Shyam Lal Bansal vs Chander Mohan

G.S. Singhvi, J.—Petitioner No. 1, and respondent No. 1, were candidates for election to 1Kalka Assembly Constituency in the general elections held for the Haryana Legislative Assembly in April, 1996. The votes were polled on 27.4.1996 and after completion of counting, respondent No. 1 was declared elected on 9.5.1996 by margin of 20629 votes (petitioner No. 1 is shown to have polled 34300 votes as against 54929 polled by respondent No. 1).

Petitioner No. 1, and petitioner No. 2 who claims to be an elector of 1 Kalka Legislative Assembly jointly presented this petition on 1.7.1996 i.e. after more than 45 days of the declaration of result. After scrutiny of the petition, registry of the High Court reported the following defects :

As per provisions contained in section 81(1) of the Representation of the People Act, 1951, an election petition is to be filed within 45 days from the date of the declaration of the result. The result in this case was declared on 9.5.1996 and the election petition has been filed on 53rd day and the same is, therefore, timebarred.

Allegations of corrupt practice have been made in the petition, but the affidavit in the prescribed form as required by section 83(1) of the Representation of the People Act, 1951, has not been filed. Instead, an affidavit of a general nature verifying all the contents of the election petition has been filed."

The registry proposed that the petition be laid before Hon''ble designated Judge on 16.8.1996 as provided under Rule 14(b), Chapter 4 GG, High Court Rules and Orders, VolumeV. On 16.8.1996, the case was listed before Hon''ble M.L. Koul, J., who adjourned it to 20.8.1996. On the next date, Koul, J. passed the following order :

"Mr. D.S. Bali, Sr. Advocate with

Mr. R.C. Dimri, Advocate.

Heard Mr. Bali with regard to the objections raised by the Registry stating that the petitioner has not filed the election petition within the statutory period of limitation of 45 days as provided under the Act, rather the election petition has been filed on the 53rd day and hence the matter is timebarred.

Mr. Bali argued that in no manner the delay has been caused in the filing of the election petition for the fact that the courts were closed in the month of June, 1996 and soon after the courts reopened, it was filed on 1.7.1996 itself. In this regard he referred to 1994 Supplementary (1) Supreme Court Cases 441 and contended that their Lordships have held that the election petition is maintainable once the time of limitation has expired during the vacations and the petition has been filed soon after the court reopened.

Having regard to authoritative pronouncement of the Supreme Court as mentioned above the delay in filing the election petition is condoned.

Mr. Bali has undertaken that he will file an affidavit with regard to the corrupt practice as per Section 83 of the Representation of the Peoples Act, within 10 days. Hence, issue notice of motion to the other side for 30.9.1996."

It appears that the petition was not listed before the Court on 30.9.1996. Instead, it was listed on 3.10.1996. On that date, Koul, J. directed that the case be listed before some other Bench after seeking approval of Hon''ble the Chief Justice and on 9.10.1996, Hon''ble the Chief Justice directed the listing of this petition before this Bench.

In the written statement filed on behalf of respondent No. 1, one of the many objections raised to the maintainability of the election petition is the bar of limitation. Respondent No. 1 has prayed that the election petition be dismissed at the threshold in view of Section 83 of the Representation of People Act, 1951 (for short, the Act).

Shri J.K. Sibal, Senior Advocate appearing for respondent No. 1 argued that in view of the mandate of Section 86(1) of the Act, the election petition should be dismissed because it was filed after the expiry of limitation of 45 days specified in Section 81(1). He submitted that the limitation of 45 days expired on 23.6.1996 and as the election petition was filed on 1.7.1996, the same must be treated as barred by limitation. Learned counsel placed reliance on the notification No. 312 Gen./XVII.3 dated 27.11.1995 and notification No. 313 Gen./XVII.3. dated 27.11.1995 (both published in the Chandigarh Administration Gazette) and argued that in view of the express indication given in the notification No. 313 that the Court will remain closed for civil business except for hearing election petitions or any other matter arising out of the Act, the petitioners were entitled to file election petition on any day except Sundays and holidays specified in the notification No. 312 and, therefore, the petition filed on 1.7.1996 must be treated as timebarred. He relied on the following unreported orders passed by this Court vide which different election petitions were dismissed as barred by limitation :

(1) Election Petition No. 22 of 1982 Surinder Singh v. Inder Singh Nain, decided on 2.9.1982.

