Patna High Court
Ram Nandan Singh vs Ramadhar Singh And Ors. on 25 February, 1966
Equivalent citations: AIR1966PAT297, AIR 1966 PATNA 297, 1966 BLJR 553 ILR 45 PAT 1114, ILR 45 PAT 1114
JUDGMENT Choudhary, J.
1. This is an application under Article 227 of the Constitution of India. The petitioner and opposite parties 1 and 2 were candidates for the office of Mukhiya of Marha Mankarwa Gram Panchayat during the last election and they had submitted their nomination papers for the same on 18-6-1962. All the three nomination papers were accepted as valid Opposite Party No. 2, however, withdrew his candidature on 21-6-1962, and only two candidates namely, the petitioner and the opposite party No. 1 remained in the field. Ultimately, the poll was completed on the 10th of August, and opposite party No. 1 was declared elected. On 10-9-1962 the petitioner filed an election petition before the Election Tribunal, Motihari, for setting aside the election of opposite party No. 1, on the ground that the election was conducted in contravention of the Bihar Panchayat Raj Act and the Bihar Panchayat Elections Rules. It was also alleged that the ballot papers and the ballot boxes were tampered with and the poll was illegally held on an adjourned date. The Election Tribunal, however, without deciding the election petition on merits, dismissed the same on the preliminary ground that the election petition was filed out of time. The petitioner, therefore, presented this application in this Court for the relief stated above.
2. The Election Tribunal, in dismissing the election petition, relied on a Bench decision of this Court, in Chandra Shekhar Prasad Singh v. Jai Prakash Singh, AIR 1959 Pat 450, for holding the election petition to be barred by time. When this case came up for final hearing before me, sitting singly, I felt that the ratio of the above Bench decision required re-consideration, and, therefore, referred the case to be placed before a Division Bench. The case, thereupon came up before a Division Bench, but that Bench also took the view that the correctness of the above Division Bench decision has to be examined, and referred this case to a Full Bench. This Bench has, therefore, been constituted to hear and dispose of the case.
3. Section 80 of the Bihar Panchayat Raj Act, 1947 empowers the State Government to make rules for carrying out the purposes of that Act; and, in exercise of that power in supersession of all previous rules on the subject, the Governor of Bihar was pleased to make rules called the Bihar Panchayat Elections Rules, 1959 (hereinafter to be referred to as "the Rules"). Rule 72 (2) states that an election petition against a returned candidate shall be presented to the Election Tribunal within thirty days from the date of the declaration of the result of the election. The question that arises for consideration in the present case is as to the method of computation of thirty days for filing the election petition. On behalf of the petitioner, it is contended that, in computing the above period of thirty day the date on which the result of the election was declared, namely, 10-8-1962, should be excluded. The contention is that, if 10-8-1962 is excluded in computing the period of limitation, the last date for filing the election petition would be 9-9-1962, which was a Sunday, and, therefore the election petition filed on the next day, that is, on 10-9-1962, was, well within time. The contention of the opposite party is that the period of thirty days provided under Rule 72(2) of the Rules is inclusive of the date on which the result of the election was declared, and, as such, 10-8-1962, should be counted in computing the period of limitation. According to that submission, the last date for filing the election petition would be 8-9-1962, and, the application not having been filed on that date, it was barred by limitation. This submission found favour with the Election Tribunal and, as already stated, the election Tribunal based its decision on a Bench decision of this Court referred to above.
