Chitrasen Sinku v. Bijay Singh Soy — 1998 DIGILAW 826 (PAT)

Judgment 1. Faced with the inevitable consequence of non-compliance with the provision of Sec. 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act), the petitioner has taken refuge in the provisions of the Code of Civil Procedure, 1908 (the Code) via Sec. 87 of the Act by filing an application under Sec. 151 of the Code for condoning the delay that has occurred in presenting this petition calling in question the election of a returned candidate, to be more precise, respondent No. 1. 2. Petitioner, Chitrasen Sinku was the Bharatiya Janta Party candidate in the election to 51 Singhbhum (ST) Parliamentary constituency held in 1998. Besides the petitioner, three others who are respondents Nos. 1, 2 and 3 in this petition, were in the fray after the scrutiny and withdrawal of nomination papers. Respondent No. 1 Bijay Singh Soy was a Congress candidate; whereas respondent No. 2 Mangal Singh Bobonga was sponsored by Jharkhand Mukti Morcha and respondent No. 3 Shri Krishna Mardi had contested the election as an independent candidate. The poll was held on 16-2-98 and the ballot papers counted on 2-3-1998 and 3-3-1998. The result of the election to the said constituency was declared on 3-3-1998 and respondent No. 1 Bijay Singh Soy was declared elected/returned having secured the highest number of valid votes polled. He secured as many as 1,86,242 such votes, while the petitioner had secured 1,75,390 valid votes polled. Respondent No. 2 had secured 1,24,655 votes; whereas respondent No. 3 had obtained 24,719 votes. 14,363 votes were found invalid and consequently rejected. 3. Thus, the petitioner having lost the battle of ballots in the said constituency by a margin of 10852 votes only has called in question the election of respondent No. 1 by filing the present petition under Sec. 81 of the Act on 23-4-98. 14,363 votes were found invalid and consequently rejected. 3. Thus, the petitioner having lost the battle of ballots in the said constituency by a margin of 10852 votes only has called in question the election of respondent No. 1 by filing the present petition under Sec. 81 of the Act on 23-4-98. The grounds on which the petitioner has challenged the election of respondent No. 1 are that about 20,000 ballot papers marked in his favour were wrongly rejected as doubtful/invalid in spite of protest by his counting Agents in course of the counting of ballot papers; that about 25000 ballot papers which were otherwise invalid and not acceptable by dint of bearing no signature of the Presiding Officer/Officers and distinguishing mark of the polling booth concerned, were treated as valid and counted in favour of respondent No. 1 instead of being rejected in spite of objection raised by, and on behalf of, the petitioner; and lastly, that votes polled by him were counted in favour of respondent No. 1. 4. When the petition was presented in this Court, the Registry reported that the limitation had expired on 17-4-98. In other words, the petition was presented by the petitioner in this Court six days after the prescribed period of limitation had expired. Realizing this legal and factual position, the petitioner simultaneously filed an application under Sec. 151 of the Code for condoning the delay on the ground that soon after the declaration of the result, he applied to the Returning Officer of the Constituency for supplying copies of certain documents, which were, in fact, supplied to him on 3-4-98. In the meantime, he was seized by jaundice and was advised complete bed rest between 2-4-98 and 20-4-98. After recover from his illness, he came to Ranchi on 21-4-98 and contacted his counsel and after making necessary formalities respecting deposit of sum of Rs. 2000.00 in accordance with the provision of Sec. 117 of the Act, the present petition was filed in this Court on 23-4-98. Therefore, a prayer has been made to condone the delay on the grounds stated above. 5. Notice of the application under Sec. 151 of the Code was served on respondent No. 1 who appeared and filed a rejoinder thereto disputing the correctness of the grounds on which the petitioner has sought condonation of delay. Therefore, a prayer has been made to condone the delay on the grounds stated above. 5. Notice of the application under Sec. 151 of the Code was served on respondent No. 1 who appeared and filed a rejoinder thereto disputing the correctness of the grounds on which the petitioner has sought condonation of delay. According to him, as a matter of fact, the petitioner had undertaken train journey on 13-4-98 from Chakradharpur to Perambur as an Ex M.P. on emergency quota by train No. 8189 UP. Besides, it has been contended that in law condonation of delay in filing of the petition is not permissible. 