Orissa High Court
Babita Mallick …. Election vs Pramila Mallick on 28 February, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR ELPET No.13 of 2024
Babita Mallick .... Election Petitioner
Mr. B. Bhuyan, Advocate
-Versus-
Pramila Mallick .... Respondent
Mr. B. Mishra, Senior Advocate along with
Mr. T.K. Biswal, Advocate
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF ORDER:28.02.2025
I.A.Nos. 13 &77 of 2024
1. To begin with, the election petition is at the behest of the
petitioner with the following reliefs, such as:
A. To declare that the nomination of the
respondent, namely, Pramila Mallik having
been improperly and illegally accepted,
hence, the entire process of election in so far
as it relates to 48-Binjharpur (SC) Assembly
Constituency is materially affected and as
such be void and to set aside the same.
B. To declare that the respondent that he has
not submitted her nomination papers in the
prescribed form 2B and filed false affidavit
in Form 26 along with the nomination papers
so also involved in corrupt practices by way
of booth rigging and has violated the
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Election Rules and the Act and as such, the
election is void and to direct a fresh election
in respect of the Constituency.
C. To call for all relevant election records
and documents relating to nomination of the
respondent along with affidavit in Form 26
besides the ballot box containing ballots,
marked copy of electoral roll of all the
booths, result and counting sheets etc. for the
purpose of re-counting from all the booths
which is in the custody of the Chief Electoral
Officer of 48-Binjharpur (SC) Assembly
Constituency, Jajpur and such other
documents as would be necessary at the time
of trial.
I.A. Nos.13 of 2024:
2. However, the respondent challenged the election petition
with the above IA filed seeking dismissal of the same in
terms of Order VII Rule 11(d) CPC read with Section 86 of
the Representation of the People Act, 1951 (hereinafter
referred to as „the Act‟) on various grounds.
3. The contention of the respondent is that the election
petition was to be presented as per Section 81 of the Act
within 45 days but not earlier than the date of election of the
returned candidate but there has been delay, which is not
condonable. The further contention is that the election
petition shall have to be signed by the election petitioner and
verified in manner as laid down in CPC for the verification of
pleadings and in case, any corrupt practice is alleged, it shall
also be accompanied with an affidavit in the prescribed form
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in support of the allegations and particulars thereof in view of
Section 83 of the Act and if there is no such compliance of
Sections 81, or 82 or 117, such petition is to be dismissed
under Section 86 thereof. Referring to such other provisions
of the Act besides Rule 94-A of the Conduct of Elections
Rules, 1961, besides the above, it is pleaded that the election
petition is liable to be dismissed due to non-compliances.
Reference has also been made to the relevant provisions of
the Rules of the High Court Orissa, 1948.
4. On the contrary, the election petitioner filed objection to
the IA and opposed rejection of the election petition in terms
of Order VII Rule 11 CPC with a pleading that the same is
not maintainable. It is pleaded that the Stamp Reporter
pointed out a defect of delay of three days only without any
other defects mentioned vis-à-vis verification etc. The
pleading is that as the fundamental principles of free and fair
election is challenged and put to strict scrutiny, otherwise
also, for any such minor discrepancies and non-compliances,
the election petition is not to be rejected, or dismissed,
especially, on technical grounds, which would lead to
miscarriage of justice.
I.A. Nos.77 of 2024:
5. Instant IA is pressed into service by the petitioner to accept
the election petition ignoring delay of three days shown by
the Stamp Reporter on the grounds stated therein with the
explanation offered. On the other hand, the respondent would
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plead that the delay cannot be condoned as law does not
permit the same.
6. Heard Mr. Mishra, learned Senior Advocate assisted by
Mr. Biswal, learned counsel for the respondent and Mr.
Bhuyan, learned counsel for petitioner.