(2) Election Petition No. 23 of 1996 Mange Ram v. District Development and Panchayat OfficercumReturning Officer and others, decided on 7.4.1997.

(3) Election Petition No. 24 of 1996 Mohd. Ali v. Azad Mohd., decided on 4.7.1997.

(4) Election Petition No. 26 of 1996 Lachhman Dass Arora v. Ganeshi Lal and others, decided on 16.7.1997.

(5) Election Petition No. 27 of 1996 Raj Kumar v. Returning Officer and another, decided on 27.9.1996.

Shri Sibal also distinguished the decision of the Supreme Court in Hari Shanker Tripathi v. Shiv Harsh and others, 1976(1) SCC 897 and Simhadri Satya Narayana Rao v. M. Budda Prasad and others, 1994 Supp.(1) SCC 449 on the ground that the language of the notifications issued by the respective High Courts for declaring the Court as closed was substantially different than the notifications No. 312 and 313 dated 27.11.1995 issued by this High Court. Learned counsel further submitted that the order passed by M.L. Koul, J. on 20.8.1996 condoning the delay in the filing of the election petition cannot defeat the right of respondent No. 1 to agitate the question of limitation because :

(i) the Limitation Act, 1963 does not apply to the election petitions and M.L. Koul, J. did not have jurisdiction to condone the delay in the filing of the petition; and

(ii) the order passed by M.L. Koul, J. can, at the best, be treated as an expression of prima facie opinion on the maintainability of the petition and under no circumstance, it can be treated as a final adjudication on the issue of limitation. He laid emphasis on the language of the order vide which Koul, J. directed that the issuance of notice of motion for 30.9.1996. Shri Sibal submitted that for trial of election petition, the High Court has to apply, as far as possible, the procedure application (applicable ?) under the Code of Civil Procedure to the trial of suits and, therefore, the expression of tentative opinion by M.L. Koul, J. cannot preclude the final adjudication of the question of limitation raised by respondent No. 1.

Shri R.C. Dimri contested the objection of limitation raised on behalf of respondent No. 1 and urged that the Court should decline to examine the same because :

(1) the point of limitation must be treated as finally decided against respondent No. 1 by virtue of the order dated 20.8.1996 passed by M.L. Koul, J.;

(2) there is no provision in the Act for review of the order passed by the designated Judge and, therefore, the issue of limitation is no longer open to be examined on the basis of the objection raised by respondent No. 1 and in any case, this objection should be rejected in view of order passed by Koul, J. condoning delay in the filing of the election petition.

(3) the question of limitation cannot be decided without framing of issues and trial of election petition.

In support of his submission Shri Dimri relied on Rule 21 of ChapterIV PartGG, Rules & Orders of Punjab & Haryana High Court, VolumeV and following decisions :

(i) Suraj Bhan v. Randhir Singh, AIR 1958 Punjab 483;

(ii) Rewachand and another v. Anand Singh Kachhawaha and others, AIR 1965 Rajasthan 58;

(iii) In Re Putta Ranganayakulu and others, AIR 1956 A.P. 161;

(iv) Syed Jalauddin Hasan Quadri v. M/s Tarapharmacy represented by its Managing Partner, AIR 1966 A.P. 137;

(v) Gore Lal and others v. State, AIR 1958 All. 667.

