1954 Supreme(SC) 78

SUPREME COURT OF INDIA
23rd April, 1954
M.C. MAHAJAN, C.J.I., B.K. MUKHERJEA, BOSE, BHAGWATI AND VENKATARAMA AYYAR, JJ.
Dinabandhu Sahu, Appellant
Versus
Jadumoni Mangaraj and others, Respondents.
Civil Appeal No. 25 of 1954.
Advocates appeared
Mr. K. S. K. Iyengar, Senior Advocate, (Messrs V. N. Sethi, B. K. P. Sinha, S. B. Jathar and S. S. Shukla, Advocates, with him), for Appellant; Mr. S. P. Sinha, Senior Advocate, (Messrs. R. Patnaik and R. C. Prasad, Advocates with him) and Mr. J. N. Bannerji, Senior Advocate (Messrs. R. Patnaik and Ratnaparkhi Anant Govind, Advocates, with him), for Respondents Nos. (1 & 2 respectively)

Headnote:Section 5-Representation of the People Act (1951), Ss. 85 proviso and 90(4)-Condoning delay. - Representation of the People Act (1951), Ss. 85, 90 (4) Section 85, proviso-Abuse of power-Condoning delay-Limitation Act (1908) S. 5 - "Sufficient cause" Satisfaction of Election Commission-Exercise of discretion.

       Held: "The rights under litigation in these proceedings (election petitions) are not common law rights but rights which owe their existenc8 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 condo nation 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 there-under. 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 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 81) if 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 Chattiar,

       A.I.R. 1947 P.C. 179.

       "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 would result in great hardship. But the proviso advisedly confers on the Election Commission wide discretion in the matter, and the ob:vious 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 law.

       "With particular reference to the order dated 2.7.1952 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 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. Chathapan, 13 Mad. 269 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 fide is imputable to the appellant. We have, therefore, no hesitation in holding that the order dated 2.7.1952 is on the facts a proper one to pass under the proviso to section 85." (per Venkatarama Ayyar J.)

       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. - Representation of the People Act (1951) Ss. 86, 90 (4)-Powers of Election Tribunal.

       Held: The jurisdiction to pass an order under section 86 arises "if the petition is not dismissed under S. 85". That has reference to the factual position whether 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, "notwithstanding 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. - Representation of the People Act (1951), S.90 (4)-Defective verification -Order of Election Tribunal refusing to dismiss petition for defective verification-:"Interference by Supreme Court.

       Held: 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 amendments, 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 24.7.52, 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. - Representation of the People Act (1951) S. 123-Corrupt practice-Findings of Election Tribunals-Interference by Supreme Court.

       1. In this case A filed an election petition under section 100 of the Act. He appeared on the first and subsequent hearing at Kotah, The proceedings were then adjourned for certain hearings at Udaipur. The appellant did not appear on the first three hearings and so proceedings were taken ex-part against him His counsel appeared at the fourth hearing but was not allowed to take any further part in the proceeding, because no good cause was shown for the earlier non-appearance and so the Tribunal refused to set aside Its ex-part order .

       It was held that the Election Tribunal did not exercise the discretion given to it by law because of a misapprehension that if had none, and was directed to do so.

       Held: By its ad-judgment dated 16-11-1953 the Election Tribunal 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 conveying 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 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. The matter 11m," comes before us on special leave under Art. 186 of the constitution.

       "H is obvious that anyone 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, 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 01 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.O. 1545 for conveying voters to the polling booths, are supported by the evidence and cannot be characterised as perverse, and are therefore not open the attack in this appeal" (per Venkatarama Ayyar J.).