PETITIONER:
HUKUMDEV NARAIN YADAV
Vs.
RESPONDENT:
LALIT NARAIN MISHRA
DATE OF JUDGMENT21/12/1973
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
DWIVEDI, S.N.
GOSWAMI, P.K.
CITATION:
1974 AIR 480 1974 SCR (3) 31
1973 SCC (2) 133
ACT:
Representation of the People Act (43 of 1951) Ss. 81 and
86–Presentation of election petition beyond prescribed
period of limitation–Whether court has power to condone
delay.
Limitation Act, (36 of 1963), Ss. 4, 5 and 29 (2) Whether
delay in filing election petition can be condoned under s.
5–Applicability of section to election petitions–Saturday
last day of limitation–Filing on next Monday–If within
limitation.
HEADNOTE:
Under s. 80A of the Representation of the People Act. 1951,
the High Court is given jurisdiction to try election
petitions. Section 81 Prescribes the period of 45 days from
the date of the election of a returned candid-ate as the
period within which an election petition calling in question
any election on one or more of the grounds specified in s.
100 (1) or s. 101 has to be presented. If the provisions of
s of S. 81 are not complied with, s. 86 requires that the
High Court shall dismiss the petition. Rules 6 and 7 of the
Election Rules framed by the Patna High Court provided, (i)
that the petition must, first, be presented to the stamp
Reporter (ii) The Stamp Reporter has to certify thereon
whether it is in time and in conformity with the
requirements of the Act and the rules in that behalf or is
defective; (iii) the petition should be returned to the
petitioner for removing the defects if any and for formal
presentation to the judge in open Court after removing the
defects; (iv)if the judge who is designated to entertain and
try election petitions is absent the petition shall be
presented before the Bench hearing civil applications and
motions; and (v) the date of presentation before the Judge
or Bench, as the case may be, shall be deemed to be the date
of the filing of the election petition for purposes of
limitation.
In the present case, the election petition was filed on
Monday instead of on the previous Saturday which was the
last day of limitation, and the High Court dismissed the
petition as time-barred.
In appeal to this Court, on the questions: (1) Is the Court
closed on Saturday because Judges do not sit, and (2) by
virtue of s. 29 (2) Of the Limitation Act, 1963. are the
provisions of ss. 4 to 24 and especially s. 5 of the
Limitation Act applicable to election petitions, so that,
the petitioner could show sufficient cause for not filing
the petition within time,
HELD: (1) (a) Under s. 4 of the Limitation Act, it is
Provided that where tile prescribed period for any suit,
appeal or aPPlication expires on a day when the court is
closed, the suit, appeal or application may be instituted,
preferred or made on the day when the court reopens. Even
if s. 4 of the Limitation Act does not apply to election
petitions s. 10 of the General Clauses Act, 1897, would
certainly apply to election petitions. Under both the
provisions where the prescribed period of limitation expires
on a day when the Court is closed the petition could be
filed on a day when the court next reopens. But 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. [34H;
35C-F]
H. H. Raja Harinder Singh v. S. Karnil Singh [1957] S.C.R.,
208, Lachmeshwar Prasad Shakul v. Girdhari Lal Chaudhury, I.
L. R. 19 Pat. 123, Nachiyappa Mudali and others v. Ayyasami
Ayyar 1. L. R. (1882) 5 Mad, 189 at 192, In re Thokkudubi-
vyanu Immaniyelu and Others, (1948) 1 M. L. J. 49, Dwarka
prasad and another V.Union of India, A. 1. R. 1954 Pat. 384
and Sajjan Singh and another v. Bhogilal pandya A. 1. R.
1958 Raj. 307, referred to.
(b) Rules 6 and 7 of the Elections Rules of the Patna High
Court should be read subject to r. 24 of the same Rules; and
so read, in so far as they are not inconsistent wit with the
election rules, the Patna High Court Rules shall apply
mutatis mutandis
32
to all election petitions. Rules 26 of the Patna High Court
Rules provides for the presentation of the memorandum of
appeal or application to the Registrar when no Bench is
sitting, and after certification by him for presentation to
a Bench on the next subsequent day on which the Bench is
sitting. Rule 26 applies to an election petition also and
is not inconsistent with r. 7, Election Rules. Rule 7 does
not provide for a contingency where a Judge or Bench is not
sitting on a day when the court is not closed. The practice
of the High Court is that Judges do not sit for judicial
work on Saturdays and there are no Benches sitting on that
day and consequently any provision made to deal with such a
contingency could not be said to be inconsistent with the
Election Rules. That contingency is provided for by r. 26
of the High Court Rules. Further, it would be incongruous
that a Court is open on Saturday for presentation of
appeals, applications, plaints or decrees etc. mentioned in
r. 13 of the High Court Rules even though Judges are not
sitting on that day, but the Court is closed on the same day
for presentation of election petitions. Therefore, reading
rr. 6 and 7 of the Election Rules with r. 26 of the High
Court Rules there is no doubt that an election petition can
be presented, on the last day of the limitation even though
the Judges are not sitting to receive or entertain an
election petition, to the Registrar or, in his absence, to
the other officers specified in r.26. [38H-39D]
(2) (a) Section 29 (2) of the Limitation Act, 1963,
provides that the provisions contained in Ss. 4 to 24 shall
apply in so far as and to the extent to which they arc not
expressly excluded by such special or local law. The words
‘expressly excluded’ could not mean that there must be
express reference made in the special or local law to the
specific provisions of the Limitation Act of which the
operation is to be excluded. if on an examination of the
relevant provisions it is clear that the provisions to the
Limitation Act are necessarily excluded then the benefits
conferred therein could not be called in aid to supplement
the provisions of the Special Act. Even in a case where the
special law does not exclude the provisions of s. 4 to 24 of
the Limitation Act by an express reference it would,
nonetheless be open to the Court to examine whether and to
what extent the nature of those provisions or the nature of
the subject matter and schemes of the special law exclude
their operation.[44C-F]
(b) Section 86 of the Representation of the People Act,
which is a special law, gives a peremptory command that the
High Court shall dismiss an election petition which does not
Comply with the provisions to sections 81, 82 or 117.
