Madhya Pradesh High Court
Rasal Singh vs Dr. Govind Singh on 8 May, 2019
1 E.P.No. 20/2019
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
JUSTICE ANAND PATHAK
ELECTION PETITION NO. 20 OF 2019
Rasal Singh
Versus
Dr. Govind Singh
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Shri Jitendra Sharma, learned counsel for the petitioner.
Shri S.K.Shrivastava, learned counsel for the respondent.
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Whether approved for reporting:- Yes
Law Laid Down:-
(i) Section 9 and Section 10 of the General Clauses Act, 1897 are
applicable in the election petitions under Representation of People Act,
1951;
(ii) Limitation of 45 days as provided in Section 81 of the
Representation of People Act, 1951 is to reckon from the next day of
"Date of election" of candidate;
(iii) Word "From" explained.
ORDER
(08/05/2019) Heard on I.A.No. 1361/2019, an application moved on behalf of respondent under Section 81 read with Section 86 of the Representation of People Act, 1951 for dismissal of instant election petition.
2. Precisely stated facts of the case are that, petitioner by way of filing this petition under Section 80 read with Section 100 of the Representation of People Act, 1951 (for short "Act of 1951") challenged the election of respondent, who has been declared as returned candidate from 11 Lahar, Assembly Constituency, Madhya Pradesh, in the assembly election held on 28th November, 2018 under Section 100 (i)
(b), (d) of the Act of 1951.
2 E.P.No. 20/20193. Returning Officer of the Assembly declared the Respondent as elected on 11/12/2018, vide Annexure P/4.
4. Petitioner is crestfallen because of declaration of respondent as elected candidate and therefore, preferred instant election petition taking exception of such election on various grounds as contained in the election petition.
5. After causing appearance, respondent preferred the instant application for dismissal of petition as referred above mainly on the ground that election result was declared under Section 66 of the Act of 1951 on 11/12/2018; whereas, as per the office record, instant election petition has been filed on 25/1/2019. Since as per Section 81(1) of the Act of 1951, election petition on any of the grounds specified in sub- section 1 of Section 100 and Section 101 of the Act of 1951 is required to be filed by any candidate or any elector within 45 days "From" the date of election of the returned candidate, therefore, as per the submissions of counsel appearing for the respondent, the election petition has not been filed within prescribed period of 45 days as per the Act of 1951 and therefore, liable to be dismissed accordingly.
6. While elaborating the arguments, it is submitted that Section 86(1) of the Act of 1951 mandates the High Courts to dismiss an election petition which does not comply with the provisions of Section 81 or 82 or 117 of the Act of 1951. Section 81 of the Act of 1951 prescribes presentation of election petition within 45 days "From" the date of election of the returned candidate. The date of election of candidate is being prescribed in Section 67(A) of the Act of 1951 which is the date when the candidate is declared by the returning Officer as elected under the provisions of Section 53 or Section 66 of the Act of 1951, as the case may be. In the present case, while relying upon the decision of Hon'ble Apex Court in the case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra, (1974) 2 SCC 133, it is submitted that the provisions of Limitation Act are not applicable. Once the provisions of Limitation Act as specified under Section 5 do not govern filing of election petition or their trial, no extension can be given except of limitation prescribed by 3 E.P.No. 20/2019 the Act of 1951. In the present case, admittedly, the petition is preferred on 46th day because date of declaration of result i.e. 11/12/2018, which is ought to be included and is to be counted as first day. Since limitation starts from 11/12/2018 and petition is preferred on 25/1/2019, therefore, it is apparently barred by limitation.
7. Learned counsel for the respondent relied upon the decisions of Hon'ble Apex Court in the case of Lachhman Das Arora Vs. Ganeshi Lal and Ors., (1999) 8 SCC 532,Youaraj Rai and Ors. Vs. Chander Bahadur Karki, (2007) 1 SCC 770, Ajay Gupta Vs. Raju alias Rajendra Singh Yadav, (2016) 14 SCC 314 as well as decisions of this Court in the matter of Abhimanyu Rath Vs. Virendra Pandey, AIR 1978 MP 112, Anokhilal and Anr. Vs. Sajjan Singh and Ors., 2009 (II) MPJR 126, of Patna High Court in the case of Anil Kumar Jha Vs. State of Bihar, AIR 2011 Patna 1 and that of Jharkhand High Court in the matter of AIR 2011 Jhark 147 to bring home the analogy that law of limitation can only be applied with all its vigours when the statute prescribes and in absence of any prescription, this Court cannot extend the period of limitation on the basis of equitable grounds specified in the matter of filing of election petition. The Act of 1951 insofar as it relates to presentation of petition and trial of election disputes, is a complete code and a special law. The scheme of the special law shows that the provisions of Sections 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of 45 days, Section 86(1) of the Act of 1951, which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or 82 or 117, is straightaway attracted and therefore, the limitation cannot be extended. Learned counsel for the respondent also relied upon the decision of coordinate Bench of this Court in the case of Mumbi Bai Vs. State of M.P., 2012 (2) MPLJ 456 to submit that delay cannot be condoned. He prayed for dismissal of the election petition on the ground that election petition is barred by limitation.
