Holding

The presentation of the election petition on the last day of limitation, even after open‑court hours, is deemed to be within the statutory period and therefore valid.

Summary

An election petition was presented to the designated election judge of the Patna High Court at 4:25 pm on the last day of the 45‑day limitation period, after the judge had retired from open court but was still in chambers. The judge refused to accept the petition, citing High Court Rules that required presentation only in open court, and the petition was later dismissed as barred by limitation. On appeal, the Supreme Court held that the word “day” in Section 81 of the Representation of the People Act, 1951 has its ordinary 24‑hour meaning, so the petition could be filed up to midnight of the last day. The Court further ruled that High Court Rules cannot curtail a statutory limitation period and that presentation to the stamp reporter or the judge, even outside open‑court hours, is deemed the date of filing. Consequently, the presentation was deemed within the limitation period and the appeal was allowed, setting aside the High Court’s order.

Issues considered

Whether an election petition presented after open‑court hours but before midnight on the last day of the statutory limitation period is valid under Section 81 of the Representation of the People Act, 1951.
Whether the Patna High Court Rules 6 and 7 can limit the time of filing an election petition beyond the statutory period.
Interpretation of the term “day” in Section 81 of the Act.
Whether the designated election judge’s refusal to accept the petition was an error of law.

Legislation cited

Constitution of Indias. 225, s. 329
Representation of the People Act, 1951s. 80, s. 81

Subjects

election petitionlimitation periodRepresentation of the People ActSection 81High Court Rulesdefinition of dayprocedural lawArticle 225Article 329filing deadlinepresentation in open court

Judgment

A RAJ KUMAR YADAV
v.
SAMIR KUMAR MAHASETH AND ORS .. 1~.,

MARCH 11, 2005 '• L '

. I
J
B [R.C. LAHOTI, CJ., D.M. DHARMADHIKARI AND.PK.
BALASUBRAMANYAN, JJ.]

Election laws :

c Representation of the People Act, J95J-Section 8J-Patna High Court
Rules-Rules 6 and 7-Limitation for presenting election petition-Election
petition presented at 4.25 pm on the last date of limitation, JO minutes after
the Judge had risen from open court but still available in chambers within the
court premises-Judge declined to receive the petition-He also declined to
D direct any official of the Registry to receive the same-Petition was presented
on the next day when the Judge was sitting in open court-Validity of such
presentation-Held: The presentation would be deemed to be within limitation
and valid-Constitution of India, J950-Article 225.

Patna High Court Rules-Rules 6 and 7-Receipt of election petition -
E Suggestion by Court for clarification or umendment in the Patna High Court
Rules so that the ministerial act of receiving the election petition be made by
the administrative staff of High Court.

Words and Phrases-"Day"-Meaning of-Jn context to Section 8J of
the Representation of the People Act, J95 J.
F
An Election petition was presented before the designated Election Judge
of Patna High Court on 27-8-2003, the last date of limitation, at 4.25 p.m., 10
minutes after the Judge had risen from the open court but was still available
in chambers within the court premises. The Election Judge declined to accept
the petition beyond court hours, he being of the view that under the Patna
G High Court Rules the election petition could be filed only in the open court;
nor did he make any other order such as directing any official of the Registry
to receive the same. Election petitioner presented the Election Petition on the
next day when the designated Election Judge was available and sitting in the

670
H
R.K. YADA V v. S.K. MAHASETH 671

open court. The Election Petition was subsequently dismissed as barred by A
limitation. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1. The designated Election Judge of the High Court has erred
in holding the presentation to be barred by limitation. The Election Petition B
would be deemed to be within limitation. The High Court shall proceed to
deal with the petition in accordance with law. (678-G, 679-A]

2. The limitation provided by Section 81 of the Representation of the
People Act expires on 45th day from the date of election. The word 'day' is
not defined in the Act It shall have to be assigned its ordinary meaning as C
understood in law. The word 'day' as per English calendar begins at midnight
and covers a period of 24 hours thereafter, in the absence of there being
anything to the contrary in the context. Thus, in the instant case, the election
petition could have been presented upto the midnight falling between 27th
and 28th of August, 2003. [675-D-E] D
Ramkrishan Onkarmal Agarwal v. State ofMaharashtra, AIR (1994) Born
87 and The Municipal Council ofCuddalore v. S. Subrahmanya Aiyar, 16 MLJ
101, approved.

