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2012 DIGILAW 273 (CHH)

Banwari Lal Agrawal v. Jai Singh Agrawal

2012-10-16

SUNIL KUMAR SINHA

body2012
ORDER 1. The petitioner and the respondent contested the Election of Member of Legislative Assembly from Korba Constituency No. 21. The result was declared on 8-12-2008. The respondent was declared elected. The election of the respondent was called in question by the petitioner by filing Election Petition No. 2/2009. On 1-5-2009, the petitioner filed an application (I.A. No. 8/2009) for withdrawal of the Election Petition. The proposed withdrawal was published in Official Gazette in terms of sub-section (2) of Section 109 of the Representation of the People Act, 1951 (hereinafter referred to as the Act 1951). The copy of the Gazette Notice dated 1st of July, 2009 regarding publication of withdrawal was brought on record. No objections were received. The respondent also did not object the withdrawal. I.A. No. 8/2009, therefore, was allowed and the petitioner was permitted to withdraw the Election Petition. The Election Petition, thus, was dismissed as withdrawn on 10-8-2009. While dismissing the Election Petition as withdrawn, this Court directed that notice of withdrawal be published in the Official Gazette in terms of Clause (b) of sub-section (3) of Section 110 of the Act, 1951. The notice of withdrawal of the Election Petition by order of this Court dated 10-08-2009 was published in the Official Gazette on 28th of August, 2009. The proposed petitioner-Kedarnath Agrawal, thereafter, filed an application for substitution as Election Petitioner in place of Banwari Lal Agrawal (Original Election Petitioner) on 8-10-2009. On the said application of substitution filed on 8-10-2009 by the proposed election petitioner, this MCC was registered. Notices were issued to the original election petitioner and the respondent. Returned candidate has opposed the substitution of the proposed petitioner to prosecute the election petition. The main objection raised by the counsel for the returned candidate is that the aforesaid application for substitution, filed by the proposed petitioner is barred by limitation, therefore, it should be dismissed and the proposed petitioner cannot be permitted to be substituted to prosecute the election petition. 2. Mr. B. P. Gupta, learned counsel appearing on behalf of the proposed petitioner, has raised two fold submissions. 2. Mr. B. P. Gupta, learned counsel appearing on behalf of the proposed petitioner, has raised two fold submissions. He argued that though notice of withdrawal was published in the Official Gazette on 28th of August, 2009, but it was not published in any other manner as required u/S. 110(3)(b) of the Act, 1951 and the proposed election petitioner got the knowledge of withdrawal only on 7-10-2009, therefore, the period of limitation shall begin to run from the said date and the substitution application was well within the time. Alternatively, he argued that even if application was not in time, the proposed petitioner should be given an opportunity to file an application u/S. 5 of the Limitation Act, 1963, because sufficient ground to condone the delay is available in favour of the proposed petitioner. 3. On the other hand, Mr. Rajeev Shrivastava, learned counsel appearing on behalf of the returned candidate, opposed these arguments and contended that the limitation shall begin to run from the date of publication of the withdrawal in the Official Gazette; and the provisions of Section 5 of the Limitation Act, as claimed by the proposed petitioner, would not apply to the Election Petitions and the matters consequential thereto which are strictly governed by the provisions of Act, 1951. Mr. Anup Majumdar, learned counsel for the election petitioner, has not opposed the prayer of the proposed petitioner. 4. Having heard learned counsel for the parties at length, we have perused the records of the MCC as also Election Petition No. 2/2009. 5. Let us firstly consider about the applicability of the Limitation Act in Election Petitions. 6. In K. Venkateswara Rao and another v. Bekkam Narasimha Reddi and others, AIR 1969 SC 872 , it was held that the Limitation Act cannot apply to proceedings like an Election Petition inasmuch as the Act of 1951 is a complete and self-contained Code which does not admit of the introduction of the principles or provisions of law contained in the Limitation Act. 7. In Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 , it was held that even in a case where the special law does not exclude the provisions of Ss. 7. In Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 , it was held that even in a case where the special law does not exclude the provisions of Ss. 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of the provisions of the special law or the nature of the subject-matter and scheme of the special law exclude their operation. What the Court has to see is whether the scheme of the special law and the nature of the remedy provided therein are such that the legislature intended it to be a complete Code. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special Act. The provisions of S. 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in S. 86 of the Representation of the People Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Ss. 81, 82 or 117. If for non-compliance with the provisions of Ss. 82 and 117 which are mandatory, the election petition has to be dismissed under S. 86 (1) the presentation of election petition within the period prescribed in S. 81 would be equally mandatory, the non-compliance with which visits the penalty of the petition being dismissed. Hence the provisions of S. 5 of the Limitation Act do not govern the filing of election petitions or their trial. The Supreme Court, therefore, held that if the scheme of the special law and the nature of the remedy provided therein amount to a complete Code in itself which alone is intended by the Legislature to govern the matters provided in the special law then the provisions of the Limitation Act must be held to be necessarily excluded. 8. Therefore, the argument of Mr. 8. Therefore, the argument of Mr. Gupta that since the exclusion of law of limitation was not expressly made in the Act of 1951, the provisions of the Limitation Act would apply by virtue of Section 29(2) of the Limitation Act cannot be accepted in view of the above decisions of the Supreme Court which also have considered the matter in relation to the provisions of Section 29(2) and Ss. 4 to 24 of the Limitation Act. 9. Mr. Gupta, even after taking note of the above decisions, has argued that the law laid down by the Supreme Court and by this Court in Laxman Sonboir v. B. D. Quireshi & Ors., AIR 2010 Chhattisgarh 15 mainly relates to filing of the election petition, whereas, in the instant case, the applicability of Section 5 of the Limitation Act has to be examined in relation to various procedural matters like the present one, that is filing of an application for substitution. He referred to the provisions of Section 87 of the Act 1951 and submitted that in the trial of election petition, the concerned party should be given benefit of the Limitation Act in procedural matters because basically provisions of Code of Civil Procedure has to be applied for completion of the trial of the election petition. 