El.Pet/3/2004 of Youaraj Rai Vs Chandra Bahadur Karki and Ano on 18 November 2004

ORDER

A.Jr. pArRA

Facts are few in the aforesaid three electionpetitions presented under section 80 read with section 81(1)of the Representation of the People Act, 1951 (hereinafterreferred to as the Act). The point involved is solitary, it beingwhether the petitions are barred by limitation. As they arealike, they were heard together with the consent of learnedcounsel for the parties and are thus disposed of by thiscommon order.

2. In Election Petition no.1 of 2004, the petitionercalls in question the election of the respondent therein to theSikkim Legislative Assembly from the 14-Melli AssemblyConstituency. In Election Petition no. 2 of 2004 the electionof the respondent therein to the Sikkim Legislative Assemblyfrom the 13-Damthang Assembly Constituency is underchallenge. In Election Petition no. 3 of 2004 the election ofthe respondent therein from the 12-Wak AssemblyConstituency is under question. The petitioners challenge the election of the respondents on the sole ground that theirnomination papers were improperly rejected by theReturning Ofricer.

3. The following was the programme notified by theElection Commission of India for the last general electionheld for constituting a new I,egislative Assembly for the Stateof Sikhim.

(i) 23.4.2004 -Lastdate formakingnomination

(ii) 24.4.2004 - Scrutiny ofnominations.

(iii) 26.4.2004 -Last date for withdrawal of candidatures.

(iv) 10.5.2004 -Dateofpoll, if necessary.

On 24.4.2004 the Returning Ofricer rejected thepetitioners' nominations.On 26.4.2004 the ReturninOfficer declared the respondents elected (uncontested).17.5.2004 was the dale of notification issued by the ElectionCommission of India in the Ofricial Gazette under section 73of the Act notifying the names of 32 members elected from32 different Assembly Constituencies.The electionetitionswere filed in this Court on 25.6.2004.

4. A preliminary issue has been framed in each casewith regard to the maintainability of the election petition onthe ground of limitation. It reads as follows:- ``Whether the election petition. isbarred by the law of limitation asprescribed under section 81 of the Act?"

Section 81(1) of the Act, so far as relevant, reads as follows:- "An election petition calling inquestion any election may be presentedwithin forty-five daysfrom, but not earlier than the date ofelection of the returned candidate or ifthere are more than one returned candidateat the election and dates of their electionare different, the later of those two dates."

The contention of Shri Mittal, learned senior counsel for thepetitioners is that the reckoning date for computing theperiod of forty-five days is the date of declaration of resultsof elections in the Official Gazette as provided under section73 of the Act which was done on 17.5.2004 and the period offorty-five days began to run only from that date and theelection petitions having been presented on 25.6.2004 theyare all within time. He also submitted that limitation cannotrun prior to the date of declaration of results of electionsunder section 73 of the Act because the election process canbe said to have come to a final halt only on such declarationbeing made and in view of the bar contained in Article 329(b)of the Constitution of India election petition is notentertainable when the election process is in progress. ShriDutta, leaned senior counsel appearing for the respondentson the other hand relying on the decision of the SupremeCourt in Chandrakant Shukla vs. Maharaja Martand SinghAIR 1973 SC 584 submitted that the period of limitation(forty-flve days) has to be computed not from the date ofdeclaration of the results of elections but from the date on which the Returning Ofricer declares the election of thereturned candidate. In the instant cases the ReturningOfricer declared the respondents elected on 26.4.2004.Therefore the period of forty-five days had to be countedfrom that date and the election petitions were ffled on25.6.2004 beyond the period of linitation and therefore theyare liable to be rejected at the threshold.

5. The moot question that arises for consideration isas to the time from which, the period of forty-five days has tobe computed.

On close perusal of section 81(1) of the Act it wouldappear that the starting point of himitation (forty-five days) isfrom the date of election of the returned candidate. In otherwords, the tine from which the period of forty-rive daysbegins to run is the date of election of the returnedcandidate.

What is the date of election of the returned candidate?Section 67A of the Act answers this question by stating asfollows:- "[67A. Date or election of candidate.-For the purposes of this Act, the date onwhich candidate is declared bretumjnofficer under therovisions ofsection 53 or section 66, to be elected to aHouse of Parliament or of the Legislature ofa State shall be the date of election of thatcandidate."[emphasis supplied]

The point as to from which date the period of forty-rivedays has to be computed for presenting an election petition

came up for decision before the Supreme Court inChandrakant shukla (supra). Interpreting sections 81(1)and 67A of the Act the Supreme Court held that the periodof forty-five days begins to run from the date of election o.f...the returned candidate as declared by the Returning Officerand not from the date of publication of election results in theOfricial Gazette. In that case the respondent was declaredelected on 10.3.1971 by the Returning Officer and theelection results were pubnshed in the Official Gazette on15.3.1971 but the election petition was ffled on 29.4.1971which was beyond time computing the period of forty-fivedays from the date the Ret`ming Ofricer declared therespondents elected. Accordingly the Court held that theelection petition was hit by limitation because the period offorty-frve days had to be counted from the date therespondent was declared elected i.e. 10.3.1971 and not fromthe date the election results were published in the OfficialGazette i.e. on 15.3.1971. In this regard, the learnedcounsel for the respondents has also referred to thedecisions of Madhya Fradesh High Court and Calcutta HighCourt in Abhimanyu Rath vs. Virendra Pandey AIR 1978Madhya Hadesh 112 and Bhakti Bh. Mondal vs. KhagendraK. Bandopadhya AIR 1968 Calcutta 69. He has also fairly .brought to my notice that the decision of the Calcutta HighCourt (supra) relating to appncability of section 5 of the i Limitation Act for the purpose of filing an election petitionwas not approved by the Supreme Court in AnwariBasavaraj Patil vs. Siddaramaiah AIR 1994 SC 512 but theratio that election petition is required to be filed within forty-five days from the date on which the Returning Ofricerdeclares the candidate elected was not interfered with.

In view of what has been stated above, I have nohesitation to hold that the period of forty-five days forpresenting an election petition beg].ns to run from the date ofelection of the returned candidate as declared by theReturning Ofricer and not from the date of pubncation ofresults of general elections in the Ofricial GaLzette undersection 73 of the Act.

6. My above conclusion is fortified if one looks atthe following legislative history relating to election laws.Section 67A came to be inserted by Act 27 of 1956. In theprincipal Act prior to insertion of section 67A, section 81(I)dealing with presentation of election petitions was ashereunder:- "An election petition calling inquestion any election may be presented........ in such form and within such timebut not earlier than the date ofublicationof the nalne or names of the returnedcandidate or candidates at such electionunder section 67, as may be prescribed." '

Section 67 of the principal Act was as follows:- "As soon may be after the result of anelection has been declared, the Returning Officer shall report the result to th.eappropriate authority and ................... andthe appropriate authority shall cause to bepublished in the Ofricial Gazette thedeclarations containing the names of theelected candidates."

On conjoint reading of sections 81(1) and 67 of theprincipal Act extracted above and in absence of any suchprovision like 67A of the Act, it is evident that the period oflimitation for filing an election petition was to commencefrom the date of publication in the Ofricial Gazette thedeclarations containing the names of the elected candidates.Consequent upon the insertion of section 67A into theprincipal Act the position is however changed and theprescribed period of limitation for presenting an electionpetition runs from the date on which the Returning Offlcerdeclares the candidate elected and not from the date ofnotification pubnshed by the Election Commission in theOfricial Gazette containing the names of the electedcandidates.

May it be stated here that the notification published inthe Official Gazette under section 73 of the Act declaring theresults of general election cannot be considered for thepurpose of computing the period of limitation. Publication ofsuch notification is only to hold that the House of the People(Lok Sabha) or the concerned State Assembly has been dulyconstituted. This is crystal clear from the following wordsoccurring in the last sentence of section 73 of the Act which reads "and upon the issue of such notirication that House orAssembly shall be deemed to be duly constituted". 'Thenotification issued in the present cases under section 73 ofthe Act (annexure p/3) is for the purpose of holding that theSikkim State Assembly has been duly constituted with theelected members maintained therein from different Assemblyconstituencies.

