TMI Blog2005 (3) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... election petitioner presents the election petition to the Stamp Reporter whereafter the election petition is carried to the Judge in open court either by the election petitioner or his counsel or by the Stamp Reporter or any official of the Registry under his directions. The High Court, in its impugned judgment, seems to have thought that the election petition could have been presented only to the Judge and that too in the open court. The Judge would ordinarily sit in open court upto 4.15 p.m. of the day as per the rules or practice of the High Court but that time is not the end of that day. The availability of time falling within the meaning of the word 'day', as provided by Section 81 of the Act, cannot be curtailed by making a provision in the rules contrary to the Act itself. Ordinarily, no litigant and lawyer would like to delay the presentation till the fag end of the day and then present it at an odd time to the inconvenience of the Judge wherever he may be. However, exceptional situations cannot be completely ruled out. It would be better if the ministerial act of receiving the election petition presented to the High Court is left to the administrative or ministeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the petition noting the time of presentation so that the petition might be presented on the next working day. Since High Court Rules did not permit that, I refused that prayer also. This was how the learned counsel presented the petition in the open court on 28.8.2003.. 3. The question arising for decision is : whether an election petition presented at 4.25 p.m. on 27.8.2003, the last date of limitation, admittedly 10 minutes after the Judge had risen from the open court but was available in chambers within the court premises can be said to be a valid presentation so as to be within the period of limitation? 4. Article 329 of the Constitution provides inter alia that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for, by or under any law made by the appropriate Legislature. Under Section 80 of the Act, no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act. Under Section 80-A, the High Court has been conferred with ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anya Aiyar 16 MLJ 101; The Law Lexicon, P. Ramanatha Aiyar, pp. 470, 471). Thus, the election petition could have been presented upto the midnight falling between 27th and 28th of August, 2003. 7. The statutory period of limitation as provided by the Act cannot be taken away by the Rules framed by the High Court governing its procedure. The rules framed in exercise of the power conferred by Article 225 relate to procedural matters and cannot make nor curtail any substantive law. (See : Prabhu Narayan v. A.K. Srivastava (1979) 3 SCC 788, para 5). In S.A. Ganny v. I.M. Russell (1930) ILR 8 Rangoon 380 Carr J. said, I am very clearly of opinion, independently of the authorities to that effect, that a High Court has no power to alter by rule any period of limitation prescribed in the Limitation Act. I am, however, also of opinion that when the High Court by rule gives a right of application for which no period of limitation is already prescribed the Court may also fix the period within that right must be exercised. And, Cunliffe J. said, High Court Rules approximate very closely to Bye-laws. They can be altered at will. They can be canvassed. They are subordinate and domestic enactment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the Registry. At the time of presentation, the Judge may not be sitting in open court, but that does not mean that the Judge cannot receive the election petition. He can receive it and then send it to the Stamp Reporter of the court. 9. In Jamal Uddin Ahmad v. Abu Saleh Najmuddin and another (2003) 4 SCC 257, this Court has held that receiving an election petition presented under Section 81 of the Act is certainly not a judicial function which necessarily needs to be performed by a Judge alone; it is a ministerial function which may be performed by a Judge himself or be left to be performed by one of the administrative or ministerial staff of the High Court which is as much a part of the High Court. 10. As held by this Court in The State of Punjab and Another vs. Shamlal Murari and Another (1976) 1 SCC 719, processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. The election petition, in the present case, could have been presented at any time upto the midnight falling between 27th and 28th August, 2003 and it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an election petition can be presented to the Judge only in open court and not elsewhere did not arise for decision. At a few places the reference made to 'presentation in open court' is simply by way of reproducing the language of the Rule and not a finding of this Court or the ratio of the decision. However, the Court did hold that the applicability of Section 10 of the General Clauses Act, 1897 to Section 81 of the Act was not excluded. If it was not possible for the election petitioner to have presented the election petition to the designated Election Judge or in his absence to the Bench (as provided by the proviso to Rule 6) on the last day of the prescribed period of limitation then the presentation of the election petition on the very next day in the open court would be valid. Law does not expect a party to do the impossible impossibilium nulla obligatio est. 14. Reverting back to the facts of the present case, we find that the election petition was handed over to the designated Election Judge on the last day of limitation at 4.25 p.m. when the learned Judge was still available within the court premises though he was not sitting in the open court, as the prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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