Rai Vs. Chander Bahadur Karki  Insc 976 (15 December 2006)
Sabharwal, C.K. Thakker & R.V. Raveendran
CIVIL APPEAL Nos. 8253 AND 8255 OF 2004 C.K. THAKKER, J.
the above three appeals raise an interesting and important question of law as
to interpretation of Section 81 of the Representation of the People Act, 1951
(hereinafter referred to as "the Act").
these appeals, facts are more or less similar.
Election Commission of India issued a notification on March 16, 2004 for holding general election to the
Legislative Assembly for the State of Sikkim. Total constituencies were 32. A programme
was published which provided various stages of election. April 23, 2004 was the last date for filing
nomination papers, April
24, 2004 was fixed for
scrutiny of nomination papers, April 26, 2004
was the last date for withdrawal of candidatures, May 10, 2004 was the date of poll, if necessary, and date of counting
and declaration of results was fixed as May 17, 2004. The appellants filled in their
nomination papers from 12-Wak Assembly Constituency, 14-Melli Assembly
Constituency and 13- Damthang Assembly Constituency respectively on April 23, 2004. When nomination papers were
scrutinized on the next date, i.e. April 24, 2004, they were found to be defective
and hence all their nomination papers were rejected. The resultant effect was that
on April 26, 2004 which was the last date for
withdrawal of candidature, in all the three above constituencies, only one
candidate was in the field. The Returning Officer, therefore, declared the
first respondent in all the matters elected (un-contested). In respect of other
constituencies, however, polling was held on May 10, 2004 and after counting of votes, results were declared on May 17, 2004.
the three appellants filed Election Petitions in the High Court of Sikkim
(Election Tribunal) on June
25, 2004. Notices were
issued to the respondents-returned candidates and they appeared. A preliminary
objection was raised by the returned candidates as to maintainability of
petitions on the ground of limitation.
contended that in accordance with the provisions of Section 81 of the Act, an
election petition could be presented calling in question any election of a
successful candidate within a period of forty-five days from the date of
election of the returned candidate. Since the returned candidates were declared
elected (un-contested) on April 26, 2004, election petitions could be filed
only within a period of forty-five days from that date, i.e. April 26, 2004. Petitions were admittedly filed on
June 25, 2004 and thus they are barred by
limitation. The case of the election-petitioners, on the other hand, was that
date of poll was May
10, 2004 and date of
publication of results of election under Section 73 of the Act was May 17, 2004. For all material purposes,
therefore, relevant date was May 17, 2004
and not April 26, 2004 and in view of that fact, election
petitions were within limitation.
the controversy between the parties and a preliminary objection regarding
maintainability of petitions on the ground of limitation, the High Court raised
a preliminary issue as under "Whether the election petition is barred by
the law of limitation as prescribed under Section 81 of the Act?" The High
Court then heard the learned counsel for the parties, considered the relevant
provisions of the Act and other laws, referred to the decisions cited at the
Bar and held that the relevant date of commencement of limitation for the purpose
of challenging the election of returned candidates (un-contested) was April 26,
2004 and not May 17, 2004 as contended by the election- petitioners. Election
petitions were, therefore, barred by limitation. The High Court, accordingly,
dismissed all the petitions with costs.
aggrieved by the order passed by the High Court, all the appellants have filed
these appeals under Section 116A of the Act. Notice was issued on January 6, 2005. The appeals were also ordered to
be posted for hearing.
have heard learned counsel for the parties.
learned counsel for the appellants submitted that the High Court has committed
an error of law in dismissing election petitions filed by the appellants-
election-petitioners on the ground of limitation. He submitted that reading of
the relevant provisions of the Act makes it abundantly clear that extended
period of limitation is provided in Section 81 of the Act and petitions filed
by the appellants-petitioners were within the period of limitation. It was also
submitted that the present cases are governed by the second part of Section 81
of the Act and not the first part of the said provision and High Court
erroneously held that the period of limitation would start from declaration of
returned candidate on April
26, 2004. The counsel
alternatively argued that even if two interpretations are possible, the one
which would enable the Election Tribunal (High Court) to consider and decide
the case on merits would be preferred to another interpretation which would
non- suit the election-petitioners holding the petitions to be barred by time.
