High Court dismissed an election petition filed beyond statutory limitation, holding that the Representation of the People Act is a complete code and the Limitation Act does not apply to condone delays.
Application for dismissal allowed; Application for condonation of delay rejected; Election Petition dismissed under Section 86.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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jpc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION NO. 11 OF 2011
IN
ELECTION PETITION NO. 01 OF 2011
Shri Pratik Prakashbapu Patil
... Applicant Original Respondent No.5
Versus
Mr. Maruti Mura Vagare and others
... Respondents ( Original Petitioner & Original Respondent Nos. 1 to 4)
Mr. A. A. Kumbhkoni a/w Mr. Kuldeep U. Nikam for the Applicant/Original Respondent No.5
Mr. Maruti Mura Vagare- Applicant/ Original Petitioner in person.
CORAM: R. M. SAVANT, J.
DATED : 28th March, 2012
P.C. :
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particulars, and therefore, falls foul of Section 83 of the said Act and is liable to be dismissed also on the said ground.
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dismissed under Section 86 of the Said Act, in my view, it is not necessary to go into the other grounds on which the dismissal of the Election Petition is sought by way of the above Application. In the context of the ground of limitation, it would be relevant to note a few
dates which are as under:
| Dates | Events |
|---|---|
| 16/05/2009 | Results of the Sangli Assembly Constituency declared |
| 10/06/2009 | P.I.L. filed by the Petitioner. |
| 01/02/2010 | P.I.L. disposed of. |
| 30/06/2009 | Period of limitation of 45 days comes to an end. |
| 02/06/2010 | Election Petition filed. |
| 21/09/2010 | Application for Condonation of delay filed. |
Hence, going by the aforesaid chronology of dates, it can be seen that there is delay of 336 days in filing the above Election Petition.
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the provisions of the Limitation Act are not applicable to the filing of an election petition. The learned counsel would contend that the said Act is a self contained code, and therefore, the period of limitation that is prescribed under the said Act would have to be strictly adhered to and there cannot be any condonation of delay in filing the Election Petition. The learned counsel placed reliance on the judgments of the Apex Court, reported in 1974 (2) SCC 113 in the matter of Hukumdev Narayan Yadav Vs. Lalit Narain Mishra; 1993 (I) SCC 636 in the matter of Anwari Basavaraj Patil & others; and (1999) 8 SCC 532 in the matter of Lachhaman Das
Arora Vs. Ganeshi Lal & others .
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corrupt practices relating to the election of the Respondent No.5 and that he had also filed a P.I.L. in this Court, questioning the election of the Respondent No.5, and therefore, he has been vigilantly agitating his grievance in respect of the election of the Respondent No.5; and therefore the delay if any ought to be condoned and the Election Petition ought to be heard on merits.
"81. Presentation of petitions .—(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-Section
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(1)] of Section 100 and Section 101 to the [High Court] by any candidate at such election or any elector [within fortyfive 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].
Explanation.—In this sub-Section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
[ * * * *]
[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]
82. Parties to the petition. —A petitioner shall join as respondents to his petition—
(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
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(b) any other candidate against whom allegations of any corrupt practice are made in the petition.]
83. Contents of petition .—(1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
86. Trial of election petitions. —(1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
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Explanation.—An order of the High Court dismissing an election petition under this sub-Section shall be deemed
to be an order made under clause (a) of Section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-Section (2) of Section 80A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.—For the purposes of this sub-Section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
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(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
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grounds specified in [sub-Section (1)] of Section 100 and Section 101 by any candidate at such election or any elector, has to be presented within forty-five days from, but not earlier than, the date of election of the returned candidate. The mandate, therefore, of Section 81 of the said Act obligates the Election Petitioner to file the Election Petition within 45 days of the election of the returned candidate. Section 86 postulates that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the said Act. Hence dismissal of an election petition is contemplated by Section 86 of the said Act for non compliance of Section 81 of the said Act. Therefore, in terms of Section 86, an election petition can be dismissed on the ground that it is filed beyond the period of limitation.
