Ashok Shankarrao Chavan vs Anil Trayambakrao Patil

P.V. Nirgudkar, J.—This Civil Application is filed in Election Petition raising question of limitation that the Election Petition is barred by time.

The above Election Petition has been filed by both the petitioners seeking declaration that Lok Sabha election of respondent No 1. -- Ashok Shankarrao Chavan -- as successful candidate be held void as he is guilty of corrupt practices. In this petition, issues are framed at Exhibit 19 and Issue No. 1 is whether this election petition is barred by limitation.

The issue arises in this way. u/s 81 of The Representation of The People Act, 1951, the election petition questioning the election has to be presented to the High Court within 45 days from the date of election of the returned candidate that is to say from the result of the election. Here the result of the election of Loksabha from Nanded Constituency has been declared on March 23, 1987. The period of 45 days expired on May 7, 1987. According to the petitioners Summer Vacation for the High Court commenced from May 4, 1987 and the High Court reopened on June 8, 1987 and as the present petition was filed on June 8, 1987, it is in time.

Respondent No. 1 the successful candidate and the contesting defendant has a different version to offer. He contends that as the petition is not filed within 45 days, it is obviously barred by time because Summer Vacation cannot be deducted as the Office of the High Court was open and the election petition could have been filed even in Summer Vacation. In support, High Court Notification dated December 8, 1986, the material part of which is as under, is relied upon.

During the Summer and October Vacations the Offices on the Original Side will remain open daily from 1100 a.m. to 4.15 p.m. except on. Saturdays, Sundays and closed holidays. But no work except of an urgent character will be received after 1-15 p.m.

The Offices on the Appellate Side will also remain open daily from 11.00 am to 4.15 p.m. except on Saturdays, Sundays and closed holidays during the Summer and October Vacations. The offices will, however, remain closed for filing of Judicial matters, except the following:

(a) Criminal cases,

(b) Applications in Civil Oases seeking urgent relief, and

(c) Matters to which the provisions of Section 4 of the Limitation Act, 1963, are not applicable.

There is another Notification No. G/5338 dated November 20, 1985 which needs a mention. This Notification authorises the Additional Registrar, Aurangabad Bench to accept election petition. This Notification runs as under--

The Honourable the Acting Chief Justice and Judges are pleased to make the following amendment in the Rules and Forms of the High Court of Judicature at Bombay (Original Side), 1980:

Election Petitions arising from areas constituting Judicial District of Akola, Amravati, Bhandara, Buldana, Chandrapur, Nagpur, Wardha and Yeotmal, shall be presented either in person or by an Advocate duly authorised in that behalf by the party concerned to the Additional Registrar of the Nagpur Bench or to such other Officers as the said Additional Registrar may, by general or special order issued from time to time appoint in this behalf. Election Petitions arising from the areas constituting Judicial Districts of Aurangabad, Beed, Jalna, Latur, Nanded, Osmanabad and Parbhani, shall be presented either in person or by an Advocate duly authorised in that behalf by the party concerned to the Additional Registrar of the Aurangabad Bench or to such other Officer as the said Additional Registrar may by general or special order issued from time to time appoint in this behalf, Election Petitions arising from the rest of the areas of the State of Maharashtra shall be presented to the Prothonotary and Senior Master, High Court, Bombay or to such other Officer as the said Prothonotary and Senior Master, may by special or general orders passed from time to time, appoint in this behalf.

The petitioners examined the Additional Registrar but his evidence is of no avail to the petitioners.

These are the conflicting stances taken by both the sides and what we have to see is whether the Election petition is in time.

There is direct decision of the Supreme Court in Hukumdev Narain Yadav Vs. Lalit Narain Mishra, , wherein it is held that provisions of Section 4 cannot be attracted in case of Election Petition. In Hukumdev''s case it is observed (at pp. 481, 482):

It may be mentioned that Section 8Q-A was added to the Act by the Amendment Act 47 of 1966, where under 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 prescribed the period of 45 days from the date of the eleation of a returned candidate within which an election petition calling in question any election on one or more grounds specified in Sub-section (1) of Section 100 and Section 101 has to be presented to the High Court. If the provisions of Section 81 are not complied with, Section 86 requires that the High Court shall dismiss the petition. There is no doubt that election petition in this case has been presented beyond the period of 45 days and had necessarily to be dismissed.

What we have to consider, however, is that whether having regard to the requirements of R- 6 and 7 of the Rules for the disposal of Election. Petitions framed by the Patna High Court, that an election petition should only be filed before a Judge of the High Court sitting in open Court, and it could not be filed on a Saturday when the Judges do not sit and hence the filing of that petition on Monday, March 20, 1972, Sunday being a holiday, is in time. Even if it be held that the filing of the petition was beyond the time prescribed in Section 81, it has further to be considered whether the provisions of Section 5 of the Limitation Act 36 of 1963 are applicable to such petitions and whether the petitioner has shown sufficient cause in the petition which has now been filed before this Court for not filing the petition in time to enable the Court to admit it after the prescribed period.

