IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Election Petition No.1 of 2008. Judgment Reserved on: 13.12.2010. Date of decision:15.12.2010. Shri Thakkar Singh … …Petitioner Versus Shri Tulsi Ram & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.M.L. Saggar, Senior Advocate with Mr.Sunil Mohan Goel, Advocate. For Respondent No.1: Mr.S.P. Jain, Senior Advocate with Mr.R.K. Sharma and Ms.Vidushi Sharma, Advocates. Dev Darshan Sud,J. The petitioner is a registered voter of 54- Bharmour (Scheduled Tribe) Assembly Constituency in district Chamba. He was the unsuccessful candidate from this Constituency from where he had contested as a candidate of the Indian National Congress. 2. The dates of the issuance of the Notification, poll and declaration of result are not disputed. At the election, the petitioner polled 18404 and the first respondent 18420 votes. The election has been challenged on a number of grounds including Booth 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Capturing, wrongful Reception of Votes which were/could otherwise invalid/not be counted in favour of respondent No.1 who is the returned candidate. 3. On the pleadings of the parties 12 issues were settled on 19th November, 2009,out of these, issues No.6 to 10 were urged as preliminary issues by both the petitioner and the contesting respondent. Learned counsel appearing for the parties, submitted that no evidence was to be led on these issues and the petition decided on the pleadings and record of the case, before the other issues are taken up for decision. These would determine the jurisdiction of this Court to take cognizance of the petition. The issues treated as preliminary are:- “6 Whether the election petition is barred by limitation? OPR. 7. Whether the election petition does not disclose any cause of action and is liable to be dismissed, as such? OPR. 8. Whether copy of election petition supplied to respondent No.1 is a true copy of the original and if not so its effect? OPR. 9. Whether the petition has not been properly verified and if not its effect? OPR. 10. Whether allegations leveled in the petition are vague and petition does not disclose material facts as required under law, if so, its effect? OPR.” 3 Issue No.6:- 4. This issue is crucial as it deals with the bar of limitation. It is the admitted case of the parties that the result of the election was declared on 28th December, 2007 (Annexure EP-4). This petition was instituted on 25th February, 2008. Section 81(1) of the Representation of the People Act, 1950 (hereinafter referred to as the `Act’), provides the time limit within which a petition challenging the election of a successful candidate can be instituted. 5. It is undisputed that the provisions of the Limitation Act, 1963 do not apply to Election Petitions and that it is only Section 10 of the General Clauses Act, 1897 which would determine the applicability of the rigors of limitation in Election Petitions. 6. None of the parties has placed on record the Notification of the working of this Court during the period 14th January, 2008 to 23rd February, 2008, which was the Winter Vacation of this Court. 7. Learned counsel appearing for respondent No.1 has placed reliance on the judgment of the Supreme Court in Lachhman Das Arora vs. Ganeshi Lal and Others, AIR 1999 SC 3101 to urge that the petition is barred by time. In this case, the Supreme Court was seized of a somewhat similar situation. The crucial point for determination was as to whether the Election Petition presented after the vacation on the reopening of the Court could be taken as a petition having been filed 4 within time. The Court considering the provisions of Section 81(1) of the Act ruled:- “6. Section 81(1) of the Act deals with the presentation of election petitions and provides: "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 S. 100 and S. 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." 7. On its plain reading, S. 81(1) lays down that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of S. 100 and S. 101 of the Act to the High Court by any candidate at such election or by an 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 the dates of their election are different, the later of those two dates. The Act is a special Code providing a period of limitation for filing of an election petition. No period for filing of an election petition is prescribed under the 5 Indian Limitation Act. The Act insofar as it relates to presentation and trial of election disputes is a complete Code and a special law. The scheme of the special law shows that the provisions of Ss. 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of forty-five days, S. 86(1) of the Act, which provides that the High Court shall dismiss an election petition which does not comply with the provisions of S. 81 or S. 82 or S. 117, is straightway attracted. 8. The next question, however, which arises for consideration is whether S. 10 of the General Clauses Act, 1897 can apply in a case where the prescribed period of limitation expires during the vacations of the High Court? Section 10 of the General Clauses Act reads : Section 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 6 Indian Limitation Act, 1887 (15 of 1887) applies. 