CM No.5-E of 2007 in
Election Petition No.22 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CM No.5-E of 2007 in
Election Petition No.22 of 2007
Date of Decision: 9.7.2008
Sukhbeer Singh .....Petitioner
Vs.
Amarinder Singh ....Respondent
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Mr. Dheeraj Jain, Advocate for the petitioner.
Mr. M.L. Saggar, Sr.Advocate with Mr.G.P. Vashisht,
Advocate for the respondent.
RAJIVE BHALLA, J (Oral)
C.M. No.5 E of 2007
Prayer in this application, filed under Section 5 of the
Limitation Act, is to condone the delay of four days in the filing of the
Election Petition.
Counsel for the petitioner submits that though the election
petition was filed within limitation, the application for condonation of delay
had to be filed, as the Registry raised an objection that the election petition
is time barred. It is contended that the election petition was filed within the
period of limitation, prescribed under Section 81(1)of the Representation of
People Act, 1951 (hereinafter referred to as `the Act’). General Elections to
the Punjab Vidha Sabha were held on 13.2.2007. As the result of the
present election was declared on 27.2.2007, the limitation, for filing an
election petition, as prescribed under the Act expired on 13.4.2007. The
election petition was filed on 16.4.2007. The period of limitation, however,
CM No.5-E of 2007 in
Election Petition No.22 of 2007 2
stood extended to 16.4.2007, as the Punjab and Haryana High Court was
closed for a spell of vacations from 9.4.2007 to 15.4.2007. The High Court
reopened on 16.4.2007, on which date, the petitioner filed the election
petition.
It is further submitted that the Additional Registrar (J), after
scrutiny under Rule 14(a) of Chapter 4-GG, High Court Rules and Orders,
Vol.V., incorrectly recorded a note that the election petition was barred by
limitation. The relevant extract of the note reads as follows :-
1. An election petition is required to be filed within 45 days
from the date of declaration of result as provided in Section
81(1) of the Representation of People Act, 1951. The result
was declared in this case on 27.2.2007 and 45 days have
expired on 13.4.2007 but it has been filed on 16.4.2007 i.e.
on 48th day. The High Court was closed w.e.f. 8th April, 7-
15th April 2007, due to a spell of holidays from 7-15th April.
However, the election branch as well as the Cash Branch of
this Hon’ble Court remained open upto 13.4.2007 for
receiving election petitions as limitation of filing the
petition was going to expire on 13.4.2007.”
It is argued that the note recorded by the Additional Registrar
(J) that the limitation expired on 13.4.2007, as the election and cash
branches remained open upto 13.4.2007, for receipt of election petitions, is
incorrect, as it disregards a significant fact that the notification of holidays,
the subsequent amendment thereto and the daily cause list, issued on the eve
of the aforementioned spell of vacations by the Hon’ble High Court, does
not state that election petitions could be filed and would be entertained by
CM No.5-E of 2007 in
Election Petition No.22 of 2007 3the Registry of the Hon’ble High Court. The daily cause list, does not state
that the election branch or the cash branch would be open for filing and
receipt of election petitions nor does it identify a designated officer, who
would receive election petitions, during this spell of vacations.
It is further contended that as per the notification of holidays,
dated 6.12.2006, Annexure A-1, 9th to 13th April 2007 were local holidays,
14th April 2007 was a holiday being Baisakhi/B.R. Ambedkar’s Jayanti and
15th April 2007 was a Sunday. The High Court, therefore, remained closed
from 9th April 2007 to 15th April 2007. The period of 45 days, prescribed by
Section 81(1) of the Act, expired on 13th April 2007, but the limitation for
filing of an election petition, stood extended to 16th April 2007, in view of
Section 10 of the General Clauses Act.
