Lachhman Dass Arora vs Ganeshi Lal

G.C. Garg, J.—Election to the 8th Haryana Legislative Assembly was notified calling upon various constituencies of Haryana Legislative Assembly including Sirsa (82-Legislative Assembly '' Constituency) to elect its representatives. The last date for filing nomination papers was notified as 3.4.1996. The date of poll was notified as 27.4.1996. Counting Was to commence on 8.5.1996. After withdrawal of nomination papers within the time- allowed, a total of 76 candidates remained in the field as the contesting candidates in respect of Sirsa (82-Legislative Assembly Constituency). The counting of votes started on 8.5.1996 and continued for two days. Result was ultimately declared by the Returning Officer on 10.5.1996 at about 5 p.m. Respondent No. 1, the returned candidate polled 35419 votes whereas the election petitioner Lachhman Dass Arora polled 31599 votes. Gopi Chand another candidate polled 22848 votes and Lekh Raj still another candidate polled 2045 votes whereas the other candidates polled less than 100 votes. The Returning Officer declared Ganeshi Lal, respondent No. 1 as returned candidate by a margin of 3820 votes on 10.5.1996. This undisputedly the date of election of the returned candidate for the purpose of Section 81 of the Representation of People Act, 1951 (for short ''the Act'').

Section 81 of the Act provides that election petition calling in question any election may be presented by any candidate of such election within 45 days from the date of election of the returned candidate. The period of 45 days from the date of election i.e. 10.5.1996 for the purpose of filing election petition, admittedly, expired on 25.6.1996 and the election petition was presented by the petitioner through his advocate Shri Sanjiv Walia, at 3.50 p.m. on 1.7.1996, in the Registry of this Court. The election petition was thus filed after the expiry of period of limitation.

In response to notice of the election petition, only Ganeshi Lal the returned candidate filed written statement. A preliminary objection was raised that the election petition was not instituted within the prescribed period of limitation as provided in Section 81(1) of the Act and was, therefore, liable to be dismissed. It was highlighted that the High Court vide its notification No. 313/Genl. XVII3. dated 27.11.1995 specifically notified for general information that the Court of Punjab and Haryana at Chandigarh will be closed for Civil business except for hearing Election Petitions or any other matter arising out of the Representation of People, Act, 1951, on account of long vacations in the year 1996 from June 1 to June 36, 1996 (both days inclusive). The contesting respondent also raised various other pleas and controverted the allegations made in the election petition.

It may also be noticed that Registry of this Court also, at the time of scrutiny of the election petition, pointed out that the election petition has been filed on the 52nd day of the declaration of result and was, therefore, barred by time in view of the provisions of Section 81(1) of the Act.

Election petitioner filed replication and on the oral prayer of the learned counsel for the petitioner it was taken on record after supplying a copy thereof to the opposite counsel.

Learned counsel for respondent No. 1, the returned candidate submitted that the election petition deserves to be dismissed on the ground that ii has been presented after the expiry of period of limitation as prescribed under the Act and thus after hearing learned counsel for the parties, a preliminary issue was framed to the following effect.

Whether the election petition has been filed within the period of limitation? O.P. Parties.

Learned counsel for the petitioner placing heavy reliance on notification No. 312-Genl./XVII. 3 dated 27.11.1995 published in the Chandigarh Administration Gazette on 1.1.1996 submitted that vide this notification, the calendar of holidays in the year commencing 1.1.1996 to 31.12.1996 was settled by the High Court and notified to show that the High Court shall remain closed for summer vacations from June 1 to June 30, 19% (both days inclusive) and consequently the High Court remained closed upto June 30, 1996 on account of summer vacations and thus the election petition presented in the Registry on July 1, 1996 was within the period of limitation. Learned counsel also submitted that no Judge had been designated to deal with the election petitions and, therefore, the Court could not function for hearing the election petitions or any other matter arising out of the Representation of People Act. Learned counsel for the petitioner by reference to notification No. 313/Genl./XVII. 3 dated 27.11.1995 published in the Chandigarh Administration Gazette on 1.1.1996 submitted that use of words "for hearing elections or another matter arising out of the Representation, of People Act, 1951" mean only for hearing of election petitions where both the parties are appearing in person or represented by a counsel and it did not relate to the filing of the election petitions. According to the learned counsel, an election petition could be heard by a designated Judge during the summer vacations but it did not mean the elections petitions could be filed during the summer vacations and, therefore, the present election petition presented on 1.7.1996, the opening day was well within the period of limitation. Learned counsel further submitted that the contents of the notification No. 313 referred to above are ambiguous and they do not indicate that the said notification related to the High Court as the word "High" was missing before the words "the Court of Punjab and Haryana at Chandigarh", at least at three places of the said notification. Learned counsel for the petitioner thus submitted that the petitioner was mis-led by the notification No. 313 referred to above and this notification did not curtail the period of limitation. He further submitted that the election petition was filed in view of notification No. 312 referred to above and thus the same having been filed on 1.7.1996 i.e. the re-opening day was within the period of limitation. Learned counsel submitted that in notification No. 312 the word "High" has been used before the words "Court of Punjab and Haryana at Chandigarh" and the election petition was thus filed on the basis of that notification. Learned counsel still further submitted that in case of doubt about limitation, the issue deserves to be answered in favour of the petitioner.

