Deenanath Sharma vs Tarun Prasad Chatterjee and others

V.K. Agarwal, J.

By this order, application (I.A. No. 42/99) filed by the respondent under Order 7, Rule 11, Code of Civil Procedure, read with Section 81 of The Representation of People Act, 1950, (hereinafter referred to as ''Act'' for short), is being disposed off.

The petitioner is unsuccessful candidate in the election for the Legislative Assembly of Madhya Pradesh, held vide notification dated 30-10-1998, by Election Commission of India. Undisputably, the date of poll was 25-11-1998. The date of declaration of result was 28-11-1998, in which the petitioner was declared elected. The respondent has filed the Election petition on 12-1-99, challenging the above election of the Petitioner alleging corrupt practice.

As provided u/s 67-A of the ''Act'' the date of election of the respondent is 28-11-1998. The election petition was filed on 12-1-1999 i.e. on the 45th day, if the date of election is excluded and on the 46th day thereof, the date of election was to be included.

The respondent filed the present application (I.A. No. 42/99) under Order 7, Rule 11, CPC read with Section 81 of the Representation of people ''Act'', praying for the dismissal of the Election petition as barred by limitation, by one day as prescribed u/s 81 of the ''Act''. It has been averred that in view of the language of Section 81 of the ''Act'', the date of election will have to be included in computing the period of 45 days within which the election petition should have been filed.

The petitioner filed reply to the said application. It has been averred by the petitioner in his reply that the period of limitation will have to be calculated in accordance with the provisions of General Clauses Act, 1897, and therefore, the date of declaration of result i.e. 28-11-1998 will have to be excluded while computing the period of limitation. As the Election petition was filed on 12-1-99 i.e. on the forty- fifth day excluding the date of declaration of result of the returned candidate, the petition is not barred by limitation. It has further been averred that the above application has been filed only with the intention to delay the proceedings, and that it deserves to be dismissed.

As noticed earlier undisputably, the date of election of the petitioner is 28-11-98. The date of presentation of election petition is 12-1-1999. If the date of election of candidate is excluded then Election petition having been filed on forty-fifth day thereof, it is within the period of limitation, as provided u/s 81 of the ''Act''. However, if the date of election i.e. 28-11-1998 is to be included in computing the period of limitation, it would be barred by limitation by one day, as is the objection of the respondent.

Therefore, for deciding the objection raised in the said application, the question that arises for consideration is, as to whether the date of election is to be included or excluded for computation of period of limitation, for presentation of the election petition?

The learned Counsel for the respondent in support of his application (I.A. No. 42/99), has contended that the provisions of Limitation Act are not applicable to the Election petitions. The learned counsel has referred to the decision of the Supreme Court in Manohar Joshi Vs. Nitin Bhaurao Patil and Another, , wherein it is held that the Act is a self contained Code even for the purpose of limitation prescribed therein. It was however held therein that Section 10 of the General Clauses Act is applicable to the presentation of the Election petitions. Similar preposition has been laid down in K. Venkateswara Rao and Another Vs. Bekkam Narasimha Reddi and Others, , wherein it has been held that the Limitation Act does not apply to proceedings of the election petition as the ''Act'' is a complete and self contained Code, which does not admit the principles or the provisions of law contained in Limitation Act.

It has, therefore, been submitted by the learned counsel for the respondent that Section 12 of the Limitation Act has no application to the filing of Election petition. It has further been contended that even though the general preposition is that provisions of Section 9 of the General Clauses Act are normally applicable, but the above provision is not universally applicable. It has been submitted that the application of the said provision would be determined in the context of the specific provisions in the statute. It has therefore, been submitted that in view of specific provisions of Section 81 of the ''Act'', laying down the period of limitation; general provision of Section 9 of the General Clauses Act, would not apply for computation of period of limitation for filing the election petition. It has thus been submitted in the above regard that the textual and contextual aspects of the ''Act'' would exclude the application of Section 9 of the General Clauses Act.

