Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 986 (PAT)

Raj Kumar Yadav v. Samir Kumar Mahaseth

2003-09-10

P.K.SINHA

body2003
Judgment 1. For how this Election Petition has come up for hearing on limitation, a few facts first may be referred to. 2. This petition has been filed on behalf of Raj Kumar Yadav relating to election of one Samir Kumar Mahaseth as member of the Bihar Legislative Council from Local Bodies Constituency which election was held in the month of July, 2002 (sic2003 ?).The admitted position is that the period of limitation of forty five days expired on 27.8.2003 on which date the designated judge was sitting in court till 4.15 P.M.The court hours having expired, the designated election Judge retired into the chambers where at 4.45 P.M. Sri P.K. Verma, the learned counsel for the petitioner came and wanted to file this election petition. Since under High Court Rules the election petition could be filed only in the open court, I, as the designated election judge refused to accept the petition beyond court hours. Learned counsel said that though petition was made ready that very day for presentation, because of some delay in finalising it, he had gone to the court after court hours but by that time the Judge had retired to his chambers. Learned counsel also requested in chambers that the Court officer might be directed to accept that by making an initial over the petition noting the time of presentation so that the petition might be presented on the next working day. Since High Court Rules did not permit that, I refused that prayer also. 3. This was how the learned counsel presented the petition in the open court on 28.8.2003, as may be noticed from order of that day. This court wanted first to hear the learned counsel on the point of limitation so that the court might record an order that very day about its admissibility, but since learned counsel did not appear to be fully prepared and submitted that he would satisfy the court that the petition was acceptable for which he sought some time the matter was adjourned, and heard on 1.9.2003 from 3.30 P.M. and on 3.9.2003 from 4.00 P.M. 4. Before proceeding with the submissions of the learned counsel, Rules 6 and 7 of Chapter XXI-E (which contains the Rules for disposal of the election petition filed under section 81 of the Representation of the People Act, 1951, hereinafter referred to as "the Act"), are reproduced below: "6. Before proceeding with the submissions of the learned counsel, Rules 6 and 7 of Chapter XXI-E (which contains the Rules for disposal of the election petition filed under section 81 of the Representation of the People Act, 1951, hereinafter referred to as "the Act"), are reproduced below: "6. Subject always to 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 purpose of limitation. (2) Immediately after it is presented, the petition shall be entered in a special register maintained for the registration of election petitions." 5. Sri Verma, argued that from the record it could be seen that the security challan was issued on deposit of Rs. 2000/ on 27.8.2003 itself as well affidavit to the petition was also sworn in on that day. Learned counsel also submitted that before coming to the chambers after having noticed that the court had risen at 4.15 P.M., he also had gone to the chambers of he Registrar General to accept the filing but he also refused to do the same. At the outset learned counsel pointed out that in Election Petition no. 4 of 1990 the designated election Judge (Honble S.C. Mookherji) had accepted the filing at his residence at 5.00 P.M. on 11.1.1990, the petition having been filed earlier that day in the office. The record of that case, which was also placed does not show that 11.1.1990 (Thursday) was a holiday and it was submitted that on that day the limitation was not to expire. The record of that case, which was also placed does not show that 11.1.1990 (Thursday) was a holiday and it was submitted that on that day the limitation was not to expire. Learned counsel submitted that the aforesaid election petition was accepted not in the open court but at the residence. However, that particular order in that case cannot be said to be laying down any law on the point as to whether an election petition, under the Patna High Court Rules, could be filed except in the open court. At best that can be cited as precedence, which precedence will also not be a binding one. 6. The arguments of the learned counsel can be summarized in following manner: (1) It was argued that High Court Rules being directory in nature could not override section 81 of the Act which provided the period of limitation up to forty five days. In other words, the High Court Rules could not minimize that period up to 4.15 P.M. of the forty fifth day. (2) Rules have to be read in such a way so as to augment the cause of justice and if strict interpretation of the Rules in purely technical manner defeats the ends of justice, that has to give way to a libera! interpretation. In this regard it was placed that section 81 of the Act did not provide how the election petition was to be filed and did not provide that if petition was not filed in the open court before the rising of the court, the filing would become time barred. (3) It was submitted that even Rule 6 of the Patna High Court Rules, aforesaid, by its wordings shows that the provisions contained therein were subject to the orders of the Judge. Therefore, it was argued, the designated Judge could waive the filing of the election petition in open court and could have accepted the election petition even after court hours, at least till 5.00 P.M. till when the offices of the court functioned. 