It was, therefore, submitted that the order passed by the High Court deserves
to be set aside by allowing these appeals and remitting all petitions to the
High Court, to treat them within time and to decide them in accordance with
learned counsel for the respondents-returned candidates, on the other hand,
supported the order passed by the High Court. He submitted that the High Court
was wholly justified in dismissing the petitions and in interpreting the
relevant provisions of the Act and in particular, Section 81 thereof. According
to him, the relevant date for filing an election petition would be the date of
declaration of returned candidate and once such declaration was made on April 26, 2004, the limitation began to run from
that date and the defeated candidates were required to institute election
petitions within forty- five days from that date. Admittedly, petitions were
filed on June 25, 2004 and hence, they were rightly held
barred by limitation. It was also submitted that considering the relevant
provisions of law, the amendments made in the Act in 1956 and 1961, the
reasoning and conclusion of the High Court cannot be faulted with and the
appeals deserve to be dismissed.
attention has been invited by the learned counsel for the parties to the
relevant provisions of the Act as also of other laws. Before we deal with the
respective contentions of the learned counsel for the parties, it would be
appropriate if we refer to the relevant provisions of the Act. The Preamble of
the Act declares that the Act has been enacted "to provide for the conduct
of elections of the Houses of Parliament and to the House or Houses of the
Legislature of each State, the qualifications and disqualifications for
membership of those Houses, the corrupt practices and other offences at or in
connection with such elections and the decision of doubts and disputes arising
out of or in connection with such elections". Section 2 is a 'legislative
dictionary' and defines various terms. It, however, starts with a caveat and
declares that the definition in the said section would prevail "unless the
context otherwise requires". Clause (d) of sub-section (1) of Section 2
defines 'election' as "election to fill a seat or seats in either House of
Parliament or in the House or either House of the Legislature of a State".
Sub-section (2) of Section 2 enacts that for the purposes of the Act, "a
Parliamentary constituency, an Assembly constituency, a Council constituency, a
local authorities' constituency, a graduates' constituency and a teachers'
constituency shall be treated as a constituency of a different class".
II deals with qualifications and disqualifications of membership of Parliament
and of State Legislatures.
III provides for issuance of notification for general elections. Section 15
deals with notification for general election to a State Legislative Assembly.
Part V relates to conduct of elections. Chapter III thereof titled 'General
procedure at elections' relates to cases where there is contest as also
non-contest. Section 53 which is relevant reads thus
Procedure in contested and uncontested elections.
the number of contesting candidates is more than the number of seats to be
filled, a poll shall be taken.
the number of such candidates is equal to the number of seats to be filled, the
returning officer shall forthwith declare all such candidates to be duly
elected to fill those seats.
the number of such candidates is less than the number of seats to be filled,
the returning officer shall forthwith declare all such candidates to be elected
and the Election Commission shall by notification in the Official Gazette call
upon the constituency or the elected members or the members of the State
Legislative Assembly or the members of the electoral college concerned, as the
case may be, to elect a person or persons to fill the remaining seat or seats.
that where the constituency or the elected members or the members of the State
Legislative Assembly or the members of the electoral college having already
been called upon under this sub- section, has or have failed to elect a person
or the requisite number of persons, as the case may be, to fill the vacancy or vacancies,
the Election Commission shall not be bound to call again upon the constituency,
or such members to elect a person or persons until it is satisfied that if
called upon again, there will be no such failure on the part of the
constituency of such members.
54 and 63 which provided procedure at elections in constituencies which
included reserved seats and method of voting at such elections were
subsequently repealed. We will deal with that aspect at an appropriate stage.
IV of the said part relates to poll. Chapter V deals with 'Counting of votes'.
