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Abhimanyu Rath Vs. Virendra Pandey - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberElection Petn. No. 30 of 1977
Judge
Reported inAIR1978MP112; 1978MPLJ189
ActsRepresentation of the People Act, 1951 - Sections 67A, 81 and 86(1); Limitation Act, 1963 - Sections 5, 29 and 29(2)
AppellantAbhimanyu Rath
RespondentVirendra Pandey
Advocates:R.K. Pandey, Adv.
DispositionPetition dismissed
Cases ReferredIn K. Venkateswara Rao v. Bekkam Narasimha Reddy
Excerpt:
.....act can be held to be satisfied even in cases where the limitation act omits to prescribe a period of limitation. this position is well settled by the decision of the supreme court in vidyacharan shukla's case (air 1964 sc 1099) (supra). but this fact alone will not be decisive for holding that all the provisions of the indian limitation act will apply to an election petition. the exclusion ofthe same is clearly borne out from the language of sections 81 and 86(1) of the act. for instance, the proviso added to sub-section (2) of section 116a enables the court to entertain an appeal even if presented after the expiry of the prescribed period of 30 days on being satisfied that the appellant had sufficient cause for not preferring the appeal within the period prescribed. a mistake of..........67a of the act as reproduced below defines the date of election to be the date on which a candidate inelection is declared by the returning officer to be elected.'67a.-- date of election of candidate.--for the purposes of this act, 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 * * * shall be the date of election of that candidate.' similar was the view expressed by their lordships of the supreme court in c.a. no. 1178 of 1971 decided on 3-1-1972 (reported in air 1973 sc 584). thus, it is apparent that the limitation prescribed by section 81 would run from the date of declaration by the returning officer and not from the date of.....
Judgment:
ORDER

J.P. Bajpai, J.

1. This is an election petition presented under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') calling in question the election of the respondent to the Legislative Assembly of Madhya Pradesh from Jagdalpur Legislative assembly constituency. The petitioner seeks to challenge the election of the respondent on the sole ground of improper rejection of his nomination paper.

2. Undisputedly, the respondent was declared elected by the returning officer on 14-6-1977. This petition was filed on 1-8-1977 and accordingly the office made a note indicating that the petition was barred by limitation as delayed by two days. According to the provisions of Section 81 of the Act, an election petition has to be filed within 45 days from the date of election. Section 67A of the Act as reproduced below defines the date of election to be the date on which a candidate inelection is declared by the returning officer to be elected.

'67A.-- Date of election of candidate.--For the purposes of this Act, 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 * * * shall be the date of election of that candidate.'

Similar was the view expressed by their Lordships of the Supreme Court in C.A. No. 1178 of 1971 decided on 3-1-1972 (reported in AIR 1973 SC 584). Thus, it is apparent that the limitation prescribed by Section 81 would run from the date of declaration by the returning officer and not from the date of publication of the same in the official gazette. It is true that in the present case, the publication was made in the official gazette on 21-6-1977, but according to the clear provisions of the Act, the same is irrelevant for the purposes of counting the period of limitation.

3. Shri R. K. Pandey, learned counsel for the petitioner, rightly and fairly did not dispute this position. It was however, contended that since the petitioner has moved an application for condonation of delay under Section 5 of the Limitation Act, 1963, the same is liable to be condoned and the petition deserves to be entertained.

4. Thus, in order to decide whether the petition is liable to be dismissed under Section 86(1) of the Act for want of compliance of the provisions of Section 81 on the point of limitation, it would be necessary to determine the following questions:

(a) Whether the provisions of the Indian Limitation Act, 1963 will apply to an election petition under the Representation of the People Act ?

(b) Even if so, whether the provisions of Section 5 of the Indian Limitation Act will not apply as having been excluded by the Special Act ?