Three questions which require determination are--

(1) Is the Court closed on Saturday, when the Judges do not sit for the purposes either of Section 10 of the General Clauses Act, or Section 4 of the Limitation Act?

(2) By virtue of Section 29(2) of the Limitation Act, are the provisions of Sections 4 to 24 of the said Act applicable to election petitions?

(3) If they are, and Section 5 of the Limitation Act Is applicable, do the facts of the case warrant condonation of delay?

It is held that the petition could have been presented to the Registrar on Saturday. That no cause has been brought out whether Section 29(2) has been made applicable to an Election Petition. Section 81 of the Act, by virtue of which either Section 4, 5 or 12 of the Limitation Act has been attracted, and so, in the result, election petition has been held to be barred by limitation and appeal was ultimately dismissed by Their Lordships of the Supreme Court. Here, there is no delay condonation application but what we have to see is whether Section 4 of the Limitation Act is applicable. Here, as the Office of the Additional Registrar was open during summer vacation, he was competent to accept Election Petition.

It was first hinted on behalf of the petitioners that the Additional Registrar was not competent to accept Election Petitions and it was only the Judge of the High Court who is empowered to do so. However, when respondent No. 1 has brought on record the Notification that the Election Petition can be-presented before the Additional Registrar, Aurangabad, then it was urged that the Additional Registrar is competent to perform in Summer Vacation only administrative work and not judicial work and as there is no Court sitting during vacation, the Additional Registrar is not supposed to do any legal work or legal duties in Summer Vacation. So, it is further argued that the Election Petition filed on June 8, 1987 cannot be said to be barred by time, in view of Section 10 of the General Clauses Act. In support of this argument, strong reliance has been placed on the decision of the Supreme Court in Hari Shanker Tripathi Vs. Shiv Harsh and Others, . It was an appeal against the decision of single Judge of Allahabad High Court who dismissed the Election Petition on the ground that it is barred by limitation u/s 86(1) read with Section 81(1) of The Representation of the People Act, 1951. Their Lordships of the Supreme Court followed the previous decision of the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra (supra) that Sections 4 and 5 of the Limitation Act do not apply to Election Petition. Taking into consideration the rules framed by Allahabad High Court, Their Lordships concluded as under.

(a) By virtue of the notification of the High Court approving the High Court calendar the legal position was that the summer vacation was deemed to be a closed holiday. If, therefore, the period of limitation u/s 81 of the Representation of the People Act expired on June 14, 1974 which being a closed holiday right upto July 7, 1974, then Section 10 of the General Clauses Act would apply in terms and the appellant would be fully justified in filing the petition on July 8, 1974 when the court reopened after the summer vacation.

(b) Distinction must be made between the opening of the Court and opening of the office. While the court may be closed, the office may remain open for conducting ministerial business or administrative work- If the Registrar was empowered to receive election petitions he would be exercising judicial power which cannot be done while the court was observing a closed holiday. The relevant rules of the High Court required the placing of the petitions immediately before the Chief Justice for reference to the Bench concerned and the assignment of a judge. This could not be done when the court was observing a closed holiday. The presentation before the Registrar as required by Rule 3 of the aforesaid rules must be a legal presentation and not a physical presentation.

Rule 10 of Chapter V of the Allahabad High Court Rules nowhere empowers the Registrar to entertain or to receive an election petition. Rule 3 of Chapter I again applies only to such cases where the period of limitation is prescribed by the High Court Rules.

Also the term "public holiday" referred to in Section 2(1)(h) of the Representation of the People Act has nothing to do with any administrative function exercised by the High Court but refers only to such contingencies as are mentioned in the conduct of the actual elections under the provisions of the Representation of the People Act.

Hence as the period of limitation expired during the summer vacation which was a closed holiday the appellant was fully justified in filing the election petition on the reopening day of the High Court.

It is thus clear that Summer Vacation is treated as closed holidays so far as Allahabad High Court is concerned and Registrar is not empowered to receive Election Petition. These are two different aspects from our case. Third important aspect is that Rule 4 lays down that after the office report etc. is complete the petition shall be laid forthwith before the Chief Justice for reference to the Bench concerned, and the Supreme Court has held that the Registrar has to take legal steps, namely, the placing of the petition immediately before the Chief Justice for reference to the Bench concerned and the assignment of a Judge. This again is a different and important aspect of Allahabad High Court rule (Rule No. 4).

In our case, there is no such duty cast upon the Additional Registrar because here is the Bench of the High Court and there is no Chief Justice available and there is no rule that the Additional Registrar should put the matter before the Chief Justice or the Senior Judge immediately. In my view, therefore, decision of the Supreme Court in Hari Shankar Tripathi''s case is not applicable to the facts of the present case.

On this topic the decision of Kerala High Court in Dr. K.K. Mohamad Koya v. P.M. Sayeed air[1971] Ker 160, can also be cited. In the above case, it is observed as under:

It has been the practice of the Courts in Kerala State inclusive of the High Court to treat the summer vacation as a period during which the courts remain closed except with regard to the functioning of a vacation Judge nominated by the Chief Justice in accordance with Section 8 of the High Court Act. It cannot be said that there was no closing of the High Court as such during the summer vacation.

