Dinabandhu Sahu vs Jadumoni Mangaraj And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 25 of 1954

Decision Date: 25 April 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Natwarlal H. Bhagwati, Venkatarama Ayyar

The case titled Dinabandhu Sahu versus Jadumoni Mangaraj and others was decided on 25 April 1954 by the Supreme Court of India. The petition was filed by Dinabandhu Sahu and the respondents were Jadumoni Mangaraj together with several other parties. The judgment was delivered on the same date, 25 April 1954. The bench that heard the matter comprised Justice Mehar Chand Mahajan, who sat as Chief Justice, Justice B.K. Mukherjea, Justice Vivian Bose, and Justice Natwarlal H. Bhagwati. In the official reporting the case appears under the citations 1954 AIR 411 and 1955 SCR 140, and it is also referenced in subsequent reports such as F 1955 SC 610 (4) R, 1957 SC 397 (30) R, 1959 SC 459 (50) F, 1968 SC 22 (4) RF, and 1986 SC 441 (4) RF. The matters addressed in the judgment involved the Constitution of India, specifically Article 136, which empowers the Supreme Court to interfere with findings of fact on appeal, and the Representation of the People Act of 1951, particularly sections 85 and 90(4). The Court examined the requisites and finality of condonation of delay under section 85, the powers conferred thereunder, and the scope and extent of the powers given to an Election Tribunal under section 90(4). In the headnote the Court held that, when hearing appeals under Article 136, the Supreme Court does not sit as a further appellate court on facts and will not disturb findings based on evidence unless those findings are perverse or unsupported by any evidence; this principle is especially applicable to findings issued by Election Tribunals. The Court further observed that rights in election litigation do not arise from common law but from the statutes that create them, and therefore the extent of those rights must be determined by reference to the relevant statutes. Regarding the proviso to section 85 of the Representation of the People Act, 1951, the Court noted that it does not require the Election Commission to give the respondent notice of a petition for condonation of delay, nor does it demand a hearing on the sufficiency of the grounds in the respondent’s presence before an order is passed. The policy underlying that provision was to treat the question of delay as a matter solely between the Election Commission and the petitioner, making the Commission’s decision final and not open to challenge at any later stage. Under section 90(4), when a petition fails to meet the requirements of sections 81, 83, or 117, the Election Tribunal may, at its discretion, either dismiss the petition or refuse to dismiss it, “notwithstanding anything contained in section 85”. The Court clarified that the power conferred on the Tribunal by section 90(4) supersedes the power given to the Election Commission by section 86 to dismiss the petition, but it does not extend to reviewing any order passed by the Election Commission under section 85. The Court emphasized that the wording of section 90(4) reads “notwithstanding anything contained in section 85” and not “notwithstanding anything contained in section 85 or any order passed thereunder”. Consequently, an order of the Election Commission under section 85 dismissing a petition as barred remains final under the scheme of the Act.

In accordance with the scheme of the Act, an order that merely excuses a delay was held to be final, and the same consequence would arise under section 90(4) when the order in question served only to excuse the delay. Section 90(4) was understood to be triggered only in the situation where the Election Commission forwarded the petition to the Tribunal without first issuing any order under section 85. The Court observed that if the Election Commission possessed the authority to issue a final order that condoned a delay without giving notice to the respondent, there was no logical reason why it could not also issue such an order on its own initiative, that is, suo motu. In this respect, the Court noted that the position created by the proviso to section 85 was materially different from the position created by section 5 of the Limitation Act, where an order that excused a delay was not final and could be challenged by the respondent at a later stage. The proviso, the Court explained, deliberately gave the Election Commission a wide discretion in dealing with such matters, and the clear intention of the Legislature was that this discretion should be exercised in a manner that would achieve justice for all parties involved. Accordingly, the Court stated that the Election Commission could be trusted to pass an appropriate order in circumstances where the delay was avoidable and unreasonable. The Court further declared that the mere possibility that a power could be misused was not a sufficient ground for denying the existence of that power when the statute expressly conferred it, and that even if a statutory body abused its power, the aggrieved parties were not left without legal remedies. While the proviso to section 85 required that “the person making the petition” demonstrate to the Election Commission that there was sufficient cause for the delay, the Court clarified that the provision did not obligate the petitioner to appear in person to make that satisfaction. The Court referred to the authorities of Jagan Nath v. Jaswant Singh ([1954] S.C.R. 892), Krishnasami Ranikondar v. Ramsami Cheitiar (45 I.A. 25) and Krishna v. Chathappan (I.L.R. 13 Mad. 269). The judgment proceeded under the civil appellate jurisdiction, being Civil Appeal No. 25 of 1954, a special leave appeal granted by the Supreme Court of India through its order dated 11 December 1953, from the judgment and order dated 16 November 1953 of the Election Tribunal, Cuttack, in Election Case No. 4 of 1952. Counsel for the appellant included K. S. K. Iyengar with accompanying lawyers, while counsel for respondent No. 1 and respondent No. 2 were also listed. The judgment, delivered on 25 April 1954 by Justice Venkatarama Ayyar, concerned an appeal by special leave against the order of the Election Tribunal, Cuttack, which had set aside the election of the appellant to the Legislative Assembly of Orissa from the Kendrapara constituency. Four individuals, namely the appellant and respondents Nos. 1 to 3, had been duly nominated for election to the seat. One of the nominees, Loknath Das (the third respondent), withdrew his candidature, leaving the contest among the remaining three. The election, conducted between 9 January and 15 January 1952, resulted in the appellant obtaining the highest number of votes and being declared elected. Subsequently, respondent Jadumoni Mangaraj presented a petition under section 81 of the Representation of the People Act (No. XLIII of 1951) alleging various corrupt practices by the appellant and seeking to have the election set aside.