The Law Lexicon, P. Ramanatha Aiyar, pp. 470, 471, referred to. E
3. The statutory period of limitation as provided by the Representation
of the People Act cannot be taken away by the Rules framed by the High
Court governing its procedure. The rules framed in exercise of the power
conferred by Article 225 of the Constitution relate to procedural matters and
cannot make nor curtail any substantive law. [675-F] F
Prabhu Narayan v. A.K Srivastava, [1979) 3 SCC 788, relied on.

S.A. Ganny v. l.M Russell, (1930) ILR 8 Rangoon 380, referred to.

4. The High Court has not correctly interpreted Rules 6 and 7 of the G
Patna High Court Rules. The rules are not meticulously well-drafted rules
taking care of myriad situations which may arise. They appear to be more in
the nature of directions aiming at convenient and smooth functioning of the
High Court dealing with election petitions as also streamlining the procedure
and practice of presentation. The designated Election Judge can always issue
H
672 SUPREME COURT REPORTS [2005) 2 S.C.R.

A such orders as it may deem fit in the matter of presentation of the election
petition. If the court is open, it is desirable that a formal presentation of the
election petition is made to the Judge while sitting in open court. As the Judge
himself is not expected to scrutinize the defects in the election petition
presented to him, Rule 6 expects the election petition to be presented first to
B the Stamp Reporter of the court and then carried to the Judge for formal
presentat~on. While presentation to the Stamp Reporter of the court is a
presentation, the presentation before Judge in open court is a formal
presentation. There would be nothing wrong if the election petitioner presents
the election petition to the Stamp Reporter whereafter the election petition is
carried to the Judge in open court either by the election petitioner or his
C counsel or by the Stamp Reporter or any official of the Registry under. his
directions. The Rule contemplates such presentation before the. Stamp
Reporter and. the formal presentation to the Judge taking place on the s~me
day and almost simultaneously as two steps of one transaction and in this
background the date of present~tion to the Judge or the Bench as described
in Rule 6 is deemed to be the date of filing .of the election petition. The process
D can also be reverse. If Stamp Reporter is not available, the election petition
may be presented to the Judge who may then send it for scrutiny to the Stamp
Reporter or any other official of the Registry. At the time of presentation,
the Judge may not be sitting in open court, but that does not mean that the
Judge cannot receive the election petition. He can receive it and then send it
E to the Stamp Reporter of the court. [676-C-G] ·
5. The High Court, in its impugned judgment, seems to have thought
that the election petition could have been presented only to the Judge and
that too in the open court. The Judge would ordinarily sit in open court upto
4.15 p.m. of the day as. per the rules or practice of the High Court but that
F time is not the end of that day. The availability of time falling within the
meanin~ of the word 'day', as provided by Section 81 of the Representation
of the People Act, ·cannot be curtailed by making a provision in the rules
contrary to the Act itself. Ordinarily, no litigant and lawyer would like to
delay the presentation till the fag end of the day and then present it at an
odd time to the inconvenience of the Judge wherever he may be. However,
G exceptional.situations cannot be completely ruled out It would be better if
the ministerial act of receiving the election petition presented to the High Court
is left to the administrative or ministerial staff of the High Court either by
clarifying 'or by making a suitable amendment in the Rules of the Patna High
Co~rt•. [677-D-FI. .

H
R.K. YADAV v. S.K. MAHASETH [LAHOTI, CJ.] 673
Chandra Kishore Jha v. Mahavir Prasad and Ors., [1999) 8 SCC 266, A
distinguished.

Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Anr., [2003) 4 SCC 257;
The State of Punjab and Anr. v. Sham/al Murari and Anr., [1976] 1 SCC 719
and Hukumdev Narain Yadav v. IA/it Narain Mishra, (1974) 2 SCC 133, referred
to. B

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 595 of2004.

From the Judgment and Order dated I0.9.2003 of the Patna High Court
in E.P. No. 5 of 2003.
c
Amit Kumar, Ashish Kumar, Rajiv Shanlcar Dvivedi, Amit Anant Tiwari,
Kumar Brijnandan and Ms. Punam Sinha for the Appellant.

