http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  8250 of 2004

PETITIONER: YOUARAJ RAI                             \005    APPELLANT

RESPONDENT: CHANDER BAHADUR KARKI           \005    RESPONDENTS

DATE OF JUDGMENT: 15/12/2006

BENCH: Y.K. SABHARWAL, C.K. THAKKER & R.V. RAVEENDRAN

JUDGMENT: JUDGMENT

WITH CIVIL APPEAL Nos. 8253 AND 8255 OF 2004

C.K. THAKKER, J.

       Appeals admitted.         All the above three appeals raise an interesting and  important question of law as to interpretation of Section  81 of the Representation of the People Act, 1951  (hereinafter referred to as "the Act").         In all these appeals, facts are more or less similar.   The Election Commission of India issued a notification  on March 16, 2004 for holding general election to the  Legislative Assembly for the State of Sikkim. Total  constituencies were 32.  A programme was published  which provided various stages of election.  April 23, 2004  was the last date for filing nomination papers, April 24,  2004 was fixed for scrutiny of nomination papers, April  26, 2004 was the last date for withdrawal of  candidatures, May 10, 2004 was the date of poll, if  necessary, and date of counting and declaration of  results was fixed as May 17, 2004.  The appellants filled  in their nomination papers from 12-Wak Assembly  Constituency, 14-Melli Assembly Constituency and 13- Damthang Assembly Constituency respectively on April  23, 2004.  When nomination papers were scrutinized on  the next date, i.e. April 24, 2004, they were found to be  defective and hence all their nomination papers were  rejected.  The resultant effect was that on April 26, 2004  which was the last date for withdrawal of candidature, in  all the three above constituencies, only one candidate  was in the field.  The Returning Officer, therefore,  declared the first respondent in all the matters elected  (un-contested).  In respect of other constituencies,  however, polling was held on May 10, 2004 and after  counting of votes, results were declared on May 17,  2004.           All the three appellants filed Election Petitions in  the High Court of Sikkim (Election Tribunal) on June 25,  2004. Notices were issued to the respondents-returned  candidates and they appeared. A preliminary objection  was raised by the returned candidates as to  maintainability of petitions on the ground of limitation.   It was contended that in accordance with the provisions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

of Section 81 of the Act, an election petition could be  presented calling in question any election of a successful  candidate within a period of forty-five days from the date  of election of the returned candidate. Since the returned  candidates were declared elected (un-contested) on April  26, 2004, election petitions could be filed only within a  period of forty-five days from that date, i.e. April 26,  2004.  Petitions were admittedly filed on June 25, 2004  and thus they are barred by limitation.  The case of the  election-petitioners, on the other hand, was that date of  poll was May 10, 2004 and date of publication of results  of election under Section 73 of the Act was May 17,  2004. For all material purposes, therefore, relevant date  was May 17, 2004 and not April 26, 2004 and in view of  that fact, election petitions were within limitation.         Considering the controversy between the parties  and a preliminary objection regarding maintainability of  petitions on the ground of limitation, the High Court  raised a preliminary issue as under\027         "Whether the election petition is barred by the  law of limitation as prescribed under Section  81 of the Act?"

       The High Court then heard the learned counsel for  the parties, considered the relevant provisions of the Act  and other laws, referred to the decisions cited at the Bar  and held that the relevant date of commencement of  limitation for the purpose of challenging the election of  returned candidates (un-contested) was April 26, 2004  and not May 17, 2004 as contended by the election- petitioners. Election petitions were, therefore, barred by  limitation.  The High Court, accordingly, dismissed all  the petitions with costs.         Being aggrieved by the order passed by the High  Court, all the appellants have filed these appeals under  Section 116A of the Act.  Notice was issued on January  6, 2005.  The appeals were also ordered to be posted for  hearing.           We have heard learned counsel for the parties.         The learned counsel for the appellants submitted  that the High Court has committed an error of law in  dismissing election petitions filed by the appellants- election-petitioners on the ground of limitation.  He  submitted that reading of the relevant provisions of the  Act makes it abundantly clear that extended period of  limitation is provided in Section 81 of the Act and  petitions filed by the appellants-petitioners were within  the period of limitation. It was also submitted that the  present cases are governed by the second part of Section  81 of the Act and not the first part of the said provision  and High Court erroneously held that the period of  limitation would start from declaration of returned  candidate on April 26, 2004.  The counsel alternatively  argued that even if two interpretations are possible, the  one which would enable the Election Tribunal (High  Court) to consider and decide the case on merits would  be preferred to another interpretation which would non- suit the election-petitioners holding the petitions to be  barred by time.  It was, therefore, submitted that the  order passed by the High Court deserves to be set aside  by allowing these appeals and remitting all petitions to  the High Court, to treat them within time and to decide  them in accordance with law.         The learned counsel for the respondents-returned  candidates, on the other hand, supported the order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

