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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

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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

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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

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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

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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

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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

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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

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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

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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.