HARI SHANKER TRIPATHI Vs. SHIV HARSH

JUDGEMENT

(1.) This is an. appeal against the judgment of S. Malik, J. of the Allahabad High court who was assigned as an Election Judge to hear the election petition filed by the appellant in the High court. The election petition was filed by the appellant who was one of the ten candidates for the membership of the U. P. Legislative council from Basti-cum-Gorakhpur Local Authority constituency. The results of the aforesaid election were declared on 30/04/1974 and the appellant filed the election petition in the High court on 8/07/1974 praying that the election of respondent No. 1 be declared void and that the appellant be declared to be duly elected. The election petition was placed for hearing before the learned Judge after he was assigned as a judge to hear the election petition by the chief justice and the learned Judge framed 20 issues in the case. Issue No. 8 related to the question as to whether the election petition had been properly presented and was within time. As issue No. 8 related to the maintainability of the petition on the point of limitation, the learned Judge took up this matter as a preliminary issue, and after hearing the parties he held that the petition having been filed beyond' time merited dismissal under S. 86 (1) read with S. 81 (1) of the Representation of the People Act, 1951. The election petition of the appellant was accordingly dismissed by the High court by its order dated 10/02/1975 and it is against this order that the presen appeal has been preferred in this court.

(2.) The facts of the case lie within a very narrow compass. It is not disputed that the results of the election were declared on 30/04/1974 and normally the election petition should have been filed in the High court within 45 days from this date. Accordingly the period of limitation expired on 14/06/1974. The petition was, however, presented before the Registrar on 8/07/1974. The appellant relied on the fact that he was not in a position to file the petition in the High court on 14/06/1974 because-the High court was closed for the summer vacation and as the High court was observing a closed holiday the appellant was entitled to file the petition on the reopening day which was 8/07/1974 and accordingly he filed the petition on that day. The appellant, therefore, claimed that his petition was not time-barred in view of the provisions of S. 10 of the General Clauses Act, 1897 which would apply to this case.

(3.) The learned Counsel for the appellant has reiterated the same argument before us as in the court below and has submitted that for all intents and purposes the summer vacation being a closed holiday according to the notification issued by the High court, the appellant was legally entitled to file the petition only on 8/07/1974 when the High court reopened.