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CASE NO.: Appeal (civil) 2937  of  2000

PETITIONER: TARUN PRASAD CHATTERJEE

       Vs.

RESPONDENT: DINANATH SHARMA

DATE OF JUDGMENT:       10/10/2000

BENCH: R.C.Lahoti, K.G.Balakrishna

JUDGMENT:

Balakrishnan, J. L.....I.........T.......T.......T.......T.......T.......T..J

     The  short question involved in the present appeal  is whether in computing the period of limitation as provided in Section  81(1)  of  the Representation of  the  People  Act, 1951(hereinafter  mentioned as "R.P.  Act, 1951"), the  date of  election of the returned candidate should be excluded or not.

     The  appellant and the respondent herein contested the election of the Legislative Assembly held on 25.11.1998 from 127,  Raipur Gramin Assembly Constituency of Madhya Pradesh. The  appellant  was  declared elected  on  28.11.1998.   The respondent filed an Election Petition under Section 81(1) of the  R.P.   Act,  1951  challenging   the  election  of  the appellant.   That  Petition  was filed  on  12.1.1999.   The appellant  filed  an application under Order 7 Rule  11  CPC read with Section 81 of the R.P.  Act 1951, praying that the Election  Petition  was  liable  to   be  dismissed  at  the threshold as not maintainable as the same had not been filed within  45  days from the date of election of  the  returned candidate.  The respondent contended that in view of Section 9  of  the General Clauses Act, 1897, the Election  Petition was  filed  in time.  The plea of the  respondent  Election Petitioner was accepted by the learned Single Judge and that decision is assailed before us.

     We  heard  both  Mr.  P.P.  Rao,  the  learned  senior Counsel  on behalf of the appellant and Mr.  B.S.   Banthia, learned Counsel on behalf of the respondent.  The contention of  the appellant’s Counsel is that in view of the  specific language  used  in  Section  81(1) of the  R.P.   Act  1951, Section   9  of  the  General   Clauses  Act,  1897  has  no application and it was argued that the mandate of Section 81 of  the R.P.  Act provides that the Election Petition should be  filed  within 45 days of the date of election and not  a

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single  day beyond that, whereas the learned Counsel for the respondent  contended that Section 9 of the General  Clauses Act,  1897  is  applicable and the date of election  of  the returned  candidate  is  to  be  excluded  in  view  of  the application of Section 9 of the General Clauses Act, 1897.

     In  order  to  appreciate the rival  contentions,  the relevant  provisions  of  the R.P.  Act,  1951  and  General Clauses  Act, 1897 are to be looked into.  Section 81 of the R.P.  Act, 1951 reads as follows:-

     81.   Presentation  of petitions.   (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 candidates  at the election and dates of their election  are different, the later of those two dates.

     Explanation.   In this sub-section, "elector" means a person who was entitled to vote at the election to which the election  petition  relates,  whether he has voted  at  such election or not.

     (3) Every election petition shall be accompanied by as many  copies  thereof as there are respondents mentioned  in the  petition  and every such copy shall be attested by  the petitioner  under his own signature to be a true copy of the petition.

     (Emphasis added)

     The  "date of election" of the returned candidate  has been  defined  under Section 67(A) of the R.P.   Act,  1951, which is as under:-

     "Date  of election of candidate  For the purposes  of this  Act, the date on which a 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  the State shall be the date of election  of that candidate."

     Section  9  of the General Clauses Act, 1897 reads  as follows:-

     9.   Commencement  and termination of time.   (1)  In any Central Act or Regulation made after the commencement of this  Act,  it  shall  be sufficient,  for  the  purpose  of excluding  the first in a series of days or any other period of  time,  to use the word "from", and, for the  purpose  of including  the last in a series of days or any other  period of time, to use the word "to".

     (2)  This  section  applies to all Central  Acts  made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887."