7. Reiterating the facts pleaded on record and the procedure
to be followed with the compliance of provisions of the Act
and Rules framed thereunder, Mr. Mishra, learned Senior
Advocate for the respondent cited the following decisions,
such as, Jyoti Basu and others Vrs. Debi Ghosal and
others (1982) 1 SCC 691; Shri Chandrakant Shukla Vrs.
Maharaja Martand Singh (1973) 3 SCC 194; Hukumdev
Narain Yadav Vrs. Lalit Narain Mishra (1974) 2 SCC
133; Lachhman Das Arora Vrs. Ganeshi Lal and others
(1999) 8 SCC 532; Suman Devi Vrs. Manisha Devi and
others (2018) 9 SCC 808 and order dated 30th June, 2016 of
the Apex Court in Surendra Nath Singh Vrs. Abdul Nafees
corresponding to Civil Appeal No.(s) 5406 of 2016 arising
out of SLP(C) No.14480 of 2014 to contend that the election
petition is to be dismissed. On the aspect of limitation, it is
contended that Section 81(1) of the Act since prescribes that
an election petition shall be dismissed which does not comply
the provisions of Sections 81, 82 and 117 thereof, in view of
the delay in presenting the same beyond the prescribed
period, it has to follow the inevitable consequence, as any
such delay, cannot be condoned.
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8. In reply, Mr. Bhuyan, learned counsel for the petitioner
submits that deficiencies whatever alleged, though not
pointed out, are curable defects and on the limitation, the
election petitioner was physically present to file the petition
but it had to be deferred. The delay in presentation of the
election petition on 22nd July, 2024 from the side of the
petitioner was under unavoidable circumstances and
therefore, it cannot be said that there is no compliance of
Section 81(1) of the Act.
9. The challenge to the election petition and seeking
dismissal of the same by the respondent is principally on
account of and with reference to Sections 81, 83, 86, 87 and
117; Order VII Rule 11 (d) CPC besides Rule 94-A of the
Conduct of Election Rules, 1961. As to what should be the
manner of presentation with necessary particulars are
indicated in the Rules of the High Court of Orissa, 1948 and
in particular, Rules 1, 4, 5, 6 and 7 thereof. According to Mr.
Mishra, learned Senior Advocate for the respondent, there
has been non-compliances, hence, the election petition
deserves to be dismissed.
10. Reply of Mr. Bhuyan, learned counsel for the petitioner is
that in absence of any serious lapse or gross negligence on
the part of the petitioner and when, the delay in presentation
of the petition is duly explained, the contention of any such
non-compliance of the provisions of the Act shall have to be
rejected against the backdrop and in view of the fact that due
procedure was not followed at the time of nomination and
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when the respondent is guilty of misinformation or
suppression of facts and as there has been improper
acceptance of nomination dated 9th May, 2024, which
materially affected the result of the election, hence, sought to
be declared as void.
11.While dealing with an election dispute referring to its
earlier decisions, the Apex Court in Jyoti Basu (supra)
observed as herein under:
“8. A right to elect fundamental though it is
to democracy, is, anomalously, enough,
neither a fundamental right nor a common
law right. It is pure and simple, a statutory
right. So is the right to be elected. So is the
right to dispute an election. Outside of
statute, there is no right to elect, no right to
be elected and no right to dispute an election.
Statutory creations they are, and therefore,
subject to statutory limitation. An election
petition is not an action at common law, nor
in equity. It is a statutory proceeding to
which neither the common law nor the
principles of equity apply but only those
rules which the statute makes and applies. It
is a special jurisdiction, and a special
jurisdiction has always to be exercised in
accordance with the statute creating it.
Concepts familiar to common law and equity
must remain strangers to election law unless
statutorily embodied. A court has no right to
resort to them on considerations of alleged
policy because policy in such matters as
those, relating to the trial of election
disputes, is what the statute lays down. In the
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trial of election disputes, court is put in a
straight jacket. Thus, the entire election
process commencing from the issuance of
the notification calling upon a constituency
to elect a member or members right up to the
final resolution of the dispute, if any,
concerning the election is regulated by the
Representation of the People Act, 1951,
different stages of the process being dealt
with by different provisions of the Act.”