7. In so far as the last point is concerned, the interpretation of Rule 6 by the learned counsel does not appear to be correct. This provision has to be read in the manner that the presentation of the Court before a formal presentation was made to the Judge in open court was subject always to the orders of the Judge. In so far as the last point is concerned, the interpretation of Rule 6 by the learned counsel does not appear to be correct. This provision has to be read in the manner that the presentation of the Court before a formal presentation was made to the Judge in open court was subject always to the orders of the Judge. Therefore, whether or not before presenting petition in open court, petition was first to be placed before the Stamp Reporter was subject to the orders of the designated Judge, depending on the circumstances of a case. For example, even in the instant case till the time of rising of the court the election petition was not ready. However, if somehow it was made ready for presentation a few minutes before the rising of the court, obviously in that short time the report of the Stamp Reporter could not have been obtained, hence in such a circumstance presenting the petition first to the Stamp Reporter was made subject to the orders of the Judge. There is no doubt in my mind that under this provision the presentation of the election petition to the Judge in open court is mandatory, not subject to any variation even under orders of the Judge. This is also clear from provision under Rule 7 (1) of the High Court Rules. If the designated Judge could defer presentation of the election petition even by a day, on the last day of limitation, then that date of presentation would be the date of filing of the election petition for the purposes of limitation, thereby rendering the petition time-barred. 8. In support of the first two points the learned counsel has taken help of many decisions. Relying on a decision of the Indore Bench of High Court of Madhya Pradesh in the case of Madan Lal V/s. Champa Lal, A.I.R. 1982 Madhya Pradesh 108, learned counsel submitted that under the M.P. High Court Rules the election petitions were to be filed before the Deputy Registrar (Judicial) but the election petition in question was presented to Additional Registrar (Judicial). Learned counsel submitted that it was held by a single Judge that the Rules framed by the High Court relating to election petitions were not mandatory but were directory because nowhere it was provided that failure to comply with the requirements would lead to a specific consequences. Learned counsel submitted that it was held by a single Judge that the Rules framed by the High Court relating to election petitions were not mandatory but were directory because nowhere it was provided that failure to comply with the requirements would lead to a specific consequences. This specific point I will discuss in relation to a decision of the Apex Court but suffice it to say that the learned Judge already had held that High Court Rules were so amended earlier that the Additional Registrar (Judicial) could substitute for the Deputy Registrar (Judicial) in his absence, hence the election petition was correctly presented to the Additional Registrar (Judicial). Sri Verma also placed reliance upon a decision of the Supreme Court in the case of Hukumdeo V/s. Lalit Narain; A.I.R. 1974 Supreme Court 480. It was pointed out that their Lordships held that reading Rules 6 and 7 of the election Rules made by Patna High Court with Rule 26 of Chapters VII Part-II of Patna High Court Rules, an election petition could be presented on the last day of limitation when the Judges were not sitting to receive or entertain an election petition on that day, to the Registrar or in his absence to the other officers specified in Rule 26. It was also held even if section 4 of the Limitation Act did not apply, section 10 of the General Clauses Act would apply to the election petitions filed under the Act. In that case Saturday was the last day of limitation on which date the courts in the Patna High Court did not sit though the offices remained open (now except on second Saturday of every month). The election petition was filed on Monday next. 9. However, Rule 26 of Chapters VII now stands deleted by C.S. no. 84 dated 31.5.1986. Moreover, this decision relates to a situation in which though offices are open, but the courts did not sit hence it was not possible for the petitioner to have filed the election petition in the open court. 9. However, Rule 26 of Chapters VII now stands deleted by C.S. no. 84 dated 31.5.1986. Moreover, this decision relates to a situation in which though offices are open, but the courts did not sit hence it was not possible for the petitioner to have filed the election petition in the open court. The facts in the instant case also differ as the limitation here had expired on a date on which the courts were open and the designated Judge was available in the court till 4.15 P.M. Sri Verma with the help of this decision also argued that though the time of rising of the courts is 4.15 P.M., the offices remained open till 5.00 PM., hence the court would be deemed to be open till 5.00 P.M. However, when the court was available till 4.15 P.M. on a working day, then the election petition by virtue of Rule 6 could have been filed only in the open court. 10. Learned counsel, taking help of another decision of the Apex Court in the case of Punjab V/s. Sham Lal; 1976 (2) S.C.R. 82 , submitted that the Rules could not prevail over the Statute. In the facts of that case Rule 3 of Chapter 2-C, Vol. 5 of the Punjab and Haryana High Court Rules and Orders provided filing of an appeal under Clause 10 of Letters Patent with three copies of certain documents which copies were not filed. Their Lordships held that the aforesaid omission or defect was an irregularity and could be corrected on application by the concerned party fulfilling the condition within time allowed by the court. But under Patna High Court Rules non-filing of the election petition in open court cannot be corrected subsequently, after expiry of limitation, in any manner. The decision of the Apex Court in the case of Sheo Sadan Singh V/s. Mohan Lal Gautam; 1969 (1) S.C.C. 408 , also relied upon, could also not help the petitioner. In that case the election petition was presented to the Registrar by an Advocates Clerk but in immediate presence of the petitioner. It was held that in substance though not in form, the Rule was complied with. The facts in this case are quite distinct. 11. In that case the election petition was presented to the Registrar by an Advocates Clerk but in immediate presence of the petitioner. It was held that in substance though not in form, the Rule was complied with. The facts in this case are quite distinct. 