(c) In case, it is found that the provisions of Section 5 of the Indian Limitation Act do apply, whether there is sufficient cause for condoning the delay

5. While making submissions on the first point, it was contended on behalf of the petitioner that by virtue of the provisions of Section 29 of the Indian Limitation Act, 1963, the provisions of Sections 4 to 24 of the Limitation Act became applicable even to the election petitions. By placing reliance on the observations of their Lordships of the Supreme Court inVidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099 it was argued that the difference between the Special Act and the Limitation Act would arise even by omission to provide for limitation for presenting an election petition under the Limitation Act. The contention was that for election petition to the High Court, no period has been prescribed by the Limitation Act and thus the petition could be ordinarily presented at any time, but when Section 81 of the Special Act (Representation of the People Act) provided that the petition is to be presented within 45 days of the date of election, the period prescribed was different from that under the Limitation Act and, therefore, Section 29 of the Limitation Act became applicable extending the provision of Sections 4 to 24 of the Limitation Act to an election petition.

6. In my opinion, it is not possible to accept the aforesaid contention. It is true thai the requirement of there being an otherwise different period of limitation in the Special Act can be held to be satisfied even in cases where the Limitation Act omits to prescribe a period of limitation. This position is well settled by the decision of the Supreme Court in Vidyacharan Shukla's case (AIR 1964 SC 1099) (supra). But this fact alone will not be decisive for holding that all the provisions of the Indian Limitation Act will apply to an election petition. It will have to be seen whether the Special Act excludes the applicability of the same and if so, to what extent.

7. On behalf of the petitioner, reliance was placed on a decision of the Calcutta High Court reported in Bhakti Bh. Mondal v. Khagendra K. Bandhopadhya AIR 1968 Cal. 69 wherein it was held that by virtue of Section 29 the provisions of Sections 4 to 24 of the said Act became applicable to the election petition also and as such Section 5 of the Indian Limitation Act was applicable and in appropriate cases, Court has power when sufficient cause is shown to admit an election petition presented even after the prescribed period, by condoning the delay. With due respect to the learned Judge of the Calcutta High Court, I find myself unable to agree with the proposition laid down in the said case.

8. For the sake of arguments, even if it is assumed that by virtue of Section 29 of the Limitation Act, certain provisions of [the Limitation Act can be made applicable to an election petition, there is noscope for applying the provisions of Section 5 of the Limitation Act. The exclusion ofthe same is clearly borne out from the language of Sections 81 and 86(1) of the Act. Section 81 in an unqualified manner prescribes that an election petition shall be presented within 45 days from the date of election. The Special Act thereafter makes a mandatory provision in Section 86(1) that if an election petition has not been presented in compliance of Section 81, the same shall be dismissed by the High Court. Neither the restrictive words as 'subject to the provisions of the Limitation Act' have been used by the Parliament, nor any power has been conferred on the Court by adding a proviso to the aforesaid sections or otherwise to extend the period or to condone the delay. Wherever legislature wanted to provide for condonation of delay for instituting proceedings contemplated by the Act, it made a special provision for the same. For instance, the proviso added to Sub-section (2) of Section 116A enables the Court to entertain an appeal even if presented after the expiry of the prescribed period of 30 days on being satisfied that the appellant had sufficient cause for not preferring the appeal within the period prescribed.

9. In K. Venkateswara Rao v. Bekkam Narasimha Reddy AIR 1968 SC 872 their Lordships of the Supreme Court observed in para 14 that the Representation of the People Act is a complete and self contained Code. It does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act. In the same paragraph, their Lordships of the Supreme Court also referred to the provisions of Section 29(2) of the Indian Limitation Act which makes certain provisions of the Limitation Act applicable to proceedings under a Special or Local Law unless the application thereof has been excluded by the Special or Local Act. In view of these observations of the Supreme Court, the view expressed in the Calcutta case cited above does not appear to be correct.

10. Various amendments have been made in the Representation of the People Act by the Parliament from time to time and the last amendment recently made was during the period 1976-77. Despite being aware of the strict interpretation given by the Supreme Court and the High Courts, the provisions with regard to the time within which the election petition must be filed and the absence of power to condone the delay even for aday, no such provision was made at any time while amending the Act and the mandatory provisions of Section 86(1) have been kept intact.

11. It is, therefore, held that Section 5 of the Limitation Act has no application to an election petition and the application moved by the petitioner seeking condonation of delay is liable to be dismissed on this ground alone.

