Full Judgment Text
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PETITIONER:
CHANDRA KISHORE JHA
Vs.
RESPONDENT:
MAHAVIR PRASAD & ORS.
DATE OF JUDGMENT: 21/09/1999
BENCH:
S. RAJENDRA BABU, R.C. LAHOTI.
JUDGMENT:
DR. A.S. ANAND. CJI :
Election of Respondent No.1 to the Bihar Legislative
Assembly from 86, Ghanshyampur Assembly Constituency, held
in March, 1995, was challenged by the appellant through an
Election Petition on various grounds. The Election Petition
was resisted by the returned candidate and certain
preliminary objections were also raised. The returned
candidate on 14.8.1997 filed an application under Section
81(1) read with Section 86 of the Representation of the
People Act, 1951 (hereinafter the
Act) in the High Court of Patna seeking dismissal of
the election petition, on the ground that the petition
presented on 17.5.1995 was beyond the period of limitation
and thus liable to be dismissed under Section 86 of the Act.
The application was decided in favour of the returned
candidate and the learned designated election Judge vide
order dated 3rd October, 1997 dismissed the election
petition, without trial, as terred by limitation. .
Aggrieved, the appellant is before us.
The only issue debated before us centers around the
non-filing of the election petition within the preecribed
period of 45 days from the date of election. Reference to
some dates, which are not in dispute, becomes necessary at
the outset.
After the polling of votes, counting of ballot papers
took place on 31st March, 1995. The result was declared on
1.4.1995. (Initially, there was some dispute with regard to
the exact date when the result was declared, i.e., whether
on 31.3.1995 or 1.4.1995 or 2.4.1995, but both, before the
learned designated election Judge as well as in this Court,
on the basis of the record, tt has been admitted by learned
counsel for the parties that the result of the election was
declared on 1.4.1995). The election petition was presented
to me learned designated election Judge m the ’open Court’
on 17.5.1995. The prescribed period of 45 days within which
the election petition could be filed expired on 16.5.1995.
At the time of presentation of the election petition
in the open Court, on 17.5.1995, the following order was
made by the learned designated election Judge:
"Shri Chandra Kishore Jha appears in person and is
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duly Identified by his counsel, Shri P.K. Verma. The
Election Petitioner files an election petition calling in
question the election of respondent No.1, Shri Mahabir
Prasad to the Bihar Legislative Assembly from 86
Ghanshyampur Assembly Constituency. He also files a challan
showing deposit of Rs.2,000/- as security money. There
being 20 respondents the election petitioner has also filed
20 extra copies of the - election petition attested to be
true copy by the election petitioner under his signature.
Learned counsel while staling the circumstances In
which the election petition has been filed without stamp
report mentioned that the necessary challan showing deposit
of the security money had been filed showing the receipt of
the deposit by the Joint Registrar of this Court. It bears
the date 16.5.95. The counsel also pointed out that
necessary affidavit In support of the election petition had
also been sworn yesterday i.e. on 16.5.95. Counsel stated
all this to support his contention that the petition was
ready ’in all respects for being filed yesterday and it has
been handed over to the Bench Clerk of the court at 4.05
P.M. yesterday itself. Unfortunately, ’it could not be
preserved before the court on account of the fact that there
was a death reference at 3.15 P.M. yesterday and after the
reference the working of the court had been suspended for
the rest of the day. The Bench Clerk of the Court, Shri
Santosh Kumar Sinha, who is present testifies to the
aforesaid fact which had been telephonically communicated to
the Presiding Officer of the Court at his residence
yesterday itself. It may be mentioned that counsel for the
petitioner at the very out set stated that he had been
handed over the election petition by the Bench Clerk for
being presented today"
The learned designated election Judge opined that the
presentation of the election petition on 16.5.1995, before
the Bench Clerk was improper, the same not being in
conformity with the High Court Rules and, therefore, could
not save the period of limitation and that the presentation
of the Election Petition made in the open Court on 17.5.1995
was beyond the period of limitation and hence liable to be
dismissed under Section 66(1) ’ read with Section 81 of the
Act, notwithstanding the fa^t that on 16.5.1995, ’ after
3.15 P.M., designated Judge was not available in the Court
to whom the election petition could be presented in the open
Court.