6. Sec. 81(1) of the Act provides that an election petition calling in question any election may be presented on one more of the grounds specified in Sub-sec. (1) of Sec. 100 and Sec. 101 of the High Court by any candidate at such election or any electorate, within 45 days from, but not earlier, than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. Admittedly, the result of the 51 Singhbhum (ST) Parliamentary Constituency was declared on 3-3-1998 and respondent No. 1 was declared elected. Excluding the day the result was declared for the purpose of computing the period of limitation in accordance with the provisions of the General Clauses Act, the period of 45 days prescribed for presenting the petition expired on 17-4-98, although in the petition it has been wrongly mentioned that it expired on 16-4-98. Therefore, in compliance with the provision of Sec. 81 of the Act, this petition ought to have been presented on or before 17-4-98; instead it was presented on 23-4-98. There is a catena of decisions of different High Courts as well as the Apex Court that the provision of Sec. 5 of the Limitation Act which empowers a court to condone the delay on certain grounds, is not applicable in the case of delay in presenting an election petition. There is a catena of decisions of different High Courts as well as the Apex Court that the provision of Sec. 5 of the Limitation Act which empowers a court to condone the delay on certain grounds, is not applicable in the case of delay in presenting an election petition. One of such decisions is to be found in the case of Hukumdeo Narain Yadav V/s. Lalit Narayan Mishra, AIR 1974 SC 480 in which a Bench of three Judges of the Apex Court has held in no uncertain terms that the provisions of Sec. 5 of the Limitation Act do not govern the filing of election petitions and their trial. Incidentally, the learned Counsel for the petitioner submitted that he is not seeking condonation of the delay by invoking the provisions of Sec. 5 of the Limitation Act because the same is not applicable. However, he contended that since the provisions of the Code are applicable in the matter of trial of election petitions and Sec. 151 thereof clothes the court with inherent power to do anything for furtherance of interest of justice, the delay of six days which has occurred in presenting the present petition for sufficient reasons, must be condoned. 7. In support of his contention learned counsel has adverted to the provisions of Sec. 87 of the Act and Sec. 151 of the Code. Besides, he has relied heavily on the decision of the Apex Court rendered in the case of Collector of Land Acquisition, Anantanag V/s. Mosst. Katiji, AIR 1987 SC 1353 . Sub-sec. (1) of Sec. 87 of the Act lays down that subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court as quickly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. Sec. 151 of the Code is respecting the inherent powers of the Court. It provides that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 8. Mr. Ram Kishore Prasad, learned Counsel of the petitioner has contended that one of the grounds on which the election of respondent No. 1 has been called in question, is that about 25,000 ballot papers were counted as valid in favour of the said respondent even though they bore no signature of the Presiding Officer and/or distinguishing mark of the polling booth and that this fact has been admitted by the Returning Officer in his order dt. 3-3-98 rejecting the prayer of the petitioner for recounting of ballot papers of Majgaon Assembly segment. He has referred to Annexure 8 to the petition which is photocopy of certified copy of order dt. 3-3-98 of the Returning Officer. In the said order, the Returning Officer has admitted presence of marked ballot papers sans the signature of the Presiding Officer and/or distinguishing mark of the polling booth. He has also admitted that when such ballot papers were noticed in course of counting, they were counted in favour of the candidate for whom they were marked instead of being rejected on the ground that on looking to the diaries of the Presiding Officers, ballot paper accounts and declarations submitted by the Presiding Officers, he could see no reason for not accepting them as genuine. 