12. Even if it is assumed for the sake of arguments, of course with a very big 'if', that Section 5 of the Limitation Act is applicable, I do not find any sufficient cause for condoning the delay. The explanation given for the delay is that before filing the election petition, the petitioner happened to consult one Shri Acharya, Advocate at Jagdalpur (the Headquarter of Bastar District) about the period of limitation within which an election petition can be filed and Shri Acharya advised him that such a petition can be filed within 45 days from the date of publication of the notification in the official gazette. The argument was that being misled by the advice given by the counsel, the petitioner contacted his counsel at Jabalpur and filed the petition on 1st August, 1977. This story put up by the petitioner is not believable. It is nothing, but an afterthought plea cooked up for justifying the delay in an attempt to get rid of the bar of limitation. This is borne out from the following circumstances: Since it was not the case that the counsel at Jabalpur was not aware of the correct legal position, this explanation, if genuine, should have been mentioned in the petition itself while presenting the same on 1-8-19-77. The election petition was prepared and verified at Jabalpur on 1-8-1977. According to the normal rules of pleadings, the plaintiff or the applicant is expected to make averment about the suit or the application being made within time. If it is being filed beyond the prescribed period of limitation and condonation of delay is sought, necessary averments seeking condonation of delay are made either in the main petition or in a separate application moved for that purpose as the case may be. In this petition, no such averment was made at all. The petitioner conveniently omitted to state anything in this respect. No application for condonation of delay was filed along with the petition. When the election petition was placed before the Court on 10-8-1977 with the office note disclosing that it was barred by limitation as being delayed bytwo days, the learned counsel for the petitioner sought an adjournment to make submission on the point of limitation and the case was fixed for 12-8-1977. On that date, the petitioner came with an application seeking condonation of delay under Section 5 of the Limitation Act. It is true that simply because an application for condonation of delay was not filed along with the main petition, the same cannot be rejected merely on that ground. But the significance of the circumstances stated above is in the context of finding out whether the explanation given is genuine and/or an afterthought one.

13. Even otherwise, despite, taking the facts and circumstances stated in the application and the affidavit of the counsel Shri Acharya into consideration, no case of sufficient cause is made out. A mistake of the counsel no doubt may be a good ground in the facts and circumstances of a case for extension of the time under Section 5 of the Limitation Act, but the mistake must be such which is a bona fide one and not one which proceeds from misconduct, negligence or want of reasonable skill.

14. Shri Acharya, the learned advocate, in his affidavit has stated that on being approached by the petitioner seeking advice on the question of limitation, he had after consulting the books advised him that a petition can be filed within 45 days to be counted from the date of notification in the Government gazette. Shri Acharya claims that this advice was given bona fide. It is difficult to believe this. It could not be maintained that the question of counting the period of limitation from the date of declaration by the returning officer, was a matter of justifying doubt so as to hold that the mistaken advice was bona fide. In view of the specific unambiguous language of Section 67A defining the term 'Date of election' and the clear language used in Section 81(1) of the Act, it is not possible to accept that such a mistake could be committed by any lawyer of reasonable skill. It is not a general rule that every case of wrong advice by a counsel will give a ground for condonation of delay under Section 5 of the Limitation Act. The application seeking condonation of delay on such ground must make out a case that the person approached by him for advice was skilled and competent. For claiming the benefit, it should also be further established that the opinion was given by thelawyer after exercising reasonable care and that the mistake was bona fide and not due to negligence or want of due skill. It would also be necessary to establish that the view taken by the lawyer though wrong was a subject matter of justifying doubt which would have been entertained by a competent person exercising reasonable care and skill. In the present case, these necessary requirements are not satisfied. Shri Acharya, claims to have given the advice after going through the statutory provisions and it is not possible to hold that there was a case of any justifiable doubt on the face of the clear unambiguous language used in Section 67A and Section 81 of the Act.

15. For the reasons stated above, it is held that the petitioner could not establish sufficient cause for condoning the delay and the application under Section 5 of the Limitation Act is accordingly dismissed not only on the ground of maintainability, but also on merits.

16. The result, therefore, is that the election petition is liable to be dismissed in accordance with the provisions of Section 86(1) of the Act due to non-compliance of the requirements of Section 81 of the Act on the point of limitation and is accordingly dismissed. The amount of security deposit be refunded to the petitioner in accordance with the provisions of Section 121 of the Act.


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