PETITIONER: UNION OF INDIA AND ORS. Vs. RESPONDENT: <NAME> DATE OF JUDGMENT07/04/1977 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BEG, M. HAMEEDULLAH (CJ) KAILASAM, P.S. CITATION: 1977 AIR 1548 1977 SCR (3) 472 1977 SCC (2) 870 CITATOR INFO : RF 1986 SC 626 (7,16) ACT: Central <ORG>s and Salt Act , 1944---Schedule I Entry 21--Non-woven felts manufactured out of woollen fibres by machine pressing, whether "wollen fabrics" for the purpose of levy of excise duty--Rule of interpretation of items in a statute. HEADNOTE: An excise duty of Rs. 55055.87 was levied and collected from the respondent-firm by the <ORG> authorities treating the non-woven felts manufactured by them as "woollen fab- rics" covered by entry 21 in Schedule I to the Central <ORG>s and Salt Act , 1944. <ORG> allowed the writ petition filed by the respondent and held that the respondent's products were not "woollen fabrics" and direct- ed the refund of the entire sum collected as excise duty. Dismissing the appeal by certificate to this Court, HELD: (1) The well-known rule in interpreting items in statutes is that resort should be had not to the scientif- ic or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, their commercial sense. [474 <CITATION> , AIR 1967 SC 1454, applied. (2) Fabric means woven material. Entries 19 to 22 in the Schedule deal with fabrics. Entry 21 describes woollen fabrics as meaning all varieties of fabrics manufactured out of wool, barring the exceptions mentioned, including blan- kets, lohis, rugs, shawls and embroidery in the piece in strips or in motifs. The word "fabric" in entry 21 has been used to mean woven material in which sense it is popularly understood. The term "woollen fabrics" in that sense was not wide enough to cover non-woven material which is wool- based. Blankets. rugs and shawls etc. have been specifical- ly included in the entry out of abundant caution to indicate that "woollen fabrics" in entry 21 means not only woollen garments but also woollen material used as covering or for similar other purposes. [473 H, 474 F-G] (3) It is plain from entry 21 in Schedule 1 to the Central <ORG>s and Salt Act , 1944 that the respondent's products did not fall within it as they are nonwoven felts from woollen fibres. [474 C]- JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1037 of 1971.

(From the Judgment and Order dated the 17th June, 1971 of <ORG> in Special Civil Application No. 112/67).

<NAME>, <ORG>. and <NAME>, for the appellants.

<NAME> and <NAME>, for the respondent. The Judgment of the Court was delivered by <ORG> J.--The respondent is a partnership firm manufac- turing non-woven felts from woollen fibres which are uti- lised for the purpose of filtration in heavy industries. Between August 25, 1965 and January 5. 1967 the Excise authorities compelled the respondent to pay Rs. 55,055/87 p. as excise duty on its products. The respondent filed a writ petition in <ORG> at Ahme- dabad for quashing the order levying excise duty on the felts manufactured by the respondent treating them as 'woo- llen fabrics' covered by entry 21 in Schedule I to the Central Excises and Salt Act , 1944 (hereinafter referred to as the Act). <ORG> allowed the writ petition holding that the respondents products were not 'woollen fabrics' and directed refund of the sum of Rs. 55,055/87 p. collected as excise duty from the firm. <ORG> has preferred this appeal on certificate of fitness granted by <ORG> questioning the correctness of the deci- sion.

The only question in the appeal is whether the felts manufactured by the respondent are "woolien fabrics" within the meaning of entry 21 in the first schedule to the Act.The writ petition describes the process of manufacture and states that the thickness of the felts produced varies from 1 mm. to 50 mms. according to. the specification of the customers and that these are really machine pressed raw woolwaste. It is stated further that the felts manufactured .by the process described are neither sheets nor fabrics, they are not material from which garments could be prepared nor they could be used 'as covering or for similar other purposes. Entry 21 in the first schedule to the Act reads:

"21. WOOLLEN FABRICS--

"Woollen fabrics" .means all varieties of fabrics manufactured wholly of wool or which contain 40 per cent, or more by weight of wool and includes blankets, lohis, rugs, shawls and embroidery in the piece, in strips or in motifs:

Provided that in the case of embroidery in the piece, in strips or in motifs, the percentage referred to above shall be in relation to the base fabrics which are embroi- dered--_ (1) Woollen fabrics, other than Ten percent.

embroidery in the piece, in ad valorem.

strips or in motifs. --------- (2) Embroidery in the piece in The duty for strips or in motifs, in or in the time being relation to the manufacture leviable on the of which any process is ord- base fabrics, inarily carried on with the if not already aid of power. paid, plus twenty percent. ad va'orern

Explanation-----" Base fabrics" means fab- rics falling' under sub-item (1) of this Item which are subjected to the process of embroi- dery."

Are the products of the respondent's factory woollen fabrics ? Fabric means woven material. The articles manu- factured by the respondent, as already stated, are non- woven felts from woollen fibres. It is contended on behalf of the appellant, <ORG>, that in a technical sense the felts manufactured by the respondent would still be woollen fabrics. The well-known rule in interpreting items in statutes like the one we are concerned with is that "resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense". ( <CITATION> )(1). <ORG> has held that a trader dealing in woollen fabrics would not regard the respondent's products as woollen fabrics, but it does not appear that there is any evidence on the record of the case to support the finding. However, an inquiry re- garding the meaning of the term woollen fabrics as commer- cially understood would be relevant only when there is doubt as to the sense in which the term has been used in entry 21; it seems to us plain from the entry read as a whole that the respondent's products did not fail within it. Entries 19 to 22 in the schedule all deal with fabrics. Entry 19 deals with cotton fabrics which is stated to cover, barring the exceptions specified, all varieties of fabrics manufactured either wholly or partly from cotton and in- cludes, dhoties, sarees, chadders, bed-sheets, bed-spreads etc. Entry 20 relates to slik fabrics which is said to mean all varieties of fabrics manufactured. either wholly or partly from silk with certain exceptions and includes em- broidery in the piece, in strips or in motifs. Entry 22 relates to rayon or artificial silk fabrics which also is said to mean all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk with some exceptions and includes embroidery in the piece, in strips or in motifs etc. In this group, entry 21 describes woollen fabrics as meaning all varieties of fabrics manufactured out of wool, barring the exceptions mentioned, including blankets, lohis, rugs, shawls and embroidery in the piece, in strips or in motifs. If the term 'woollen fabrics' in this entry had been used in its technical or scientific sense and, if in that sense, it was wide enough to cover non woven material which is wool-based, then it is diffi- cult to explain why the entry should specifically mention blankets, rugs and shawIs as being included within it. No one could possibly be in any doubt in respect of these few items if the term was so pervasive, and there was no reason for singling out these specific objects. On the contrary, the mention of these items suggests that the word 'fab- rics' in entry 21 has been used to mean woven material in which sense it is popularly understood, and blankets, rugs and shawls etc. have been specifically included in the entry out of abundant caution to indicate that 'woollen fabrics' in entry 21 means not only woollen garments but also woollen material used as 'covering or for similar other purposes. We therefore find no reason to take a view different from that taken by <ORG>.

The appeal is dismissed with costs.

S.R. Appeal dismissed. (1) A.I.R. 1967 S.C. 1454.


JUDGMENT <NAME>, J.

1. Messrs. <ORG>, the assessee, was assessed to income-tax for the assessment years 1966-67 and 1969-70, the accounting periods ending on June 30, of the calendar years of 1965 and 1968. In the said assessment year 1966-67, the assessee claimed allowance on depreciation and deduction of business expenditure. The Income-tax Officer found that during the accounting period ending on June 30, 1965, the total purchase of raw materials was worth only Rs. 1,220, consumption of raw materials was worth only Rs. 120 and stores and spares to the extent of only Rs. 70 had been consumed. The Income-tax Officer held that the assessee had not commenced manufacturing and that production, if any, during the period was only on an experimental basis. On that ground, the Income-tax Officer disallowed depreciation and deduction of business expenditure.

2. For the assessment year 1969-70, the Income-tax Officer found that the plant and machinery of the assessee did not work for the whole year. Total consumption of raw material during the year was also low and a very limited quantity of finished goods were produced. On the ground that the factory of the assessee had worked for less than thirty days, the claim of the assessee for depreciation was disallowed.