4. In support of his contention, Counsel for the petitioner has relied on Section 12(1) of the Limitation Act, which provides that, in computing the period of limitation prescribed for any suit, appeal or application the day from such period is to be reckoned shall be excluded. In reply to this contention, it has been suggested on behalf of the opposite party that the mode of computation given in Section 12(1) of the Limitation Act is applicable to the computation of the period of limitation which is prescribed by the Limitation Act, and not to any period fixed by any other Act. Section 29(2)(a) of the Limitation Act, as it stood at the relevant time, lays down:
"(2) Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local tow:
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to tile extent to which, they are not expressly excluded by such special or local law;"
In the Limitation Act, however, no period of limitation is prescribed for the filing of an election petition. It has, therefore, been contended on behalf of the opposite party that Section 29(2) of that Act has no application to an election petition. The controversy on this point, however, has been set at rest by a decision of the Supreme Court in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099. The majority decision in that case is that, when the First Schedule of the Limitation Act prescribes no time limit for a particular appeal, but the special law prescribes a time limit to it, it can be said that under the First Schedule of the Limitation Act all appeals can be filed at any time, but the special law by limiting it provides for a different period as while the former permits the filing of an appeal at any time, the latter limits it to the prescribed period. It is, therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act. In view of the above decision, which is binding on this Court, it must be held that Section 29(2) of the Limitation Act applies to the election petition in the present case.
5. Section 12(1) of the Limitation Act is one of the sections which are made applicable, by virtue of Section 29(2) of that Act for computing the period of limitation for applications to be filed within a certain period prescribed by the Special Act, and there is no provision in the Special Act for exclusion of the application of Section 12 to any application under that Act. Section 12(1) of the Limitation Act, as already stated, says that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. In the present case, therefore, 10-8-1962, on which date the election of opposite party No. 1 was declared, will be excluded from computing the period of thirty days within which the election petition had to be filed on such computation, the last date on which the election petition should have been filed was 9-9-1962, which was a Sunday. Under Section 4 of the Limitation Act, which also is made applicable to such applications, as in the present case, the 9th of September being a Sunday, on which day the Courts were closed, the election petition could be filed on 10-9-1962, on which date the Courts opened.
To the same effect is the provision in Section 18 of the Bihar and Orissa General Clauses Act, as well as Section 10 of the Central General Clauses Act. According to both these sections, where 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. Even in Rule 72(3) of the Rules, a provision is made that, when the period prescribed by Sub-rule (2) for the presentation of an election petition expires on a day which is a public holiday within the meaning of Section 25 of the Negotiable Instruments Act, 1881, or has been notified by the State Government to be observed as a holiday in Government Offices or Courts, the petition shall be considered as having been presented in due time if it is presented on the next succeeding day which is neither such public holiday nor a day so notified, in view of the above provision, 9-9-1962, being a Sunday, the filing of the election petition on 10-9-1962 was within time. As a matter of fact, it is not disputed in the present case that, if the last day of filing the election petition fell on 9-9-1962, its filing on the 10th of September, 1962 was within time, because of the 9th of September being a Sunday. The dispute, however, is only with respect to the inclusion or exclusion of the 10th of August, 1962, from which date the period of limitation started, in computing the period "within thirty days" from that date. As already held above, under the provisions of Section 29(2) of the Limitation Act, the 10th of August, 1962 has to be excluded in computing the period of limitation "within thirty days" from the date of the declaration of the election.
6. The above view gains support from a recent decision of the Bombay High Court, in Commissioner of Income-Tax, Bombay City II, Bombay v. New Citizen Bank of India Ltd. Bombay, (1966) 1 ITJ. 31 (Bom). In that case, the order under appeal was passed by the Tribunal on the 21st of November, 1960, and the copy of the order was served on the Commissioner on the 1st of December, 1960. The application for reference under Section 66(1) of Income-Tax Act was filed by the Commissioner on the 30th of January, 1961. Under Section 66(1), an application for reference is required to be made within sixty days of the date on which a notice of the order of the Tribunal made under Sub-section (4) of Section 33 is served on the Commissioner. A question arose whether, in counting the period "within 60 days" the 1st of December 1960, on which date the copy of the order was served on the Commissioner, would be excluded or included. It was urged in that case that Section 12 of the Limitation Act could not be availed of as the applications under Section 66 of the Income-Tax Act were not governed by the provisions of the Limitation Act, but by special provisions as to limitation prescribed by the Income-tax Act itself. It was contended that the expression "within 6 days of the date on which the notice of the order is served on the Commissioner" must be understood as including the date on which the order is served as the first day in the computation of the said period. It was further contended that the expression "within 60 days of the date of the service of the order" would be 60 days inclusive of the day on which the order is served, and will not be 60 clear days after the service of the order. It was held that, al though the Limitation Act did not prescribe the period of Limitation for an application under Section 66(1), and the said period is provided by the special Act viz, Income-tax Act itself, under Section 29 of the Indian Limitation Act, the provisions contained in Sections 4, 9, to 18 and 22 of the Limitation Act will apply, though, of course, the application will be only to the extent to which it is not expressly excluded by the special law. There is no Section in the Income-tax Act which expressly excludes the operation of Section 12 of the Indian Limitation Act.