He then argued that the period of limitation for filing of election petition had expired during summer vacation declared by the High Court vide notification No. 312 Gen./XVII.3 dated 27.11.195 and, therefore, the petitioners could file petition on the opening day i.e. 1.7.1996 which they had done. Shri Dimri relied on Section 10 of the General Clauses Act, 1897 and the decisions of the Supreme Court in Hari Shanker Tripathi v. Shiv Harsh (supra); Babu Lachmeshwar Prasad Shukul and others v. Babu Girdhari Lal Chaudhuri and others, AIR 1939 Patna 667; Dr. K.K. Mohamad Koya v. P.M. Sayeed, AIR 1977 Kerala 160; Sankaran Unni (Minor) and another v. Kummakattil Ezhuvan Kandan''s son Raman, AIR 1925 Madras 743; (H.H. Raja) Harinder Singh v. S. Karnail Singh and others, AIR 1957 SC 271. He further submitted that notification No. 313 Gen./XVII3 dated 27.11.1995 issued by the High Court should be ignored because it is ultra vires to Section 10 of the General Clauses Act, 1897. In support of this argument, Shri Dimri relied on Rule 2(4) of the Conduct of Election Rules, 1961 and urged that the provisions of the General Clauses Act, 1897 having been made applicable to the proceedings of election petition, the notification issued by the High Court, which is inconsistent with the said Act, will have to be treated as ineffective. He also relied on the roster dated 22.5.1996 issued under the orders of the Acting Chief Justice for distribution of work between the Division Benches and Single Benches sitting during summer vacation of 1996 and argued that in the absence of conferment of the jurisdiction on the Vacation Judges to entertain election petitions, the petitioners could not have presented this petition on 24th June (23rd being Sunday).

For the purpose of deciding whether or not the petitioners could have filed election petition during the period of summer vacation and whether the petition presented on 1.7.1996 should be treated as barred by limitation, it will be useful to notice the language of the notification Nos. 312, 313 dated 27.11.1995 and the roster dated 22.5.1996. The same are reproduced below :

Notification No. 312/Gen./XVII.3

No. 312/Genl./XVII.3 It is hereby notified for general information that the days enumerated in the Schedule below shall be observed as Holidays by the High Court of Punjab and Haryana at Chandigarh during the year 1996.

SCHEDULE

Sr. No.

Description of Holidays

Date on which holidays falls

Day of week

No. of Holiday(s)

xx

xx

xx

xx

xx

Note : 1. Saturday falling on December 28, 1996 shall be observed as Holiday in lieu of October 12, 1996 which shall be observed as a working day in the Registry of this Court.

Saturdays falling on February 24 and March 23, 1996 shall be Court working days.

Vacation : Summer Vacation will be observed from 1st June to 30th June, 1996 (both days inclusive).

xx xx xx xx

Notification No. 313.Genl./XVII.3

No. 313 Gen./XVII.3 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 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.

xx xx xx xx

ROSTER OF DIVISION & SINGLE BENCH

SITTING DURING THE VACATION OF 1996

TWO WEEKS WORKING FROM 3.6.1996 to 14.6.1996

1st Week (3.6.1996 to 7.6.1996)

D.B. Hon''ble Amarjeet Chaudhary, J. & Hon''ble N.C. Khichi, J.

S.B. Hon''ble B. Rai, J. (Civil & Criminal)

S.B. Hon''ble Iqbal Singh, J. (Civil & Criminal)

S.B. Hon''ble R.L. Anand, J. (Civil & Criminal)

S.B. Hon''ble M.L. Singhal, J. (Civil & Criminal)

IInd Week (10.6.1996 to 14.6.1996).

D.B. Hon''ble H.S. Brar, J. & Hon''ble M.L. Singhal, J.

S.B. Hon''ble B. Rai, J. (Civil & Criminal)

S.B. Hon''ble Iqbal Singh, J. (Civil & Criminal)

S.B. Hon''ble N.C. Khichi, J. (Civil & Criminal)

S.B. Hon''ble R.L. Anand, J. (Civil & Criminal)

NO WORK PERIOD FROM 17.6.1996 to 28.6.1996

17.6.1996 to 21.6.1996

Hon''ble Amarjeet Chaudhary, J.

24.6.1996 to 28.6.1996

Hon''ble H.S. Brar, J.

During the `No work period'', the Hon''ble Vacation Judge nominated for that period and in his absence the seniormost Hon''ble Vacation Judge in station will entertain urgent petitions like Habeas Corpus, etc. at his residence. In case none of the Hon''ble Vacation Judgees is available, such petitions will be entertained by the seniormost Hon''ble Judge present at Chandigarh at his residence.

The Hon''ble Vacation Judges sitting in Division Benches will also attend to Single Bench work.

BY ORDER OF HON''BLE THE ACTING CHIEF JUSTICE

Sd/

S.M. SHARMA

ADDL. REGISTRAR (JUDL.)

22.5.1996."