3. Being aggrieved, the assessee went up in appeal before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner considered the directors' report as also the profit and loss account of the assesses and found that the plant and machinery of the assessee were in use though on a very small scale in the assessment year 1966-67. He held that the assessee had set up its business during the relevant accounting year as it had commenced production and following the decision of <ORG> in <CITATION>  26 ITR 151, and of <ORG> in the case of <ORG> v. <ORG>  63 ITR 478, held that the Income-tax Officer was not justified in disallowing the depreciation and expenditure on the ground that it was prior to the commencement of the assessee's business.

4. On the basis of the aforesaid finding for the assessment year 1966-67, the Appellate Assistant Commissioner also held that in the assessment year 1969-70, the appellant having set up its business earlier, the Income-tax Officer should have allowed depreciation as also development rebate.

5. Being aggrieved, the <ORG> went up in appeal before <ORG>. Before the Tribunal, the <ORG> relied on a decision of <ORG> in <CITATION>  63 ITR 72, where it was held that where erection of plant had been completed and only a small quantity of raw material was consumed without any actual turning out of finished products, it could not be said that the business of manufacture had commenced. The consumption of raw materials, if any, would be only by way of experiment and the deduction of the amount claimed as business expenditure could not be allowed.

6. The <ORG> held that <ORG> did not have occasion to consider the decision of <ORG> in the case of <ORG> [1967] 63 ITR 478, where <ORG> had allowed the claim of the assessee to deduction of business expenditure where the business had actually been set up. On that ground, the <ORG> rejected the contentions of the <ORG>. The <ORG> held further that as the business had been set up in the year 1966-67, the claim for depreciation in the subsequent assessment year 1969-70 should be allowed automatically.

7. On the application of the <ORG> under Section 256(1) of the Income-tax Act, 1961, the following question has been referred as a question of law arising out of the order of the Tribunal for the opinion of this court:

"Whether, on the facts and in the circumstances of the case, the <ORG> was right in holding that the business was set up within the meaning of the Income-tax Act during the accounting year relevant to the assessment year 1966-67 and, as such, whether the assessee was entitled to depreciation and expenses claimed for the assessment year 1966-67 and depreciation for the assessment year 1969-70 ?"

8. At the hearing before us, learned counsel for the <ORG> drew our attention to the decision cited earlier in the proceedings below. He relied, in particular, on the decision of <ORG> in the case of Sir <ORG> [1967] 63 ITR 72 and invited us to follow the same. The other decisions are as follows :

(a) CWT v. <ORG> :

9. In this case, <ORG> held that where a business unit had been set up by the assessee which was ready to commence production, the assessee was entitled to claim deduction of the expenditure which could not be disallowed on the ground that the same had been incurred prior to the commencement of the actual business of commercial production. <ORG> made a distinction between setting up of a unit and the operational function of the unit as a business.

(b) <CITATION> . :

10. In this case, the assessee was incorporated with the object of manufacture and sale of cement in the relevant assessment year. The assessee obtained a mining lease for quarrying limestone and started, mining operations. In its assessment to income-tax, the assessee claimed deduction of expenditure incurred for extracting limestone and also depreciation and development rebate for its machinery. It was held by <ORG> of <ORG> that the business of the assessee consisted of three types of activities, viz., acquiring raw materials, manufacturing of cement and sale of cement. It was held that the activity in quarrying limestone was a part of the assessee's business which came first in point of time and that the assessee had commenced business when it started its activity of extraction of limestone. The expenditure incurred and the depreciation and development rebate claimed were held to be deductible in computing the trading profits of the assessee.

(c) <CITATION> :

11. In this case, <ORG> of this court following the decision of <ORG> in the case of <ORG> [1967] 63 ITR 478, held that where a business had been set up by the assessee, the expenses incurred in such setting up could not be disallowed on the ground that the assessee had not commenced commercial production in such business.

12. In the case before us, the Appellate Assistant Commissioner and the <ORG> have come to a finding that the assessee had set up its business in the assessment year 1966-67. This finding has not been challenged as perverse and has become final. In the face of such finding, following the decision of <ORG> referred to above, the question referred has to be answered in the affirmative and in favour of the assessee. The business having been set up in the earlier assessment year, it also must be held that the same position continued in the subsequent assessment year 1969-70.

13. There will be no order as to costs, <NAME>, J.

14. I agree.


ORDER

1. The petitioner is serving as Deputy Manager in the Production Centre in the establishment of the second respondent-<ORG> in the Twin Cities (<ORG>). The petitioner was placed under suspension by the proceedings of the Managing Director of the <ORG> dated 13-3-1996 under Rule 23(iv) of the <ORG> Employees Conduct, Discipline and Appeal Rules, 1983, for short 'the CCA Rules' pending further investigation and enquiry against the petitioner. This order was issued by the Managing Director in pursuance of the order of the <ORG>, G.O. Rt. No.218, Industries and Commerce (SES) Department dated 12-3-1996 directing the management of <ORG> to place the petitioner and four others under suspension pending enquiry. The <ORG>, further, by the impugned proceeding, G.O. Rt. No.235, Youth Advancement Tourism and Culture (Ses) Department dated 18-6-1998 continued the suspension of the petitioner beyond 12-3-1998.

2. No charges are yet framed against the petitioner. However, in the counter filed by the first respondent it is stated that the enquiry revealed that the petitioner had drawn a sum of Rs.45,000/- as advance for purchase of raw materials, but he failed to produce the relevant vouchers, stock entries, and he did not choose to get the advance adjusted immediately. Nothing concrete is said or laid in the counter filed by the management of <ORG> justifying the continued suspension of the petitioner. The allegations arc vague and general in nature.

3. The only question which arises for consideration is whether the continued suspension of the petitioner, in the facts and circumstances of the case, is justified and legal or whether it is arbitrary and unreasonable.

4. The power of the management of <ORG> to place the petitioner under suspension in contemplation of and/or pending departmental enquiry is not contested before the Court. The power of suspension or to extend the period of suspension has to be exercised with circumspection, care and after application of mind. The employer must make a fair and proper assessment of the matter in the given circumstances and carefully scrutinise that prima facie there exists grave and compelling circumstances which in the light of the material available and collected during the preliminary enquiry or investigation would lead to the likelihood of the removal or dismissal of the employee from service. Although suspension of an employee in contemplation of or pending enquiry as such does not violate any of his legal right, it should not be forgotten that the suspended employee is subjected to social ridicule, condemnation and humiliation; he is looked down by colleagues, friends, kith and kin and he lives a life of tarnished image, infamy and agony. A proper judgment exercised would prevent unnecessary harassment and humiliation of suspension. Suspension should not be resorted to as a matter of course unless the allegations against the employee are serious. The employer, before resorting to suspension, shall consider whether the continuation of the delinquent would be detrimental to public interest or would hamper the enquiry or whether the delinquent, if continued in the post, is likely to tamper with official records relating to the allegation or charge or influencing the witnesses. If there are no such facts, suspension of delinquent will not be justified. <ORG>, in the case of <CITATION> , 1994 (2) SLR (Calcutta) 77, held that an order of suspension shall not be made in an arbitrary manner and any order of suspension, if casually made, will cause harm and suffering to the concerned employee. If after suspension enquiry is unduly delayed or prolonged, then, it will be an indication to show that the suspension is not bona fide. An employee who is placed under suspension in contemplation of enquiry or pending enquiry is entitled to ask on suspension that the matter should be investigated within the reasonable period of time, and if such a principle of natural justice is not recognised, then, it would imply that the employer is vested with a totally arbitrary and unfettered power of placing its employees under disability and distress for an indefinite duration. The suspension order is bad if it is not followed by the charge-sheet within reasonable time. It is unjust on the part of the employer to pass an order of suspension and then not to take any further action for years.