In exercise of the powers conferred by Sub-section (2) of Section 80A of the Representation of the People Act 1951 the Chief Justice of the High Court of Kerala nominated one Judge of the High Court to try election petitions. The Judge so nominated did not function at any time....

Since the period of limitation of 45 days expired during the currency of the vacation the petitioner had time till the reopening date to file the petition- Thus the election petition filed on the reopening date cannot be said to be barred by limitation

What is to be borne in mind is that the rules of Kerala High Court appear to be that summer vacation should be treated as closed holidays. In other words, this case is akin to Hari Shankar Tripathi''s case (supra). As summer vacation has been treated as closed holidays, period is naturally extended as the Judge nominated by the Chief Justice did not work in the vacation. In our State in summer vacation the Courts are not closed but in view of the above two Notifications only the judicial work is closed and for some purpose always the Vacation Judges are appointed. As pointed out above, the Additional Registrar is empowered to accept Election Petition.

There is decision of Mysore High Court in P. Naranappa v. Shankar Alva AIR[1973] May. 78 . In that case, the period of limitation for filing Election Petition expired when the High Court was closed for vacation, it has been held that as Section 5 is not applicable, petition filed beyond the limitation prescribed in Section 81 of the Act would be liable to be dismissed in accordance with the provisions of Section 85 of the Act. The decision of our High Court in Ashok Shankar Gholap Vs. Krishnarao H. Deshmukh and Another, , can also be cited. In that case Election Petition was filed on the last day of limitation but the copies were supplied on the next day and objections were also removed on that day. It was held that there was non-compliance of Section 81(3) and the election petition was liable to be dismissed u/s 86.

Before reaching final conclusion, it is necessary to refer to some more decisions to which a reference has been made by Shri Sakolkar. The first decision is H.H. Raja Harinder Singh Vs. S. Karnail Singh, . This decision lays down that the object of Section 10(of General Clauses Act) is to enable a person to do what he could have done on a holiday on the next working day and the act should be considered to have been done within the period of limitation. There cannot be any dispute so far as this proposition is concerned and it is well settled. The condition precedent is that the period should be prescribed and the period should expire on a holiday. Here, we have to remember that summer vacation cannot be treated as holidays.

The second decision which Shri Sakolkar wanted me to accept is the principle enunciated in Vidyacharan Shukla Vs. Khubchand Baghel and Others, . Inviting my attention to paragraph 22, Shri Sakolkar pointed out the following passage of Dixit, CJ. in Beharilal Chaurasiya Vs. Regional Transport Authority and Others, :

A special law may provide a period of limitation and schedule I may omit to do so. Nonetheless the special law would be different from the Limitation Act. Section 29(2) of the Limitation Act is not very happily worded. It must be construed as to avoid absurdity. The expression "a period of limitation different from the period prescribed there for by the first schedule" occurring in Section 29(2) cannot be construed as meaning that schedule I must also positively prescribe the period of limitation. Such a construction would not be in accordance with the intention of the Legislature and would lead to an absurdity.

In view of decision in Hari Shankar Tripathi v. Shri Harsh (supra), it can easily be said that Sections 4 and 5 cannot be applicable to Election Petition in view of Section 29(2) of the Limitation Act. Their Lordships were considering particular provisions of appeal and not provisions of The Representation of the People Act in this case.

The last case to which it is necessary to advert to is decision in D.P. Mishra Vs. Kamal Narayan Sharma and Another, . Here, Shri Sakolkar has invited my attention to the following passage:

The right to appeal against the order of a Tribunal is conferred by Section 116A of the Representation of the People Act, 1951, The Act provides a special period of limitation different from the period of limitation prescribed, by Article 116 of the Limitation Act, 1963, for an appeal to the High Court under the CPC from any decree or order. But the expression "under the Code of Civil Procedure" in Article 116 of the Limitation Act means an appeal governed by the Code of Civil Procedure, and by virtue of Section 116A(2) the procedure with respect to an appeal from an order to the Tribunal. By virtue of Section 29(2) of the Limitation Act. Ss- 4 and 12 thereof apply and if the appeal is filed on the date on which the Court re-opens after the recess it will be regarded as within time if the period of limitation, after taking into account the time requisite for obtaining a certified copy, had expired during the course of the recess

It is difficult to nuderstand how the passage is of any help to Shri Sakolkar or to the petitioners to save limitation. In the above case, Their Lordships interpreted Section 116A of the Limitation Act and it is held that by virtue of Section 29(2) of the Limitation Act Section 4 and 12 apply. However, the latter decision of the Supreme Court clearly states that Sections 4 and 5 do not apply to The Representation of the People Act, 1951.

Thus, on close and careful analysis of the legal position obtainable and touched above, I am of the firm opinion that the present Election Petition is barred by time and it is liable to be dismissed. Civil Application is allowed and in effect the Election Petition is dismissed. I, however, order that in the circumstances of the case, parties should be left to bear their respective costs.