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IN THE HIGH COURT OF MADRAS
D. KRISHNAKUMAR, J.
Anitha P. Radhakrishnan – Appellant
Versus
B. Ramkumar Adityan – Respondent
O.A. No. 412 of 2017 in ELP No. 17 of 2016
Decided On : 17-06-2020
Representation of People Act, 1951 – Section 30, 101, 100 – Limitation Act – Section 4 and 5 – General Clauses Act – Section 10 – Rules of Madras High Court Election Petition 1967 – Rule 7 and 119 – Allegation – Tamil Nadu State Legislative – Mandatory – Election Petition is filed to declare that election of returned candidate respondent Tiruchendur Legislative Assembly Constituency scrutiny nomination papers released final list of 13 contesting candidates including 1st respondent in Form Document respondent was declared elected in aforesaid assembly election – According to Election Petitioner/1st respondent applicant has not disclosed particulars as required and Rules in prescribed Form certainly nomination paper suffers from defect of substantial character and Returning Officer ought to have rejected nomination paper of applicant/1st respondent – Held, Court did hold that applicability was not excluded was not possible for the election petitioner to have presented election petition to designated Election Judge or in his absence to Bench provided by proviso to last day of the prescribed period of limitation then presentation of election petition on very next day in the open court would be valid. Law does not expect a party to do the impossible-impossibilium nulla obligatio – Election petition was handed over to designated Election Judge on last day of limitation – Learned Judge was still available within court premises though he was not sitting in open court prescribed time meant for transacting judicial work was over – Learned Judge did not himself receive presentation nor did make any other order such as one directing any official of Registry to receive election petitioner had done all that was within his power to do for purpose of presentation but he failed presentation on next day when Judge was available and sitting in open court – Applicant is dismissed.
ORDER:
D. Krishnakumar, J.
1. The prayer sought for in the Original Application is filed by the applicant to reject the election petition filed by the 1st respondent herein for non-compliance of the mandatory provisions under the Representation of People Act, 1951.
Election Petition is filed to declare that the election of the returned candidate, namely the 1st respondent herein, No. 215, Tiruchendur Legislative Assembly Constituency, Thoothukudi District, Tamil Nadu held on 16.05.2016 in which result have been declared on 19.05.2016 as void.
2. Before going into the facts of the present Original Application, it would be relevant to mention the brief facts of the election 'petition filed by the 1st respondent/election petitioner in the present application.
2.1. The 4th respondent issued an Election Notification on-22.04.2016, for conducting Election, No. 215 Tiruchendur Legislative Assembly-Constituency under Section 30 of the Representation of People Act, 1951, by fixing schedule dates for the Tamil Nadu State Legislative Assembly Constituency. Accordingly, date of filing of Nomination was commenced on 22.04.2016 and Last date of filing Nomination was fixed on 29.04.2016, last date for withdrawal of nominations on 02.06.2016, Date of Polling on 16.05.2016, Date of counting of Votes and Date of declaration of Result on 19.05.2016.
2.2. The 4th respondent, after scrutiny the nomination papers on 30.04.2016, released final list of 13 contesting candidates on 02.06.2016, including the 1st respondent in Form 7 A/Document No-13 and the 1st respondent was declared elected in the aforesaid assembly election on 19.05.2016. According to the Election Petitioner/1st respondent, the applicant has not disclosed the particulars as required under the Act and Rules in the prescribed Form. Therefore, certainly nomination paper suffers from defect of substantial character and the Returning Officer ought to have rejected the nomination paper of the applicant/1st respondent. Challenging the declaration of results, the 1st respondent herein filed the Election Petition to declare that the election of the Returned candidate viz., the 1st respondent/applicant herein as void. The applicant/1st respondent in the Election Petition has filed the instant application to reject the Election Petition for non compliance of mandatory provisions under the Act.
3. According to the learned counsel appearing for the applicant, the allegation of the 1st respondent herein that the mandatory provisions as prescribed under the Representation of the People Act, 1951 have not been followed. The applicant has now filed the instant application to reject the Election Petition by raising grounds that as per Section 81(1) of the Representation of People Act, 1951 an election petition shall be presented within forty-five (45) days from the date of declaring the result of the election, but not earlier than the date of election of the returned candidate. The election petitioner has not filed the election petition within the prescribed time as stipulated under Representation of People Act, 1951, therefore, the Election Petition is barred by limitation.
4. The learned counsel appearing for the applicant submitted that the High Court was remained open to entertain petitions. Further, the period of limitation should not be counted for calculating the limitation period of 45 days including leave period of summer vacation/holidays. When the court was open, petition should have been filed within the limitation period. Thus, the Election Petition is barred by limitation.
5. The learned counsel appearing for the applicant would further submit that the period of limitation to be counted including holidays and summer vacation. As per the amended Act, election petition has to be presented before the High Court. Once the prescribed period under the Act is expired, there is no provision to condone delay of the election petitions. Further it is contended by the learned counsel that the Representation
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