9. The proviso to S. 10 makes the provisions of S. 10 inapplicable to cases where the Indian Limitation Act applies and since Indian Limitation Act does not apply to election petitions filed under the Act, Section 10 of the General Clauses Act in terms would apply to the filing of election petitions also. According to S. 10 (supra) an act should be considered to have been done within the prescribed period, if it is done on the next day on which the Court or office is open. The applicability of S. 10 (supra) would, however, depend upon the facts of each case and the manner in which the High Court transacts its business during the period of vacations. 10. The Rules and Orders of the Punjab and Haryana High Court do not settle the calendar of summer vacations. It is an admitted case of the parties that settlement of summer vacations is done by issuance of a Notification, which contains all matters connected therewith. The Punjab and Haryana High Court had, as in the previous years, issued a Notification on 27-11-1995, settling the summer vacations and providing therein the manner in which the High Court would function during the summer vacations. 11. Whether the benefit of S. 10 of the General Clauses Act can be availed of 7 to save the period of limitation in the present case would, therefore, depend upon the terms of the Notification issued by the Punjab and Haryana High Court on 27-11-1995. The Notification inter alia provides "It is hereby notified for general information that the Court of Punjab and Haryana at Chandigarh will be closed for civil business except for hearing election petition or any other matter arising out of the Representation of the People Act, 1951, urgent Civil Appeals/Petitions etc. including petitions under Art. 226 of the Constitution of India on account of long vacations in the year 1996 from June 1 to June 30, 1996 (both days inclusive). The Court will resume sitting on July 1, 1996 (Monday). During this period except on Sundays and Holidays Appeals/Petitions etc. will be received at the Court at Chandigarh from such persons as may choose to present them." (Emphasis ours) 12. The above Notification unambiguously provides that during the summer vacations i.e. period between June 1 to June 30, 1996 (both days inclusive) while the High Court of Punjab and Haryana at Chandigarh would remain closed for civil business, it would be open for 'hearing of election petitions or any other matter arising out of the Representation of the People Act.' The learned Election Judge of the High Court was, under the circumstances, justified in holding that benefit of S. 10 of the General 8 Clauses Act was not available to the election petitioner to save the period of limitation as undisputedly the election petition had been filed, on reopening day of the High Court after summer vacations, but after the expiry of the period of forty-five days prescribed under S. 81(1) of the Act, which period had expired during the period of summer vacations. In view of the clear language of the notification, there was no impediment in the way of the appellant to present the election petition during the summer vacations. The judgments in Hari Shanker Tripathi v. Shiv Harsh (1996 (1) SCC 897) and Simhadri Satya Narayana Rao v. M. Budda Prasad (1994 Supp (1) SCC 449) (supra) relied upon by learned counsel for the appellant are clearly distinguishable. In the Notifications issued in those cases by the High Court of Judicature at Allahabad and the Andhra Pradesh High Court, respectively, the entire period of summer vacation was declared as "closed holidays" in the case of the High Court of Allahabad, and for the entire period of Sankranthi vacation, the Andhra Pradesh High Court was also to remain closed. Unlike the Notification of Punjab and Haryana High Court dated 27-11-1995, in none of the Notifications settling the vacations in the High Court of Judicature at Allahabad and the Andhra Pradesh High Court, was any exception made with respect to the hearing of election petitions or any other matter arising out of the Representation of 9 the People Act. Section 10 of the General Clauses Act was, in those cases, clearly attracted to save the period of limitation by filing an election petition, on the first reopening day of the High Court, since the prescribed period of limitation had expired during the 'closed holidays' or 'Sankranthi vacations.' It was in this fact situation that the cases of Hari Shanker Tripathi (1976 (1) SCC 897) and Simhadri Satya Narayana Rao (1994 Supp (1) SCC 449) were decided. Those judgments, therefore, cannot advance the case of the appellant. On the other hand, the judgment of this Court in Satbir v. Smt. Parsanni Devi (1987 (73) Ele LR 201) (supra) which considered a Notification issued by Punjab and Haryana High Court on an earlier occasion, in identical terms as the Notification dated 27-11-1995, applies with all force to the facts and circumstances of the present case. In Satbir's case (supra) the benefit of S. 10 of the General Clauses Act was denied to the election petitioner and the election petition, not filed within the period of forty-five days which expired during the summer vacations, but filed on the reopening day of the High Court after the summer vacations, was held as barred by time because of the exception contained in the Notification regarding the hearing of election petitions etc. during the period of summer vacations. 