TMI Blog1973 (12) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Socialist Party at that election. The appellant an elector in that constituency presented an election petition on Monday, March 20, 1972, instead of on Saturday. March 18, 1972, which was the last day of limitation. The petition, however, was dismissed by the High Court as being time-barred. Against that judgment and order this appeal has been filed under s. 116-A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'). It may be mentioned that s. 80-A was added to the Act by the Amendment Act 47 of 1966, whereunder the High Court was given .jurisdiction to try election petitions. This jurisdiction has to be exercised ordinarily by a Single Judge of that Court and the Chief Justice could from time to time assign one or more Judges for that purpose. Section 81 prescribes the period of 45 days from the date of the election of a returned candidate within which an election petition calling in question any election on one or more grounds specified in sub-s. (1) of s. 100 and s. 101 has to be presented to the High Court. If the provisions of s. 81 are not complied with, s. 86 requires that the High Court shall dismiss the petition. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt shall be deemed to be closed on any day within the meaning of that section if during any part of its normal working hours it remains closed on that day. It was sought to be contended that even if the limitation Act applies s. 4 would not apply because an election petition is neither a suit, nor an appeal nor an application, notwithstanding the definition of application contained in s. 2(b) of the Limitation Act as including a petition. It is, in our view unnecessary to examine the submission in this context because even if s. 4 of the Limitation Act does not apply, S. 10 of the General Clauses Act will certainly apply to election petit-ions to be filed under the Act as held by this Court in H.H. Raja Harinder Singh v. S. Karnail Singh(1). In that case an election petition had to be filed under r. 119(a) 'of the Election Rules not later than fourteen days from the terminus a quo prescribed therein, but as the day on which it could be filed was a Sunday be filed it on the next day. The contention of the Solicitor-General was that s. 10 of the General Clauses Act can apply on its own terms only when the act in question is to be done within a prescribed period , that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentation of pleading,-.. The Court may be open for this purpose although the Judge is not engaged in judicial functions or is not present in the Court-house or in the place where the Court is held. A Bench of the Madras High Court in In re. Thokkudubiyyanu Immaniyelu and OtherS(4) dealt with a similar practice which is followed by all High Courts and this. (1) [1957] S.C.R. 208 (3) I.L.R. (1882) 5 Mad. 189 at 192. (2) I.L.R. 19 Pat. 123. (4) (1948) I. M. L. J. 49. Court for the summer vacation when the Courts close. The notifications in respect thereof specify a period between Monday to Friday both days inclusive as the vacation. The Court reopens on a Saturday, but judicial work starts only on the following Monday. It was held that the first day of the Court was a Saturday which was the day for receiving papers though the Judges actually sat for judicial work on Monday, as such an application, for which the prescribed period of limitation expired on Saturday the 5th when the Court was open and was not filed on that day, but on Monday the 7th, was held to be barred. See also Dwarka Prasad and another v. Union of India(1) and Sajjansingh and another v. Bhogilal Pandya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is designated to entertain and try election petitions is absent, the petition shall be presented before the Bench hearing Civil applications and motions; and (5) the date of presentation before the Judge or Bench, as the case may be, as provided in the proviso to r. (6) shall be deemed to be the date of filing the election petition for the purposes of limitation. It would appear from the above that the date of formal presentation to the Judge or the Bench, as the case may be, is. the actual date of filing the petition. what happens when on the last day of the expiry of limitation for filing the petition, though a working day for the Court, if peradventure none of the Judges sit? Though in a Court which has a number of Judges, such a contingency may not occur, but in a High Court which consists of only one Judge such as is envisaged in the proviso to s. 80-A of the Act and that High Court has rules similar to rr. 6 and 7, it would, if we accept the contention of the learned Advocate for the appellant, create an anomaly when the only Judge of the High Court is absent due to illness or some other cause and the petition cannot be presented even though the Court has not been closed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith an application. It is further submitted that r. 26 has no application as it is inconsistent with r. 7 because under the latter rule the date of presentation to a Judge or a Bench is deemed to be the date of the filing of the election petition for the purpose of limitation, but r. 26 provides for the presentation to the Registrar etc. and after certification it is to be presented to a Bench on. the