Section 64 states that at every election where a poll is taken, votes shall be
counted by or under the supervision and direction of, the Returning Officer,
and each contesting candidate, his election agent and his counting agents,
shall have a right to remain present at the time of counting. Section 66 enacts
that when the counting of the votes has been completed, the Returning Officer
shall, in the absence of any direction by the Election Commission to the
contrary, forthwith declare the result of the election in the manner provided
by the Act or the Rules made under the Act. Section 67 requires the Returning
Officer to report the result to the appropriate authority and the Election
Commission and the appropriate authority would cause to be published in the
Official Gazette the declaration containing the names of the elected
67A is also material and reads as under 67A. Date of election of candidate.For
the purpose of this Act, the date on which candidate is declared by the
returning officer under the provisions of section 53, or section 66, to be
elected to a House of Parliament or of the Legislature of a State shall be the
date of election of that candidate.
73 of the Act enjoins upon the Election Commission to issue notification after
declaration of result of elections in all constituencies upon which the House
is deemed to have been duly constituted. Part VI relates to "Disputes
regarding elections". Section 80 prohibits questioning of election except
by way of election petition. Under Section 80A, it is the High Court which can
try the election petitions. Section 81 provides for presentation of the
election petition and prescribes the period of limitation. Sub-section (1)
thereof is material which this Court is called upon to interpret and may be
quoted in extenso.
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 (1) of section 100 and section 101 to the High Court 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 dates of their election
are different, the later of those two dates.
learned counsel for the appellants concedes that Section 81 of the Act
prescribes period of limitation and also mandates that an election petition
calling in question any election either by a candidate or by any elector should
be filed within a period of forty-five days from the date of election of
returned candidate. The counsel also concedes that in all the three cases, the
returned candidates were declared elected (un-contested) on April 26, 2004 and
considering the said date, election petitions filed on June 25, 2004 were
barred by limitation. But the argument of the learned counsel is that where
there are more than one returned candidate at the election and the dates of
their election are different, Section 81 also gives option to a candidate or an
elector to present such petition within forty-days from the last date on which
one of the candidates has been declared elected. According to the counsel,
admittedly the notification for general election to the Legislative Assembly
for the State of Sikkim issued by the Election Commission expressly stated that
there were 32 constituencies for the Legislative Assembly for the State of Sikkim
and election was to be held for all those constituencies. The counsel stated
that except in three constituencies wherein the candidates were declared
elected (un-contested), in rest of the constituencies, elections were held and
voting was completed only on May 10, 2004.
Results in those constituencies were declared on May 17, 2004. Election Petitions under the second part of Section 81,
therefore, could be filed within forty-five days from May 17, 2004. Considering that date, election
petitions were within the period of limitation.
also submitted that the limitation cannot run prior to the date of declaration
of result of elections under Section 73 of the Act inasmuch as the election
process could not be said to have come to a final halt until a declaration as
required therein is made so as to attract the bar contained in Article 329(b)
of the Constitution.
have already reproduced Section 81 of the Act.
lays down the period of limitation for filing an election petition. Admittedly,
it is in two parts. The first part provides that an election petition calling
in question any election could be filed by a candidate or an elector within
forty-five days 'from the date of the election of the returned candidate'. The
second part of the section covers those cases where there are more than one
returned candidate at the election and the dates of their elections are
different. In such cases, the later of the two dates would be the starting
point of limitation for the purpose of filing an election petition.
learned counsel for the returned candidates submitted, and in our opinion
rightly, that the second part of Section 81 does not deal with election to
Legislative Assembly or to the House of People (Lok Sabha), but to Legislative
Council of State or to Council of States (Rajya Sabha). That part speaks of
more than one returned candidate at the election which is an eventuality only
in the election of Legislative Council of State or Council of States where at a
single election by the same electorate more than one candidate could be
this connection, the learned counsel for the respondents drew our attention to
Articles 80 and 171 of the Constitution. Whereas Article 80 deals with
composition of Council of States, Article 171 relates to Legislative Councils
of States. Clause (4) of Article 171 enacts that the members to Legislative
Councils of States would be elected in accordance with the system of
proportional representation by means of single transferable vote. Part VII of
the Conduct of Election Rules, 1961 (hereinafter referred to as 'the Rules')
also deals with the manner of counting of votes at such election. Rules 76 to
81 clearly provide that as soon as a candidate secures the required quota of
votes, he will be declared elected and surplus votes will be transferred in favour
of remaining candidates as indicated in the ballot papers as being next in
order of preference by the elector. By such process, the required number of
candidates to be elected will be declared one by one.
