1999 Supreme(SC) 1095

1999(8) Supreme 389
Supreme Court of India
(From Patna High Court)
Dr. A.S. Anand, CJI., S. Rajendra Babu & R.C. Lahoti, JJ.
Chandra Kishore Jha -Appellant
versus
Mahavir Prasad & Ors. -Respondents
Civil Appeal No. 42 of 1998
Decided on 21-9-1999
Counsel for the Parties :
For the Appellant : Shambhu Prasad Singh, P.S. Jha, Advocates.
For the Respondents : P.S. Mishra, Sr. Advocate, Chandra Shekhar, R.P. Singh, Ms. Ritu Singh, Ms. Sunita R. Singh, Advocates.

Important points
1. Under the Rules of Patna High Court election petition has to be presented in open Court before designated Judge and in his absence before Bench hearing Civil appli­cations and motion. No other mode of presentation of election is permissible. Presenta­tion of petition to Bench Clerk or to Registrar would be not proper.
2. Where election petitioner went to election Court to present elec­tion petition on the last date of filing election petition, but the petition could not be presented as the Court was not sitting after 3.15 p.m. due to a death reference, presentation of petition on the very next day in open Court was held to be within limitation in view of Section 10 of General Clauses Act.

Headnote:Representation of People Act, 1951-Section 81(1) r/w Section 86-Patna High Court Rules-Rule 6-Election petition-Time limit for filing-Election petitioner went to Court of designated Judge on last day of filing petition at 4.15 p.m. to present petition-Election Judge not available as Court did not sit after 3.15 p.m. after a death reference-Petition handed over to Bench Clerk to be presented next day in open Court-Next day petitioner appeared in person and present­ed election petition in open Court-Returned candidate’s petition u/s 81(1) r/w 86 to dismiss election petition as time barred-Election Judge holding presentation of petition to Bench Clerk was improper as it could have been presented to Registrar and as such time was not saved-Dismissal of petition as time barred-Not sustainable-Only mode prescribed under Patna High Court Rules is to present petition to designated Judge or in his absence to Bench hearing Civil petitions-Section 10 of General Clauses Act attracted-Presentation of election petition on very next day in open Court would be consid­ered as presentation of election petition within prescribed period of limitation.

       Held : A combined reading of Rules 6, 7, 9, 13 and 24 of Chapter XXI-E of the Patna High Court 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 Rules 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 the 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. (Para 7)

       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). (Para 11)

       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 to be done in that manner and in no other manner. 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 limitation. 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 - impossi­bilium nulla obligatio est - 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. (Para 12)

       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 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. (Para 14)

       (ii) Patna High Court Rules-Rules 6, 7 and 9-Election petition -Procedure to file-Election petition has to be presented in open Court before designated Judge and in his absence before Bench hearing Civil appli­cations and motion-No other mode of presentation of election is permissible-Presenta­tion of petition to Bench Clerk or to Registrar would be not proper. (Paras 7 to 14)