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2005 (3) TMI 785 - SUPREME COURT

2005 (3) TMI 785 - SUPREME COURT - 2005 (2) SCR 670, 2005 (3) SCC 601, 2005 (11) JT 177, 2005 (3) SCALE 87 - Appeal (civil) 595 of 2004 - Dated:- 11-3-2005 - CJI R.C. Lahoti, D.M. Dharmadhikari & P.K. Balasubramanyan, JJ. JUDGMENT R.C. Lahoti, CJI An election petition presented under Section 81 of the Representation of the People Act, 1951 (hereinafter "the Act", for short) has been directed to be dismissed as barred by time. Feeling aggrieved, the election petitioner has filed thi .....

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.8.2003 on which date the designated Judge was sitting in court till 4.15 P.M. The court hours having expired, the designated election Judge retired into the chambers where at 4.45 P.M. Sri P.K. Verma, the learned counsel for the appellant came and wanted to file this election petition. Since under High Court Rules the election petitions could be filed only in the open court, I, as the designated election Judge refused to accept the petition beyond court hours. Learned counsel said that though p .....

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This was how the learned counsel presented the petition in the open court on 28.8.2003 " 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? Article 329 of the Constitution provides inter alia that no ele .....

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erred with jurisdiction to try an election petition. Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court assigned for that purpose by the Chief Justice. Under Section 81 of the Act, an election petition may be presented within forty five days from the date of election. The rule making power for carrying out the purpose of the Act has been conferred on the Central Government under Section 169. The Act does not confer power on the High Court to make any rules. Howev .....

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udge in open Court, it shall be presented to the Stamp Reporter of the Court, who shall certify thereon if it is in time and in conformity with the requirements of the Act and the rules in this behalf, or is defective and shall thereafter return the petition to the petitioner for making the formal presentation after removing the defects, if any : Provided that if on any Court day the Judge is not available on account of temporary absence or otherwise, the petition may be presented before the Ben .....

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39;day' is not defined in the Act. It shall have to be assigned its ordinary meaning as understood in law. The word 'day' as per English calendar begins at midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context (See : Ramkrishan Onkarmal Agarwal v. State of Maharashtra AIR 1994 Bom 87, 94; The Municipal Council of Cuddalore v. S. Subrahmanya Aiyar 16 MLJ 101; The Law Lexicon, P. Ramanatha Aiyar, pp. 470, 471). Thus, .....

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930) 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 .....

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to as late as the midnight immediately preceding the commencement of the next day. We are also of the opinion that the High Court has not correctly interpreted Rules 6 and 7 of the High Court Rules. The rules are not meticulously well-drafted rules taking care of myriad situations which may arise. They appear to be more in the nature of directions aiming at convenient and smooth functioning of the High Court dealing with election petitions as also streamlining the procedure and practice of prese .....

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to the Judge for formal presentation. While presentation to the Stamp Reporter of the court is a presentation, the presentation before Judge in open court is a formal presentation. There would be nothing wrong if the 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 Rule co .....

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he Stamp Reporter or any other official 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. 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 .....

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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 would be treated as filed within the period of limitation. Confining the filing time to the working hours of the court is not what is specifically spelt out by Rules 6 and 7 of the Patna High Court Rules. The High Court, in its impugned judgment, seems to have t .....

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wyer 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 ministerial staff of the High Court either by clarifying or by making a suitable amendment in the Rules of the Patna High Court. In Hukumde .....

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verning the practice as to presentation of pleadings and documents in the High Court, an election petition can be presented on the last day of limitation, when the judges are not sitting to receive or entertain an election petition, to the Registrar or in his absence to some other officer in the Registry authorized to receive such presentation. In Chandra Kishore Jha v. Mahavir Prasad and others (1999) 8 SCC 266, a different fact situation arose and the observation made by this Court therein, ha .....

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