5. In the instant case the petitioner was placed under suspension more than 31 months back and till date no charges are framed. There is no reasonable explanation for this inordinate delay. The only defence purforth in the counter-

affidavits filed by the respondents is that the preliminary enquiry/investigation is "entrusted to <ORG> and the investigation is under progress and the outcome of the report is awaited," It is not the case of the respondent tliat the petitioner is involved in a scries of malpractices and blame-worthy transactions and therefore the <ORG> requires more time to investigate into malpractices. The only allegation as set out in the counter is that the petitioner drew a sum of Rs.45.000/- as advance for purchase of raw materials, but he has failed to produce the relevant vouchers, stock entries and he did not choose to get the advance adjusted immediately. I am at a loss to understand how more than 31 months time is not sufficient for the <ORG> to investigate and submit report. The investigating agency cannot take its own time for investigation which is comparable to a preliminary enquiry at its pleasure and at the peril of the delinquent employee; it is expected that the investigating agency should act with promptitude and diligence. That is why this <ORG> in number of opinions handed down in the cases involving review of suspension orders held that an employer having placed an employee under suspension in contemplation of or pending enquiry should act with promptitude and diligence, frame the charges within the reasonable time and conduct and conclude the enquiry and pass appropriate order without much loss of time. Such a course is not only imperative in the interest of the charged employee but also in the best interest of the maintenance of healthy employer-employees relationship and to maintain harmony in an organisation or an industry. Be that as it may, if there is a delay on the part of the <ORG> in investigating and submitting the report, the respondents should have taken up the matter with the <ORG> and directed it to investigate and submit the report without much loss of time. It is not forthcoming from the records that such a course was adopted by the respondents.

6. <ORG> in <CITATION> , 1973 (2) SLR 553 (Ori HC), while reviewing the validity of the suspension order of an employee held that if there was a delay on die part of <ORG> in investigating the offence, then the department should have taken up the matter with the police authority and that the prolonged suspension of the employee was unjustified. To the same effect is the decision of <ORG> in <CITATION> , 1961 (2) LLJ 644 (SC). <ORG> in <CITATION> , 1983 Lab.IC 1743 (Mad- HC) held that an employee cannot indefinitely be kept under suspension pending issue of charge-sheet and the continued suspension of the employee is penal in character. In the case of <CITATION> ., 1978 SLJ 421 the Court held that the continued suspension of the employee for a period of 2-1/2 years without framing the charge-sheet and without any reasonable explanation for the delay is unjustified. These decisions show that even in those cases where there is no time limit to issue charge-sheet after suspension; the employer is obligated to investigate into the allegations and frame charges and conclude the disciplinary proceedings within a reasonable time with diligence and promptitude.

7. <ORG> has issued G.O.Ms. No. 86, General Administration (Services-C) Department dated 8-3-1994. Sub-clause (iii) of Clause 3 of the <ORG> Order provides for an outer limit of two years for suspension of a public servant and it states tliat only in exceptional cases having regard to the gravity of the charges levelled against an employee, suspension be extended beyond a period of two years. Here is a very pathetic case. The outer limit of time prescribed under the above <ORG> Order spent itself even before the charges are framed. The charge to be framed against the petitioner-delinquent is not in the sight anywhere and it seems to be indefinite. In that view of the matter, it should be held that the continued suspension of the petitioner by the impugned order of the <ORG> without disclosing reasons is unjustified and unwarranted. Even then, the <ORG> would not have intervened if the respondents are likely to frame the charges against the petitioner in the near future. In the course of the hearing, the <ORG> pointedly asked the learned Counsel appearing for the respondents as to whether the respondents intend to frame the charges against the petitioner in the near future. There is no satisfactory and responsible response to the <ORG>'s query. On the other hand, stock reply of the learned Counsel for the respondents is that investigation is pending and they would take steps only after submission of the report by the <ORG> and that it is the prerogative of the employer to place an employee under suspension in contemplation of or pending departmental enquiry. There is no sign of the second respondent framing the charges against the petitioner in the near future and the respondents do not show any inclination or anxiety or urgency to frame the charges without further loss of time. The lamentable callousness of the respondents cannot be countenanced by the <ORG>. The power of employer to place the employee under suspension in contemplation of or pending departmental enquiry, which power repeatedly called' 'prerogative'' by the learned <ORG> Pleader in her wisdom, is not a Royal prerogative nor a prerogative of an absolute monarch or despot. The power vested in the employer to place an employee under suspension is not an absolute power. The word "absolute power" does not find a place in the dictionary of our Constitutional and Administrative Laws. The power to suspend an employee vested in the respondents is a public power; every public power is a limited power, and the donee of that power is expected to exercise that power reasonably and fairly and not arbitrarily and capriciously. That is what Article 14 mandates and commands.

8. In the result, the writ petition is allowed with no order as to costs and the impugned order of the Government G.O. Rt. No.218, <ORG><ORG>) department dated 12-3-1996 is quashed. However, it is made clear that this order shall not come in the way of the respondents framing the charges and conducting departmental enquiry against the petitioner. Liberty is also reserved to the respondent to seek review of this order if they find the petitioner indulging in tampering of the official records relating to the allegations or influencing the witnesses.


JUDGMENT Gajendragadkar, C.J.

1. This appeal has been brought to this Court by the appellant, Dr. <NAME>, on a certificate granted to him by <ORG>. It arises from an election petition filed by him on April 10, 1962 before <ORG> (II), Chandigarh (No. 99 of 19,62) against the five respondents. These respondents are: <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, respectively. The appellant contested the election to <ORG> from the Dasuya Constituency at the last General Election in the beginning of 1962. The result of this election was declared on February 25, 1962 when respondent No. 1, <NAME>, was declared to have been duly elected. The appellant and respondent No. 1 had secured 22,406 and 22,803 votes, respectively' and so, it is clear that respondent No. 1 had a very narrow margin over the appellant. The other respondents appeared to have played no significant part in the election, because the votes they secured were 948, 682, 240 and 756, respectively. After the result of the election was announced, the appellant filed an election petition under the relevant provisions of the Representation of the People Act , 1951 (No. 43 of 1951) (hereinafter called "the Act"). By his petition, the appellant claimed a declaration that the election of respondent No. 1 was void and that he had in fact been duly elected at the said election. The proceedings before the <ORG> were lengthy and protracted and the dispute between the parties appears to have been fought with great bitterness and heat. The appellant made several allegations against respondent No. 1 and urged on the strength of the said allegations that his election was void. One of the prayers made by the appellant in his election petition was that for the reasons which he had indicated therein, he was entitled to have an inspection of the ballot boxes and a recount made of the votes cast in favour of the respective parties. The <ORG> upheld his plea and allowed inspection of the ballot boxes. As a result of the recount made by the <ORG>, the <ORG> came to the conclusion that the appellant be declared to have been elected at the said election.

2. At the trial, the <ORG> initially raised 14 issues; some of them were in the nature of preliminary issues, while others had reference to the merits of the controversy between the parties. On the 24th August 1962, on a request made by respondent No. 1, two more issues were added, and that made the number of issues 16. Thereafter, on the 3rd September 1962, the <ORG> added three more issues. In consequence, 19 issues came to be tried by the <ORG>.

3. The decision of the <ORG> which was in favour of the appellant, however, rested on three findings. It held that respondent No. 1 had committed the corrupt practice of bribery by offering and giving Rs. 1,000 to <NAME> with the object of inducing him to withdraw from being a candidate at the election, and by offering and giving Rs. 2,000 at Safdarpore to <NAME> and others with the object of inducing the electors in that village to vote for him at the election. These two findings would show that respondent No. 1 had committed corrupt practices as defined by Section 123(1)(A)(a) and (b) of the Act. The <ORG> further found that the result of the election in so far as it concerned the returned candidate had been materially affected by the improper reception of votes in his favour which were void and by the improper rejection of valid votes polled in favour of the appellant. On a proper re-counting, the <ORG>, came to the conclusion that respondent No. 1 had received 22,412 votes, and the appellant was found to have received 22,491 votes. This conclusion of the <ORG> was recorded under Section 100(1)(d)(iv) of the Act. In the result, the <ORG> allowed the election petition, declared the election of respondent No. 1 to be void, and gave the appellant a declaration that he had been duly elected to <ORG> from the Dasuya Constituency of Hoshiarpur District. This decision of the <ORG> was pronounced on the 7th April 1964.