     As  per Section 81(1) of the R.P.  Act, the period  of limitation  prescribed  for filing an election  petition  is

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forty-five  days  from the date of election of the  returned candidate.   It  is  also stated that it may  not  be  filed earlier  to the date of election of the returned  candidate. Prior  to Act No.  27 of 1956, the period of limitation  for presentation  of  election  petition  was  not  provided  in Section  81(1)  of  the  R.P.  Act,  1951.   The  period  of limitation  for  presentation  of   election  petition   was provided  under  Rule  119 of Representation of  the  People (Conduct  of Election & Election Petitions) Rules, 1951.  In this  code of rules, by Rule 2(6), it was expressly provided that  the provisions of the General Clauses Act would apply. This  express  provision  was  required  since  the  General Clauses Act would not normally be applicable to Rules framed under the Central Act.  By Act No.  27 of 1956, a prescribed period  for  presentation  of petition  was  provided  under Section  81(1) of the R.P.  Act, 1951 instead of giving such legislative  power to the rule making authority.  R.P.  Act, 1951 being a self-contained code, it was held by courts in a series  of  decisions that the provisions contained  in  the Limitation  Act have no application.  However, in a line  of decisions  it  has  also  been   held  that  the  provisions contained  in  General Clauses Act, 1897 are  applicable  in computing  the  period  of limitation  for  filing  election petition  under  the R.P.  Act., 1951.  There is nothing  in Section  81(1) to indicate that the provisions contained  in the General Clauses Act have no application.

     This   question  came  up   for  consideration  in  K. Venkateswara  Rao  & Another vs.  Bekkam Narasimha  Reddi  & Others  AIR 1969 SC 872 and it was held that Sections 9  and 10  of the General Clauses Act would apply in computing  the period  of limitation under Section 81(1) of the R.P.   Act, 1951.  It was observed in Para 20 at page 879 as under:-

     "It is to be noted however that even though the Indian Limitation Act, 1963 does not apply to an election petition, provisions like Section 9 and 10 of the General Clauses Act, 1897  providing  for computation of time which are  in  pari materia with Section 12(1) and 4 of the Limitation Act would apply to such a petition."

     In  Manohar Joshi vs.  Nitin Bhaurao Patil & Anr.  AIR 1996 SC 796, this question was dealt with in detail and this Court  held  that Section 10 of the General Clauses  Act  is applicable  to the presentation of election petition.   [See also:   H.H.  Raja Harinder Singh vs.  S.  Karnail Singh and Ors.   AIR  1957 SC 271;  Hukumdev Narain Yadav  vs.   Lalit Narain Mishra, AIR 1974 SC 480;  Simhadri Satya Narayana Rao vs.  M.  Budda Prasad and Ors.1994 Supp.  (1) SCC 449.)

     So there cannot be any dispute to the proposition that Section  9  of  the  General  Clauses  Act  would  apply  in computing  the  period of limitation under Section 81(1)  of the  R.P.  Act, 1951.  However, the contention urged by  the learned  Counsel for the appellant in this case is that even if  it  is  held  that Section 9 has  an  application  to  a petition  filed under Section 81(1) of the R.P.  Act,  1951, it  could be applied only in appropriate cases and is not to be  applied universally.  The contention of the appellant is that  in  view of the specific language employed in  Section 81(1)  of the R.P.  Act, 1951, the words "within" and "from" used   therein  would  indicate  that   Section  9  has   no application.  It was also urged that the legislative mandate is that the election petition should be filed within 45 days from  the date of election of the returned candidate and not

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earlier  than  the  said date or after 45 days of  the  said date.   On these premises, it was argued that section 9  has no application in the instant case.

     Section  9  of  the General Clauses  Act,  1897  gives statutory  recognition  to  the  well-established  principle applicable  to the construction of statutes that  ordinarily in  computing  the  period  of  time  prescribed,  the  rule observed is to exclude the first and include the last day.

