# 3 08 HARI SHANKER TRIPATHI v. SHIV HARSH & OTHERS

- **Citation:** [1976] 3 S.C.R. 308
- **Court:** Supreme Court of India
- **Decided:** 1976-02-03
- **Case number:** Civil Appeal No. 699 of 1975
- **Bench:** P. K. Goswami, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-08-hari-shanker-tripathi-v-shiv-harsh-others-6786
- **Pages:** 11

## Headnote

Represellfation of tile People Act (43 of 1951), ss. 2(1)(/zJ, 39(1)(a), 81(1),
87(1) and 1he Rules /rained by the Aflahabad High Court under Act, rr. 3
and 4-Allalzabad High Court Rules, 1952, rr. 4 and IO-Period of lin1itation
under s. 81 ( 1) for election petition expiring during sumnier vacation-Filing of
petition on re-opening day-If barred-General Clauses Act (10 of 1897),
s. IO-Applicability.
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
bys. 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 Hi,gh Court had issued' a notification that the entire period
of the si1mmer vacation from ~lay 25, to July 7, 1974 was a closed holiday,
As the period of limitation expired during the summer vacation, which was
a closed holiday, the Registrar of the High Court \Vas not competent to
entertain the election petition. nor could the appellant have presented the
election petition legally to the Registrar during such period; and so. it is a
case to which s. 10, General Clauses Act, 1897, applies and the appellant was
justified in filing the petition on the re-opening day.
[312C-D; 3130-E; 318A-B]
( 1) Und.er r. 3 of the Rules framed by the High Court under the Representation of the People Act, every election petition shall be presented to the
Registrar; and r.. 4 lays down that after the office report is complete, the
Registrar shall place the petition forthwith before the Chief Justice for reference
to the concerned Bench.
But, from these rules it could not be held that there
was no impediment in the way of the appellant in filing the election petition
before the Registrar as the office of the High Court was open and the Registrar
was available, even though the Court was closed.
The presentation before the
Registrar, required by r. 3, must be a legal presentation and not a mere physical
presentation.
If on a day the office is open and only Judges~ do not sit, it
v,1ould undoubtedly be a working day of the Court and the election petition
could be presented to the Registrar or other officer.
But, if the Court was
observing a closed holiday, then the Court is not open even though .the office
may remain open for conducting ministerial or administrative work.
Rules
3 artl 4 refer to a situation where the Court is open, because, the Registrar
has to take the legal steps of placing 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.
[314C-GJ
Huku111dev Narain Yada1• v. Lalit Narain Mi.l'lira, [1974] 3 S.C.R.
31,
explained.
Krishna Dhan Mullick v. U1nratul Zohra Begam, I.L.R. [1949] All. 433,
:1pproved.
(2) (a) Further, r. 10 of the High Court Rules. which is the only provision
which empowers vacation Judges to -hear matters, has a very limited scope and
does not empov.·er the Registrar to entertain or to receive an e1ection petitio!1.
Under the rule, normally, only criminal work shall continue to be dealt \\'Ith
during vacation, and it is only when other matters require immediate attention
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H. s. TRIPATH! v. SHIV HARSH (Fazal Ali, !.)
30 9
that the vacation Judges have jurisdiction to entertain them. Election petitions
A
do not come under these two categories, so as to be taken up when the Court
is observing a closed holiday.
[315E, H-316B]
(b) The mere fact that a practice has grown up of the Registrar or Deputy
Registrars or other officers receiving: a number of applications, wh

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3 08
HARI SHANKER TRIPATHI
v.
SHIV HARSH & OTHERS
February 3, 1976
[P. K. GOSWAMI AND S. MURTAZA FAZAL ALI, JJ.]
Represellfation of tile People Act (43 of 1951), ss. 2(1)(/zJ, 39(1)(a), 81(1),
87(1) and 1he Rules /rained by the Aflahabad High Court under Act, rr. 3
and 4-Allalzabad High Court Rules, 1952, rr. 4 and IO-Period of lin1itation
under s. 81 ( 1) for election petition expiring during sumnier vacation-Filing of
petition on re-opening day-If barred-General Clauses Act (10 of 1897),
s. IO-Applicability.
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
bys. 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 Hi,gh Court had issued' a notification that the entire period
of the si1mmer vacation from ~lay 25, to July 7, 1974 was a closed holiday,
As the period of limitation expired during the summer vacation, which was
a closed holiday, the Registrar of the High Court \Vas not competent to
entertain the election petition. nor could the appellant have presented the
election petition legally to the Registrar during such period; and so. it is a
case to which s. 10, General Clauses Act, 1897, applies and the appellant was
justified in filing the petition on the re-opening day.
