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P. Naranappa Vs. A. Shanker Alva and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberElection Petn. No. 8 of 1972
Judge
Reported inAIR1973Kant78; AIR1973Mys78; (1972)2MysLJ284
ActsRepresentation of the People Act, 1951 - Sections 81 and 85; General Clauses Act, 1897 - Sections 10
AppellantP. Naranappa
RespondentA. Shanker Alva and ors.
Appellant AdvocateU.L. Narayana Rao, Adv.
Respondent AdvocateB.K. Ramachandra Rao, ;M. Gopalakrishna Setty and ;K. Shivashankar Bhat, Advs.
Disposition Petition dismissed
Excerpt:
.....by paragraph 2 of the notification, provision no doubt has been made for the presentation of election petitions under section 81 of the act the use of the word 'however' would merely connote that if and when election petitions are presented they would be received during the summer vacation. ' if paragraph 2 of the notification is read in the light of the above meaning of the word 'however' it would be clear that the said clause clearly engrafts an exception to what has been provided for in the preceding paragraph of the notification. this submission is clearly supported by an enunciation made by the supreme court in k. there is nothing clear and cogent on the present record to show the practice of the tribunal and whether the presiding officer had authorised his office staff to..........clauses act. the fact that by such a notification, a provision had been made for the receipt of election petitions would merely amount to a 'special facility' provided for entertaining petitions, and whether or not such petition could be presented during such vacation is a matter left to the option of a petitioner. in other words, it is not obligatory to present election petitions during such vacation by wav of compliance with the requirements of section 81 of the act. 7. on behalf of the first respondent, it is contended that the high court was not completely closed for business during the summer vacation. even if such was the intendment of the notification relied on on behalf of the petitioner, the very terms of such notification make an exception with regard to criminal matters and.....
Judgment:
ORDER

B. Venkataswami, J.

1. This petition, under Section 81 of the Representation of the People Act, 1950. (Act 43 of 1950), hereinafter referred to as the Act. has been presented by an elector of 132 Puttur Assembly Constituency of Sough Kanara District. He has challenged the election of the first respondent who is the returned candidate, on the ground that corrupt practices have been committed and pursuant to the provisions of Section 100(1)(b)(d)(ii) (iii) & (iv) of the Act Respondents 2 to 5 are all candidates, who had unsuccessfully contested the election. The first respondent, A. Shankar Alva, is the successful candidate. On his behalf, Sri B. K. Ramachandra Rao and Sri M. Gopalakrishna Shetty, learned Counsel, have entered appearance. On behalf of the second respondent, Sri K, Shivashankar Bhat. learned Counsel, has filed power, Respondents 3 to 5 are unrepresented and therefore, treated ex parte.

2. It is unnecessary for the disposal of this petition to set out the details regarding the corrupt practices alleged to have been indulged in by the first respondent or his election agents. The relief sought for in the petition is that the election of the first respondent for Puttur Assembly Constituency No. 132 should be held to be illegal and void and the election of the second respondent, who is next highest to the successful candidate in the matter of votes secured, be declared elected.

3. According to the petitioner, the results of the election were declared in the early hours of the morning on 12-3-1972. It may here be mentioned that according to the first respondent, such results were declared on 11-3-1972 itself. This dispute regarding the date of election is of no materiality, in the context of the issue arising in the case relative to delay in preferring the petition and the non-compliance with the requirement in that behalf in Section 81 of the Act

4. The present petition has been filed on 28-4-1972. Even if the date of declaration of the results of the election is assumed to be 12-3-1972, as alleged on behalf of the petitioner, the petition prima facie does not comply with the provisions of Section 81 of the Act, which clearly enjoins that an election petition shall be presented within 45 days from the date of election of the returned candidates. What constitutes the date of election is set out in Section 67A of the Act, according to which, it is the date on which a candidate is declared by the Returning Officer under the provisions of Section 53 or Section 66 to be elected to a House of Parliament or of the Legislature of a State, Presumably with a view to get over this difficulty the petitioner has filed an application I, A. No. 1, under Section 5 of the Indian Limitation Act read with Section 151, Civil P. C. praying for the condonation of delay of two days in filing the Election Petition. In the body of the affidavit filed in support of such application, the petitioner has inter alia contended that there has been no delay in the presentation of the petition and in any event, there was sufficient cause for such delay. This petition is opposed on behalf of the first respondent, the returned candidate, one o the grounds alleged in the counter-affidavit being that Section 5 of the Limitation Act would not at all be applicable to an election petition. The allegations in the Election Petition relating to corrupt practices, however, have not been traversed. Hence the matter was taken up for consideration on the question whether the petitioner would be entitled to the relief of condonation of delay concerned in the presentation of the petition,

