KASHI NATH PANDEY Vs. SHIBBAN LAL SAXENA

JUDGEMENT

(1.) Sri Kashi Nath Pandey has filed this petition under Article 226 of the Constitution praying for the issue of a writ of certiorari quashing the order of opposite party No. 5, Election Tribunal, Gorakhpur, at Sitapur and for issue of a writ of mandamus prohibiting opposite party No. 5 from proceeding any further with the trial of Election Petition No. 463 of 1957.

(2.) In the last general elections the petitioner Sri Kashi Nath Pandey, opposite party No. 1 Sri Shibban Lal Saxena and opposite parties 2 to 4 were candidates for election to the House of the People from Hata Constituency in the district of Deoria. This was a single member constituency and the petitioner Sri Kashi Nath was declared elected. Sri Kapildeo an elector, filed an, election petition on 6-5-1957 praying that the election of Sri Kashi Nath Pandey petitioner be declared void on grounds given in that petition. Opposite parties Nos. 1 to 4 in the present petition were respondents in that election petition. The election petition filed by Sri Kapildeo was sent by the Election Commission for trial to the Election Tribunal at Gorakhpur which later held sittings at Sitapur. On 9-10-1957 Sri Kapildeo presented an application for withdrawal of the Election Petition under Section 109 of the Representation of the People Act (Act XLIII of 1951). On 28-11-1957, opposite party No. 1 filed an objection against that application for withdrawal. On 16-12-1957, the Election Tribunal dismissed the objection of opposite party No. 1 and allowed the application of withdrawal presented by Sri Kapildeo the election petitioner. Notice of withdrawal was published in the official gazette by the Tribunal on 26-12-1957. On 9-1-1958, opposite party No. 1 made an application for being substituted as petitioner in the election petition in place of Sri Kapildeo whose withdrawal had been published in the gazette. An objection against this application was filed by Sri Kashi Nath Pandey petitioner on 31-1-1958. On the same day, the Tribunal rejected this objection and allowed the application of opposite party No. 1 for substitution as petitioner in the election petition. In these circumstances, the petitioner has come to this Court challenging the correctness of the order of the Tribunal dated 31-1-1958 on two grounds.

(3.) One of the grounds is that the application for substitution presented by opposite party No. 1 was filed beyond the period of limitation prescribed by Section 110(3)(c) of the Representation of the People Act. When this petition was argued before us, learned Counsel for the petitioner admitted that he was unable to support the 1st ground relating to the question of limitation. The facts given above show that the notice of withdrawal was published in the official gazette on 26-12-1957 whereas the application for substitution was presented by opposite party No. 1 on 9-1-1958. The period from 26-12-1957 to 9-1-1958 is a period of 15 days if both the dates mentioned herein are counted whereas it is a period of only 14 days if the date of publication of the notice of withdrawal, viz, 26-12-1957 is not counted. Under Section 110(3)(c) an application for substitution has to be presented within 14 days of publication of the notice of withdrawal. The contention on the basis of which the petitioner came to this Court was that, for the purposes of calculating the period of 14 days laid down in Section 110(3) (C) of the Representation of the People Act, the day of publication of notice of withdrawal should also be counted. It appears that the contention was given up by the learned counsel before us because he was unable to contend that the language used in Section 110(3) (c) of the Representation of the People Act was such as to require the day of the publication of the notice of withdrawal also to be included in the period of 14 days prescribed therein. There would, of course, have been difficulty at all if, in Section 110(3)(c) of the Representation of the People Act, the word used had been "from" instead of the word "of". Had the language been that the application for substitution had to be presented within 14 days "from" such date, no argument could at all have been raised as Section 9 of the Central General Clauses Act would have applied under which the day of publication would have been excluded. A slight confusion has arisen because the Legislature used the word "of" instead of the word "from". However, we have also to take into account the principle laid down in Section 12 (1) of the Limitation Act. The principle contained in Section 12(1) is that "in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded." Under Section 110(3) (c) of the Representation of the People Act the period of 14 days has to be computed from the date of publication of the notice of withdrawal even though the word "from" is not used and the word "of" is used. In computing the period of 14 days under Section 110(3) (c) of the Representation of the People Act, therefore, the day of publication of the notice of withdrawal has to be excluded. That day being excluded, the application presented on 9-1-1958 must be held to have been within 14 days of the publication of the notice of withdrawal so that there is no force in this contention which was raised on behalf of the petitioner. We may incidentally mention that, in the objection which was filed by the petitioner before the Election Tribunal against the application for substitution presented by opposite party No. 1, the ground taken was not that the application for substitution had not been presented within 14 days of the date of publication but was that it had not been presented within 14 days 'from' the date of publication. It would indicate that the petitioner himself, even from the first stage, made no distinction between the words 'of' and 'from' and rightly considered that, whether the word used be one or the other, the interpretation would be the same so that Section 9 of the General Clauses Act would be applicable. The first point urged in favour of the present petition, therefore, fails.