A bare reading of the plain language of the notification No. 313/Gen./XVII.3 does not leave any room for doubt that the petitioners could have filed this petition on any working day during summer vacation i.e. from 1.6.1996 to 30.6.1996. During that period, the Court was closed for civil business but not for hearing of Election Petitions or any other matter arising under the Act. Only on Sundays and holidays, the election petitions could not have been filed. In other words, the petitioners were entitled to file election petition on any day upto 24.6.1996 except on Sundays and holidays falling during that period. The argument of Shri Dimri that the election petition cannot be treated as an urgent petition and as such, the same could not have been entertained by the Vacation Judges in view of the roster issued under the orders of Hon''ble the Acting Chief Justices is clearly misconceived and untenable. The roster prepared under the order of the Hon''ble Chief Justice (in this case, Hon''ble the Acting Chief Justice) cannot be treated as having overriding effect qua the notification No. 313.Gen/XVII.3 dated 27.11.1995. If we apply the rule of harmonious construction for interpreting the notification dated 27.11.1995 vide which summer vacation was declared by the High Court and the distribution of business made under the order of Hon''ble the Acting Chief Justice, the possibility of any inconsistency between the two can easily be avoided without, in any manner, undermining their effect. This would mean that election petitions could be presented during summer vacation but actual hearing thereof was to be regulated as per the roster prepared under the order of Hon''ble the Acting Chief Justice. It is one thing to say that effective hearing of the election petition may have not been possible due to absence of nomination of a particular Judge (as to hear such petition), but it is altogether a different thing to say that the party aggrieved by alleged wrongful declaration of election could not have presented election petition during summer vacation. In my considered view, the election petition could have been presented during the period of operation of notification dated 27.11.1995.

An exactly similar notification was interpreted by S.P. Goyal, J. while deciding in Election petition Nos. 22 to 27 of 1982. The facts of those cases show that the result of the election held in May, 1982 was declared on May 20, 21, 24, 1982 in respect of the constituencies qua which election petitions were presented on July 12, 1982. An objection to the bar of limitation was raised on behalf of the respondents and in order to meet that objection, the counsel for the petitioners relied on the provisions of Section 10 of the General Clauses Act, 1897. They argued that the Court would be deemed as closed during summer vacation for the purpose of filing of election petitions. They relied on the decision of the Supreme Court in Hari Shanker Tripathi v. Shiv Harsh (supra). Goyal, J. rejected their argument and held as under :

"....... I am, however, unable to agree with the contention of the learned counsel. The benefit of Section 10 of the General Clauses Act would be available to the petitioners only if the High Court remained closed from 7th June to 9th July 1982 for the purpose of matters arising out of the Act but the fact is otherwise. Both the notifications No. 405 and 406 were published simultaneously on the same date in the Gazette. Their combined reading leaves no manner of doubt that for the purposes of the hearing of election petitions or any other matter arising out of the Representation of the People Act, the High Court was to remain open and an election petition could be filed on any working day between 7th June to 9th July, 1982. These cases, therefore, in my view are squarely covered by the decision of the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, 1974(2) Supreme Court Cases 133 wherein it was held that a Court is not closed, notwithstanding the fact 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 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."

The decision in Hari Shanker Tripathi''s case was distinguished by making the following observations :

"The decision in Hari Shanker Tripathi''s case (supra) is distinguishable on facts and has no bearing on the present petitions. There, it was found that according to the notification of the High Court, the Court was to remain closed from May 25 to July 7 on account of summer vacation. There was no exception to the notification as in the present case that the High Court would remain open for matters arising out of the Representation of the People Act. On these facts it was held that the petitioner was entitled to the benefit of Clause 10 and that the election petition could be filed on the date when the Court reopened. An argument was raised by the counsel opposite that even though the High Court was closed for Judicial business, election petitions could be presented before the Registrar as the office was open and working. This contention was turned down and it was held that the Registrar could function only in his administrative capacity and could not act judicially on behalf of the High Court during vacations. The second contention of the learned counsel, which is based on the observations regarding the competency of the Registrar to act on behalf of the Court during vacation also, therefore, has no merit because the Court was open and functioning so far as the matters arising out of the Act were concerned, and the Registrar as authorised under the Rules & Orders of the High Court could function judicially and entertain petitions on behalf of the court. Again, the fact that no Judge had been designated for the trial of the election petitions is again of no consequence because it has nothing to do with the presentation of the election petitions which have to be presented within 45 days from the date of the election of the returned candidate. The observations made in this respect in Hari Shanker Tripathi''s case (supra) have to be understood in the context of the facts of that case. The Registrar was held to be not competent to entertain the election petitions in that case because the High Court was on summer vacation. On the contrary, in the present case the High Court was open and functioning for all intents and purposes so far as the matters arising out of the Representation of the People Act were concerned. Consequently, Registrar as authorised under the Rules of the High Court was fully competent to act judicially and receive election petitions by virtue of the provisions of rule 11(ii) of the High Court Rules & Orders, Volume V."