(e) If the Limitation Act were to apply to an election
petition which does not comply with s. 81, it should
equally apply for non-compliance with Ss. 82 and 117. But in
Charan Lal Sahu v. Nandkishore Bhatt and Others, [1973] 2
S.C.C. 530, it was held that the Court had no discretion to
condone the delay in non-compliance with the provisions of
Ss. 82 and 117. If for non-compliance with the provisions
of Ss. 82 and 117, which are mandatory, the election
petition has to be dismissed under s. 86 (1), the
presentation of an election petition within the period
prescribed in s. 81 would be equally mandatory requiring
dismissal of the petition for noncompliance with it. [44G]
(d) On the terms of s. 29 (2) of the Limitation Act, the
applicability of Ss. 4 to 24 of the Limitation Act has to be
judged not from the terms of the Limitation Act but by the
provisions of the Representation of the People Act relating
to the filing of election petition and their trial.
Sections 6 to 24 of the Limitation Act are not expressly
excluded, but they cannot on that account be made applicable
to proceedings under the Representation of the People Act,
because, they are, in terms inapplicable. Therefore, the
Representation of the People Act is a complete code in
itself which does not admit of the application of any of the
provisions of the Limitation Act mentioned in s. 29 (2) of
that Act, including s. 5, [45D]
(e) Under s. 86 (5) of the Representation of the People Act
the High Court may allow the amendment of the particulars of
any corrupt practice alleged in the petition but the High
Court shall not allow any amendment to the petition which
will have the effect of introducing particulars of a corrupt
practice not previously alleged in the petition. This is
not permitted because it would amount to a new petition
being filed after the period of limitation, indicating that
s. 5 of the Limitation Act cannot be attracted. [46G]
33
(f) It is also significant that the delay in presentation
of the election petition under the repealed s. 81 could be
condoned by the Election Commission in its discretion; but
when the Act was amended in 1966 and jurisdiction was given
to the High Court to entertain and try the election
petitions a similar provisions for condoning delay was not
enacted, showing Parliament’s intention not to confer such a
power. The whole object of the amendment was to provide a
procedure for more expeditious disposal of the election
disputes by the High Court. [47A]
Therefore, the provisions of s. 5 of the Limitation Act do
not govern the filing of an election petition or their
trial. [49D]
K.Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi &
Ors., [1969].1 S.C.R. 679, N. P. Ponnuswami v. Returning
Officer Namakkal Constituency and others, [1952] S.C.R. 218
and Krishan Chander v. Ram Lal [1973] 2 S.C.C. 759, referred
to.
[It is true that if the election petitions are thus
dismissed the allegations of serious corrupt practice could
not be enquired into and the purity of the elections cannot
be maintained but that however is a matter which can be set
right only by the legislature.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 870 of 1973.
From the Judgment and Order dated the 26th March 1973 of the
Patna High Court in Election Petition No. 1 of 1972.
J. P. Goyal, Pranab Chatterjee, Santokh Singh and V. C.
Parashar, for the appellant.
S. V. Gupte, S. N. Misra, C. M. Oberoi, D. Goburdhan, K.
P. Verma, U. P. Singh, Virendra Prasad Sinha, D. N. Misra,
J. B. Dadachanji” Ravinder Narain, O. C. Mathur and J. B.
Jadachanji & Co., for the respondent.
The Judgment of the Court was delivered by
JAGANMOHAN REDDY, J.-In the bye-election to the Lok Sabha
from Darbhanga Parliamentary Constituency held on January
30, 1972, the respondent Lalit Narain Mishra-a candidate of
the Indian National Congress- was declared elected on
February 2, 1972, by a. margin of 91,078 votes against his
rival Ramsewak Yadava candidate of the Socialist Party at
that election. The appellant an elector in that
constituency presented an election petition on Monday, March
20, 1972, instead of on Saturday. March 18, 1972, which was
the last day of limitation. The petition, however, was
dismissed by the High Court as being time-barred. Against
that judgment and order this appeal has been filed under s.
116-A of the Representation of the People Act, 1951
(hereinafter referred to as ‘the Act’).
It may be mentioned that s. 80-A was added to the Act by the
Amendment Act 47 of 1966, whereunder the High Court was
given .jurisdiction to try election petitions. This
jurisdiction has to be exercised ordinarily by a Single
Judge of that Court and the Chief Justice could from time to
time assign one or more Judges for that purpose. Section 81
prescribes the period of 45 days from the date of the
election of a returned candidate within which an election
petition calling in question any election on one or more
grounds specified in sub-s. (1) of s. 100 and s. 101 has to
be presented to the High Court. If the provisions of s. 81
are not complied with, s. 86 requires that the
34
High Court shall dismiss the petition. There is no doubt
that election petition in this case has been presented
beyond the period of 45 days and has necessarily to be
dismissed.
What we have to consider, however, is that whether having
regard to the requirements of Tr. 6 and 7 of the Rules for
the Disposal of Election Petitions framed by the Patna High
Court, an election petition should only be filed before a
Judge of the High Court sitting in open Court, and it could
not be filed on a Saturday when the Judges do not sit and
hence the filing of that petition on Monday, March 20, 1972,
Sunday being a holiday, is in time. Even if it be held that
the filing of the petition was beyond the time prescribed in
s. 81, it has further to lie considered whether the
provisions of s. 5 of the Limitation Act 36 of 1963 are
applicable to such petitions and whether the petitioner has
shown sufficient cause in the petition which has now been
filed before this Court for not filing the petition in time
to enable the Court to admit it after the prescribed
period..
Three questions which require determination are-
Is the Court closed on Saturday, when the
Judges do not sit (1) for the purposes
either of s. 10 of the General Clauses Act, or
s. 4 of the Limitation Act?
(2) By virtue of s. 29(2) of the Limitation
Act, are the provisions of ss. 4 to 24 of the
said Act applicable to election petitions?
(3) If they are, and s. 5 of the Limitation
Act is applicable, do the facts of the case
warrant condonation of delay?
On the question whether the petitioner could have filed the
petition on Saturday, March 18, 1972, what has to be seen is
whether the Court can be said to be closed within the
meaning. of either s. 4 of the Limitation Act, 1962, or s.
10 of the General Clauses Act, 1897, because under both the
provisions where the prescribed period of limitation expires
on a day when the Court is closed the petition could be
filed on a day when the Court re-opens. Where, however,.
the provisions of the, Limitation Act apply, the proviso to
s. 10(1) of the General Clauses Act in terms makes that
provision itself inapplicable. Under s. 4 of the Limitation
Act it is provided that where the prescribed period for any
suit appeal or application expires on a day when the Court
is closed the suit appeal or application may be instituted
preferred or made on the day when the Court re-opens. The
Explanation thereof states that a Court shall be deemed to
be closed on any day within the meaning of that section if
during any part of its normal working hours it remains
closed on that day. It was sought to be contended that even
if the limitation Act applies s. 4 would not apply because
an election petition is neither a suit, nor an appeal nor an
application, notwithstanding the definition of “application”
contained in s. 2(b) of the Limitation Act as including a
petition. It is, in our view unnecessary to examine the
submission in this context because even if s. 4 of the
Limitation Act does not apply, S. 10 of the General Clauses
Act will certainly apply to election petit-ions to be filed
under
35
the Act as held by this Court in H.H. Raja Harinder Singh v.
