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1967 DIGILAW 195 (CAL)

Asoke Chowdhuri v. UNION OF INDIA

1967-08-18

P.C.MISRA

body1967
JUDGMENT 1. This application for a Rule Nisi is directed against the Election Petition Rules, 1967 framed by this Court for the purpose of hearing election petitions. The petitioner's prayers are as follows : A. An order in the nature of Mandamus to issue on the respondents to show cause why Election Petition Rules, 1967 of Calcutta High Court, as published in Calcutta Gazette Extraordinary dated March 20, 1967, should not be annulled being still born Rules as the Central Government has not appointed different dates for coming into force of the provisions of sections 37, 38, 40, 41, 42, 43, 46, 47, 48, 49, 51 and 52 of the Act (Act 47 of 1966). (a) an order in the nature of Certiorari calling upon the respondents Nos. 1 and 2 to produce and cause to be produced all relevant records relating to the Annexure "A" and on such production being made to render conscionable justice by quashing the same. (b) a writ/order in the nature of Mandamus should not issue on the respondents to cancel/rescind/withdraw the Anx. "A" to this petition and to forbear them from taking any action founded on Annexure "A" and not to try any election petition till election petition rules are framed according to law. (c) any appropriate order for the enforcement of the legal right of your petitioner to present election petition put in jeopardy because of Annexure "A" or to pass such order or orders as to your Lordship may seem fit and proper. 2. THE grounds on which the petition is based have been set out in paragraphs 12 and 13 of the petition. In paragraph 12 it is alleged that the petitioner is concerned with the amendments affected by sections 37, 38, 41, 42, 46, 48, 49, 51, 52 of Act 47 of 1966 (Representation of the People [Amendment Act] 1966). These sections, it is alleged, empower the High Court to try the election petitions and the jurisdiction. previously given to Election Tribunals, was taken away from the Tribunals and given to the High Court in terms of the various sections of the said Act No. 47 of 1966. These sections, it is alleged, empower the High Court to try the election petitions and the jurisdiction. previously given to Election Tribunals, was taken away from the Tribunals and given to the High Court in terms of the various sections of the said Act No. 47 of 1966. In paragraph 13 of the petition it is alleged that the petitioner has a right to challenge the election of a returned candidate who is respondent No, 4, but that he is left without a remedy, as he is unable to file the election petition as the Election Petition Rules published in the Calcutta Gazette on March 20, 1967, cannot apply inasmuch as in terms of sub-section (2) of section 1 of the said Act No. 47 of 1966 the Central Government has not appointed different dates for the coming into operation of the different provisions of the said Act No. 47 of 1966. It is alleged that for these reasons the Election Petition Rules to be enforced by the High Court in exercising jurisdiction under s. 38 of Act No. 47 of 1966 are without any authority of law, and the Election Petition Rules framed by this Court cannot be enforced. In order to appreciate the contention of Mr. Arun Kumar Dutta. learned Advocate for the petitioner it is necessary to set out sub-section (2) of section 1 of the Representation of the People (Amendment) Act, 1966. This sub-section is as follows: (2) "It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates, may be appointed for different provisions of this Act." 3. MR. Dutta's contention, is that as the sub-section provided that different dates may be appointed for bringing into force the different provisions of the Act, and as such different dates had not been appointed, the Rules cannot be framed and the same cannot be given effect to. It was argued that although by the first clause of the said sub-section it was provided that it shall come into force on such dates as the Central Government may appoint, the Central Government nevertheless was bound to appoint different dates for the purpose of bringing into force the different provisions of the Act. In support of this contention reliance was placed by Mr. In support of this contention reliance was placed by Mr. Dutta on sub-section (3) of section 5 of the General Clauses Act, 1897 which provided that unless the contrary is expressed, the Central Act or regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. It was argued that no contrary intention was expressed in the statute and therefore, it could come into force only on such different dates which the Central Government was bound to appoint. It was argued that as this was not done, sec. 80A did not come into force at all and therefore, this Court had no jurisdiction to entertain the Election Petitions, and the rules framed for that purpose could not be given effect to either. In support of this contention reliance was placed by MR. Dutta on (1) The Queen v. The Bishop of Oxford, (1879) 4 QB 245. He relied on this decision for the proposition that the word "may" used in the latter part of sub-section (2) of section 1 of Act No. 47 of 1966 must be construed to mean "shall". 4. Reliance was also placed on certain passage from Craies on Statute Law, Fifth Edition, p. 355. Mr. P. N. Chunder, learned Advocate for the respondents contended that in exercise of the powers conferred by the said Act No. 47 of 1966, the Central Government published a notification in the Gazelle of India dated December 14, 1966 being Notification No. S. O. 3873 dated the 14th of December 1966 whereby the Central Government appointed the 14th of December 1966 as the date on which the said Act should come into force. It was contended by the learned Advocate appearing for the respondents that the amending Act in its entirety viz., Representation of the People (Amendment) Act, 1966 had been brought into force by the said Notification, and that being so, it was not necessary for the Central Government to appoint different dates for the purpose of bringing into force the different provisions of the Act. In other words, it was argued that as the whole of the Act viz., the Representation of the People (Amendment) Act, 1966 came into force on the 14th of December 1966 in terms of the above notification there remained nothing for the Central Government to bring into force by separate notification on different dates. 5. In other words, it was argued that as the whole of the Act viz., the Representation of the People (Amendment) Act, 1966 came into force on the 14th of December 1966 in terms of the above notification there remained nothing for the Central Government to bring into force by separate notification on different dates. 5. In my opinion, the contention of the learned Advocate for the respondents must be upheld. The mandate of the Legislature as indicated in sub-section (2) of section 1 of the Representation of the People (Amendment) Act, 1966, clearly indicates that the Act as a whole should come into force on such date as the Central Government may appoint and that different dates may be appointed for different provisions of the said Act. I must at once point out that the two portions of this sub-section are mutually exclusive. If the Act in its entirety has been brought into force by the said Notification on the 14th of December 1966 there remained nothing for the Central Government to bring into force again by virtue of the second part of the said sub-section. In other words, the Act as a whole having come into force on the appointed date there was nothing that could be brought into force by appointing different dates for different provisions of the statute, as contemplated by the second part of the said sub-section. In my view, as the Act in its entirely did come into force on the appointed date, the power of this court to hear the Election Petitions and to frame the Election Petition Rules, 1967 and apply the same to the Election Petitions cannot be challenged by the petitioner. Nor is it open to the petitioner to contend that the said Rules are still born as this Court had no power to frame the rules. 6. FOR the reasons mentioned above this application fails and is accordingly rejected.