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PETITIONER: CHANDRA KISHORE JHA

       Vs.

RESPONDENT: MAHAVIR PRASAD & ORS.

DATE OF JUDGMENT:       21/09/1999

BENCH: A.S.Anand

JUDGMENT:

DR.  A.S.  ANAND.  CJI :

     Election  of Respondent No.1 to the Bihar  Legislative Assembly  from 86, Ghanshyampur Assembly Constituency,  held in  March, 1995, was challenged by the appellant through  an Election Petition on various grounds.  The Election Petition was   resisted  by  the   returned  candidate  and   certain preliminary  objections  were  also  raised.   The  returned candidate  on  14.8.1997 filed an application under  Section 81(1)  read  with  Section 86 of the Representation  of  the People Act, 1951 (hereinafter the

     Act)  in the High Court of Patna seeking dismissal  of the  election  petition,  on the ground  that  the  petition presented  on 17.5.1995 was beyond the period of  limitation and thus liable to be dismissed under Section 86 of the Act. The  application  was  decided  in favour  of  the  returned candidate  and  the learned designated election  Judge  vide order  dated  3rd  October,   1997  dismissed  the  election petition,  without  trial,  as   terred  by  limitation.   . Aggrieved, the appellant is before us.

     The  only  issue debated before us centers around  the non-filing  of  the election petition within the  preecribed period  of 45 days from the date of election.  Reference  to some  dates, which are not in dispute, becomes necessary  at the outset.

     After  the polling of votes, counting of ballot papers took  place on 31st March, 1995.  The result was declared on 1.4.1995.  (Initially, there was some dispute with regard to the  exact date when the result was declared, i.e.,  whether on  31.3.1995 or 1.4.1995 or 2.4.1995, but both, before  the learned  designated election Judge as well as in this Court, on  the basis of the record, tt has been admitted by learned counsel  for the parties that the result of the election was declared  on 1.4.1995).  The election petition was presented to  me learned designated election Judge m the ’open  Court’ on 17.5.1995.  The prescribed period of 45 days within which the election petition could be filed expired on 16.5.1995.

     At  the time of presentation of the election  petition in  the  open Court, on 17.5.1995, the following  order  was made by the learned designated election Judge:

     "Shri  Chandra  Kishore Jha appears in person  and  is

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duly  Identified  by  his counsel, Shri  P.K.   Verma.   The Election  Petitioner  files an election petition calling  in question  the  election  of respondent  No.1,  Shri  Mahabir Prasad   to   the  Bihar   Legislative  Assembly   from   86 Ghanshyampur Assembly Constituency.  He also files a challan showing  deposit  of  Rs.2,000/- as security  money.   There being  20 respondents the election petitioner has also filed 20  extra  copies of the - election petition attested to  be true copy by the election petitioner under his signature.

     Learned  counsel  while staling the  circumstances  In which  the  election petition has been filed  without  stamp report  mentioned that the necessary challan showing deposit of  the security money had been filed showing the receipt of the  deposit by the Joint Registrar of this Court.  It bears the  date  16.5.95.   The  counsel  also  pointed  out  that necessary  affidavit In support of the election petition had also  been sworn yesterday i.e.  on 16.5.95.  Counsel stated all  this  to support his contention that the  petition  was ready  ’in all respects for being filed yesterday and it has been  handed  over to the Bench Clerk of the court  at  4.05 P.M.   yesterday  itself.  Unfortunately, ’it could  not  be preserved before the court on account of the fact that there was  a death reference at 3.15 P.M.  yesterday and after the reference  the  working of the court had been suspended  for the  rest  of the day.  The Bench Clerk of the  Court,  Shri Santosh  Kumar  Sinha,  who  is  present  testifies  to  the aforesaid fact which had been telephonically communicated to the  Presiding  Officer  of  the   Court  at  his  residence yesterday  itself.  It may be mentioned that counsel for the petitioner  at  the  very out set stated that  he  had  been handed  over  the election petition by the Bench  Clerk  for being presented today"

     The  learned designated election Judge opined that the presentation  of the election petition on 16.5.1995,  before the  Bench  Clerk  was  improper,  the  same  not  being  in conformity  with the High Court Rules and, therefore,  could not  save the period of limitation and that the presentation of the Election Petition made in the open Court on 17.5.1995 was  beyond the period of limitation and hence liable to  be dismissed  under Section 66(1) ’ read with Section 81 of the Act,  notwithstanding  the fa^t that on 16.5.1995,  ’  after 3.15  P.M., designated Judge was not available in the  Court to whom the election petition could be presented in the open Court.

     With  a  view  to  examine   the  correctness  of  the abovefinding,  it  is desirable to take note of some of  the relevant  provisions  of the Rules of the Patna High  Court. Chapter  XXI-E  lays  down Rules for  disposal  of  election petitions  filed  under  Section 81 of the Act.  Rule  6  of Chapter XXI-E reads thus:

     "Subject always to the orders of the Judge, before 9 ’ formal  presentation of the election petition is made to the Judge  in  open  court, it shall be presented to  the  Stamp Reporter of the Court, who shall certify thereon if it is in time  and in conformity with requirements of the Act and the rules  in this behalf, or is defective and shall  thereafter return  the petition to the petitioner for making the formal presentation after removing the defects, if any:

     Provided  that  if on any Court day the Judge  is  not

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available  on account of temporary absence or otherwise, the petitioner;  may be presented before the Bench hearing civil applications and motions.’

     Rule 7 provides:

     "Rule  7(1) - The date of presentation to the Judge or the Bench as mentioned in the proviso to Rule 6 shall be the date of the filing the election petition for the purposes of limitation.

     (2)  Immediately  after it is presented, the  petition shall-  be entered in a special register maintained for  the registration of election petitions.

     Rule 9 reads:

     "(1) As soon as may be, after an election petition has been  presented  and registered, it shall be  placed  before Judge  for such orders as may be required to be passed under Section 86 of the Act.

     (2)  If  the petition is not dismissed  under  Section 86(1)  of the Act, a summons, on the direction of the Judge, shall  be  issued  to the respondents to appear  before  the Judge on a day not earlier than three weeks from the date of the  issue  of the summons, unless otherwise ordered by  the Judge.

     (3)  The summons shall be for filing written statement and  settlement  of  issues  and  shall  be  served  on  the Respondents  through  the District Judge of the district  to which  the respondent belongs or in the district in which he ordinarily  resides, in the manner provided for the  service of  summonses  in  the  Code  of  Civil  Procedure  and  the concerned District Judge will make his best endeavour to get the  summons duly served and make a return of the service of summons before the date Fixed."

     Rule  13 of Chapter II, Part-1 of the High Court Rules reads :

     "In addition to the powers conferred upon him by other rules  the  Registrar  shall have the following  duties  and powers.

     (i)  To  receive  an  appeal under Clause  10  of  the Letters Patent.

     (ii)  To receive an application for Probate or Letters of Administration or for revocation of the same and to issue notices thereon.

     (iii) To receive a plaint or an appeal from the decree or  order  of  a Subordinate Civil Court  and  to  determine whether  it shall be admitted and notice issued at ’once  to the  other  side or be posted for hearing under  Order  XLI, rule 11, or otherwise laid before the Court for orders.

     xxx xxx xxx

     Rule 24 of Chapter XXI-E provides:

     "The  Patna High Court Rules, except in so far as they are  inconsistent with the above rules, shall apply  mutatis

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mutandis  to  all  election petitions.   Where  no  specific provision  is  made in the Act, the Code or the  High  Court Rules,  the  Judge may pass such orders as he  may  consider necessary."

     A  combined  reading of the above Rules shows that  an election  petition is required to be presented, first to the Stamp  Reporter  of the Court, who shall certify thereon  if ’it  is within time and in conformity with the  requirements of  the  Act  and  the  Rulee made  in  that  behalf  or  is defective, and in the event it is found to be defective, the same  shall be returned to the petitioner for making  formal presentation,  after  removing  the defects.   The  election petition  is then required to be presented to ihe designated election  Judge in the ’open Court’.  The proviso to Rule  6 lays down that If

     on  any  Court  day,  the Judge is  not  available  on account  of temporary absence or otherwise, the petition may be presented before the Bench hearing civil applications and motions.   By  virtue  of Rule 7, the date of filing  of  an election  petition for purposes of limitation is the date of presentation  of  the election petition to the Judge or  the Bench  as  mentioned In the proviso to Rule 6.   Thus.   the date  of  presentation of the election petition in the  open Court  to the designated election Judge or to the Bench,  as the  case may be, would be the actual date of filing of  the election petition, for the purposes of limitation.  ’

     Under  Rute  13,  the Registrar of the High  Court  in addition  to his other powers has been clothed with the duty to receive certain memos of appeats, plaints and application for review, revision or restoration.