10 13. We are not impressed by the argument of learned counsel for the appellant that in view of the serious charges which had been levelled against the returned candidate in the election petition, the same ought not to have been dismissed on the ground of limitation, as the purity of election process is required to be maintained. There is no quarrel with the proposition that it is the duty of the Courts to maintain the purity of election process but at the same time there is no gainsaying that the law of limitation may harshly affect a particular party, but it has to be applied with all its vigour when the statute so prescribes. The Courts cannot extend the period of limitation on equitable grounds more particularly in the matter of filing of election petitions under the Act. Since, it is a common ground that the election petition in the instant case had been filed one week after the expiry of the period of forty-five days, it was clearly barred by time. The High Court was, under the circumstances, fully justified in dismissing the election petition on that ground. We do not find any merit in this appeal which accordingly fails and is dismissed but with no order as to costs.” (pp.3103-3105 - Emphasis supplied) 8. This has been subsequently reaffirmed in Mohd.Ali vs Azad Mohd.AIR 1999 SC 3429. Learned counsel appearing for the petitioner submits that since 11 the Court was closed for winter vacation and it was not open for any filing etc., in these circumstances, the petitioner was entitled to the benefit of Section 10 of the General Clauses Act. For this, he has placed reliance on the judgement of the Punjab and Haryana High Court in CM No.5-E of 2007, Election Petition No.22 of 2007, decided on 9.7.2008, titled: Sukhbeer Singh vs. Amarinder Singh. There the Court, was dealing with an application under Section 5 of the Limitation Act in Election proceedings,where the Court, following the decision of the Supreme Court in Simhadri Satya Narayana Rao vs. M. Budda Prasad, 1994 Suppl.(1) SCC 449 and Hari Shanker Tripathi vs. Shiv Harsh and Others, 1976(1) SCC 897, held that the petitioner was entitled for the benefit of the vacations to be counted for the purpose of benefit of Section 10 of the General Clauses Act. However, the power seems to have been exercised by the Court under Section 5 of the Limitation Act. With respect, as noticed, the provisions of the Limitation Act do not apply to Election Petitions. In any event, if the benefit granted was under the General Clauses Act, it was based on the facts of that particular case on a consideration of the Notification issued by the Punjab and Haryana High Court. Adverting to the decision in Simhadri Satya Narayana Rao’s case, the Supreme Court holds that, by virtue of the Notification, it was obvious 12 that the Registry of the Court would remain closed. The Notification reads:- “NOTIFICATION R.O.C. No. 5463/89-C3 DATED DECEMBER 29, 1989 Notice is hereby given 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 Hon'ble Shri Justice N.D. Patnaik will be the Vacation Judge from January 2, 1990 to January 6, 1990 and the Hon'ble Shri Justice Syed Shah Mohammed Quadri will be the Vacation Judge from January 7, 1990 to January 12, 1990. The Vacation Judges will sit in court at 10.30 a.m. on Wednesday the 3rd January, 1990 and Tuesday the 9th January, 1990 during vacation to dispose of applications of urgent nature unless otherwise notified. Shri K.V.G. Krishna Murthy and Shri S. Raja Choudary Assistant Registrars will be the Vacation Officers during the said vacation. Notice of any application of an urgent nature shall be given to the Vacation Officers before 1.30 p.m. on Tuesday, 2nd January and the 8th January 1990. Registrar (ADMN)" 9. The Court considered in extenso the decisions in Hukumdev Narain Yadav vs. Lalit Nrain Mishra, 1974(2) SCC 133, Hari Shanker Tripathi vs. Siv Harsh, (1976)1 SCC 897, H.H. Raja Harinder Singh vs. S.Karnail Singh, AIR 1957 SC 271 and granted the benefit of Section 10 of the General Clauses Act. What needs to be noticed in the present case is that there is no 13 direction in the Notification of this Court that the Registry shall remain closed. In-fact the Notification provides that the Registry will be open for filing but the cases/petitions will be put up before the Court after the vacation unless the case was of an urgent nature. The Notification issued by this Court directs:- “HIGH COURT OF HIMACHAL PRADESH, SHIMLA-171001 No.HHC/Admn.6(20)/77-XV-Part- Dated Shimla, the 8th November, 2007. NOTIFICATION It is hereby notified for general information that the High Court of Himachal Pradesh shall remain closed for the winter vacation from January 14, 2008 to February 23, 2008 and for summer vacation from June 9, 2008 to June 13, 2008. The High Court will resume its sitting from Monday February 25, 2008 and Monday, June 16, 2008 at the end of winter and summer vacation, respectively. The Office of the High Court will remain open during the winter and summer vacations and will receive from parties and persons such petitions and other documents as they may choose to present. All petitions and applications falling under the civil jurisdiction of the Court, which are not of an urgent nature, will be listed after the reopening of the Court. Urgent Criminal and Civil matters shall continue to be heard during the Vacations by the Vacation Judges. Limitation will be regulated as per Section 4 of the Limitation Act, 1963 during the vacations and holidays. BY ORDER OF THE HON’BLE HIGH COURT ARUNA KAPOOR REGISTRAR GENERAL Endst.No.HHC/Admn.6(20)/77-XV-Part-25722-55 Dated:8.11.2007” 12 14 10. The Notification has been sent inter alia to the Secretary, Government of India, Ministry of Home Affairs, New Delhi, Registrar General of the Supreme Court, Chief Secretary, Principal Secretary and Other Secretaries to the Government of Himachal Pradesh, The Registrar General of all the High Courts, Registrar General and other Registrars of High Court of Himachal Pradesh, all District and Sessions Judges, Civil Judges (Senior and Junior Divisions) of Himachal Pradesh etc., the Secretaries of the Supreme Court Bar Association, Bar Council of India, Himachal Pradesh Bar Association and Bar Council of Himachal Pradesh, Accountant General and Advocate General, Himachal Pradesh etc. The Notification specifically provides that all papers would be received and accepted and in cases of urgency would be listed for further proceedings before the Court immediately on its reopening. 