S. Karnail Singh(1). In that case an election petition had
to be filed under r. 119(a) ‘of the Election Rules not later
than fourteen days from the terminus a quo prescribed
therein, but as the day on which it could be filed was a
Sunday be filed it on the next day. The contention of the
Solicitor-General was that s. 10 of the General Clauses Act
“can apply on its own terms only when the act in question is
to be done “within a prescribed period”, that under r.
119(a) of the Election Rules the petition has to be filed
“not later than” fourteen days, that the two expressions do
not mean the same thing, the words of the Rule being more
peremptory, and- that accordingly s. 10 of the General
Clauses Act cannot be invoked in aid of a petition presented
under r. 119, later than fourteen days”. This argument was
rejected as being erroneous because “Broadly stated, the
object of the section is, to enable a person to do what he
could have done on a holiday, on the next working day.
Where, therefore, a period is prescribed for the performance
of an act in a Court or office, and that period expires on a
holiday, then according to the section the act should be
considered to have been done within that period, if it is
done on the next day on which the Court or office is open.
For that section to apply, therefore, all that is requisite
is that there should be a period prescribed, and that period
should expire on a holiday.” Of course s. 10(1) of the
General Clauses Act does not speak of a holiday, but refers
to the Court or office being closed on the last day of the
prescribed period to enable a party to do an act or take any
proceedings on ascertain day or within a prescribed period,
as the next day on which the Court or office is open. If
the Court is closed on the day when limitation expired, s.
10(1) of the General Clauses Act enables the filing on the
next working day of the Court. But is the Court closed on a
Saturday when the Judges do not sit though the office of the
High Court is open?
A long course of decisions have 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.
Harries, C.J., during the course of the arguments in
Lachmeshwar Prasad Shukul v. Girdhari Lal Chaudhuri(2)
observed that “Saturday” is a court day although the Judges
are not sitting on that day. The learned Chief Justice and
Fazl Ali, J., as he then was, (Agarwala, J., dissenting)
went to the extent of holding that even in the vacations the
Court is not closed and money can be deposited. Turner,
C.J., speaking for himself, Kernan, Kindersley and Muttusami
Ayyar, JJ., (Innes, J., dissenting) observed in Nachiyappa
Mudali and others v. Ayyasami Ayyar(3). “The Judicial
sittings of the Court may be adjourned; but the offices of
the Court may still remain open for the presentation of
pleading,-.. The Court may be open for this purpose although
the Judge is not engaged in judicial functions or is not
present in the Court-house or in the place where the Court
is held.” A Bench of the Madras High Court in In re.
Thokkudubiyyanu Immaniyelu and OtherS(4) dealt with a
similar practice which is followed by all High Courts and
this.
(1) [1957] S.C.R. 208
(3) I.L.R. (1882) 5 Mad. 189 at 192.
(2) I.L.R. 19 Pat. 123.
(4) (1948) I. M. L. J. 49.
36
Court for the summer vacation when the Courts close. The
notifications in respect thereof specify a period between
Monday to Friday both days inclusive as the vacation. The
Court reopens on a Saturday, but judicial work starts only
on the following Monday. It was held that the first day of
the Court was a Saturday which was the day for receiving
papers though the Judges actually sat for judicial work on
Monday, as such an application, for which the prescribed
period of limitation expired on Saturday the 5th when the
Court was open and was not filed on that day, but on Monday
the 7th, was held to be barred. See also Dwarka Prasad and
another v. Union of India(1) and Sajjansingh and another v.
Bhogilal Pandya & Anr.(2).
It is, however, contended that having regard to rr. 6 and 7
of the Election Rules made by the Patna High Court under
which an election petition has to be presented to a Judge or
a Bench sitting ill open Court, and since Judges do not sit
on a Saturday there is no Court on that day to which an
election petition could be presented. We have to deal with
this aspect.
At one stage the power of the High Court to make election
rules was canvassed, but ultimately the validity of the
Election Rules as such was not seriously challenged, and
hence it is not necessary for us to express our views in
this regard. Even on the assumption that the High Court
could make the Election Rules and they are valid, do rr. 6
and 7 of those Rules warrant the submission that the Court
is closed on the day when the Judges do not sit, though the
office of the High Court is open? Rules 6 & 7 of the
Election Rules are as follows :
“6. Subject always to the orders of the Judge,
before a 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 the
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 available on account of temporary absence
or otherwise, the petition may be presented
before the Bench hearing Civil applications
and motions.”
“7. (1) The date of presentation to the Judge
or the Bench as mentioned in the proviso to
rule 6 shall be deemed to be the date of the
filing of 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.”
(1) A.I.R. 1954 Pat. 384.
(2) A.I.R. 1958 Raj. 307.
37
A reading of the above rules would show that-(1) the
petition must first be presented to the Stamp Reporter; (2)
the Stamp Reporter has to certify thereon whether it is in
time and in conformity with the requirements of the Act and
the rules in that behalf or is defective; and thereafter (3)
the petition shall be returned to the petitioner for re-
moving defects if any, and for formal presentation after
removing the defects; (4) if the Judge who is designated to
entertain and try election petitions is absent, the petition
shall be presented before the Bench hearing Civil
applications and motions; and (5) the date of presentation
before the Judge or Bench, as the case may be, as provided
in the proviso to r. (6) shall be deemed to be the date of
filing the election petition for the purposes of limitation.
It would appear from the above that the date of formal
presentation to the Judge or the Bench, as the case may be,
is. the actual date of filing the petition. what happens
when on the last day of the expiry of limitation for filing
the petition, though a working day for the Court, if
peradventure none of the Judges sit? Though in a Court
which has a number of Judges, such a contingency may not
occur, but in a High Court which consists of only one Judge
such as is envisaged in the proviso to s. 80-A of the Act
and that High Court has rules similar to rr. 6 and 7, it
would, if we accept the contention of the learned Advocate
for the appellant, create an anomaly when the only Judge of
the High Court is absent due to illness or some other cause
and the petition cannot be presented even though the Court
has not been closed. The appellant in these circumstances
would have us say that the Court is closed. But this
contention has no validity, because as is submitted by the
learned Advocate for the respondent that rr. 6 and 7 of the
Election Rules should be read subject to r. 24 of ‘the same
Rules and if so read, the Patna High Court Rules, in so far
as they are not inconsistent with the said Election Rules,
shall apply mutatis mutandis to all election petitions. A
reference to r. 26 of Chapter VII Part II of these Rules
which regulate.the procedure and practice before admission,
would show what provision has been made in cases where
appeals or applications have to be presented to a Bench and
no Bench is sitting on the day when the limitation is due to
expire. Rule 26 provides:
“On any Court day on which no Bench is or has
been sitting, any memorandum of appeal or
application which might be barred by time and
which is entertainable only by a Benc
h may be
presented to the Registrar, or, in his absence
from Court on that day to the Deputy
Registrar, or in their absence to the
Assistant Registrar, who shall certify thereon
that such memorandum of appeal or application
was on that day presented to him
“Provided always that no such presentation to
the Registrar, Deputy Registrar, or Assistant
Registrar, shall be of any effect, unless such
memorandum of appeal or application be
presented to a Bench on the next subsequent
day on which a Bench is sitting
38
It was, however, contended by the learned Advocate for the
appellant, though on a farther consideration he did not
think that he could sustain it, that r.26 makes a reference
to an application and not to a petition : as such that rule
is in applicable to an election petition Since it has been
raised, we can only say that such an argument would be
misconcieved because r. 1 of Chapter III Part 11 states that
every application to the High Court shall be by a petition
written in the English language, rr. 2 to 10 further require
what the petition should state, that it should be verified,
how it should be entitled, what it should be accompained
with etc. By these rules which have been made applicable to
election petitions by r. 2 of the Election Rules, whenever
an application has to be made to a High Court, it should be
made by a petition, so that there is no warrant for the
submission that r. 26 does not deal with a petition, but
only with an application.
It is further submitted that r. 26 has no application as it
is inconsistent with r. 7 because under the latter rule the
date of presentation to a Judge or a Bench is deemed to be
the date of the filing of the election petition for the
purpose of limitation, but r. 26 provides for the
presentation to the Registrar etc. and after certification
it is to be presented to a Bench on. the next subsequent day
on which the Bench is sitting. If that is the day for
limitation, the learned advocate submits then no other day
on which it is not presented to a Judge can be considered to
be the day for limitation. If so, the presentation before
the Registrar would be inconsistent with the requirements of
r. 7. In our view, there is nothing inconsistent in rr. 6
and 7 of the election Rules and r. 26 of the Patna High
Court Rules, because r. 7(1) does not provide for a
situation where the Judges do not sit and the period
prescribed is deemed to expire on that day. It may be that
the presentation to the Jadge will be the date of filing for
the purposes of limitation, but that does not excuse a
different procedure for filing in a case where limitation is
about to expire, when the conditions prescribed in the
proviso to r. 6 of the Election Rules cannot be complied
with. If r. 7(1) of the Election Rules had stated that the
date of presentation to the Judge shall be deemed to be the
date of the filing of the election petition for the purpose
of determining whether the petition is barred by time, then
such a provision could be said to be inconsistent with r. 26
of the High Court Rules. But that is not the case here.
What r. 7(1) provides if that the date of presentation to a
Judge or a Bench as mentioned in the proviso to r. 6 which
contemplates the presentation of. a petition before a Bench
hearing Civil applications and motions on a court day, when
a Judge is not available on account of temporary absence or
otherwise, but it does not provide for a contingency where a
Judge or a Bench sitting on any other day when the Court is
not closed. That contingency is provided for by r. 26. In
our view, there is nothing inconsistent in rr. 6 and 7 of
the Election Rules and r. 26 of the High Court Rules. If as
the practice of the High Court is that Judges do not sit for
judicial work on a Saturday, there are no Benches sitting on
that day and consequently any provision made to deal with
such a contingency could not be said to be inconsistent with
the Election Rules. This conclusion is further reinforced
by a reference to r. 13 of Chapter 11 part I of the Patna
High Court Rules whereun-
39
der the Registrar has power to receive an appeal under
clause 10 of the Latters Patent, to receive an application
for probate or Latters of Administration or for revocation
of the same and to issue notices thereon, to receive a
plaint or an appeal from the decree or order of a
Subordinate Civil Court etc. Rule 27 provides for the
contigency when the Registrar is absent on the last day of
limitation when such documents have to be filed. These
Rules are consistent with the postulate that the Court is
not in fact closed on a Saturday even though the Judges may
riot sit on that day. It would, in our view be incongruous
that a Court is open on Saturday for presentation of
appeals, applications, plaints or decrees etc.mentioned in
r.13 of part I of Chapter ll referred to above even though
the Judges are not sitting on that day, and yet closed on
that same day for presentation of election petition. In our
view, therefore, reading rr. 6 and 7 with r. 26, there can
be no manner of doubt that an election petition can be
presented on the last day of limitation even when the Judges
are not sitting to receive or entertain an election petition
to the Registrar or in his absence to the other officers
specified in r.26. Infact the Patna High Court had, on a
similar point, held nearly seven years ago in Md. Gwais and
others v. Phul Bibi and others, (1) a copy of which has been
placed before us, that where under r. 13 Part 11, Chapter
VII, it is provided that application for review must be
presented by way of notice in open court to the Bench of
whose judgment a review is sought, it could be filed on a
Saturday if it is the last day of limitation. An argument
similar to that addressed by the learned Advocate for the
appellant was rejected on the ground that Saturday was a
working day and that r.26 clearly refers to a Saturday on
which no Benches sit.
Now that we have held that the Court is not closed and the
petition could have been presented to the Registrar on
Saturday, March 18, 1972, the question would be, does s. 5
of the Limitation Act apply to enable the petitioner to show
sufficient cause for not filing it on the last day of
limitation, but on a subsequent day? Whether s.5 is appli-
cable to election petitions filed under s. 81 of the Act
will depend upon the terms of s. 29(2) of the Limitation
Act. Whether s. 5 could be invoked would also depend on the
applicability of sub-s. (2) of s. 29 of the Limitation Act
to election petitions. Under this sub-section where a
special or local law provides for any suit, appeal or
application a period different from the period prescribed
therefor by the Schedule, the provisions specified therein
will apply only in so far as and to the extent to which they
are not expressly excluded by such special or local law.
