Case: Dinabandhu Sahu Vs. Jadumoni Mangaraj And Others

Four persons, the appellant and respondents 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 electedThe respondent, Jadumoni Mangaraj, then presented a petition under Section 81 of the Representation of the People Act (Act No.43 of 1951 alleging various corrupt practices on the part of the appellant and praying that the election might be set aside. The last date for presenting the petition was 4-4-1952, it was delivered at the post office at Cuttack on 3-4-1952 for being sent by registered post, and actually reached the Election Commission at Delhi on 5-4-1952, a day beyond the period prescribed, it was also defective in its verificationSection 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 16, 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 true2. 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 tohear the petitionon the merits, and by its judgment dated 16-11-1953 it held by a majority that three of the corrupt practices set out in the petition had been established against the appellantThey 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 in the election, they being in the view of the Election Tribunal, Government servants as defined in that provisionOn these findings, the Election Tribunal passed an order setting aside the election of the appellant. The matter now comes before us on special leave under Article 136 of the Constitution.

Reasoning:
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