[312C-D; 3130-E; 318A-B]
( 1) Und.er r. 3 of the Rules framed by the High Court under the Representation of the People Act, every election petition shall be presented to the
Registrar; and r.. 4 lays down that after the office report is complete, the
Registrar shall place the petition forthwith before the Chief Justice for reference
to the concerned Bench.
But, from these rules it could not be held that there
was no impediment in the way of the appellant in filing the election petition
before the Registrar as the office of the High Court was open and the Registrar
was available, even though the Court was closed.
The presentation before the
Registrar, required by r. 3, must be a legal presentation and not a mere physical
presentation.
If on a day the office is open and only Judges~ do not sit, it
v,1ould undoubtedly be a working day of the Court and the election petition
could be presented to the Registrar or other officer.
But, if the Court was
observing a closed holiday, then the Court is not open even though .the office
may remain open for conducting ministerial or administrative work.
Rules
3 artl 4 refer to a situation where the Court is open, because, the Registrar
has to take the legal steps of placing 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.
[314C-GJ
Huku111dev Narain Yada1• v. Lalit Narain Mi.l'lira, [1974] 3 S.C.R.
31,
explained.
Krishna Dhan Mullick v. U1nratul Zohra Begam, I.L.R. [1949] All. 433,
:1pproved.
(2) (a) Further, r. 10 of the High Court Rules. which is the only provision
which empowers vacation Judges to -hear matters, has a very limited scope and
does not empov.·er the Registrar to entertain or to receive an e1ection petitio!1.
Under the rule, normally, only criminal work shall continue to be dealt \\'Ith
during vacation, and it is only when other matters require immediate attention
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H. s. TRIPATH! v. SHIV HARSH (Fazal Ali, !.)
30 9
that the vacation Judges have jurisdiction to entertain them. Election petitions
A
do not come under these two categories, so as to be taken up when the Court
is observing a closed holiday.
[315E, H-316B]
(b) The mere fact that a practice has grown up of the Registrar or Deputy
Registrars or other officers receiving: a number of applications, which was not
strfctly justified by the Rules, would not have the effect of converting v.'hat is
legally a closed holiday into a working day.
[316B-C]
( c) Rule 4 of the High Court Rules-which pro\rides that 'where any
particular number of days is prescribed by these Rules, the same shall be
reckoned exclusive of the first day and inclusive of the last day, unless, the
last day shall happen to fall on a day on which the offices of the Court
are closed, in v.hich case the time shall be reckoned exclusive of that day
nlso ar:r,l of any succeeding day or days on v.:hich the offices of the Court
continue to be closed'-cannot be relied upon by the respondei:tt, because, it
applies only where the period of limitation is prescribed by the Rules.
[316G]
(3) For taking advantage of s. 10, General Clauses Act, 1897, it is necessary
that,
(a) an act or proceeding is allowed to be done or taken in any court
er office on a particular day or within a prescribed period; and
(b) if the Court or office is closed on that day or the last day of the
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 the :;eclion makes the section inapplicable to cases where
the Limitation Act applies.
Jn Hukuindev Narain Yadav's case [19741 3 S.C.R. 31, this Court held that
ss. 4 and 5, Limitation Act, do not apply to election petitions. Therefore, s. 10,
General Clauses Act applies in terms to the instant case. [313A-D]
H. H. Raja Harinder Singh v. S. Karnail Singh, [1957] S.C.R. 208, followed.
( 4) 'Public holiday' is defined in s. 2( I) (h) of the Representation of the
People Act to mean any day which is a public holiday for the purposes of
s. 25, Negotiable Instruments Act, 1881. But the term 'public holiday' refers
only to such contingencies as are mentioned in s. 39(1) (a) of the Act, in
the conduct of the actual elections.
Section 87 ( 1) shows that so far as the
disposal of election petitions is concerned, once s. 80 confers power on the
High Court to try them, s. 2(1)(h) would have no application whatsoever to
their trial which will be governed either according to the Rules framed by
the High Court under the Act, or the general Rules of the High Court, or
in accordadce with the C.P .C. In the instant case, the High Court having
framed Rules under the Representation of the People Act, which provide for
the presentation of the petition to the Registrar. which could only be on a
day which is not a 'closed holiday', the term 'closed holiday' will have to be
referred to and not 'public holiday• defined in s. 2(1)(h). [317B-Hl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 699 of 1975.
From the Judgment and order dated l 0-2-1975 of the Allahabad
High Court in Election Petition No. 45 of 1974.
J. P. Goyal, S. P. Singh and G. S. Chatterjee for the appellant.
S. N. Misra, K. C. Agarwala, M. M. L. Srivastava and E. C.
Agarwala, for the respondent.
