# Prahlad Singh v. Yogesh Chaudhary

- **Citation:** (2024) 9 ILRA 1450
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-30
- **Case number:** Election Petition No. 11 of 2024
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prahlad-singh-v-yogesh-chaudhary-52554
- **Pages:** 13

## Headnote

Law
-Election
petition
challenging the election of the returned
candidate in MLC elections-petition filed
beyond time by 92 days- beyond the 45day limit prescribed by Section 81 of the
Representation of People Act, 1951-no
power in the Act for delay condonationAct is a complete code and does not allow
for the extension of the filing period or the
application of the Limitation Act- if an
election petition does not comply with the
provisions of Section 81 or Section 82 or
Section 117 of the Act, 1951-the High
Court shall dismiss it-election petition
held to be time-barred-petition dismissed.
(Paras 13, 19, 20 and 21)
HELD:
There is no provision in the Act, 1951 for
considering the period of limitation. There is
nothing in the Act, 1951 which gives powers for
condonation of delay, if any, and the extension
of the period of limitation. The time prescribed
for presentation of an election petition is
provided specifically in Section 81 of the Act,

## Text

_Characters 0–39,554 of 40,141. This is a partial read: ask again with offset=39554 for what follows._

1450 INDIAN LAW REPORTS ALLAHABAD SERIES
pass impugned orders were never supplied
to the petitioner in terms of the decisions in
Smt.
Icchu
Devi
Choraria's
Case
(Supra), Mohinuddin's Case (Supra),
Smt. Shalini Soni's Case (Supra) and S.
Gurdip Singh's Case (Supra) and he has
not been afforded proper opportunity of
hearing and the impugned order of
rejection is a totally non speaking order
with regard to the pleas raised by the
petitioner.

28. Accordingly, this petition is
allowed. The impugned orders are set aside.
The petitioner be released forthwith if he is
granted bail by the competent Court.

29. However, it is made clear if
petitioner is found involved in any
subsequent F.I.R., it will be open for the
authorities to initiate fresh proceedings
against the petitioner.
----------
(2024) 9 ILRA 1450
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2024

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Election Petition No. 11 of 2024

Prahlad Singh ...Petitioner
Versus
Yogesh Chaudhary ...Respondent

Counsel for the Petitioner:
Amit Kumar Pandey, In Person

Counsel for the Respondent:
--

Election
Law
-Election
petition
challenging the election of the returned
candidate in MLC elections-petition filed
beyond time by 92 days- beyond the 45day limit prescribed by Section 81 of the
Representation of People Act, 1951-no
power in the Act for delay condonationAct is a complete code and does not allow
for the extension of the filing period or the
application of the Limitation Act- if an
election petition does not comply with the
provisions of Section 81 or Section 82 or
Section 117 of the Act, 1951-the High
Court shall dismiss it-election petition
held to be time-barred-petition dismissed.
(Paras 13, 19, 20 and 21)
HELD:
There is no provision in the Act, 1951 for
considering the period of limitation. There is
nothing in the Act, 1951 which gives powers for
condonation of delay, if any, and the extension
of the period of limitation. The time prescribed
for presentation of an election petition is
provided specifically in Section 81 of the Act,
1951. The judgement in the case of Nijam Uddin
(supra) as is being relied upon by the learned
counsel for the petitioner is distinguishable in as
much as the presentation of the present petition
beyond 92 days is an admitted fact and as such
nothing lay to be decided on the said fact. The
case relied upon by the learned counsel for the
petitioner has a different fact in as much as the
fact about limitation was in dispute therein. The
issue with regard to a delayed presentation of
an election petition which arises in the present
petition is an admitted fact and is no more res
integra. (Para 13)

The High Court while hearing an election
petition operates as an Authority under Article
329 (b) of the Constitution of India whose
jurisdiction is circumscribed by the statutory
provisions as per the Act, 1951. (Para 19)

After having heard learned counsel for the
petitioner and perusing the records, it is settled
that unless and until an election petition is
maintainable and is not barred by limitation, the
merits of the matter cannot be seen and
considered. In the present matter, from the
judgement relied by the learned counsel for the
petitioner and the discussion as above, it is
apparent that the provisions of Limitation Act,
1963 do not apply to election petitions. The
filing / presentation of the election petition is
strictly governed by Section 81 of the Act, 1951.
The trial of the election petition is provided
9 All. Prahlad Singh Vs. Yogesh Chaudhary
1451
under Section 86 of the Act, 1951. The Act
specifically provides that if an election petition
does not comply with the provisions of Section
81 or Section 82 or Section 117 of it, the High
Court shall dismiss it. (Para 21)