next subsequent day on which the Bench is sitting. If that is the day for limitation, the learned advocate submits then no other day on which it is not presented to a Judge can be considered to be the day for limitation. If so, the presentation before the Registrar would be inconsistent with the requirements of r. 7. In our view, there is nothing inconsistent in rr. 6 and 7 of the election Rules and r. 26 of the Patna High Court Rules, because r. 7(1) does not provide for a situation where the Judges do not sit and the period prescribed is deemed to expire on that day. It may be that the presentation to the Jadge will be the date of filing for the purposes of limitation, but that does not excuse a different procedure for filing in a case where limitation is about to expire, when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner of doubt that an election petition can be presented on the last day of limitation even when the Judges are not sitting to receive or entertain an election petition to the Registrar or in his absence to the other officers specified in r.26. Infact the Patna High Court had, on a similar point, held nearly seven years ago in Md. Gwais and others v. Phul Bibi and others, (1) a copy of which has been placed before us, that where under r. 13 Part 11, Chapter VII, it is provided that application for review must be presented by way of notice in open court to the Bench of whose judgment a review is sought, it could be filed on a Saturday if it is the last day of limitation. An argument similar to that addressed by the learned Advocate for the appellant was rejected on the ground that Saturday was a working day and that r.26 clearly refers to a Saturday on which no Benches sit. Now that we have held that the Court is not closed and the petition could have been presented to the Registrar on Saturday, March 18, 1972, the question would be, does s. 5 of the Limitation Act apply to enable the petitioner to show sufficient cause for not filing it on the last day of limitation, but on a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule, the provisions of section 3 shall apply, as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as. and to the extent to which, they are not expressly excluded by such special or local law. (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. s. 29(2) of new Act Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose, of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. It will be noticed that under the 1908 Act there are two limbs(1) that where any spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different from that prescribed in the special or local law the sub-section applied, and even if it is assumed that for the application of s.29(2) a period that is different has to be prescribed for an identical appeal, then Art. 156 prescribes a different period, they did not agree with him, that the second limb of sub-s(2) is ail independent provision providing for that category of proceedings to which the first limb does not apply. Sinha, C.J., Rajagopala Ayyangar and Raghubar Dayal, JJ., by majority held that the entire sub-s (2) of s. 29 of the Limitation Act has to be read as an integrated provision and the conjunction and connects the two parts and makes it necessary for attracting cl. (a) that the conditions laid down by the opening word of sub-s. (2) should be satisfied. Raghubar Dayal and Mudholkar, JJ., also did not agree with the majority that where a right of appeal is given by, some other law, the appeal must be regarded as the one under the Code of Civil Procedure, inasmuch as the words under the Code of Civil Procedure cannot be read as meaning governed in the matter of procedure by the Code of Civil Procedure . Subba Rao and Mudholkar, JJ., held that the second l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Limitation Act has not pres- cribed the period of limitation in the Schedule different from that prescribed under s. 81 of the Act, sub.-s. (2) of s. 29 will be attracted and that position is not any the less different under the new Limitation Act. Vidyacharan Shukla's case is, however, decisive for attracting sub-s. (2) of s. 12 to an appeal under s. 116A of the Act as there was nothing in that section to preclude its application. In D.P. Mishra v. Kamal Narayan Sharma and Another(2) again is a case in which the question of application 'of s. 12(2) of the Limitation Act to the ,computation of the period of limitation prescribed in s. 116A of the Act in respect of an order delivered by the Election Tribunal on December 28, 1966, was considered. After excluding the time taken for obtaining a certified copy of the order by the respondent just before the Court closed for the summer recess, the memorandum of appeal 'Could only be lodged on the re-opening of the Court. Following the 'decision in Vidyacharan Shukla's case this Court held that ss. 4 and '12 of the Limitation Act would apply, because There is no provision in the Representation of the People ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-s. (4) of s. 417 of the Code of Criminal Procedure is not in a negative form as contended for by the learned Advocate in that case, but that it has a positive content for performing an act and it prescribes a definite period within which an act has to be done. In K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi Ors.