     Rule  24  of Chapter XXI-E lays down, that  the  Patna High  Court  Rules, except insofar as they are  inconsistent with  the  Rules  contained in Chapter  XXI-E,  shall  apply mute’s  mutandis  to  all election petitions  but  where  no specific  provision  is made in the High Court  Rules,  "the Judge may pass orders as he may consider necessary.

     Having examined the Rules, let us now take note of the fact situation as existing in the present case.  There is no doubt  that in the instant case, the appellant had made  the security deposit and got his affidavit attested

     and  had  twenty copies of the election petition  duly attested  as true copies under his own signatures ready with him.   It is also not in dispute that he did go to the Court of  the  learned designated election Judge at 4.05 P.M.   on 16.5.1995,  fcut,  found him not present in the open  Court. The  learned designated election Judge in the impugned order recorded:’

     "There  is no dispute between the parties that neither the  Court  ’ before which this Election Petition  could  be presented  nor,  the , Bench hearing Civil Applications  and Motions  was available on 16.5.1995 after 3.15 P.M.  when an Obituary  Reference was held to mourn the demise of late Raj Ballav  Prasad Sinha, an Advocate of this Court and the then Hon’ble  the  Chief  Justice declared while  concluding  the Obituary Speech that the Court shall not sit for the rest of the  day.   It  is  in this background that  it  has  to  be examined as to whether the Election Petition could have been

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presented  on  account of non-availability of the Court  and the  Bench  hearing  Civil Applications and Motions  to  the Bench Clerk."

     and  opined  that  the presentation  of  the  election petition  to  the Bench Clerk was not proper.   The  learned designated election judge was of the opinion that in view of Rule  24  of Chapter XXI-E read with Rule 13 of Chapter  it, Part  I  of  the High Court Rules, the  election  petitioner ought  to  have  presented  the  election  petition  to  the Registrar.   In tho words of the learned designated election judge:

     "Admittedly  the  Election Petition was  presented  at 4.05  P.M.  on 16.5.1995 when neither the Hon’ble Judge  nor the Bench hearing Civil Applications & Motions was available and  in  such  a  situation, in  my  opinion,  the  Election Petition  ought to have been presented before the  Registrar of  the Court as it is not in dispute that the Registrar was not available at 4.05 P.M.  on 16.5.1995"

     In  our opinion, reliance on Rule 24 of Chapter  XXI-E read  with  Rule 13(iii) of Chapter II, Part I of  the  High Court  Rules is misplaced.  The plain phraseology of Rule  6 read with the proviso thereto makes it abundantly clear that formal presentation of an election petition can be made only to  the designated election Judge in the open Court and  "if on  any Court day the Judge is not available on account,  of temporary   absence  or  otherwise,   the  petition  may  be presented  before  the Bench hearing civil applications  and motions.   Thus,  the High Court Rules do not prescribe  any other mode of presentation of an election petition except in the  open Court either before the designated election  Judge or  before the Bench hearing civil applications and motions, where  the  designated  election Judge is not  available  on account of temporary absence or otherwise.  The presentation of  an  election  petition  to the Registrar  has  not  been prescribed as a mode of presentation of an election petition by  the Rules.  An election petition is not included in  any of  the clauses of Rule 13.  The learned designated election Judge  rightly  found  that  presentation  of  the  election petition  to the Bench Clerk on 16.5.1995 at 4.05 P.M.   was not a proper presentation under the Rules.  In the absence . of  any provision in the Rules, presentation of an  election petition to the

     Registrar  would not stand at any better footing  than the  presentation  of the petition to the Bench  Clerk.   An election  petition being a purely statutory remedy,  nothing is  to be read into the Rules - nothing is to be presumed  - which  is  not provided for in the Rules.  Rule  24  (supra) cannot  advance  the  case  of the  returned  candidate  any further  because  of the absence of mention of  an  election petition in Rule 13 (supra).

     In  our  opinion  insofar as an election  petition  is concerned,  proper  presentation of an election petition  in the  Patna  High  Court  can  only be  made  in  the  manner prescribed  by  Rule 6 of Chapter XXI-E.  No other  mode  of presentation  of an election petition is envisaged under the Act  or  the  Rules thereunder and, therefore,  an  election petition  could, under no circumstances, be presented to the Registrar  to  save  the  period of  limitation.   It  is  a well-settled  salutary principle that if a statute  provides for  a thing to be done in a particular manner, then it  has

