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2006 DIGILAW 442 (KER)

Abdurazak Velliath v. C. K. M. Moideenkutty

2006-07-19

K.PADMANABHAN NAIR

body2006
Judgment :- The second respondent in Election (O.P.).No.46 of 2005 on the file of the Munsiff Court. Tirur is the petitioner in this writ petition. Petitioner is the returned candidate from Ward No.15 of Tanalur Grama Panchayath in the election held on 26-09-2005. Respondents were the other candidates who contested in the above election. The first respondent filed Election (O.P.) No.46 of 2005 before the Munsiff Court. Tirur challenging the said election. Petitioner along with respondents 2 and 3 were named as the respondents in the Election O.P. The first date of hearing of the election petition was 8-12-2005. Petitioner entered appearance on that day. On 22-12-2005 the petitioner filed I.A.No.1 of 2006 and gave notice as contemplated under Section 99 of the Kerala Panchayath Raj Act (P.R. Act for short) to the court of his intention to give evidence to prove that the election of the first respondent would have been void if he had been a returned candidate. The application was dismissed on the ground that it was filed beyond the period of 14 days prescribed under Section 99 of the P.R. Act. Challenging that order this writ petition is filed. 2. The learned counsel appearing for the petitioner has argued that the view taken by the court below that the trial of the election petition shall be deemed to commence on the date fixed for the appearance of the respondents to appear before the court is not correct. It is argued that the 14 days stated in the first proviso to Section 99 of the P.R. Act shall be reckoned from the date on which the case is actually posted for taking evidence. It is argued that even accepting the contention that the trial of the petition shall be deemed to have been commenced from the date fixed for the first appearance of the parties, i.e. on 8-12-2005, the notice given was within time. It is argued that date on which the case was posted for his appearance is to be excluded in view of the provisions contained in Section 9 of the Interpretation and General Clauses Act, 1125 and if that day is excluded, the notice given was within the time limit. 3. Learned counsel appearing for the contesting respondent has argued that in Damodaran v. Munsiff. 3. Learned counsel appearing for the contesting respondent has argued that in Damodaran v. Munsiff. Taliparamba (1998 (2) K.L.T. 392) this Court relying on the decision of the Supreme Court in Union of India v. Madan Lal Yadav (A.I.R. 1996 S.C. 1340) has held that the trial of the petition shall be deemed to have commenced on the date fixed for the respondents to appear before the court. It is also argued that the petitioner is not entitled to exclude the day on which he was directed to appear before the election Tribunal. I do not think it is necessary to consider the correctness or otherwise of the decision rendered in Damodaran’s Case (Supra) in this proceedings. If the petitioner is entitled to get exclusion of 8-12-1995, the recrimination filed on 22-12-2005 is within the time. Section 99 of the P.R Act is the relevant section. Section 99 of the P.R. Act reads as follows:- “Recrimination when seat claimed.- (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of trial, given notice to the Court of his intention to do so and has also given the security and the further security referred to in sections 115 and 116 respectively. (2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by section 91 in the case of an election petition and shall be signed and verified in like manner:” The wording of the proviso shows that the recrimination is to be filed fourteen days from the date of commencement of the trial. 4. Section 9 of the Interpretation And General Clauses Act. 1125 is relevant. It reads as follows:- “9. 4. Section 9 of the Interpretation And General Clauses Act. 1125 is relevant. It reads as follows:- “9. Computation of time:- Where by any Act any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: ……………” 5. The Supreme Court in Chandra Kishore Jha v. Mahavir Prasad (1999)8 SCC 2666) held that since the Indian Limitation Act does not apply to an election petition filed under the provisions of the Representation of the People Act (R.P. Act for short) Section 10 of the General Clauses Act would apply. A Three Judge Bench of the Supreme Court in Tarun Prasad Chatterjee v. Dinanath Sharma (2000)8 SCC 649) has held that the provisions of Section 9 of the General Clauses Act 1897 apply to the provisions of the R.P. Act. It was held as follows:- “However, in a line of decisions it has also been held that the provisions contained in the General Clauses Act, 1897 are applicable in computing the period of limitation for filing election petition under the R.P Act; 1951. There is nothing in Section 81(1) to indicate that the provisions contained in the General Clauses Act have no application”. It was further held as follows:- “Section 9 of the General Clauses Act, 1897 gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing the period of time prescribed, the rule observed is to exclude the first and include the last day”. It was also held as follows:- “Section 9 says that in any Central Act or regulation made after the commencement of the General Clauses Act. 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word “from”, and for the purpose of including the last in a series of days or any period of time to use the word “to”. 1897 it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time to use the word “from”, and for the purpose of including the last in a series of days or any period of time to use the word “to”. The principle is that when a period is delimited by statue or rule, which has both a beginning and an end and the word “from” is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word “to” is to be used. In order to exclude the first day of the period the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period”. xxxxxx xxxxxxxxxxxx When the period is marked by terminus a quo and terminus ad quem the canon of interpretation envisaged in Section 9 of the General Clauses Act 1897 require to exclude the first day. The words “from” and “within” used in Section 81(1) of the R.P. Act, 1951 do not express any contrary intention”. The principle laid down in Tarun Prasad Chatterjee’s Case (supra) was followed in Raj Kumar Yadav v. Samir Kumar Mahaseth and Others (2005 SAR (Civil) 320). The Supreme Court held that Section 10 of the General Clauses Act is applicable to Section 81 of the R.P. Act. In that case the last date for filing of the petition fell on a holiday. The Supreme Court held that the provisions of General Clauses Act. 1897 apply to the provisions of the R.P. Act and the party need file the petition only on the next working day. In that case the last date for filing of the petition fell on a holiday. The Supreme Court held that the provisions of General Clauses Act. 1897 apply to the provisions of the R.P. Act and the party need file the petition only on the next working day. Section 97 of the Representation of the People Act reads as follows:- “Recrimination when seat claimed.- (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove hat the election of such candidate would have been void if he had been he returned candidate and a petition had been presented calling in question his election: “Recrimination when seat claimed.- (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election: Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively. (2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner:” A reading of Section 99 of the P.R. At and Section 97 of the R.P. Act shows that Section 99 of the P.R. act is pari material to Section 97 of the R.P. Act. Section 10 of the General Clauses Act, 1897 reads as follows:- “10. Section 10 of the General Clauses Act, 1897 reads as follows:- “10. Computation of time:- Where by any General Act any act or Regulation made of the Commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act. 1877 (15 of 1877), applies (2) This section applies also to all (Central Acts) and Regulations made on or after the fourteenth day of January. 1887”. A reading of Section 9 of the Interpretation and General Clauses Act 1125 and Section 10 of the General Clauses Act shows that the provisions contained in both sections are similar. So the principles laid down in Tarun Prasad Chatteriee’s Case (supra) as well as Raj Kumar Yadav’s Case (supra) squarely apply while computing the time fixed for filing recrimination under Section 99 of the P.R. Act also. So the petitioner is entitled to exclude 8-12-2005. If that date is excluded, the recrimination filed on 22-12-2005 is within time. The learned Munsiff did not apply the law on the point correctly. He matter requires reconsideration. The order passed by the Munsiff is liable to be set aside. In the result, the writ petition is allowed. This order passed by the Munsiff in I.A.No.1 of 2006 in Election (O.P) No.46 of 2005 is hereby set aside. The learned Munsiff is directed to take that I.A back to file and dispose of the same afresh as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment.