Vijay Deorao Patil (Chondhikar) vs Manohar S/O Rajusingh Naik And ...
2003 Latest Caselaw 893 Bom

JUDGMENT

S.T. Kharche, J.

1. By this application, the respondent no.1- the returned candidate has sought the relief that the election petition is liable to be dismissed on the ground of limitation. It is not in dispute that on account of the death of Shri Sudhakarrao Naik, the then sitting M.L.A., the seat from Pusad assembly constituency had fallen vacant and bye-election was held on 20.9.2001. The result was declared on 22.9.2001 and the respondent no.1 was declared as returned candidate. The petitioner and respondents 2 to 5 are the defeated candidates. Respondents 6 and 7 conducted the election as per directions of respondent no. 8. The election petition was presented on 7.11.2001.

2. Mr.Sambre, the learned counsel for respondent no.1, submitted that as per the provisions of Section 81 of the Representation of the People Act, 1951 (for short, the R.P.Act) the petition ought to have been presented within a period of 45 days. He submitted that the cause of action for filing of the Election Petition arose on 23.9.2001 and thus the petition filed on the 46th day is clearly barred by period of limitation. He further submitted that the election petition is required to be presented to the Additional Registrar in accordance with the Rules framed by The High Court of Judicature at Bombay in regard to Election Petitions under the R.P.Act (Act No.43 of 1951) (for short, the Rules). He contended that the Additional Registrar had passed an order on 13.12.2001 holding that the petition was filed within the period of limitation. He contended that the Additional Registrar had no jurisdiction to pass such an order and the matter ought to have been either mentioned by the learned counsel for the petitioner before the Court or listed before the Court by the office for passing appropriate orders.

3. Mr.Sambre further contended that the proviso to Section 10 of the General Clauses Act makes it clear that nothing in that Section shall apply to any Act or proceeding to which the Indian Limitation Act, 1887 (XV of 1887) applies. He contended that since the Indian Limitation Act does not apply to the election petitions filed under the R.P.Act, the election petition ought to have been presented within 45 days, as provided under Section 81(1) of the R.P.Act and, therefore, the petition is clearly barred by the period of limitation. In support of his submissions, he relied on the decision of the Apex Court in Lachhman Das Arora vs. Ganeshi Lal and others - .

4. Mr.Sambre also contended that though Section 9 of the General Clauses Act would apply in computing the period of limitation under Section 81(1) of the R.P.Act, in the present case even if the day on which the petition was presented is excluded while computing the period of limitation, the election petition is barred by the period of limitation. In support of his submission, the learned counsel relied on a decision of Supreme Court in the case of Tarun Prasad Chaterjee vs. Dinanth Sharma - .

5. Mr.Killor, learned A.G.P., for respondents 7 and 8 supported the contentions canvassed by Mr.Sambre, learned counsel, for the applicant/respondent no.1.

6. Mr.Narwade, learned counsel for the petitioner, contended that the petition was presented well within the period of limitation. However, due to certain technical difficulties in the Registry, the petition could not be filed on 6.11.2001. He contended that on that day, the deposit of Rs.2,000/- was made in the Registry. He further contended that there was a confusion regarding as to who would swear the affidavit in support of the election petition and, in these circumstances, the petition could not be presented on 6.11.2001. However, the election petition was presented on 7.11.2001 along with the pursis dated 9.11.2001 to the Additional Registrar, who passed the order on 13.12.2001 holding that the election petition was presented within limitation. He further contended that the application for dismissal of the election petition on the ground that it is barred by limitation is misconceived and may kindly be rejected.

7. I have given thoughtful consideration to the contentions canvassed by the learned counsel for both the parties. In order to appreciate the rival contentions, it is necessary to reproduce relevant Rules which contemplate as under :

"4. Election Petitions arising from areas constituting Judicial Districts of Akola, Amravati, Bhandara, Buldhana, Chandrapur, Gadchiroli, 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 Officer as the said Additional Registrar may, by general or special order issued from time to time, appoint in this behalf."

