DINABANDHU SAHU Vs. JADUMONI MANGARAJ

JUDGEMENT

(1.) This is an appeal by special leave, against the order of the Election Tribunal, Cuttack, setting aside the election of the appellant to the Legislative Assembly. Orissa, from the Kendrapara Constitutency. Four persons, the appellant and respondents 1 to 3, were duly nominated for election to the seat. One of them, Loknath Das (the third respondent herein), withdrew his candidature, leaving the contest to the other three. At the election which was held between 9th and 15th January 1952 the appellant secured the largest number of votes and was declared elected. The respondent, Jadumoni Mangaraj, then presented a petition under Section 81 of the Representation of the People Act (Act No.43 of 1951 alleging various corrupt practices on the part of the appellant and praying that the election might be set aside. The last date for presenting the petition was 4-4-1952, it was delivered at the post office at Cuttack on 3-4-1952 for being sent by registered post, and actually reached the Election Commision at Delhi on 5-4-1952, 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 16, Rule 15, Sub-clause (2) of the Civil Procedure Code provides that

(2.) In the written statement filed by the appellant, he raised the contention that as the petition was presented out of time and as the verification was defective, it was liable to be dismissed by the Election Commission under Section 85 of the Act, and that, in consequence, the Electrion Tribunal ought to dismiss it as not maintainable. Disagreeing with this contention, the Election Tribunal proceeded to here the petition on the merits, and by its judgment dated 16-11-1953 it held by a majority that three of the corrupt practices set out in the petition had been established against the 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 conveying the electors to polling booths; and (3) that he had, in contravention of section 123(8) of the Act, obtained the assistance of Extra Departmental Agents in branch post offices and of Presidents of Choukidari Union in canvassing for him in the election, they being in the view of the Election Tribunal, Government servants as defined in that provision. On these findings, the Election Tribunal passed an order setting aside the election of the appellant. The matter now comes before us on special leave under Article 136 of the Constitution.

(3.) It is obvious that any one of these findings, if accepted, would be sufficient to support the order of the Election Tribunal. With reference to the last of the findings, it is possible to urge with some force that Extra Departmental Agents and Presidents of Chaukidari 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 conclusions of the majority were not justified by the evidence on 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.