RAJ KRUSHNA BOSE versus BINOD KANUNGO AND OTHERS.

Citation: [1954] 1 S.C.R. 913 · Decided: 04-02-1954 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN

Judgment (excerpt)

' 
S.C.R. 
SUPREME COURT REPORTS 
913 
RAJ KRUSHNA BOSE 
v. 
BINOD KANUNGO AND OTHERS. 
fMEHR 
CHAND 
MAHAJAN 
C. J., 
MuKHERJEA, 
S. R. DAS, 
VIVIAN 
BosE and GHULAM 
HASAN JJ.] 
Constitution 
of India, 
arts. 
136 
and 
226-Representation 
of the people Act, 1951 (Act XL!ll of 1951), ss. 33(2), 99 105, 123 
(8)-0rder of the tribunal under s. 105 declared as final and con; 
clasive-Whet!rer affects discretionary powers of Supreme Court at:d 
High. Courts under arts. 136 and 226-Elected candidate no111inated 
or seconded by Governrnent servant-Legal effect 
thereof-Orders 
of tribunal, contents of. 
(1) The unfettered discretionary 
powers conferred 
on 
the 
Supreme Court and the High Courts by arts. 136 and 226 of the 
Constitution respectively cannot be taken away or whittled dov.·a 
by 
the legislature and therefore s. I 05 of the Representation 
-Of the People Act, 1951, which provides that every order of the 
tribunal under the Act shall be final and conclusive did not affect 
such powers. 
(2) In view of the provisions of s. 16 of the 
Representation 
of the People Act, 1950, 
and the provisions of ss. 33 (2) and 
123 (8) of the Representation of the People Act, 1951, an election 
to a State Legislative 
Assembly is not invalidated 
when the 
elected member is either 
nominated or 
seconded 
or both 
by a 
Government servant or servants. 
(3) The Supreme Court recorded its disapproval of the way in 
which the Election Tribunal shirked its duty and tried to take 
a 
short cut in 
deciding only two of the twelve issues framed and 
thus acted against the provisions of s. 99 of the Act. 
CIVIL 
APPELLATE 
JURISDICTION : 
Civil 
Appeal 
No. 239 of 1953. 
Appeal by special leave from the Order and Judg-
ment dated 
the 
5th September, 1953, of the Election 
Tribunal, Cuttack, in Election Case No. 5 of 1952. 
S. B. fathar for the appellant. 
S. P. Sinha 
(R. Patnaik, with him) for the res-
pondent. 
1954. February 4. The Judgment of Mahajan C.J .• 
Mukherjea, . Das and Ghulam Hasan JJ. 
was. delivered 
by Das J. 
Vivian Bose J. delivered 
a separate Judg-
ment. 
DAs J.-The question here is whether an election to 
a State 
Legislative 
Assembly is invalidated when the 
• 
1954 
Ftb'uary 4. 
195+ 
Raj KntSh11a 
Bose 
v. 
Bi'twd Kanungo 
and Others. 
Da,]. 
914 
SUPRE.ME COURT REPORTS 
[1954] 
member's nomination was either proposed or seconded, 
or both, by a Government servant or servants. 
The appellant 
was e minister in the State of Orissa. 
He was nominated as a candidate for the Orissa Legis-
lative Assemblv and was later declared to have been 
elected. 
One . of his rivals was the 1st respondent who 
filed an election petition challenging the election on a 
number of grounds, among them, the following. 
The appellant 
had filed about two dozen nomina-
tion papers: 
In 
five 
of 
them the proposer was a 
Government servant and in four the seconder. 
The 
1st respondent 
stated that this was 
the first step 
in 
a scheme 
to 
get 
the assistance 
of Government 
oi!icers in furtherance of th<'.: appellant's election 
and 
to 
"use and utilise" them "for the purposes of the 
election." 
There were also other allegations which 
we need not consider here. 
The appellant made counter allegations against the 
1st respondent, whom he had defeated. but they do 
not concern us either. 
The Election 
Tribunal framed twelve issues and 
examined 101 witnesses. 
but when it came to make 
its order it proceeded 
to decide only 
two 
issues 
instead of deciding 
the whole case. It held that as 
the proposers 
and seconders 
referred 
to above 
were 
admittedly Government 
servants 
that constituted a 
major 
corrupt practice and so invalidated 
the election 
under section 123(8) 
of 
the Representation of the 
People Act, 1951 
(No. XLIII of 1951). The other of 
the two decided issues 
does 
not concern this appeal. 
The appellant thereupon petitioned the High Court 
for a writ of certiorari under article 226 of the Con-
stitution. 
The High Court refused to interfere. The 
learned Judges held that there was no want of juris-
diction in the tribunal and that the tribunal's view 
ot the law was a possible and reasonable one, accord-
ingly, as . the High Court was not a court of appeal from 
the tribunal, they were not called upon to decide the 
question as a ~ourt of appeal. 
The appellant was granted special leave to appeal 
by this court against the order of the Election Tribunal. 
• 
S.C.R. 
SUPREME COURT REPORTS 
915 
A 
ques

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