Petition dismissed. (E-13)

List of Cases cited:

1. Nijam Uddin Choudhury Vs Aftab Uddin
Laskar: Case No.: I.A. (Civil) / 1984 / 2023,
decided on 16.10.2023

2. Hukumdev Narain Yadav Vs Lalit Narain
Mishra: (1974) 2 SCC 133

3. Hari Shankar Tripathi Vs Shiv Harsh: (1976) 1
SCC 897

4. Lachhman Das Arora Vs Ganeshi Lal: (1999)
8 SCC 532

5. Suman Devi Vs Manisha Devi: (2018) 9 SCC
808

6. Thampanoor Ravi Vs Charupara Ravi: (1999)
8 SCC 74

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Amit Kumar Pandey,
learned counsel for the petitioner and
perused the records.

2. The present election petition has
been filed by the petitioner- Prahlad Singh
challenging
the
election
of
returned
candidate
Yogesh
Chowdhary
(the
respondent) as a Member of Legislative
Council and that the same be set-aside and
be declared null & void.

3. The case of the petitioner is that
the returned candidate / respondent Yogesh
Chaudhary has been declared as an elected
person of the U.P. Legislative Council by
the Returning Officer, a certificate dated
14.03.2024 has been issued to the said
effect.

4. The present election has been
presented
on
30.07.2024
before
the
Registrar General of this Court. The
petition has been filed beyond time by 92
days.

5. Section 81 of the Representation
of People Act, 1951 (hereinafter referred to
as 'The Act, 1951') reads as under:-

"81.
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.
Explanation.-In this subsection, "elector" means a person
who was entitled to vote at the
election to which the election
petition relates, whether he has
voted at such election or not.
(2) [***]
(3) Every election petition
shall be accompanied by as many
copies
thereof
as
there
are
respondents
mentioned
in
the
petition and every such copy shall
be attested by the petitioner under
his own signature to be a true copy
of the petition."
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Section 86 of the Act, 1951
reads as under:-

"86.
Trial
of
election
petitions.-
(1) The High Court shall
dismiss an election petition which
does not comply with the provisions
of section 81 or section 82 or
section 117.
Explanation.-An order of
the High Court dismissing an
election petition under this subsection shall be deemed to be an
order made under clause (a) of
section 98.
(2) As soon as may be after
an election petition has been
presented to the High Court, it
shall be referred to the Judge or
one of the Judges who has or have
been assigned by the Chief Justice
for the trial of election petitions
under sub-section (2) of section
80A.
(3) Where more election
petitions than one are presented to
the High Court in respect of the
same election, all of them shall be
referred for trial to the same Judge
who may, in his discretion, try them
separately or in one or more
groups.
(4)
Any
candidate
not
already a respondent shall, upon
application made by him to the
High Court within fourteen days
from the date of commencement of
the trial and subject to any order as
to security for costs which may be
made by the High Court, be entitled
to be joined as a respondent.
Explanation.-For
the
purposes of this sub-section and of
section 97, the trial of a petition
shall be deemed to commence on
the date fixed for the respondents to
appear before the High Court and
answer the claim or claims made in
the petition.
(5) The High Court may,
upon such terms as to costs and
otherwise as it may deem fit, allow
the particulars of any corrupt
practice alleged in the petition to
be amended or amplified in such
manner as may in its opinion be
necessary for ensuring a fair and
effective trial of the petition, but
shall not allow any amendment of
the petition which will have the
effect of introducing particulars of
a corrupt practice not previously
alleged in the petition.
(6) The trial of an election
petition
shall,
so
far
as
is
practicable consistently with the
interests of justice in respect of the
trial, be continued from day to day
until its conclusion, unless the High
Court finds the adjournment of the
trial beyond the following day to be
necessary
for
reasons
to
be
recorded.
(7) Every election petition
shall be tried as expeditiously as
possible and endeavour shall be
made to conclude the trial within
six months from the date on which
the election petition is presented to
the High Court for trial."