9. Learned counsel has contended that rejection of the petition at the threshold on the sole ground of limitation in such a situation shall be tantamount to permit perpetuation of illegality committed by the Returning Officer in the matter of counting of such votes which were not valid, and declaring a candidate elected even though he could not have secured a majority of valid votes polled after scrutinizing such ballot papers. He submits that to prevent perpetuation of such illegality, this Court must act ex debito justitiae in exercise of the inherent power vested in it under Sec. 151 of the Code and admit the petition by condoning or ignoring the delay of six days and after full trial do the real and substantial justice for which alone it exists. 10. He submits that to prevent perpetuation of such illegality, this Court must act ex debito justitiae in exercise of the inherent power vested in it under Sec. 151 of the Code and admit the petition by condoning or ignoring the delay of six days and after full trial do the real and substantial justice for which alone it exists. 10. On face of it, the argument appears to be quite alluring. However, when one goes deep in the provisions of the Act vis-a-vis Sec. 151 of the Code and numerous judicial decisions, condonation of delay is found to be quite unacceptable. 11. Indeed by virtue of Sec. 87 of the Act, the provisions of the Code have been made applicable in the matter of trial of election petitions, but the provisions of the Code have been made applicable "subject to the provisions of this Act and of any rules made thereunder". In other words, in case of conflict between the provisions of the Code and the Act respecting a particular matter, the provisions of the Act have overriding effect. If there is a specific provision in the Act for doing certain thing in certain manner, it shall not be permissible for this Court to act contrary hereto in the name of furthering the ends of justice by invoking the provisions of Sec. 151 of the Code, that is, the inherent power. As noticed earlier Sec. 81 of the Act mandates that any petition calling in question the election of a returned candidate must be presented in the High Court within 45 days from the date of declaration of the result. Sec. 86(1) of the Act mandates that the High Court shall dismiss an election petition which does not comply with the provisions of Sec. 81 or Sec. 82 or Sec. 117. As noticed earlier, Sec. 81 is respecting the period within which an election petition should be presented before the High Court; Sec. 82 of the Act relates to the joining as respondents in the petition; and Sec. 117 respects deposit of security for costs at the time of presenting an election petition. According to the provision of Sub-sec. (1) of Sec. 86 of the Act if the provisions of these three sections are not complied with, the High Court has no option but to dismiss the election petition. 12. According to the provision of Sub-sec. (1) of Sec. 86 of the Act if the provisions of these three sections are not complied with, the High Court has no option but to dismiss the election petition. 12. In the case of K. Venkateswara Rao V/s. Venkam Narsingha Reddy, AIR 1969 SC 872 , a question had arisen whether a person against whom there was charge of corrupt practice, could be impleaded as a respondent after the expiry of the period prescribed for presenting the election petition invoking the provision of Order 1, Rule 10, C.P.C. even though he had not been impleaded as such in the original petition. The Apex Court held that even though Sec. 87(1) of the Act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the Act itself makes important provisions of the Code inapplicable to the trial of an election petition. After referring to the provisions of Rule 17 of Order VI and Rule 10 of Order 1, C.P.C. and those of Secs. 86(5) and Sub-sec. (4) of Sec. 86 as well as 82 of the Act, their Lordships of the Supreme Court held that "under Sec. 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of Sec. 81 or Sec. 82 of the Act. Again the High Court must dismiss an election petition if security for costs has not been given in terms of Sec. 117 of the Act." In the same decision, the Apex Court has held at page 878 in the following manner :- "There is no section in the Act as it now stands which equates an order made by the High Court under Sec. 98 or Sec. 99 to the decree 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-sec. (2) of Sec. 116A expressly gives this Court discretion and an authority to entertain an appeal after the expiry of the period of 30 days. No right is, however, given to the High Court to entertain an election petition which does not comply with the provisions of Sec. 81, Sec. 82 or Sec. 117" (Emphasis added) 13 Mr. Sub-sec. (2) of Sec. 116A expressly gives this Court discretion and an authority to entertain an appeal after the expiry of the period of 30 days. No right is, however, given to the High Court to entertain an election petition which does not comply with the provisions of