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Supreme Court of India

HARI SHANKER TRIPATHI vs SHIV HARSH & OTHERS on 3 February, 1976

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PETITIONER:
HARI SHANKER TRIPATHI
Vs.
RESPONDENT:
SHIV HARSH & OTHERS
DATE OF JUDGMENT03/02/1976
BENCH:
ACT:
Representation of the People Act (43 of 1951), ss.
2(1)(h), 39(1)(a), 81(1), 87(1) and the Rules framed by the
Allahabad High Court under Act, rr. 3 and 4-Allahabad High
Court Rules, 1952, rr. 4 and l0-Period of limitation under
s. 81(1) for election petition expiring during summer
vacation-Filing of petition on re-opening day-If barredGeneral Clauses Act (10 of 1897), s. l0-Applicability.
HEADNOTE:
The respondent was declared elected on April 30, 1974,
in the election to the State Legislative Council. The period
of limitation of 45 days, prescribed by s. 81(1) of the
Representation of the People Act, 1951, for filing an
election petition, expired on June 14, 1974, when the High
Court was closed for the summer vacation. The appellant,
therefore, filed the election petition on July 8, 1974, the
re-opening day, challenging the respondent’s election. The
High Court dismissed the petition as having been filed out
of time.
Allowing the appeal to this Court and remitting the
matter to the High Court for disposal on merits.
^
HELD . The High Court had issued a notification that
the entire period of the summer vacation from May 25, to
July 7, 1974 was a close holiday, As the period of
limitation expired during the summer vacation, which was a
closed holiday, the Registrar of the High Court was not
competent to entertain the election petition nor could the
law.........
For all
these reasons we have come to the
conclusion that
the provisions
of s. 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."
This Court accordingly held that s. 4 as also s. S of the
Limitation Act had no application to the election petitions
on the true interpretation of s. 29(2) of the Limitation
Act. The Court also held on a
reading of rr. 6 & 7 with r. 26 of the Patna High Court
Rules that even though the Judges were not sitting on
Saturdays the- election petition could be presented on a
Saturday to the Registrar or other officers as envisaged by
r. 26 of the Patna High Court Rules. In the instant case,
however, the period of limitation provided by s. 81(1) of
the Representation of the People Act appears to have expired
during the
summer vacation
which according
to
the
notification of the Allahabad High court was declared to be
a closed holiday. By virtue of the notification of the
Allahabad High Court dated September 22, 1973 when the High
Court Calendar for 1974 was approved by the Court after
inviting objections from the members of the public, a list
of days had been mentioned to be treated as closed holidays.
The last part of this notification runs thus:
"List of days to be observed as closed holidays in
the High Court of Judicature at Allahabad during the
year 1974.
-----------------------------------------------------------Name of holidays Dates on which they fall Days of Number of
the week days
According to According to
Gregorian
Indian Calen
Calendar
dar saka era
-----------------------------------------------------------1
-----------------------------------------------------------Summer Vacation May 25 to
Jyaistha 4 to Saturday 44
July 7.
Asadha 11, 1896 to Sunday ..
-----------------------------------------------------------In view of this notification, therefore, the legal position
would be that the sunder vacation, namely, the period
starting from May 25 and ending on July 7, 1974, would be
deemed to be close holidays in the High Court. Thus it
follows that June 14, 1974, which fell within this period
would also be a closed holiday. If, therefore, the period of
limitation under s. 81 of the Representation of the People
Act expired on June 14, 1974 which being a closed holiday
right upto July 7, 1974, then s. l0 of the General Clauses
Act would apply in terms and the appellant would be fully
justified in filing the petition on July 8, 1974 when the
Court re-opened after the summer vacation. The relevant
portion of s. l0 of the General Clauses Act runs thus:
"10. (1) Where, by any Central Act or Regulation
made after the commencement of this Act, any act or
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proceeding is directed or allowed to be done or taken
in any, Court or office on a certain day or within a
prescribed period, when, 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."
Analysing the section it would appear that the following
conditions must be satisfied before a litigant may take
advantage of the protection of s 10 of the General Clauses
Act.
(1) that any act or proceeding is allowed to be
done or taken in any court or office on a
particular day or within a prescribed period;
(2) that if the court or office is closed on that
day or the last day of prescribed period then
the act or proceeding will be deemed to have
been taken in due time if-it is done or taken
on the next day afterwards on which the Court
or office is open.
The proviso to s. 10 makes these provisions inapplicable to
cases where the Limitation Act applies. In the instant case
which arises out of the election petition it is manifest
from the judgment of this Court on Hukumdev Narain Yadav
(supra) that the provisions of ss. 4 and S of the Limitation
Act do not apply. It is also clear from the notification of
the High Court referred to above that the entire period of
the summer vacation starting from May 25 to July 7, 1974,
was a closed holiday. Thirdly the period of limitation
prescribed by s. 8(1) of the Representation of the People
Act expired on June 14, 1974 during the summer vacation. In
these circumstances the inescapable conclusion would be that
s. 10 of the General Clauses Act would apply in terms and
the appellant would be entitled to file the election
petition on July 8, 1974 as he did.
In H. H. Raja Harinder Singh v. S. Karnail Singh(l)
while interpretating s. 10 of the General Clauses Act, this
Court pointed out the necessary conditions that are required
to invoke s. 10 and held that s. 10 clearly applied to
election petitions. In this connection this Court observed
as follows:
"Where, therefore, a period is prescribed for the
per formance 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.. 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. l0 is not applicable to petitions
falling within Rule 119.
We are also unable to read in the proviso to s. 37
of the Act an intention generally to exclude the
operation of s. l0 of the General Clauses Act in the
construction of the Rules, as that will be against the
plain language of Rule 2 (6) .. .. .... .. .. .... ’..
.... ...... .. The
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(1) [1957] S.C.R. 208.
operation of such a beneficent enactment as s. 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."
In these circumstances, therefore, s. 10 of the General
Clauses Act furnishes a complete answer to the reasons given
by the learned Judge in holding that the election petition
filed by the appellant in the High Court was barred by time.
Another reason given by the learned Judge was that even
though the High Court was closed its office was open and the
Registrar was available to receive any election petition.
This reasoning of the High Court fails to consider the
distinction between the opening of the Court and opening of
the office. While the Court may be closed, the office may
remain open
for conducting
ministerial
business
or
administrative work. So far as the election petitions are
concerned they are matters of moment and if the power to
receive these petitions was delegated to the Registrar by
the Rules framed by the Allahabad High Court under the
Representation of the People Act, the Registrar must be
deemed to exercise a judicial power which could not be
exercised when the Court was observing a closed holiday. It
would appear that under the rules framed by the High Court
of Allahabad regarding the trial of election petitions, r. 3
required that every election petition shall be presented to
the Registrar and r. 4 laid down that after the office
report etc. is complete the petition shall be laid forthwith
before the
Chief Justice for reference to the Bench
concerned. The learned Judge seems to think that in view of
these rules there was no impediment in the way of the
appellant in
filing the
election petition before he
Registrar who was available luring the summer vacation even
though the Court was closed. We are, however, unable to
agree with this view. These rules clearly refer to a
situation where the Court is open, because the Registrar has
to take legal steps, namely, the placing of the petition
immediately before the Chief Justice for reference to the
Bench concerned and the assignment of a Judge. This could
not be done when the Court was observing a closed holiday.
The presentation before the Registrar as required by r. 3 of
the aforesaid rules must be a legal presentation and not a
physical presentation.
For instance, if the Registrar
visited the High Court on a Sunday or on any public holiday,
could it be said that the election petition could be
presented to him and the Registrar may be asked to entertain
the same. The answer to this question must obviously be in
the negative. Therefore, the position would be the same if
the Court by virtue of the notification issued on September
22, 1973, was observing a closed holiday during the summer
vacation. A similar question appears to have arisen before
the Allahabad High Court in a case on appeal to the Federal
Court where six weeks time for depositing security money
expired during the High Court vacation and the Allahabad
High Court clearly pointed out that the mere fact that
certain ministerial officers of the
Court were available to conduct the routine matters would
not indicate that the Court was open. In this connection the
Allahabad High Court in Krishna Dhan Mullick v. Umratul
Zohra Begam(l) . observed as follows:
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"The six weeks within which security could be
deposited expired during the High Court vacation. If
the period expires on a closed holiday, it is not
disputed that the time would be excluded in computing