Notification No. 312/Genl./XVII.3. dated 27.11.1995 only notified the schedule of holidays to be observed by the High Court and thus no further reference to this notification is necessary in the context of the contentions raised by learned counsel for the petitioner. However, in view of notification No. 313 referred to above, the contentions raised by learned counsel for the petitioner in the opinion of this Court have no merit. In order to better appreciate the contentions raised, notification No. 313/Genl./XVII3 dated 27.11.1995 issued by this Court and as published in the Chandigarh Administration Gazette on 1.1.1996 is reproduced below:-

"HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH NOTIFICATION -

No. 313/Genl./XVII.3 dated 27.11.1995

It is hereby notified for general information that the Court of Punjab and Haryana at Chandigarh will be closed for Civil Business except for hearing Election Petitions or any other matter arising out of the Representation of People Act, 1951, urgent Civil Appeals/Petitions etc. including petitions under Articles 226 of the Constitution of India, on account of long vacations in the year 19% from June 1 to June 30, 1996 (both days inclusive). The court will resume sitting on July 1, 1996 (Monday).

During this period except on Sundays and holidays Appeals/Petitions etc. - will be received at the Court at Chandigarh from such persons as may choose to present them."

The notification as referred to above clearly goes to show that ii was issued by the High Court and it further clearly indicates that the Court of Punjab and Haryana at Chandigarh shall remain closed for Civil Business except for hearing Election Petitions or any other matter arising out of the Act. There is now no doubt the election petitions challenging an election to the Legislative Assembly of a State or the Lok Sabha can only be filed in the High Court of the State concerned. The omission to mention the word "High" before the words "Court of Punjab and Haryana at Chandigarh" in the body of the notification cannot be taken advantage of by the petitioner. All matters arising out of the Representation of People Act are amenable only to the jurisdiction of the High Court. The two notifications were issued simultaneously and rather published on the same date in the Chandigarh Administration Gazette i.e. on 1.1.1996. The contention of the learned counsel in that behalf is totally untenable. Even otherwise, the Court at Chandigarh in the context of the notification clearly goes to show that it means the High Court at Chandigarh and therefore, the election petition could be filed in the High Court during the period of vacations i.e. from 1.1.1996 to 30.6.1996.

The other contention of the learned counsel that the High Court remained closed on account of summer vacation and during that period no Judge had been designated to deal with the election petition and therefore, the High Court could not be said to have been functioning for hearing the election petitions or other matters arising out of the Act, again has no merit. This precise contention was considered by S.P. Goel, J. (as his Lordship then was) in Surinder Singh v. Inder Singh Nain, Election Petition No. 22 of 1982 decided on 2.9.1982, who after noticing a judgment of the Apex Court in Hari Shanker Tripathi Vs. Shiv Harsh and Others, , answered the same against the petitioner. SLP being - 3192 of 1982 against the judgment in Surinder Singh''s case (supra) was dismissed by the Supreme Court on 5.10.1983 by detailed judgment. In another judgment in Hukumdev Narain Yadav Vs. Lalit Narain Mishra, , the Supreme Court held that the Court is not closed, notwithstanding the fact that Judges do not sit on any day for otherwise the Court is open on that day and that there can be no doubt that the election petition can be presented on the last day of the limitation (even when the Judges are not sitting to receive or entertain the election petition) to the Registrar or in his absence to any other officer specified in the High Court Rules.