4. Against this decision, respondent No. 1 preferred an appeal before <ORG>. Before <ORG> respondent No. 1 challenged the correctness of the findings which had been recorded against him by the <ORG>. The appellant supported the said findings and also attempted to support the final conclusion of the <ORG> on the additional ground that the <ORG> was in error in recording findings against him on two issues. These two issues arose from the case made out by the appellant that respondent No. 1 had, in the course of his election, exceeded the amount of Rupees 7,000 which is the permissible expenditure under the law. According to the appellant, respondent No. 1 had in fact spent Rs. 16,340. The <ORG> had rejected this case, and the appellant urged before <ORG> that the decision of the <ORG> on this issue was wrong. Similarly, the appellant had urged before the <ORG> that respondent No. 1 had paid by way of bribe Rs. 1,000 to <NAME>, respondent No. 3 who was a contesting candidate at the election; and the <ORG> has found that this story had not been satisfactorily proved. The appellant argued before <ORG> that even this finding was wrong.

5. That is how <ORG> was called upon to consider the correctness of the findings recorded by the <ORG> against respondent No. 1, and also to consider whether the appellant was right in contending that the findings recorded by the <ORG> in favour of respondent No. 1 on two issues were justified. The two learned Judges of <ORG> who heard this appeal have delivered separate, but concurring, judgments dealing with the points which had been conveniently divided between them for elaborate treatment and discussion. In the result, <ORG> has held that the findings recorded by the <ORG> on two issues in favour of respondent No. 1 were justified, whereas the findings recorded by it in favour of the appellant arid against respondent No. 1 were not justified. The" appeal preferred by respondent No. 1 was accordingly allowed, and the election petition filed by the appellant was ordered to be dismissed.

6. As we have already indicated, the contest between the parties in the present proceedings has been very bitter, and elaborate evidence has been led by both of them in regard to the several issues which arose for decision. The paper-books which have been prepared in this appeal for our use extend over nearly 1,700 printed pages, the judgment of the <ORG> spreads over 172 pages, whereas the two judgments delivered by the learned Judges of <ORG> occupy about 100 pages. Even so, as often happens, the controversy between the parties before this Court has been limited to a few points which can be legitimately raised under Article 136 of (he Constitution.

7. It is relevant at the outset to indicate briefly the approach which this Court generally adopts in dealing with election appeals brought before it under Article 136. It is well settled that the jurisdiction of <ORG> in dealing with an election appeal under Section 116-A of the Act is very wide. It is open to <ORG> to re-appreciate the evidence and consider the propriety, correctness or legality of the findings recorded by the <ORG> in its order under appeal. Naturally, as <ORG>, <ORG> would not interfere with the findings of the fact recorded by the <ORG> which are based merely on appreciation of oral evidence. But that is not to say that <ORG> cannot so interfere if it comes to the conclusion that the impugned finding is erroneous and deserves to be reversed. When the matter comes to this Court under Article 136 against the appellate decision of <ORG>, this Court generally does not interfere with question of fact. Ordinarily, the findings of fact recorded by <ORG> in dealing with an appeal under Section 116-A of the Act are not disturbed, unless there are strong and compelling reasons to do so. The position becomes still more difficult for the appellant where the findings of fact recorded by <ORG> happen to confirm similar findings recorded by the <ORG>. That is why the limits of the controversy in election appeals brought to this Court under Article 136 naturally become very narrow.

8. In the present case on two points <ORG> and the <ORG> have made concurrent findings. The first is in relation to the expenses alleged to have been incurred by respondent No. 1 in excess of the permissible limit of Rs. 7,000; and the other is in relation to the bribe alleged to have been paid by respondent No. 1 to <NAME>, respondent No. 3. Both the <ORG> and <ORG> have elaborately considered the oral evidence led by the parties and have examined the probabilities in the case and the conduct of the parties respectively. It appears from these findings that neither <ORG>, nor the <ORG> was satisfied that it would be safe to accept the evidence adduced by the appellant and hold that respondent No. 1 was guilty of the charge of excessive expenditure or of offering a bribe to <NAME>. That being so, we have not allowed Mr. <NAME> for the appellant to raise these points before us, because we thought that we would not be justified in examining the evidence ourselves to consider the propriety or correctness of the said findings.

9. That takes us to the two allegations of bribe-giving on which <ORG> has reversed the conclusions of the <ORG>. Even in considering Mr. <NAME>'s contention that the findings recorded by <ORG> on these two points are erroneous, our approach naturally is to enquire whether Mr. <NAME> is able to show any serious error in the approach adopted by <ORG> or in its appreciation of evidence which would justify our interference. In considering this aspect of the matter, the nature of the enquiry would be not whether this <ORG> would necessarily have come to the same conclusion as <ORG> has done, but whether the conclusion of <ORG> is so erroneous that this <ORG> must interfere with it. After all, in dealing with questions of this kind, <ORG> has to take into account the oral as well as the documentary evidence bearing on the points and the other relevant and material circumstances. If, after carefully considering all such evidence, <ORG> comes to a definite conclusion, ordinarily this <ORG> would not feel inclined to interfere with such a conclusion after appreciating the relevant evidence itself. That is the approach which we propose to adopt in dealing with the contentions raised by Mr. <NAME> in the present appeal.

10. The first charge of bribe made by the appellant against respondent No. 1 is that respondent No. 1 persuaded <NAME> to withdraw his candidature from the election. It was his case that <NAME> is an Ad-Dharmi and an influential member of his community; and he urged that <NAME> had been adopted as an official candidate by <ORG>. The appellant specifically averred that respondent No. 1 had offered to <NAME> Rs. 1,000/- with a view to induce him to withdraw from his candidature. In that connection, it was alleged that respondent No. 1 met <NAME> on the 30th January, 1962 along with <NAME>, a <ORG> worker, and <NAME>, the District Secretary of <ORG>, and made a formal request that <NAME> should withdraw. As a result, Rs. 1,000/- were paid and <NAME> withdrew his candidature from the election.

11. In support of this case, the appellant examined <NAME>, P. W. 16, <NAME>, P. W. 30, and <NAME>, P. W. 31, whereas respondent No. 1 examined <NAME>, R. W. 14, and <NAME>, R. W. 13. According to <NAME>, when the bribe of Rs. 1000/- was offered by respondent No. 1, he did not accept the money, but <NAME> did. It would thus be seen that the decision of this question depends on whether the evidence given by the 3 witnesses whom the appellant examined, was to be preferred to the evidence given by the 2 witnesses whom respondent No. 1 examined. <ORG> was not prepared to believe the evidence of the appellant's witnesses. It held that <NAME> appeared to be the tenant of the appellant at the relevant time, and in that sense, was not reliable. In regard to <NAME>, <ORG> thought that part of the evidence given by him was inadmissible; and with regard to <NAME>, it took the view that he was not a trustworthy witness. On the other hand, <ORG> was inclined to take the view that the evidence given by respondent No. 1's witnesses <NAME> and <NAME> was more reliable,

12. There are two comments which <ORG> has made in reversing the conclusion of the <ORG> on this part of the appellant's case. The first comment is that the <ORG> has not given due' consideration to the fact that the evidence of <NAME> and <NAME> satisfactorily shows that <NAME> was not adopted by <ORG> as its own candidate at all; and <ORG> has observed, and we think, rightly, that if <NAME> had not been duly adopted as an official candidate by <ORG>, the whole basis of the appellant's case that he was an important rival and had, therefore, to be persuaded to withdraw from the election, falls to the ground. The evidence to which <ORG> has referred in support of its finding that <NAME> had not been adopted by <ORG> as its candidate, is very satisfactory; and so, the criticism made by <ORG> against the <ORG> in that behalf cannot be said to be unjustified.

13. The other comment which <ORG> has made in regard to the decision of the <ORG> has reference to the criticism made by respondent No. 1 against <NAME>. <NAME> claimed to be a staunch <ORG>worker of long-standing and presumably to support this claim, he appeared in the witness-box dressed in 'khaddar' clothes which generally constitute the uniform of <ORG> workers. It was suggested to <NAME> in cross-examination that he had put on 'khaddar' clothes only a day before he appeared in the witness-box to create an impression that he always put on the 'khaddar' uniform of the <ORG> Party. Dealing with this criticism made by respondent No. 1 against the conduct of <NAME>, the <ORG> has observed in its judgment that the 'khaddar' clothes which <NAME> had worn did not appear to be new. <ORG> has pointed out that this observation made by the <ORG> does not appear to be justified, because the <ORG> had not made any note to this effect when the evidence of <NAME> was recorded. The <ORG> delivered its judgment long after the evidence of <NAME> was recorded, and if it wanted to make an observation of this character, it should have made a contemporaneous note to that effect in the record of the proceedings. We cannot see how Mr. <NAME> can quarrel with the comment thus made by <ORG> against the <ORG>'s observation. Therefore, we are satisfied that no legitimate or valid grievance can be made by the appellant in regard to the finding recorded by <ORG> in respect of the appellant's case that Rs. 1,000/- were paid by respondent No. 1 for the withdrawal of <NAME> from the election.