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learned counsel Shri Kumbhakoni to buttress his submission that the provisions of the Limitation Act are not applicable to the filing of an election petition. In so far as the judgment in Hukumdev Narayan Yadav (supra) is concerned, the issue as to whether the provisions of the Limitation Act i.e. Sections 4 to 24 would be applicable to the filing of an election petition was considered by the Apex Court on the touchstone of Section 29(2) of the Limitation Act. The Apex Court held that the intention of the legislature was to make the said Act a complete code by itself which alone would govern the several matters provided by it. The Apex Court held that if on examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily to be excluded, then the benefits conferred therein cannot be called in aid to the supplement the provisions of the saud Act. Even in a case where the special law does not exclude the provisions of Section 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of the subject matter and scheme of the special law exclude their operation.
The facts in the said case before the Apex Court were that the candidate in question was declared elected on 2nd February, 1972. The last date for filing the election petition was 18th March, 1972 which was a Saturday. The election petition was presented on 20th
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March, 1972 i.e. on the next working day which was Monday. The condonation of delay was sought on the ground that in terms of Section 29(2) of the Limitation Act, the provisions of Section 4 to 24 of the Limitation Act would be applicable. The Apex Court referred to the gamut of the case law which was referred before it and negatived the contention of the Election Petitioner. The conclusion of the Apex Court can be found in paragraph 25 of the said judgment, which is reproduced hereunder:
"25. For all these reasons we have come to the conclusion that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial and in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay."
"7. There is no provision in the Representation of People Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under the Act. The appellant, however, relies upon Section 29(2) of the
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Limitation Act. According to him by virtue of the said provision, all the provisions contained in Section 4 to 24 (both inclusive) apply to the proceedings under the Act including the recrimination notice under Section 97. SubSection (2) of Section 29, which alone is relied upon before us reads:
"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule , the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law".
8. In H.N.Yadav Vs. L.N. Mishra, this Court held that the words "expressly excluded" occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefit conferred by the Limitation Act cannot be called in aid to supplement the
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provisions of the Special Act. That too was a case arising under the Representation of People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of People Act by virtue of Section 29(2) was stated in the following words: (SCC p. 147, para 18)
"The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act."
9. On an examination of the provisions of the Representation of People Act and the relier decisions of the Court, it was held that the Representation of People Act is a self-contained code and accordingly, it was concluded that "the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial".
10. This decision, in our view, practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition. The language of Section 97 makes the said fact abundantly clear. The relevant words are: "the returned candidate or any other
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party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election". The proviso to sub-section (1) applies to the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non-compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of subSection (1) of Section 86. Sub-section (2) of Section 97 further says that the "notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner". We may also say that the proviso to sub-section (1) of Section 97 which requires such a notice to be given to the High Court within fourteen days of the "date fixed for respondents to appear before the High Court to answer the claim or claims" (reading the definition of "commencement of trial" into it) has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice".
Das Arora (supra), wherein the Apex Court has held that the scheme
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of the special law i.e. the Representation of People Act shows that the provisions of Section 4 to 24 of the Limitation Act do not apply. If an election is not filed within the prescribed period of forty five days, then Section 86 (1) of the Act which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or 82 or Section 117, straightaway attracted.
"7. On its plain reading, Section 81(1) lays down that an election petition calling in question any election may be presented one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 of the Act to the High Court by any candidate at such election or by an 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. The Act is a special code
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providing a period of limitation for filing of an election petition. No period for filing of an election petition is prescribed under the Indian Limitation Act. The Act insofar as it relates to presentation and trial of election disputes is a complete code and a special law. The scheme of the special law shows that the provisions of Sections 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of forty-five days, Section 86(1) of the Act, which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 , is straightaway attracted. "
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( R. M. SAVANT, J.)
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2 issues framed by the court
Whether provisions of the Limitation Act apply to filing of election petitions under the Representation of the People Act, 1951.
Whether delay in filing an election petition can be condoned under Section 81 of the Representation of the People Act, 1951.
Colour shows how this judgement treated each authority
Hukumdev Narayan Yadav Vs. Lalit Narain MishraFollowed¶91
1974 (2) SCC 113 · Who else cites this
Anwari Basavaraj Patil & othersFollowed¶98
1993 (I) SCC 636 · Who else cites this
Lachhaman Das Arora Vs. Ganeshi Lal & othersFollowed¶117
(1999) 8 SCC 532 · Who else cites this
2 provisions across 1 enactments
Shri Pratik Prakashbapu Patil
Mr. Maruti Mura Vagare
R. M. Savant
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