7. As per Section 81 of the Act,
1951 an election petition may be presented
to the High Court within 45 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.
9 All. Prahlad Singh Vs. Yogesh Chaudhary
1453
8. The present petition has been
filed beyond a period of 92 days as
prescribed in Section 81 of the Act, 1951.

9. Section 86 (1) of the of the Act,
1951 provides that the High Court shall
dismiss an election petition which does not
comply with the provisions of Section 81 or
Section 82 or Section 117 of the Act.

10. Learned counsel for the
petitioner submitted that the respondent
while disclosing & explaining his criminal
antecedents
in
Format
C-2
although
disclosed 06 cases to be pending against
him but did not disclose 01 other criminal
case
of
which
a
complaint
dated
05.10.2006 was filed by one Giriraj Singh
against Giriraj Singh and 11 others for
offences under Sections 420, 467, 468, 471,
120-B, 504, 506 I.P.C. in which the
respondent is an accused at serial no. 3
which is pending trial before the court
concerned. It is submitted that on coming
to know about the same, the petitioner sent
a complaint dated 29.03.2024 to the Chief
Election
Commissioner,
Election
Commission of India, New Delhi informing
him about the same which has been
delivered to him but no action has been
taken.
It
is
further
submitted
that
subsequently the petitioner filed a petition
being Writ-C No. 19843 of 2024 (Prahlad
Singh Vs. Union of India and 3 others)
which has been dismissed vide order dated
05.06.2024 by a Division Bench of this
Court with an observation that if the
petitioner was aggrieved by the election of
the elected person, he can challenge the
election as per the constitutional mandate
by means of an election petition. The said
order reads as under:-

"1.
The
petitioner
is
aggrieved by the election of the
respondent no.4 as a member of the
legislative council.
2. Learned counsel for the
petitioner
states
that
he
had
represented to the Chief Election
Commissioner, New Delhi with
regard to the wrong information,
which
was
provided
by
the
respondent no.4 in the Format-C2,
while he was filling his nomination.
3.
Learned
counsel
appearing
for
the
Election
Commission, Shri Jitendra Ojha
and Additional Chief Standing
Counsel, Shri Rajeev Gupta relying
upon the Article 329 of the
Constitution of India submitted that
if any person is aggrieved by any
Election, then he can challenge the
same by means of any election
petition.
4. In the instant writ
petition
the
petitioner
was
aggrieved by the election of an
elected person (respondent no.4).
He can challenge the election as
per the constitutional mandate by
means of an election petition.
5.
Having
heard
the
learned counsel for the parties, we
are definitely of the view that no
interference is warranted in the
instant writ petition.
6. Accordingly, the writ
petition is dismissed."

11. It is submitted next that the
petitioner then again sent a complaint dated
12.07.2024 to the Election Officer, Vidhan
Sabha Secretariat, Lucknow, U.P. informing
him about the same with the prayer to take
appropriate action. It is submitted that the
present election petition has thus been filed
without any delay. Learned counsel for the
petitioner has further placed before the
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
Court judgement of a learned Senior Judge
of the Guwahati High Court at Guwahati in
the case of Nijam Uddin Choudhury Vs.
Aftab Uddin Laskar : Case No. : I.A.
(Civil) / 1984 / 2023, decided on
16.10.2023 and while placing para 15 of
the same has submitted that the issue of
limitation has to be determined as a
preliminary issue under Order XIV Rule 2
Code of Civil Procedure. It is submitted
that as such in so far as the question of
limitation is concerned, the present petition
be entertained, notice be issued to the
respondent and the matter be heard and
decided on its merit.

12. The Act, 1951 is a Code in
itself. It provides the period of limitation
within which an election petition has to be
filed in Section 81. Section 86 (1) of it
deals with the issue where the provision of
Section 81 has not been complied with. The
Act specifically states that the High Court
shall dismiss the petition which does not
comply with the provisions of Section 81 of
the Act, 1951.