With a view to examine the correctness of the
abovefinding, it is desirable to take note of some of the
relevant provisions of the Rules of the Patna High Court.
Chapter XXI-E lays down Rules for disposal of election
petitions filed under Section 81 of the Act. Rule 6 of
Chapter XXI-E reads thus:
"Subject always to the orders of the Judge, before 9 ’
formal presentation of the election petition is made to the
Judge in open court, it shall be presented to the Stamp
Reporter of the Court, who shall certify thereon if it is in
time and in conformity with requirements of the Act and the
rules in this behalf, or is defective and shall thereafter
return the petition to the petitioner for making the formal
presentation after removing the defects, if any:
Provided that if on any Court day the Judge is not
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available on account of temporary absence or otherwise, the
petitioner; may be presented before the Bench hearing civil
applications and motions.’
Rule 7 provides:
"Rule 7(1) - The date of presentation to the Judge or
the Bench as mentioned in the proviso to Rule 6 shall be the
date of the filing the election petition for the purposes of
limitation.
(2) Immediately after it is presented, the petition
shall- be entered in a special register maintained for the
registration of election petitions.
Rule 9 reads:
"(1) As soon as may be, after an election petition has
been presented and registered, it shall be placed before
Judge for such orders as may be required to be passed under
Section 86 of the Act.
(2) If the petition is not dismissed under Section
86(1) of the Act, a summons, on the direction of the Judge,
shall be issued to the respondents to appear before the
Judge on a day not earlier than three weeks from the date of
the issue of the summons, unless otherwise ordered by the
Judge.
(3) The summons shall be for filing written statement
and settlement of issues and shall be served on the
Respondents through the District Judge of the district to
which the respondent belongs or in the district in which he
ordinarily resides, in the manner provided for the service
of summonses in the Code of Civil Procedure and the
concerned District Judge will make his best endeavour to get
the summons duly served and make a return of the service of
summons before the date Fixed."
Rule 13 of Chapter II, Part-1 of the High Court Rules
reads :
"In addition to the powers conferred upon him by other
rules the Registrar shall have the following duties and
powers.
(i) To receive an appeal under Clause 10 of the
Letters Patent.
(ii) To receive an application for Probate or Letters
of Administration or for revocation of the same and to issue
notices thereon.
(iii) To receive a plaint or an appeal from the decree
or order of a Subordinate Civil Court and to determine
whether it shall be admitted and notice issued at ’once to
the other side or be posted for hearing under Order XLI,
rule 11, or otherwise laid before the Court for orders.
xxx xxx xxx
Rule 24 of Chapter XXI-E provides:
"The Patna High Court Rules, except in so far as they
are inconsistent with the above rules, shall apply mutatis
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mutandis to all election petitions. Where no specific
provision is made in the Act, the Code or the High Court
Rules, the Judge may pass such orders as he may consider
necessary."
A combined reading of the above Rules shows that an
election petition is required to be presented, first to the
Stamp Reporter of the Court, who shall certify thereon if
’it is within time and in conformity with the requirements
of the Act and the Rulee made in that behalf or is
defective, and in the event it is found to be defective, the
same shall be returned to the petitioner for making formal
presentation, after removing the defects. The election
petition is then required to be presented to ihe designated
election Judge in the ’open Court’. The proviso to Rule 6
lays down that If
on any Court day, the Judge is not available on
account of temporary absence or otherwise, the petition may
be presented before the Bench hearing civil applications and
motions. By virtue of Rule 7, the date of filing of an
election petition for purposes of limitation is the date of
presentation of the election petition to the Judge or the
Bench as mentioned In the proviso to Rule 6. Thus. the
date of presentation of the election petition in the open
Court to the designated election Judge or to the Bench, as
the case may be, would be the actual date of filing of the
election petition, for the purposes of limitation. ’
Under Rute 13, the Registrar of the High Court in
addition to his other powers has been clothed with the duty
to receive certain memos of appeats, plaints and application
for review, revision or restoration.
