Judgment

C.K. THAKKER, J. - Appeals admitted.

2. 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").

3. In all these appeals, facts are more or less similar. The Election Commission of India issued a notification on 16 - 3 - 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. 23 - 4 - 2004 was the last date for filing nomination papers, 24 - 4 - 2004 was fixed for scrutiny of nomination papers, 26 - 4 - 2004 was the last date for withdrawal of candidatures, 10 - 5 - 2004 was the date of poll, if necessary, and date of counting and declaration of results was fixed as 17 - 5 - 2004. The appellants filed their nomination papers from 12 - Wak Assembly Constituency, 14 - Melli Assembly Constituency and 13 - Damthang Assembly Constituency respectively on 23 - 4 - 2004. When nomination papers were scrutinised on the next date i.e. 24 - 4 - 2004, they were found to be defective and hence all their nomination papers were rejected. The resultant effect was that on 26 - 4 - 2004 which was the last date for withdrawal of candidature, in all the above three constituencies, only one candidate was in the field. The Returning Officer, therefore, declared the first respondent in all the matters elected (uncontested). In respect of other constituencies, however, polling was held on 10 - 5 - 2004 and after counting of votes, results were declared on 17 - 5 - 2004.

4. All the three appellants filed election petitions in the High Court of Sikkim (Election Tribunal) on 25 - 6 - 2004. Notices were issued to the respondent 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 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 (uncontested) on 26 - 4 - 2004, election petitions could be filed only within a period of forty - five days from that date i.e. 26 - 4 - 2004. Petitions were admittedly filed on 25 - 6 - 2004 and thus they are barred by limitation. The case of the election petitioners, on the other hand, was that date of poll was 10 - 5 - 2004 and date of publication of results of election under Section 73 of the Act was 17 - 5 - 2004. For all material purposes, therefore, relevant date was 17 - 5·2004 and not 26 - 4 - 2004 and in view of that fact, election petitions were within limitation.

5. 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 -

"Whether the election petition is barred by the law of limitation as prescribed under Section 81 of the Act?"

6. 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 (uncontested) was 26 - 4 - 2004 and not 17 - 5 - 2004 as contended by the election petitioners. Election petitions were, therefore, barred by limitation. The High Court, accordingly, dismissed all the petitions with costs.

7. Being aggrieved by the order passed by the High Court, all the appellants have filed these appeals under Section 116 - A of the Act. Notice was issued on 6 - 1 - 2005. The appeals were also ordered to be posted for hearing.

8.We have heard learned counsel for the parties.

9. The learn