     In  Halsbury  Laws of England, 37th Edition, Volume  3 page 92, it is stated as follows:-

     "Days  included or excluded.   When a period of  time running  from a given day or even to another day or event is prescribed  by  law or fixed as contract, and  the  question arises  whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last- mentioned day,  regard must be had to the context and to the  purposes for  which  the computation has to be made.  Where there  is room  for doubt, the enactment or instrument ought to be  so construed  as to effectuate and not to defeat the  intention of  Parliament  or  of  the parties, as  the  case  may  be. Expressions  such as "from such a day" or "until such a day" are  equivocal, since they do not make it clear whether  the inclusion or the exclusion of the day named may be intended. As  a general rule, however, the effect of defining a period in  such a manner is to exclude the first day and to include the last day."

     Section  9 says that in any Central Act or  Regulation made  after  the  commencement of the General  Clauses  Act, 1897,  it  shall be sufficient for the purpose of  excluding the  first in a series of days or any other period of  time, to  use  the word "from", and, for the purpose of  including the  last in a series of days or any period of time, to  use the  word  "to".   The principle is that when  a  period  is delimited by statute or rule, which has both a beginning and an end and the word "from" is used indicating the beginning, the  opening day is to be excluded and if the last day is to be  excluded  the  word  "to" is to be used.   In  order  to exclude the first day of the period, the crucial thing to be noted  is whether the period of limitation is delimited by a series  of days or by any fixed period.  This is intended to obviate the difficulties or inconvenience that may be caused to some parties.  For instance, if a policy of insurance has to  be  good for one day from the 1st January, it  might  be valid only for a few hours after its execution and the party or  the  beneficiary in the insurance policy would  not  get reasonable  time  to  lay claim, unless the 1st  January  is excluded from the period of computation.

     It  was argued that the language used in Section 81(1) that  "within forty-five days from, but not earlier than the date  of  election  of the returned candidate"  expresses  a different intention and Section 9 of the General Clauses Act has  no  application.   We  do not find any  force  in  this contention.   In  order  to  apply   Section  9,  the  first condition  to be fulfilled is whether a prescribed period is fixed  "from" a particular point.  When the period is marked by  terminus  a  quo  and terminus ad  quem,  the  canon  of interpretation  envisaged  and  Section  9  of  the  General Clauses  Act,  1897 require to exclude the first  day.   The words  "from" and "within" used in Section 81(1) of the R.P.

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Act, 1951 do not express any contrary intention.

     By Section 81(1), the legislation fixes the period for filing election petition and at the same time states that no elector or candidate shall file election petition before the date  of election of the returned candidate and if there are more  than one returned candidates at the election and dates of  their  election  are different, the later of  those  two dates.   The  learned  senior   Counsel  for  the  appellant contended  that if the date of election of the candidate  is excluded from computing the period of limitation of 45 days, the  period of limitation would be extended by one day  and, therefore, it is against the mandate of the statute.  It was also  contended  that the filing of the application  on  the date  of  election  of  the  returned  candidate  cannot  be considered  as a valid presentation of petition as envisaged in   the   section.   We  do   not  think  that   any   such interpretation  is possible by a conjoint reading of Section 81(1)  of  the R.P.  Act, 1951 and Section 9 of the  General Clauses  Act,  1897.   The  first  day  for  the  period  of limitation is required to be excluded for the convenience of the  parties and if the declaration of the result is delayed or is done late in the night, the candidate or elector would hardly  get  any  time  for  presentation  of  the  election petition.   Law comes to the rescue of such parties to  give full   forty-five  days  period   for  filing  the  election petition.   Nevertheless, any petition presented on the date of  election  of the returned candidate would  be  certainly within  the period of limitation as it is a presentation  on the date of election of the returned candidate.

     In  the  instant  case, the date of  election  of  the returned  candidate being 25.11.1998, the election  petition filed  on  12.1.1999  on  exclusion of the  first  day  from computing  the  period  of limitation, was in time  and  the learned Single Judge rightly dismissed the petition filed by the  appellant.   This appeal is without any merits and  the same is dismissed, however, without costs.

     .....................................CJI