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CASE NO.: Appeal (civil)  595 of 2004

PETITIONER: Raj Kumar Yadav

RESPONDENT: Samir Kumar Mahaseth and Ors.

DATE OF JUDGMENT: 11/03/2005

BENCH: CJI R.C. Lahoti, D.M. Dharmadhikari & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

R.C. Lahoti, CJI

                An election petition presented under Section 81 of the  Representation of the People Act, 1951 (hereinafter "the Act",  for short) has been directed to be dismissed as barred by time.   Feeling aggrieved, the election petitioner has filed this appeal  under Section 116A of the Act.

       Shorn of all details, suffice it to state that the last date of  limitation for presenting the election petition was 28.8.2003.   What transpired in the High Court at the presentation may be  described in the words of the learned designated Election Judge   himself from the impugned judgment of the High Court.  The  relevant part is extracted and reproduced hereunder :

"\005\005\005..The admitted position is that the period  of limitation of forty five days expired on  27.8.2003 on which date the designated Judge  was sitting in court till 4.15 P.M.  The court  hours having expired, the designated election  Judge retired into the chambers where at 4.45  P.M. Sri P.K. Verma, the learned counsel for  the appellant came and wanted to file this  election petition.  Since under High Court Rules  the election petitions could be filed only in the  open court, I, as the designated election Judge  refused to accept the petition beyond court  hours. Learned counsel said that though  petition was made ready that very day for  presentation, because of some delay in  finalizing it, he had gone to the court after  court hours but by that time the Judge had  retired to his chambers.  Learned Counsel also  requested in chambers that the Court Officer  might be directed to accept that by making an  initial over the petition noting the time of  presentation so that the petition might be  presented on the next working day.  Since  High Court Rules did not permit that, I refused  that prayer also.

       This was how the learned counsel  presented the petition in the open court on  28.8.2003\005\005\005"

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       The question arising for decision is : whether an election  petition presented at 4.25 p.m. on 27.8.2003, the last date of  limitation, admittedly 10 minutes after the Judge had risen from  the open court but was available in chambers within the court  premises can be said to be a valid presentation so as to be  within the period of limitation?

       Article 329 of the Constitution provides inter alia that no  election to either House of Parliament or to the House or either  House of the Legislature of a State shall be called in question  except by an election petition presented to such authority and in  such manner as may be provided for, by or under any law made  by the appropriate Legislature.  Under Section 80 of the Act, no  election shall be called in question except by an election petition  presented in accordance with the provisions of Part VI of the Act.  Under Section 80-A, the High Court has been conferred with  jurisdiction to try an election petition.  Such jurisdiction shall be  exercised ordinarily by a single Judge of the High Court assigned  for that purpose by the Chief Justice.  Under Section 81 of the  Act, an election petition may be presented within forty five days  from the date of election.  The rule making power for carrying  out the purpose of the Act has been conferred on the Central  Government under Section 169.  The Act does not confer power  on the High Court to make any rules.  However, the rule making  power vests in the High Court under Article 225 of the  Constitution.

       The present matter arises from the High Court of Patna.   Chapter XXI-E of the High Court Rules framed by the Patna High  Court incorporates the rules for the disposal of election petition  filed under Section 81 of the Act. Rules 6 and 7, relevant for our  purpose, are reproduced hereunder :  

"6. Subject always to the orders of the Judge,  before a 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 the 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 available on account of temporary  absence or otherwise, the petition may be  presented before the Bench hearing civil  applications and motions.

7. (1) The date of presentation to the Judge or  the Bench as mentioned in the proviso to Rule  6 shall be deemed to be the date of the filing  of 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."

       The limitation provided by Section 81 of the Act expires on  45th day from the date of election.  The word ’day’ is not defined

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in the Act.  It shall have to be assigned its ordinary meaning as  understood in law.  The word ’day’ as per English calendar  begins at midnight and covers a period of 24 hours thereafter, in  the absence of there being anything to the contrary in the  context (See : Ramkrishan Onkarmal Agarwal v. State of  Maharashtra AIR 1994 Bom 87, 94; The Municipal Council of  Cuddalore  v.  S. Subrahmanya Aiyar 16 MLJ 101; The Law  Lexicon, P. Ramanatha Aiyar, pp. 470, 471). Thus, the  election petition could have been presented upto the midnight  falling between 27th and 28th of August, 2003.

