Orissa High Court

Pritiranjan Gharai ... Election vs Pradeep Bal Samant on 17 January, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

   IN THE HIGH COURT OF ORISSA AT CUTTACK

     I.A. No.88 of 2024 & I.A. No.89 of 2024
              ELEPET No.6 of 2024

(An applications under Sub-Section 4 of Section 86 of the
Representation of People Act, 1951and Section 5 of the Indian
Limitation Act)


     Pritiranjan Gharai                  ... Election Petitioner


                                -versus-

     Pradeep Bal Samant
                                          ... Respondents


 Advocates appeared in the case through hybrid mode:

   For Petitioner                       : Mr.U.K.Samal,
                                          Advocate with
                                          Mr.M.R.Mohapatra,
                                          Advocate

                                -versus-
   For Respondent
                                         : Mr. P.K.Rath, Sr. Advocate
                                           Mr.P.K.Satapathy,
                                           Advocate(For intervenor).
                                           Mr.R.N.Parija, Advocate
                                           (For intervenor)
                                           Mr. G.K. Agarwal, DEO.

   ---------------------------------------------------------------------------
                             CORAM:
             JUSTICE SASHIKANTA MISHRA

                             ORDER

17.01.2025.

Sashikanta Mishra,J. I.A. No.88 of 2024 is an application filed

under sub-section 4 of Section 86 of Representation of

People Act, 1951 by the Petitioner for being impleaded

as Respondent in the main election petition. I.A. No. 89

of 2024 is an application seeking condonation of delay

in filing of the petition for impleadment.

2. The Petitioner, of these applications, was a

candidate for the post of member of legislative

assembly of Odisha of 54 Sukinda Assembly

constituency in the last general election 2024. He was

an independent candidate and was allotted with the

symbol 'Apple'. The present opposite party No.2-

Pradeep Bal Samant was declared elected in the

election with margin of 9577 votes defeating his

nearest rival, opposite party No.1 namely, Pritiranjan

Gharai of BJD. The present petitioner, Gunamani

Shaw claims he came to know that the opposite party

No.1-Pritiranjan Gharai of BJD has filed the above

election petition before this Court challenging the

election of Pradeep Bal Samant. He therefore,

contacted his lawyer and came to know about the filing

of the said petition. It is stated that though he was an

independent candidate in the 54 Sukinda Assembly

constituency he has not been impleaded as a

respondent in the election petition filed by Pritiranjan

Gharai and that he seriously desires to be impleaded

as a respondent in the petition and to file written

statement. It is further stated that as per sub-section 4

of Section 86 of the Act, it is permissible for the

petitioner to join in the aforesaid election petition as a

respondent as he has not been impleaded as a

respondent by the election petitioner.

3. In the application seeking condonation of delay

it is stated that the petitioner came to know about the

aforesaid proceeding on 15th October 2024 and further

it transpired from the print and electronic media that

the election petition was posted on 8.11.2024. Earlier,

there was no occasion on his part to know about the

election proceeding and only after publication in the

local newspaper, he came to know about the same. As

such, he filed this application seeking intervention in

the election petition and in the process, there has been

delay of 38 days. On such grounds, it is prayed that

the delay be condoned.

4. Written objection has been filed by the election

petitioner Pritiranjan Gharai (Respondent No.1 in the

present Interlocutory Application). It is stated that the

election petitioner has not made any allegation against

Gunamani Shaw, the petitioner of the I.A., and

therefore, he is not necessary to be impleaded as a

party. It is further stated that the election petition was

presented on 15.7.2024 before this Court and on

29.7. 2024, this Court admitted the same and issued

notice to the sole respondent. After receiving

summons the respondent appeared on 17.9.2024. The

present I.A. has been filed on 8.11.2024. Referring to

the provision under sub-section 4 of Section 86 of the

Act, it is stated that an application for being

impleaded as a respondent can be filed within 14 days

from the date of commencement of trial and that trial

of the petition shall be deemed to commence on the

date fixed for the respondent to appear before the High

Court and answer the claim made in the petition.

Admittedly, the sole respondent Pradeep Bal Samant

appeared before this Court on 17.9.2024, which is the

date fixed for commencement of trial. The present

petition being filed on 8.11.2024 is therefore barred by

time and therefore, liable to be rejected with cost. It is

further stated that the provision of Section 5 the

Limitation Act, 1963 is not applicable to election

petitions. On such grounds, it is stated that the

petition be rejected.

