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TMI Blog1954 (4) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... clared elected. The respondent Jadumoni Mangaraj, 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 the Election Commission 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kidari Union are not, having regard to their functions, Government servants, and that accordingly there was no contravention of section 123(8). But the position is different as regards the other two findings. They are pure questions of fact, depending on appreciation of evidence. Mr. Krishnaswami Ayyangar, 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 Court does not, when hearing appeals under article 136, sit as a Court of further appeal on facts, and does not interfere with findings given on a consideration of the evidence, unless they are perverse or based on no evidence. This is particularly so, when the findings under challenge are those of Election Tribunals. the findings in this case that the appellant got the third respondent to withdraw on a promise to get him employment, and had used Bus No. O.R.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, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission and the petitioner, and to make the decision of the Election Commission on the question final and not open to question at any later stage of the proceedings. Under section 90(4) of the Act, when the petition does not comply with the requirements of section 81, section 83 or section 117, the Election Tribunal has a discretion either to dismiss it or not, notwithstanding anything contained in section 85. The scope of the power conferred on the Election Tribunal under section 90(4) is that it overrides the power conferred on the Election Commission under section 85 to dismiss the petition. It does not extend further and include a power in the Election Tribunal to review any order passed by the Election Commission under section 85 of the Act. The words of section 90(4) are, it should be marked, notwithstanding anything contained is section 85 and not notwithstanding anything contained in section 85 or any order passed thereunder. An order of the Election Commission under section 85 dismissing a petition as barred will-, under the scheme of the Act, be final, and the same result must follow under section 90(4) when the order is one excusing the delay. Section 90(4) will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the proviso to section 85. It was also argued for the appellant that the power conferred by the proviso to section 85 could, on its true construction, be exercised only when the petitioner moved the matter in person, and as the Election Tribunal had found that that was not done, there was no jurisdiction in the Election Commission to pass the order which it did. We do not see anything in the language of the section to support this contention. While the proviso requires that the person making the petition should satisfy the Election Commission that there was sufficient cause for delay, it does not require that he should do so in person. And there is. nothing in the character of the proceedings requiring that the petitioner should make the representations under that proviso in person. It is only a question of satisfying the Election Commission that there was sufficient ground for excusing the delay, and that could be done otherwise than by the personal appearance of the petitioner. None of the objections advanced against the validity of the order dated 2nd July, 1952, being tenable, the contention that the petition was liable to be dismissed under section 85 as presented out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with it to dismiss them or not. The power of the Election Tribunal to condone delay in presentation or defective verification is thus unaffected by the consideration whether that petition was liable to be dismissed by the Election Commission under section 85. The effect of an order under section 90(4) declining to dismiss the petition on the ground of delay or defective verification is clearly to condone those defects. In the instant case, with reference to the, plea of limitation the position stands thus: The delay was condoned by the Election Commission under the proviso to section 85, and by reason of, that order, the question is,as already held no longer open to consideration at any later stage. Even assuming for the sake of argument that the Election Commission had no jurisdiction to pass an order of condonation suo motu, and further accepting the finding of the Election Commission that the order dated 2nd July, 1952, was so made, and that it was therefore a nullity, when the matter came before the Election Tribunal by transfer under section 86, it had jurisdiction to pass appropriate orders under section 90(4), and its order declining to dismiss the petition is sufficient t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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