12. The arguments advanced by both sides since
predominantly centered on limitation, the Court is inclined to
deal with the same at first. In Shri Chandrakant Shukla
(supra), it is held by the Apex Court that condonation of
delay is a discretionary relief and from a reading of Sections
81(1) and 67A of the Act conjointly, the petition filed beyond
limitation is condonable with any such discretion being
exercised provided good grounds exist for doing so.
13. But, it is very relevant to refer to the decision of the Apex
Court in Hukumdev Narain Yadav (supra) and the same is
reproduced herein below:
“17. Though Section 29(2) of the Limitation
Act has been made applicable to appeals
both under the Act as well as under the Code
of Criminal Procedure, no case has been
brought to our notice where Section 29(2)
has been made applicable to an election
petition filed under Section 81 of the Act by
virtue of which either Sections 4, 5 or 12 of
the Limitation Act has been attracted. Even
assuming that where a period of limitation
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has not been fixed for election petitions in
the Schedule to the Limitation Act which is
different from that fixed under Section 81 of
the Act, Section 29(2) would be attracted,
and what we have to determine is whether
the provisions of this Section are expressly
excluded in the case of an election petition. It
is contended before us that the words
“expressly excluded” would mean that there
must be an express reference made in the
special or local law to the specific provisions
of the Limitation Act of which the operation
is to be excluded. As usual the meaning
given in the Dictionary has been relied upon,
but what we have to see is whether the
scheme of the special law, that is in this case
the Act, and the nature of the remedy
provided therein are such that the Legislature
intended it to be a complete code by itself
which alone should govern the several
matters provided by it. If on an examination
of the relevant provisions it is clear that the
provisions of the Limitation Act are
necessarily excluded, then the benefits
conferred therein cannot be called in aid to
supplement the provisions of the Act. In our
view, even in a case where the special law
does not exclude the provisions of Sections 4
to 24 of the Limitation Act by an express
reference, it would nonetheless be open to
the Court to examine whether and to what
extent the nature of those provisions or the
nature of the subject-matter and scheme of
the special law exclude their operation. The
provisions of Section 3 of the Limitation Act
that a suit instituted, appeal preferred andPage 8 of 15
application made after the prescribed period
shall be dismissed are provided for in
Section 86 of the Act which gives a
peremptory command that the High Court
shall dismiss an election petition which does
not comply with the provisions of Sections
81, 82 or 117. It will be seen that Section 81
is not the only Section mentioned in Section
86, and if the Limitation Act were to apply to
an election petition under Section 81 it
should equally apply to Sections 82 and 117
because under Section 86 the High Court
cannot say that by an application of Section 5
of the Limitation Act, Section 81 is complied
with while no such benefit is available in
dismissing an application for non-
compliance with the provisions of Sections
82 and 117 of the Act, or alternatively if the
provisions of the Limitation Act do not apply
to Section 82 and Section 117 of the Act, it
cannot be said that they apply to Section 81.
Again Section 6 of the Limitation Act which
provides for the extension of the period of
limitation till after the disability in the case
of a person who is either a minor or insane or
an idiot is inapplicable to an election
petition. Similarly, Sections 7 to 24 are in
terms inapplicable to the proceedings under
the Act, particularly in respect of the filing of
election petitions and their trial.
18. It was sought to be contended that only
those provisions of the Limitation Act which
are applicable to the nature of the
proceedings under the Act, unless expressly
excluded, would be attracted. But this is not
what Section 29(2) of the Limitation Act
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says, because it provides that Sections 4 to
24 (inclusive) shall apply only insofar as, and
to the extent to which, they are not expressly
excluded by such special or local law. If
none of them are excluded, all of them would
become applicable. Whether those Sections
are applicable is not determined by the terms
of those Sections, but by their applicability
or inapplicability to the proceedings under
the special or local law. A person who is a
minor or is insane or is an idiot cannot file an
election petition to challenge an election, nor
is there any provision in the Act for legal
representation of an election petitioner or
respondent in that petition who dies, in order
to make Section 16 of the Limitation Act
applicable. The applicability of these
provisions has, therefore, to be Judged not
from the terms of the Limitation Act but by
the provisions of the Act relating to the filing
of election petitions and their trial to
ascertain whether it is a complete code in
itself which does not admit of the application
of any of the provisions of the Limitation Act
mentioned in Section 29(2) of that Act.”