7. The above view is legally justified for another reason also Section 9(1) of the Central General Clauses Act states that in any Central Act or Regulation made after the commencement of this Act, 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 other period of time, to use the word "to". Similar is a provision in the Bihar and Orissa General Clauses Act Sectiton 11 of that Act lays down that in any Bihar and Orissa Act or Bihar Act 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 other period of time, to use the word "to" In Rule 72(2) of the Rules, the period of thirty days has to be taken from the date of the declaration of the result of the election. The use of the word "from" the date of the declaration of the result of the election, according to the provisions of the aforesaid two General Clauses Acts, has to be interpreted as indicating the exclusion of the date of the declaration of the result of the election in counting the period of "thirty days" Thus, the 10th of August 1962 has to be excluded in counting the period of limitation "within thirty days" for filing the election petition.
The same view has been taken in a recent Single Judge decision of this court, in Mahendra Singh v. Raj Kumar Sinha, CW JC No. 285 of 1965, dated 23-12-1965 (Pat) In that case, the programme of the election of Pota Gram Panchayat was published on the 1st of September, 1964 under Rule 17 of the Rules in which the date of nomination was fixed as the 10th of September 1964, and the date of polling as the 26th of October, 1964 Subsequently, on the 17th of February, 1965 the date of polling was changed to the 10th of March, 1965, on which date it was actually held. The entire election was challenged on the simple ground that the polling was not held within time. Rule 90 of the Rules provides that in case election of Panchayat is not held for some reason or the other within a period of six months from the date of filing of nomination papers, the election shall be held after calling for fresh nomination papers. The contention raised in that case was that the election having been held on the 10th of March, 1965, was held beyond six months from the 10th of September, 1964, when the nomination papers were filed, and, as such, the provision under Rule 90 was violated, as no fresh nominations were called for. This contention was based on the computation of the period of six months as provided in the above Rule 90. This period of six months had to be calculated from the date of the filing of the nomination papers. If the 10th of September, 1964 was to be included in counting the above period of six months, the last date for holding the election would be the 9th of March, 1965, and the election, having been held on the 10th of March, 1965, was said to be out of time; whereas if the 10th of September, 1964 was to be excluded in counting the above period of six months, the election held on the 10th of March, 1965 was within time. Mahapatra, J., applying the provision of Section 11 of the Bihar and Orissa General Clauses Act, held that the date from which the relevant period was to be calculated will be excluded from the computation, and, on that view, the election held on the 10th of March, 1965 was held to be valid. Thus, the expression, "within a certain period" has been interpreted to mean that the period is to be counted "excluding" that the date from which it starts.
8. The principle of Section 9 of the Central General Clauses Act was applied in a Bench decision of the Pepsu High Court, in Badri Nath Tirath Ram v. State of Pepsu, AIR 1957 Pepsu 14, to a period fixed under an order for payment of court fees. In that case, on the 15th of May, 1963, an order was passed allowing time for payment of court-fees within a month from that date. The question that arose for consideration was whether, in computing the time of one month, the 15th May, 1963 was or was not to be excluded. It was held that, upon the principle underlying Section 9 of the (Central) General Clauses Act, the date on which the order was made, that is, the 15th of May 1963, had to be excluded.