11. In these circumstances, it cannot be said that the petitioner was deprived of his right to institute the petition as the Court was closed for vacation. The Notification unequivocally states that the office of the High Court will remain open and will receive from the parties and persons such petitions and other documents as they may choose to present. It is only for purposes of limitation that Section 4 of the Act has been incorporated. Nothing prevented the petitioner from presenting/filing the petition during 15 this period. In case it had been so presented/filed, it would have been taken on the record of this Court but listed for hearing on the reopening of the Court unless some urgent directions were prayed for. For urgency it could be mentioned even during the vacations. Admittedly, the petition has not been filed within 45 days as provided under Section 81(1) of the Act (supra). I, therefore, hold that the petition which has been filed by the petitioner is beyond limitation. This issue is, therefore, held in favour of the respondents and against the petitioner. 12. Issue No.9: The objection raised by respondent No.1 is that the Election Petition does not comply with the provisions of Section 83(1) of the Act as the affidavit is not in form-25. He submits that this is a mandatory requirement and its non-compliance including non- disclosure of the mandatory facts as required by Section 83(1)(a), (b) and (c) and its proviso which mandates that in cases of corrupt practices the petition shall also be accompanied by an affidavit in the prescribed form in support of such allegations cannot be dispensed with. The petition does not comply with this provision and therefore requires to be rejected outright. 13. The provisions of the conduct of Election Rules, 1961, Rule 94A provide that an affidavit referred to in the proviso of sub-section (1) of 16 Section 83 shall be sworn before the Magistrate of the Ist Class or a Notary or a Commissioner of oaths and shall be in Form 25. That Form requires the candidate to disclose the source of his knowledge with respect to the corrupt practice(s) which verification is required to be made either on the basis of personal information or on information derived from some source which source is required to be disclosed with clarity. Learned counsel submits that the sweeping manner, in which the verification has been made, entails dismissal of the petition. 14. In L.R. Shivaramagowda and Others vs. T.M. Chandrashekar (Dead) by LRs. and Others, (1999)1 SCC 666, adverting to this provision, the Supreme Court holds:- “16A. We have already extracted paras (f) & (g) of the affidavit filed along with the election petition. It does not disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. Significantly, paras (a) to (e) of the affidavit state that the averments therein are true to his information. Para (f) is silent on this aspect of the matter. Para (g) refers all the 42 paragraphs in the petition. The affidavit is not in conformity with the prescribed form No. 25. Thus there is a failure to comply with Rule 94-A of the Conduct of Election Rules. It is a very 17 serious defect which has been overlooked by the High Court.” (p.681) 15. Paras (f) and (g), to which the Court had made a reference, read:- “6. … … … … … … … … … … … … … … In the affidavit filed by the first respondent along with the election petition, the following averments are found in para (f) :- "that the statement made in paras 28 and 39 of the said petition about the commission of the corrupt practice of Sri L. R. Shivarama Gowda and the particulars of such corrupt practices given in paras 28 and 39 refers to suppression of true and correct account of all expenditure in connection with his election incurred by him between the date on which he has been nominated and the date of declaration of the result thereof both dates inclusive and incurring expenditure in contravention of Section 77 of Representation of the People Act, 1951." Para (g) reads :- "that the statement made in paras 1 to 42 of the said petition are true to the best of my knowledge and belief and information and the Annexures A to B are true copy of the original." (p-672) 18 16. In Umesh Challiyill vs. K.P. Rajendran, (2008)11 SCC 740, the Supreme Court again had an occasion to consider this aspect. The Court was adjudicating on the judgment of the Kerala High Court, dismissing the Election Petition on the ground of a defective affidavit in Form 25 which was not affirmed as required by law. The defects as noticed by the Supreme Court were held to be minor which could not merit dismissal. The Court then proceeds to consider the case law on the subject and holds:-