Learned counsel for the petitioner relied upon the observations of the Apex Court in Haru Das Gupta Vs. The State of West Bengal, , which related to West Bengal (Prevention of Violent Activities) Act, 1970. In that case a question that arose for consideration was; whether for computing the period of three months from the date of detention for making an order of confirmation as provided u/s 12 of the said Act, the date of detention should be excluded or not ? It has been submitted by the learned counsel, that though the question as above was answered in the affirmative, but the Supreme Court in the above context has observed:

The question is when the period of three months from the date of detention be said to have expired. When a period of time running from the given day or event to another day or event is prescribed by law or fixed by the contract and the question arises, whether the computation is to be made inclusively of exclusively of the first mentioned or last mentioned day regard must be had to the context and to the purpose for which the computation has to be made.

The learned Counsel elaborating his arguments as above, has referred to the "Principles of Statutory Interpretation 7th Edition by Justice G.P. Singh. The comments of the learned author regarding Section 9 of the General Clauses Act at page 782 are:

The other principle is that when a period is delimited by Statute or rule which has both a beginning and end the word ''from'' excludes the opening day and any words fixing the closing day include that day. In other words, when the period is delimited marked by the terminus a quo and terminus ad quern, the former is to be excluded and latter to be included in the reckoning. The second principle has been given statutory recognition in Section 9 of the "Act."

It has further been urged by the learned counsel for the respondent that the learned author has entered a caveat to the general rule as above by observing that the general rule of exclusion of the first day and inclusion of the last day is subject to a contrary intention indicated in the statute. The learned Counsel for the respondent has thus urged that in view of the context and text of Section 81(1) of the ''Act'', provisions of Section 9 of the General. Clauses Act would not be applicable, as that provision though is of general application, but is not to be universally applied. It has also been submitted that Section 9 of the General Clauses Act would not be applicable in view of the specific provisions under the ''Act'' itself.

It will be useful to quote here Section 81(1) of the ''Act'' which reads:

An election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the dates of their election are different, the later of those two dates.

It has been contended by the learned counsel for the respondent that the words of crucial importance occurring in Section 81(1) as quoted above are ''within'' and ''from''. Learned counsel relying upon the definition of ''from'' and ''within'' in Black''s Law Dictionary, has submitted that by using expression ''within forty-five days'' ''from'' in Section 81(1) of the ''Act'', the Parliament has clearly and explicitly envisaged that the act of Presentation of the petition must be performed before the expiry of the period of forty-five days from the date of election, and not later than that. Learned counsel for the respondent on the authority of Chandrakant Shukla v. Maharaja Martand Singh AIR 1973 SC 584, has submitted that the date of election is the starting point of limitation. The learned counsel also referred to the decision of this Court in Abhimanyu Rath Vs. Virendra Pandey, , in which it was held that the limitation would start from the date of election.

It has, therefore, been contended by the learned counsel for the respondent that the date of election of the returned candidate has to be included in computing of forty-five days for presenting the election petition as laid down in Section 81(1) of the ''Act'', and that the provision of Section 9 of the General Clauses Act, in view of the language used u/s 81(1) of the ''Act'' would have no application in computing the period of limitation, as above. It has thus been submitted that the context as well as the text of Section 81(1) of the ''Act'' would therefore indicate that notwithstanding the provisions of Section 9 of the General Clauses Act, the date of election would be included while computing the period of filing the Election Petition.

As against the above arguments, the learned counsel for the respondent submitted that Section 9 of the General Clauses Act would apply in case of computation of limitation in filing the Election Petition. The date of declaration of result would therefore be excluded and the limitation of forty- five days beginning from the next date, is available to the election petitioner.

Learned Counsel for the petitioner submitted that plain reading of Section 81(1) of the ''Act'' would indicate that the cause of action for filing election petition arises on the date when result of elections is declared as provided u/s 67 (A) of the ''Act''. Therefore, while computing the period for filing Election Petition, the date of declaration of result has necessarily to be excluded. It has, therefore, been contended by the learned counsel for the petitioner that this petition was filed within a period of forty- five days, as envisaged u/s 81(1) of the ''Act''. This petition therefore is within time. It was therefore contended that the objection as above of the respondent is without substance and the same deserves to be rejected.