       The statutory period of limitation as provided by the Act  cannot be taken away by the Rules framed by the High Court  governing its procedure.  The rules framed in exercise of the  power conferred by Article 225 relate to procedural matters and  cannot make nor curtail any substantive law. (See : Prabhu  Narayan  v.  A.K. Srivastava (1979) 3 SCC 788, para 5).  In  S.A. Ganny  v.  I.M. Russell  (1930) ILR 8 Rangoon 380 Carr J.  said, "I am very clearly of opinion, independently of the  authorities to that effect, that a High Court has no power to alter  by rule any period of limitation prescribed in the Limitation Act.   I am, however, also of opinion that when the High Court by rule  gives a right of application for which no period of limitation is  already prescribed  the Court may also fix the period within that  right must be exercised."  And, Cunliffe J. said, "High Court  Rules approximate very closely to Bye-laws.  They can be altered  at will. They can be canvassed. They are subordinate and  domestic enactments. They must be intra vires of the power  from which they derive and any other power in pari materia."  In  our opinion, the length of any period of limitation provided by a  statute cannot be curtailed by rules of procedure framed by High  Court. When the statute prescribes a particular day or date as  the last day for any act being performed, it can be so done upto  as late as the midnight immediately preceding the  commencement of the next day.             We are also of the opinion that the High Court has not  correctly interpreted Rules 6 and 7 of the High Court Rules. The  rules are not meticulously well-drafted rules taking care of  myriad situations which may arise. They appear to be more in  the nature of directions aiming at convenient and smooth  functioning of the High Court dealing with election petitions as  also streamlining the procedure and practice of presentation.   The designated Election Judge can always issue such orders as it  may deem fit in the matter of presentation of the election  petition.  If the court is open, it is desirable that a formal  presentation of the election petition is made to the Judge while  sitting in open court.  As the Judge himself is not expected to  scrutinize the defects in the election petition presented to him,  Rule 6 expects the election petition to be presented first to the  Stamp Reporter of the court and then carried to the Judge for  formal presentation.  While presentation to the Stamp Reporter  of the court is a presentation, the presentation before Judge in  open court is a formal presentation. There would be nothing  wrong if the election petitioner presents the election petition to  the Stamp Reporter whereafter the election petition is carried to  the Judge in open court either by the election petitioner or his  counsel or by the Stamp Reporter or any official of the Registry  under his directions. The Rule contemplates such presentation  before the Stamp Reporter and the formal presentation to the  Judge taking place on the same day and almost simultaneously  as two steps of one transaction and in this background the date  of presentation to the Judge or the Bench as described in Rule 6  is deemed to be the date of filing of the election petition. The  process can also be reverse.  If Stamp Reporter is not available,

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the election petition may be presented to the Judge who may  then send it for scrutiny to the Stamp Reporter or any other  official of the Registry. At the time of presentation, the Judge  may not be sitting in open court, but that does not mean that  the Judge cannot receive the election petition.  He can receive it  and then send it to the Stamp Reporter of the court.   

       In Jamal Uddin Ahmad v. Abu Saleh Najmuddin and  another (2003) 4 SCC 257, this Court has held that receiving an  election petition presented under Section 81 of the Act is  certainly not a judicial function which necessarily needs to be  performed by a Judge alone; it is a ministerial function which  may be performed by a Judge himself or be left to be performed  by one of the administrative or ministerial staff of the High Court  which is as much a part of the High Court.   