It is further submitted that the cause list issued on the eve of
the vacations, Annexure A-4, makes a reference to Habeas Corpus
petitions, pre-arrest bail matters and such other urgent matters, if any,
received during the aforesaid spell as may be permitted by the Hon’ble
Vacation Judge, through the Registry. The note does not state that the
election branch or the cash branch would remain open for receiving
election petitions and does not identify a designated officer, empowered to
receive election petitions during this spell of vacations. It is, therefore,
urged that the petitioner was of the bonafide opinion that election
petitions could not be filed and would not be entertained during this spell
of vacations and could, therefore, be filed on reopening of the High Court.
The petitioner, therefore, filed his election petition on the reopening day
on 16.4.2007.
It is further submitted that Annexure A-3 dated CM No.5-E of 2007 in Election Petition No.22 of 2007 4 29.3.2007/14.4.2007, a notification issued to amend the notification ofholidays, issued after the result was declared, strangely enough does not
state that election petitions can be filed during vacations. It is, therefore,
submitted that as limitation for filing election petitions expired during
vacations, the last day for filing the election petition would be extended to
16.4.2007, in view of Section 10 of the General Clauses Act.
For the above submissions, the petitioner places reliance upon a
judgement of the Hon’ble Supreme Court reported as Simhadri Satya
Narayana Rao V. M. Budda Prasad 1994 Suppl (1) SCC 449,where it is
emphasised, that the Hon’ble Supreme Court, while considering, a situation
identical to the situation as obtains in the instant petition, held that as the
Andhra Pradesh High Court was closed for all purposes, except for
applications of an urgent nature, the petitioner was entitled to invoke
Section 10 of the General Clauses Act to assert that the election petition
though presented after 45 days, was within limitation. Reliance is also
placed upon another judgement of the Hon’ble Supreme Court, namely
Hari Shanker Tripathi V. Shiv Harsh and others , 1976(1) SCC 897.
Counsel for the petitioner also refers to Rule 11(ii) of Chapter
4 of Part GG,Vol.V of the High Court Rules and Orders, to submit that as
per the aforementioned rule, an election petition is to be presented to the
Registrar during office hours on any working day. As 9th to 15th April 2007
were not working days, the petitioner could not have presented the election
petition, during this period. It is, therefore, prayed that as the election
petition has been presented within limitation,the objections raised by
Additional Registrar (J) be rejected and it be held that the election petition
has been filed within limitation.
CM No.5-E of 2007 in
Election Petition No.22 of 2007 5Counsel for the respondent, on the other hand, strongly refutes
the correctness of the above submissions and argues that the application for
condoning delay and the election petition must be dismissed. The
application filed under Section 5 of the Limitation Act is not maintainable
as the Limitation Act does not apply to proceedings under the
Representation of People Act. It is further submitted, by relying upon the
Punjab and Haryana High Court Rules and Orders, Vol.V Chapter 4, Part
GG that an Election petition is to be presented before a designated officer
and not before an Hon’ble Judge, as was the situation before the Andhra
Pradesh High Court. The judgement of the Hon’ble Supreme Court in
Simhadri Satya Narayana Rao (supra) would not, therefore, apply to the
present case. As per the objections raised by the Additional Registrar (J),
the election and the cash branches were open during vacations and an
officer was available for receiving election petitions. It is further submitted
that during this spell of vacations, 21 election petitions were filed upto 13th
April 2007. It is further contended that the notification of holidays issued
by the Punjab and Haryana High Court, as also the note appearing in the
cause list does not prohibit the filing of an election petition during the spell
of vacations. The petitioner’s submission that he could only file the election
petition on reopening is, therefore, incorrect.
It is further submitted that in view of the High Court Rules and
Orders, the election branch remains open throughout the year, more
particularly, when a general election is announced. Election petitions are
even entertained on a Sunday. The petitioner, therefore, cannot urge that he
was misled by the absence of any note in the notification of vacations or in
the cause list that election petitions could be received during vacations.
CM No.5-E of 2007 in
Election Petition No.22 of 2007 6Another argument pressed into service by counsel for the
respondent is that the note appearing in the cause list, issued a day prior to
the vacations, clearly stipulates that urgent matters can be filed with the
permission of the Hon’ble Vacation Judge, through the Registry. An election
petition is always urgent and could have been filed after obtaining the
permission of the Hon’ble Vacation Judge. This argument is sought to be
fortified by reference to the fact that during the vacations, 21 election
petitions were filed. It is, therefore, asserted that the petitioner’s negligence
cannot be condoned by resort to the provisions of Section 10 of the General
Clauses Act.