It may not be out of place to note here that section 73of the Act deals with publication of results of generalelections to the House of People (Lok Sabha) and the StateLegislative Assemblies whereas sections 71 and 74 dealrespectively with publication of results of elections to theCouncil of States (Rajya Sabha) and State LegislativeCouncils.I may now turn to the facts of the cases at hand. .There is no dispute that the Returning Ofricer on 26.4.2004declared the respondents elected to fin the seats in the StateLegislative Assembly from their respective Assemblyconstituencies in Fomi 21.prescribed under Rule 11(1) of theConduct of Election Rules, 1961 (vide annexure Rl to theprelininary objection of the respondent). In view of the legalposition adumbrated above, I unhesitating|y hold that thetine to present the election petition began to run from26.4.2004 and the period of limitation (forty-five days)expired on 10.6.2004 but the election .petitions having been filed beyond the time i.e. on 25.6.2004, they are all hit byimitation.

filed beyond the time i.e. on 25.6.2004, they are all hit byimitation.

8. The controversy however does not end here.Shri Mittal's further contention is that if the petitioners'interpretation regarding starting point of limitation isaccepted, the later part of section 81(1) of the Act wouldbecome otiose and the provision of a statute should be readin such a manner so as to give effect to all the wordsoccuring therein. According to the learned counsel, inorder to maintain uniformity one reckoning date i.e. the dateof publication of the results in the Ofricial Gazette undersection 73 of the Act should be taken as the base forcounting the period of limitation. He elucidated by statingthat in the last election held in the State of Sikkim pollingtook place in certain constituencies and the dates of electionof returned candidates in those constituencies were differentfrom those who were eahier declared elected uncontest'edlike the respondents and the law never contemplates thatthere should be two dates for computing the period oflimitation, one for those candidates who were declaredelected without any contest and those candidates who weredeclared elected at a latter stage after counting of votes wascompleted. Therefore one date should be taken to cover bothtypes of cases for starting the period of limitation. Hesubmitted that which is why the later part of section 81(I)Shri Mittal's further contention is that if the petitioners'interpretation regarding starting point of limitation isaccepted, the later part of section 81(1) of the Act wouldbecome otiose and the provision of a statute should be readin such a manner so as to give effect to all the wordsoccuring therein. According to the learned counsel, inorder to maintain uniformity one reckoning date i.e. the dateof publication of the results in the Ofricial Gazette undersection 73 of the Act should be taken as the base forcounting the period of limitation. He elucidated by statingthat in the last election held in the State of Sikkim pollingtook place in certain constituencies and the dates of electionof returned candidates in those constituencies were differentfrom those who were eahier declared elected uncontest'edlike the respondents and the law never contemplates thatthere should be two dates for computing the period oflimitation, one for those candidates who were declaredelected without any contest and those candidates who weredeclared elected at a latter stage after counting of votes wascompleted. Therefore one date should be taken to cover bothtypes of cases for starting the period of limitation. Hesubmitted that which is why the later part of section 81(I)

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i.e. "if dates of their election are different. the later of thosetwo dates" has been enacted.Shri Dutta, leaned counselfor the respondents contra submitted that the Act deals withconduct of elections of both the Houses of Parliament and tothe House or Houses of the Legislature of each State. Byreferring to different provisions of the Constitution of Indiaas well as the Act and the Rules framed thereunder, hesubmitted that in our country there are two different modesof election systems, one is proportional representation bymeans of the single transferable vote [i.e. election to theCouncil of States (Rajya Sabha) and election of members tothe Legislative Councn of the States] and the second is bydirect election [i.e. election to the House of People (IsokSabha) and the Legislative Assemblies]. Therefore, to meetthe cases coming under the first system the later part ofsection 81(1) has been enacted. Shri Mittal tried to meetthis contention by submitting that if the contention of theother side is accepted then "election from a constituency"has to be imported to section 81(1) of the Act which is notpermissible.