"6. The election petition along with the necessary copies may be presented at any time during the Court hours. Immediately after it is presented, the date of presentation shall be endorsed thereon, and the petition shall be entered in a special register maintained for the registration of election petitions."

"8. The office shall examine the petition with a view to see whether it is in conformity with the requirements of law and the rules applicable to the same, and if it is not in conformity with law and the rules raise objections which could be removed by the party or the Advocate concerned. These objections should be brought to the notice of the party or the Advocate on the date fixed for attendance under rule 7 and such objections shall be removed subject to the orders of the Judge, if any, within two days thereafter."

8. Bare reading of the aforesaid Rule would reveal that the Additional Registrar has no power to pass any order muchless the order of the kind which he has passed on 13.12.2001. It is necessary to reproduce the said order which reads thus :

"Heard. Perused the pursis. In fact the petition was presented on 6.11.01 along with the application for depositing amount. However, due to some confusion amongst the staff and Adv. the endorsement on the petition remained to be taken, hence it was made on 7.11.01. Considering the facts, petition be treated as filed within limitation."

The Additional Registrar assumed the powers of the Court and passed such a reckless order without going through the Rules framed by this Court in regard to the election petitions and, therefore, it is apparent that the Additional Registrar could not have passed such an order which is without jurisdiction. He ought to have listed the matter before the Court for passing orders when it was noticed that the petition was barred by limitation, i.e. by one day, as per the endorsement appearing on page no.1 of format of the petition. However, it was also open for the Advocate for the petitioner to mention the matter before the Court, but nothing of this sort has been done. Hence, I am of the firm view that such an order passed by the Additional Registrar would not be of any help to the petitioner to say that the petition has been filed within the period of limitation.

9. The respondent no.1 has clearly mentioned in his additional affidavit dated 19.7.2003 that as per Section 83 of the R.P.Act read with Rule 94-A and Form No.25 of the Conduct of Election Rules, 1961, the affidavit which is to be appended to the petition has to be sworn either before a Magistrate of first class or a Notary or a Commissioner of Oaths. Therefore, according to the learned counsel for the applicant/respondent no.1, there is no question of any confusion regarding swearing in of the affidavit in support of the petition and there is no force in the submission of the learned counsel for the petitioner that there was a confusion in relation to the swearing of the affidavit.

10. Sub-clause (c) of Section 83 of the R.P.Act lays down that an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings : [Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof].

11. The contention of respondent no.1 is well founded because Rule 94-A lays down as under :

"Form of affidavit to be filed with election petition - The affidavit referred to in the proviso to sub-section (1) of Sec.83 shall be sworn before a Magistrate of the first class or a Notary or a Commissioner of Oaths and shall be in form 25."

The prescribed format has also been given in Form 25 in the Schedule. In the pursis filed by the petitioner on 9.11.2001 it is mentioned that since there was a condition that the affidavit is to be sworn before the Notary or a Magistrate of first class, the petitioner prepared a fresh copy of the petition incorporating the same contents as contained in the original petition which was sworn before the Section Officer of this Court. However, it revealed that the office has raised an objection that the petition is filed beyond the time of limitation, i.e. late by one day, and in such circumstances the petition was presented on 7.11.2001. It is pertinent to note that these contents do not find place in the reply in affidavit dated 4.6.2003 to the civil application filed by the petitioner for dismissal of the election petition.

12. There is no dispute that the election petition has to be presented within 45 days as per Section 81 of the R.P.Act, which contemplates as under :

"81. Presentation of petitions. - (1) 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 returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.]"

