DINABANDHU SAHU versus JADUMONI MANGARAJ AND OTHERS.

Citation: [1955] 1 S.C.R. 140 · Decided: 25-04-1954 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

1954 
April 25. 
140 
SUPREME COURT REPORTS 
[1955] 
DINABANDHU SAHU 
v. 
JADUMONI MANGARAJ AND OTHERS. 
[MEHR CHAND MAHAJAN C.J., MUKHERJEA, VIVIAN 
BosE, BHAGWATI and VENKATARAMA AYYAR JJ.] 
Constitution 
of 
India-Article 
136-Supreme Court-If and 
when can interfere with findings of facts in appeal-Representati'on 
of the People Act (XUI! of 1951), ss. 85, 90( 4)-Requisites and 
finality of condanation of delay under s. 85 and powers conferred 
thereunder-Scope and extent of powers given to an Election T ribtt-
nal under s. 90(4). 
Held, that the Supreme Court 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 con-
sideration of evidence, unless they are perverse or based on no evi-
dence and this is particularly so when the findings under challenge 
are those of Election Tribunals. 
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 the Election Commission 
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 the Election 
Commission and the petitioner, and to 
make the decision of the Election Commission on the question final 
and not open to question at any later stage of the proceedings. 
Under section 90( 4) of the Act, when the petition docs 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 sec-
tion 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 re-
view any order passed by the Election Commission under section 
85 of the Act. 
The words of section 90( 4) are, "notwithstanding 
anything contained in section 85" and 
not 
"notwithstanding any-
thing contained in section 85 
or any 
order 
passed thereunder". 
An order of the Election Commission under section 85 
dismissing 
a pettnon 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 
the Election Commission passes 
the petitiOn on to the Tribunal 
r.~
..
-
-
-
S.C.R. 
SUPREME COURT REPORTS 
141 
without passing any order under section 85. If the Election Com· 
mission 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 advised! y confers on the Election Commission 
wide discretion in the matter, and the obvious intention of the 
Legislature was that is should be exercised with a view to do justice 
to all the parties. The Election Commission might therefore be 
trusted to pass the appropriate order when there is avoidable and 
unreasonable delay. That a power might be liable to be abused is 
no ground for denying it, when the statute confers it, and where 
there is an abuse of power by statutory bodies the parties aggrieved 
are not without remedies under the law. 
While the proviso to section 
85 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. 
/agan Nath v. /aswant Singh ([1954] S.C.R. 892); Krishnasami 
Ranikondar v. Ramsami Chettiar ( 45 I.A. 25) ; Krishna v. Chathap-
pan ( I.L.R. 13 Mad. 269) referred to. 
CIVIL 
APPELLATE 
JurusmcnoN: Civil 
Appeal 
No. 25 of 1954. 
Appeal by Special Leave granted by the Supreme 
Court of India by its Order da

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