5. In the course of the arguments on I. A. No. 1 on behalf of the petitioner Sri U. L. Narayana Rao, the learned Advocate did not press the question of condonation of delay under Section 5 of the Limitation Act on the basis of the allegations contained in the affidavit filed along with I. A. No. 1. What he, however, contended was that there has been no delay in view of the several facts and circumstances elaborated upon in the course of the arguments, but not set out in the affidavit in question. In these circumstances. I am of opinion, that whether or not there has been delay in the presentation of the petition, in compliance with the provisions of Section 81 of the Act, will have to be considered as a preliminary issue arising from the main petition itself. I, therefore, propose to deal with the main petition Itself treating the above question as a preliminary issue.

6. The contention urged on behalf of the petitioner in support of the stand that there has been no delay in the presentation of the petition, by his learned Advocate. Sri U. L, Narayana Rao may be stated thus:-- By the Notification issued by the Chief Justice of the High Court of Mysore, in exercise of his power under Section 23 (2) of the Mysore High Court Act. 1884 the High Court had recessed for summer vacation from 17-4-1972 to 21-5-1972.

The petition, although, filed on 28-4-1972, could very well have been filed on 22-5-1972, the date on which the High Court resumed work after such summer recess, by virtue of the provisions of Section 10 of the General Clauses Act. The fact that by such a Notification, a provision had been made for the receipt of election petitions would merely amount to a 'special facility' provided for entertaining petitions, and whether or not such petition could be presented during such vacation is a matter left to the option of a petitioner. In other words, it is not obligatory to present election petitions during such vacation by wav of compliance with the requirements of Section 81 of the Act.

7. On behalf of the first respondent, it is contended that the High Court was not completely closed for business during the summer vacation. Even if such was the intendment of the Notification relied on on behalf of the petitioner, the very terms of such Notification make an exception with regard to criminal matters and election petitions, among other things. It is also contended that the proceedings relative to election petition ere not proceedings of civil nature in regard to which alone that the Notification in question had made provision for, suspension of the work of the Court, subject to the above exceptions. On the question whether or not Section 10 of the General Clauses Act would be applicable to proceedings of the present nature, it is submitted that the said provisions would be applicable only if an act or a proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period and it such Court or office was closed on that day or the last day of the prescribed period. In the present case, the High Court was not closed for business relative to election petitions, even on the very terms of the Notification relied on by the petitioner.

8. Before proceeding to consider the above contentions, it is necessary to set out the portion of the Notification relevant thereto. It reads thus:--

'....H. C. B. B. No. 1 of 1972 dated 30th day of March 1972 Summer Vacation of 1972.

(1) It Is hereby notified that the High Court of Mysore will be closed for the Summer Vacation. 1972 from Monday the 17th April 1972 to Sunday the 21st May 1972 (both days inclusive). No appeal or Application of Civil Nature will be received during the Vacation except in cases where it is sought urgently to obtain an Order of Injunction or attachment or Stay of Proceedings etc.

(2) Election Petitions presented to the High Court under Section 81 of the Representation of the People Act, 1951, will however be received during the Vacation.

(3) Criminal Appeals. Criminal Revision Petitions and urgent Criminal Petitions will be received during the Vacation. Only urgent matters will be disposed of by the Vacation Benches.

(4) The Office of the High Court will be kept open from 10-30 a. m. to 2-30 p. m, during the Summer Vacation, except on General Holidays and Saturdays, Papers will be received from 11 a. m. to 1 p. m. on the days on which the office is open.

(5) The Vacation Benches mentioned hereunder will sit in Court Hall No. 1 pn the days noted below at 11 a. m. during the Vacation and if necessary on such other working day or days, as may be previously notified to hear urgent matters. All matters of the nature mentioned above filed up to, and inclusive of, the day previous to the sitting day, will be posted for hearing except those filed on the sitting day unless by special orders of the Vacation Benches.........'

