Mohd. Ali vs Azad Mohd.

Amarjeet Chaudhary, J.—In this election petition filed u/s 81 read with Section 100 of the Representation of the People Act, 1951, the petitioner has questioned the election of returned candidate, Sh. Azad Mohd. from 57-Ferozepur Jhirka Assembly Constitutuency.

Notice of the election petition was issued to the respondent in response to which returned candidate Azad Mohd. had put in appearance.

Written statement as well as replication were filed.

On the basis of the pleadings of the parties, the following preliminary issue was framed :-

"Whether the election petition deserves to be dismissed on the sole ground that it is time barred? OPR.

I have heard learned counsel for the parties and perused the paper book.

Un-shorn of necessary details, the relevant facts for arriving at a conclusion are that the election to the Haryana Vidhan Sabha was held in the month of April, 1996 and the results of the election were declared on different dates. The result of 57 Ferozepur Jhirka, Assembly Constituency was declared on 11:5.1996. As per the provisions contained in Section 81(1) of Representation of the People Act, 1951, the election petition can be filed within 45 days from the date of declaration of result. In this case, the result of the election was declared on 11.5.1996 and the election petition was filed on 1.7.1996.

Learned counsel for the petitioner contends that the High Court was closed. on account of summer vacations from June 1 to June 30, 1996 (both days inclusive) and the Court had resumed sitting on July 1,1996. The election petition was filed on July 1, 1996; i.e., the day of re-opening of the High Court and as such the election petition would be within limitation by virtue of the provisions of Section 10(1) of the General Clauses Act which provides," where by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceedings shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open."

Learned counsel for the petitioner contends that since the petitioned has filed the election petition on the opening day, the same is within limitation.

Mrs. Daya Chaudhary, learned counsel for the returned candidate, contends that the High Court was closed for civil business except for hearing election petitions or any other matter arising out of the Representation of the People Act, 1951, urgent civil Appeals/Petitions etc. including petitions under Articles 226/227 of the Constitution of India on account of summer vacations. She further contends that the High Court was entertaining urgent Civil Appeals/Petitions etc. including urgent Civil Appeals/Petitions etc. including petitions under Articles'' 226/227 of the Constitution of India and since the Registry of the High Court was open, the election petition should have been filed within 45 days but the same has been filed beyond limitation. As such, the election petition deserves to be dismissed.

Notification No. 313 Genl./XVII. 3 dated 27.11.1995 issued by the High court reads as under :-

" It is hereby notified for general information that the Court of Punjab and Haryana at Chandigarh will be closed for 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; Article 226 of the Constitution of India, on account of long vacations in the year 1996 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."

In view of the clear language of the notification, there is no doubt that the petitioner had to file the election petition in the High Court before the expiry of 45 days and for that purpose, the High Court was open. During the period of vacations except on Sundays and Holidays, Appeals/Petitions etc. were received in the High Court from such persons as may choose to present them.

In view of this, I am of the considered view that the petitioner was having no discretion whether to file election petition or not within the stipulated period of 45 days.

The Supreme Court in Shri Satbir v. Smt. Parsanni Devi and Ors., Civil Appeal No. of 1982 has held that ''in literal sense of the term vacation period cannot be treated as holidays as envisaged by the provisions of the Limitation Act: However, we need not go into the said border question because in view of express language of the notification there was no bar to the appellants to file the election petition and no option or discretion arises to the appellants. If the Court is open for receiving election petitions, the question of option or discretion does not arise and if he deliberately does not choose to file the election petition within the time period of limitation, he does so at his own risk. In the instant case, since it is common ground that election petition was filed one week after the expiry of period of 45 days, the petitions were clearly barred by limitation."

In the case in hand, it is the conceded position that the election petition was filed on 1.7.1996 and by that time the limitation period had already lapsed. under the Representation of the People Act, 1951, the limitation period for filing the election petition is 45 days and there is no provision for condoning the delay. If the Statute or an Act provides for certain remedies within the stipulated period, the same are to be availed within that very stipulated period and in case of delay, the General Act or the Limitation Act will not be applicable.

Learned counsel for the parties have not disputed the legal position that Sections 4 and 5 of the Limitation Act have no application to the election petitions under; the Act. It has also not been disputed that the benefit of Section 10 of the General Clauses Act can be availed to save the limitation under the Representation of the People Act, 1951 but the benefit of Section 10 would have been available to the petitioner if the High Court remained closed during the vacations and the High Court was not entertaining the election petitions but the fact is that the Registry of the High Court was open and it was entertaining the election petitions.

The Supreme Court in Hukumdev Narain Yadav Vs. Lalit Narain Mishra, , has held that a Court is not closed, notwithstanding the facts that Judges do not sit on any day if otherwise the Court is open on that day and that there can be no doubt that the election petitions 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.

The judgment of the Supreme Court in Simhadri Satya Narayana Rao v. M. Budha Prasad and Ors. 1996 (1) S C C 449 relied upon by the petitioner is not applicable to the facts of the present case because in that case the Andhra Pradesh High Court as well as Registry of the Court remained closed for the Sankranthi vacation and the election petition filed on the reopening day of the High Court was justified but in the present case the Registry of the High Court was open and it was entertaining the petitions arising out of Representation of People Act, 1951.

For the foregoing reasons, the election petition is dismissed being time barred. With costs which are quantified at Rs. 5,000/-.