14. The next charge of bribery is in relation to the payment of Rs. 2,000/- alleged to have been made by respondent No. 1 to <NAME> of village Safdarpore. The appellant's case is that when respondent No. 1 offered Rs. 2,000/- to <NAME> on the 22nd February, 1962, <NAME> was first reluctant to accept that amount; but respondent No. 1 left the amount with him and it was subsequently credited to the <ORG> funds. The appellant urged that the receipt of this amount was expressly referred to in the <ORG>s resolution passed on the 8th March, 1962. In support of this case, the appellant examined <NAME>, P. W. 17, a member of the <ORG> and <NAME>, P. W. 18, a resident or the village. It appears that <NAME> was called upon to produce the records of the <ORG> in order to enable the appellant to prove his case. Ext. P. 41 is the proceeding book in which the resolution of the 5th March, 1962 is recorded. When <NAME> produced the said record, two loose sheets of paper were found among the pages of the Cash Book (Ext. P. 42) and they have been admitted and marked as Exts. P. 43 and P. 43-A in spite of the objection of respondent No. 1. The appellant relied on these two sheets as well as the resolution. Respondent No. 1 examined <NAME>, Sarpanch, R. W. 23, <NAME>, the Secretary of the <ORG> R. W. 20 and <NAME>, R. W. 24, a Member of the <ORG>. <ORG> has held that the position disclosed by the evidence led by the parties was unsatisfactory and that the matter "is not free from doubt", with the result that <ORG> was unable to make a finding that the charge leveled against respondent No. 1 in respect of the payment of Rs. 2,000/- to the <ORG> of the village had been brought home to him.

15. Mr. <NAME> has strenuously contended that <ORG> was in error in recording this finding. He does not dispute the fact that when <ORG> deals with allegations about the commission of corrupt practice by a returned candidate, the charges framed are in the nature of quasi-criminal charges. The proof of the charge has a double consequence; the election of the returned candidate is set aside, and he incurs subsequent disqualification as well. Therefore, when a charge of this kind is framed against a returned candidate, it has to be proved satisfactorily. It is true that <ORG> itself has observed that the cross-examination of <NAME> and <NAME> did not disclose any intrinsic infirmity to justify the rejection of their evidence; but it has also pointed out that there is no reason why the evidence of <NAME>, <NAME> and <NAME> should be disregarded either. Thus, the state of the oral evidence was fairly equally balanced, and the decision of the issue, therefore, depended upon the documentary evidence produced in the proceedings, and it is on the documentary evidence that Mr. <NAME> has placed considerable reliance.

16. The resolution passed by the <ORG> on the 5th March, 1962 reads thus:--

"It was also passed that <ORG> has got collected a sum of Rs. 3,000/- for the school and that the Government should also give a grant of Rs. 3,000/- for the school. This grant should be given Immediately and should be sent without any loss of time in order that the construction work of the school building may be started. This was passed. It was also resolved that a copy of the resolution be sent to the Block Development Officer with the request that the grant of the school should be sent immediately."

Mr. <NAME> contends that the first part of the resolution clearly indicates that an amount of Rs. 2,000/- had been received by the <ORG> from respondent No. 1. It is common ground that at the relevant date, the <ORG> had about Rs. 1,200/- cash balance with it; and the argument is that the said cash balance and the amount of Rs. 2,000/- paid by respondent No. 1 represent Rs. 3,000/- which is referred to as having been collected by the <ORG>. This argument has not been accepted by <ORG>. <ORG> took the view that since the object of the resolution plainly was to secure from the <ORG> a matching grant of Rs. 3,000/-, the recital that Rs. 3,000/- had already been collected need not be literally construed. <ORG> referred to the fact that about Rs. 2,200/-was lying in deposit with the Board which was due to the <ORG> by way of compensation for the acquisition of some land in the village for the construction of a road; and since the <ORG> was entitled to recover this amount, it might have treated that amount as already received. On the other hand, it is shown by evidence that this amount had not in fact been received on the date of the resolution, and was not received even thereafter before the school building was completed. In dealing with the question as to whether the conclusion of <ORG> is right or not, we cannot lose sight of the fact that the object of the resolution was undoubtedly to secure a matching grant from the <ORG> for the construction work of the school building; and so, we are not prepared to hold that <ORG> was in error in refusing to treat me first recital in the resolution too literally.

17. Mr. <NAME>, however, strenuously contended before us that this conclusion of <ORG> is shown to be erroneous by the fact that the construction work was substantially completed between March and July, 1962, and the necessary expenses actually incurred; and he points out that unless Rs. 2,000/- bad been actually received by the <ORG>, it would have been impossible for the <ORG> to pay the expenses incurred in the construction of the school building. This aspect of the matter, no doubt, makes the appellant's case arguable; but the difficulty in accepting the argument lies in the fact that <ORG> hag made a definite finding that the slips of paper Exts. P. 43 and P. 43-A as well as the cash book produced in the proceedings showed that the <ORG> had received considerable amount during the period from its legitimate sources of income. The <ORG> has found that "all that is shown by the entries in the cash book and the abstracts P. 43 and P. 43-A is that the money spent on the work of construction came from the <ORG> funds available to the <ORG> without either any Rs. 2,000/- from <NAME> or from the compensation". The <ORG> has also found that the said documents showed that the <ORG> had about Rs. 1,200/- in hand in March, 1962 and that at no time had the expenditure on the construction work exceeded the amount available in the <ORG> funds up to July. Therefore, the main argument on which Mr. <NAME> rested his case before us does not appear to be well founded. The evidence shows that the <ORG> had funds at its disposal from which the expenditure involved in the construction of the school building could be, and must be, deemed to have been incurred. It is not, therefore, possible to accept the argument that but for the receipt of Rs. 2,000 from respondent No, 1, this expenditure could not have been incurred. That is why we do not think that we would be justified in interfering with the finding of <ORG> on this point.

18. That takes us to the question as to whether respondent No. 1 was guilty of a corrupt practice under Section 123(4) of the Act. The appellant's case is that respondent No. 1 was responsible for the publication of a pamphlet in "<ORG>" which made four false allegations in regard to the personal character of the appellant, and he made those allegations believing them to be false, or not believing them to be true. That is how a charge under Section 123(4) was leveled against respondent No. 1 by the appellant. He also urged that by the publication, in <ORG>, of certain false reports respondent No. 1 had made false statements in relation to the candidature of the appellant knowing that the said statements were false and not believing them to be true. That, again, is a charge under Section 123(4) . The <ORG> and <ORG> have made concurrent findings against the appellant on both these points; but Mr. <NAME> contends that in recording the said findings, they have misdirected themselves in law, and that is why it is necessary to consider the points of law raised by Mr. <NAME> in this connection.

19. Section 123(4) provides, inter alia, that the publication by a candidate of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature of any candidate, being 4 statement reasonably calculated to prejudice the prospects of that candidate's election, is a corrupt practice. It would be noticed that the onus to prove the essential ingredients prescribed by the said subsection is on the appellant. He has to show that the impugned statement has been published by the candidate or his agent or by any other person with the consent of the candidate or his election agent. This fact has been proved in the present case in regard to both the statements. The appellant has further to show that the impugned statement is a statement of fact which is false; that respondent No. 1 either believed that the said statement was false, or did not believe it to be true; and that the statement is in relation to the personal character or conduct of the candidate or his candidature.