Another argument pressed into service, by counsel for the
respondent, is that the High Court Rules and Orders are a complete code in
themselves and govern the receipt, filing, scrutiny etc. of an election
petition. For the petitioner to, therefore, contend that he was unaware that
an election petition could be presented during the spell of vacations, is an
attempt to misuse the provisions of Section 10 of the General Clauses Act.
I have heard learned counsel for the parties and perused the
pleadings and the relevant documents.
Section 81(1) of the Act provides that an election petition shall
be filed within 45 days of the declaration of the result of an election. The
result, in the present case, was admittedly declared on 27.2.2007. The
limitation, therefore, to file an election petition expired on 13.4.2007. The
election petition was, however, filed on 16.4.2007. As noticed herein
before as per Annexure A-1, dated 6.12.2006, the notification setting out
holidays in the Punjab and Haryana High Court, the public at large was
informed, that the High Court would be closed from 9.4.2007 to 13.4.2007
CM No.5-E of 2007 in
Election Petition No.22 of 2007 7for vacations. 14.4.2007 would be a holiday, on account of Baisakhi/B.R.
Ambedkar Jayanti and 15.4.2007 being a Sunday, the High Court would be
closed. A relevant extract of the notification of vacations dated 6.12.2006
(Annexure A-1) reads as follows :-
“No.350 Genl/XVII.3 – It is hereby notified for general
information that the days enumerated in the schedule below
shall be observed as Holidays by the Punjab and Haryana High
Court at Chandigarh during the Calender Year, 2007 :-
Sr. Description Date on Day of the No.of No. of Holidays which falls week Holidays XXX XXX XXX 11. Good Friday April 06 Friday 1 12. Baisakhi/Dr.B.R. Ambedkar Jayanti April 14 Saturday 1 XXX XXX XXX LOCAL HOLIDAYS 2007 XXX XXX XXX 5. April 9 Monday 1 6. April 10 Tuesday 1 7. April 11 Wednesday 1 8. April 12 Thursday 1 9. April 13 Friday 1 XXX XXX XXXThe notification, unambiguously provides that 9th to 13th April
2007 are local holidays, whereas 14.4.2007 is a holiday, on account of
Baisakhi/B.R. Ambedkar Jayanti and 15.4.2007 being a Sunday, the High
Court would be closed. The High Court eventually re-opened on 16.4.2007,
and the election petition was filed on 16.4.2007. The above notification
CM No.5-E of 2007 in
Election Petition No.22 of 2007 8does not make any reference to any arrangement for work, much less urgent
work to be taken up during vacations for obvious reasons. Work to be
taken up during vacations is generally notified, in the cause list preceding a
spell of vacations. Though, the notification amending the notification of
holidays, was amended, after the declaration of election results, this
notification dated 29.3.2007, published on 4.4.2007, notifying that
21.4.2007 and 28.4.2007 would be Court working days, does not state that
election petitions could be filed during the spell of vacations i.e. from 9th to
15th April 2007 and does not disclose the nature of work to be assigned or
entertained during vacations. The daily cause list issued on the eve of these
vacations contains the following note, which reads as follows :-
“During the ensuing holidays commencing from 6.4.2007 to
15.4.2007, the following officers with their respective staff are
put on duty to entertain Habeas Corpus Petitions from 6.4.2007
to 15.4.2007 and pre-arrest bail matters and such other urgent
matters, if any, received during the aforesaid spell as may be
permitted by His Lordship through Registry from 9.4.2007 to
13.4.2007 will be taken up by the Hon’ble Judge/s.