5. Heard Mr. P.K.Satapathy, learned counsel for

the Petitioner and Mr. U.K.Samal, learned counsel

appearing for Respondent No.1-election petitioner.

6. Mr. Satapathy would argue that admittedly there

is delay of about 38 days in filing the present

application. He submits that the requirement of filing

the petition for impleadment within 14 days from the

date of commencement of trial as per Section 86(4) is

directory and not mandatory. In this context, Mr.

Satapathy argues that the Representation of People Act

provides different periods in four instances such as,

Section 81 which prescribes 45 days' time for filing of

election petition, Order 8 Rule 1 of C.P.C. for filing of

written statement, Section 97 which provides for 14

days' time for filing of recrimination petition and

Section 86 (4), which also provides 14 days' time for

filing of petition for impleadment.

It is argued by Mr. Satapathy that the period of

45 days provided in Section 81 for filing of election

petition is followed by penal consequences for its

breach under Section 86(1) of the Act to the effect that

an election petition which does not comply with the

provision of Section 81 shall be dismissed. In Order 8

Rule 1 of C.P.C. which is followed in case of election

cases, there is no penal provision or any consequential

bar expressly provided for filing of written statement

after 90 days. In Section 97 a penal consequence is

provided by using the word 'unless' in the proviso

which means that if the recrimination petition is not

filed within 14 days from the date of commencement of

trial, the petitioner would not be entitled to give

evidence. Mr. Satpathy therefore, argues that wherever

the legislature intended to provide for a mandatory

time period for filing of petitions it has provided so

specifically, but in sub-section 4 of Section 86, there is

no such provision. As such, according to Mr.

Satapathy, it cannot be said that the requirement of

filing the petition for impleadment as per Section 86(4)

of the R.P. Act being 14 days, is not mandatory but

only directory. He further submits that the trial in the

election petition under the Act is procedural in nature

and the principles of Code of Civil Procedure is

required to be followed for guidance. As such, the

commencement of trial referred to in the Explanation

to the provision is not to put a bar for filing of the

application but only to explain the initial date for

counting the period of 14 days.

7. On merits, it is stated that the Petitioner

seriously desires to be a party to the proceeding and

came to know about the proceeding from the media. It

is further stated that the written statement has been

filed only on 2.1.2025 and issues have not been

framed, so actual trial has not commenced. As such, if

the petitioner is allowed to join in the proceeding no

prejudice would be caused to the election petitioner.

Finally it is submitted that the delay being neither

intentional nor deliberate, the same should be

condoned and the petitioner should be permitted to

avail his statutory right of joining in the election

proceeding. To buttress his contentions, Mr. Satapathy

has relied upon a judgment of the Supreme Court in

the case of Kailash vs Nanhku and others;1.

8. Mr. U.K.Samal, learned counsel for the election

petitioner, on the other hand, would argue that the

relevant provision is clear and unambiguous and does

not admit of any other interpretation than what is

discernible from bare reading thereof. Mr. Samal

further refers to Section 2 of sub-section 4 of the

Conduct of Election Rules, 1961 to submit that except

for the reference to the General Clauses Act therein,

there is no other provision for extension of the period

provided for filing of petition. Further, the Limitation

Act does not apply. Mr. Samal further argues that even

AIR 2005 SC 2441

otherwise the petitioner has not stated in clear terms

as to why his presence is required in the election

proceeding. Simply by stating that he seriously desires

to be impleaded as a party does not satisfy the

requirement of law. In support of his arguments Mr.

Samal has relied upon the judgments of the Supreme

Court rendered in the case of K. Venkateswara Rao

and another vs. Bekkam Narasimha Reddi and

others;2, Jyoti Basu and others vs. Debi Ghosal

and others;3, and of the Jammu and Kashmir High

Court in the case of Hari Om Singh vs. Dr. Karan

Singh.4

9. Having heard learned counsel for the parties at

length and upon going through the materials on

record, this Court finds that admittedly, the petition

for impleadment was filed beyond the period of 14 days

prescribed under sub-Section 4 of Section 86 of the

Act. It would be profitable to refer to the provision at

the outset at this stage, which is quoted herein below;

AIR 1969 SC 872

AIR 1982 SC 983

AIR 1980J & K 57

"86(4). Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent".

10. From a bare reading of the provision quoted

above, it is clear that the statute has prescribed a

definite period, that is, 14 days for filing of a petition for

being impleaded as a party to the election proceeding.

