Kaushalendra Prasad Narayan Singh v. R.P Singh And Others

Raj Kishore Prasad, J.:— The petitioner, Kaushalendra Prasad Narayan Singh, a defeated candidate at the last general election to the Bihar State Legislative Assembly from the Asthawan constituency moved this Court, under Articles 226 and 227 of the Constitution, and, obtained a rule against the respondents to show cause why the order of the Election Tribunal, of which respondent No. 1 was the sole Member, passed on the 29th August, 1957, entertaining the recrimination petition filed, and, the notice given, by the successful candidate, Nand Kishore Prasad Singh, respondent 2, as required by the Proviso to sub-section (1) of Section 97 of the Representation of the People Act, 1951, (Act No. XLIII of 1951), hereinafter referred to as “the Act”, should not be set aside.

2. Cause has been shown by the learned Advocate General on behalf of the successful candidate, respondent 2, & by the learned Government Pleader on behalf of respondent 1, the Election Tribunal. The case of the petitioner, in his affidavit, is that he was a candidate for election along with three others, namely, respondents 2 to 4, of whom respondent 4, Shyamnarain Singh retired from the contest before the commencement of the polls. Poll was, therefore, taken between the petitioner and respondents 2 and 3, and, the result of the poll was announced on the 12th March, 1957, as a result of which respondent 2, Nand Kishore Prasad Singh, was declared elected. The petitioner, thereafter, filed an election petition in due time under S. 80 of the Act calling in question the election of respondent 2. In this election petition, the petitioner, in accordance with S. 84 of the Act, in addition to claiming a declaration that the election of the returned candidate, respondent 2, is void, claimed a further declaration that he himself has been duly elected.

3. The Election Commission entertained the election petition, and, as required by S. 86(1) of the Act, caused a copy thereof to be published in the Official Gazette and a copy to be served on each respondent, and, issued notices to the parties concerned fixing the 24th July, 1957 for appearance of the parties before the Election Tribunal — respondent 1 — constituted by him.

4. On the 24th July, 1957, which was the date fixed by the Election Commission for the respondents to appear before the Election Tribunal, the petitioner, and, respondent 2, Nand Kishore Prasad Singh, appeared. Respondent 2 filed a petition before the Tribunal for time to file his written statement. The tribunal, accordingly, allowed time and fixed the 9th August, 1957, as the next date in the case, for defence of the respondents, and, their documentary evidence.

5. The 9th August, 1957 was a holiday, and, therefore, the case was taken up on the 10th August, 1957, on which date respondent 2, Nand Kishore Prasad Singh, filed his recrimination petition, and, also gave notice to the Tribunal in accordance with the Proviso to S. 97(1) of the Act of his intention to give evidence to prove that the election of the petitioner would have been void if he had been the returned candidate and a petition had been presented calling in question his election.

6. The Election Tribunal, respondent 1, on the 10th August, 1957, passed the following order:

“4. 10-8-1957, 9th being a holiday, the case is put up today.

Respondents Nos. 2 and 3 do not appear, postal acknowledgment of service of notice on respondent No. 3 (Shri Sham Narain Singh) has been received from the Secretary, Election Commission. Notice has not been served on Shri Tajudin Saheb (Respondent No. 2). Let notice be issued to him from this Tribunal asking him to appear and file written statement by 24-8-1957.

Shri Nand Kishore Prasad Singh has filed written statement. Place it on the record.

He has also filed a petition giving notice to the Tribunal of his intention to give evidence to prove that the election of the petitioner in this case would have been void if he had been the returned candidate and if a petition had been presented calling in question his election. He has also filed recrimination petition contemplated by Section 97 of the Representation of the People Act, 1951. He has also filed a chalan showing deposit of Rs. 1,000/- (one thousand) in Patna Treasury in favour of the Secretary to the Election Commission as security. This notice and this petition be also put up on the date fixed.

Sd/- R.P Singh Member”.

7. We, therefore, find from the above order of the Election Tribunal that on the 10th August, 1957, as notice was not served on Tajuddin Saheb, respondent 3 to the present application, the Election Tribunal issued notice to him and fixed the 24th August, 1957, for his appearance and filing of written statement.

8. On the 24th August, 1957, notice issued to Tajuddin Saheb was reported to have been served. The petitioner, however, on that day filed a petition by way of rejoinder to the recrimination petition filed by respondent 2 and prayed therein that the recrimination petition filed by respondent 2 under S. 97(1) of the Act should be rejected as time barred, having been filed beyond fourteen days from the date of the commencement on the trial as required by the Proviso to S. 97(1) of the Act.