S. Chandra Shekhar and Amit Pawan for the Respondents.

The Judgment of the Court was delivered by D

R.C. LAHOTI, CJ. An election petition presented under Section 81 of
the Representation of the People Act, 195 l (hereinafter "the Act", for short)
has been directed to be dismissed as barred by time. Feeling aggrieved, the
election petitioner has filed this appeal under Section l l6A of the Act. E
Shorn of all details, suffice it to state that the last date of limitation for
presenting the election petition was 27.8.2003. What transpired in the High
Court at the presentation may be described in the words of the learned
designated Election Judge himself from the impugned judgment of the High
Court. The relevant part is extracted and reproduced hereunder : F
" .... The admitted position is that the period of limitation of forty five
days expired on 27.8.2003 on which date the designated Judge was
sitting in court till 4.15 P.M. The court hours having expired, the
designated election Judge retired into the chambers where at 4.45
P.M. Sri P.K. Verma, the learned counsel for the appellant came and G
wanted to file this election petition. Since under High Court Rules the
election petitions could be filed only in the open court, I, as the
designated election Judge refused to accept the petition beyond court
hours. Learned counsel said that though petition was made ready that
very day for presentation, because of some delay in finalizing it, he H
674 SUPREME COURT REPORTS (2005] 2 S.C.R.

A had gone to the court after court hours but by that time the Judge had
retired to his chambers. Learned Counsel also requested in chambers
that the Court Officer might be direeted to accept that by making an
initial over the petition noting the time of presentation so that the
petition might be presented on the next working day. Since High
Court Rules did not permit that, I refused that prayer also.
B
This was how the learned counsel presented the petition in the
open court on 28.8.2003 .... "

The question arising for decision is : whether an election petition
presented at 4.25 p.m. on 27.8.2003, the last date of limitation, admittedly IO
C minutes after the Judge had risen from the open court bµt was available in ...
chambers within the court premises can be said to be a valid presentation so
as to be within the P.eriod of limitation?

Article 329 of the Constitution provides inter alia that no election to
either House of Parliament or to the House or either House of the Legislature
D of a State shall be called in question except by an election petition presented
to such authority and in such manner as may be provided for, by or under
any law made by the appropriate Legislature. Under Section 80 of the Act,
no election shall be called in question except by an election petition presented
in accordance with the provisions of Part VI of the Act. Under Section 80-
E A, the High Court has been conferred with jurisdiction to try an election
petition. Such jurisdiction shall be exercised ordinarily by a single Judge of
the High Court assigned for that purpose by the Chief Justice. Under Section
81 of the Act, an election petition may be presented within forty five days
from the date of election. The rule making power for carrying out the purpose
of the Act has been conferred on the Central Government under Section 169.
F The Act does not confer power on the High Court to make any rules. However,
the rule making power vests in the High Court under Article 225 of the
Constitution.

The present matter arises from the High Court of Patna. Chapter XXI-
G E of the High Court Rules framed by the Patna 1-Jigh Court incorporates the
rules for the disposal of election petition filed under Section 81 of the Act.
Rules 6 and 7, relevant for our purpose, are reproduced hereunder :

"6. Subject always to the orders of the Judge, before a formal
presentation of the election petition is made to the Judge in open
H Court, it shall be presented to the Stamp Reporter of the Court, who
R.K. YADA V v. S.K. MAHASETH [LAHOTI, CJ.] 675

shall certify thereon if it is in time and in conformity with the A
requirements of the Act and the rules in this behalf, or is defective
and shall thereafter return the petition to the petitioner for making the
formal presentation after removing the defects, if any :

Provided that if on any Court day the Judge is not available on
account of temporary absence or otherwise, the petition may be B
presented before the Bench hearing civil applications and motions.

7. ( l) The date of presentation to the Judge or the Bench as mentioned
in the proviso to Rule 6 shall be deemed to be the date of the filing
of the election petition for the purposes of limitation. C
......
(2) Immediately after it is presented, the petition shall be entered in
a special register maintained for the registration of election petitions."