the period of six weeks. This is done under section 10 of the General Clauses Act (X of 1897)............... The fact that the Court for its own convenience deputes certain officers to receive the money does not give them a separate existence and it cannot be urged that while the Court is closed the office is open. There may be days when the learned Judges are not sitting and yet the Court may not be closed, but if the Court is closed then it cannot be said that the ministerial officers attached to the Court are an office within the meaning of the term in section 10 of the General Clauses Act and they have a separate existence from the Court." We find ourselves in complete agreement with the observations made by the Division Bench in the aforesaid decision, and in fact this . clearly brings out the real distinction between the functioning of the office of the High Court and of the High Court itself. Furthermore, it would appear from r. 10 of Ch. V of the Allahabad High Court Rules, that this is the only provision which em powers the Vacation Judge to hear certain types of matters. The rule may be extracted thus: E "10. (1) Criminal work shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice. They may also exercise the original and appellate jurisdiction vested in the Court in any miscellaneous matter or any civil matter connected with, relating to, or arising out of, the execution of a decree, which may in their opinion, require immediate attention. Such jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by more than one Judge. G (2) Subject to any general of special order of the Chief Justice, Vacation Judges shall, in the absence of the Chief Justice. exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of Benches, listing of cases and other like matters." A perusal of r. 10 would clearly indicate that only criminal work shall continue to be dealt with during the vacation by such judges as (1) I.L.R.[1949] All. 433. may be appointed for the purpose by the Chief Justice. The second part of r. 10 no doubt gives jurisdiction to the Vacation Judges to entertain other matter, but the rider is that those matters must require immediate attention. This rule no where empowers the Registrar to entertain or to receive an election petition. Rule 10 of Chapter V has a very limited scope and does not include election petitions which cannot be said to be cases of a criminal nature or those requiring immediate attention so as to be taken up even when the Court is observing a closed holiday. It is true, as the learned Judge pointed out, that the office of the High Court was open and the Registrar or the Deputy Registrar etc. were receiving a number of applications, but the mere fact that such a practice had grown which may not have been strictly justified by the statutory Rules would not have the effect of converting what is legally a closed holiday into a working day. Similarly as indicated above, Page 8 of 10 http://JUDIS.NIC.IN SUPREME COURT OF INDIA this Court in Hukumdev Narain Yadav’s case (supra) was not at all called upon to consider the significance of a closed holiday but was deciding a case where on all accounts the day on which the limitation expired was a working day of the . Court and where the Court was factually and legally held to be open. In these circumstances, therefore, the analogy drawn by the learned Judge from that case does not hold good in the facts of the present case. Mr. S. N. Misra appearing for the respondents advanced two contentions before us. In the first place he drew our attention to r. 3 of Chapter I of the Allahabad High Court Rules, the relevant part of which may be extracted thus: " ’Registrar’ includes- (i) the Deputy Registrar at Lucknow, in matters relating to the Lucknow Bench;