14. It would also be profitable reading of the decision in
Lachhman Das Arora (supra) on the issue involved.
15. The contention of Mr. Mishra, learned Senior Advocate
for the respondent is that the decision in Shri Chandrakant
Shukla has been clarified by the Apex Court later on in
Hukumdev Narain Yadav (supra). The consistent view of
the Apex Court, as further submitted by Mr. Mishra, learned
Senior Advocate, is that failure to file the election petition
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within the period of 45 days from the date of election of the
returned candidate prescribed in Section 81(1) of the Act is to
result in dismissal of the same in view of Section 86(1)
thereof. As further contended, the law as to extension of
period of limitation, the Courts cannot allow the same on
equitable ground particularly in relation to filing of election
petition, hence, therefore, even with any such explanation of
the petitioner, considering the clear and comprehensive
provisions of the Act, a Code in itself, the election petition
shall have to be dismissed in limine.
16. Mr. Bhuyan, learned counsel for the petitioner would
submit that the alleged default from the side of the petitioner
has been explained with the reason stated and circumstances
leading to the presentation of the election petition and
considering the same, it has to be ignored.
17. Whether, any such delay at the instance of the petitioner
in the presentation of the election petition is condonable? As
relevant extract of the decision of the Apex Court in
Hukumdev Narain Yadav has been reproduced, on a
sincere reading, it is made to understand that therein one of
the questions for determination was, if Section 5 of the
Limitation Act, in case, Section 29(2) is held to apply, was
answered not in the affirmative with conclusion that the
Legislature intended the Act to be a complete code in itself,
provisions of which, are to govern matters contained therein.
It has been reiterated in the decision (supra) that in a case,
where special law does not have any express provision
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excluding applicability of Sections 4 to 24 of the Limitation
Act, it would be open for a Court to examine whether to
extend the said provisions or its applicability stands
excluded. It has been concluded therein that the applicability
of Section 29(2) shall have to be judged not from the terms of
the Limitation Act but referable to the Act relating to the
filing of the election petition. In the aforesaid decision, it has
been held that Section 86 of the Act, if not complied with,
since carries a peremptory command and in case, within the
statutory period the election petition is not presented, the
inevitable consequence would be, its dismissal for the
provisions of Sections 81, 82 and 117 having not been
complied with.
18. In fact, the scheme of the special law suggests that the
provision of Sections 4 to 24 of the Limitation Act do not
apply. If an election petition is not filed within the prescribed
period of 45 days, Section 86(1) of the Act, which provides
dismissal of an election petition by the High Court for not
complying Section 81 or 82 or 117 of the Act, is attracted
straightaway and it means that the limitation cannot be
extended. From the scheme of the Act and the provisions
referred to herein before, it is beyond doubt that election
petition shall have to be filed within 45 days “from the date
of the election of the returned candidate” and therefore, the
above expression in Section 81 of the Act with a cause of
action from a particular date assumes great importance,
which is to mean that unless, the filing is within the
prescribed period, in view of Section 86(1), the Court shall
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have no other option except to dismiss the same and such
dismissal shall be deemed to be an order made under
Clause(a) of Section 98 of the Act.