Under s. 29(2) of the Limitation Act of 1908 as amended in
1922, only s. 4, ss. 9 to 18 and s. 22 of that Act applied
ordinarily useless excluded by a special or local law. Thus
unless s. 5 was made applicable by or under any enactment
the discretion of the Court to extend time thereunder would
not be available. Similarly ss. 6 to 8 would not apply and
neither acknowledgement nor payment (under the former ss.19
and 20) could give a fresh starting point of limitation.
Even s. 5 under the old Act was in terms inapplicable to
applications unless the section was made applicable by or
under any of the enactment. The new s. 5 is now of wider
applicabi-
40
lity and as the objects and reasons state ”Instead of
leaving it to the different States or the High Courts to
extend the application of section 5 to applications other
than those enumerated in that section as now in force, this
clause provides for the automatic application of this
section to all applications, other than those arising under
Order 21 of the Code of Civil Procedure, 1908, relating to
the execution of decrees. In the case of special or local
laws, it will be open to such laws to provide that section 5
will not apply.” The present section incorporates two
changes : (1) a uniform rule making it applicable to all
applications except those mentioned therein (by defining
“application” as including a “petition” in s. 2(b); and (2)
to all special and local enactments, unless excluded by any
of them. The difference in the scheme of the provisions of
sub-s. (2) of s. 29 under the two Acts will be discernible
if they are juxtaposed as under.
s. 29,(2) of old Act
Where any special or local- law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule, the provisions of
section 3 shall apply, as if such period were the period
prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any
suit, appeal or application by any special or local law, the
provisions contained in sections 4 to 24 (inclusive) shall
apply only in so far as. and to the extent to which, they
are not expressly excluded by such special or local law.
(a) the provisions contained in section 4, sections 9
to 18, and section 22 shall apply only in so far as and
to the extent to which, they are not expressly excluded by
such special or local law; and
(b) the remaining provisions of this Act shall not apply.
s. 29(2) of new Act
Where any special or local law prescribes for any suit,
appeal or application a period of limitation different from
the period prescribed therefor by the First Schedule, the
provisions of section 3 shall apply, as if such period were
prescribed therefor in that Schedule, and for the purpose,
of determining any period of limitation prescribed for any
suit, appeal or application by any special or local law.
It will be noticed that under the 1908 Act there are two
limbs(1) that where any special or local law prescribes for
any suit, appeal or application a period of limitation
different from the period prescribed therefor by the First
Schedule’, the provisions of s. 3 shall apply as if such
period were prescribed therefor in that Schedule; and (2)
for the purpose of determining any period of limitation
prescribed for any suit, appeal or application by any
special or local law, the provisions contained in s. 4, ss.
9 to 18 and s. 22 shall apply only in so far as, and to the
extent to which, they are not expressly excluded by such
appeal or local law. The, remaining provisions of that Act,
are by virtue of clause (b) of sub-s. (2) inapplicable. The
two limbs of sub.s (2) are connected with the conjunction
“and” and the question
41
has been debated and there has been a cleavage of opinion as
to whether those two limbs are independent or have to be
read cumulative]-,, and as an integrated whole. The
decision of the Supreme Court in Vidyacharan Shukla v.
Khubchand Baghel and others (1) has by a majority held that
both parts of s. 29(2) of the old Act should be read as one
whole and the conjunction “and” would have to be read as
importing into what follows it, the conditions set out
earlier and that the words following the conjunction “and”
attract the conditions laid down by the opening words of the
sub-section. This case was considering the applicability of
s. 12(2) to appeals under s. II 6A of the Act, which had
provided a time limit for filing an appeal, but the first
Schedule to the limitation Act had not provided any. Even
the absence of a provision prescribing, a time limit in the
first Schedule was considered, by the majority as
prescribing a different period be cause when the First
Schedule prescribes no time limit for a particular appeal
but the special law prescribes a time limit for it,
prescribes a period different from that prescribed in the
former. Where once the special or local law has provided a
period different from that prescribed in-the Schedule to the
limitation Act, sub-s. (2) of s. 29 stands directly
attracted and s. 3 and other section shall apply in so far
as, and to the extent to which, they are not expressly
excluded by such special or local law. Though Sinha,
C.J.,and Ayyangar, J., agreed with Subba Rao, J. as he then
was, that even, where the First Schedule did not prescribe a
period of limitation for an appeal which is different from
that prescribed in the special or local law the sub-section
applied, and even if it is assumed that for the application
of s.29(2) a period that is different has to be prescribed
for an identical appeal, then Art. 156 prescribes a
different period, they did not agree with him, that the
second limb of sub-s(2) is ail independent provision
providing for that category of proceedings to which the
first limb does not apply. Sinha, C.J., Rajagopala Ayyangar
and Raghubar Dayal, JJ., by majority held that the entire
sub-s (2) of s. 29 of the Limitation Act has to be read as
an integrated provision and the conjunction “and” connects
the two parts and makes it necessary for attracting cl. (a)
that the conditions laid down by the opening word of sub-s.
(2) should be satisfied. Raghubar Dayal and Mudholkar, JJ.,
also did not agree with the majority that where a right of
appeal is given by, some other law, the appeal must be
regarded as the one under the Code of Civil Procedure,
inasmuch as the words under the Code of Civil Procedure
cannot be read as meaning “governed in the matter of
procedure by the Code of Civil Procedure”. Subba Rao and
Mudholkar, JJ., held that the second limb of sub-s. (2) of
s. 29 is wide enough, to include a suit, appeal or an
application under a special or local law which is of a type
for which no period of limitation is prescribed in the First
Schedule. In the result, Sinha, C.J., Subba Rao, Raghuber
Dayal and Rajagopala Ayyangar, JJ., held that the exclusion
of time provided for by s. 12 of the limitation Act is
permissible in computing-, the period of limitation for
filing an appeal in the High Court under s. 116A of the
Act.
It was contended before us that the majority decision
required reconsideration by a larger Bench, because a period
of limitation which is
(1) [1964]6 S.C.R. 129.
42
different from that prescribed in any special or local law
would mean ,that the Limitation Act should provide for a
definite period which is different from that prescribed in
the special or local law, a view which was taken by
Mudholkar, J., in that decision. We do not think this would
be a proper course, because in our view the matter was fully
argued and considered by this Court, and while a different
view can be taken, the need for certainty particularly in a
matter concerning limitation where litigants have to be
guided, the legal position should not be in doubt, when it
is consistent with the view taken by this Court in ..other
cases.