9. The election Tribunal, as already stated, dismissed the election petition on the ground of limitation, on the authority of a Bench decision of this court, in AIR 1959 Patna 450. In that case, an appeal under Section 116A of the Representation of the People Act, 1951 (Act 43 of 1951), was filed against an order, dated the 20th March, 1958, passed by the Election Tribunal Monghyr, by which the Tribunal had set aside the election of the two appellants of that case, who were respondents before the Tribunal Jai Prakash Singh, the respondent of that case, had filed an election petition praying that the election of the two candidates, who had been declared elected on the 13th of March, 1957 from Jhajha. Assembly Double-member Constituency in the last General election, be declared void. That election petition was allowed and the election of the two returned candidates was declared void. After the issue of a notification calling upon this Constituency to elect its members for the Bihar State Assembly, Bhagwat Murmu applied to the Chief Electoral Officer, Bihar, on the 22nd of January, 1957 for inclusion of his name to file electoral roll of the Constituency.
Section 28 (1) of the Representation of People Act lays down that "Any person whose name is not included in the electoral roll of a constituency may apply in the manner herein-after provided for the inclusion of his name in that roll." Sub-section (8) of that Section provided that the Chief Electoral Officer, or, as the case may be, the Electoral Registration Officer shall, if satisfied that the applicant is entitled to be registered in the electoral roll, direct his name to be included therein. Rule 86(8) of the Representation of the People (Preparation of Electoral Rolls) Rules 1956 lays down that the Chief Electoral Officer, or, as the case may be, the Electoral Registration Officer, shall immediately on receipt of such application, that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting. In pursuance of that rule, a notice inviting objections to Bhagwat Murmu's application was posted on the notice board of the Chief Electoral Officer from the 22nd of January, 1957 to the 28th of January, 1957. On the 29th of January, 1957, the decision of the Chief Electoral Officer was given allowing the application of Bhagwat Murmu, as no objection was filed, although one copy of the application together with notice inviting objections, was posted on his notice board for seven days (22nd January to 28th January), and directing the Electoral Registration Officer to include his name in the electoral roll for Jhajha Constituency. Accordingly, the nomination paper of Bhagwat Murmu was filed on the 29th of January, 1957. On the 1st of February, 1957, when scrutiny was held, an objection was raised by one Shri Birendra Prasad Singh, that, on the 29th of January, 1957, the name of Bhagwat Murmu was not on the electoral roll, and hence, he could not have been nominated. That objection was overruled by the Returning Officer on the ground that the candidate had sworn an affidavit on the 29th of January, 1957, to the effect that his name was allowed to be included in the electoral roll by the direction of the Chief Electoral Officer given on the 29th of January, 1957. The poll was held in due course on the 13th of March, 1957, and Bhagwat Murmu and Chandra Sekhar Prasad Singh, the two appellants, were declared elected. An election petition was, thereafter filed by Jai Prakash Singh as an elector in the constituency in question. One of the question raised before the Election Tribunal was that the direction of the Chief Electoral Officer to post Bhagwat Murmu's application on the notice board from the 22nd of January to the 88th of January, 1957 was in contravention of Rule 26 of the Representation of the People (Preparation of Electoral Rolls) Rules 1956, inasmuch as it fell short of the requisite period of seven days by one day. This contention was rejected by the Election Tribunal. In the High Court, the same question was raised in appeal.
