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Raj Kumar Yadav Versus Samir Kumar Mahaseth and Ors.

2005 (3) TMI 785 - SUPREME COURT

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 this appeal under Section 116A of the Act. Shorn of all details, suffice it to state that the last date of limit .....

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, 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 petition was made ready that very day for presentation, because of some delay in finalizing it, he had gone to .....

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rising 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 election to either House of Parliament or to the House or either House of the Legislature of a State shall be ca .....

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gle 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. However, the rule making power vests in the High Court under Article 225 of the Constitution. The present matter a .....

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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 Bench hearing civil applications and motions. 7. (1) The date of presentation to the Judge or the Bench as menti .....

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. 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, the election petition could have been presented upto the midnight falling between 27th and 28th of August, 20 .....

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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 subordina .....

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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 presentation. The designated Election Judge can always issue such orders as it may deem fit in the matter of prese .....

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, 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 contemplates such presentation before the Stamp Reporter and the formal presentation to the Judge taking place .....

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tting 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 needs to be performed by a Judge alone; it is a ministerial function which may be performed by a Judge himsel .....

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, 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 thought that the election petition could have been presented only to the Judge and that too in the open court. .....

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he 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 Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133, Election Petition Rules framed by Patna High Court ca .....

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n 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, have to be read and understood in the light of the fact situation, which the Court was called upon to deal with .....

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