Sec. 81, Sec. 82 or Sec. 117" (Emphasis added) 13 Mr. Prasad quoted the observation of the Apex Court in the case of Collector, Land Acquisition, Anantanag ( AIR 1987 SC 1353 ) (supra) to bring home his point that in the matter of condonation of the delay, the Court should adopt a liberal approach because "refusal to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated"; that "when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for which other side cannot claim to have vested right in injustice being done because of a non-deliberate delay"; and that "judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 14. At the outset it may be mentioned that this decision was rendered by the Apex Court and the above mentioned philosophy respecting approach in the matter of condoning delay on sufficient grounds was laid down in a matter arising out of condonation of delay in filing of an appeal after expiry of the prescribed period of limitation. The decision lays down rule that if the Court is vested with the discretion to act in a certain manner it should act in such a way as to advance the cause of justice and not to defeat or frustrate it. However, if no such discretion has been vested in the Court, it cannot usurp it in the name of exercising inherent jurisdiction/power under Sec. 151 of the Code. It has been held by the Apex Court in the case of Charanlal Sahu V/s. Nand Kishore Bhatt, AIR 1973 SC 2464 that if no discretion has been conferred in the matter of condoning delay in presentation of a petition calling in question an election or absolving the petitioner from payment of security for cost under the special Statute (R.P. Act) "none can be exercised under any general law or any principle of equity". The Apex Court has further observed that if for non-compliance with the provisions of Secs. 82 and 117 which are mandatory an election petition has to be dismissed under Sec. 86(1) of the Act, the presentation of election petition within the period prescribed in Sec. 81 would be equally mandatory, the non-compliance of which visits penalty of the election petition being dismissed. 15. Before parting, it will be necessary to refer to three more decisions cited and relied upon by the learned Counsel for the petitioner. They are : AIR 1968 J and K 90 : AIR 1980 Kant 79 and AIR 1982 Kant 156. AIR 1968 JandK 90 (Nand Kumar V/s. Bali Ram) related to the question of restoration of an election petition which was earlier dismissed for non-appearance of the election petitioner. It was held that even though there was no provision in the Act for restoring an election petition dismissed for default, by invoking the provision of Rule 9 of Order IX, C.P.C., the petition can be restored and retried. Same principle was laid down in the case of B. Ganganna V/s. Returning Officer, AIR 1982 Kant 156. However, in that case, Karnataka High Court refused to invoke the provision of Sec. 151 of the Code on the ground that there was specific provision under Rule 9 Order IX of the Code and that provision not having been resorted to, the inherent power under Sec. 151 of the Code was not permissible. In AIR 1980 Kant 79 (Patil Shivayya V/s. Kavisetti Shankarappa Suburappa) the election petitioner had filed an interim application under Sec. 151, C.P.C. seeking permission to get on record the marked electoral rolls maintained by the polling officer of the polling booth in that constituency through the Returning Officer of the constituency while he was in the witness box with a view to prove the allegation of voting by impersonation. Invoking the inherent power under S. 151 of the Code, the application was allowed. 16. It is manifest that none of the decisions cited and relied upon by the learned Counsel for the petitioner can come to the help of the petitioner in getting this election petition admitted by condoning or ignoring the delay in presentation thereof in violation of the mandatory provision of Sec. 81 of the Act. 16. It is manifest that none of the decisions cited and relied upon by the learned Counsel for the petitioner can come to the help of the petitioner in getting this election petition admitted by condoning or ignoring the delay in presentation thereof in violation of the mandatory provision of Sec. 81 of the Act. The disobedience of the mandate of Sec. 81 of the Act inexorably attracts Sec. 86 which commands this Court in imperative language to dismiss an election petition which does not comply with the provision of Sec. 81 of the Act even if the petitioner might have been prevented from presenting this petition in time due to his illness as stated by him. The result is that the petition stands dismissed as time barred.Petition dismissed.