·
The Judgment of the Court was delivered by
FAzAL Au, J.-This is an appeal against the judgment of S. Malik,
.I. of the Allahabad High Court who was assigned as an Election
Judge to hear the election petition filed by the appellant in the High
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SUPREME COURT REPORTS
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Court The electio_n petition was filed by the appellant who was
one of. the ten can~1dates for the rnernbership of the U.P. Legislative
Council from Bastl-curn-Gorakhpur Local Authority
Constituency.
The results of the aforesaid election were declared on April 30, 1974
and the appellant Jiled the election petition in 1jJe High Court on
July 8, 1974 praying that the election of respondent No. 1 be declared void and that the appellant be declared to be duly elected. The
election petition was placed for hearing before the learned
Judge
after he was assigned as a Judge to hear the election petition by the
Chief Justice and the learned Judge framed 20 issues in the
case.
Issue No. 8 related to the question as to whether the election petition
had been properly prnsented and was within tirne.
As Issue No. 8
related to the maintainability of the petition on the point of limitation,
the learned Judge took up this matter as a preliminary issue, and after
hearing the parties he held that the petition having been filed beyond
time merited dismissal under s.86(1) read with s.81(1) of
the
Representation of the People Act, 1951.
The election petition of
the appellant was accordingly dismissed by the High Court by
its
order dated February 10, 1975 and it is against this order that the
present appeal has been preferred in this Court.
The facts of the case lie within a very narrow compass.
It is
not disputed that the results of the election were declared on April
30, 197 4 and normally the election petition should have been filed
in the High Court within 45 days from this date.
Accordingly the
period of limitation
expired
on
June
14,
1974.
The
petition was, however, presented before the Registrar on July 8, 1974.
The appellant relied on the fact that he was not in a position to file
the petition in the High Court on June 14, 1974 because the High
Court was closed for the summer vacation and as the High Court was
observing a closed holiday the appellant was entitled to file
the
petition on the re-opening which was July 8, 1974 and accordinly
he filed the petition on that day.
The appellant, therefore, claimed
that his petition was not time-barred in view of the provisions of s. 10
of the General Clauses Act, 1897 which would apply to this case.
The learned counsel for the appellant has reiterated the same
argument before us as in the Court below and has submitted that
for all intents and purposes the summer vacation being a closed holiday according to the notification issued by the High Court, the appellant was legally entitled to file the pe_tition only on July 8, 197 4 when
the High Court re-opened.
The learned Judge of the High Court rejected 'the contention of
the appellant on two grounds.
In the first place the learned Judge
thought that the matter was clearly covered by the decision of this
Court in Hukumdev Narain Yadav v. Lalit Narain Mishra. (1) Secondly the learned Judge was of the opinion that although the High Court
w~s closed for the summer vacation, the office of the High Court was
open and the Registrar was available for ei;i'.ertaining any petition
of an urgent nature which was filed by any pettllon·~r and the Vacat1011
(1) [1974] 3 S.C.R. 31.
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H. s. TRIPATHI v. SHIV HARSH (Fazal Ali, J.)
3 II
Bench also functioned during the vacation.
In these circum8tances
the learned Judge thought that there was no justification for the appellant to have waited till the re-opening of the High Court in order to
file the election petition.
Mr. S. N. Misra appearing for the respondents more or less supported the view taken by the learned Judge
and he also put forward certain additional arguments which will be
dealt with later.
After having heard the arguments of the parties and going through
the record, we find that the view taken by the learned Judge is legally
erroneous.
The learned Judge appears to have drawn an analogy
from the facts in the case of Hukumdev Narain Y adav (supra)
which appear to be clearly distinguishable from the facts of the present case.
In the case of Hukumdev Narain Yadav this Court was
not calkd upon to consider the legal significance of the Court having
been closed due to summer vacation, but was considering a case where
the Court was undoubtedly open but the petition was filed on the
Monday instead of the previous Saturday which though a working day
of the Court was not a day on which the Judges were usually sitting.
Secondly the learned Judge appears to have completely overlooked the
provisions of s. I 0 of the General Clauses Act, particularly in view of
the fact that this Court has held that ss. 4 or 5 of the Limitation Act did
not apply to election petitions.
To begin with we would first deal with the case qf Hukumdev
Narain Yadav (supra).
What had happened in that case was that
the election petition was filed on March 20, 1972 instead of being
filed on Staturday March 18, 1972 which was the last day on which
the limitatiori exp~ 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 usnally
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:-
". . . . 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 s: 4,
ss. 9 to 18 and s. 22 shall apply only insofar as, and to the
extent to which, they are not expressly excluded by such
special or local 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. 5 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
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SUPREME COURT REPORTS
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reading of rr. 6 & 7 with r. 26 of the Patna High Court Rules that
even though the Judges were not sitting ou 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 snmmer 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 197 4.