8. Per contra, learned counsel for the petitioner filed the reply to said 4 E.P.No. 20/2019 application and contested the case with equal vehemence. It is the submission of learned counsel for the petitioner that instant election petition has been filed on 25/1/2019; whereas, the result was declared on 11/12/2018, therefore, the date on which the result has been declared would not be treated as the date for commencement of the limitation for filing election petition and limitation starts from next date i.e. 12/12/2018. Election petition was filed on 25/1/2019, therefore, as per the computation of limitation, election petition is being filed on 45 th day, therefore, is within limitation. On 25/1/2019 i.e. 45 th day he reached the Registry of Principal Seat of Madhya Pradesh High Court at Jabalpur at 10.30 am and as certain defects were pointed out, the same were cured and thereafter the election petition had been filed and since it was the last day for filing election petition (more or less results of all constituencies of M.P. Vidhan Sabha were declared on same date i.e. 11/12/2018, therefore, long queue was apparently existed and therefore, election petition was filed at 4.45 pm). He relied upon the decision of Hon'ble Apex Court in the matter of Simhadri Satya Narayana Rao Vs. M.Budda Prasad and Ors., 1994 Supp (1) SCC 449 and Tarun Prasad Chatterjee Vs. Dinanath Sharma, (2000) 8 SCC 649 and submits that election petition is within limitation. While relying upon Section 9 and 10 of General Clauses Act,1897 (for short "Act of 1897"), learned counsel for the petitioner submits that election petition cannot be dismissed on the point of limitation. Word "From" is required to be interpreted in a manner; wherein, date of declaration of result shall be excluded. He prayed for rejection of the application and submits that election petition be proceeded as per law for hearing on admission.
9. Heard learned counsel for the parties at length and perused the documents brought on record by respective parties.
10. Elections are the festivals of democracy and being celebrated with full vigour. Election petition is the aftermath of the festival with wider ramifications. Process and mechanism of election and disputes arising out of it are provided in the statute, "The Representation of the People Act, 1951" and Rules and Regulations made in pursuance thereof.
5 E.P.No. 20/201911. Section 86 (1) of the Act of 1951 is reproduced hereinbelow for ready reference:-
"86.Trial of election petitions.-(1) 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 of 1951.
Explanation.- An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section 98. (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx (6) xxx xxx xxx (7) xxx xxx xxx"
12. Perusal of above mentioned provision,makes it clear that High Court is having no option but to dismiss the election petition which does not comply with Section 81 of the Act of 1951. Section 81 of the Act of 1951 is reproduced hereinbelow for ready reference:-
"81. Presentation of petitions.- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in 1[sub-section (1)] of section 100 and section 101 to the 2[High Court] by any candidate at such election or any elector 3[within forty- five 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 dates of their election are different, the later of those two dates]. Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
[(3) xxx xxx xxx]"
13. Perusal of above provision makes it clear that 45 days period is provided to any disgruntled candidate / elector from the date of election of the returned candidate to file election petition.
14. Date of election of candidate has been defined under Section 67(A) of the Act of 1951. Section 67 (A) of the Act of 1951 is reproduced hereinbelow for ready reference.
"[67A. Date of election of candidate.--For the purposes of this Act, the date on which candidate is declared by the returning officer under the provisions of section 53, 2[***], 3[***] or section 66, to be elected to a House of 6 E.P.No. 20/2019 Parliament or of the Legislature of a State 4[***] shall be the date of election of that candidate.]"
15. From the scheme of the Act of 1951 and the provisions referred above, it is beyond doubt that election petition shall have to be filed within 45 days "From" the date of the election of the returned candidate and therefore, word "From" assumes much significance in the present context. Plain reading of the provisions as referred above gives an impression that date of declaration of result is to be included or in other words counting starts from the first date to begin with for the purpose of counting days of limitation.
16. The decisions in the early period were not quite uniform but ever since 1808 when Lester vs. Garland, (1808) 33 ER 748 was decided, the rule is well established that where an act is to be done within a specified time from a certain date, the day of that date is to be excluded. {See: Stewart Vs. Chapman, (1951) 2 ALL ER 613, Hari Das Gupta Vs. State of West Bengal, AIR 1972 SC 1293, Pritam Kaur Vs. S. Russel and Sons., (1973) 1 ALL ER 617 (CA), Saketh India Limited Vs. India Securities Ltd., JT 1999 (2) SC 67}.
17. Similarly when an act has to be done within so many days after a certain event, the day of such event is not to be counted. {See:-Jitendra Tyagi Vs. Delhi Administration, AIR 1990 SC 487}.