In this case the petitioner filed a petition under section 81 of the Representation of the People Act, No. XLIII of 1951, alleging that the appellant had engaged in several corrupt practices and seeking that the election be set aside. The statutory deadline for presenting such a petition was 4 April 1952. The petition was mailed from the post-office at Cuttack on 3 April 1952 by registered post, but it did not reach the Election Commission in Delhi until 5 April 1952, thereby arriving one day after the prescribed period had expired. In addition to the untimely filing, the petition was defective in its verification. Section 83(1) of the Act requires that a petition be verified in accordance with the procedure laid down in the Civil Procedure Code for verification of pleadings. Order VI, Rule 15, sub-clause (2) of the Code mandates that the verifier must indicate, with reference to the numbered paragraphs of the pleading, which statements are made from personal knowledge and which are made on the basis of information received and believed to be true. The verification attached to the petition failed to make this distinction, rendering it non-compliant with the procedural requirement.

On 2 July 1952 the Election Commission issued an order condoning the delay in the presentation of the petition. The very next day, by a separate communication dated 3 July 1952, the Commission drew the petitioner’s attention to the defect in the verification and suggested that the petitioner could apply to the Election Tribunal for amendment. Subsequently, on 15 July 1952 an order made under section 86 of the Act appointed the Election Tribunal at Cuttack to hear the petition. The petitioner then applied to the Tribunal for amendment of the verification. The Tribunal ordered the amendment, and on 24 July 1952 the verification was corrected so as to comply with the requirements of Order VI, Rule 15(2) of the Civil Procedure Code. In its written statement, the appellant argued that because the petition had been filed out of time and the verification was defective, the petition should have been dismissed by the Election Commission under section 85 of the Act, and consequently the Tribunal ought to dismiss it as non-maintainable. The Tribunal rejected this contention, proceeded to examine the merits of the petition, and by its judgment dated 16 November 1953 held, by a majority, that three corrupt practices listed in the petition were proved against the appellant. First, it found that the appellant, in violation of section 123(1), had induced the third respondent to withdraw from the election by promising him employment. Second, it found that the appellant, in breach of section 123(6), had used Bus No O.R.C. 1545 to transport electors to the polling booths. Third, it concluded that the appellant, in contravention of section 123(8), had obtained assistance from Extra Departmental Agents in branch post offices and from Presidents of the Choukidari Union for canvassing, these persons being regarded as government servants under the provision. On the basis of these findings, the Tribunal set aside the appellant’s election.

The Election Tribunal held that extra-departmental agents and presidents of the Chaukidari Union had canvassed for the appellant in the election and were, in the Tribunal’s view, government servants as defined in the relevant provision; on that basis the Tribunal ordered that the appellant’s election be set aside. The matter now stands before the Court on special leave under article 136 of the Constitution. It is clear that any one of those findings, if accepted, would be sufficient to support the Tribunal’s order. Regarding the third finding, a case can be made that, considering their functions, the extra-departmental agents and the Chaukidari Union presidents are not government servants and therefore did not violate section 123(8). The position differs on the first two findings, which are pure questions of fact that depend on the appreciation of evidence. Counsel for the appellant argued that the majority’s conclusions were not justified by the record and that the dissenting member’s findings were the correct ones. However, when hearing appeals under article 136, the Court does not act as a further appellate body on facts and does not disturb findings based on evidence unless those findings are perverse or unsupported. This principle is especially applicable when the findings under challenge come from an Election Tribunal. In this case, the findings that the appellant induced the third respondent to withdraw on a promise of employment and that he used Bus No. O.R.C. 1545 to convey voters to polling booths are supported by the evidence, are not perverse, and therefore cannot be attacked in this appeal. Consequently, counsel for the appellant turned to the maintainability of the petition, contending that because the petition was not filed within the time prescribed by section 81 of the Act, it should be dismissed under the mandatory provision in section 85, and that the Tribunal’s jurisdiction was limited to passing the order that the Election Commission should have passed, making the petition non-maintainable from the outset. The proviso to section 85 of the Act states that if a petitioner satisfies the Election Commission that sufficient cause existed for the delay, the Commission may, at its discretion, condone the failure. Exercising that discretion, the Election Commission condoned the delay by its order dated 2 July 1952. It is not contested that if that order is valid, the petition cannot be dismissed on the ground of delay. The appellant’s counsel maintains that the Commission’s order is invalid.