The question is, whether said time period is mandatory

or directory in nature. In this regard it would also be

profitable to refer to the Conduct of Election Rules, 1961

of which Section-2 reads as follows;

"Interpretation- (1) In these rules, unless the context otherwise requires,

(a) "Act" means the Representation of the People Act, 1951;

(b) "ballot box" includes any box, bag or other receptacle used for the insertion of ballot paper by voters;

[(ba) "counterfoil" means the counterfoil attached to a ballot paper printed under the provisions of these rules;]

(c) "election by assembly members" means an election to the Council Sates by the elected members of the Legislative Assembly of a State by the members of the electoral college of a Union territory, or an election to the Legislative Council of a State by the members of the Legislative Assembly of at State;

(d) "elector", in relation to an election by assembly members, means any person entitled to vote at that election;

(e) "electoral roll", in relation to an election by assembly members, means the list maintained under Section 152 by the returning officer for that election,

(f)"electoral roll number" of a person means-

(i) the serial number of the entry in the electoral roll in respect of that person:

(ii) the serial number of the part of the electoral roll in which such entry occurs; and

(iii) the name of the constituency to which the electoral roll relates;

(g) "Form" means a Form appended to these rules and in respect of any election in a State, includes a translation thereof in any of the languages used for official purposes of the State;

(gg) marked copy of the electoral roll" means the copy of electoral roll set apart for the purpose of marking the names of electors to whom ballot papers are issued at an election);

(h) "polling station", in relation to an election by assembly members means the poll

(1) "presiding officer" includes-

(1) any polling officer performing any of the functions of a presiding officer under sub-section (2) or sub- section (3) of section 26; and

(ii) any returning officer while presiding over an election under sub-section (2) of Section 29;

(iii) "returning officer" includes any Assistant returning officer performing any function he is authorized to perform under sub-section section (2) of Section 22;

(k) "section" means a section of the Act. (2) For the purposes s of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if-

(a) he has placed a mark on such instrument or other paper in presence of the returning officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission, and

(b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person.

(3) Any requirement under these rules that a notification, order, declaration, notice or list issued or made by any authority shall be published the Official

Gazette shall, unless otherwise expressly provided in these rules be construed as a requirement that it shall be published in the Gazette of India, if it relates to an election to, or membership of, either House of Parliament or an electoral college, and in the Official Gazette of the State, if it relates to election to, or membership of, the House or either House of the State Legislature.

(4) The General Clauses Act, 1897 (10 of 1897) shall apply for the interpretation of these rules as it applies for the interpretation of an Act of Parliament."

As has been argued by Mr. Samal, learned counsel

for the election petitioner, there is no other provision

either in the Representation of People Act or in the

conduct of Election Rules, 1961 providing for extension

of the time period prescribed for filing of different

petitions under the Act.

11. It has been argued that the provision is not

mandatory but directory in nature. Whether a statute is

mandatory or directory depends upon the intent of the

legislature and not upon the language in which the

intent is clothed. The meaning and intention of the

legislature must govern and these are to be asserted not

only from the provision but also by considering its

nature, its design and the consequences which would

follow from construing it one way or the other. The above

was observed by the Supreme Court in the case of State

of U.P. vs. M.L.Srivastava5. It has also been held that

when consequence of nullification on failure to comply

with a prescribed requirement is provided by the statute

itself, there can be no manner of doubt that such

statutory requirement must be interpreted as mandatory.

This was held by the Supreme Court in the case of

Rajsekhar Gogoi vs. State of Assam and others6.

However, it has also been held that in statutes conferring

a power to be exercised on certain conditions, the

conditions prescribed are normally held to be mandatory

and the power inconsistent in those conditions is

impliedly negative. This was held by the Supreme Court

in the case of Haridwar Singh vs. Bagun Sumbrui and

others7. It has also been held that if an affirmative

statute which is introduction of a new law directs a

things to be done in a certain way, that thing shall not,

even if there be no negative words, be done in any other

way. However, when it comes to the statutes conferring

AIR 1957 SC 912

AIR 2001 SC 2313

AIR1972 SC 1242

private rights and benefits, which is the case at hand, it

has been held that when certain requirements are

prescribed by a statute as preliminary to the acquisition

of a right conferred by the statute, such prescriptions are

mandatory for acquisition of the right or benefit.

Reference in this regard may be had to the judgment of

the Supreme Court in the case of Parekh Wadilal

Jivanbhai vs. CIT,M.P., Nagpur8. In the case of

Shrinivasa Reddy and others vs The State of Mysore

and others9, the Supreme Court held that similarly if a

person wants a stage carriage permit, it is necessary for

him to make an application in the manner and within

the time as prescribed under the Motor Vehicles Act.