Rule 24 of Chapter XXI-E lays down, that the Patna
High Court Rules, except insofar as they are inconsistent
with the Rules contained in Chapter XXI-E, shall apply
mute’s mutandis to all election petitions but where no
specific provision is made in the High Court Rules, "the
Judge may pass orders as he may consider necessary.
Having examined the Rules, let us now take note of the
fact situation as existing in the present case. There is no
doubt that in the instant case, the appellant had made the
security deposit and got his affidavit attested
and had twenty copies of the election petition duly
attested as true copies under his own signatures ready with
him. It is also not in dispute that he did go to the Court
of the learned designated election Judge at 4.05 P.M. on
16.5.1995, fcut, found him not present in the open Court.
The learned designated election Judge in the impugned order
recorded:’
"There is no dispute between the parties that neither
the Court ’ before which this Election Petition could be
presented nor, the , Bench hearing Civil Applications and
Motions was available on 16.5.1995 after 3.15 P.M. when an
Obituary Reference was held to mourn the demise of late Raj
Ballav Prasad Sinha, an Advocate of this Court and the then
Hon’ble the Chief Justice declared while concluding the
Obituary Speech that the Court shall not sit for the rest of
the day. It is in this background that it has to be
examined as to whether the Election Petition could have been
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presented on account of non-availability of the Court and
the Bench hearing Civil Applications and Motions to the
Bench Clerk."
and opined that the presentation of the election
petition to the Bench Clerk was not proper. The learned
designated election judge was of the opinion that in view of
Rule 24 of Chapter XXI-E read with Rule 13 of Chapter it,
Part I of the High Court Rules, the election petitioner
ought to have presented the election petition to the
Registrar. In tho words of the learned designated election
judge:
"Admittedly the Election Petition was presented at
4.05 P.M. on 16.5.1995 when neither the Hon’ble Judge nor
the Bench hearing Civil Applications & Motions was available
and in such a situation, in my opinion, the Election
Petition ought to have been presented before the Registrar
of the Court as it is not in dispute that the Registrar was
not available at 4.05 P.M. on 16.5.1995"
In our opinion, reliance on Rule 24 of Chapter XXI-E
read with Rule 13(iii) of Chapter II, Part I of the High
Court Rules is misplaced. The plain phraseology of Rule 6
read with the proviso thereto makes it abundantly clear that
formal presentation of an election petition can be made only
to the designated election Judge in the open Court and "if
on any Court day the Judge is not available on account, of
temporary absence or otherwise, the petition may be
presented before the Bench hearing civil applications and
motions. Thus, the High Court Rules do not prescribe any
other mode of presentation of an election petition except in
the open Court either before the designated election Judge
or before the Bench hearing civil applications and motions,
where the designated election Judge is not available on
account of temporary absence or otherwise. The presentation
of an election petition to the Registrar has not been
prescribed as a mode of presentation of an election petition
by the Rules. An election petition is not included in any
of the clauses of Rule 13. The learned designated election
Judge rightly found that presentation of the election
petition to the Bench Clerk on 16.5.1995 at 4.05 P.M. was
not a proper presentation under the Rules. In the absence .
of any provision in the Rules, presentation of an election
petition to the
Registrar would not stand at any better footing than
the presentation of the petition to the Bench Clerk. An
election petition being a purely statutory remedy, nothing
is to be read into the Rules - nothing is to be presumed -
which is not provided for in the Rules. Rule 24 (supra)
cannot advance the case of the returned candidate any
further because of the absence of mention of an election
petition in Rule 13 (supra).
In our opinion insofar as an election petition is
concerned, proper presentation of an election petition in
the Patna High Court can only be made in the manner
prescribed by Rule 6 of Chapter XXI-E. No other mode of
presentation of an election petition is envisaged under the
Act or the Rules thereunder and, therefore, an election
petition could, under no circumstances, be presented to the
Registrar to save the period of limitation. It is a
well-settled salutary principle that if a statute provides
for a thing to be done in a particular manner, then it has
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to be done in that manner and in no other manner. (See with
advantage : Nazir Ahrnad v. King Emperor, 63 Indian
Appeals 372=AIR 1936 PC 253; Rao Shiv Bahadw Singh & Anr.
