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1967 DIGILAW 112 (KER)

C. J. JOHN v. DAVASYKUTTY

1967-05-31

M.MADHAVAN NAIR

body1967
Judgment :- 1. This Civil Miscellaneous Petition by an elector is for condonation of 10 days' delay in the presentation of the relative Election Petition. For the 4th general election held on February 20, 1967, the petitioner was an elector and the respondents were the three candidates in the Manalur Constituency in the Trichur District. The Returning Officer on February 21, 1967, declared the 1st respondent to have been elected to the State Legislature. The petitioner challenges the validity of that declaration by the Election Petition which was presented on April 17,1967. Under S.81 of the Representation of the People Act, XLIII of 1951, an Election Petition has to be presented within 45 days from "the date of election"; and the date of election is defined in S.67A of the Act as the date on which the candidate is declared by the Returning Officer to be elected to the Legislature. Hence, the last date for presentation of the instant-Election Petition fell on April 7,1967, and there was a delay of 10 days in its presentation on April 17 only. C. M. P. No. 2984 is to condone that delay. 2. The cause for the late presentation of the Election Petition is stated in the C. M. P. thus: "...I was under a wrong impression, bona fide though it be, that the date of election is the date of notification of election result in the Government Gazette. The result was published in the Kerala Gazette Extraordinary dated 25 21967. Hence I thought that the last date for filing the Election Petition is 1141967 which conies during the mid-summer recess of the High Court of Kerala. Therefore I bona fide thought that as in other cases, I need file the election petition on the reopening date after the mid-summer recess. For consultation in regard to the filing of the election petition I came to the office of my Advocate at Ernakulam on 7 41967 when I was told that the date of election as far as Manalur Constituency is concerned is 2121967 and that the last date for filing the petition is 7th April itself, the Jast working day before the mid-summer recess. I had not come on 7th ready to file the petition on account of the wrong impression I had about the date of election as referred to earlier. I had to get ready Rs. I had not come on 7th ready to file the petition on account of the wrong impression I had about the date of election as referred to earlier. I had to get ready Rs. 2000/- towards deposit towards security for costs. Immediately on receipt of information I returned home to make ready the money for deposit and towards the expenses for filing the petition. I was able to get ready the money required only by Saturday, 15th. As the petition could be filed only after deposit of money under the necessary Head in the State Bank of Travancore, as the petition has to be accompanied by receipt of such deposit for compliance with S.117 of the Representation of People Act, I am able to file the petition only today, 17th April. There is a delay of 10 days in filing the petition. The earlier averments would make it clear that there was no wanton negligence on my part in the matter. The delay is really the result of a bona fide mistake on my part." 3. Notice of the C. M. P. was ordered by Sadasivan J. on April 18. Respondents 1 and 2 accepted notice by April 24; and the 1st respondent has entered appearance through counsel. But the notices issued to the 3rd respondent have been returned unserved on the ground that he could not be found at the address given. The only prayer in the Election Petition is to declare the election of the 1st respondent void. There is no prayer for declaring any other candidate who contested the election as been duly elected, and there is no allegation of any corrupt practice made against any other candidate. In the circumstances, under S.82 (a) of the Representation of the People Act, 1951, the returned candidate alone is a necessary party to this Election Petition. The non-service of notice on the 3sd respondent is therefore immaterial, and the petition is heard by me today. 4. Two questions arise for consideration here whether the Court has jurisdiction to condone delay in the presentation of an Election Petition and (if the Court has jurisdiction) whether sufficient cause is shown in this case for condoning the delay. 5. The non-service of notice on the 3sd respondent is therefore immaterial, and the petition is heard by me today. 4. Two questions arise for consideration here whether the Court has jurisdiction to condone delay in the presentation of an Election Petition and (if the Court has jurisdiction) whether sufficient cause is shown in this case for condoning the delay. 5. As regards jurisdiction: The Representation of the People Act, XLIII of 1951, by its S.85, as it was originally enacted, gave power to the Election Commission to condone delays in the presentation of Election Petitions; but that power was taken away by the Amending Act XXVII of 1956. which substituted for S.85 a new Section that ran thus: "85. If the provisions of S.81 or S.82 or S.117 have not been complied with the Election Commission shall dismiss the petition: Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard." Thereafter there was no power in anybody to condone delays in presentation of Election Petitions, until the Limitation Act, 1963, came into force, extending its S.5 to any petition under any special law. That the Representation of the People Act, 1951, is a special law on elections and election petitions, is too clear to be doubted; and if any authority is needed therefor one need cite Vidyacharan Shukla v. Khubchand Baghel (AIR. 1964 S. C. 1099). S. 29 (2) of the Limitation Act, 1963. reads: "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 S.