In view of the contentions as raised above, as noticed earlier the sole question that requires consideration is as to whether in view of language of Section 81(1) of the ''Act''; the date of election is to be included while computing the period of forty-five days for presentation of election petition u/s 81(1) of the ''Act'' or not ?

Under Section 81(1) of the ''Act'', the Election Petition calling in question the election of a candidate has to be presented within forty-five days ''from'' but not earlier than the date of election of the returned candidate and if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. In the instant case, since only the respondent was the returned candidate the later part of Section 81(1) of the ''Act'' does not apply.

The learned counsel for the petitioner has submitted that the provisions of Section 9 of the General Clauses Act would apply, and thus in computing the period of forty-five days for presentation of Election Petition, the date of election will have to be excluded. Section 9 of General Clauses Act reads:

In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose of including the last in a series of days or any other period of time, to use the word "to"."

However, as against this the learned counsel for the respondent has urged that in view of the words used ''date of election'' and within ''forty-five days'' from such date would mean and imply the inclusion of the date of election also. The definition of ''day'' and ''date'' as given in the Black''s Law Dictionary has been referred to by the learned counsel for the respondent. It has been submitted by the learned counsel for the respondent that the use of words ''Date'' and ''day'' in Section 81(1) of the ''Act'' is significant. Corollary necessarily is that provisions of Section 9 of the General Clauses Act, would have no application. It has thus been contended that though in Section 81(1) of the ''Act'' the word ''from'' has been used, which would have normal import of excluding the date of event; but that would not be so in the case of filing of Election Petition. In other words even though the word ''from'' has been used in Section 81(1) of the ''Act'' in reference to the date of election, the same shall not be excluded in computing the period of forty-five days for presenting Election Petition.

However, the contention of the learned counsel for respondent as above, does not appear to be acceptable, as language of Section 81(1) of the ''Act'' does not appear to imply exclusion of applicability of Section 9 of the General Clauses Act. Section 81(1) of the ''Act'' provides that an Election petition may be presented within forty-five days ''from'' but not earlier than the date of election of the returned candidate. In the above context, it appears that the date of election of the returned candidate shall have to be excluded, It may be noticed that if the contentions as above of the learned Counsel for the respondent was to be accepted, it might lead to anamolous result. If for the sake of arguments, it is assumed that the period of limitation prescribed u/s 81(1) of the ''Act'' was one day instead of forty-five days, then if the above contentions of the learned counsel for the respondent was to be accepted, and if the date of election was to be included in computing the period of limitation, then the Election Petition in that event would have to be presented on the date of electron itself. This possibility could not be the intent and purpose of the Parliament.

Learned Counsel for the respondent relying upon Shri Chandrakant Shukla Vs. Maharaja Martand Singh, has submitted that the date of election should be treated as the starting point of limitation; and therefore, the date of election would be counted in computing the period of forty-five days prescribed for filing the election petition. However, it may be noted that in the above case, after considering the provisions u/s 81(1) and Section 67(A) of the ''Act'', it was observed that the reading of those two provisions together makes it clear that the election petition should have been filed within forty-five days from the date of election, and therefore, it was held in that case that the petition filed by the Appellant was clearly barred by limitation. It was also urged in the above case that since there was sufficient cause for delay in filing the petition, the same should be condoned. The contentions as above was considered and it was observed by the Apex Court, that High Court rightly disbelieved the evidence regarding the ground urged by the petitioner for delay. Therefore, it does not appear that the Apex Court in that case considered the question as to whether the date of election shall or shall not be included while computing the period of forty-five days?

