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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.