The limitation provided by Section 81 of the Act expires on 45th day
from the date of election. The word 'day' is not defined in the Act. It shall D
have to be assigned its ordinary meaning as understood in law. The word
'day' as per English calendar begins at midnight and covers a period of 24
hours thereafter, in the absence of there being anything to the contrary in the
context (See: Ramkrishan Onkarmal Agarwal v. State of Maharashtra, AIR
(1994) Born 87, 94; The Municipal Council ofCuddalore v. S. Subrahmanya
Aiyar 16 MLJ 101; The Law Lexicon, P. Ramanatha Aiyar, pp. 470, 471). E
Thus, the election petition could have been presented upto the midnight
falling between 27th and 28th of August, 2003.

The statutory period of limitation as provided by the Act cannot be
taken away by the Rules framed by the High Court governing its procedure. F
The rules framed in exercise of the power conferred by Article 225 relate to
procedural matters and cannot make nor curtail any substantive law. (See :
Prabhu Narayan v. A.K. Srivastava, [1979] 3 SCC 788, para 5). In S.A.
Ganny v. l.M Russell, (1930) ILR 8 Rangoon 380 Carr J. said, "I am very
clearly of opinion, independently of the authorities to that effect, that a High
Court has no power to alter by rule any period of limitation prescribed in the G
Limitation Act. I am, however, also of opinion that when the High Court by
rule gives a right of application for which no period of limitation is already
prescribed the Court may also fix the period within that right must be
exercised." And, Cunliffe J. said, "High Court Rules approximate very closely
to Bye-laws. They can be altered at will. They can be canvassed. They are H
676 SUPREME COURT REPORTS [2005] 2 S.C.R.

A subordinate and domestic enactments. They must be intra vires of the power
from which they derive and any other power in pari materia/' ln,our opinion,
the length of any period of limitation provided by a statute cannot be curtailed
by rules of procedure framed by High Court. When the statute prescribes a
particular day or date as the last day for any act being performed, it can be
B so done upto as late as the midnight immediately preceding the commencement
of the next day.

We are also of the opinion that the High Court has not correctly
interpreted Rules 6 and 7 of the High Court Rules. The rules are not
meticulously well-drafted rules taking care of myriad situations which may
C arise. They appear to be more in the nature of directions aiming at convenient
and smooth functioning of the High Court dealing with election petitions as
also streamlining the procedure and practice of presentation. The designated
Election Judge can always issue such orders as it may deem fit in the matter
of presentation of the election petition. If the court is open, it is desirable that
a formal presentation of the election petition is made to the Judge while
D sitting in open court. As the Judge himself is not expected to scrutinize the
defects in the election petition presented to him, Rule 6 expects the election
petition to be presented first to the Stamp Reporter of the court and then
carried to the Judge for formal presentation. While presentation to the Stamp
Reporter of the court is a presentation; the presentation before Judge in open
E court is a formal presentation. There would be nothing wrong if the election
petitioner presents the election petition to the Stamp Reporter whereafter the
election petition is carried to the Judge in open court either by the election
petitioner or his counsel or by the Stamp Reporter or any official of the
Registry under his directions. The Rule contemplates such presentation before
F the Stamp Reporter and the formal presentation to the Judge taking place on
the same day and almost simultaneously as two steps of one transaction and
in this background the date of presentation to the Judge or the Bench as
described in Rule 6 is deemed to be the date of filing of the election petition.
The process can also be reverse. If Stamp Reporter is not available, the
election petition· may be presented to the Judge who may then send it for
G scrutiny to the Stamp Reporter or any other official of the Registry. At the
time of presentation, the Judge may not be sitting in open court, but that does
not mean that the Judge cannot receive the election petition. He can receive
it and then send it to the Stamp Reporter of the court.

In Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Anr., [2003] 4
H sec 257, this Court has held that receiving an election petition presented
R.K.YADA V v. S.K. MAHASETH [LAHOTI, CJ.} 677
under Section 81 of the Act is certainly not a judicial function which A
necessarily needs to be perfi;>rined by a Judge alone; it is a ministerial function
which may be performed by a Judge himself or be left to be performed by
one of the administrative or ministerial staff of the High Court which is as
much a part of the High Court.

