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Hari Shankar Tripathi Vs. Sheo Harakh - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberElection Petn. No. 45 of 1974
Judge
Reported inAIR1975All408
ActsRepresentation of the People Act, 1951 - Sections 81(1); Allahabad High Court Rules - Rule 3
AppellantHari Shankar Tripathi
RespondentSheo Harakh
Appellant AdvocateR.C. Srivastava, ;Satish Trivedi, ;O.P. Misra and ;Jagdish Misra, Advs.
Respondent AdvocateS.N. Misra, ;D. Sharma, ;V.S. Sanera, ;S.K. Tewari and ;S. Shanker, Advs.
DispositionPetition dismissed
Excerpt:
election - filing of application during court vacations - sub section 1 of section 81 of representation of the people act, 1951 and rule 3 of chapter 15-a of volume 1 of high court rules and orders, allahabad high court rules - election petition to be filed before court registrar and not before any judge - office of registrar not closed during vacation - election petition filed after re-opening of court held to be time barred. - - it could be argued that the petition was well within time when filed on the reopening of the court......open, during the vacation also, though the judges do not sit for doing the usual civilwork, the office remains open, the registrar remains on duty and criminal and urgent civil work is disposed of by the judges appointed by the chief justice during the vacation in accordance with rule 10 of chapter v of the rules of court. if during the vacation the office remained open only for certain specified purposes under the rules of court and not for the purposes of receiving election petitions etc. it could be argued that the petition was well within time when filed on the reopening of the court. there is, however, no rule restricting the functions of the registrar or power to be exercised by the registrar or the functions of the office of the high court during the vacation. hence it could.....
Judgment:
ORDER

S. Malik, J.

1. This election petition has been filed by Hari Shanker Tripathi, one of the ten candidates for the membership of the Uttar Pradesh Legislative Council from Basti cum Gorakhpur Local Authority Constituency, praying that it be declared that the election of respondent No. 1 was void and that actually the petitioner received the majority of valid votes and, therefore, he be declared to have been duly elected.

2. Keeping in view the allegations made by the parties, 20 issues were framed. Issue No. 8 being 'whether the election petition has been properly presented and is within time?'' was taken up as a preliminary issue and the learned counsel for the parties were heard at length.

3. As laid down in Section 81(1) of the Representation of the People Act. 1951 (hereinafter referred to as the Act) an election petition has to be presented to the High Court within 45 days from the date of election of the returned candidate. It was conceded by the parties that a High Court has powers to frame rules relating to the presentation and trial of election petitions. The Allahabad High Court has framed rules or special provisions relating to the trial of election petitions embodied in Chapter XV-A of the Rules of Court, Vol. I. Rule 3 of Chapter XV-A lays down 'Every election petition shall be presented to the Registrar.........'

4. The relevant facts are that after counting of votes respondent No. 1 was declared to have been elected by the Returning Officer on 30th April, 1974. In view of the provisions quoted above, the election petition should have been presented to the Registrar of the High Court within 45 days from 30-4-1974. Therefore, the period of limitation expired on the 14th June, 1974. The High Court had its vacation in 1974 from the 25th of May to the 7th of July, both days inclusive. The petition was presented by the petitioner to the Registrar on the 8th July, 1974, which was the first working day after the vacation. So the question which arises is whether the election petition would be deemed to have been presented within the period of limitation, because the limitation of 45 days expired during the High Court vacation and the petition was presented on the first working day after the vacation. Observations made by the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain : [1974]3SCR31 afford almost a complete answer.

5. The Supreme Court has observed for reasons which need not be repeated, that just as under Section 86(1) of the Act, for non-compliance with the provisions of Sections 82 and 117 which ere mandatory, an election petition has to be dismissed, an election petition not presented within the period prescribed in Section 81 of the Act, the provisions of which are equally mandatory, has to be dismissed as time-barred. It was further observed that Sections 4 to 24 of the Limitation Act do not apply to election petitions under the Act, but Section 10(1) of the General Clauses Act does apply and enables the filing of the petition on the next working day of the Court if the period of limitation expired when the High Court was closed.