10. Chapter III of the Act 1951 deals with the trial of election petitions. Section 86 (1) provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act 1951. Section 81 provides the period of 45 days for filing the election petition. In Hukumdev, AIR 1974 SC 480 (supra), it was held that the above provisions of Section 86(1) were mandatory and provisions of Section 81 prescribing the period of 45 days, thus, was also mandatory. Section 87, prescribing the procedure before the High Court lays down that subject to the provisions of the Act 1951 and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. In Hukumdev (supra), the Supreme Court has held in clear words after a long discussion in paras 17 to 25 that the election petition stands on a different footing. In Hukumdev (supra), the Supreme Court has held in clear words after a long discussion in paras 17 to 25 that the election petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by Act 1951. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment. The Supreme Court opined in clear words that the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Act of 1951 is a complete and self-contained Code which does not admit of the introduction of the principles or the provisions of law contained in the Limitation Act. It is after all this discussions, the Supreme Court finally determined that the provisions of Section 5 of the Limitation Act do not govern the filing of the election petition or their trial (Emphasis supplied). We may also consider a situation that if the provisions of Limitation Act are made applicable in procedures in filing of the interlocutory application, where the time has been fixed by the Act of 1951, the proceedings of election petition would be endless. For example, any party, who may not be bona fide, then would be able to file an application with mala fide intention for substitution even after the lapse of a long period which is not intended by Legislature in the special Act because of the scheme of the special Act which shows it to be a complete Code in itself to govern the matters provided therein. Therefore, the law of limitation cannot be held to be applicable even in the procedural matters of the trial of an election petition. 11. Now I shall consider as to what would be the crucial date from which the period of limitation shall be counted for filing of an application for substitution. 12. Therefore, the law of limitation cannot be held to be applicable even in the procedural matters of the trial of an election petition. 11. Now I shall consider as to what would be the crucial date from which the period of limitation shall be counted for filing of an application for substitution. 12. Section 110 (3) (b) of the Act, 1951 provides that the High Court shall direct that the notice of withdrawal of the election petition shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly. Clause (c) of sub-section (3) further provides that a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit. 13. Admittedly, the notice of withdrawal of the election petition was published in the Official Gazette on 28th of August, 2009 and the substitution application has been filed on 8-10-2009. Therefore, it was not filed within 14 days of the date of publication of the notice of the withdrawal of the election petition. According to the proposed petitioner, he came to know about the withdrawal of the election petition on 7-10-2009. Mr. Gupta has contended that since the publication was not done in any other manner, therefore, the proposed petitioner could not know about the withdrawal of the election petition, hence, the period of limitation of 14 days would begin to run from 7-10-2009. 14. In Mohd. Abubakkar Siddique v. Mustafa Shahidul Islam and others, (2000) 2 SCC 62 : AIR 2000 SC 731 , the Supreme Court held that Clause (b) of sub-section (3) of Section 110 unmistakably suggests that it is a mandatory requirement that the High Court shall cause the notice of withdrawal to be published in the Official Gazette. Apart from publication of the notice in the Official Gazette, the notice may also be published in such other manner as the High Court may specify. Apart from publication of the notice in the Official Gazette, the notice may also be published in such other manner as the High Court may specify. The expression in the Official Gazette and in such other manner as it may specify clearly suggests that publication in the newspaper or in any other manner is in addition to the publication of the notice in the Official Gazette and not in substitution of it. If the date of publication in any other manner precedes the date of publication in the Official Gazette, the period of 14 days prescribed in Clause (c) within which a person may apply to be substituted in place of the original election petition would ordinarily not commence unless publication in the Official Gazette has also taken place. The Supreme Court held that the High Court erroneously calculated the period of limitation from the publication of the notice in the English daily. The period of 14 days ought to have been calculated from the date of publication of the withdrawal notice in the Official Gazette i.e. 20-9-1997 and so calculated the application which was filed by the appellant as also the earlier application filed by him were both within the statutory period of 14 days calculated from the date of publication of the notice in the Official Gazette. 15. A perusal of the above provisions of Clause (c) of sub-section (3) of Section 110 of the Act, 1951 as also the judgment of Mohd. Abubakkar, AIR 2000 SC 731 (supra) make it clear that the period of 14 days is to be calculated from the date of publication of the withdrawal in the Official Gazette which in the instant case is 28th of August, 2009. If the period of limitation was essentially to be calculated from the said date i.e. from 28th of August, 2009, it was the only crucial date so far as the proposed petitioner is concerned and the proposed petitioner was required to file his application for substitution within 14 days from the said date and he cannot take advantage of the fact that he had no knowledge about withdrawal of the election petition prior to 7-10-2009 as it was not published in any other manner as may have been specified by the High Court. The legal consequence of the event of non-publication of the withdrawal in any other manner may take its own course if any, but it cannot be a ground for enlargement of period of limitation of 14 days. Thus, I do not find any force in the argument of Mr. Gupta that since notice of withdrawal was not published in any other manner, therefore, the limitation of 14 days shall begin to run from the date of knowledge of the proposed petitioner and not from the date of publication in the Official Gazette. 16. The application filed for substitution, therefore, is barred by limitation and the same is accordingly dismissed. 17. M.C.C. stands finally disposed of. 18. No order as to cost. Petition dismissed.