passed by the High Court.  He submitted that the High  Court was wholly justified in dismissing the petitions  and in interpreting the relevant provisions of the Act and  in particular, Section 81 thereof.  According to him, the  relevant date for filing an election petition would be the  date of declaration of returned candidate and once such  declaration was made on April 26, 2004, the limitation  began to run from that date and the defeated candidates  were required to institute election petitions within forty- five days from that date.   Admittedly, petitions were filed  on June 25, 2004 and hence, they were rightly held  barred by limitation.  It was also submitted that  considering the relevant provisions of law, the  amendments made in the Act in 1956 and 1961, the  reasoning and conclusion of the High Court cannot be  faulted with and the appeals deserve to be dismissed. Our attention has been invited by the learned  counsel for the parties to the relevant provisions of the  Act as also of other laws.  Before we deal with the  respective contentions of the learned counsel for the  parties, it would be appropriate if we refer to the relevant  provisions of the Act.  The Preamble of the Act declares  that the Act has been enacted "to provide for the conduct  of elections of the Houses of Parliament and to the House  or Houses of the Legislature of each State, the  qualifications and disqualifications for membership of  those Houses, the corrupt practices and other offences at  or in connection with such elections and the decision of  doubts and disputes arising out of or in connection with  such elections".  Section 2 is a ’legislative dictionary’ and  defines various terms.  It, however, starts with a caveat  and declares that the definition in the said section would  prevail "unless the context otherwise requires".  Clause  (d) of sub-section (1) of Section 2 defines ’election’ as  "election to fill a seat or seats in either House of  Parliament or in the House or either House of the  Legislature of a State".  Sub-section (2) of Section 2  enacts that for the purposes of the Act, "a Parliamentary  constituency, an Assembly constituency, a Council  constituency, a local authorities’ constituency, a  graduates’ constituency and a teachers’ constituency  shall be treated as a constituency of a different class".   Part II deals with qualifications and disqualifications of  membership of Parliament and of State Legislatures.   Part III provides for issuance of notification for general  elections.  Section 15 deals with notification for general  election to a State Legislative Assembly.  Part V relates to  conduct of elections.  Chapter III thereof titled ’General  procedure at elections’ relates to cases where there is  contest as also non-contest.  Section 53 which is  relevant reads thus\027 53. Procedure in contested and uncontested  elections.\027(1) If the number of contesting  candidates is more than the number of seats to  be filled, a poll shall be taken.   

(2)     If the number of such candidates is equal  to the number of seats to be filled, the  returning officer shall forthwith declare all  such candidates to be duly elected to fill  those seats.

(3)     If the number of such candidates is less  than the number of seats to be filled, the  returning officer shall forthwith declare all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

such candidates to be elected and the  Election Commission shall by notification  in the Official Gazette call upon the  constituency or the elected members or  the members of the State Legislative  Assembly or the members of the electoral  college concerned, as the case may be, to  elect a person or persons to fill the  remaining seat or seats.

               Provided that where the constituency  or the elected members or the members of  the State Legislative Assembly or the  members of the electoral college having  already been called upon under this sub- section, has or have failed to elect a person  or the requisite number of persons, as the  case may be, to fill the vacancy or  vacancies, the Election Commission shall  not be bound to call again upon the  constituency, or such members to elect a  person or persons until it is satisfied that if  called upon again, there will be no such  failure on the part of the constituency of  such members.