20. The question as to what allegations can be said to amount to allegations in regard to the personal character of a candidate, as distinguished from his public character, is not always easy to decide on consideration of abstract principles. The policy underlying the present provision is that in the matter of elections, the public and political character of a candidate is open to scrutiny and can be severely criticised by his opponents, but not so his private or personal character. In order that the elections in a democratic country should be freely and fearlessly conducted, considerable latitude has to be given to the respective competing candidates to criticise their opponents' political or socio-economic philosophy or their antecedents and character as public men. That is why even false statements as to the public character of candidates are not brought within the mischief of Section 123(4) , because the legislature thought that in the heat of election it may be permissible for competing parties and candidates to make statements in relation to the public character of their opponents, and even if some of the statements are false, they would not amount to corrupt practice. Having regard to this policy of the statute, it often becomes necessary to examine carefully whether the false statement impinges on the personal character of the candidate concerned. Though it is not easy to lay down any general considerations which would help the determination of this issue in every case, in actual practice it may not be very difficulty to decide whether the false statement impinges on the personal character of the candidate or on his public character. It would be inexpedient and undesirable to lay down any general principle in that behalf [vide <CITATION> , ; and <NAME> v. <NAME> Reddy, (1961) 22 Ele LR 261 (SC)].

21. Let us now refer to the statements published in the "Quami Ekta" (Ext. P-22) which according to the appellant, constitute a corrupt practice under Section 123(4) of the Act. The said statements read as under:--

"1. that among those who drink, his rank is very high;

2. that he trimmed his beard which was contrary to the Sikh religion;

3. that he falsely claimed to be the Chief Minister's man and the C. I. D. Police, therefore, was after him; and

4. that he was an unprincipled 'chhokra'."

22. <NAME> the <ORG> and <ORG> have held in the present proceedings that the first two statements have relation to the personal character of the appellant, whereas the last two have relation to his public character. We see no reason to differ from this conclusion. <NAME> the <ORG> and <ORG> have also held that it is not shown that at the time when the statements were made, respondent No. 1 believed them to be false, or did not think them to be true. It is the correctness of this conclusion which is seriously challenged before us by Mr. <NAME>.

23. It appears that a criminal case is pending between the appellant and respondent No. 1 in regard to this pamphlet, and the <ORG> thought that having regard to the fact that the matter had gone before a criminal Court, it would be better if it did not make a specific and definite finding as to the falsity of the statements made in the pamphlet. Even so, the <ORG> considered the oral evidence led by the parties and came to the conclusion which we have already mentioned. <ORG> has adopted the same approach and has concurred with the findings of the <ORG>. It appears that the oral evidence adduced by respondent No. 1 shows that the appellant was in the habit of taking drinks, and that he had trimmed his beard which is contrary to the Sikh religion. Having considered the said evidence, a finding has been made in favour of respondent No. 1 on the lines just indicated.

24. Mr. <NAME>, however, contends that in reaching this conclusion, both the <ORG> and <ORG> have failed to take into account one important fact arising from the pleadings of the parties. He argues that in the petition filed by the appellant, he had specifically, clearly, and definitely averred that the publication of the pamphlet amounted to a corrupt practice on the part of respondent No. 1; and he points out that though respondent No. 1 denied that he had anything to do with the publication of the pamphlet, he did not traverse the plea made by the appellant that the impugned statements were false, that they concerned his personal character, and that they were believed to be false by respondent No. 1 and not believed to be true by him. Mr. <NAME>'s case is that if respondent No. 1 did not specifically controvert the material allegations made by the appellant in his petition in respect of this charge, it was not open to the <ORG> to allow respondent No. 1 to lead evidence in rebuttal; and both the <ORG> and <ORG> should have ignored that evidence and should have given full effect to the fact that respondent No. 1 had not denied the essential ingredients of the charge which had been specifically pleaded by the appellant in his election petition. In substance, the argument is based on the provisions of Order 8, Rule 5 of the Code of Civil Procedure: Mr. <NAME> contends that the procedure prescribed by the Code applies to election proceedings; and so, he relies on the provisions of Order 8, Rule 5 in support of his argument that the present charge should have been held to be proved against respondent No. 1.

25. We are not impressed by this argument. In considering the question as to whether the strict rule of pleadings prescribed by Order 8, Rule 5 applies to election proceedings with all its rigour, we must bear in mind the fact that the charge like the present is in the nature of a criminal charge and the proceedings in respect of its trial partake of the character of quasi-criminal proceedings. It is true that Section 90 of the Act provides that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the <ORG>, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. This provision itself emphasises the fact that the whole of the Civil Procedure Code is not fully applicable. What the section provides is that the proceedings should be tried "as nearly as may be" according to the Code of Civil Procedure. If the contention raised by Mr. <NAME> is accepted at its face value, it may logically lead to this consequence that if a returned candidate does not controvert the allegations made by the petitioner in his election petition alleging the commission of a corrupt practice by the returned candidate, a finding would have to be made in favour of the petitioner without any evidence at all. In other words, the question is: can a corrupt practice prescribed by Section 123(4) of the Act be held to be proved merely on the ground that no specific denial has been made by the returned candidate in his written statement in that behalf? In considering this point, we cannot overlook the fact that the onus to prove the essential ingredients of Section 123(4) is on the petitioner, and so, it would be for him to prove that the statement is false, and that the other requirements of the section are satisfied. Having regard to the nature of the corrupt practice which is prescribed by Section 123(4) , we are not prepared to hold that the strict rule of pleadings prescribed by Order 8, Rule 5 of the Code can be blindly invoked in election proceedings of this type.

26. Besides, it is plain that there is a proviso to Order 8, Rule 5 which, in terms, confers jurisdiction on the <ORG> that even if a fact can be deemed to be admitted by virtue of the said rule, it may nevertheless be proved otherwise than by such admission. This proviso clearly shows that even in civil proceedings to which the Code applies, it is open to the <ORG> to exercise its discretion and require a party to prove a fact even though an admission of the said fact by the opponent can be inferred by the strict application of Order 8, Rule 5; and that is precisely what the <ORG> has done in the present ease. When this question was argued before the <ORG>, it examined the arguments urged by both the parties and held that in the interests of justice, it was necessary to allow respondent No. 1 to lead evidence in rebuttal; and it is in the light of the evidence led by respondent No. 1 that the <ORG> made its finding on this issue against the appellant and the said finding has been confirmed by the High <ORG>. Therefore, we do not think that the points of law raised by Mr. <NAME> in respect of this charge really assist him to challenge effectively the correctness of the findings recorded by the <ORG>s below.

27. Then as to the charge that the publication of certain statements and posters by respondent No. 1 amounted to a corrupt practice under the latter part of Section 123(4) , the position is not any better for the appellant. It is true that the publication of a false statement in relation to the candidature of the appellant would amount to a corrupt practice if the other ingredients of the said provision are satisfied. The <ORG> and <ORG> have held that the false statement on which the argument is founded, does not have any reference to the candidature of the appellant at all, and in our opinion, this conclusion is right. Let us briefly indicate why?

28. The poster in question reads thus:--

"IMPORTANT ANNOUNCEMENT OF <ORG>, Amritsar Vote for <NAME> Dear Khalsa Ji.

It is for your information that <ORG> has nominated <NAME> as its candidate. As the letter could not reach in time. Therefore he has been allotted the symbol of "Tree". We appeal to all the Akali workers and the <ORG> that they should support him and make him successful. <NAME> is the only tried Sewak of the <ORG>. He has rendered great services during the Akali Morcha. Even now there is a warrant of arrest against him. The Sikh Masses should not labour under misunderstanding and they should help in flying the <ORG>ic Flag high.

<NAME>, <NAME>, Vice-President. President. <NAME>, <ORG>, Urmur".

No evidence has been brought on the record to show that either <NAME> or <NAME> signed this document. In fact, Master <NAME> who was the President of <ORG> has denied that he or <NAME> had signed it; and so, in relation to the said two signatures the poster is a false document. It is also proved that respondent No. 1 is responsible for the publication of this document. But the question which arises for our decision is: does this document have relation to the candidature of the appellant? What this document purports to do is to ask the Akali workers and the <ORG> to support the candidature of <NAME>. The argument is that since the appellant had received the support of the <ORG> party, this poster was intended to weaken the appellant's position by making a false representation to the followers of the <ORG> that <NAME> deserved their support, because he was the only tried <NAME> of the <ORG>. It seems to us that the requirement of Section 123(4) is plain and unambiguous. The impugned statement on which a charge under the said provision can rest, must be shown to be false, and must have relation to the candidature of the candidate. Now, this document and the other documents which were similarly published do not make any reference to the candidature of the appellant at all. Besides, it is significant that the appellant had not been adopted by the <ORG> party as its official candidate, so that if the poster represented to the Akali workers that <NAME> deserved their support, it cannot be said even by necessary inference or implication that the candidature of the appellant was referred to; perhaps such an inference could have been drawn if the appellant had been adopted as an official candidate by the <ORG> party.