In Hari Shankar Tripathi''s case (supra), the notification stated that the Court shall remain closed from May 25 to July 7 on account of summer vacation. There was no corresponding notification like the one in the present case i.e. the notification No. 313 reproduced in the earlier part of this judgment. Thus in the absence of the notification, as already observed, it can safely be concluded that the High Court was closed for judicial work yet the election petition could be presented before the Registrar as the office of the Registrar was open and functioning and a notification to that effect had been specifically issued. The mere fact that a Judge had not been designated to hear election petitions or the matters arising out of the Act, is of no assistance as it has nothing to do with the filing of the election petition which, as provided u/s 81(1) of the Act is required to be filed within 45 days from the date of election of the returned candidate. The Registrar being competent to receive election petition, it could be presented to him within a period of limitation and it is not the requirement of the law that election petition is to be presented only to a Judge while sitting in the Court. Hearing of election petition has nothing to do with the filing of the election petition and it could be filed in the Registry even in the absence of actual hearing that takes place when the parties are represented or the petitioner is represented by a counsel.

Learned counsel for the petitioner placing reliance on Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, submitted that all the persons are not supposed to know the law and, therefore, it cannot be inferred that the election petitioner had full knowledge of the provisions of the notification and thus the controversy regarding filing of the election petition beyond the period of limitation deserves to be answered in favour of the petitioner. This contention again has no merit. The reported case related to only an abandonment of right which could be express or implied from the conduct of the parties and in the context of waiver it was held that a person who is said to have waived the right was made aware of his right and he waived the right with full knowledge of such right with such intention to abandon it. This is not at all the position here as the election petition is required to be filed within a period of 45 days u/s 81(1) of the Act and thus even the lack of knowledge on the part of the petitioner cannot confer a right on him to have the limitation condoned for filing the election petition. In Simhadri Satya Narayana Rao v. M. Budda Prasad and Ors., 1994 Suppl. (1) Supreme Court Cases 449 an election petition calling in question the election of a returned candidate was filed on the re-opening of the High Court. Under a notification dated 29.12.1989 from 2nd January to 12th January, 1990 (both days inclusive) and as January 13 and 14 were holiday being second Saturday and Sunday, the petition was filed on 15.1.1990. An objection was raised that the election petition was barred by time. The objection was repelled by the High Court by observing that filing of the election petition on the re-opening day of the High Court was within limitation in view of notification dated 29.12.1989. Learned counsel for the petitioner placing reliance on the Judgment of Simhadri Satya Narayana Rao''s case (supra) submitted that in the present case the election petition filed on the reopening of the High Court on 1.7.1996 ought to be held to have been-filed within the period of limitation.

On a consideration of the matter, I am of the opinion that the above decision renders no assistance to the petitioner. The notification in the reported case as noticed in para 8 of the judgment, goes to show that it was notified that the High Court shall remain closed for Sankranth vacation 1990 from 2nd January to 12th January 1990 (both days inclusive). The latter part of the notification goes to show that one Single Judge was notified as vacation Judge from 2.1.1990 to 6.1.1990 and another Hon''ble Judge was notified as Vacation Judge from 7.1.1990 to 12.1.1990 and it was further notified that two Assistant Registrars will be the Vacation Officers during the notified hours. In the present case, if notification No. 312 ibid only had been, issued, perhaps no difficulty, would have arisen in holding that the election petition filed on 1.7.1990 was within the period of limitation. However, notification No. 313 reproduced in the earlier part of the judgment makes all the difference in this case. Notification No. 313 clearly notified for the general information that the Court of Punjab and Haryana at Chandigarh shall remain closed for Civil Business except for hearing Election Petition or any other matter arising out of the Representation of People Act and urgent Civil Appeals/Petitions etc. including petitions. The notification issued by the High Court dearly states that the High Court shall remain open for the purpose of filing and hearing of election petitions. In the wake of this notification, it cannot be concluded that the Court remained closed for the purpose of filing a election petition in the Registry of this High Court. The emphasis of the learned counsel for the petitioner that use of word "hearing" in the notification No. 313 ibid connotes the actual hearing of election petition by a Judge of the Court also cannot be given any weight. In support of this part of the submission, learned counsel referred to the meaning of word "hearing" as explained in the Words and Phrases judicially defined by Rolland in Volume-II, 1943 Edition at page 451. In ordinary parlance the word "hearing" may mean the actual hearing before a Judge but in the context of this case, it is inherent in the word "hearing" that election petition can be presented and heard during the period of vacation in view of the notifications reproduced in the earlier part of the judgment.

In view of the above discussion and having regard to the decision of this Court in Surcinder Singh''s case (supra) of S.P. Goel, J. (as his Lordship then was), in Election Petition 22 of 1982, the SLP against which was dismissed by the Supreme Court by a Bench of three Hon''ble Judges on 5.10.1993, I have no hesitation to conclude that the present election petition was filed beyond the period of limitation prescribed in the Act. The issue is, therefore, answered accordingly and the election petition is consequently dismissed being barred by time.