13. There is no provision in the
Act, 1951 for considering the period of
limitation. There is nothing in the Act, 1951
which gives powers for condonation of
delay, if any, and the extension of the
period of limitation. The time prescribed
for presentation of an election petition is
provided specifically in Section 81 of the
Act, 1951. The judgement in the case of
Nijam Uddin (supra) as is being relied
upon by the learned counsel for the
petitioner is distinguishable in as much as
the presentation of the present petition
beyond 92 days is an admitted fact and as
such nothing lay to be decided on the said
fact. The case relied upon by the learned
counsel for the petitioner has a different
fact in as much as the fact about limitation
was in dispute therein. The issue with
regard to a delayed presentation of an
election petition which arises in the present
petition is an admitted fact and is no more
res integra.

14. The Apex Court in the case of
Hukumdev Narain Yadav Vs. Lalit Narain
Mishra: (1974) 2 SCC 133 has held
regarding the question of applicability of
Section 5 of the Limitation Act to an
election petition. It was held as under:

"16. In K. Venkateswara
Rao v. Bekkam Narasimha Reddi
[AIR 1969 SC 872 : (1969) 1 SCR
679 : (1969) 2 SCJ 505] to which
we shall refer more fully later,
Vidyacharan
Shukla
case
was
attempted to be pressed into
service, but this Court repelled it
and observed at pp. 688-689:
"In our view, the situation
now obtaining in an appeal to this
Court from an order of the High
Court is entirely different. There is
no Section in the Act as it now
stands which equates an order
made by the High Court under
Section 98 or Section 99 to a
decree passed by a civil court
subordinate to the High Court. An
appeal being a creature of a
statute, the rights conferred on the
appellant must be found within the
four corners of the Act. Sub-section
(2) of the present Section 116-A
expressly gives this Court the
discretion
and
authority
to
entertain an appeal after the expiry
of the period of thirty days. No
right is however given to the High
Court to entertain an election
petition which does not comply
9 All. Prahlad Singh Vs. Yogesh Chaudhary
1455
with the provisions of Section 81,
Section 82 or Section 117."
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 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 and 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 noncompliance 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
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. Further in the case of Charan
Lal Sahu Vs. Nandkishore Bhatt : (1973)
2 SCC 530 it has been held by the Apex
Court that there is no question of any
common law right to challenge an election
and as such any discretion to challenge the
delay in presentation of the petition or
absolve the petitioner from the payment of
security for costs can only be provided
under
the
statute
governing
election
disputes and if no such discretion was
conferred in respect of any of these matters
none can be exercised under any general
law or any principles of equality and if for
non-compliance of the provisions of
Section 82 and 117 which is mandatory, the
election petition has to be dismissed under
Section 86 (1) of the Act 1951, presentation
of election petition within the period
prescribed in Section 81 of the Act 1951
would
be
equally
mandatory,
noncompliance of which visits the penalty of
the petition being dismissed, it was held,
for all the reasons mentioned, therein that
provisions of Section 5 of the Limitation
Act do not govern the filing of election
petitions or their trial. The Apex Court held
as under:-

"3. The right to challenge
an election is a right provided by
Article 329(b) of the Constitution of
India, which provides that no
election
to
either
House
of
Parliament or to the House or
either House of the Legislature 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. The
right conferred being a statutory
right, the terms of that statute had
to be complied with. There is no
question of any common law right
to challenge an election. Any
discretion to condone the delay in
presentation of the petition or to
absolve
the
petitioner
from
payment of security for costs can
only be provided under the statute
governing election disputes. If no
discretion is conferred in respect of
any of these matters, none can be
exercised under any general law or
on any principle of equity. This
Court has held that the right to vote
or stand as a candidate for election
is not a civil right but is a creature
of statute or special law and must
be
subject
to
the
limitations
imposed by it. In N.P. Ponnuswami
v. Returning Officer, Namakkal
Constituency [(1952) 1 SCC 94 :
AIR 1952 SC 64 : 1952 SCR 218 :
1952 SCJ 100 : 1 ELR 133] it was
pointed out that strictly speaking, it
is the sole right of the Legislature
to examine and determine all
matters relating to the election of
its own members, and if the
Legislature takes it out of its own
hands and vests in a special
tribunal an entirely new and
unknown jurisdiction, that special
jurisdiction should be exercised in
accordance with the law which
creates it."
9 All. Prahlad Singh Vs. Yogesh Chaudhary
1457
16. Further the Apex Court in the
case of Hari Shankar Tripathi Vs. Shiv
Harsh : (1976) 1 SCC 897 has held as
under:-

