KAPILDEO SINGH Vs. SURAJ NARAYAN SINGH

JUDGEMENT

(1.) The short facts leading to the presentation of this application under Article 226 of the Constitution of India are as under:

(2.) In the last General Election the petitioner, respondents 2 and 3 and two other persons, namely, Sri Rameshwar, Yadav and Sri Sukar Yadav, were declared as duly nominated candidates for the election from the Barahiya single member Constituency No. 145 of the Bihar Legislative Assembly. Subsequently, on the 4th of February, 1957, the last date fixed by the Election Commission for withdrawal of the candidature, the aforesaid Sri Rameshwar Yadav and Sri Sukar Yadav withdrew their candidature for the Assembly seat of the aforesaid Constituency, and the withdrawal was duly accepted by the Returning Officer. The result of the election was announced on the 18th of March, 1957, and the petitioner Sri Kapildeo Singh was declared to have been duly elected. Respondents 2 and 3, who also had contested for the aforesaid seat, were thus defeated. On the 3rd of May, 1957, respondent No. 1 an elector in the aforesaid Constituency, presented an election petition before the Secretary, Election Commission, India, calling in question the election of the petitioner or the said Constituency. In that election petition, apart from other allegations, certain allegations of corrupt practices committed by the aforesaid Sri Rameshwar Yadav and Sri Sukar Yadav were made, but those two persons were not made parties in the election petition. The election petition was received by Sri J.N. Lal, District Judge of Monghyr, who had been appointed the member of the Tribunal to hear the same. The petitioner appeared before the Tribunal and filed his written statement denying all the allegations made in the petition and asserted that the petition was time-barred and bad for non-joinder of the aforesaid persons who had withdrawn their candidature. H was contended on behalf of the petitioner that on the above two grounds the election petition should be dismissed in limine. Later on, respondent No. 1 filed an amendment petition to the effect that paragraphs 13, 14, 15 and 26 of the election petition, which contained allegations about corrupt practices by the above two persons, be deleted and their names also be deleted wherever they occur in the election petition. The above amendment was allowed by the Election Tribunal, who, after hearing the parties on the above two preliminary objections, over-ruled the same and held that the election petition could not be dismissed in limine as contended by the petitioner. The petitioner, therefore, filed the present application in this Court for issue of an appropriate writ quashing the above order of the Tribunal.

(3.) The first point raised on behalf of the petitioner is that the election petition was filed beyond the time prescribed by the Representation of the People Act, 1951, hereinafter to be referred to as the Act and, therefore, it was barred by time. Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of this Part (Part VI). Section 81 (1) lays down that an election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the Election Commission by any candidate at such election or any elector within forty-five days, from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates. According to the above provisions the election petition should have been filed within forty-five days from the 18th of January, 1957, the date of election of the petitioner. It is admitted by the parties in this case that on computation of the above period of forty-five days, the 2nd of May, 1957, was the last date for the filing of the election petition. That day, however, happened to be a public holiday, and the election petition was filed on the 3rd of May, 1957. It, however, appears from the letter of the Secretary, Election Commission, India, written to Sri Jagannath Lal, Member, Election Tribunal, Mon-ghyr, that the 2nd of May, 1957, was a closed holiday in the Government of India Offices and also in the office of the 'Election Commission, India, New Delhi., but arrangements were made to receive election petitions in the Commission office on that date as a special case. As a matter of fact, certain election petitions were leally presented in that office on that date in accordance widi the above arrangements. It has, therefore, been argued by Counsel for the petitioner that respondent No. 1 could have filed the election petition on the 2nd of May, 1957, and, as' such, the petition filed on the next day was beyond time. On behalf of respondent No. 1, however, a counter-affidavit has been filed in which it has been stated that he or his lawyer was not aware of the above arrangements in the office of the Election Commission to receive election petitions on the 2nd of May, 1957, as a special case, and he was within his right under the law to present the same on the next day. In support of this contention reliance has been placed by him on Section 10 of the General Clauses Act, 1897, according to which where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allow-. cd to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed an that day or the last day of the prescribed period, the act or proceeding shall be considered as done or token in due time if it is done or taken on the next day afterwards on which the court or office is open. Counsel for the petitioner has conceded that the above section is applicable to an election petition. But his contention, as has already been stated, is that though the 2nd of May, 1957, was a public holiday, the office of the Election Commission had made arrangements to receive election petitions on that date and, therefore, the above section has no application to the present case. I am unable to agree with this contention. The office of the Election Commission may have far its own facility, made arrangements to receive the election petitions on a day on which the office is actually closed as being a public holiday; but that cannot take away the right of a party to present the same on the day on which actually the office opens after that public holiday. Apart from the fact that respondent No. 1 or his lawyer had no knowledge of the above arrangements as stated in the counter-affidavit, he. in my opinion, had a right to make the application not on the day on which the office was closed, but on the day on which it opened after the public holiday. The election petition filed on the 3rd of May, 1957, therefore, was perfectly within time, and the submission made on behalf of the petitioner in that regard must be rejected as being barren of substance.