V. State of Vindhya Pndwh, 1954 SCR 1098 = AIR 1954 SC 322.
State of Utter Pradesh v. Singhan Singh & Ors., AIR 1964 SC
358 = (1964) 1 SCWR 57] An election petition under the Rules
could only have
been presented in the open Court upto 16.5.1995 till
4.15 P.M. (working hours of the Court) in the manner
prescribed by Rule 6 (supra) either to the Judge or the
Bench as the case may be to save the period of limrtation.
That, however, was not done. However, we cannot ignore that
the situation in the present case was not of the making of
the appellant. Neither the designated election Judge before
whom the election petition could be formally presented in
the open Court nor the Bench hearing civil applications and
motions was admittedly available on 16.5.1995 after 3.15
P.M., after the Obituary Reference since admittedly the
Chief Justice of the High Court had declared that "the Court
shall not sit for the rest of the day" after 3.15 P.M. Law
does not expect a party to do the impossible - impossiblium
nulla obligatioest as in the instant case, the election
petition could not be filed on 16.5.1995 during the Court
hours, as far all intent and purposes, the Court was closed
on 16.5.1995 after 3.15 P.M.
It is precisely to take care of a situation like this
that Section 10 of the General Clauses Act gets attracted.
It reads :’
"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 this section shall apply to
any act or proceeding to which the Indian Limitation Act,
1877 (XV of 1887) applies."
(Emphasis ours)
Since, Indian Limitation Act does not apply to an
election petition, Section 10 of the General Clauses Act
would apply. As already noticed, the Patna High Court was,
for all practical purposes, closed after 3.15 P.M. on
16.5.1995. It was, therefore, not possible for the
appellant to have presented the election petition to the
designated election Judge or in his absence to the Bench
hearing civil applications and motions in the open Court on
that date, which was the last day of the prescribed period
of limitation. Thus, the presentation of the election
petition on the very next date i.e. 17.5.1995, in the open
Court, would be considered, by virtue of Section 10 of the
General Clauses Act, as presentation of the election
petition within the prescribed period of limitation. In the
established facts and circumstances of the case, the learned
designated election Judge fell in error in denying to the
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appellant the benefit of Section 10 of the General Clauses
Act and dismissing the election petition as barred by
time. The order of the learned designated election
Judge cannot, under the circumstances, be sustained. The
election petition must proceed to trial on merits.
Mr. P.S. Mishra, learned senior counsel for the
returned candidate - respondent No.l, when faced with this
situation, submitted that the presentation of the election
petition in the open Court on 17.5.1995 was also not a
proper presentation because no certificate of the Stamp
Reporter had admittedly been obtained by the appellant as
required by Rule 6 of Chapter XXI-E, before presenting the
election petition, in the open Court to the designated
election Judge and that the said defect was fatal. Mr.
S.P. Singh, teamed counsel appearing for the appellant,
countered the submission by asserting that the appellant had
done all that was required of him to do for filing the
election petition and the order of the teamed designated
Judge dated 17.5.1995, takes care of the objection raised by
Mr. Mishra. This argument has not been considered by the
learned designated election Judge as presumably the occasion
to raise it did not arise but be that as it may, we would
not like to express any opinion on this question. It would
be open to the returned candidate to raise all such pleas as
are available to him in taw, including the plea above
noticed, during the trial of the election petition before
the learned designated election Judge. Equally, it would be
open to the appellant to resist all such
pleas in accordance with law. Alt such pleas shall be
decided by the learned designated election Judge, as and
when raised, in accordance with law.
Thus, for what we have said above the appeal succeeds
and is allowed. The impugned order dated 3.10.1997 is set
aside. The election petition shall be tried on merits by
the learned designated election Judge expeditiously. There
shall be no order as to costs insofar as this appeal is
concerned.