6. The appeal decided by the Supreme Court was against the judgment of the Patna High Court. The relevant facts of that case were that the election petition was presented to the Court on Monday, March 20, 1972 instead of on Saturday, March 18, 1972 which was the last day of limitation. Under Rules 6 and 7 of the Rules framed by the Patna High Court for disposal of election petitions an election petition could only be filed before a Judge of the High Court sitting in open Court. Therefore, as the Judges do not sit on a Saturday and actually did not sit on Saturday, March 18, 1972 the petition was presented to the Judge concerned sitting in open Court on Monday, March 20, 1972. Even then the Supreme Court held that the election petition was not filed within the time prescribed in Section 81 of the Act in view of Rule 26 of Chapter VII, Part II of the Patna High Court Rules which provides:

'On any Court day on which no Bench is or has been sitting, any memorandum of appeal or application which might be barred by time and which is entertainable only by a Bench may be presented to the Registrar, or, in his absence from Court on that day to the Deputy Registrar, or in their absence to the Assistant Registrar, who shall certify thereon that such memorandum of appeal or application was on that day presented to him...........'

It may be painted out that under the Rules framed by the Patna High Court an election petition had to be presented to a Judge sitting in Court, while under Rule 3 framed by this Court an election petition has to be presented to the Registrar and not to any Judge of the Court.

7. Provisions of Section 10(1) of the General Clauses Act and as a matter of fact even the provisions of Sections 4 and 5 of the Limitation Act are based on the principle contained in the legal maxim, 'lex non cogit ad impossiblia' which means that the law will not compel a man to do that which he cannot perform and 'actus curiae neminem gravabit' which means that an act of the Court will prejudice no man.

Therefore, the relevant question to be considered in the instant case is whether the petitioner in accordance with Rule 3 of the Rules of Court could have presented the election petition during the vacation on or before the 14th of June, 1974. Just as on a Saturday, no court is held or in other words, Judges do not sit but the office of the Court remains open, during the vacation also, though the Judges do not sit for doing the usual civilwork, the office remains open, the Registrar remains on duty and criminal and urgent civil work is disposed of by the Judges appointed by the Chief Justice during the vacation in accordance with Rule 10 of Chapter V of the Rules of Court. If during the vacation the office remained open only for certain specified purposes under the Rules of Court and not for the purposes of receiving election petitions etc. it could be argued that the petition was well within time when filed on the reopening of the Court. There is, however, no rule restricting the functions of the Registrar or power to be exercised by the Registrar or the functions of the office of the High Court during the vacation. Hence it could not be said that the petitioner could not have presented the petition to the Registrar during the vacation. It may be pointed out that just as on a Saturday the courts do not sit but the office remains open, during the vacation though only a few courts function and the courts generally do not sit, the office remains open and the Registrar remains on duty.

8. It was argued on behalf of the petitioner that a Saturday is considered to be a working day, but during the vacation the High Court remains closed. This does not appear to be correct. Just as on a Saturday the Judges do not sit but the High Court office remains open, during the vacation only the courts are not held but the High Court office remains open. It may be repeated that there is no rule laying down that during the vacation the office of the High Court shall remain open only for certain specified purposes and not for the purpose of receiving election petitions.

It may also be pointed out that just as Saturdays are working days for the office, during the vacation all the days in a week leaving Sundays and other holidays which may fall in the vacation, are working days for the High Court office and the High Court office remains open As under Rule 3 of Chapter XV-A it is specifically laid down that an election petition has to be presented to the Registrar and not to a Judge, there was no justification for the petitioner not to have presented the petition within the period prescribed under Section 81 of the Act.

9. While discussing the question the Supreme Court in paragraph 6 of the ruling cited quoted the observations made by the Patna High Court and the Madras High Court in Lachnieshwar Prasad v. Girdhari Lal (AIR 1939 Pat 667) (FB) and Nachiyappa v. Ayyasami, (1882) ILR 5 Mad 189 at p. 192 (FB). Both the High Courts held that though the Judicial sittings of the Court may be adjourned, but as the offices of the Court remain open, it could not be said that the Court was closed for depositing money in a case which had to be deposited within a prescribed period or for presentation of pleadings as the office of the court may still remain open for the presentation of pleadings. It may be repeated that nothing could be brought to the notice of the Court to show that the petition could not be presented to the Registrar by the petitioner during the vacation on or before the 14th of June, 1974.

10. In view of the reasons discussed, I find that the election petition was filed beyond 45 days, the period prescribed under Section 81(1) of the Act and it is dismissed as time barred. The respondent No. 1 to get rupees one hundred as costs out of the security money deposited by the petitioner.


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