Learned Counsel for the petitioner has also relied upon Abhimanyu Rath Vs. Virendra Pandey, , in which it has been observed that the limitation prescribed by Section 81 would run from the date of declaration of result by the returning Officer and not from the date of publication of the same in the Official Gazette, and therefore, the contention that date of publication of result in the gazette should be taken into consideration for counting the period of limitation, was not accepted. However, as already noticed earlier also, the question involved in the instant case is different and it has only to be considered here as to whether the date of election shall have to be included or excluded from computing the period of limitation. In the cases as above, that question has not been considered. Therefore, the above cases do not support the contentions, raised by the learned counsel for respondent.

Thus, as provided in Section 81(1) of the ''Act'' the Election Petition has to be filed within forty-five days from the date of election, but the date of election has to be excluded. Therefore, the contention of the learned counsel for the respondent that on a due interpretation of Section 81(1) of the ''Act'', and in view of the language and context thereof the date of election has to be included for computing the period of election within forty-five days, cannot be accepted.

It may further be noticed that the learned author Justice G.P. Singh in his treatise "Principles of Statutory Interpretation" 7th Edition at page 782, has pointed out that though the decision in the earlier period were not quite uniform but ever since 1808 in Lester v. Garland, (33 and 348), the Rule is well established that an act is to be done within a specified time from a certain date, day of that date is to be excluded. Similarly when an act has to be done within so many days after certain events, the day of such event is not to be count.

The contention of the learned counsel for the respondent that Section 9 of the General Clauses Act has no application in view of the specific language and context of Section 81(1) of the ''Act'' can also not be accepted. In K. Venkateswara Rao and another. v. Bakkam Narsimha Reddi and others. (supra), it has been observed in para 20 of the judgment, that even though the Indian Limitation Act, 1963 does not apply to an election petition provisions like Sections 9 and 10 of the General Clauses Act, 1897 providing for computation of time which are in pari materia with Sections 12(1) and 4 of the Limitation Act would apply to such a petition. Therefore, in view of the above observations by the Apex Court, there remains little doubt about the proposition that provisions of Section 9 of the General Clauses Act will be applicable while computing the period of limitation for filing election petition.

In Jitender Tyagi Vs. Delhi Administration and another, which was a case under the National Security Act, 1980, the question of computation of period of 12 days, within which the detention order passed by an Officer u/s 3(2) of the said ''Act'', is to be approved by the State Government was considered. It was observed therein that the day on which the cause of action arises has to be excluded in computing particular period of time. It was further held therein that such an exclusion has to be made in view of the word "after" in Section 3(4) of the said Act.

Similarly, in Saket India Ltd. and Ors. v. India Securities Ltd. 1999(2) MPLJ (SC) 37, in which period of limitation for filing the complaint u/s 142-B of the Negotiable Instruments Act was under consideration it was held that the period of one month u/s 142-B of the said Act, for filing the complaint will be reckoned from the day immediately following the date on which the cause of action arises.

It may also be noticed that in case of Harudas Gupta v. The State of West Bengal (supra) which related to the detention under West Bengal (Prevention of Violent Activities) Act, 1970, it was observed by the Supreme Court that the rule is well established that where a particular time is given from a certain date within which an act is to be done the day on that date is to be excluded. In Ajit Prasad Narayan Singh Vs. Smt. Nandini Satpathy, , the Orissa High Court has observed that in computing the period of limitation within which an Election Petition has to be filed, the date of election should be excluded.

In view of above, it is clear that Section 9 of the General Clauses Act would be applicable in computing the period of 45 days for filing the Election Petition as provided under election 81 of the ''Act'' and the date of election cannot be included in computing the said period. The contentions of the learned counsel for the respondent that notwithstanding the provision of Section 9 of General Clauses Act, the date of election would be excluded; in view of the specific language of the ''Act'' which disclose a clear contra indication; cannot be accepted. It is, therefore, clear that this petition has been filed within the period of limitation of forty-five days, from the date of election.

Hence, the application (I.A. No. 42/99) under Order 7, Rule 11. CPC filed by the respondent is dismissed.