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 S.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." S. 2 (b) of the Act defines an application to include a petition. It then follows that in reckoning limitation for any petition under any special law and therefore for an Election Petition under the Representation of the People Act, 1951, the petitioner can invoke S.5 of the Limitation Act, 1963, which reads: "5. It then follows that in reckoning limitation for any petition under any special law and therefore for an Election Petition under the Representation of the People Act, 1951, the petitioner can invoke S.5 of the Limitation Act, 1963, which reads: "5. Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." There is no provision in the Representation of the People Act, 1951-1966, excluding the application of S.5 of the Limitation Act, 1963, to presentation of Election Petitions. This Court has therefore jurisdiction to condone delay in the presentation of an Election Petition if the petitioner satisfies the Court that he had sufficient cause for not presenting it within time mentioned in S.81 of the Act. 6. As regards sufficiency of the cause for the delay: The petitioner has averred that he mistook the starting point of limitation, viz., the date of election, as the date of publication of the result of the election in the official gazette and therefore also the last date for presentation of the Election Petition as April 11, and that, though he was told by counsel on April 7 that that was the last date for presentation of the Election Petition he had not then the sum to make the security deposit required by S.117 of the Act, and could make up the sum only by Saturday the 15th April to present the Election Petition on the 17th April. Thus the two main grounds that he has urged for the delay are: (1) his wrong notion of the date of election; and (2) his inability to command funds in due time. The 'date of election' has been defined in the Representation of the People Act by a specific Section S. 67A introduced by the Act XXVII of 1956, to mean the date of declaration of the result of the election by the Returning Officer. If the petitioner was unaware of that clear law, it cannot be helped. In a like situation, the Supreme Court has observed in A. D. Partha Sarathy v. State of Andhra Pradesh (AIR. 1966 SC. If the petitioner was unaware of that clear law, it cannot be helped. In a like situation, the Supreme Court has observed in A. D. Partha Sarathy v. State of Andhra Pradesh (AIR. 1966 SC. 38), "It was more than a year since the Act was passed when the petition was filed in this Court. The vague allegation in the affidavit that the petitioner was wrongly informed of the period of limitation cannot possibly be a ground for excusing the delay." I am afraid that the averment that the petitioner's information as to the date of election happened to be wrong is not a ground that can be accepted as reasonable for the late presentation of the Election Petition. 7. The allegation that the petitioner was not possessed of the requisite funds by the time the period for presentation of the Election Petition expired, viz., 7th April 1967, cannot also be a legal ground for condoning the delay in the institution of the Election Petition. In Banarsidas v. State of Uttar Pradesh (AIR. 1956 S. C. 520) a Constitution Bench of the Supreme Court has held, "The only ground urged in support of the application for condonation of delay is that they had to collect money from amongst a large number of petitioners who were interested in the case. In our opinion, that is not a sufficient ground for condoning the delay," The force of that observation would not be mitigated when the petitioner has to find his own funds to meet the expenses of his Election Petition. The petitioner had 45 days since the declaration of election of the 1st respondent to present his Election Petition to question the same. No particular averment is made as to why he could not make up the requisite sum during that interval. If the petitioner had not the necessary amount at his command and yet waited till the eve of limitation to start seeking funds to make up the amount, he cannot be excused for the delay caused thereby. In the circumstances, the cause shown has to be held insufficient to explain the delay in the presentation of this Election Petition from the 7th to the 17th April. In the circumstances, the cause shown has to be held insufficient to explain the delay in the presentation of this Election Petition from the 7th to the 17th April. As observed by the Supreme Court in Sitaram Ramcharan v. M. N. Nagrashana (A.I.R.1960 S.C. 260) "in dealing with the question of condoning delay under S.5 of the Limitation Act the party has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay." Excepting the vague allegation that he "was able to get ready the money required only by Saturday, 15th", no explanation has been offered for the delay from the 7th April to the 17th; and the said allegation does not afford acceptable ground to condone the delay. 8. In the result, C.M.P. No. 2984 of 1967 has to fail. It is accordingly dismissed. It then follows that the institution of the Election Petition that accompanies it was beyond the prescribed time and has on that count to be dismissed in limine. Under S.119 of the Act, the returned candidate, the 1st respondent, has to be given his costs of opposing the petition, which I fix at Rs. 100/-. Judgment accordingly. Dismissed.