Hukumdev Narain Yadav v. Lalit Narain Mishra)
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ELPET No.28 of 2024 Gurubux Singh Ahluwalia …. Election Petitioner Mr. S. Kanungo, Adv. -versus- Sanatan Mahakud …. Respondent Mr. G.K. Agarwal, Adv. CORAM: JUSTICE SANJAY KUMAR MISHRA ORDER 18.09.2024 I.A. No.10 of 2024 & ELPET No.28 of 2024 This matter is taken up through hybrid mode.
Legal Reasoning
2. Mr. G.K. Agarwal, learned Counsel is present and files Vakalatnama duly executed in his favour and associates by the sole Respondent and submits, though his client should have appeared on caveat, since the matter is on board, on being instructed by the Respondent, he files the Vakalatnama to represent the sole Respondent and he may be permitted to address this Court on the application for condonation of delay filed by the Election Petitioner. 3. In view of such submission made by Mr. Agarwal, learned Counsel, the Vakalatnama filed in the Court is taken on record. 4. Learned Counsel for the Election Petitioner submits, the Election Petition has been preferred by the Petitioner, who is an Elector of 25-Champua Assembly Constituency, Order No. 03. challenging the election of Mr. Sanatan Mahakud, who has been elected as M.L.A., 25-Champua Assembly Constituency. Mr. Kanungo, learned Counsel for the Election Petitioner further submits, there is a delay of 9 days in presenting the Election Petition. The Election Petition could not be presented within 45 days as there was a delay on the part of the Public Information Officer (PIO) to supply the information and documents, based on which the Election Petition has been filed. Hence, the delay should be condoned. To substantiate his submission, Mr. Kanungo, learned counsel for the Election Petitioner relies on the judgment of the Supreme Court reported in (1974) 2 SCC 133 (Hukumdev Narain Yadav Vs. Lalit Narain Mishra). 5. Learned Counsel for the Election Petitioner further submits, the delay in presenting an Election Petition can be condoned by this Court, provided sufficient cause is shown in the Application. As the Election Petition was preferred after obtaining the information under the Right to Information Act, 2005 because of the conduct of the PIO to supply the necessary documents/information belatedly, the Election Petition could not be presented on time. 6. Per contra, Mr. Agarwal, learned Counsel for the Respondent submits, so far as delay is concerned, the stamp reporting has been done incorrectly. It should have been calculated as 11 days, instead of 1 day delay, as the cause of action arose on 04.06.2024, where as the Election Petition has been presented on 30.06.2024. There is no such order, which is under challenge in the present Election Petition, requiring certified copy, thereby Page 2 of 8 permitting the Office to deduct 10 days towards alleged period consumed for obtaining the certified copy. 7. Drawing attention of this Court to the legal provisions under Section 81 read with Section 86 of the Representation of People Act, 1951, shortly, ‘the Act, 1951’ so also judgment of the Supreme Court reported in 1987 (Supp) SCC 93 (Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi), learned Counsel for the Respondent submits, in terms of Section 81 of the Act, 1951, the Election Petition calling in question any election, has to be presented within 45 days from the date of election of the returned candidate and if an Elector intends to challenge such election, it has to be within 45 days from the date of election of the returned candidate and if there is a delay in presenting the application, such defect is not curable and the Election Petition has to be dismissed in terms of Section 86 of the Act, 1951. 8. To substantiate his submission, Mr. Agarwal draws attention of this Court to para-31 of the judgment in Rajiv Gandhi (supra), wherein the Supreme Court held as follows: “31. The above scanning of the election petition would show that the appellant failed to plead complete details of corrupt practice which could constitute a cause of action as contemplated by Section 100 of the Act and he further failed to give the material facts and other details of the alleged corrupt practices. The allegations relating to corrupt practice, even if assumed to be true as stated in the various paragraphs of the election petition do not constitute any corrupt practice. The petition was drafted in a highly vague and general manner. Various paragraphs of the petition presented disjointed averments and it is difficult to make out as to what actually the petitioner intended to plead. At the conclusion of hearing of the appeal Page 3 of 8 before us appellant made applications for amending the election petition to remove the defects pointed out by the High Court and to render the allegations of corrupt practice in accordance with the provisions of Section 83 read with Section the Act. Having given our anxious 124 of consideration to the amendment applications, we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court, at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The appellant could not raise any ground of challenge after the expiry of limitation. Order VI Rule 17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. Section 81 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of a returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in Section 81 would amount to contravention of those provisions and beyond the ambit of Section 81 of the Act. It necessarily follows that a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge. Various paragraphs of the election petition which are sought to be amended, do not disclose any cause of action; therefore is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected”. it (Emphasis Supplied) 9. So far as the judgment cited by the learned Counsel