"6. To begin with we would
first
deal
with
the
case
of
Hukumdev Narain Yadav. What had
happened in that case was that the
election petition was filed on
March 20, 1972 instead of being
filed on Saturday, March 18, 1972
which was the last day on which
the limitation expired. The election
petitioner sought to cross the bar of
limitation on the ground that
Saturday not being a working day
of the court, the petitioner was
entitled to file the petition on the
next working day, namely, Monday.
This Court on a consideration of
various
factors
negatived
this
contention and held that even
though the judges of the High
Court did not usually sit on
Saturdays it was undoubtedly a
working day of the court and it
could not be said that the court was
observing a closed holiday on
Saturday. After referring to a large
number of decisions and traversing
various provisions of the Limitation
Act, this Court observed as follows:
[SCC pp. 142-43, 151, paras 11,
25]
"...for
the
purpose
of
determining
any
period
of
limitation prescribed for any suit,
appeal or application by any
special or local law, the provisions
contained in Sections 4, 9 to 18 and
22 shall apply only insofar as, and
to the extent to which, they are not
expressly excluded by such appeal
or local law ....
For all these reasons we
have come to the conclusion that
the provisions of Section 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 Section 4 as also Section
5 of the Limitation Act had no
application to the election petitions
on the true interpretation of Section
29(2) of the Limitation Act. The
Court also held on a reading of
Rules 6 and 7 with Rule 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 Rule 26 of the Patna
High Court Rules. In the instant
case,
however,
the
period
of
limitation provided by Section
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 holiday in the High Court
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
of Judicature at Allahabad during
the year 1974. ............
In view of this notification,
therefore, the legal position would
be that the summer vacation,
namely, the period starting from
May 25 and ending on July 7,
1974, would be deemed to be
closed 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
Section
81
of
the
Representation of the People Act
expired on June 14, 1974 which
being a closed holiday right upto
July 7, 1974, then Section 10, 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
reopened
after
the
summer
vacation. The relevant portion of
Section 10 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 proceeding is directed or
allowed to be done or taken in any
Court or office on a certain day or
within a prescribed period, then, if
the Court or office is closed on that
day or the last day of the
prescribed period, the act or
proceeding shall be considered as
done or taken in due time if it is
done or taken on the next day
afterwards on which the Court or
office is open:
Provided that nothing in
this section shall apply to any act
or proceeding to which the Indian
Limitation Act, 1877, applies."
Analysing the section it
would appear that the following
conditions must be satisfied before
a litigant may take advantage of the
protection of Section 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 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 Section 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 that the
provisions of Sections 4 and 5 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 Section 81(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 Section
10 of the General Clauses Act
would apply in terms and the
appellant would be entitled to file
9 All. Prahlad Singh Vs. Yogesh Chaudhary
1459
the election petition on July 8, 1974
as he did."

17. Further the Apex Court in the
case of Lachhman Das Arora Vs. Ganeshi
Lal : (1999) 8 SCC 532 has held as under:-

"7. On its plain reading,
Section 81(1) lays down that 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 of the
Act to the High Court by any
candidate at such election or by an
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 the dates of their election are
different, the later of those two
dates. The Act is a special code
providing a period of limitation for
filing of an election petition. No
period for filing of an election
petition is prescribed under the
Indian Limitation Act. The Act
insofar as it relates to presentation
and trial of election disputes is a
complete code and a special law.
The scheme of the special law
shows
that
the
provisions
of
Sections 4 to 24 of the Indian
Limitation Act do not apply. If an
election petition is not filed within
the prescribed period of forty-five
days, Section 86(1) of the Act,
which provides that the High Court
shall dismiss an election petition
which does not comply with the
provisions of Section 81 or Section
82 or Section 117, is straightaway
attracted."
18. Further the Apex Court in the
case of Suman Devi Vs. Manisha Devi :
(2018) 9 SCC 808 has held as under:-