9. The Election Tribunal, respondent 1, therefore, heard the matter and rejected the objection of the petitioner to the recrimination petition filed by respondent 2 by his order dated the 29th August, 1957. The Election Tribunal, respondent 1, held (1) that the 24th July, 1957, the date originally fixed by the Election Commission for appearance of the respondents, cannot be regarded as the date of the commencement of the trial within the meaning of the Proviso to S. 97(1) of the Act as Tajuddin Saheb, present respondent 3, had not been served with the notice to appear on the 24th July, 1957, and (2) that the Court was closed from the 4th of August to the 9th of, August, 1957, and, therefore, the recrimination petition filed and the notice given by respondent 2 on the 10th August, 1957, on which date the Court re-opened, was not barred by time, as it cannot be regarded having been filed beyond the prescribed time.

10. The petitioner has, therefore, filed the present writ application against the aforesaid order of the Election Tribunal, and, has challenged both the grounds given by it for rejecting the objection of the petitioner.

11. Mr. Lal Narayan Sinha, the learned Government Advocate, who appeared in support of the rule, put forward two contentions:

(1) That the 24th July, 1957, the date fixed by the Election Commission in the notice to the Respondents to appear and answer the claim of the petitioner, was the date of commencement of the trial, and, therefore, the recrimination petition and the notice contemplated by the Proviso to S. 97(1) should have been given within fourteen days from that date, and, accordingly, in the present case, the notice as required by the Proviso to S. 97(1) having been given on the 10th August, 1957, was clearly beyond fourteen days from the said date of commencement of the trial, and, as such, it was barred by time; and,

(2) That the 9th August, 1957, cannot be said to be a holiday for the purposes of the Act.

12. The learned Advocate General refuted both the contentions of the learned Government Advocate.

13. In reply to the first contention of the learned Government Advocate, it was contended by the learned Advocate General that in the present case the 24th August, 1957, the date fixed by the Election Tribunal for appearance of Tajuddin Saheb, present respondent 3, on whom the notice issued by the Election Commission for appearance on the 24th July, 1957, had not been served, must in the eye of law be considered to be the date of commencement of the trial and, therefore, the recrimination petition filed and the notice given by respondent 2, the returned candidate, on the 10th August, 1957, was much before time.

14. The learned Advocate General further submitted, in reply to the second contention of the learned Government Advocate, that even if the 24th July, 1957, be considered to be the date of the commencement of the trial within the meaning of the Proviso to S. 97(1) of the Act, the order-sheet order No. 4 dated the 10th August, 1957 of the Election Tribunal reproduced in extenso earlier itself shows that the 9th August, 1957, was a holiday, and, therefore, under Section 10 of the General Clauses Act, 1897 (Act X of 1897), the recrimination filed and the notice given by respondent No. 2, as required by the Proviso to S. 97(1) of the Act, on the 10th August, 1957, shall be considered as done in due time.

15. In the present case, it is not necessary to decide the first objection of the learned Government Advocate, as to whether the 24th July, 1957, as contended by him, or the 24th August, 1957, as contended by the learned Advocate General, should be considered to be the date of the commencement of the trial, because even if it be assumed for the purpose of the present application that the learned Government Advocate is correct in his first contention, and, that, therefore, the 24th July, 1957, should be taken to be the date of the commencement of the trial within the meaning of the Proviso to S. 97(1) read with the Explanation to sub-s. (4) of S. 90 of the Act, even then, if the 9th August, 1957 be considered to be a holiday, and, the argument of the learned Advocate General on this point is accepted, then the recrimination filed and the notice given on the 10th August, 1957, would be considered to have been done in time-

16. The crucial, and the only question, therefore, for our determination is, whether the 9th August, 1957 should be considered a holiday for the purposes of the Act. In other words, the simple question is, whether the recrimination filed and the notice given on the 10th August, 1957, in the circumstances of the present case, should be considered to have been done in due time within the meaning of the Proviso to S. 97(1) of the Act.