(3) to which we shall refer more fully later, Vidyacharan Shukla's case (supra) was attempted to be pressed into service, but this. Court repelled it and observed at pp. 688-689: In our View, the situation now obtaining in an appeal to this Court from an order of the High Court is entirely different. There is no section in the Act as it now stands which equates an order made by the High Court under s. 98 or s. 99 to a decree passed by a Civil court subordinate to the High Court. An appeal being a creature of a statute, the rights conferred on the appellant must be found within the four corners of the Act. Sub-s. (2) of the present s. 116A expressly gives this Court the discretion and authority to entertain an appeal after the expiry of the period of thirty days. No right is however given to the High Court to entertain an election petition which does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition under s. 81 it should equally apply to ss. 82 and 117 because under s. 86 the High Court cannot say that by an application of s. 5 of the Limitation Act, s. 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of ss. 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to s. 82 and s. 117 of the Act, it cannot be said that they apply to s. 81. Again, s. 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to, an election petition. Similarly, ss. 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial. It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what s. 29(2) of the Limitation Act says, because it provides that ss. 4 to 24 (inclusive) shall apply only in so far as, and to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding one R but it was dismissed. The first respondent then filed an application under s. 86(1) praying for the dismissal of the election petition on the ground that there had been non-compliance with s. 82(b) of the Act inasmuch as R against whom corrupt practice had been alleged had not been made a party. The appellants filed an application seeking to withdraw the allegation against R and in the alternative to implead him as a respondent. It was also prayed that delay in making the application may be condoned. The learned Judge of the High Court trying the election petition dismissed the aforesaid applications and refused to condone the delay. One of the contentions urged in the appeal was that s. 5 and s. 29(2) of the Limitation Act, 1963, were applicable to the case and the High Court and this Court had power to condone the delay made by the election petitioner in impleading a necessary party. This plea was rejected. Mitter, J., delivering the judgment of this Court for himself and Hidayatullah, C.J., after examining the relevant provisions of the Act in detail at pp. 682-686 observed at pp. 686-687 : it is well settled that amendments to a petition is a civil proceeding and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was nothing in s. 85 which permitted the Election Commission to condone the non-compliance with the provisions of s. 117 of the Act. When the Act was amended and the jurisdiction was given to the High Court to entertain and try election petitions, a provision similar to the proviso for condoning delay was not enacted. This omission definitely expresses Parliament's intention not to confer the power to condone any delay in the presentation of the petition.. The whole object of the amendment in 1966 was to provide a procedure for a more expeditious disposal of election disputes, which experience had shown had become dilatory under the former procedure where election trials were' not concluded even after five years when the next elections were held, notwithstanding the fact that every petition was, enjoined to be tried as expeditiously as possible and endeavour was. required to be made to conclude the trial within six months from the date on which the election petition was presented to the High Court for trial. In Krishan Chander v. Ram Lal(1) two of us (Jaganmohan Reddy and Dwivedi, JJ), while holding that s. 82(b) of the Act was mandatory, the failure to comply with which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee that although the Election Commission ,did not recommend what provisions of the Act should be amended, it nonetheless in its Report on the Third General Elections in India (1962) Volume I (General), after noticing the several causes of delay reported in its summary of recommendations under the heading 'Election petitions' at p. 125 as under: (i) The objective of a quick decision of election disputes can only be achieved by placing the responsibility directly on the high Courts. Every election petition should be presented to the High Court of the State in which the election was held, and tried by a permanent Judge on the rota for the trial of such petitions. (ii) Clause (1) of article 324 of the Constitution should 'be amended by omitting the words including the appointment of election tribunals for the decision of doubts and disputes arising out of or in connection with election to Parliament and to the Legislatures of States , simultaneously with the amendment of the election law providing for the trial of election petitions directly by the High Courts. -This summary supports the above observations in the judgment. In Charan Lal Sahu v. Nandkishore B ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