The appeals filed by some of the election petitioners were dismissed by the Supreme Court on 5.10.1983. Their Lordships referred to the language of the notification No. 406 Gen./XVII.3(a) and then held :

"In view of the clear language of the notification there is absolutely no doubt that the appellants had to file petitions in the High Court before the expiry of 45 days and for this purpose the High Court would be treated as open. The notification further makes it clear that during the period of vacation except Sundays and holidays appeals/petitions will be received at the High Court at Chandigarh from such persons as may choose to present the same. The stress, however, was laid by Mr. Goyal on the words `as may choose to present''. This, however, does not mean that the litigant has a right to avoid the period of limitation and exercise the option or discretion whether to file the petition or not. In fact, the very purpose of having summer vacation is not to close the office but it is not meant only to give vacation to the judges. 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 broader 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 appellant. 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 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 expiry of the period of 45 days the petitions were clearly barred by limitation. The High Court was, therefore, fully justified in dismissing the election petitions on this ground. We, therefore, find no merit in these appeals which are accordingly dismissed."

Some of the election petitions filed on 1.7.1996 for questioning the legality of the election held in April, 1996 have also been dismissed as barred by limitation. Their particulars and the ratio of the decisions are given below :

(i) In Election Petition No. 23 of 1996 Mange Ram v. District Development and Panchayat OfficercumReturning Officer and others, the petitioner filed C.M. No. 5E of 1996 under Section 5 of the Limitation Act for condonation of delay in the presentation of the election petition. Satpal, J. relied on the language of the notification No. 313 dated 27.11.1995 and then held as under :

"From this notification it is clear that the court was closed during the said period for civil business except for hearing election petition or any other matter arising out of the Representation of People Act, 1951 and certain other matters mentioned in the notification. In terms of this notification the High Court registry was open for filing of the election petitions during the period 1.6.1996 to 30.6.1996. As held by the Hon''ble Supreme Court in the case of Simhadri Satya Narayana Rao (supra), it is the vacation notification which has to be looked up to find out whether the registry is open for presenting the election petitions. Since in terms of the notification, the registry was open for filing the election petitions, I do not find any substance in the contention of the learned counsel for the petitioner that the election petition could be filed on or before 1.7.1996. In fact the petitioner in para 4 of the application himself has admitted that the date for filing the election petition was 24.6.1996 and since he fell ill, he could not come to the counsel for briefing before the last date. From these facts, it is evident that the election petition in the present case has been filed beyond the period of limitation. As stated hereinabove, the delay in filing the election petition cannot be condoned, if the registry is open for presenting the election petition in view of the law laid down by the Hon''ble Supreme Court in the case of Simhadri Satya Narayana Rao (supra).

(ii) Election Petition No. 24 of 1996 Mohd. Alli v. Azad Mohd., which was filed on 1.7.1996 was dismissed by Amarjeet Chaudhary, J. on 4.7.1997 on the ground that it has been filed after 45 days.

(iii) Election Petition No. 26 of 1996 Lachhman Dass Arora v. Ganeshi Lal and others, was also dismissed by G.C. Garg, J. as time barred. The facts of that case show that the petition was presented in the registry on 1.7.1996, though the period of limitation expired on 25.6.1996. Garg, J. noticed the omission of word `High '' before the words `Court of Punjab & Haryana, Chandigarh'' in the body of the notification and observed as under :

"There is now no doubt that 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."

Garg, J. referred to the judgment of the Supreme Court in Hari Shanker Tripathi''s case (supra) and proceeded to observe as under :

"In Hari Shanker 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 under section 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."