Name of holidays
Dates on which they fall
Days of the
Number
,-
-"-
--,
week
of days
According to
According to
Gregorian
Indian CalenCalendar
dar saka era
1
2
3
4
5
Summer Vacation
May 25 to
Jyaistha
4
to
Saturday
44
July 7.
Asad ha 1 !, t 896
to Sunday
"
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 s, 81 of the Representation of the People Act expired
on June 14, 1974 which being a closed holiday right upto July
7, 197 4, then s, 10 of the General Clauses Act would apply in terms
and the appellant would be fully justified in filing the petition
on
July 8, 197 4 when the Court re-opened after the summer vacation.
The relevant portion of s. 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 an)I 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 :
Proyided that nothing in this section shall apply to any
act or proceeding to which the Indian Limitation Act, 1877,
applies."
..,.,,
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H. s. TRIPATHI v. SHIV HARSH (Fazal Ali, !.)
313
Analysing the section it would appear that the following conditions
A
must be satisfied before a litigant may take advantage of the protec- ·
tion 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
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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
C
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 H ukumdev Narain Y adav (supra) that the provisions of
ss. 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 presD
cribed 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(') while interE
pretating 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 performance 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
perio<,l 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. 10 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. 10 of the General Qauses Act in the constrncti.Qn of the
Rules, as that will be against the plain language .of Rule
2(6) ................................. The
(1) [19571 S.C.R. 208.
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operation of snch a beneficent enactment as s. 1 O of the
General Claμses 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
Mley 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
Allahabed regarding the trial of election petitions, r. 3 required that
every election petition shall be presented to the Registrar and r.
4
laid clown 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 the Registrar who was available
during
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 ti)e petition immediately
before
the Chief Justice for reference to the Bench concerned and the a5'ignment 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 Scptemller 22, 1973, was observing a closed holiday during the
summer
vacation.
A similar question appears to have
arisen
before
theAllahabad 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
H. s. TRIPATHI v. SHIV HARSH (Fazal Ali, !.)
315
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 Zahra Begam( 1)
observed as follows :
"The six weeks within which security could be deposited
expired during the High Court vacation. It 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 empowers the Vacation Judges to hear certain types of matters.
The
rule may be extracted thus :
"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 appellaie 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
A
B
c
D
E
F
more than cne 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
H
shall continue to be dealt with during the vacation by such judges as
--------
(l) I.L.R. [1949] All. 433.
A
B
c
316
SUPREME COURT REPORTS
[1976] 3 S.C.R.
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 statu\ory Rules would not have the effect
of converting what is legally a closed holiday into a working day.
Similarly as indicated above, 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 factnally 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 :
E
" 'Registrar' includesF
G
H
(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 tbe 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 snch
cases where the period of limitation is prescribed by the Rules.
In
the instant case, the period of limitation is not prescribed by the
Rules made by the High Court of Allahabad but bys. 81(1) of the
Representation of the People Act itself, and therefore this rule cannot be of any assistance to the respondents.
It was then suubmitted 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
•
•
H. s. TRIPATHI v. SHIV HARSH (Fazal Ali, !.)
3 17
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 undobutedly 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 tbe 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 meinbers or the members of the Legislative Asscmbiy
A
B
of a State 6r the members of the electoral college
of
a
C
Uniou 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 firstmen tioned notification or, if that day is a public holiday,
the next succeeding day which is not a public holiday."
'Ihe word "public holiday" nscd ins. 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 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 whatsoever to the trial of such election petition by the High Court which
will be governed either according to tbe Rules framed by the High
Court under the Representation of the People Act or under
the
general Rules of the High Conrt 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. (!} Subject to the provisions of this Act and of
any rules made thereunder, 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 nndcr the
Reprcsantation of the People Act which provided for the presentation
of the election petitions to the Registrar, which as we have held could
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 Hi!!h
Court Rules and not by s. 2 (1) (h) of the Representation of the
People Act.
In these circumstances, therefore, the contention nf th.:
respondents on this score must be overruled.
For the reasons given above we are satisfied that as the period of
limitation expired during the
summer vacation which was a closed
6-52'.SCI 176
D
F
G
H
A
B
318
SUPREME COURT REPORTS
[1976) 3 S.C.R.
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 reopening day of the High Court, namely, July 8, 1974.
In these
circumstances the view taken by the High Court that the
election
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
C
the law.
In the special circumstances of this case we make no order
as to costs, in this Court.
V.P.S.
Appeal allowed.
\
'
I"