29. On the contrary, the evidence in the case shows that <NAME> was intended to be adopted by the <ORG> party as its official candidate. A telegram Ex. R. 2 was sent by <ORG>, Amritsar to the Returning Officer requesting him to allot "HAND" which was the symbol of the <ORG>, to <NAME> who was an Akali candidate; but apparently, this telegram was received late and the symbol of "Hand" could not be allotted to <NAME>. The evidence given by <NAME> (R. W. 17) Secretary of the <ORG>, clearly shows that the <ORG> had nominated <NAME> as a candidate and a telegram had been sent to the Returning Officer by <NAME>, who was the General Secretary, under the authority of <NAME>. Ex. Rule 3 shows that <NAME> and <NAME> had been authorised by the <ORG> to request the Returning Officer to allot the adopted candidate the symbol chosen by the <ORG>. It may be that ultimately, <ORG> decided to support the appellant, and not <NAME>; hut that has no relevance on the point which we are considering under Section 123(4) Reading the impugned poster fairly, it is difficult to accept Mr. <NAME>'s contention that the said poster makes a false statement in relation to the candidature of the appellant. That being so, it is unnecessary to consider whether the other requirements of Section 123(4) in relation to this poster are satisfied or not.

30. That leaves one more point to consider, and it is related to the order passed by the <ORG> directing the inspection of the ballot boxes and examination of the voting papers cast by the electors in favour of the respective candidates. We have already noticed that the Election <ORG> allowed the appellant to inspect the ballot boxes, examined the objections raised by the appellant in regard to the validity or invalidity of a large number of voting papers, and ultimately counted the votes cast in favour of the appellant and respondent No. 1. <ORG> has found that the <ORG> was in error in allowing inspection of the ballot boxes, and it has also held that the finding made by it after examining the objections raised by the appellant, is also not correct. It is unnecessary for us to consider this latter part of <ORG> conclusion, because, in our opinion, <ORG> was right in holding that no case had been made out by the appellant for the inspection of the ballot boxes at all. That being so, it is unnecessary to enquire what would he the result if the objections raised by the appellant are considered and the votes are recounted. So, the narrow question at his stage is: was the <ORG> justified in allowing inspection of the ballot boxes in the present proceedings.

31. The true legal position in this matter is no longer in doubt. Section 92 of the Act which defines the powers of the <ORG>, in terms, confers on it, by Clause (a), the powers which are vested in a <ORG> under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the <ORG> can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the <ORG> has to bear in mind certain important considerations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the <ORG> must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the <ORG> to consider whether in the interests of justice, the ballot boxes should he inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes mid for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the <ORG> to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; hut in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. We do not propose to lay down any hard and fast rule in this matter; indeed, to attempt to lay down such a rule would be inexpedient and unreasonable.

32. Whenever <ORG> is called upon to consider this question, it should not ignore the safeguards which have been prescribed by the relevant Rules prescribed in Part V of the Conduct of Elections Rules, 1961. Let us briefly indicate the broad features of these Rules. Under Rule 53, candidates, their election agents or counting agents are admitted to the place fixed for counting of votes. Rule 54 emphasises the importance of the maintenance of secrecy of voting. Rule 55 deals with the scrutiny and opening of ballot boxes; before a ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it: is intact. The Returning Officer has himself to take care to see that no ballot box has been tampered with. In case any tampering of the ballot boxes is disclosed, the Returning Officer has to take action under Rule 58. Rule 56 provides for the scrutiny and rejection of ballot papers. Rule 56 (1) lays down that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Then objections are raised as specified by Sub-rule (2) and are dealt with in accordance with the provisions of other sub-clauses of Rule 56 (2). It is thus clear that the scheme of Rule 56 is that every ballot paper can be examined by the counting agent and objections can be raised in respect of it if the election agent feels that a valid objection can be raised. It is after these objections are examined and dealt with according to Rule 56 that the stage of counting votes arrives. Even after the completion of the counting, it is open to a candidate or his election agent to apply in writing to the Returning Officer for a re-count of all or any of the ballot papers already counted stating the grounds on which he demands such recount. That is the effect of Rule 63 (2). After all this procedure has been gone through, the Returning Officer completes the result sheet in Form 20, and signs it. Once that is done, no application for a re-count shall he entertained. We have referred broadly to the scheme of these Rules to emphasise the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly over-ruled, <NAME> knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be app<NAME>d to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.

33. This question has been considered by this Court on several occasions. <CITATION> , , this Court observed that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. The same view has been expressed in Smt. Dr. <NAME> v. <NAME>, (1964) C. A. No. 222 of 1964, D/- 18-3-1964 (<ORG>), and in <NAME> v. <NAME>, (1965) C. A. No. 45 of 1965, D/- 10-2-1965.

34. Let us then examine whether the appellant's petition contained a concise statement of the material facts on which a claim for inspection of ballot papers can be justified. In the application made by the appellant on the 7th March, 1963, he urged that in the election petition filed by him, it had been averred that a very large number of votes purported to have been cast in favour of the appellant had been improperly rejected, and that has materially affected the result of the election; and he added that there was also an allegation that a large number of votes which were invalid had been improperly accepted in favour of respondent No. 1 which has also materially affected the result of the election. This application further sets out the appellant's version that the Returning Officer disclosed a partisan attitude and the counting and examination of votes was done in a very irregular manner. The appellant pleaded that he had led some evidence regarding the misconduct of the Returning Officer at the time of the counting; and so, a prayer was made that the ballot papers may be allowed to be inspected "in order to enable the appellant to establish his case both regarding improper rejection and reception of ballot papers and the non-compliance with the rules under the Act on the part of the Returning Officer which have materially affected the result of the election in so far as respondent No. 1 is concerned". It may be observed that at the time when the application for inspection was made, evidence had already been led before the <ORG>; and Mr. <NAME>'s contention is that the <ORG>, on considering the evidence in the light of the allegations made by the appellant, was satisfied that an inspection should be ordered in the interests of justice; and he argues that <ORG> was in error in reversing this order on appeal.

35. We are not prepared to accept this contention. The order passed by the <ORG> clearly shows that the <ORG> did not apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. All that the <ORG> has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. In dealing with this question, the <ORG> should have first enquired whether the application made by the appellant satisfied the requirements of Section 83(1) of the Act; and, in our opinion, on the allegations made, there can be only one answer and that is against the appellant. We have carefully considered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that respondent No. 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the <ORG> to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the ballot papers contained In it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the statutory rules and with the object of keeping the ballot papers secret. That is why we are satisfied that <ORG> was right in coming to the conclusion that the appellant had failed to make out a case for the inspection of the ballot boxes in this case.

36. Before we part with this appeal, we would like to refer to three matters which show that respondent No. 1 did not contest this litigation with clean hands. The <ORG> has referred to the part played by respondent No. 2 <NAME> in the present proceedings, and has made a bitter comment about the relation between <NAME> and respondent No. 1. <ORG> has referred to the sordid story about the part played by <NAME> in collusion with respondent No. 1 in relation to the evidence which he gave in the present proceedings. Similarly, the part played by respondent No. 1 in assisting the adoption of a somewhat coercive and terrorising attitude in relation to <NAME> who was a witness for the appellant, has also been criticised by the <ORG> in strong words. While expressing our concurrence with the comments made by the <ORG> and <ORG> in regard to these three matters, we wish to express our strong disapproval of the course of conduct adopted by respondent No. 1 in relation to these three matters. We have no doubt that the said conduct of respondent No. 1 is wholly unworthy of the high position which he holds in public life.