"7. In Hukumdev Narain
Yadav v. Lalit Narain Mishra
[Hukumdev Narain Yadav v. Lalit
Narain Mishra, (1974) 2 SCC 133]
, while considering whether the
provisions of the Limitation Act,
1963 would be applicable to an
election
petition
under
the
Representation of the People Act,
1951, P. Jaganmohan Reddy, J.,
speaking for a three-Judge Bench
of this Court held thus : (SCC p.
147, para 18)
"18. ...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."
This Court held that the
provisions of Section 5 of the
Limitation Act do not govern filing
of election petitions or their trial.
8. In Charan Lal Sahu v.
Nandkishore Bhatt [Charan Lal
Sahu v. Nandkishore Bhatt, (1973)
2 SCC 530] , a two-Judge Bench
held that there is no common law
right to challenge an election since
it is purely a matter of regulation
by the terms of the statute. The
right being statutory, the terms of
the statute must be complied with.
9. A three-Judge Bench of
this Court in Lachhman Das Arora
1460 INDIAN LAW REPORTS ALLAHABAD SERIES
v. Ganeshi Lal [Lachhman Das
Arora v. Ganeshi Lal, (1999) 8 SCC
532] , construed the provisions of
Section 81(1) of the Representation
of the People Act, 1951, which
prescribes a period of 45 days to
file an election petition. Dr A.S.
Anand, C.J. speaking for the Court,
held thus : (SCC pp. 535-36, para
7)
"7. On its plain reading,
Section 81(1) lays down that 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 of the
Act to the High Court by any
candidate at such election or by an
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 candidates at the election
and the dates of their election are
different, the later of those two
dates. The Act is a special code
providing a period of limitation for
filing of an election petition. No
period for filing of an election
petition is prescribed under the
Indian Limitation Act. The Act
insofar as it relates to presentation
and trial of election disputes is a
complete code and a special law.
The scheme of the special law
shows
that
the
provisions
of
Sections 4 to 24 of the Indian
Limitation Act do not apply. If an
election petition is not filed within
the prescribed period of forty-five
days, Section 86(1) of the Act,
which provides that the High Court
shall dismiss an election petition
which does not comply with the
provisions of Section 81 or Section
82 or Section 117, is straightaway
attracted."
(emphasis in original)

19. The High Court while hearing
an
election
petition
operates
as
an
Authority under Article 329 (b) of the
Constitution of India whose jurisdiction is
circumscribed by the statutory provisions
as per the Act, 1951.

20. The Apex Court in the case of
Thampanoor Ravi Vs. Charupara Ravi :
(1999) 8 SCC 74 has thus held that a High
Court hearing an election petition does not
function as a Constitutional Court per se
nor
does
it
have
extraordinary
constitutional or inherent powers. It has
been held as under:

"12. Under Article 329(b)
of the Constitution no election to a
legislature shall be called in
question except by an election
petition presented to such authority
and in such manner as may be
provided by or made by the
appropriate
legislature.
Under
Section 80-A of the RP Act, the
forum for adjudication of an
election petition is the High Court.
The scope of this provision is
considered
by
this
Court
in
Upadhyaya Hargovind Devshanker
v. Dhirendrasinh Virbhadrasinhji
Solanki [(1988) 2 SCC 1 : AIR
1988 SC 915] . In that decision, the
question was whether an order
made
on
an
interlocutory
application in an election petition
could be the subject of a letters
patent appeal. It was observed in
that decision that conferment of
power under the RP Act to try any
9 All. Prahlad Singh Vs. Yogesh Chaudhary
1461
election
does
not
amount
to
enlargement
of
the
existing
jurisdiction of the High Court. The
jurisdiction exercisable under the
RP Act is a special jurisdiction
conferred on the High Court by
virtue of Article 329(b) of the
Constitution.
Therefore,
even
though
the
High
Court
may
otherwise exercise ordinary and
extraordinary jurisdiction it would
be difficult to envisage a situation
that while trying an election
petition
in
exercise
of
the
jurisdiction conferred by the RP
Act it can adjudicate upon the vires
of the RP Act or any rule or order
made thereunder and the election
petition
has
to
be
tried
in
accordance with the provisions of
the RP Act and thus the court
cannot entertain and pronounce
upon matters which do not fall
within the ambit of Section 100 of
the RP Act. Even an ordinary civil
court will not have jurisdiction to
decide questions arising under
insolvency enactments; much less a
special authority like the High
Court when it is not invested with
such power under the Insolvency
Act. This Court in Bhagwati Prasad
Dixit 'Ghorewala' v. Rajeev Gandhi
[(1986) 4 SCC 78 : 1986 SCC (Cri)
399 : (1986) 2 SCR 823] reversed
the view taken in Bhagwati Prasad
[1985 All WC 682] on which
reliance
was
placed
by
the
respondent that the High Court can
decide whether a person has
acquired
citizenship
or
lost
citizenship. In that case a question
arose as to whether in an election
petition
the
High
Court
had
jurisdiction
to
determine
the
citizenship of a person. The High
Court had taken the view that
notwithstanding the statutory bar
contained in Section 9(2) of the
Citizenship Act that wherever a
question arises as to whether, when
and how a person has acquired the
citizenship of another country it
shall
be
determined
by
such
authority in the manner prescribed
by the rules of evidence as may be
prescribed in that behalf; that since
by virtue of Article 329(b) of the
Constitution all questions arising in
an election petition filed under the
RP Act were exclusively triable in
an election petition, it had the
jurisdiction to decide the question
whether a candidate had ceased to
be an Indian citizen. This Court
took the view that when such a
question arises it would be a matter
to be decided by the authority
constituted under the Citizenship
Act and when no decision is given
by the competent authority under
the Citizenship Act, the question
whether he ceased to be a citizen of
India could not be adjudicated in
an election petition."
(emphasis supplied)