Before considering the rival contentions, it is necessary to quote the relevant portion of section 81(1) of the Act.

"81(1) An election petition ....... maybe presentedwithin forty-five .days from ............. the date of election ofthe returned candidate or if there are morethan one returned candidate at the election and dates of their electtion are different. thelater of those two dates."

'The above underlined portion i.e. the later part ofsection 81(1) of the Act calne to be inserted dy Act 27 of1956. Prior to such insertion, section 81(1) in the principalAct, so far as relevant, was as fouows:- "81(1) ............... in such fomi andwithin such time but not earlier than thedate of Publication of the name or names ofthe returned candidate or candidates atsuch election under section 67. as mav beorescribed."

The aforesaid provision in the principal Act would go toshow that previously an election petition was to be filedwithin the prescribed time from the date of publication of thename or nalnes of the returned candidate or candidates atsuch election under section 67. It means that the timeprescribed for filing election petition was to run from thedate of pubucation of the name or names of the returnedcandidate or candidates in the Official Gazette under section67.

9. As already observed, the later part to section81(1) and section 67A were inserted by Act 27 of 1956. Theeffect of insertion of the later part to section 81(1) andsection 67A has to be exanined in the fonowing background.81(1) and section 67A were inserted by Act 27 of 1956. Theeffect of insertion of the later part to section 81(1) andsection 67A has to be exanined in the fonowing background.

Election has been defined to mean [vide section 2(d) ofthe Act) an election to fill a seat or seats in either House of Parliament or in the House or either House of the Leedslature of a State. Sub-section 2 of section 2 of the Act further says:

"2(2). For the purposes of this Act, aParliamentary constitueney, an Assemblyconstituency, a Council constituency, alocal authorities' constituency, a graduates'constituency and a teachers' constituencyshall each be treated as a constituency of adifferent class."

From the above, it may be seen that each Assemblyconstituency has to be treated as a separate constituency.Similarly each Parliamentary or a Council constituency shallbe treated as separate constitueney of a different class. It isnot in dispute that the Act is a self-contained Code whichprovides for the conduct of elections to the Houses ofParliament and to the House or Houses of the Legislature ofeach State. The Act deals with the procedure for election tothe House of People (Lok Sabha) and Council of States (RajyaSabha) and the State Legislative Assemblies and StateLegislative Councils, if any. As provided under Article 80(4)of the Constitution of India, the elected members of theLegislative Assembly of the State are to elect therepresentatives of their State in the Council of States by thesystem of proportional representation by means of the singletransferable vote. Under Article 171 of the Constitution ofIndia the total number of members of the Legislative Council.of a State shall consist of one-third to be elected byelectorates from local aLuthorities like municipalities etc., /

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one-twelfth to be elected by electorates from graduateconstituencies, one-twelfth from teachers' constituencies,one-third to be elected by the members of the LegislativeAssembly from amongst persons who are not members of theAssembly. On the contrary, members to the House of People(Lok Sabha) and the Legislative Assemblies are chosen bydirect election. Sub-section 3 of section 4 and sub-section2 of section 7 of the Representation of the People Act, 1950respectively lay down that every Parliamentary constituencyand every Assembly constitueney shall be a single-memberconstituency. Section 81 of the Act is the provision whichexclusively deals with filing of election petitions calling inquestion any election held by either of the two systemsreferred to above toroportional representation by means of asingle transferable vote or direct election). From the aboveanalysis of the different provisions, I am of the opinion thatunder section 81(1) of the Act one election petition calhig inquestion of a returned candidate from one constitueney isenvisaged. It was suggested by Shri Mittal that there couldbe no such constitueney which Inay have more than onereturned candidate at any election. I have not been able toaccept the above suggestion. Part VI and Part VII of theConduct of Election Rules,1961 respectively deal with votingat elections and counting of votes of elections by Assemblymembers and or in Council constituencies. Rule 70 of Part