       As held by this Court in The State of Punjab and  Another vs. Shamlal Murari and Another (1976) 1 SCC 719,  "processual law is not to be a tyrant but a servant, not an  obstruction but an aid to justice.  Procedural prescriptions are  the handmaid and not the mistress, a lubricant, not a resistant in  the administration of justice."  The election petition, in the  present case, could have been presented at any time upto the  midnight falling between 27th and 28th August, 2003 and it would  be treated as filed within the period of limitation.

       Confining the filing time to the working hours of the court  is not what is specifically spelt out by Rules 6 and 7 of the Patna  High Court Rules. The High Court, in its impugned judgment,  seems to have thought that the election petition could have been  presented only to the Judge and that too in the open court.  The  Judge would ordinarily sit in open court upto 4.15 p.m. of the  day as per the rules or practice of the High Court but that time is  not the end of that day.  The availability of time falling within the  meaning of the word ’day’, as provided by Section 81 of the Act,  cannot be curtailed by making a provision in the rules contrary  to the Act itself.  Ordinarily, no litigant and lawyer would like to  delay the presentation till the fag end of the day and then  present it at an odd time to the inconvenience of the Judge  wherever he may be.  However, exceptional situations cannot be  completely ruled out.  It would be better if the ministerial act of  receiving the election petition presented to the High Court is left  to the administrative or ministerial staff of the High Court either  by clarifying or by making a suitable amendment in the Rules of  the Patna High Court.

       In Hukumdev Narain Yadav v. Lalit Narain Mishra  (1974) 2 SCC 133, Election Petition Rules framed by Patna High  Court came up for the consideration of the court and it was held  that it may be that the presentation to the Judge will be the date  of filing for the purpose of limitation, but that does not exclude a  different procedure for filing in a case where limitation is about  to expire and the conditions prescribed by Rule 6 in the matter  of presentation cannot be complied with.  Under the general  rules governing the practice as to presentation of pleadings and  documents in the High Court, an election petition can be  presented on the last day of limitation, when the judges are not  sitting to receive or entertain an election petition, to the  Registrar or in his absence to some other officer in the Registry  authorized to receive such presentation.   

       In Chandra Kishore Jha v. Mahavir Prasad and others  (1999) 8 SCC 266, a different fact situation arose and the  observation made by this Court therein, have to be read and  understood in the light of the fact situation, which the Court was

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called upon to deal with.  The question whether an election  petition can be presented to the Judge only in open court and  not elsewhere did not arise for decision.  At a few places the  reference made to ’presentation in open court’  is simply by way  of reproducing the language of the Rule and not a finding of this  Court or the ratio of the decision.  However, the Court did hold  that the applicability of Section 10 of the General Clauses Act,  1897 to Section 81 of the Act was not excluded.  If it was not  possible for the election petitioner to have presented the election  petition to the designated Election Judge or in his absence to the  Bench (as provided by the proviso to Rule 6) on the last day of  the prescribed period of limitation then the presentation of the  election petition on the very next day in the open court would be  valid.  Law does not expect a party to do the impossible \026  impossibilium nulla obligatio est.  

       Reverting back to the facts of the present case, we find  that the election petition was handed over to the designated  Election Judge on the last day of limitation at 4.25 p.m. when  the learned Judge was still available within the court premises  though he was not sitting in the open court, as the prescribed  time of 4.15 p.m. ordinarily meant for transacting judicial work  was over.  The learned Judge did not himself receive the  presentation nor did make any other order such as the one  directing any official of the Registry to receive the same. The  election petitioner had done all that was within his power to do  for the purpose of presentation but he failed.  He made the  presentation on the next day when the Judge was available and  sitting in the open court.  The presentation would be deemed to  be within limitation and valid.

       The learned designated Election Judge of the High Court  has erred in holding the presentation to be barred by limitation.   The view so taken cannot be countenanced.

       The appeal is allowed. The impugned judgment of the High  Court dated 10.9.2003 is set aside.  The election petition is held  to have been filed within prescribed period of limitation.  The  High Court shall now proceed to deal with the petition in  accordance with law.

       No order as to the costs in this appeal.

       Parties through their respective counsel are directed to  appear in the High Court on 4.4.2005.