On plain reading of Section 81(1), it is crystal clear that the election petition is to be presented within forty five days from the date of election. Section 10 of the General Clauses Act deals with the computation of time, which contemplates as under :

"10. Computation of time. - (1) 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 proceeding 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: Provided that nothing in section shall apply to any act or proceeding to which the Indian Limitation Act, 1887 (XV of 1887), applies." (underline supplied for emphasis)

13. In Lachhman Das Aroras case, cited supra, the Apex Court in para 7 observed as under :

"On plain reading, Section 81(1) lays down that 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 of the Act to the High Court by any candidate at such election or by an elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. The Act is a special code providing a period of limitation for filing of an election petition. No period for filing of an election petition is prescribed under the Indian Limitation Act. The Act insofar as it relates to presentation and trial of election disputes is a complete code and a special law. The scheme of the special law shows that the provisions of Sections 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of forty-five days, Section 86(1) of the Act which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, is straightway attracted."

The Apex Court further observed in para 9 that "the proviso to Section 10 makes the provisions of Section 10 inapplicable to cases where the Indian Limitation Act applies and since the Indian Limitation Act does not apply to election petitions filed under the Act, Section 10 of the General Clauses Act in term would apply to the filing of election petitions also. According to Section 10 (supra) an act should be considered to have been done within the prescribed period, if it is done on the next day on which the court or office is open. The applicability of Section 10 (supra) would, however, depend upon the facts of each case and the manner in which the High Court transacts its business during the period of vacations. The ratio laid down by the Apex Court is squarely applicable to the present election petition because no period for filing of an election petition is prescribed under the Indian Limitation Act. The election petition has to be presented within 45 days as prescribed under Section 81(1) of the R.P.Act and the provisions of election petition are not applicable to the election petitions.

14. In Tarun Prasad Chatterjee, cited supra, the Apex Court observed in para 12, "Section 9 says that in any Central Act or regulation made after the commencement of the General Clauses Act, 1897, 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 period of time, to use the word "to". The principles is that when a period is delimited by statute or rule, which has both a beginning and an end and the word "from" is used indicating the beginning, the opening day is to be excluded and if the last is to be included the word "to" is to be used. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless 1st January is excluded from the period of computation." It was further observed in para 13, "It was argued that the language used in Section 81(1) that "within forty-five days from, but not earlier than the date of election of the returned candidate" expresses a different intention and Section 9 of the General Clauses Act has no application. We do not find any force in this contention. In order to apply Section 9, the first condition to be fulfilled is whether a prescribed period is fixed "from" a particular point. When the period is marked by terminus a quo and terminus ad quem, the canon of interpretation envisaged in Section 9 of the General Clauses Act, 1897 require to exclude the first day. The words "from" and "within" used in Section 81(1) of the R.P.Act, 1951 do not express any contrary intention."

15. The words "from" and "within" employed in Sec.81(1) of the R.P.Act makes it clear that the intention of the legislature was to fix the period of limitation within which the election petition has to be presented from the date of accrual of the cause of action and, therefore, it is obvious that the election petition has to be presented before the expiry of 45th day from the date of cause of action. In the present petition, the cause of action arose on 23.9.2001 and the petition is presented on 7.11.2001, i.e. on 46th day, and the time prescribed as per Sec.81(1) is to be rigidly complied with and on considering the aforesaid observations of the Apex Court, in the present case it is clear that the election petition has been barred by the period of limitation. On anxious consideration of the material on record, I am of the considered view that there is no force in the submission of the learned counsel for the petitioner that there was some confusion regarding the swearing of the affidavit to be appended to the petition and that the petition was presented on 06.11.2001. It would also appear from the record that the affidavit was sworn in accordance with the law but the petition could be presented only on 07.11.2001, i.e. beyond the period of limitation.

16. There is no dispute that the respondent No.1 was elected and a returned candidate. The results were declared on 22.9.2001 and the petition was presented on 07.11.2001, i.e. on the 46th day, and as such it was barred by the period of limitation and, therefore, the same is required to be dismissed.

17. In the result, the civil application is allowed. Consequently, the election petition stands dismissed. In the circumstances, there shall be no order as to costs.

The Additional Registrar (J), Nagpur, is directed to bring to the notice of the Additional Registrars (J) at Bombay, Aurangabad and Panaji Benches this judgment for their guidance.