His Lordship also rejected the argument urged on behalf of the petitioner that mere publication of the notification in the gazette is not sufficient to impute knowledge to the litigant about his right to file election petition during summer vacation. The observations made in this context are :

"Learned counsel for the petitioner placing reliance of M/s Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh and others, AIR 1979 SC 621 submitted that 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 under section 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."

The judgment in Simhadri Satya Narayana Rao v. M. Budda Prasad and others (supra) has been distinguished by (sic) :

"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 Sankranthi 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 said vacation and notice of application of an urgent nature shall be given to 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 1.7.1996 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 Petitions or any other matter arising out of the Representation of People Act and urgent Civil Appeals/Petitions etc. including petitions under Article 226 of the Constitution of India. The notification issued by the High Court clearly 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 an 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 the word `hearing'' as explained in the Words and Phrases judicially defined by Rolland in VolumeII, 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 decision of the Supreme Court in Satbir v. Smt. Parsanni Devi and others and other connected appeals (decided on 5.10.1983 affirming the order dated 2.9.1982 passed by S.P. Goyal, J. in Election Petition No. 22 of 1982 Surinder Singh v. Inder Singh Nain (and other decisions referred to hereinabove, which fully support the view taken by me, I have no hesitation in recording the conclusion that this petition is barred by limitation and it is liable to be dismissed as such.

However, before concluding the matter, I consider it necessary to deal with the argument of Shri Dimri that the order dated 20.8.1996 passed by M.L. Koul, J. condoning the delay in the filing of the election petition should be treated as conclusive and it is not open to be reviewed/reconsidered in the absence of any provision to that effect in the Act. This argument, though appears attractive, is devoid of merit. In my considered view, respondent No. 1 cannot be precluded from seeking dismissing of the writ petition on the ground that it is barred by limitation. The reasons for this conclusion of mine are :

(a) the order passed by M.L. Koul, J. condoning the delay in the filing of the petition is contrary to the law laid down by the Supreme Court in Hukamdev Narain Yadav v. Lalit Narain Mishra (supra); Hari Shanker Tripathi v. Shiv Harsh and others (supra); Simhadri Satya Narayana Rao v. M. Budda Prasad and others (supra) and Anwari Basavaraj Patil and others v. Siddaramaiah and others, AIR 1994 SC 512 in which the Apex Court has held that Section 5 of the Limitation Act cannot be invoked for condoning the delay in the filing of the election petition. The order passed by M.L. Koul, J. being contrary to law laid down by the Supreme Court is liable to be ignored by applying the principle of per incuriam.

(b) the order dated 20.8.1996 was passed without issuing notice to respondent No. 1 and as such, he cannot be estopped from questioning the maintainability of the petition on the ground that it is barred by limitation.

(c) the opinion expressed by M.L. Koul, J. before issuing notice to the respondents was tentative in nature. Therefore, the point of limitation cannot be treated to have been conclusively decided by the order dated 20.8.1996. The very fact that M.L. Koul, J. thought it proper to issue only notice of motion is indicative of the inchoate nature of the opinion formed by his Lordship on the question of limitation. In any case, respondent No. 1 cannot be deprived of immunity acquired by him against the challenge to his election after the expiry of the period of limitation simply on the basis of a tentative and ex parte order passed by the Court on 20.8.1996.

(e) in view of the express provision contained in Section 86(1) of the Act, the Court is bound to dismiss this petition which has been filed after expiry of the period of limitation specified in Section 81.

The argument of Shri Dimri that the question of limitation should not be decided without framing of issues and fulldressed trial of the petition merits rejection in view of the plain language of Section 86(1) of the Act and the decision of the Supreme Court in Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, AIR 1987 SC 1577. In that case, the Apex Court held that the election petition can be dismissed even before filing of the written statement. The relevant observations made in this aspect are extracted below :

"On a combined reading of Ss. 81, 83, 86 and 87 on the Act, it is apparent that those paras of an election petition which do not disclose any cause of action, are liable to be struck off under O. VI, R. 15, C.P.C. as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI, Rule 15 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11."

Applying the ratio of aforementioned decision, I hold that the question of limitation can be gone into and decided without framing the formal issues.

On the basis of the above discussion, I uphold the objection of bar of limitation raised by respondent No. 1 and dismiss the election petition.