11. The aforesaid points raised by the learned counsel for the petitioner stand answered by a decision of the Apex Court in the case of Chandra Kishore Jha V/s. Mahavir Prasad, 2000 (1) P.L.J.R. 36. 12. In this case it was the last date for filing of the election petition but the court rose earlier as there was obituary reference in the Full Court at 3.15 P.M. and after reference the working of the court had been suspended for the rest of the day. The election petition, thus, was handed over to the Bench Clerk of the Court at 4.05 P.M. Obviously, presenting the petition in open court on that last day was rendered impossible as the court rose by 3.15 P.M. and, thereafter, the working of the court was suspended for the rest of the day. In view of that peculiar situation, their Lordships held that section 10 of the General Clauses Act would apply and when the petition was placed before the Bench Clerk at 4.05 P.M., within normal sitting hours of the court and presented in the open court next day, the limitation was saved. In that case subsequently in the High Court the returned candidate had filed an application under section 81 (i) read with section 86 of the Act seeking dismissal of the election petition on the ground that its presentation on the next working day was beyond the period of limitation which plea was accepted by this court. Before the Supreme Court the points as to what could be the manner of filing on the last working day, and whether that could be extended beyond 4.15 RM. in view of Rule 6, were also taken into account. Their Lordships, in that regard noted the contents of Rules 6, 7 and 9 of Chapter XXI-E as well Rule 13 of Chapter II, Part I of the High Court Rules. Rule 13 of Chapter II aforesaid described the powers of the Registrar of the court, including to receive appeals and applications or a plaint. Alongwith their Lordships also referred Rule 24 of Chapter XXI-E which is as follows: "24. Rule 13 of Chapter II aforesaid described the powers of the Registrar of the court, including to receive appeals and applications or a plaint. Alongwith their Lordships also referred Rule 24 of Chapter XXI-E which is as follows: "24. The Patna High Court Rules, except in so far as they are inconsistent with the above rules, shall apply mutatis- mutandis to all election petitions, Where no specific provision is made in the Act, the Code or the High Court Rules, the Judge may pass such orders as he may consider necessary." 13. About the plea of receipt of such a petition by the Registrar of the court under Rule 13 read with Rule 24 of Chapter XXI-E when the court was not available, their Lordships recorded following observations in this case: "In our opinion, reliance on Rule 24 of Chapter XXI-E read with Rule 13 (111) of Chapter II, Part I of the High Court Rules is misplaced. The plain phraseology of Rule 6 read with the proviso thereto makes it abundantly clear that formal presentation of an election petition can be made only to the designated election Judge in the open Court and if on any court day the Judge is not available on account of temporary absence or otherwise, the petition may be presented before the Bench hearing civil application and motions. Thus the High Court Rules do not prescribe any other mode of presentation of an election petition except in the open Court either before the disignated election Judge or before the Bench hearing civil applications and motions, where the designated election Judge is not available on account of temporary absence or otherwise. The presentation of an election petition to the Registrar has not been prescribed as a mode of presentation of an election petition by the Rules. An election petition is not included in any of the clauses of Rule. "The learned designated election Judge rightly found that presentation of the election petition to the Bench Clerk on 16.5.1995 at 4.05 P.M. was not a proper presentation under the Rules. In the absence of any provision in the Rules, presentation of an election petition to the Registrar would not stand at any better footing than the presentation of the petition to the Bench Clerk. In the absence of any provision in the Rules, presentation of an election petition to the Registrar would not stand at any better footing than the presentation of the petition to the Bench Clerk. An election petition being a purely statutory remedy, nothing is to be read into the Rules-nothing is to be presumed-which is not provided for in the Rules. Rule 24 (supra) cannot advance the case of the returned candidate any further because of the absence of mention of an election petition in Rule 13 (supra). "In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under the Act or the Rules thereunder and, therefore, an election petition could under no circumstances, be presented to the Registrar to save the period of limitation. It is a well settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner... "An election petition under the Rules could only have been presented in the open court upto 16.5.1995 till 4.15. P.M. (working hours of the court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation." 14. However, it may here be noted that aforesaid Rule 13 of Chapter II Part I which underscored the powers of the Registrar of the court stood amended by CS no. 106 dated 30,9.1996 and provisions for him to receive the applications, plaints or an appeal stand deleted. However, now there is centralised system for filing petitions etc. 15. As held by their Lordships in the case of Chandra Kishore Jha, aforesaid, an election petition, on the last day of limitation, could be presented only in the open court till 4.15 P.M. (working hours of the court) in the manner as prescribed under Rule 6 of Chapter XXI-E of the Patna High Court Rules in order to save the period of limitation. If the designated election Judge was available in open court till 4.15 P.M. the election petition had to be filed on the last day of limitation only up to 4.15 P.M. If that was not done and the petition was filed on the next day in the open court the filing would be beyond the period of limitation. This petition, obviously, has been filed In the open court after expiry of period of limitation, hence is not fit to be accepted for consideration. The matter stands disposed of.