Name of Officers :
1. Mrs.Tejinder Kaur Bakshi, Assistant Registrar
2. Mr.R.S. Gill, Assistant Registrar (Civil & Judl)
3. Mr.R.S.Ratol, Deputy Registrar (Protocol)
4. Ms.Nirmal Kant, Deputy Registrar (Accounts)
5. Mrs.Suman Chopra, Deputy Registrar (Writ)
6. Mr.A.P. Khurana, Deputy Registrar (Groupings)
7. Mr.Ranjit Singh, Deputy Registrar (Establishment)
CM No.5-E of 2007 in
Election Petition No.22 of 2007 9
8. Mr.M.P. Kohli, Assistant Registrar
9. Mrs.Vijay Bhandair, Assistant Registrar”
Though the note makes a specific reference to Habeas Corpus
Petitions, pre-arrest bail matters and urgent matters, it does not state that
election petitions can be filed during vacations or that the election and cash
branches would be open for receiving election petitions. Further more, the
note does not identify, from the list of officers named, an officer designated
to receive election petitions.
As general elections had concluded with the declaration of
results and limitation for filing election petitions was to expire during this
spell of vacations, the cause list was necessarily required to contain a note
that election petitions would be entertained during the spell of vacations,
the election and cash branches would remain open and a named designated
officer nominated to receive election petitions. In the absence of such a
note, there was an error in cause list notifying the work to be taken up and
the nature of the petitions to be entertained during this spell of vacations.
The question that now merits consideration is, whether the
absence of any reference to the filing/receipt of election petitions in the
notifications Annexures A-1 and A-4 and in the daily cause list can be held
to be sufficient to give rise to a bonafide belief, in a person of ordinary
prudence, that election petitions, would not be entertained, during the spell
of vacations and could therefore, be filed on reopening of the High Court.
A considered appraisal of the notification of vacations, the amendment
thereto and the note appearing in the cause list, lead me to a conclusion that
a person of ordinary prudence could have been led to hold a bonafide belief
CM No.5-E of 2007 in
Election Petition No.22 of 2007 10
that election petitions would not be entertained, during the spell of
vacations and could, therefore, be filed on reopening of the High Court.
The fact that 21 election petitions were received during this spell of
vacations or that an election petition may be entertained even on Sunday
are therefore, entirely irrelevant. In my considered opinion, the petitioner
was justified in his belief that the election petition could be filed on the
reopening of the High Court.
Though, the provisions of Limitation Act do not apply to
proceedings under the Representation of People Act, Section 10 of the
General Clauses Act, would come to the aid of the petitioner in the present
situation. Section 10 of the General Clauses Act reads as follows :-
“10. 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 (15 of 1877), applies.
(2) This section applies also to all Central Acts and
Regulations made on or after the fourteenth day of
January, 1887.”
CM No.5-E of 2007 in
Election Petition No.22 of 2007 11
As per the provisions of Section 10 of the General Clauses Act,
if limitation expires on a date, when the Court is closed, the limitation
would stand automatically extended to the next working day and in the
facts of the present case to the reopening of the Hon’ble High Court on
16.4.2007.
In Simhadri Satya Narayana Rao (supra), the Hon’ble
Supreme Court, while considering a similar controversy and after reiterating
that the Limitation Act did not apply to the filing of election petition under
the Representation of People Act, 1951 held as follows :-
“9. The first para of the notification, which is the operative part,
states that “the High Court of Andhra Pradesh will remain
closed for Sankranthi vacation, 1990 from Tuesday the 2nd
January to Friday the 12th January 1990 (both days inclusive)”.
The notification nowhere states that the Registry of the High
Court would remain open. Notice to the effect that “the High
Court of Andhra Pradesh will remain closed” cannot be
understood by layman-litigant to mean that it would still be
open for filing purposes. After the operative part which
declares the closure of the High Court for Sankranthi vacation,
the subsequent paras specifically indicate the matters which
could be filed during the vacation. It is stated that two Hon’ble
Judges would be the vacation Judges for the specified period
and they would dispose of applications of urgent nature. The
designation of two Assistant Registrars as vacation officers and
the provision of notice of urgent applications to the vacation
officers a day earlier of sitting of the vacation Judges, goes to
CM No.5-E of 2007 in
Election Petition No.22 of 2007 12
show that the Registry was not functioning in the ordinary
course. A bare reading of the notification leaves no manner of
doubt that the Andhra Pradesh High Court remained closed for
all purposes except for applications of urgent nature for which
vacation Judges and vacation officers were designated. There
was no provision for filing of election petitions in the
notification and as such the filing of the election petition by the
respondents on reopening day of the High Court by invoking
Section 10 of the General Clauses Act, was justified.