Secondly, Vidyacharan Shukla’s case (supra) is one which
dealt with an appeal under the Act while what we have to
consider is whether the Limitation Act is at all applicable
to election petitions under the Act. Thirdly, s. 29(2) of
the new Limitation Act does not now give scope for this
controversy whether the two limbs of the old section are
independent or integrated. No doubt s. 5 would now apply
where s, 29(2) is applicable to even applications and
petitions, unless they are .-expressly excluded. Even
assuming that the Limitation Act applies to ,election
petitions under the Act, what has to be seen is whether s. 5
is ,excluded from application to such petitions.
It has already been noticed that Vidyacharan Shukla’s case
has made s. 12(2) applicable to appeals under s. 116A of the
Act. The proviso to that section confers power similar to
that conferred by s. 5. Even in appeals to the High Court
under s. 417 of the Code of ‘Criminal Procedure it has been
held in Lala Ram v. Hari Ram(1) that s. 12 of the new
Limitation Act will apply. On the ratio of Vidyacharan
Shukla’s case even where the Limitation Act has not pres-
cribed the period of limitation in the Schedule different
from that prescribed under s. 81 of the Act, sub.-s. (2) of
s. 29 will be attracted and that position is not any the
less different under the new Limitation Act. Vidyacharan
Shukla’s case is, however, decisive for attracting sub-s.
(2) of s. 12 to an appeal under s. 116A of the Act as there
was nothing in that section to preclude its application. In
D.P. Mishra v. Kamal Narayan Sharma and Another(2) again is
a case in which the question of application ‘of s. 12(2) of
the Limitation Act to the ,computation of the period of
limitation prescribed in s. 116A of the Act in respect of an
order delivered by the Election Tribunal on December 28,
1966, was considered. After excluding the time taken for
obtaining a certified copy of the order by the respondent
just before the Court closed for the summer recess, the
memorandum of appeal ‘Could only be lodged on the re-opening
of the Court. Following the ‘decision in Vidyacharan
Shukla’s case this Court held that ss. 4 and ’12 of the
Limitation Act would apply, because “There is no provision
in the Representation of the People Act, 1951, which
excludes the ,-application of s. 4 of the Limitation Act.”
In Lala Ram’s case(1) to which a reference has been made
already, ..a Bench of this Court to which one of us was a
party (P. Jaganmohan
(1)[1970]2 S.C.R. 898.
(2) [1971] 1 S.C.R. 8.
43
Reddy, J.) considered the applicability of s. 12 of the
Limitation Act to an application under s. 417(3) of the Code
of Criminal Procedure. In that case an application for
leave to appeal to the High Court was filed under sub-s. (3)
of s. 417 of the Code. of Criminal Procedure against an
order of acquittal by a Magistrate. It was claimed that two
days were necessary for obtaining the certified copy of the
order of the Magistrate and the application would be in time
if these two days were deducted. The High Court accepted
the appeal and convicted the appellant. in appeal to this
Court against his conviction the appellant contended that
the period of 60 days mentioned in s. 417(4) was not a
period of limitation within the meaning of s. 12 of the
Limitation Act and that the sub-section barred the
jurisdiction of the High Court to deal with the application
if a period of 60 days bad expired from the date of the
order of acquittal. It was held that the application to the
High Court was within time. It was, however, urged that s.
417(4) contains a prohibition that no application under sub-
s. (3) shall be entertained by the High Court after the
expiry of 60 days from the date of the order of acquittal
and consequently the jurisdiction of the High Court to
entertain such applications for leave to appeal is barred.
The Court rejected the contention and relying on the case of
Kaushalya Rani v. Gopal Singh(1) as well as on Anjanabai v.
Yeshwantrao Daulatrao Dudhe(2) observed at p. 901
“It is quite clear that the Full Bench of the
Bombay High Court and this Court proceeded on
the assumption that s. 417(4) of the Criminal
Procedure Code prescribes a period of limi-
tation. The learned counsel, however,
contends that there was no discussion of this
aspect. Be that as it may, it seems to us
that s. 417(4) itself prescribes a period of
limitation for an application to be made under
s. 417(3). It was not necessary for the
legislature to have amended the limitation Act
and to have inserted an article dealing with
applications under s. 417(3), Cr. P.C.; it
was open to it to prescribe a period of
limitation in the Code itself.”
The basis of this decision is that sub-s. (4) of s. 417 of
the Code of Criminal Procedure is not in a negative form as
contended for by the learned Advocate in that case, but that
it has a positive content for performing an act and it
prescribes a definite period within which an act has to be
done.
In K. Venkateswara Rao and Anr. v. Bekkam Narasimha Reddi &
Ors.(3) to which we shall refer more fully later,
Vidyacharan Shukla’s case (supra) was attempted to be
pressed into service, but this. Court repelled it and
observed at pp. 688-689:
“In our View, the situation now obtaining in
an appeal to this Court from an order of the
High Court is entirely different. There is no
section in the Act as it now stands which
equates an order made by the High Court under
s. 98 or s. 99 to a decree
(1) [1964] 4 S.C.R. 982.
(2) I.L.R. [1961] Bom.135, 137.
(3) [1969] 1 S.C.R. 679.
44
passed by a Civil court subordinate to the
High Court. An appeal being a creature of a
statute, the rights conferred on the appellant
must be found within the four corners of the
Act. Sub-s. (2) of the present s. 116A
expressly gives this Court the discretion and
authority to entertain an appeal after the
expiry of the period of thirty days. No right
is however given to the High Court to
entertain an election petition which does not
comply with the provisions of s. 81, s. 82 or
s. 117.
Though s. 29(2) of the Limitation Act has been made
applicable to appeals both under the Act as well as under
the Code of Criminal Procedure, no case has been brought to
our notice where s. 29(2) has been made applicable to an
election petition filed under s. 81 of the Act by virtue of
which either ss. 4, 5 or 12 of the Limitation Act has been
attracted. Even assuming that where a period of limitation
has not been fixed for election petitions in the Schedule to
the Limitation Act which is different from that fixed under
s. 81 of the Act, s. 29 (2) would be attracted, and what we
have to determine is whether the provisions of this section
are expressly excluded in the case of an election petition.