17. The learned Government Advocate presented an elaborate argument to the effect that the Election Tribunal was neither a Court, much less a Civil Court. He contended that it was a creature of the statute, as defined in S. 2, sub-s. (I), clause (k) of the Act, and the Constitution itself made a distinction between a Court and a Tribunal, but the Act only conferred upon it some of the powers of a Court under the Code of Civil Procedure as will appear from S. 90(1) and S. 92 of the Act. He, therefore, argued that as the 4th August to the 9th August, 1957, had been declared holidays by the High Court under Section 15(1) of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act No. 12 of 1887), these holidays applied to a Civil Court, and, not, an Election Tribunal, and, accordingly, the 9th August, 1957, although declared a holiday by the High Court, could not be considered to be a holiday for the purposes of the present Act.

18. It is, however, not necessary here to decide whether an Election Tribunal is a Civil Court, or even a Court. Here, the admitted position is that the sole member constituting the Election Tribunal is a District Judge who is governed by the Civil Court holidays declared by the High Court.

19. The question, therefore, is, whether the fact that the 9th August, 1957 was admittedly a holiday, declared for the Civil Courts by the High Court, and was observed as a holiday by respondent 1, and, therefore, his Court and office remained closed that day, was sufficient in law to entitle the respondent No. 2 to do the act required to be done by the Proviso to S. 97(1) on the next re-opening day, which here was the 10th August, 1957.

20. In order to decide this question, it is necessary to read some sections of some Acts. The relevant provisions of the different Acts, relied upon by the parties, and, material for our present purpose, may be reproduced below.

21. Section 15 of the Bengal, Agra and Assam Civil Courts Act, 1887, is to the following effect:

“15.(1) Subject to such orders as may be made by the State Government the High Court shall prepare a list of days to be observed in each year as close holidays in the Civil Courts.

(2) The list shall be published in the Official Gazette.

(3) A judicial act done by a Civil Court on a day specified in the list shall not be invalid by reason only of its having been done on that day”.

22. Section 97 of the Representation of the People Act, 1951 may usefully be quoted here in extenso. It reads thus:

“97. Recrimination when seat claimed:

(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other 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:

Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the Tribunal of his intention to do so, and, has also given the security and the further security referred to in Ss. 117 and 118 respectively;

(2) Every notice referred to in sub-s. (1) shall be accompanied by the statement and particulars required by S. 83 in the case of an election petition and shall be signed and verified in like manner”.

23. “Public holiday” has been defined in the Explanation to S. 30 of the Act. This Explanation is to the following effect:

“Explanation:— In this section, ‘public holiday’ means any day which is a public holiday for the purposes of S. 25 of be Negotiable Instruments Act, 1881 (28 of 1881), or any day which has been notified by the State Government to be a holiday for the Government offices in the State”.

24. Section 10 of the General Clauses Act, 1897, is in these terms:

“10(1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be clone or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:

Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies.

(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January 1887.

25. In the instant case, the Member of the Election Tribunal being a District Judge, naturally observed the days declared as “close holidays in the Civil Courts” by the High Court. The fact that the 9th August, 1957, was a holiday will appear from the order-sheet of the Election Tribunal itself. On the 10th August, 1957, the opening lines of the order of that date are; “9th being a holiday, the case is put up today”. Therefore, there can be no doubt that the 9th August, 1957, was a holiday. Even in its impugned order of the 29th August, 1957, the Election Tribunal-has said as below:

“xxxxxx

Then it appears that the Court was closed from 4th to 9th August, 1957. I remember to have gone to the Court on the 9th August, 1957 and was there for an hour, but as nobody turned up I went away. But the fact remains that the Court was closed on that day as it had been declared holiday by the Hon'ble High Court. Under such circumstances if the notice was not given on 9-8-1957 and if it was filed on 10-8-1957 when the Court re-opened then it cannot be said that it is barred by limitation. If the date of filing of the petition falls on any date which is a holiday then it can be filed on the next re-opening day

xxxxxx”

26. The question, then arises if this holiday should be considered to be a “public holiday” for the purposes of the present Act also.

27. It is not necessary, however, to examine this question at length, because in view of the decision of the Supreme Court in Harinder Singh v. Karnail Singh, AIR 1957 SC 271 (A), in my judgment, Section 10 of the General Clauses Act would apply here for the interpretation of S. 97 of the Act.