for instance, if five candidates are to be elected in an election to the
Council of States (Rajya Sabha) from a particular Legislative Assembly of a
State, the dates on which they would be elected might be different because of
the time required to count the preference of votes exercised by electors. No
such situation, however, will arise in case of election to a Legislative
Assembly of a State or House of the People.
learned counsel also referred to the relevant provisions of the Act as they
originally stood in 1951 and the amended provisions after the Representation of
the People (Second Amendment) Act, 1956 (Act 27 of 1956) and the Representation
of the People (Amendment) Act, 1961 (Act 14 of 1961). Section 81 of the Act as
it originally stood prior to the Amendment Act, 1956 did not expressly provide
period of limitation for filing an election petition. It, however, provided
that an election petition calling in question any election could be presented
'in such form and within such time as may be prescribed'. The word 'prescribed'
was defined as 'prescribed by the rules made under the Act'.
however, thought it fit to prescribe the period of limitation. By the Amendment
Act, 1956, therefore, it amended Section 81 by expressly providing the period
of limitation of forty five days from the date of election of the 'returned
candidate'. To avoid any doubt and to make the position explicitly clear as to
what should be the date on which a candidate can be said to have been declared
elected, Parliament also inserted Section 67A clarifying that the date on which
the candidate is declared elected by the Returning Officer would be the date of
election of that candidate.
also necessary to bear in mind that Section 53 of the Act provides that if the
number of candidates is equal to number of seats to be filled, the Returning
Officer is required to forthwith declare such candidates to be duly elected and
only in the event of contest, poll would be held. Section 66 covers those cases
where poll is felt necessary and requires the Returning Officer to declare the
result of the election forthwith after counting of votes.
counsel also submitted that Section 54 of the Act, as originally enacted, dealt
with elections in constituencies where more than one candidate was to be elected.
Section 63 laid down method of voting at such election, i.e. voting in 'plural
8(2) of the Delimitation Act, 1952 expressly enacted that 'all constituencies
shall be either single member constituencies or two member constituencies'.
further stated that 'in every two-member constituency, one seat shall be
reserved either for the Scheduled Castes or for the Scheduled Tribes and the
other seat shall not be so reserved'. It is in the light of those provisions
that the provision for limitation contemplated two types of cases. In a
two-member constituency, the dates on which candidates were declared elected
might be different. Such a case came up for consideration before the
Constitution Bench of this Court in V.V. Giri v. D. Suri Dora & Others,
(1960) 1 SCR 425 : AIR 1959 SC 138. It related to Parvatipuram Lok Sabha
constituency in Andhra Pradesh which was a two member constituency in which one
seat was reserved for Scheduled Caste candidate and other was kept non-
reserved/general. At such election, if there is only one candidate for the
reserved seat (Scheduled Caste), obviously he would be declared elected as
against such reserved seat as soon as the date of scrutiny is over and on the
date of withdrawal, there is not more than one candidate. But for the other
seat, i.e. non-reserved/ general seat, if there are more than one candidate
after the date of withdrawal, poll will be held and result will be declared
only after counting of votes. In such cases, the later part of Section 81 of
the Act would apply and the benefit of extended period of limitation can be
claimed by the election petitioner.
54 of the Act was, however, deleted by the Amendment Act, 1961. Consequently,
Section 63 also was deleted by the same Amendment Act. Likewise, the
Delimitation Act, 1972 provided readjustment of the allocation of seats in the
House of People and Legislative Assembly in each State. Section 9(1) of the
said Act required the Delimitation Commission to distribute seats in the House
of People (Lok Sabha) allocated to each State and seats assigned to Legislative
Assembly of each State to 'single member territorial constituencies' and
delimit them on the basis of latest census figures having regard to the
provisions of the Constitution. It also provided for reservation of seats for
Scheduled Castes and Scheduled Tribes. We no longer have multi-member
also be appropriate to refer to sub-section (3) of Section 4 and sub-section
(2) of Section 7 of the Representation of the People Act, 1950 as amended in
1975 and 1980. Sub-section (3) of Section 4 states that 'every Parliamentary
Constituency shall be a single- member constituency. Likewise sub-section (2)
of Section 7 declares that 'every Assembly Constituency shall be a
view of the above provisions, in our considered opinion, the second part of
Section 81 cannot apply to any election to a Legislative Assembly, but it would
apply only to Legislative Council of a State or Council of States.