(ii) the Joint Registrar or any other officer,

with respect to such functions and duties of the Registrar as may have been assigned to the Joint Registrar or such officer by the Chief Justice, and

(iii)in the absence of the Registrar, the Joint

Registrar or any other officer authorized to act on his behalf;" Rule 3 no doubt provides that the Registrar includes the Deputy Registrar and other officers. Rule 4 of Chapter I would have no application to the present case because this rule applies only to such cases where the period of limitation is prescribed by the Rules. In r the instant case, be period of limitation is not prescribed by the Rules made by the High Court of Allahabad but by s. 81(1) of the Representation of the People Act itself, and therefore this rule can- . not be of any assistance to the respondents. ’ It was then submitted that under s. 2(1)(h) of the Representation of the People Act, "public holiday" was defined as meaning any day which is a public holiday for the purposes of section 25 of the Negotiable Instruments Act, 1881. It was contended that as the notification issued by the High Court declared the summer vacation to be a closed holiday it could not be construed as a holiday under s 25 of the Negotiable Instruments Act and it would not be deemed to be a public holiday of which the appellant could have taken any advantage. The argument is undoubtedly attractive but on a deeper probe it does not appear to be tenable. The term "public holiday" referred to in s. 2(1) (h) of the Representation of the People Act has nothing to do with any administrative functions exercised by the High Court but refers only to such contingencies as are mentioned in the conduct of the actual elections under the provisions of the Representation of the People Act. For instance s. 39(1)(a) provides thus;

39.(1) As soon as the notification calling upon the elected members or the members of the Legislative Assembly of a State or the members of the electoral college of a Union territory to elect a member or members is issued, the Election Commission shall, by notification in the official Gazette, appoint(a) the last date for making nominations which shall be the seventh day after the date of publication of the first mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday." The word "public holiday" used in s. 39(1) (a) would undoubtedly refer to public holiday as defined in s. 2 (1) (h) of the Representation of the People Act. So far as the Page 9 of 10 http://JUDIS.NIC.IN SUPREME COURT OF INDIA disposal of the election petitions is concerned, once s. 80 confers the power on the High Court to try an election petition, s. 2 (1) (h) would have no‘application what soever to the trial of such election petition by the High Court which will be governed either according to the Rules framed by the High Court under the Representation of the People Act or under the r general Rules of the High. Court or in accordance with the Code of Civil Procedure. This is borne out by s. 87(1) of the Representation of the People Act which may be extracted as follows: "87. (1) Subject to the provisions of this Act and of any rules made there under every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: Provided * * * * *" In the instant case the High Court having framed the Rules under the Representation of the People Act which provided for the presentation of the election petitions to the Registrar, which as we have held could r only be done on a day which is not a closed holiday, the term "closed holiday" would have to be referred to as defined by the High Court Rules and not by s. 2(1) (h) of the Representation of the People Act. In these circumstances, therefore, the contention of the respondents on this score must be overruled. \ H For the reasons given above we are satisfied that as the period of limitation expired during the summer vacation which was a closed 6-5225CI/76 holiday by virtue of the notification issued by the High Court, the . Registrar was not competent to entertain the election petition nor could the appellant have presented the election petition legally to the Registrar during such period. We are further satisfied that this is a case in which s. 10 of the General Clauses, Act applies in terms and the appellant was fully justified in filing the election petition on the re opening day of the High Court, namely, July 8, 1974. In these B; circumstances the view taken by the High Court that the election t, petition was barred by time is wrong on a point of law, and the finding of the learned Judge on issue No. 8 cannot, therefore, be sustained. The appeal is accordingly allowed, the order of the High Court dated February 10, 1975, is set aside and the matter is remitted to the learned Judge for trying the election petition in-accordance with the law. In the special circumstances of this case we make no order as to costs in this Court. V.P.S. Appeal allowed. Page 10 of 10