In this case, the petitioners argued that the Election Commission’s order of 2 July 1952, which excused the filing delay, was invalid because it had been made on its own initiative rather than in response to an application from the party requesting condonation, and they maintained that such an application was a prerequisite for invoking the discretion granted by the proviso to section 85 of the Act. To support this position, the petitioners cited decisions interpreting section 5 of the Limitation Act, which require the party seeking an exemption from delay to explicitly allege and strictly prove the reasons for the delay. The Court was not persuaded by this contention. As the Court had previously observed in Jagan Nath v. Jaswant Singh (1), the rights that arise in these election petitions are not common-law rights but are statutory rights, and the scope of those rights must be ascertained by reference to the statutes that create them. The proviso to section 85 does not require the Election Commission to give notice of the petition for condonation to the respondent, nor does it mandate holding an enquiry in the respondent’s presence before passing an order under the proviso. The policy underlying the provision is to treat the question of delay as a matter solely between the Election Commission and the petitioner, making the Commission’s decision on that question final and not subject to later challenge. Under section 90(4) of the Act, when a petition fails to meet the requirements of sections 81, 83, or 117, the Election Tribunal may, at its discretion, dismiss the petition “notwithstanding anything contained in section 85.” This power of the Tribunal overrides the Commission’s power under section 85 to dismiss a petition, but it does not extend to reviewing any order the Commission has issued under section 85. The wording of section 90(4) is expressly “notwithstanding anything contained in section 85” and does not read “notwithstanding anything contained in section 85 or any order passed thereunder.” Accordingly, an order of the Election Commission under section 85 that dismisses a petition as barred is final under the scheme of the Act, and the same finality applies to an order that merely excuses the delay. Section 90(4) becomes relevant only when the Election Commission refers the petition to the Tribunal without having made any order under section 85. Since the Commission is authorized to issue a final condonation order without notifying the respondent, there is no reason why it could not do so suo motu. In this respect, the position created by the proviso to section 85 differs materially from that under section 5 of the Limitation Act, where an order excusing delay is not final and can be questioned later.

The Court noted that the respondent had later challenged the order, relying on the decision of the Privy Council in Krishnasami Panikondar v. Ramasami Chettiar (1). The respondent argued that, under that view, the Election Commission would be unable to provide any remedy even if it chose to condone a delay of several years, and that such a situation would cause great hardship. The Court, however, observed that the proviso to section 85 deliberately granted the Election Commission broad discretion, and that the Legislature’s clear intention was that this discretion should be exercised in a manner that achieved justice for all parties. The Court expressed confidence that the Election Commission could be trusted to issue the appropriate order when the delay was avoidable and unreasonable. It further held that the mere possibility that a power could be misused did not justify denying its existence, because the statute itself conferred that power, and where statutory bodies abused their authority, aggrieved parties still possessed ample legal remedies.

Turning to the specific order dated 2 July 1952, the Court found that no conclusion other than a proper exercise of the discretion under the proviso to section 85 could be reached. The petition had been placed at the post office one day before the deadline and had arrived at the Election Commission one day after the prescribed date. Even assuming that the matter should be assessed under section 5 of the Limitation Act, the Court reasoned that it would still have been appropriate to excuse the delay under that provision. Citing the Full Bench decision in Krishna v. Chathappan (2), the Court reiterated the classic passage that the phrase “sufficient cause” must be given a liberal construction to further substantial justice where no negligence, inaction, or lack of bona fides could be attributed to the petitioner. Accordingly, the Court had no hesitation in holding that, on the facts, the order of 2 July 1952 was a proper exercise of the discretion granted by the proviso to section 85.