(The rest of the Notification is not set out as unnecessary. The numbering of paragraphs is mine)

9. On behalf of the petitioner, stress was laid on the words 'will be closed' and 'however' occurring in paragraphs 1 and 2 of the above Notification. The argument is that there is no doubt the High Court was closed for Summer Vacation from 17-4-72 to 21-5-1972. If the Notification is so understood, it would be clear that the provisions of Section 10 of the General Clauses Act would be clearly applicable, thus enabling the petitioner to perform the act of presentation of the petition on 22-5-1972. By paragraph 2 of the Notification, provision no doubt has been made for the presentation of Election Petitions under Section 81 of the Act The use of the word 'however' would merely connote that if and when Election Petitions are presented they would be received during the Summer Vacation. In this situation, it would be clear that it was not obligatory on the part of the petitioner to present an Election Petition during such Vacation.

10. I am not persuaded to accept this construction placed on the Notification on behalf of the petitioner. The words 'will be closed' will have to be read in the context of the words following in paragraph 1. namely 'for the Summer Vacation 1972'. If so read, it seems to be plain that the closure of the Court has clear relevance to the word 'Vacation'. One of the meanings of the word 'Vacation', as could be seen from the Concise Oxford Dictionary, is 'fixed period of cessation from work, especially law-courts and Universities'. It follows, therefore from the said meaning.

that the clear effect of the Notification is to suspend the work during the period specified therein. Similarly, the etymology of the word 'however', as could be seen from the same Concise Oxford Dictionary, is as follows:--

'in whatever way, to whatever extent, nevertheless, in any case.' If paragraph 2 of the Notification is read in the light of the above meaning of the word 'however' it would be clear that the said clause clearly engrafts an exception to what has been provided for in the preceding paragraph of the Notification.

It. From the above discussion, it can be gathered that even on the supposition that the High Court was, closed, as contended for on behalf of the petitioner, the High Court had neither closed nor suspended its work in regard to the receiving of the Election Petitions. That this is the clear intendment of the Notification is further made clear by the provisions of paragraph 5 (hereof. It is provided therein that 'all matters of the nature mentioned above filed up to. and inclusive of, the day previous to the sitting day, will be posted for hearing except those filed on the sitting day unless by special orders of the Vacation Benches'. In these circumstances, I find it difficult to accept the contention urged on behalf of the petitioner that the High Court was closed for the purpose of filing the present petition, thus enabling the petitioner to claim the benefit of Section 10 of the General Clauses Act.

12. In this view of the matter, I am of opinion that the present petition does not satisfy the requirement relating to the presentation of the petition within the period specified in Section 81 of the Act.

13. In this connection, the argument urged on behalf of the first respondent deserves to be noticed. The contention is that the prohibition enjoined in paragraph 1 of the Notification is confined to Appeals and Applications of a Civil nature subject to an exception regarding urgent matters relating to injunction or attachment or stay of proceedings etc. and therefore would not apply to Election Petitions which are not matters of a civil nature. This submission is clearly supported by an enunciation made by the Supreme Court in K. Venkateswara Rao v. Bekkam Narasimha Reddy, : [1969]1SCR679 . The relevant passage is at page 876 at para. 11. It reads thus:

'The above brief analysis is sufficient to show that the trial of an election petition is not the same thing as the trial of a suit. As was pointed out by this Court in the case of Kamaraia Nadar v. Kunju Thevar, : [1959]1SCR583 . the provisions of the Act go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the Common law......'

The court also emphasised on the peculiar character of an election petition by quoting from the observations of A. Sreenivasan v. Election Tribunal, Madras, 0955) 11 ELR 278 at p. 293. Reference was also made to the Tipperary ease, (1875) 3 O'M & H 19. 25 where Morris, J. said:

'......... a petition Is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested.'

14. In the light of the above enunciation. I am of the view, that an Election Petition is not a proceeding of a civil nature, and thus- it falls outside the purview of the Notification in question. Therefore, the provision made in the Notification in question regarding the Election Petitions is one which partakes of the character of a provision made ex abundanti eautela. The petitioner, therefore, cannot place any reliance on the Notification in support of the contention in question.