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to be done in that manner and in no other manner.  (See with advantage  :   Nazir  Ahrnad  v.  King  Emperor,  63  Indian Appeals  372=AIR 1936 PC 253;  Rao Shiv Bahadw Singh &  Anr. V.  State of Vindhya Pndwh, 1954 SCR 1098 = AIR 1954 SC 322. State of Utter Pradesh v.  Singhan Singh & Ors., AIR 1964 SC 358 = (1964) 1 SCWR 57] An election petition under the Rules could only have

     been  presented in the open Court upto 16.5.1995  till 4.15  P.M.   (working  hours  of the Court)  in  the  manner prescribed  by  Rule  6 (supra) either to the Judge  or  the Bench  as the case may be to save the period of  limrtation. That, however, was not done.  However, we cannot ignore that the  situation in the present case was not of the making  of the appellant.  Neither the designated election Judge before whom  the  election petition could be formally presented  in the  open Court nor the Bench hearing civil applications and motions  was  admittedly available on 16.5.1995  after  3.15 P.M.,  after  the  Obituary Reference since  admittedly  the Chief Justice of the High Court had declared that "the Court shall  not sit for the rest of the day" after 3.15 P.M.  Law does  not expect a party to do the impossible - impossiblium nulla  obligatioest  as  in the instant case,  the  election petition  could  not be filed on 16.5.1995 during the  Court hours,  as far all intent and purposes, the Court was closed on 16.5.1995 after 3.15 P.M.

     It  is precisely to take care of a situation like this that  Section 10 of the General Clauses Act gets  attracted. It reads :’

     "Computation  of time.  (1) Where, by any Central  Act or  Regulation made after the commencement of this Act,  any act or proceeding is directed or allowed to be done or taken in any

     Court  or  office  on  a   certain  day  or  within  a prescribed period, then, if the Court or office is closed on that  day or the last day of the prescribed period, the  act or  proceeding  shall be considered as done or taken in  due time  if  it is done or taken on the next day afterwards  on which the Court or office is open:

     Provided  that nothing in this section shall apply  to any  act  or proceeding to which the Indian Limitation  Act, 1877 (XV of 1887) applies."

     (Emphasis ours)

     Since,  Indian  Limitation  Act does not apply  to  an election  petition,  Section 10 of the General  Clauses  Act would  apply.  As already noticed, the Patna High Court was, for  all  practical  purposes, closed after  3.15  P.M.   on 16.5.1995.    It  was,  therefore,   not  possible  for  the appellant  to  have presented the election petition  to  the designated  election  Judge or in his absence to  the  Bench hearing  civil applications and motions in the open Court on that  date, which was the last day of the prescribed  period of  limitation.   Thus,  the presentation  of  the  election petition  on the very next date i.e.  17.5.1995, in the open Court,  would be considered, by virtue of Section 10 of  the General  Clauses  Act,  as   presentation  of  the  election petition within the prescribed period of limitation.  In the established facts and circumstances of the case, the learned designated  election  Judge fell in error in denying to  the

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appellant  the benefit of Section 10 of the General  Clauses Act and dismissing the election petition as barred by

     time.   The  order of the learned designated  election Judge  cannot,  under the circumstances, be sustained.   The election petition must proceed to trial on merits.

     Mr.   P.S.   Mishra,  learned senior counsel  for  the returned  candidate - respondent No.l, when faced with  this situation,  submitted that the presentation of the  election petition  in  the  open Court on 17.5.1995 was  also  not  a proper  presentation  because  no certificate of  the  Stamp Reporter  had  admittedly been obtained by the appellant  as required  by Rule 6 of Chapter XXI-E, before presenting  the election  petition,  in  the open Court  to  the  designated election  Judge  and  that the said defect was  fatal.   Mr. S.P.   Singh,  teamed counsel appearing for  the  appellant, countered the submission by asserting that the appellant had done  all  that  was required of him to do  for  filing  the election  petition  and the order of the  teamed  designated Judge dated 17.5.1995, takes care of the objection raised by Mr.   Mishra.  This argument has not been considered by  the learned designated election Judge as presumably the occasion to  raise  it did not arise but be that as it may, we  would not  like to express any opinion on this question.  It would be open to the returned candidate to raise all such pleas as are  available  to  him  in taw, including  the  plea  above noticed,  during  the trial of the election petition  before the learned designated election Judge.  Equally, it would be open to the appellant to resist all such

     pleas in accordance with law.  Alt such pleas shall be decided  by  the learned designated election Judge,  as  and when raised, in accordance with law.

     Thus,  for what we have said above the appeal succeeds and  is allowed.  The impugned order dated 3.10.1997 is  set aside.   The  election petition shall be tried on merits  by the  learned designated election Judge expeditiously.  There shall  be  no  order as to costs insofar as this  appeal  is concerned.