High Court was, therefore, right in holding that the relevant date for
calculation of the period of limitation was 'the date of election of the
returned candidate' and an election petition ought to be filed within
forty-five days from such date.
urged that the expression "election" has been defined in the Act as
an election to fill a seat or seats in either House of the Legislature of a
State and when the said expression is used in Section 81, it would have the
same meaning and it would include election to all constituencies in the State.
unable to uphold the argument. It is true that the term "election" in
Section 2(d) defines as election to fill a seat or seats in either House of
Parliament or either House of the Legislature of a State. But it must be
remembered that the Act deals with election of both the Houses of Parliament
and State Legislatures and defines the expression "election".
Moreover the opening words of Section 2 are "unless the context otherwise
while construing, interpreting and applying the definition clause, the Court
has to keep in view the legislative mandate and intent and to consider whether
the context requires otherwise. As already observed earlier, Section 81 which
is in two parts deals with different situations. The first part applies to a
Legislative Assembly while the second part applies to a Legislative Council.
learned counsel for the respondent rightly relied on the following observations
of the High Court of Kerala in P.R. Francis v. A.V. Aryian, AIR 1968 Ker 252;
Section 81 of the Act, 'an election petition calling in question any election
may be presented by any candidate at such election or any elector' and Section
80 prohibits an election being called in question except by an election
petition presented in accordance with Section 81. 'Election' in this context
means not the general election or the entirety of the elections held in the
State, but one election held in one constituency. A challenge to the entirety
of elections held in the State is therefore within the taboo of Section 80 of
the Act. (emphasis supplied) Upholding of submission that the limitation for
filing an election petition should be reckoned not with reference to the date
on which the candidate whose election is challenged was declared elected, but
with reference to the date on which the last candidate was declared elected at
a general election would not only make the provision cumbersome and contrary to
the provisions of the Act, particularly against the scheme of amendments
introduced in 1956 and 1961 but would also make the starting point of
limitation uncertain, indefinite and fluctuating. Such construction would
require complete details of all returned candidates of Legislative Assembly of
a State. Moreover, where the challenge is to an election of a Member of House
of People (Lok Sabha), full particulars in different constituencies throughout
the country must be before the Election Tribunal (High Court). The Tribunal
also is bound to inquire into such particulars with a view to ascertaining
whether the election petition filed by the petitioner is or is not within the
period specified in Section 81 of the Act. Again, in case of dispute or contest
on the issue of limitation, the Election Tribunal is required to call for and
inspect records of all constituencies. Unless compelled, a court of law would
not interpret a provision in such a way which would frustrate legislative
intent and make the provision unworkable and impracticable.
the interpretation sought to be suggested by the respondents is otherwise
reasonable, just and equitable inasmuch as it has nexus with the 'cause of
action'. When a defeated candidate or an elector has grievance against an act
of declaring a particular candidate successful at the election, his cause of
action arises as soon as such declaration is made. He, therefore, can challenge
that act. He is not concerned with other constituencies or candidates. He
cannot be allowed to join his cause of action with declaration of results in
other constituencies or returned candidates in those constituencies. [Shri Chandrakant
Shukla v. Maharaja Martand Singh, (1973) 3 SCC 194 : AIR 1973 SC 584] Thus,
taking any view of the matter, we find no infirmity in the order passed by the High
Court which calls for interference by this Court.
the foregoing reasons, all the appeals deserve to be dismissed and are hereby
dismissed with costs.
view of dismissal of appeals, we express no opinion on an application seeking
substitution in Civil Appeal No. 8253 of 2004.