15. Before concluding, it, is relevant to refer to two decided cases relied on behalf of the petitioner. They are: (1) Babu Lachmeshwar Prasad Shukul v. Babu Girdhari Lal Chaudhuri, AIR 1939 Pat 667 (FB) & (2) S. Gurmej Singh Hire Singh v. Election Tribunal, Gurdaspur AIR 1964 Punj 337 (FB).

16. In Babu Ladhmeshwar Prasad's case, AIR 1939 Pat 667 (FB) it is held if the office of a Court remains open while the Court itself is closed for Judicial business, it will not deprive a litigant of the benefit of the extended time lor doing an act under Section 10 of the General Clauses Act. The factual position in the present case is not similar to the one in that case. In view of my conclusion that the High Court was not closed as such for the purpose of filing an election petition, the principle enunciated in the said case would not be of any assistance to the petitioner.

17. In S. Gurmej Singh's case AIR 1964 Punj 337 (FB) the Court was concerned with the presentation of a recriminatory petition within 14 days in accordance with the provisions of Section 97 of the Act and the Election Tribunal concerned therein was the Court of the District Judge, which was on vacation from 15-6-1962 to 14-7-1962. In that context this is what the majority of the learned Judges constituting the Full Bench have observed in para 14 of the above reports

'The question, however, arises; can the Election Tribunal be considered to be closed between 15-6-1962 and 15-7-1962? The Tribunal was undoubtedly functioning up to 22-6-1962, upto which date, therefore, it can by no means be considered to be closed. From 23-6-1962 to 15-7-1962. the Presiding Officer was admittedly on leave. There is nothing clear and cogent on the present record to show the practice of the Tribunal and whether the Presiding Officer had authorised his office staff to receive petitions like the recriminatory petition in question during his absence on leave. The approach and reasoning of the learned Tribunal in excluding the applicability of Section 10, General Clauses Act. is clearly erroneous. But can the Tribunal be considered closed during the Presiding Officer's period of vacation so as to attract Section 10 The notice of recrimination being in the nature of a counter-election petition, it would appear to me to partake of the character of a pleading. If there are no formal rules like those governing the Courts on this point, then the practice of the Tribunal would seem to me to constitute the law of the Tribunal. It may also be relevant to consider whether or not the Tribunal had authorised his office staff to accept such pleadings during his absence on leave. These points have not so far been adverted to either before the Tribunal or before the learned Single Judge.'

18. After observing as above, the case was remanded to the Tribunal for determining the question whether the office of the Tribunal had been authorised to receive election petitions during vacation.

19. The above observations, to my mind, would imply that if the office of the Election Tribunal had been authorised to receive the Election Petitions during the vacation. Section 10 of the General Clauses Act could not be availed of by a petitioner for presenting an election petition. This decision, therefore, could not also be of any assistance to the petitioner herein.

20. As earlier observed, the issue whether or not the petition complies with the requirements of Section 81 of the Act has been treated as a preliminary issue in the main petition itself. It is undisputed that Section 5 of the Limitation Act would be inapplicable to proceedings by way of an Election Petition. (See Para 14 of K. V. Rao's case, : [1969]1SCR679 ). It is also not in dispute that the Election Petition ought to have been filed on 26th April 1972 at the latest. Since the same has been filed on 28-4-1972, it is clearly beyond time, judged from the point of view of the prescription in this behalf contained in Section 81 of the Act. I have, therefore, no alternative but to hold that the Petitioner has not complied with the provisions of Section 81 of the Act

21. For the above reasons, I hold that the petition cannot be entertained and has to be dismissed in accordance with the provisions of Section 86(85 ?) of the Act. It is dismissed accordingly. I. A. No. 1 is also dismissed.

22. As regards costs, it is to be noted that although the second respondent herein was represented by a Counsel, there was no further Participation in the proceedings by such learned Counsel at any of the hearings subsequent to 29-5-1972. on which day he entered appearance. In the circumstances, therefore. I think it proper to decline to award costs to him. Since respondents 3 to 5 had been placed ex parte. there will be no order as to costs. The first respondent alone contested the petition and taking all the facts and circumstances of the case. I fix the costs at Rs. 300/- three hundred only) and the same shall be paid by the petitioner to the first respondent.


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