2005 Supreme(SC) 458

2005(2) Supreme 534
Supreme Court of India
(From Patna High Court)
R.C. Lahoti, CJI, D.M. Dharmadhikari & P.K. Balasubramanyan, JJ.
Raj Kumar Yadav —Appellant
versus
Samir Kumar Mahaseth and Ors. —Respondents
Civil Appeal No. 595 of 2004
Decided on 11-3-2005
Counsel for the Parties:
For the Appellant : Amit Kumar, Ashish Kumar, Rajiv Shankar Dvivedi, Amit Anant Tiwari, Kumar Brijnandan and Ms. Punam Sinha, Advocates.
For the Respondents : S. Chandra Shekhar and Amit Pawan, Advocates.

Important point
An election petition can be presented on the last day of limitation, when the Judges are not sitting to receive or entertain an election petition, to the Registrar or in his ­absence to some other officer in the Registry authorized to receive such presentation.

Headnote:Representation of the People Act, 1951—Section 81—Patna High Court Rules—Rules 6 and 7—Constitution of India—Article 329—Limitation for presenting the election petition—Computation of—Election petition was handed over to the designated Election Judge on the last day of limitation at 4.25 p.m. when the Judge was still available within the Court premises though he was not sitting in the open Court—The Election Judge did not himself receive the presentation nor did make any other order—Petitioner made the presentation on the next day when the Judge was available and sitting in the open Court—Presentation would be deemed to be within limitation and valid—Designated Election Judge of the High Court erred in holding the presentation to be barred by limitation—Impugned judgment of the High Court is set aside.

       Held : The limitation provided by Section 81 of the Act expires on 45th day from the date of election. The word ‘day’ is not defined in the Act. It shall have to be assigned its ordinary meaning as understood in law. The word ‘day’ as per English calendar begins at midnight and covers a period of 24 hours thereafter, in the absence of there being anything to the contrary in the context. (Para 6)

       The High Court has not correctly interpreted Rules 6 and 7 of the High Court Rules. The rules are not meticulously well-drafted rules taking care of myriad situations which may arise. They appear to be more in the nature of directions aiming at convenient and smooth functioning of the High Court dealing with election petitions as also streamlining the procedure and practice of presentation. The designated Election Judge can always issue such orders as it may deem fit in the matter of presentation of the election petition. If the court is open, it is desirable that a formal presentation of the election petition is made to the Judge while sitting in open court. As the Judge himself is not expected to scrutinize the defects in the election petition presented to him, Rule 6 expects the election petition to be presented first to the Stamp Reporter of the court and then carried to the Judge for formal presentation. While presentation to the Stamp Reporter of the court is a presentation, the presentation before Judge in open court is a formal presentation. There would be nothing wrong if the election petitioner presents the election petition to the Stamp Reporter whereafter the election petition is carried to the Judge in open court either by the election petitioner or his counsel or by the Stamp Reporter or any official of the Registry under his directions. The Rule contemplates such presentation before the Stamp Reporter and the formal presentation to the Judge taking place on the same day and almost simultaneously as two steps of one transaction and in this background the date of presentation to the Judge or the Bench as described in Rule 6 is deemed to be the date of filing of the election petition. The process can also be reverse. If Stamp Reporter is not available, the election petition may be presented to the Judge who may then send it for scrutiny to the Stamp Reporter or any other official of the Registry. At the time of presentation, the Judge may not be sitting in open court, but that does not mean that the Judge cannot receive the election petition. He can receive it and then send it to the Stamp Reporter of the court. (Para 8)

       Confining the filing time to the working hours of the court is not what is specifically spelt out by Rules 6 and 7 of the Patna High Court Rules. The High Court, in its impugned judgment, seems to have thought that the election petition could have been presented only to the Judge and that too in the open court. The Judge would ordinarily sit in open court upto 4.15 p.m. of the day as per the rules or practice of the High Court but that time is not the end of that day. The availability of time falling within the meaning of the word ‘day’, as provided by Section 81 of the Act, cannot be curtailed by making a provision in the rules contrary to the Act itself. Ordinarily, no litigant and lawyer would like to delay the presentation till the fag end of the day and then present it at an odd time to the inconvenience of the Judge wherever he may be. However, exceptional situations cannot be completely ruled out. It would be better if the ministerial act of receiving the election petition presented to the High Court is left to the administrative or ministerial staff of the High Court either by clarifying or by making a suitable amendment in the Rules of the Patna High Court. (Para 11)

       Reverting back to the facts of the present case, we find that the election petition was handed over to the designated Election Judge on the last day of limitation at 4.25 p.m. when the learned Judge was still available within the court premises though he was not sitting in the open court, as the prescribed time of 4.15 p.m. ordinarily meant for transacting judicial work was over. The learned Judge did not himself receive the presentation nor did make any other order such as the one directing any official of the Registry to receive the same. The election petitioner had done all that was within his power to do for the purpose of presentation but he failed. He made the presentation on the next day when the Judge was available and sitting in the open court. The presentation would be deemed to be within limitation and valid. The learned designated Election Judge of the High Court has erred in holding the presentation to be barred by limitation. The view so taken cannot be countenanced. (Paras 14 & 15)