It is contended before us that the words “expressly
excluded” would mean that there must be an express reference
made in the special or local law to the specific provisions
of the Limitation Act of which the operation is to be
excluded. As usual the meaning given in the Dictionary has
been relied upon, but what we have to see is whether the
scheme of the special law, that is in this case the Act, and
the nature of the remedy provided therein are such that the
Legislature, intended it to be a complete code by itself
which alone should govern the several matters provided by
it. If on an examination of the relevant provisions it is
clear that the provisions of the Limitation Act are
necessarily excluded, then the benefits conferred therein
cannot be called in aid to supplement the provisions of the
Act. In our view, even in a case where the special law does
not exclude the provisions of ss. 4 to 24 of the Limitation
Act by an express reference, it would nonetheless be open to
the Court to examine whether and to what extent the nature
of those provisions or the nature of the subject-matter and
scheme of the special law exclude their operation. The
provisions of s. 3 of the Limitation Act that a suit
instituted, appeal preferred and application made after the
prescribed period shall be dismissed are provided for in s.
86 of the Act which gives a peremptory command that the High
Court shall dismiss an election petition which does not
comply with the provisions of ss. 81, 82 or 117. It will be
seen that s. 81 is not the only section mentioned in s. 86,
and if the Limitation Act where to apply to an election
petition under s. 81 it should equally apply to ss. 82 and
117 because under s. 86 the High Court cannot say that by an
application of s. 5 of the Limitation Act, s. 81 is complied
with while no such benefit is available in dismissing an
application for non-compliance with the provisions of ss. 82
and 117 of the Act, or alternatively if the provisions of
the Limitation Act do not apply to s. 82 and s. 117 of the
Act, it cannot be said that they apply to s. 81. Again, s.
6 of the Limitation Act which provides for the extension of
the period of limitation till after the disability in the
case of a person who is either a minor or insane or an idiot
is inapplicable to, an election petition. Similarly, ss. 7
to 24 are in terms inapplicable to the
45
proceedings under the Act, particularly in respect of the
filing of election petitions and their trial.
It was sought to be contended that only those provisions of
the Limitation Act which are applicable to the nature of the
proceedings under the Act, unless expressly excluded, would
be attracted. But this is not what s. 29(2) of the
Limitation Act says, because it provides that ss. 4 to 24
(inclusive) shall apply only in so far as, and to the extent
to which, they are not expressly excluded by such special or
local law. If none of them are excluded, all of them would
become applicable. Whether those sections are applicable is
not determined by the terms of those sections, but by their
applicability or inapplicability to the proceedings under
the special or local law. A person who is a minor or is
insane or is an idiot cannot file an election petition to
challenge an election, nor is there any provision in the Act
for legal representation of an election petitioner or
respondent in that petition who dies, in order to make s. 16
of the Limitation Act applicable. The applicability of
these provisions has, therefore, to be judged not from the
terms of the Limitation Act but by the provisions of the Act
relating to the filing of election petitions and their trial
to ascertain whether- it is a complete code in itself which
does not admit of the application of any of the provisions
of the Limitation Act mentioned in s. 29(2) of that Act.
A Full Bench of this Court had in N. P. Ponnuswami v.
Returning Officer, Namakkal Constituency and Others(1)
considered the provisions of the Act to determine whether
any thing connected with the elections can be questioned at
an intermediate stage. In that case the rejection of a
nomination of a candidate in an election under the Act was
sought to be challenged by a petition under Art. 226 of the
Constitution. After examining the various provisions of the
Act, Fazl Ali, J., observed at p. 231 that “it should be
noted that there is no provision anywhere to the effect that
anything connected with elections can be questioned at an
intermediate stage.” Again at p. 234 it was observed:
“If Part XV of the Constitution is a code by
itself, i.e. it creates rights and provides
for their enforcement by.a Special tribunal to
the exclusion of all courts including the High
Court, there can be no reason for assuming
that the Constitution left one small part of
the election process to be made the subject-
matter of contest before the High Courts and
thereby upset’ the time schedule of the
elections.”
The observations that the provisions of the Act are a self-
contained code were also made in the case of Venkateswara
Rao referred to earlier. In that case, in a trial of an
election petition after the issues were framed the
appellants made an application to the Court for impleading
one R but it was dismissed. The first respondent then filed
an application under s. 86(1) praying for the dismissal of
the election
(1) [1952] S.C.R. 218.
46
petition on the ground that there had been non-compliance
with s. 82(b) of the Act inasmuch as R against whom corrupt
practice had been alleged had not been made a party. The
appellants filed an application seeking to withdraw the
allegation against R and in the alternative to implead him
as a respondent. It was also prayed that delay in making
the application may be condoned. The learned Judge of the
High Court trying the election petition dismissed the
aforesaid applications and refused to condone the delay.
One of the contentions urged in the appeal was that s. 5 and
s. 29(2) of the Limitation Act, 1963, were applicable to the
case and the High Court and this Court had power to condone
the delay made by the election petitioner in impleading a
necessary party. This plea was rejected. Mitter, J.,
delivering the judgment of this Court for himself and
Hidayatullah, C.J., after examining the relevant provisions
of the Act in detail at pp. 682-686 observed at pp. 686-687
:
“it is well settled that amendments to a
petition is a civil proceeding and the
addition of parties to such a proceeding are
generally possible subject to the law of
limitation. But an election petition stands
on a different footing. The trial of such a
petition and the powers of the court in
respect thereof are all circumscribed by the
Act. The Indian Limitation Act of 1963 is an
Act to consolidate and amend the law of
limitation of suits and other proceedings and
for purposes connected therewith. The
provisions of this Act will apply to all civil
proceedings and some special criminal
proceedings which can be ,taken in a court of
law unless the application thereof has been
excluded by any enactment: the extent of such
application is governed by s. 29(2) of the
Limitation Act. In our opinion however the
Limitation Act cannot apply to proceedings
like an election petition inasmuch as the
Representation of the People 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.”
It would be a mere repetition again to refer to the
provisions which were examined in much detail in that case
except to notice that sub-s. (5) of s. 86 gives a latitude
to the petitioner upon such terms as to costs and otherwise
as the High Court may deem fit to amend the particulars of
any corrupt practice alleged in the petition and amplify it
in such manner as may in its opinion be necessary for
ensuring a fair and effective trial of the petition, but the
High Court shall not allow any amendment of the petition
which will have the effect of introducing particulars of a
corrupt practice not previously alleged in the petition.
