K K MOHAMAD KOYA Vs. P M SAYEED

JUDGEMENT

(1.) E. P. No. 22/1977 is a petition presented under S.81 of the Representation of the People Act 1951 challenging the election of the respondent as a member of the House of the People from the Lakshadweep, a Union territory. The petitioner and the respondent were the contesting candidates. Poll was taken on 16-3-1977. The counting of votes took place on 20-3-1977 and on the same day the Returning Officer declared the respondent as elected. The election of the respondent is challenged mainly on the ground that the respondent is guilty of corrupt practices. In answer to the summons from court the respondent entered appearance and filed a written statement traversing the allegations made in the petition, and contending inter alia that the petition is barred by limitation. On the basis of the pleadings issues were raised on 11-7-1977; and issue No. 2 is in the following terms:

(2.) The contentions raised by the respondent are two-fold. In the first place it is argued that the relevant petition was filed beyond the period prescribed in S.81(1) of the Representation of the People Act. According to that provision the petition has to be presented within 45 days from, but not earlier than the date of the election of the respondent. The respondent was declared elected on 20-3-1977. So normally the petition had to be filed on or before 5-5-1977. But the petition was filed in court only on 23-5-1977. So prima facie the petition was laid beyond the time prescribed by law. The answer of the petitioner is that since the High Court was closed for summer vacation he had time till 23-5-1977 to file the election petition. It is common case that by notification No. D6-41831/76(1) dated 19-11-1976 the summer vacation commenced from 11th April 1977 and lasted till 21st May 1977 (both days inclusive). Reliance is placed on S.10 of the General Clauses Act, Act 10 of 1897. S.10 reads as follows:

(3.) An alternative contention raised by the respondent is again based on S.8 of the High Court Act. According to S.8 the Judge nominated by the Chief Justice under that section "shall have all the powers of the High Court, except In cases in which such power must be exercised under the provisions of any law by more than one Judge". The argument advanced on the basis of that provision is that since during the summer vacation Judges were nominated by the Chief Justice and since the Judges so nominated had all the powers of the High Court there was no total prohibition of filing an election petition during the summer vacation. It is common case that in exercise of the powers conferred by Sub-s.(2) of S.80A of the Representation of the People Act, 1951 the Chief Justice of the High Court of Kerala nominated one Judge of the High Court to try election petitions. It is further admitted by both sides that the Judge so nominated did not function at any time as a vacation Judge and that the Chief Justice nominated during the relevant vacation two other Judges to function as vacation Judges. By Notification No. D1-14606/66 dated 8th February 1971 the High Court of Kerala in exercise of the powers conferred on it under Art.225 of the Constitution of India and S.122 of the Code of Civil Procedure, 1908, published rules to regulate its own procedure. R.207 to 219 (both inclusive) deal with the procedure regarding the trial of election petitions. R.207 may be read in this context: