss~ge 0~.ich ·has become daSS1c,. the words · sufficient .cause" should . r7c~iye ,l_iberal ~.gns.\~~ti,on ;s,~'., a~; ,tO~ ':\l4V~p'~~;" ,su)J-

p. 146

';i\ St~ntial iustice . when no negligence . nor mact10n nor ·~~nt 'of bona 'fill es is i~putable to th'e appell~n'i:" We have, ·tlierefo~e;' rto · he5ltai'i6ri ''in. holdihg tlfat the ·order dated 2nd. July; 1952; 'is· on the facts". a .pfoper 'one to pass under the' proviso to' section' 85. ' . ,. . . . .

pp. 146–147

It ~a'.s also argued for the appellant ~hat the' .·power conferred by the proviso' to section 85 could, Ori ifa true construction, . be' exe'rci~ed only when the. peti.i:iorier moved the matter in person, and as die Election Tribunal had found that that was not done, there was no jurisdiction in the ':Election Commission .to ' pass· the order which it did. W ~ 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. riot require that he shquld 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 . thai: 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 disJ11issed .. under s,ection ~5 .as. presented out .of time must be rejected. . . . . . . . . . . ,

p. 147

There ls 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 oLthe 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, pn:scribed by sectio.i;i, 81, . and secondly, that.it was , not verified in accordan()e 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 . an~wer to the _contention of tlie. app~~lant. ~~~at. th~ iisdti<?n W~~' ' no( ip~intainable. 1'1r. Kns~naswaJ11!. ~ yy,mg~!. s,ought, . ~o, g~.~ cm::r, this ditficul~y PY contend.mg .t.hat. the order ot the. Ele~tion Commission sending the petition for' hearing by the 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 factual position whether the the petition was, in fact, dismisssed 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,

pp. 147–148

"Notwithstanding anything contained m section 85, the Tribunal dismiss an election petition which does not comply with the provisions of section 81, section 83 or section 117."

p. 148

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.

p. 148

In the instance case, with reference to the plea of limitation the position stands thus : The delay was condoned by the Election Commission under the proviso to section 85, and by reason of that order, tlie question 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.

pp. 148–149

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 dis.cretion 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.

p. 149

The objection to the maintainability of the petition

p. 149

on the ground of delay in presentation and of defective ' verification must therefore be overruled, and this appeal dismissed with costs.

p. 149

Appeal dismissed.

p. 149