Now here is a definite indication that s. 5 of the Limi-
tation Act cannot be attracted, because no new corrupt
practice not previously alleged in the petition can be
allowed by way of an amendment. If this is not permitted,
it is because any introduction of new particulars of a
corrupt practice not previously alleged in the petition
would have altered the structure of the petition and would
amount to a new petition being filed after the period of
limitation, which is, what is expressly prohibited.
47
It is also significant that delay in the presentation of the
election, petition under the repealed s. 81 could be
condoned by the. Election Commission in its discretion
under the proviso to the repealed s. 85, of the Act. But
there was nothing in s. 85 which permitted the Election
Commission to condone the non-compliance with the provisions
of s. 117 of the Act. When the Act was amended and the
jurisdiction was given to the High Court to entertain and
try election petitions, a provision similar to the proviso
for condoning delay was not enacted. This omission
definitely expresses Parliament’s intention not to confer
the power to condone any delay in the presentation of the
petition.. The whole object of the amendment in 1966 was to
provide a procedure for a more expeditious disposal of
election disputes, which experience had shown had become
dilatory under the former procedure where election trials
were’ not concluded even after five years when the next
elections were held, notwithstanding the fact that every
petition was, enjoined to be tried as expeditiously as
possible and endeavour was. required to be made to conclude
the trial within six months from the date on which the
election petition was presented to the High Court for trial.
In Krishan Chander v. Ram Lal(1) two of us (Jaganmohan Reddy
and Dwivedi, JJ), while holding that s. 82(b) of the Act was
mandatory, the failure to comply with which was fatal to the
maintainability of the, petition. said (p. 769):
Apart from ensuring the purity of elections,
and finality in regard to all election
matters, one other consideration, seems, to be
the expeditious disposal of election
petitions. Before the amendment of Section 82
by Act 27 of 1956 the unamended section made
it incumbent on a petitioner “to join as
respondents, to his petition all candidates
who were duly nominated at., the election
other than himself, if he was so nominated.”
The reason for the amendment of Section 82 has
been stated in the notes on clauses to the
Amendment Bill No. 33 of’ 1955 to be that the
section as it stands holds up the trial of an
election. petition because of the difficulty
in serving a notice on all those who have been
nominated. It is further stated: “Naturally,
it is only the returned candidate who takes
any interest in contesting the election
petition. Moreover, there is a provision in
Section 90 which enables any other candidate
to join as a respondent. It is accordingly
proposed in this clause that Section 82 should
be revised so that it is necessary to join as
respondents only those candidates who are
interested prima facie in the outcome of the
petition”. After the amendment the candidates
under clause (b) of Section 82 are not
impleaded merely,, because they are necessary
parties in an election petition in which a
declaration is sought that the election of all
or any of’ the candidate would be void, but
are impleaded as parties. because there are
allegations of corrupt practices against them
in the election petition. Where action is
taken under Section 90
(1) [1973]2 S.C.R. 759.
48
an order under Section 98 of the Act
dismissing the election petition or declaring
the election of all or any of the returned
candidates to be void and/ or declaring the
petitioner or any other candidate to have been
duly elected, would delay the disposal of the
election petition, because notice will
have to
be given to all the persons named under the
proviso to sub-clause (ii) of clause (a) of
sub-section (1) of Section 99. The provisions
Of Section 82(b) would avoid any such delay as
they make it obligatory for a person filing an
election petition when he makes an allegation
of corrupt practice against any candidate to
make him a ‘party on pain of the petition
being dismissed under Section 86(1) if he
omits to do so.”
It is interesting to see that although the Election
Commission ,did not recommend what provisions of the Act
should be amended, it nonetheless in its Report on the Third
General Elections in India (1962) Volume I (General), after
noticing the several causes of delay reported in its summary
of recommendations under the heading ‘Election petitions’ at
p. 125 as under:
“(i) The objective of a quick decision of
election disputes can only be achieved by
placing the responsibility directly on the
high Courts. Every election petition should
be presented to the High Court of the State in
which the election was held ,and tried by a
permanent Judge on the rota for the trial of
such petitions.
(ii) Clause (1) of article 324 of the
Constitution should ‘be amended by omitting
the words “including the appointment of
election tribunals for the decision of doubts
and disputes arising out of or in connection
with election to Parliament and to the
Legislatures of States”, simultaneously with
the amendment of the election law providing
for the trial of election petitions directly
by the High Courts.”
-This summary supports the above observations in the
judgment.
In Charan Lal Sahu v. Nandkishore Bhatt and others,(1) it
was held that there is no question of any common law right
to challenge an election as such any discretion to condone
the delay in presentation of the petition or to absolve the
petitioner from payment of security ,for costs can only be
provided tinder the statute governing election ,disputes.
It was observed that if no discretion was conferred in
respect of any of these matters, none can be exercised under
any general law or on any principles of equity. If for non-
compliance with the provisions of ss. 82 and 117 which are
mandatory, the election petition has to be dismissed tinder
s. 86(1) the presentation of election petition ,within the
period prescribed in F. 81 would be equally mandatory, ;the
noncompliance with Which visits the penalty of the petition
being .dismissed. The answer to the plea that if the
petition were to be dismissed, allegations of serious
corrupt practices cannot be required into and the purity of
the elections cannot be maintained is that given by Mitter
J., in Venkateswara Rao’s case (Supra) where he said at
P.689
49
“That is however a matter which can be set
right only by the Legislature. It is worthy
of note that although the Act has been amended
on several occasions, a provision like s.
86(1) as it now stands has always been on the
statute book but whereas in the Act of 1951
the discretion was given to the Election
Commission, to entertain a petition beyond the
period fixed if it was satisfied as to the
cause for delay no such saving clause is to be
found now. The legislature in its wisdom has
made the observance of certain formalities and
provisions obligatory and failure in that
respect can only be visited with a dismissal
of the petition.”
Since the above decision in Venkateswara Rao’s case (supra)
in August 1968, though Parliament has made certain
amendments in s. 8 of the Act in 1969, it has not considered
it necessary till now to amend the Act to confer, on persons
challenging an election, benefits similar to those available
to them under the proviso to the repealed s. 85 of the Act,
for as we venture to think, it did not want delays to occur
in the disposal of election petitions as in the past.
For all these reasons we have come to the conclusion that
the provisions of s. 5 of the Limitation Act do not govern
the filing of election petitions or their trial and, in this
view, it is unnecessary to consider whether there are any
merits in the application for condonation of delay.
The appeal as well as C.M.P. No. 7820 of 1973 are
accordingly dismissed but in the circumstances without
costs.
V. P. S. Appeal dismissed.
5-M 852 Sup :1/74
50