As held by this Court in The State of Punjab and Anr. v. Sham/al B
Murari and Anr., [1976) l SCC 719, "processual law is not to be a tyrant but
a servant, not an obstruction but an aid to justice. Procedural prescriptions
are the handmaid and not the mistress, a lubricant, not a resistant in the
administration of justice." The election petition, in the present case, could
C
- have been presented at any time upto the midnight falling between 27th and
28th August, 2003 and it would be treated as filed within the period of
limitation.

Confining the filing time to the working hours of the court is not what
is specifically spelt out by Rules 6 and 7 of the Patna High Court Rules. The
High Court, in its impugned judgment, seems to ha~e thought that the election D
petition could have been presented only to the J1idge and that too in the open
court. The Judge would ordinarily sit in open court upto 4.15 p.m. of the day
as per the rules or practice of the High Court but that time is not the end of
that day. The availability of time falling within the meaning of the word
'day', as provided by Section 81 of the Act, cannot be curtailed by making
a provision in the rules contrary to the Act itself. Ordinarily, no litigant and E
lawyer would like to delay the presentation till the fag end of the day and
then present it at an odd time to the inconvenience of the Judge wherever he
may be. However, exceptional situations cannot be completely ruled out. It
would be better ifthe ministerial act of receiving the election petition presented
to the High Court is left to the administrative or ministerial staff of the High F
Court either by clarifying or by making a suitable amendment in the Rules
of the Patna High Court.

In Hukumdev Narain Yadav v. La/it Narain Mishra, [1974] 2 SCC 133,
Election Petition Rules framed by Patna High Court came up for the
consideration of the court and it was held that it may be that the presentation G
to the Judge will be the date of filing for the purpose· of limitation, but that
does not exclude a different procedure for filing in a case where limitation
is about to expire and the conditions prescribed by Rule 6 in the matter of
presentation cannot be complied with. Under the general rules governing the
practice as to presentation of pleadings and documents in the High Court, an H
678 SUPREME COURT REPORTS [2005] 2 S.C.R.

A election petition can be presented on the last day of limitation, when the
judges are not sitting to receive or entertain an election petition, to the Registrar
or in his absence to some other officer in the Registry authorized to receive
such presentation.

In Chandra KishoreJha v. Mahavir Prasad and Ors., [1999] 8 SCC
B 266, a different fact situation arose and the observation made by this Court
therein, have to be read and understood in the light of the fact situation,
which the Court was called upon to deal with. The question whether an
election petition can be presented to the Judge only in open court and not
elsewhere did not arise for decision. At a few places the reference made to
C 'presentation in open court' is simply by way of reproducing the language of
the Rule and not a finding of this Court or the ratio of the decision. However,
the Court did hold that the applicability of Section I 0 of the General Clauses
Act, 1897 to Section 81 of the Act was not excluded. If it was not possible
for the election petitioner to have presented the election petition to the
designated Election Judge or in his absence to the Bench (as provided by the
D proviso to Rule 6) on the last day of the prescribed period of limitation then
the presentation of the election petition on the very next day in the open court
would be valid. Law does not expect a party to do the impossible u
impossibilium nu/la obligatio est.

Reverting back to the facts of the present case, we find that the election
E petition was handed over to the ~esignated Election Judge on the last day of
limitation at 4.25 p.m. when the learned Judge was still available within the
court premises though he was not sitting in the open court, as the prescribed
time of 4.15 p.m. ordinarily meant for transacting judicial work was over.
The learned Judge did not himself receive the presentation nor did make any
F other order such as the one directing any official of the Registry to receive
the same. The election petitioner had done all that was within his power to
do for the purpose of presentation but he failed. He made the presentation on
the next day when the Judge was available and sitting in the open court. The
presentation would be deemed to be within limitation and valid. f

G The learned designated Election Judge of the High Court has erred in
holding the presentation to be barred by limitation. The view so taken cannot
be countenanced.

The appeal is allowed. The impugned judgment of the High Court
dated 10.9.2003 is set aside. The election petition is held to have been filed
H
R.K. YADA V v. S.K. MAl-IASETH [LAHOTI, CJ.] 679

within prescribed period of limitation. The High Court shall now proceed to A
deal with the petition in accordance with law.

No order as to the costs in .this appeal.

Parties through their respective counsel are directed to appear in the
High Court on 4.4.2005. B
B.B.B.
Appeal allowed.