18. The Principle that the law in general neglects fractions of a day has given rise to two general principles for calculation of time. When a statute or a rule is concerned in fixing a terminus a quo of a new state of things which is to continue for an indefinite period (i.e. there is no terminus as quem), the new state of things comes into existence at midnight of the day preceding the day at which or on which or from which or from and after which the new state of things is directed to begin. As an illustration of this general rule one may refer to section 5(3) of the General Clauses Act, which relates to the coming into operation of a Central Act or Regulation. The other principle is that when a period is delimited by a statute or rule which has both a beginning and an end, the word "from" excludes the opening day and any words fixing the closing day include that day. In other words when a period is delimited marked 7 E.P.No. 20/2019 by a terminus a quo and terminus ad quem the former is to be excluded and the latter to be included in the reckoning. This second principle has been given statutory recognition in Section 9 of the Act of 1897. (See: Commentary contained in book "Principles of Statutory Interpretation" 14th Edition by Justice G.P.Singh and revised by Justice A.K.Patnaik)
19. Hon'ble Apex Court in the case of (H.H.Raja) Harinder Singh Vs. S.Karnail Singh and Ors., AIR 1957 SC 271 has interpreted Section 10 of General Clauses Act, 1897 vis-a-vis provisions of Act of 1951 vis-a-vis election disputes. Later on in the case of Hukumdev Narain Yadav (supra), it has been held that Section 10 of the Act of 1897 will apply to election petitions to be filed under the Act of 1951. Thereafter, in the case of Manohar Joshi Vs. Nitin Bhaurao Patil and Anr., AIR 1996 SC 796, the applicability of Section 10 of Act of 1897 vis-a-vis election petition was reiterated by the Hon'ble Apex Court. Thereafter, came Tarun Prasad Chatterjee (supra), in which Hon'ble Apex Court in categorical terms held that for presentation of petitions under Act of 1951, same attracts Section 9 of Act of 1897 and while interpreting the Section 81, 67(A) of the Act of 1951 vis-a-vis Section 9 of the Act of 1897 as well as interpreting the impact of word "From" it has been held that the date of declaration of result is to be excluded. While relying upon Section 9 of the Act, Halsbury's Laws of England, 37th Edition, Volume 3 and other judgments rendered by Hon'ble Apex Court held that Section 9 of the Act of 1897 gives statutory recognition to the well established principle applicable to the construction of statues that ordinarily in computing the period of time prescribed, the rule observed is to exclude the first and include the last day.
20. To augment the discussion and to lead it to conclusion, it is apposite to reproduce para 12 to 14 of the aforesaid decision:-
"12. Section 9 says that in any Central Act or Regulation made after the commencement of the General Clause 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 8 E.P.No. 20/2019 any period of time, to use the word "to". The principle is that when a period is delimited by statute 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 excluded 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. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from the 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless the 1st January is excluded from the period of computation.
13.It was argued that the language used in Section 81(1) that "within forty-five days from, but not earlier than the date of election of the returned candidate"
expresses a different intention and Section 9 of the General Clauses Act has no application. We do not find any force in this contention. In order to apply Section 9, the first condition to be fulfilled is whether a prescribed period is fixed "from" a particular point. When the period is marked by terminus a quo and terminus ad quem, the canon of interpretation envisaged and 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.
14. By Section 81(1), the legislation fixes the period for filing election petition and at the same time states that no elector or candidate shall file election petition before the date of election of the returned candidate and if there are more than one returned candidates at the election and dates of their election are different, the later of those two dates. The learned senior Counsel for the appellant contended that if the date of election of the candidate is excluded from computing the period of limitation of 45 days, the period of limitation would be extended by one day and, therefore, it is against the mandate of the statute. It was also contended that the filing of the application on the date of election of the returned candidate cannot be considered as a valid presentation of petition as envisaged in the section. We do not think that any such interpretation is possible by a conjoint reading of Section 81(1) of the R.P. Act, 1951 and Section 9 of the General Clauses Act, 1897. The first day for the period of limitation is required to be excluded for the convenience of the parties and if the 9 E.P.No. 20/2019 declaration of the result is delayed or is done late in the night, the candidate or elector would hardly get any time for presentation of the election petition. Law comes to the rescue of such parties to give full forty-five days period for filing the election petition. Nevertheless, any petition presented on the date of election of the returned candidate would be certainly within the period of limitation as it is a presentation on the date of election of the returned candidate."
21. In the present case, date of declaration of result is 11/12/2018 and the date of presentation of election petition is 25/1/2019. If the date of declaration of result i.e. 11/12/2018 is excluded and the limitation is reckoned from next date i.e. 12/12/2018 then 25 th January, 2019 falls on 45th day. Therefore, election petition is filed within limitation. Therefore, in the considered opinion of this Court, election petition filed by the petitioner is within limitation and is not barred by time.
22. Although, it is an admitted postiion of law that Limitation Act has no application in election petitions under Act of 1951, but here the controversy is to be seen from different perspective, i.e. with the aid of Section 9 of the Act of 1897. Therefore, ground raised by the respondent regarding Limitation act has no relevance.
23. Resultantly, I.A.No. 1361/2019 stands rejected and objection raised by the respondent regarding maintainability of election petition on the ground of limitation is overruled.
24. Respondent to file reply.
25. List the matter in the week commencing 24th June, 2019 for reply and further orders.
(Anand Pathak) Judge jps/-
JAI PRAKASH SOLANKI 2019.05.08 18:56:24 +05'30'