It was urged on behalf of the respondent in that appeal that, upon a true interpretation of the aforesaid Rule 26(3), it should have been held that the date on which the application was filed by Bhagwat Murmu under Section 23 of the Representation of the People Act for inclusion of his name in the electoral roll should have been excluded in computing the period of seven days mentioned in the above Rule 26(3). Various cases were cited for and against the above submission; but their Lordships preferred to rely on the view taken by the Bombay High Court in the case of Commissioner of Income-tax v. Ekbal & Co., AIR 1945 Bom 316. The learned Judges in that case had to interpret the words "within such period" occurring in Sub-section (2) of Section 22 of the Income-tax Act. The view that the learned Judges took was that, when an act is to be done within a certain prescribed period, the day from which that period is to be counted should be included in computing the prescribed period. The case, however, has been distinguished in the above mentioned recent Bench decision of that court reported in (1966) 1 ITJ 31 (Bom). As pointed out by their Lordships, in that case, the court in that case was not considering a provision of statute prescribing limitation, but the question before it was whether the notice given by the Income-tax Officer to the assessee to furnish a return within 30 days was in proper compliance with the provision of Section 22(2) which required the notice to give the assessee a period of not less than 30 days to submit the return. The Court took the view that not even 30 clear days were allowed since the return was to be submitted within 30 days, and the notice, therefore, was not legal. The period which the court was considering was not the period prescribed by a statute, and neither Section 12 of the Limitation Act nor Section 9 of the General Clauses Act could be considered in computing that period.
10. In Harindar Singh v. Karnail Singh, AIR 1957 SC 271, their Lordships had to consider the meaning of the expression "not later than fourteen days", as provided in Rule 119 of the rules framed under the Representation of the People Act; and, in construing the meaning of the same, their Lordships held that, in computing the period "not later than fourteen days", the date from which the period is to start has to be excluded A reference to this case was made before their Lordships who decided the above Patna case, but they distinguished the same because of the expression "not later than fourteen days". Their Lordships took the view that under that expression a period of clear fourteen days was allowed and, therefore, the above Supreme Court decision had no application to the case before them where the expression was "within a certain period". But the attention of their Lordships does not seem to have been drawn to an important observation of their Lordships of the Supreme Court were it was pointed out that there is no distinction between the expression "within fourteen days" and not later than fourteen days". Their Lordships further pointed out that the words "not later than fourteen days" must he held to mean the same thing as "within a period of fourteen days." The decision of their Lordships of the Supreme Court in that case, therefore, covered the point raised in the above Patna case, and it also covers that point raised in the present application.
11. In the Single Judge decision of this Court, referred to above, the case reported in AIR 1959 Pat 450 was distinguished on the ground that the Court in that case considered how to calculate "within a period of seven days from the date of such posting": and, with reference to the facts and circumstances of that case, the learned Judges preferred to include the "date of posting" in the computation of the period of seven days. But while doing so, they noticed without any demur, rather with approval, the observations of Lord Eshar, M. R. in the case in Re: North: Ex parte, Hasluck, (1895) 2 QB 264, where the Lord said that, notwithstanding the elaborate array of authorities which had been cited before them they seemed on being sifted, to contain the binding rule to the effect that time must not be computed according to any hard and last rule. Lord Justice Rigby in that case observed that whether the day on which an act is done to be included or excluded must depend on whether it is to the benefit or disadvantage to the person primarily interested. That is, however, another set of reasoning which then Lordships of this court gave for including the 22nd of January, 1957 in computing the period of seven days. But so far as the (sic) of the expression "within a certain period" is concerned their Lordships made it perfectly clear, as a rule of law for general application, that the date from which that period has to he counted must be included. To that extent, in my opinion, the decision is not correct. It is, therefore, overruled.
12. For the reasons given above, it is manifest that the election petition filed by the petitioner was within time and the Election Tribunal committed an error of law in rejecting the petition as having been filed beyond time. Its order therefore, has to be set aside. Since, however, the Election Tribunal did not dispose of the election petition on merits, the case has to go back to it for its disposal on merits.
13. The result, therefore, is that the application is allowed, the order of the Election Tribunal is set aside and the election petition is sent back to the Tribunal for its disposal on merits in accordance with law. In the circumstances of the case, there will be no order as to costs.
U.N. Sinha, J.