28. Their Lordships of the Supreme Court, in the just mentioned case, were considering old R. 119 of the Representation of the People (Conduct of Elections and Election Petition) Rules, 1951 which prescribed the period within which election petitions had to be filed under the Act. In that case, the last date of filing the election petition, according to R. 119, was May 16, 1954, but that happened to be a Sunday, and the day following had been declared a public holiday, and, accordingly, the election petition was presented on May 18, 1954. The first question, therefore, which arose for determination by their Lordships was the interpretation of Section 10 of the General Clauses Act. His Lordship Venkatarama Ayar, J., who delivered the unanimous opinion of the Court, observed:

“Section 81(1) enacts that the election petition may be presented “within such time as may be prescribed”, and it is under this section that R. 119 has been framed. It is obvious that the rule-making authority could not have intended to go further than what the section itself had enacted, and if the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words “not later than fourteen days” must be held to mean the same thing as “within a period of fourteen days”. Reference in this connection should be made by the heading of R. 119 which is, “Time within which an election petition shall be presented”. We entertain no doubt that the Legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that S. 10 is not applicable to petitions falling within R. 119.

We are also unable to read in the proviso to S. 37 of the Act an intention generally to exclude the operation of Section 10 of the General Clauses Act in the construction of Rules, as that will be against the plain language of R. 2(6). It should, be noted that proviso applies only to S. 30(c) of the Act, and it is possible that the Legislature might have considered it doubtful whether S. 30(c) would, having regard to its terms, fall within Section 10 of the General Clauses Act and enacted the proviso ex abundanti cautela. The operation of such a beneficent enactment as Section 10 of the General Clauses Act is not, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us. We are accordingly of opinion that the petition which the respondent filed on May 18, 1954 is entitled to the protection afforded by that section and is in time”.

29. It may be noted that in the above case, their Lordships were considering the Proviso to Section 37, which applied to Section 30(c) of the unamended Representation of the People Act, 1951. Now the Proviso to S. 37 has been deleted, but, a provision similar to the same has been provided in the Explanation to Section 30, which was not then ini existence, by the Representation of the People (Second Amendment) Act, 1956. The Proviso to S. 37 of the unamended Act, which has now been deleted and which was then in existence, was in these terms:

“Provided that if that day is a public holiday within the meaning of Section 25 of the Negotiable Instruments; Act, 1881 (XXVI of 1881) or has been notified by the State Government as a day to be observed as a holiday in Government Offices in the State, the notice of withdrawal of candidature shall be considered as having been delivered in due time if it is delivered before three o'clock in the afternoon on the next succeeding day which is neither such a public holiday nor a day so notified”.

30. On a comparison of the above old Proviso to S. 37, and, the present Explanation to S. 30 of the Act, quoted earlier it will be apparent that they are in similar terms.

31. The old S. 81 of the Act has also been amended by the Representation of the People (Second Amendment) Act, 1956, and now the time limit within which an election petition has to be filed has been specified in the amended S. 81 itself, and, for that reason a rule, like R. 119, is not to be found in the Rules of 1956. But even in the new Rules' of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, made in 1956 by the Central Government in exercise of the powers conferred on it by S. 169 of the Act, there is a rule, like the old Rule 2(6). This rule is also R. 2(6) which provides that:

“The General Clauses Act, 1897 (10 of 1897) shall apply for the interpretation of these rules as it applies for the interpretation of an Act of Parliament”.

32. In the present case, as we are not concerned with the interpretation of any rule in the Rules of 1956, therefore R. 2(6) is not of much assistance here.

33. It is true in the Supreme Court case S. 97 was not in question, and, their Lordships were concerned with the interpretation of the old Proviso to Section 37 of the unamended Act. But, in my opinion, there is no valid reason why the ratio decidendi of that case should not apply here. It is impossible to read either in the Explanation to S. 30, or, even in S. 97 of the present Act, an intention to exclude the operation of Section 10 of the General Clauses Act in the construction of S. 97 of the Act. On the other hand, R. 2(6) lends support to my view that Section 10 of the General Clauses Act, 1897, would apply here. Rule 2(6) was necessary because Section 10 of the General Clauses Act speaks of Central Acts and Regulations, and it does not specifically mention Rules made under any Act. But a provision like R. 2(6) was not necessary in the Act itself, because Section 10 of the General Clauses Act on its plain language and in terms applies to all Central Acts and Regulations made on or after the 14th January, 1887. The General Clauses Act, therefore, on its terms, applies to the present Act also.

34. In my judgment, therefore, Section 10 of the General Clauses Act, 1897, proprio vigore, applies to the present case.

35. In the words of His Lordship Venkatarama Ayyar, J., in the Supreme Court case referred to above, the object of Section 10 of the General Clauses Act, 1897, is:

“Broadly stated, the object of the section is, to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday”.