11. We do not agree with the contention of Mr.Sitaramiah
that in the absence of any bar in the notification the election
petitions under the Act can be filed during the vacations. It is
the vacation notification which has to be looked up to find out
whether the Registry is open for presenting the election
petitions. The notification in this case unmistakably stated that
the High Court would remain closed during Sankranthi
vacation. No reasonable person would knock the door of the
High Court during that period for filing an election petition.”
A perusal of the above extract, leaves no manner of
doubt that the controversy in the instant election petition is similar to the
one in Simhadri Satya Narayana Rao (supra), and is, therefore, squarely
covered by the ratio of aforementioned judgement. In the instant case, as
also in the above case, the note appearing in the list issued on the eve of
vacations did not contain any intimation that the Registry would be open
for normal functioning and/or election petitions could be filed and would be
CM No.5-E of 2007 in
Election Petition No.22 of 2007 13
entertained during the spell of vacations. It was, therefore, held that the
provisions of Section 10 of the General Clauses Act, would apply and the
election petition would be deemed to have been filed within limitation.
In the present case 9th to 13th April 2007 were vacations.
14/15th April 2007 were holidays, on which dates the Registry was
completely closed. No separate order/notification was issued that election
petitions would be entertained during this spell of vacations. The election
petition was filed on 16.4.2007 i.e. upon reopening of the High Court and it
would, therefore, have to be held to be within limitation, by invoking the
principle set out in Section 10 of the General Clauses Act.
As regards the respondent’s submission that during the period
of vacations, 21 election petitions were entertained, the said assertion is
irrelevant. Whether the Registry had a right to entertain the petitions during
vacations or not and whether they were correctly entertained or not, would
not, in the absence of any intimation that election petitions could be filed
during the spell of vacations, exclude the operation of Section 10 of the
General Clauses Act,1897 or alter the nature of notification Annexure A-1
or the note appearing in the list issued on the eve of vacations.
Another submission by counsel for the respondent that Rule 6
of Chapter 4-GG of Punjab and Haryana High Court Rules and Orders,
provides that an election petition shall be presented within 45 days from the
declaration of the result, in my considered opinion, would not oust the
applicability of Section 10 of the General Clauses Act. Another submission
that Rule 11(ii) of Chapter 4 of Part GG provides that an election petition
shall be presented before the Registrar of this Court on any working day.
The election petition could, therefore, have been presented, as the High
CM No.5-E of 2007 in
Election Petition No.22 of 2007 14
Court was working, during vacations, merits rejection. The daily cause list
does not state that the Registry would remain open during vacations for
receiving election petitions. The note appearing in the cause list issued on
the eve of vacations, clearly details the officers on duty, during vacations
but does not refer to a officer designated to receive election petitions. The
note does not set out specifically or by necessary inference, that the Registry
would be open for normal filing of petitions, whatever be their nature. Any
ambiguity in a notification providing information as to the working of a
Court is likely to cause confusion and should, therefore, be specific as to
the matters it seeks to inform.
As the notification Annexure A-1, the note in the cause list
preceding vacations, Annexure A-4 do not specifically or by necessary
inference, state that election petitions would be entertained during
vacations, Section 10 of the General Clauses Act would come to the
petitioner’s aid and limitation for filing an election petition would close on
16.4.2007. The election petition filed on 16.4.2007 is, therefore,held to
have been filed within limitation.
In view of what has been stated herein above, the application
stands disposed of accordingly.
9.7.2008 (RAJIVE BHALLA) GS JUDGE