19. The Apex Court in a recent judgment in Reji Thomas
and others Vrs. State of Kerala and others AIR 2018 SC
2236 held and observed that once the mechanism has been
provided under a statute with a time schedule for presentation
of election petition, in absence of any provision therein for
enlarging the time under any given circumstances, no Court,
whether, the High Court under Article 226 or the Supreme
Court under Articles 32, 136 or 142 of the Constitution of
India can extend the period. It has been concluded therein
that the Court has to adopt strict interpretation of provisions
of the statute. An earlier decision of the Apex Court in Smita
Subhash Sawant Vrs. Jagedeeshwari Jagdish Amin and
others (2015) 12 SCC 169 was referred to in the said case,
wherein, a similar view was expressed. In Charan Lal Sahu
Vrs. Nandkishore Bhatt and others 1973 (2) SCC 530, it
was held that there is no question of any common law right to
challenge an election as such any discretion to condone the
delay in presentation of the petition can only be provided
under the statute governing election disputes. It was further
observed therein that no discretion was conferred in respect
of any such matters and it cannot be exercised even under
any general law or on any principles of equity and in case,
the mandatory provisions are there in the statute and the
election petition is not filed within the period prescribed, for
such non-compliance, the petition is liable to be dismissed. In
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Rashpal Singh @ Rachpal Singh and others Vrs. Jasvir
Singh and others (P&H) 2010 (2) RCR (Civil) 408, it has
been held that an election petition is like original suit in
which delay cannot be condoned. While dealing with an
election dispute, in the decision (supra), the Punjab and
Haryana High Court referred to a decision of Apex Corut in
the case of GV Sreerama Reddy and another Vrs.
Returning Officer and others 2009 (3) RCR (Civil) 937
and restated the settled principle of law that the Limitation
Act does not apply to the election proceedings, inasmuch as,
the Act is a complete and self-contained code, which does not
admit of introduction of the principles or the provisions of
the law in the Indian Limitation Act. The Andhra Pradesh
High Court in Vardhineedi Sree Devi Vrs. Chegondi
Ramalakshami (2007) 5 ALT 727 held that an elected
candidate cannot be kept in suspense during the entire tenure,
as in case, the Limitation Act is held applicable, sword of a
possible challenge to the election would be kept hanging on
his head, which is obviously not the intention of the law
makers. Just like limitation for filing a suit cannot be
extended, so is for the election petition for which limitation
cannot be enlarged by taking aid of Section 5 of the
Limitation Act. In Mangu Ram Vrs. Municipal
Corporation of Delhi 1976 (2) SCR 260, the Apex Court
held that the provisions of Section 5 of the Limitation Act to
be not applicable to the election petitions. In Surendra Nath
Singh Vrs. Abdul Nafees in Civil Appeal No.5406 of 2016
dated 30th June, 2016 arising out of SLP(C) No.14480 of
Page 14 of 15
2014 and Suman Devi Vrs. Manisha Devi and others
(2018) 9 SCC 808, a case, while dealing with the Haryana
Panchayati Raj Act, 1994, it has been categorically
concluded that any such period statutorily mandated to
present an election petition within the prescribed time limit
cannot be extended, since, the Legislature having made a
specific provision, any such petition which fails to comply
the statute is liable to be dismissed. In a case at hand, even
though an explanation is offered by the petitioner, the same
cannot be accepted to extend the period of limitation. Having
said that, without any discussion and deliberation on other
grounds advanced from the side of the respondent, since, the
argument was essentially confined to the point of limitation,
the Court reaches at an inescapable conclusion that for any
reason, even on health ground and on account of the alleged
default, for failing to submit the election petition within the
stipulated period, such delay cannot be condoned.
20. Hence, it is ordered.
21. In the result, IA No. 13 of 2024 stands allowed, whereas,
IA No.77 of 2024 is dismissed. As a necessary corollary, the
election petition is hereby dismissed for the reason stated and
discussions made herein above.
22. In the circumstances, there is no order as to the costs.
Signature Not Verified (R.K. Pattanaik)
Digitally Signed Judge Signed by: THAKURDAS TUDU Reason: Authentication Tudu/Rojina Location: OHC,CTC Date: 04-Mar-2025 13:55:22 Page 15 of 15
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