12. So, from a conjoint reading of all the above

decisions vis-a-vis sub-section 4 of Section 86 and

particularly taking note of the use of the word 'shall'

therein, there can be no manner of doubt that even if no

consequences have been provided for not acting within

the stipulated period, the provision has to be treated as

mandatory for the simple reason that it seeks to confer a

AIR 1967 SC 448

AIR 1960 SC 350

particular benefit on a candidate by permitting him to

join in the election petition as a party. Since a positive

benefit is intended to be conferred by the statute then

the requirement of the statute cannot be done away with.

13. While discussing the law in general with regard to

interpretation of statutes as to whether the provision is

directory or mandatory in nature it would also be

profitable to refer to the judgments of the Supreme Court

on the Representation of People Act as cited by Mr.

Samal. In the case of Venkataswara Rao (supra), it was

held that with regard to the addition of parties which is

possible in the case of a suit under the provisions of

Order 1 Rule 10 subject to the added parties' right to

contend that the suit as against him was barred by

limitation when he was impleaded, no addition of parties

is possible under the election petition, except under the

provision of sub-Section 4 of Section 86. It was also held

that an election petition stands on a different footing.

The Indian Limitation Act does not apply to the

proceedings under the Act. The Supreme Court observed

in the following words;

"In our opinion however, the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the Peoples Act is a complete and self contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act."

Same view was taken in Jyoti Basu (supra)

that the Representation of People Act has been held to

be a complete and self-contained code within which

must be found any rights claimed in relation to an

election or an election dispute.

In almost a similar case, the Jammu and

Kashmir High Court interpreting the provision under

a Sub-Section-4 of Section 86 held as follows;

"A bare reading of the Section shows that a candidate may be joined as a respondent, if he files an application in the High Court within 14 days from the date of commencement of the trial. The explanation to the Section lays down that the trial of an election petition shall be deemed to commence on the date fixed for the respondent to appear before the High Court and answer the claim or claims made in the petition. Thus, two conditions which must be satisfied are, (1) that the person seeking to be impleaded must have been a candidate and, (2) he must file the application within 14 days of the commencement of the trial of the election petition. The first condition in this case is

satisfied. However, the second condition is not satisfied. The present petition was filed by Shri Sat Paul on 23rd of April, 1980 in the court. After the election petition was registered and summonses were issued to the respondent, as required by law, the respondent appeared in court through M/s. O.N. Tikku and S.P. Gupta on 4th of April, 1980. Time was given to the respondents to file the written statement within four weeks. According to Mr. L.K. Sharma and which stand is supported by M/s. O.N. Tikku, S.P. Gupta and H.L. Bhagotra, the time of 14 days has to be reckoned from the date when the written statement is filed and not from the date of appearance of the returned candidate in court. I am afraid, I cannot agree. A copy of the summons which was served on the returned candidate stated inter alia:

You are hereby summoned to appear in this court in person or by duly authorised attorney or agent to answer all material questions relating to the petition, enclosed"

8. The explanation to Sub-Sec. (4) (supra) shows that the trial of an election petition commences on the date fixed for the respondent to appear in the High Court and answer the claim. The legislature did not leave it to the interpretation of the courts as to when the trial of an election petition would be deemed to commence. It expressly laid dawn that it would commence "on the date fixed for the respondent to appear before the High Court and answer the claims." That date in this case undoubtedly was 4th of April, 1980. The present application having been filed on 23rd of April was clearly beyond the time of 14 days period prescribed by Sub-Section (4) of Section 86. The argument that the time should start from the filing of the written statement is wholly fallacious. Can it be contemplated that the "commencement of the trial" can be delayed at the whims of the returned

candidate who has once appeared in the High Court to answer the claims made in the petition? The answer must be an emphatic 'no'. A returned candidate may delay the filing of the written statement and no premium can be put on such delay for the purpose of Section 86(4) of the Act. Thus, the application is beyond the prescribed period and not maintainable."

14. Thus, from a conspectus of the analysis of the

statutory provisions and the settled provision of law

narrated herein before, this Court finds that

notwithstanding the fact that no specific

consequences have been prescribed for not acting

within the time period prescribed under the provision

under sub-section 4 of Section 86, the provision itself

is to be treated as mandatory in nature inasmuch as

it seeks to confer a positive benefit on a candidate by

permitting him to join the election petition as a party.

In such event, he can only act within the four corners

of the provision. That apart, it is also equally well