for the Petitioner in Hukumdev Narain Yadav (supra), the issue involved in the said case was the limitation which was expiring on Saturday, when the judges of the High Court do not sit and whether the Court can be said to be Page 4 of 8 closed on that day and whether the Election Petition presented on Monday can be held to be within time. Rather, in Hukumdev Narain Yadav (supra), the Supreme Court held as follows: “16. In K. Venkateswara Rao v. Bekkam Narasimha Reddi [AIR 1969 SC 872 : (1969) 1 SCR 679 : (1969) 2 SCJ 505] to which we shall refer more fully later, Vidyacharan Shukla case was attempted to be pressed into service, but this Court repelled it and observed at pp. 688-689: “In our view, the situation now obtaining in an appeal to this Court from an order of the High Court is entirely different. There is no Section in the Act as it now stands which equates an order made by the High Court under Section 98 or Section 99 to a decree passed by a civil court subordinate to the High Court. An appeal being a creature of a statute, the rights conferred on the appellant must be found within the four corners of the Act. Sub-section (2) of the present Section 116-A expressly gives the discretion and authority to entertain an appeal after the expiry of the period of thirty days. No right is however given to the High Court to entertain an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117.” this Court 17. Though Section 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where Section 29(2) has been made applicable to an election petition filed under Section 81 of the Act by virtue of which either Sections 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is contended before us that the words “expressly Page 5 of 8 excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law their operation. The provisions of exclude Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117. It will be seen that Section 81 is not the only Section mentioned in Section 86, and if the Limitation Act were to apply to an election petition under Section 81 it should equally apply to Sections 82 and 117 because under Section 86 the High Court cannot say that by an application of Section 5 of the Limitation Act, Section 81 is complied with while no such benefit is available in dismissing an application for the provisions of non-compliance with the Act, or Sections 82 and 117 of alternatively the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to Section 81. Again Section 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or the provisions of if Page 6 of 8 an idiot is inapplicable to an election petition. Similarly, Sections 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial. Lal 23. In Charan Sahu v. Nandkishore Bhatt [(1973) 2 SCC 530.] it was held that there is no question of any common law right to challenge an election as such any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes. It was observed that if no discretion was conferred in respect of any of these matters, none can be exercised under any general law or on any principles of equity. If for non- compliance with the provisions of Sections 82 and 117 which are mandatory, the election petition has to be dismissed under Section 86(1) the presentation of election petition within the period prescribed in Section 81 would be equally mandatory, the non- compliance with which visits the penalty of the petition being dismissed. The answer to the plea that if the petition were to be dismissed, allegations of serious corrupt practices cannot be enquired into and the purity of the elections cannot be maintained that given by Mitter, J., in Venkateswara Rao case [AIR 1969 SC 872 : (1969) 1 SCR 679 : (1969) 2 SCJ 505] where he said at p. 689: is “That is however a matter which can be set right only by the legislature. It is worthy of note that although the Act has been amended on several occasions, a provision like Section 86(1) as it now stands has always been on the statute book but whereas in the Act of 1951 the discretion was given to the Election Commission to entertain a petition beyond the period fixed if it was satisfied as to the cause for delay no such saving clause is to be found now. The legislature in its wisdom has made the observance of formalities and certain provisions obligatory and failure in that respect can only be visited with a dismissal of the petition.” (Emphasis supplied) Page 7 of 8 10. Admittedly, though the cause of action to file the Election Petition arose on 04.06.2024, the Election Petition has been presented on 30.07.2024. The Office has incorrectly pointed out that there is a delay of 1 day in presenting the Election Petition after deducting 10 days consumed towards alleged obtaining of the certified copy. Even 1 day delay in presenting an Election Petition is not condonable, there being no such provision under the Act, 1951. Rather, Section 81 of the Act, 1951 prescribes presentation of Election Petition within 45 days of from, but not earlier than, the date of election of returned candidate. Section 86(1) of the Act, 1951 mandates for dismissal of the Election Petition for non compliance of the provisions of Section 81 or 82 or 117 of the Act, 1951. The defect of delay is not a curable one. 11. Accordingly, the application for condonation of delay so also the Election Petition stand dismissed. 12. Office is directed to communicate the substance of this order to the Election Commission and the Speaker of the State Legislative Assembly at the earliest so also an authenticated copy of this order to the Election Commission, in terms of Section 103 of the Act, 1951, read with Rule 16, under Chapter XXXIII of the High Court of Orissa Rules, 1948. Kanhu Judge (S. K. Mishra) Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 19-Sep-2024 19:14:51 Page 8 of 8