Sections 54 and 63 which provided procedure at  elections in constituencies which included reserved seats  and method of voting at such elections were  subsequently repealed.  We will deal with that aspect at  an appropriate stage. Chapter IV of the said part relates to poll.  Chapter  V deals with ’Counting of votes’.  Section 64 states that  at every election where a poll is taken, votes shall be  counted by or under the supervision and direction of, the  Returning Officer, and each contesting candidate, his  election agent and his counting agents, shall have a right  to remain present at the time of counting.  Section 66  enacts that when the counting of the votes has been  completed, the Returning Officer shall, in the absence of  any direction by the Election Commission to the  contrary, forthwith declare the result of the election in  the manner provided by the Act or the Rules made under  the Act.  Section 67 requires the Returning Officer to  report the result to the appropriate authority and the  Election Commission and the appropriate authority  would cause to be published in the Official Gazette the  declaration containing the names of the elected  candidates.   Section 67A is also material and reads as under\027          67A. Date of election of candidate.\027For  the purpose of this Act, the date on which  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.

Section 73 of the Act enjoins upon the Election  Commission to issue notification after declaration of  result of elections in all constituencies upon which the  House is deemed to have been duly constituted.  Part VI  relates to "Disputes regarding elections".  Section 80  prohibits questioning of election except by way of  election petition.  Under Section 80A, it is the High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

which can try the election petitions.  Section 81 provides  for presentation of the election petition and prescribes  the period of limitation.  Sub-section (1) thereof is  material which this Court is called upon to interpret and  may be quoted in extenso. 81.     Presentation of petitions.\027(1) An  election petition calling in question any  election may be presented on one or more of  the grounds specified in sub-section (1) of  section 100 and section 101 to the High Court  by any candidate at such election or any  elector within forty-five days from, but not  earlier than the date of election of the  returned candidate or if there are more than  one returned candidate at the election and  dates of their election are different, the later  of those two dates.

       The learned counsel for the appellants concedes  that Section 81 of the Act prescribes period of limitation  and also mandates that an election petition calling in  question any election either by a candidate or by any  elector should be filed within a period of forty-five days  from the date of election of returned candidate.  The  counsel also concedes that in all the three cases, the  returned candidates were declared elected (un-contested)  on April 26, 2004 and considering the said date, election  petitions filed on June 25, 2004 were barred by  limitation.  But the argument of the learned counsel is  that where there are more than one returned candidate  at the election and the dates of their election are  different, Section 81 also gives option to a candidate or  an elector to present such petition within forty-days from  the last date on which one of the candidates has been  declared elected.  According to the counsel, admittedly  the notification for general election to the Legislative  Assembly for the State of Sikkim issued by the Election  Commission expressly stated that there were 32  constituencies for the Legislative Assembly for the State  of Sikkim and election was to be held for all those  constituencies.  The counsel stated that except in three  constituencies wherein the candidates were declared  elected (un-contested), in rest of the constituencies,  elections were held and voting was completed only on  May 10, 2004.  Results in those constituencies were  declared on May 17, 2004.  Election Petitions under the  second part of Section 81, therefore, could be filed within  forty-five days from May 17, 2004.  Considering that  date, election petitions were within the period of  limitation.           It was also submitted that the limitation cannot run  prior to the date of declaration of result of elections  under Section 73 of the Act inasmuch as the election  process could not be said to have come to a final halt  until a declaration as required therein is made so as to  attract the bar contained in Article 329(b) of the  Constitution.           We have already reproduced Section 81 of the Act.   It lays down the period of limitation for filing an election  petition.  Admittedly, it is in two parts.  The first part  provides that an election petition calling in question any  election could be filed by a candidate or an elector within  forty-five days ’from the date of the election of the  returned candidate’.  The second part of the section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

covers those cases where there are more than one  returned candidate at the election and the dates of their  elections are different. In such cases, the later of the two  dates would be the starting point of limitation for the  purpose of filing an election petition.         The learned counsel for the returned candidates  submitted, and in our opinion rightly, that the second  part of Section 81 does not deal with election to  Legislative Assembly or to the House of People (Lok  Sabha), but to Legislative Council of State or to Council  of States (Rajya Sabha).  That part speaks of more than  one returned candidate at the election which is an  eventuality only in the election of Legislative Council of  State or Council of States where at a single election by  the same electorate more than one candidate could be  elected.         In this connection, the learned counsel for the  respondents drew our attention to Articles 80 and 171 of  the Constitution.  Whereas Article 80 deals with  composition of Council of States, Article 171 relates to  Legislative Councils of States.  Clause (4) of Article 171  enacts that the members to Legislative Councils of States  would be elected in accordance with the system of  proportional representation by means of single  transferable vote.  Part VII of the Conduct of Election  Rules, 1961 (hereinafter referred to as ’the Rules’) also  deals with the manner of counting of votes at such  election.  Rules 76 to 81 clearly provide that as soon as a  candidate secures the required quota of votes, he will be  declared elected and surplus votes will be transferred in  favour of remaining candidates as indicated in the ballot  papers as being next in order of preference by the  elector.  By such process, the required number of  candidates to be elected will be declared one by one.   Thus, for instance, if five candidates are to be elected in  an election to the Council of States (Rajya Sabha) from  a particular Legislative Assembly of a State, the dates on  which they would be elected might be different because  of the time required to count the preference of votes  exercised by electors.  No such situation, however, will  arise in case of election to a Legislative Assembly of a  State or House of the People.         The learned counsel also referred to the relevant  provisions of the Act as they originally stood in 1951 and  the amended provisions after the Representation of the  People (Second Amendment) Act, 1956 (Act 27 of 1956)  and the Representation of the People (Amendment) Act,  1961 (Act 14 of 1961).  Section 81 of the Act as it  originally stood prior to the Amendment Act, 1956 did  not expressly provide period of limitation for filing an  election petition.  It, however, provided that an election  petition calling in question any election could be  presented ’in such form and within such time as may be  prescribed’.  The word ’prescribed’ was defined as  ’prescribed by the rules made under the Act’.   Parliament, however, thought it fit to prescribe the  period of limitation.  By the Amendment Act, 1956,  therefore, it amended Section 81 by expressly providing  the period of limitation of forty five days from the date of  election of the ’returned candidate’.  To avoid any doubt  and to make the position explicitly clear as to what  should be the date on which a candidate can be said to  have been declared elected, Parliament also inserted  Section 67A clarifying that the date on which the  candidate is declared elected by the Returning Officer

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

would be the date of election of that candidate.           It is also necessary to bear in mind that Section 53  of the Act provides that if the number of candidates is  equal to number of seats to be filled, the Returning  Officer is required to forthwith declare such candidates  to be duly elected and only in the event of contest, poll  would be held.  Section 66 covers those cases where poll  is felt necessary and requires the Returning Officer to  declare the result of the election forthwith after counting  of votes.           The counsel also submitted that Section 54 of the  Act, as originally enacted, dealt with elections in  constituencies where more than one candidate was to be  elected.  Section 63 laid down method of voting at such  election, i.e. voting in ’plural member constituencies’.   Section 8(2) of the Delimitation Act, 1952 expressly  enacted that ’all constituencies shall be either single  member constituencies or two member constituencies’.   It further stated that ’in every two-member constituency,  one seat shall be reserved either for the Scheduled  Castes or for the Scheduled Tribes and the other seat  shall not be so reserved’.  It is in the light of those  provisions that the provision for limitation contemplated  two types of cases. In a two-member constituency, the  dates on which candidates were declared elected might  be different.  Such a case came up for consideration  before the Constitution Bench of this Court in V.V. Giri v.  D. Suri Dora & Others, (1960) 1 SCR 425 : AIR 1959 SC  138.  It related to Parvatipuram Lok Sabha constituency  in Andhra Pradesh which was a two member  constituency in which one seat was reserved for  Scheduled Caste candidate and other was kept non- reserved/general.   At such election, if there is only one  candidate for the reserved seat (Scheduled Caste),  obviously he would be declared elected as against such  reserved seat as soon as the date of scrutiny is over and  on the date of withdrawal, there is not more than one  candidate.  But for the other seat, i.e. non-reserved/  general seat, if there are more than one candidate after  the date of withdrawal, poll will be held and result will be  declared only after counting of votes.  In such cases, the  later part of Section 81 of the Act would apply and the  benefit of extended period of limitation can be claimed by  the election petitioner.           Section 54 of the Act was, however, deleted by the  Amendment Act, 1961.  Consequently, Section 63 also  was deleted by the same Amendment Act.  Likewise, the  Delimitation Act, 1972 provided readjustment of the  allocation of seats in the House of People and Legislative  Assembly in each State.  Section 9(1) of the said Act  required the Delimitation Commission to distribute seats  in the House of People (Lok Sabha) allocated to each  State and seats assigned to Legislative Assembly of each  State to ’single member territorial constituencies’ and  delimit them on the basis of latest census figures having  regard to the provisions of the Constitution.  It also  provided for reservation of seats for Scheduled Castes  and Scheduled Tribes.  We no longer have multi-member  constituencies.         It may also be appropriate to refer to sub-section (3)  of Section 4 and sub-section (2) of Section 7 of the  Representation of the People Act, 1950 as amended in  1975 and 1980.  Sub-section (3) of Section 4 states that  ’every Parliamentary Constituency shall be a single- member constituency.  Likewise sub-section (2) of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