14. I agree to the order proposed. I would like to add that the case of AIR 1959 Pat 450 is quite distinguishable and the Tribunal ought not to have relied on that decision in the instant case. In Chandra Shekar's case, AIR 1959 Pat 450 I had dealt with the meaning of the expression "within a period of seven days from the date of such posting" occurring in Rule 26(3) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, which provision was to the following effect:
"The Chief Electoral Officer, or, as the case may be, the Electoral Registration Officer, shall immediately on receipt of such application, direct that one copy thereof be posted in some conspicuous place in his office together with a notice inviting objections to such application within a period of seven days from the date of such posting"
In the context of Section 23 of Act XLIII of 1950 and Rule 26(3) quoted above it was held that the Sub-rule did not provide for seven clear days filing objections. Throughout the judgment very precise words have been used to indicate that the decision given therein was on the meaning of the words used in the Sub-rule in question in the setting in which they occurred. After referring to the case of AIR 1945 Bom 316, I said:
"I am inclined to hold, for the purpose of interpreting Rule 26 in this case, that the interpretation of their Lordships of the Bombay High Court in the case, AIR, 1945 Bom 316 is preferable "
In another part of the judgment I had said thus:
"The period of seven days mentioned in Rule 26 is for the purpose of waiting for objections, if any, before the officer concerned can pass his direction. We must also take into account that the starling point of the period mentioned in Rule 26(3) is not within control of the person applying for inclusion of his name. It is the officer concerned who has to direct the posting of the copy of the application, "immediately on receipt of such application'. It is the officer concerned who has to invite objections within a period of seven days to be fixed by him. Both these matters depend on the subjective conception of the officer concerned.
This should also be taken into consideration in coming to the conclusion whether the period of seven days would be the larger period of seven clear days or the smaller period of seven days inclusive of the day on which the application is posted inviting objections to such an application. It is, therefore, just and equitable that the day on which a copy of the notice is posted calling for objections should also be included in the period of seven days"
In Chandra Shekar's case, AIR 1959 Pat 450 I had distinguished the decision of the Supreme Court, in the case of AIR 1957 SC 271, and in my opinion, it was rightly distinguished. In Harinder Singh's case, AIR 1957 SC 271 the Supreme Court had referred to Section 81(1) of the Representation of the People Act, 1951 (Act No. XLIII of 1951), under which an election petition may be presented "within such time as may be prescribed". Rule 119 framed under the Act had prescribed the time within which election petitions had to be presented. In that context, their Lordships had equated the words "not later than fourteen days", mentioned in Rule 119, with the words within a period of fourteen days". Ghandra Shekar's case, AIR 1969 Pat 450 indicated that Section 23 of the Representation of the People Act, 1950 (Act XLIII of 1950) was merely concerned with the application for inclusion of a name not included in the electoral roll of a constitueney. Section 28(8) has laid down that the Chief Electoral Officer, or, as the case may be, the Electoral Registration Officer shall, if satisfied that the applicant was entitled to be registered in the electoral roll, direct his name to be included therein. Rule 26 has only made provision for some thing which can take place in the process of the officer concerned satisfying himself that a particular name should be entered. Even if no objections are filed the officer concerned is not compelled to enter a name which has been omitted. In Chandra Shekar s case, AIR 1959 Pat 450 it was stated that the entire procedure indicated by Section 28 of Act XLIII of 1950, read with Rule 26 of the Rules framed under that Act, had to be completed within ten days, and, therefore, seven days including the date of the posting of the notice by the officer concerned was taken to be the meaning of 'within a period of seven days from the date of such posting". In other words, the expression, "from the date of such posting" was taken to mean "from the posting", that is to say, an event.
Norton On Deeds (2nd Edition) states at page 180:-
"In English v. Cliff, (1914) 2 Ch 376 at p. 383:83 LJ Ch. 850, Warrington, J., said: There is no absolute rule with regard to the inclusion or exclusion of the day in which a particular event takes place, and I have to determine the meaning of this particular deed".