36. Applying the principles laid down by their Lordships of the Supreme Court in the above case, it follows, therefore, that in order to attract the application of the provisions of Section 10 of the General Clauses Act, 1897, all that is requisite is that there should be a period prescribed and, that period should expire on a holiday. Now, it cannot be denied that the period of fourteen days provided in the Proviso to S. 97(1) of the Act is a period prescribed, and, therefore, Section 10 of the General Clauses Act would apply here.

37. The Explanation to S. 30, in which “public holiday” has been defined, itself specially mentions the words “in this section”, meaning thereby S. 30 of the Act to which that Explanation has been newly added in 1956, and, therefore, for the purposes of S. 30 only, “public holiday” as defined in the Explanation to S. 30 of the Act, would mean any day, which is a public holiday, for the purposes of Section 25 of the Negotiable Instruments Act, or, any day which has been notified by the State Government to be a holiday for the Government offices in the State.

38. But that apart, there is nothing in this Explanation to S. 30 of the present Act to indicate an intention to exclude the operation of Section 10 of the General Clauses Act, in the construction of S. 97 of the Act.

39. Moreover, for the purpose of other sections, like S. 97, “public holiday” has not been defined anywhere in the Act. Section 10 of the General Clauses Act itself provides that it applies to all Central Acts made on or after the 14th January, 1887. The present Act is a Central Act, and, therefore, in the absence of anything to the contrary in the present Act, or the Rules made thereunder, Section 10 of the General Clauses Act will apply for the purpose of interpretation of S. 97 of the present Act.

40. The notice contemplated by the Proviso to S. 97 had to be given “within fourteen days from the date of the commencement of the trial”. Even, therefore, accepting the argument of the learned Government Advocate that the 24th July, 1957, which was the date fixed by the Election Commission for the respondents to appear before the Election Tribunal, was the date of commencement of the trial within the meaning of Explanation to sub-s. (4) of S. 90 of, the Act, and, therefore, the notice required by the Proviso to S. 97(1) of the Act, had to be given within fourteen days from that date, then obviously fourteen days from that date would expire on the 9th August, 1957. But the 9th August had been declared a public holiday for the Civil Courts by the High Court, and, therefore, the office of the Election Tribunal, who was a District Judge, was closed on that day. We, therefore, find that here the act prescribed to be done by the Proviso to S. 97(1) of the Act fell on a day, when the Court and office were closed, because of that day being a public holiday.

41. The period prescribed having thus expired on a holiday, the provisions of Section 10 of the General Clauses Act were at once attracted. There is, therefore, no reason why the public holidays declared by the High Court for observance of Civil Courts should not be considered to be a public holiday for the purposes of this Act, particularly in this case, when the sole member constituting the Election Tribunal was a District Judge, who observed these public holidays, and, therefore, his office and Court remained closed that day.

42. In my judgment, therefore, the 9th August, 1957, in the instant case, must be considered to be a public holiday for the purpose of the Act so as to entitle respondent 2 to the protection of Section 10 of the General Clauses Act.

43. The object of Section 10 of the General Clauses Act is to enable a person to do what he could have done on a holiday on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to Section 10 of the General Clauses Act the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. The operation of such a beneficent Act, as Section 10 of the General Clauses Act, should not, therefore, be cut down and made inapplicable to the case like the present one.

44. In the present case admittedly the notice required to be given by the Proviso to S. 97(1) was given on the next re-opening day, that is, the 10th August, 1957. We are accordingly, of opinion that the recrimination filed and the notice given by respondent No. 2, Nand Kishore Prasad Singh, on the 10th August, 1954 are entitled to the protection afforded by Section 10 of the General Clauses Act, and, are, accordingly, in time. The Election Tribunal, therefore, has correctly decided the question of limitation.

45. For the reasons expressed above, I find that there is no merit in the contention of the petitioner, and, accordingly, it is rejected.

46. In the result, the rule is discharged, as no case has been made out for issuing a writ quashing the order of the Election Tribunal dated the 29th August, 1957. The election case, therefore, will now proceed in accordance with law.

47. The application is, accordingly, dismissed with costs, hearing fee Rs. 200/- payable by the petitioner to respondent No. 2, Nand Kishore Prasad Singh.

48. Ramaswami, C.J:— I agree.

K.S.B

49. Application dismissed.