Case: Dinabandhu Sahu Vs. Jadumoni Mangaraj And Others

nor want of bona fides in 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 86. 6. It was 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 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 2-7-1952 being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejected. 7. 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 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 section 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 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 noncompliance with section 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 the petition was liable to be dismissed by the Election Commission under section 86, 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. 8. In the instant 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, the 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 condonation suo motu, and further accepting the finding of the Election Commission that the order dated 2-7-1952 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. 9. 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 had 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 24-7-1952, 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 petitionIt 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 "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 delaySection 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 the 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 stageBut 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 no without ample remedies under the lawWith 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 delayWe 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 86While 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 2-7-1952 being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejectedWhen 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 maintainableThe jurisdiction to pass an order under section 86 arises "if the petition is not dismissed under section 85". That has reference to the factual positionwhether the petition was, in fact, dismissed under section 85 and not to the legal position whether it was liable to be dismissed.9. 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 had 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 24-7-1952, 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