VI provides the rules for conduct of poll and method ofvoting. It says inter a!ha that every elector has only one voteat an election irrespective of the number of seats to be filled.The elector has to maLrk preferences against the names of thecandidates for whom he wishes to cast his vote. This systemof voting is known as proportional representation by meansof the single transferable vote. The method of countingprovided in Part VII of the aforesaid Conduct of ElectionRules, 1961 would show that if there are more than one seatto be fined up the counting process may not end in one dayand may spread for succeeding days depending upon theascertainment of quota. It is a time-taking process andtherefore the Returning Officer may have to declare resultsof the returned candidates on two different dates. For thereasons mentioned above, I am inclined to hold that to meet["if there are more]such cases, the following expression i.e._th_an one returned candidate at the election and dates oftheir election are different. the later of those two dates" hasbeen engrafted in the latter part of section 81(1) of the Act.Therefore, if there is only one returned candidate fromone constituency as in an election from a Parliamentaryconstitueney or an Assembly constituency the period -oflimitation shall begin to run from the date of election of thesaid returned candidate in that constituency as declared bythe Returning Ofricer. In a case if there are more than one returned candidate at the election e.g. an election to theCouncil of States or to the State Legislative Councfl from aCouncfl constituency and the dates of their elections aredifferent the later of those two dates sham be the startingpoint for computing the period of limitation for suchconstituency.

JO. So far as the cases at hand are concerned, therewere no different dates of election for different returnedcandidates for the same election because admittedly therewas only one returned candidate in one election from oneconstituency and the time from which the period of forty-rivedays began to run was the date of election of the returnedcandidate as declared by the Returning Officer.

]], Exception was taken on behalf of the petitionerwith regard to the issuance of Form 21E (annexure R2) bythe Retuning Officer on 26.4.2004. The declaration underthe said Form 2lE is required to be made in a case comingunder Rule 64 of the Conduct of Election Rules, 1961. Thesaid F`orm has no relevancy to the cases Coming under"uncontested elections" [vide section 53 of the Act read withRule 11(I) of the Conduct of Election Rules,1961.I Issuanceof such declaration in Form 21E is nothing but asurplusage. Since the returned candidates in all the threeelection petitions were declared elected uncontested what •w\

was necessary by the Returning Officer was to issue Formno. 21 which he had duly done on 26.4.2004.

12. By referring to the letter dated 28.4.2004 of theChief Electoral Officer, Sikkim addressed to the President ofSikkin hadesh Congress Committee (armexure p/ 1) ShriMittal submitted that the Chief Electoral Officer was of theview that until the process of election was over no electionpetition could be riled. The said letter is of little assistanceto the petitioners' i.ncrsmucfr as the law of limitation does notdepend upon the view of a particular officer. Section 81(1) ofthe Act prescribes the starting point for counting the periodof linitation. It applies proprio vigore. The question oflimitation has to be decided by the provisions mentioned inthe statute. The officer's opinion if any may be urged as aground for condoning delay but in view of the settledposition of law that section 5 of the Limitation Act, 1963 isnot applicable for filing of an election petition, the contentsof the said letter are of tittle avail. Section 86(1) Of the Act inunequivocal terns declares that the High Court shalldismiss an election petition which does not comply with theprovisions of sections 81 or 82 or 117. The provision isperemptory in nature. The above election petitions do notcomply with the provision of section 81(1) of the ActI.nasmuch as they were not filed within the prescribed period •#-`\ .-_

oflimitation.Thereforetheyareliabletobedismissedbeingbaned by time.

Z3, In the result, the election petitions are dismissedon the point of limitation with costs assessed at Rs.4,000/-each. The petitioners have deposited Rs.2,000/- each assecurity for costs. The respondents are entitled to withdrawthis amount of Rs.2,OOO/- each towards part of the costs.The petitioners are hereby directed to deposit the balanceamount of Rs.2,000/- each in the Registry within thirty dayshencewithlibertytotherespondentstowithdrawthesane.

Sd/-( _I. K. Patra )Chief rfustiee18.11.2004mTiFrED To RE TRUE co. i Dictation taken&typed by meDipak Saha