At page 182, the following is mentioned:
"In computing a period of lime from the doing of an act or the happening of an event, the day on which the act is done or the event happens is prima facie to be included, but the context or other admissible evidence may show that it is to be excluded, and more especially if a different method of computation would cause a forfeiture or loss of status or liberty.
The rule was treated as inflexible until towards the end of eighteenth century And since those cases "no general rule exists for the computation of time either under the Bankruptcy Act or any other statute, or indeed where time is mentioned in a contract, and the rational mode of computation is to have regard in each case to the purpose for which the computation is to be made."
In the Dictionary of English Law edited by Earl Jowitt (1959 edition), it is mentioned that "From" ordinarily excludes the day from which the time is to be reckoned but is construed inclusively of that day if the context requires it. Reference to (1914) 2 Ch. 376 has been made. Therefore, I think, Chandra Shekar's case, AIR 1959 Pat 450 was rightly decided on its own facts. Even if limitation Act, 1908 was applicable, Section 12(1) was not attracted to the objections called for by Rule 26(3) and that is why no reliance was placed on this Section. But, that interpretation cannot he applied to Rule 72(2) of the Bihar Panchayat Elections Rules 1959. It has laid down a terminus a quo and a terminus ad cuem for filing election petition and it is really a provision of limitation, because if no election petition is filed, the election must stand. In the absence of any indication that thirty clear days were not intended, the day on which the poll had been held should have been excluded by the Election Tribunal in the instant case.
Narasimham, C.J.
15. I am in entire agreement with the views expressed by my learned brother Choudhary, J. Both on the principle of Section 12(1) of the Limitation Act and Section 11 of the Bihar and Orissa General Clauses Act, the words "within thirty days from the date of the declaration of the result of the election" in Rule 72(2) of the Bihar Panchayat Elections Rules, 1959, should be so construed as to exclude the dale of declaration of the result while computing the period of thirty days. The learned Election Tribunal was, therefore, in error in including that date also and holding that the election petition of the petitioner was barred by time.
16. This Full Bench was constituted to examine the correctness of a Division Bench decision of this court, namely, AIR 1959 Pat 450. Hence such an examination cannot be avoided even though my learned brother Sinha, J. has distinguished that case from the present one. In that case the statutory rule for interpretation was Rule 26(3) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, which has now been replaced by the Registration of Electors Rules, 1960. That rule authorised the Chief Electoral Officer to publish an application for inclusion of names in the electoral roll in a conspicuous place, together with a notice "inviting objections to such application within a period of seven days from the date of such posting". The learned Judges of the Bench held that the period of seven days should include the date of the posting of the application also. In coming to this conclusion they had, to some extent, relied on the fact that the provisions of the General Clauses Act, 1897, were not expressly made applicable to the construction of the said rules, though those provisions were expressly made applicable to the construction of the Representation of the People (Conduct of elections and Election Petitions) Rules. 1956 (see Rule 2(6) of those Rules). This reasoning, however, speaking with great respect, does not appear to be correct.
It is well settled by innumerable decisions that those provisions of the General Clauses Act, 1897 (including the corresponding provisions of the General Clauses Acts of the various Slates) dealing with the principles of statutory construction, though in terms, applicable to the construction of the Acts of the Legislature only, are also applicable for constraction of statutory rules, notifications and even judicial orders and decrees. Thus in National Sewing Thread Co. Ltd. v. James Chadwich and Brothers, Ltd. AIR 1953 SC 357 their Lordships applied the principle of Section 8 of the General Clauses Act in construing the provisions of the Letters Patents of the High Courts. To quote their Lordships at page 360:
"These charters were granted under statutory powers and are subject to the legislative power of the Indian legislature. Assuming however but not conceding, that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any reason apply, we see no justification for holding that the principles of construction enunciated in those provisions have no application for construing these charters".