Section 7 declares that ’every Assembly Constituency  shall be a single-member constituency’.          In view of the above provisions, in our considered  opinion, the second part of Section 81 cannot apply to  any election to a Legislative Assembly, but it would apply  only to Legislative Council of a State or Council of States.   The High Court was, therefore, right in holding that the  relevant date for calculation of the period of limitation  was ’the date of election of the returned candidate’ and  an election petition ought to be filed within forty-five  days from such date.          It was urged that the expression "election" has been  defined in the Act as an election to fill a seat or seats in  either House of the Legislature of a State and when the  said expression is used in Section 81, it would have the  same meaning and it would include election to all  constituencies in the State.         We are unable to uphold the argument. It is true  that the term "election" in Section 2(d) defines as election  to fill a seat or seats in either House of Parliament or  either House of the Legislature of a State.  But it must be  remembered that the Act deals with election of both the  Houses of Parliament and State Legislatures and defines  the expression "election".  Moreover the opening words of  Section 2 are "unless the context otherwise requires".   Hence, while construing, interpreting and applying the  definition clause, the Court has to keep in view the  legislative mandate and intent and to consider whether  the context requires otherwise.  As already observed  earlier, Section 81 which is in two parts deals with  different situations.  The first part applies to a Legislative  Assembly while the second part applies to a Legislative  Council.         The learned counsel for the respondent rightly  relied on the following observations of the High Court of  Kerala in P.R. Francis v. A.V. Aryian, AIR 1968 Ker 252;         Under Section 81 of the Act, ’an election  petition calling in question any election may be  presented \005by any candidate at such election  or any elector’ and Section 80 prohibits an  election being called in question except by an  election petition presented in accordance with  Section 81. ’Election’ in this context means  not the general election or the entirety of  the elections held in the State, but one  election held in one constituency.  A  challenge to the entirety of elections held in the  State is therefore within the taboo of Section 80  of the Act.  (emphasis supplied)

       Upholding of submission that the limitation for  filing an election petition should be reckoned not with  reference to the date on which the candidate whose  election is challenged was declared elected, but with  reference to the date on which the last candidate was  declared elected at a general election would not only  make the provision cumbersome and contrary to the  provisions of the Act, particularly against the scheme of  amendments introduced in 1956 and 1961 but would  also make the starting point of limitation uncertain,  indefinite and fluctuating.  Such construction would  require complete details of all returned candidates of  Legislative Assembly of a State.  Moreover, where the  challenge is to an election of a Member of House of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

People (Lok Sabha), full particulars in different  constituencies throughout the country must be before  the Election Tribunal (High Court). The Tribunal also is  bound to inquire into such particulars with a view to  ascertaining whether the election petition filed by the  petitioner is or is not within the period specified in  Section 81 of the Act.  Again, in case of dispute or  contest on the issue of limitation, the Election Tribunal  is required to call for and inspect records of all  constituencies.  Unless compelled, a court of law would  not interpret a provision in such a way which would  frustrate legislative intent and make the provision  unworkable and impracticable.

       Finally, the interpretation sought to be suggested  by the respondents is otherwise reasonable, just and  equitable inasmuch as it has nexus with the ’cause of  action’.  When a defeated candidate or an elector has  grievance against an act of declaring a particular  candidate successful at the election, his cause of action  arises as soon as such declaration is made.  He,  therefore, can challenge that act.  He is not concerned  with other constituencies or candidates.  He cannot be  allowed to join his cause of action with declaration of  results in other constituencies or returned candidates in  those constituencies. [Shri Chandrakant Shukla v.  Maharaja Martand Singh, (1973) 3 SCC 194 : AIR 1973  SC 584]

       Thus, taking any view of the matter, we find no  infirmity in the order passed by the High Court which  calls for interference by this Court.

       For the foregoing reasons, all the appeals deserve to  be dismissed and are hereby dismissed with costs.

       In view of dismissal of appeals, we express no  opinion on an application seeking substitution in Civil  Appeal No. 8253 of 2004.