The appellant further contended that the power under the proviso could, on its true construction, be exercised only when the petitioner moved the matter in person, and that because the Election Tribunal had found no such personal appearance, the Election Commission lacked jurisdiction to pass the order. The Court found nothing in the language of the provision to support this contention. While the proviso required the “person making the petition” to satisfy the Election Commission that there was sufficient cause for delay, it did not obligate that satisfaction to be given by personal appearance. The Court emphasized that the nature of the proceedings did not demand the petitioner’s physical presence; it was sufficient that the petitioner communicated the grounds for excusing the delay, and this could be done without appearing in person.

In this case the Court noted that none of the objections presented against the validity of the order dated 2 July 1952 could be sustained, and therefore the claim that the petition ought to be dismissed under section 85 because it had been filed out of time was rejected. The Court further observed another reason why the appellant’s contention that the petition was not maintainable must also fail. When the election petition was referred to the Election Tribunal under the authority of section 86 of the Act, the appellant sought dismissal of the petition under section 90(4) on two grounds: first, that the petition had not been presented within the time prescribed by section 81, and second, that the petition had not been verified in accordance with section 83. The Election Tribunal declined to dismiss the petition on either ground. The Court held that if the Tribunal was competent to make such a refusal, that alone answered the appellant’s argument that the petition was not maintainable. The appellant, counsel for the petitioner, attempted to overcome this difficulty by arguing that the Election Commission’s order directing the petition to be heard by the Tribunal under section 86 was beyond its jurisdiction. He contended that an order under section 86 could be issued only when the petition was not subject to dismissal under section 85, that is, when the requirements of sections 81, 83 or 117 had been satisfied; and that if those requirements were not met, the Commission’s only power was to dismiss the petition under section 85, leaving the Tribunal without jurisdiction to hear it. He further claimed that, as a result, all subsequent proceedings, including the order now under appeal, were a nullity. The Court found this contention wholly untenable. It explained that the jurisdiction to issue an order under section 86 arises “if the petition is not dismissed under section 85,” a reference to the factual circumstance of whether the petition has actually been dismissed, not merely whether it is liable to be dismissed. This plain meaning of the statutory language is reinforced by section 90(4), which states that, notwithstanding anything in section 85, the Tribunal may dismiss an election petition that fails to comply with the provisions of sections 81, 83 or 117. The provision therefore anticipates that petitions which are technically liable to dismissal for non-compliance with those sections may not yet have been dismissed, and it confers on the Tribunal a discretionary power to either dismiss them or allow them to proceed. Consequently, the Tribunal’s authority to condone delay in presentation or defective verification is not affected by any consideration of whether the petition might have been dismissed by the Election Commission under section 85. The effect of an order issued under section 90(4) that declines to dismiss the petition on the basis of delay or defective verification is to condone those defects.

In the present matter, the Court explained that the effect of condoning either a delay in presenting an election petition or a defective verification was exactly to excuse those procedural shortcomings. Concerning the specific plea of limitation, the Court observed that the delay in filing the petition had been expressly condoned by the Election Commission by invoking the proviso to section 85. Because the Commission had issued that condonation order, the issue of delay ceased to remain open for consideration at any subsequent stage, a position that had already been affirmed by earlier findings. The Court further stated that, even if one were to assume hypothetically that the Election Commission did not have the authority to pass a condonation order on its own motion, the Commission’s own finding that an order dated 2 July 1952 had been made would still render that order a nullity. When the case was thereafter transferred to an Election Tribunal under the authority of section 86, the Tribunal acquired the power to make the appropriate orders prescribed by section 90(4). Accordingly, the Tribunal’s decision to refuse to dismiss the petition constituted a sufficient act of condonation of the delay defect, and no further judicial scrutiny of that decision was warranted.

The Court then turned to the question of verification and noted that the statute contained no provision comparable to the proviso to section 85 that would expressly grant the Election Commission the power to permit an amendment of a verification. The Court held that it was unnecessary to decide whether the Commission possessed any inherent authority to allow such an amendment, because the Commission had, in fact, not dismissed the petition under section 85 on the ground of non-compliance with section 83. Instead, the Commission had issued an order under section 86 appointing an Election Tribunal to conduct a hearing of the petition. From the moment of that appointment, the matter fell under the regime of section 90(4) of the Act, which leaves it to the discretion of the Election Tribunal either to dismiss the petition for defective verification or to allow it to proceed. In the case at hand, the Tribunal directed that the verification be amended on 24 July 1952 and also declined to dismiss the petition under section 90(4) on the basis of defective verification. The Court held that it would not interfere with those Tribunal orders in an appeal filed under article 136 of the Constitution. Consequently, the objection to the maintainability of the petition on the grounds of delay in presentation and defective verification was overruled, and the appeal was dismissed with costs.