In Sashi Kumar Banerjee v. Mrs D. J. Hill, AIR 1951 Cal 316 at p. 318 it was held, relying on Sankaran Unni v. Raman, AIR 1925 Mad 743, that the rules contained in the General Clauses Act "being an embodiment of the principle of equity", the expression "month" occurring in a decree should be construed as a "calendar month" In Mahadeo Ganapati v. Nabha Vishwanath, AIR 1929 Nag 96 the principles of Section 10 of the General Clauses Act were applied to statutes made prior to 1897 See Puran Chand v. Mohammed Din, AIR 1935 Lah 291, where also the principles of Section 9 of the General Clauses Act were applied for construction of decrees. In Srinivasa Silk Mills, Seshadripuram v. State of Mysore. AIR 1962 Mys 117 the principles of Section 9 of the General Clauses Act were applied in construing even a statutory notification. In Ramchandra v. Lakshman, ILR 1938 Bom 734: (AIR 1935 Bom 447) the principle of Section 9 was applied in construing the judicial order of a court. The express mention in some of the statutory rules that the provisions of the General Clauses Act apply for the construction of those rules (see Rule 2(4) of the Conduct of Election Rules 1961) seems, therefore to have been made mainly by way of abundant caution.
In my opinion, therefore, the learned Judges should have applied the principle of Section 11 of the Bihar and Orissa General Clauses Act (Section 9 of the General Clauses Act, 1897) in holding that the period of seven days may be computed by excluding the date of such posting. Moreover, as pointed out by my learned brother Choudhary, J., the reasons for distinguishing AIR 1957 SC 271 are not convincing. Their Lordships had definitely held there that the words "within fourteen days" and "not later than fourteen days" convey the same idea, and any distinction sought to be made between these two expressions is without substance. It is true that their Lordships relied partly on the provisions of Section 81(1) of the Representation of the. People Act, but this does not detract from the weight to be attached to their observations about the absence of any distinction between the two expressions.
17. In applying the principles of English law on the subject, a rule of caution is required. In the Interpretation Act there is no provision corresponding to Section 9 of the General Clauses Act, 1897. Hence English decisions cannot be strictly applied in India when construing the relevant provisions either of the statutes or statutory rules or notifications issued under the statutes, for which resort must be made to the provisions of the General Clauses Acts. But even in England the general rule, as pointed out in Halsbury's Laws of England, 3rd edition, Volume 37, at page 92, is as follows:
"Expressions such as 'from such a day' or 'until such a day' are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner, is to exclude the first day and to include the last day."
The last sentence quoted above thus brings out clearly the principle of Section 9 of the General Clauses Act. It is true that the context may show a different intention, as pointed out at page 95 of Halsbury (ibid), "in many statutes, statutory rules and bye-laws the intention to exclude both days and to give the person affected a clear interval of time between the two is put beyond all doubt by the insertion of words such as 'clear days', or 'not less than' so many days, or so many days 'at least'." It is also pointed out at page 95 of Halsbury (ibid) that "the general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him". The aforesaid observations will apply with full force in construing Rule 26(3) of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956. Objections were invited from persons within a period of seven days from the date of such posting. The general rule mentioned above would, therefore, require that the date of posting must be excluded. Thus it appears to me that, both on the principle of Section 9 of the General Clauses Act and the principles of English law dealing with the subject as mentioned in Halsbury the aforesaid Bench decision of this Court cannot be supported.
The decision in (1914) 2 Ch 376 has also been noticed in Halsbury at p. 93, Note (c). But that deals with the construction of a private document, namely, settlement, and cannot be used for construing the provisions of statutory rules I would, therefore, in agreement with my learned brother Choudhary, J., hold that the decision in AIR 1959 Pat 450 is, speaking with great respect, not correct, to the extent indicated in his judgment.
BY THE COURT:
18. Held unanimously that the order of the Electoral Tribunal should be set aside and the election petition should be sent back to the tribunal for disposal on merits in accordance with law There will be no order for costs.
19. Further held by a majority that the Division Bench decision in AIR 1959 Pat 450 regarding the interpretation of the expression "within a certain period should be overruled and that in construing the said expression the date from which that period is to be counted should be excluded.