37. The result is, tine appeal fails and is dismissed. There would be no order as to costs.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND OTHERS. DATE OF JUDGMENT: 25/04/1954 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> MAHAJAN, <NAME>, B.K. BOSE, VIVIAN BHAGWATI, <NAME> CITATION: 1954 AIR 411 1955 SCR 140 CITATOR INFO : F 1955 SC 610 (4) R 1957 SC 397 (30) R 1959 SC 459 (50) F 1968 SC 22 (4) RF 1986 SC 441 (4) ACT: Constitution of India- Article 136- Supreme Court-If and when can interfere with findings of facts in appeal- Representation of the People Act (XLIII of 1951), ss. 85 , 90(4) -Requisites and finality of condonation of delay under s. 85 and powers conferred thereunder-Scope and extent of powers given to <ORG> under s. 90(4) . HEADNOTE: Held, that <ORG> does not, when hearing appeals under Article 136 of the Constitution, sit as a Court of further appeal on facts, and does not interfere with findings given on a consideration of evidence, unless they are perverse or based on no evidence and this is particularly so when the findings under challenge are those of Election <ORG>s. The rights under litigation in election 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 of the Representation of the People Act, 1951, does not contemplate <ORG> 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 <ORG> and the petitioner, and to make the decision of <ORG> 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 , <ORG> has a discretion either to dismiss it or not, "notwithstanding anything contained in section 85 ". The scope of the power conferred on <ORG> under section 90(4) is that it overrides the power conferred on <ORG> under section 86 to dismiss the petition. It does not extend further and include a power in <ORG> to review any order passed by <ORG> under section 85 of the Act. The words of section 90(4) are, "notwithstanding anything contained in section 85 " and not "notwithstanding anything contained in section 85 or any order passed thereunder". An order of <ORG> 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 <ORG> passes the petition on to the <ORG> 141 without passing any order under section 85 . If <ORG> 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 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 stage. The proviso advisedly confers on <ORG> wide discretion in the matter, and the obvious intention of the <ORG> was that is should be exercised with a view to do justice to all the parties. <ORG> 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 remedies under the law. While the proviso to section 85 requires that "the person making the petition" should satisfy <ORG> that there was sufficient cause for delay, it does not require that he should do so in person. <CITATION> ( S.C.R. 892); <NAME> v. <NAME> (45I.A. 25); <NAME> v. <NAME> (I.L 'R. 13 Mad. 269) referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of 1954.

Appeal by Special Leave granted by <ORG> by its Order dated the 11th December, 1953, from the Judgment and Order dated the 16th November, 1953, of <ORG>, Cuttack, in Election Case No. 4 of 1952. <NAME>, ( <NAME>, <NAME>, <NAME> and <NAME>, with him) for the appellant.

<NAME>, (<NAME> and <NAME>, with him) for respondent No. 1.

<NAME>, (<NAME> and <NAME>, with him) for respondent No. 2.

1954. April 25. The Judgment of the Court was delivered by <NAME> is an appeal by special leave against the order of <ORG>, Cuttack, setting aside the election of the appellant to <ORG>, Orissa, from the Kendrapara Constituency. Four persons, the appellant and respondents Nos. 1 to 3, were duly nominated for election to the seat. One of them, <NAME> (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 elected. The respondent <NAME>, then presented a petition under section 81 of the Representation of the people (Act No. XLIII of 1951) alleging various corrupt practices on the part of the appellant, and praying that at the election 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 April, 1952, for being sent by registered post, and actually reached <ORG> at Delhi on 5th April, 1952, a day beyond the period prescribed. It was also defective in its verification. Section 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 VI, 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 true. On 2nd July, 1952, <ORG> passed an order condoning the delay in the presentation of the petition. By another communication, dated 3rd July, 1952, it drew the attention of the peti- tioner to the defect in the verification, and suggested that he might apply to the <ORG> for amending it. On 15th July, 1952 an order was passed under section 86 of the Act appointing <ORG>, Cuttack, for the hearing of the petition. The petitioner then applied to <ORG> for amending the verification. That was ordered, and the verification was amended on 24th July, 1952, so as to conform to the prescriptions laid down in Order VI, rule 15(2), of the Civil Procedure Code.

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 <ORG> under section 85 of the Act, and that, in consequence, <ORG> ought to dismiss it as not maintainable. Disagreeing with this contention, <ORG> proceeded to hear the petition on the merits, and 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 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 convoying 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 <ORG> in canvassing for him in the election, they being in the view of <ORG>, Government servants as defined in that provision. On these findings, <ORG> 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.

It is obvious that any one of these findings, if accepted, would be sufficient to support the order of <ORG>. With reference to the last of the findings, it is possible to urge with some force that Extra Departmental Agents and Presidents of <ORG> 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. Mr. <NAME>, learned counsel for the appellant, argued that the conclusion of the majority were not justified by the evidence or record, and that the findings of the third member in his dissentient opinion were the right ones to come to But this <ORG> does not, when hearing appeals under article 136 , sit as a <ORG> 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 <ORG>. 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.

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 <ORG>, its jurisdiction was only to pass the order which <ORG> ought to have passed, and that the petition should accordingly have been dismissed in limine us not maintainable. The proviso to section 85 of the Act runs as follows:

"Provided that if a person making the petition satisfies <ORG> that sufficient cause existed for his failure to present the petition within the period prescribed therefor, <ORG> may in its discretion condone such failure."

It was in exercise of the discretion vested in it under this provision that <ORG> 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. <NAME> 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 are not impressed by this contention. As was pointed, out by this Court in <CITATION> (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 <ORG> giving to the respondent notice of the petition for con- donation 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 <ORG> and the petitioner, and to make the decision of <ORG> 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 , <ORG> has a discretion either to dismiss it or not, " notwithstanding anything contained in section 85 ." The scope of the power conferred on <ORG> under section 90(4) is that it overrides the power conferred on <ORG> under section 85 to dismiss the petition. It does not extend further and include a power in <ORG> to review any order passed by <ORG> under section 85 of the Act. The words of section 90(4) are, it should be marked, "notwithstanding anything contained is section 85 " and not "notwithstanding anything contained in section 85 or any order passed thereunder." An order of <ORG> 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 <ORG> passes the petition (1) A.I.R. 1954 S.C. 210  on to the <ORG> without passing any order under section

85. If <ORG> 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 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 stage. [ Vide the decision of <ORG> in <CITATION> (1)]. It was argued that in this view the respondent would be without remedy even if <ORG> should choose to condone delays-it might be of years-, and that that would result in great hardship. But the proviso advisedly confers on <ORG> wide discretion in the matter, and the obvious intention of the <ORG> was that it should be exercised with a view to do justice to all the parties. <ORG> 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 the law. With particular reference to the order dated 2nd July, 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 <ORG> 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 <ORG> ,decision in <NAME> v. <NAME>), 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 fides is imputable to the appellant." We (1) 45 I.A. 25.

(2) I.L.R. 13 Mad. 269, have, therefore, no hesitation in holding that the order dated 2nd July, 1952, is on the facts a proper one to pass under the proviso to section 85 .

It wag 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 <ORG> had found that that was not done, there was no jurisdiction in <ORG> 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 <ORG> 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 <ORG> 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 2nd July, 1952, being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out of time must be rejected.

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 <ORG> 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 <ORG> declined to do so. If it was within the competence of <ORG> 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. <NAME> sought to get over this difficulty by contending that the order of <ORG> sending the petition for hearing by <ORG> 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, <ORG> 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, 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, Not withstanding anything contained in section 85 , the <ORG> 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 <ORG>, it is a matter of discretion with it to dismiss them or not. The power of <ORG> to condone delay in presentation or defective verification is thus unaffected by the consideration whether that petition was liable to be dismissed by <ORG> 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. In the instant case, with reference to the, plea of limi- tation the position stands thus: The delay was condoned by <ORG> 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 <ORG> had no jurisdiction to pass an order of condonation suo motu, and further accepting the finding of <ORG> that the order dated 2nd July, 1952, was so made, and that it was therefore a nullity, when the matter came before <ORG> 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. The position as regards verification is slightly different. There is no provision corresponding to the proviso to section 85 conferring express power on <ORG> 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 <ORG> 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 <ORG> either to dismiss the petition for defective verification or not. In the present case, <ORG> 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 <ORG> will interfere in appeal under article 136 of the Constitution.

The objection to the maintainability of the petition on the ground of delay in presentation and of defective verification must therefore be overruled, and this appeal dismissed with costs.

Appeal dismissed.