21. After having heard learned
counsel for the petitioner and perusing the
records, it is settled that unless and until an
election petition is maintainable and is not
barred by limitation, the merits of the
matter cannot be seen and considered. In
the present matter, from the judgement
relied by the learned counsel for the
petitioner and the discussion as above, it is
apparent that the provisions of Limitation
Act, 1963 do not apply to election petitions.
The filing / presentation of the election
petition is strictly governed by Section 81
1462 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Act, 1951. The trial of the election
petition is provided under Section 86 of the
Act, 1951. The Act specifically provides
that if an election petition does not comply
with the provisions of Section 81 or Section
82 or Section 117 of it, the High Court shall
dismiss it.

22. In view of the reasons as stated
above, this Court comes to a conclusion
that the present election petition is barred
by Section 81 read with Section 86 of the
Act, 1951 and is liable to be dismissed. It is
thus ordered to be dismissed.
----------
(2024) 9 ILRA 1462
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 6581 of 2024

Mohd. Hasan ...Petitioner
Versus
U.O.I. & Anr. ...Respondents

Counsel for the Petitioner:
Salman Abbas

Counsel for the Respondents:
A.S.G.I.

Criminal Law - Constitution of India ,
1950 - Article 226 -order of the Magistrate
denying renewal of passport on the
ground of lack of jurisdiction challenged
whether the petitioner could renew his
passport
despite
pending
criminal
proceedings-notification of Government of
India
dated
25.08.1993-Office
Memorandum
dated
10.10.2019-no
restriction to the learned trial court to
direct for grant of permission for renewal
of passport-citizens of country entitled to
passport-fundament right under Article
19(1) (d) of the Constitution of India-
petition allowed. (Paras 8 and 9)

HELD:
After considering the arguments as advanced by
learned counsel for the parties as well as after
perusal of record, this Court finds that Under
Article
19(1)(d)
and
Article
21
of
the
Constitution of India, the citizens of the country
are entitled for passport. In Maneka Gandhi Vs
U.O.I. 1978 (1) SCC 248, the Apex Court has
held that having passport is a fundamental right
of the citizen of India and a citizen can not be
deprived of such fundamental right.... (Para 8)

Thus, this Court after considering the aforesaid
judgment of Hon'ble the Supreme Court in the
case of Maneka Gandhi (Supra) is of the view
that right to travel abroad is a part of the
personal liberty guaranteed under Article 21 and
19 (1) (g) of the Constitution of India and in
addition thereto a careful reading of provisions
of the Passport Act and the Notification dated
25.08.1993 alongwith the Office Memorandum
dated 10.10.2019 in the light of it's legislative
backgrounds as mentioned above, it is clear that
passport or travel document of a person, who is
facing trial can be refused by the authority
concerned during pendency of his criminal case,
but there is no statutory bar for giving no
objection by the court concerned. No hard and
fast straight jacket formula can be laid down
regarding issuance of permission or giving no
objection by the court concerned for issuance of
passport. It is always discretion of the court
concerned and depend upon the facts and
circumstances of each case, act and conduct of
the accused as well as nature of alleged
offence committed by him/her and stage of
trial, etc.