TaxTMI 
TaxTMI 
TaxTMI 
2020 (12) TMI 1416
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....notification dated 05.03.2018, the Election Commission of India notified the biennial elections for two seats in the Council of States from the State of Jharkhand; (ii) Three candidates by name Pradeep Kumar Sonthalia, Samir Uraon and Dhiraj Prasad Sahu, filed their nominations on 12.03.2018. It is stated that the first two candidates belonged to the Bharitya Janata Party (BJP), and the third candidate belonged to the Indian National Congress (INC); (iii) On 23.03.2018, the election was held between 9.00 A.M. and 4.00 P.M. at the Vidhan Sabha. A total of 80 members of the Legislative Assembly of the State of Jharkhand cast their votes; (iv) One Shri Amit Kumar Mahto who was an elected member of the Assembly belonging to Jharkhand Mukti Morcha Party (JMM) admittedly cast his vote at 9.15 A.M. on 23.03.2018; (v) As fate (not of the voter but of the contestant) would have it, Shri Amit Kumar Mahto was convicted by the Court of the Additional Judicial Commissioner XVIII, Ranchi, in Sessions Trial No.481 of 2010, for the offences punishable under Sections 147, 323/149, 341/149, 353/149, 427/149 and 506/149 IPC, on the same day, but the conviction and sentence were handed over at....
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....eased to be a Member of Legislative Assembly and his disqualification came into effect immediately from the date of his conviction and sentence of two years and, therefore, the vote of Shri Amit Kumar Mahto could not have been taken into consideration at the time of counting? 3. Whether the disqualification of Shri Amit Kumar Mahto rendered his vote void/illegal that was cast to respondent no.1 and, therefore, reception of his vote was improper and, thus, in terms of Section 100 (1) (d) (iii) of the Representation of People Act, 1951, the election of respondent no. 1 is liable to be declared void? 4. Whether the communication from the Returning Officer (e-mail dated 24.03.2018) rejecting the objection made on behalf of the petitioner on the ground that the Returning Officer had not received the judgment of conviction of Shri Amit Kumar Mahto till the declaration of the results, is absolutely illegal and unlawful? 5. Whether disqualification of Shri Amit Kumar Mahto in terms of Section 8 (3) of the Representation of People Act, 1951, takes effect from the date of his conviction and sentence of two years i.e. 23.03.2018 which means the day as per English calendar beginning at m....
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....led. Therefore, the Returning Officer, Mr. Binay Kumar Singh was examined as PW-1 and through him the original ballot paper by which Shri Amit Kumar Mahto cast his vote was marked as Exhibit-9. On the basis of the same, the High Court came to the conclusion that Shri Amit Kumar Mahto cast his vote in favour of Shri Dhiraj Prasad Sahu, the Congress candidate. It was also clear from the evidence of PW-1 and Exhibit-9 that Shri Amit Kumar Mahto did not cast his 2nd, 3rd and 4th preference vote. Therefore, the validity of the vote cast by Amit Kumar Mahto assumed significance, especially in view of the margin of victory. 6. Since the factual position that Amit Kumar Mahto cast his vote in favour of Dhiraj Prasad Sahu has now become unassailable, many of the issues framed by the High Court have now paled into insignificance. There are only 2 issues which now survive for consideration and they are: - (i) Whether the vote admittedly cast by Shri Amit Kumar Mahto in favour of Shri Dhiraj Prasad Sahu at 9.15 A.M. on 23.03.2018 should be treated as an invalid vote on account of the disqualification suffered by the voter under Article 191(1)(e) of the Constitution of India read with Sectio....
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....tution speaks of the circumstances under which a person will be treated as disqualified (i) either for being chosen as (ii) or for being, a member of the State Legislative Assembly. The language of Article 191 makes it clear that it covers both a contest in an election and the continuance in office after getting elected. It reads as follows: - "191. Disqualifications for membership (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament [Explanation.- For the purposes of this clause] a person shall n....
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....alifications for membership of those houses, the corrupt practices etc.,. Section 8 of the Act deals with disqualification on conviction for certain offences. For the purpose of disqualification, the offences are classified in section 8 into 3 categories, namely (i) offences falling under sub-section (1) (ii) offences falling under sub-section (1) and (iii) offences not falling either under sub-section (1) or under subsection (2). 15. The disqualification results in the Member becoming liable to be removed from the list of voters under Section 152 of the Representation of the People Act, 1951, though the actual deletion may take time. In any case, he ceases to be an elector vide Rule 2(d) of the Conduct of Election Rules, 1961 which provides that an elector in relation to an election by assembly members means any person entitled to vote at that election. 16. We are concerned in this case with sub-section (3) of section 8, as Amit Kumar Mahto was convicted for offences which do not fall either under sub-section (1) or under sub-section (2). Therefore, Subsection (3) of section 8 alone is extracted as follows: - "8. Disqualification on conviction for certain offences.- (1....
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.... 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 statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied". 21. Placing heavy reliance upon the decision of this Court in Pashupati Nath Singh vs. Harihar Prasad Singh AIR 1968 SC 1064, it is contended that wherever the statute uses the words "on the date", it should be taken to mean "on the whole of the day" and that law disregards as far as possible, fractions of the day. 22. But in our considered view Pasupati Nath Singh hardly supports the contention of the Appellant. In that case the election to the Bihar legislative Assembly from Dumro constituency was in issue. As per the schedule,....
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.... to mean 00.01 A.M. to 24.00 P.M. This was despite the fact that in common parlance a date would mean 24 hours in time. But the running of time got arrested, the moment the nomination of the appellant in Pashupati Nath Singh was taken up for scrutiny. Thus, the benefit of the whole day of 24 hours was not made available by this court in Pashupati Nath Singh to the appellant therein and the act of the Returning officer in drawing the curtains down at the happening of the event namely scrutiny of nomination papers, was upheld by this court in Pashupati Nath Singh. 25. In fact, Pashupati Nath Singh can be said to be a mirror image or the converse of the case on hand. In the case on hand the period of commencement of an event is in question, while in Pashupati Nath Singh the period of conclusion was in issue. If the date on which scrutiny was taken up can be held to have ended at the time when the event of scrutiny was taken up, we should, by the very same logic, hold that the date of commencement of an event such as conviction and the consequent disqualification should also begin only from the time when the event happened. 26. In fact, the argument of the appellant in this case is a....
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....ant concerned the question of computation of the period of limitation for filing an Election petition under section 81(1) of the R.P. Act 1951. Therefore, this Court referred to Section 9 of the General Clauses Act, 1897 that laid down the manner in which statutes prescribing the commencement and termination of time, can be worded by using expressions such as "from" and "to". But this decision is also of no assistance to the appellant for the simple reason that Section 8(3) of the Act uses the word "from" as well as the expression "the date of conviction" and Tarun Prasad Chatterjee concerned the interpretation to be given only to the word "from". 29. In any case, Tarun Prasad Chatterjee need not have gone as far as the General Clauses Act, since Section 12(1) the Limitation Act, 1963 itself provides for the exclusion of the date from which the period of limitation is to be reckoned, while computing the period of limitation. 30. We must point out at this juncture that even in criminal law, there is a vast difference between (i) the interpretation to be given to the expression "date", while calculating the period of imprisonment suffered by a person and (ii) the interpretation to ....
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....tutory language will be interpreted" K-Generation Pty. Ltd. vs. Liquor Licensing Court, (2009) 83 ALJR 327 para 47. 36. In the present case, it would be significant to add that it is not necessary to make a declaration incompatible in the use of the word "date" with the general rule of law since the word "date" is quite capable of meaning the point of time when the event took place rather than the whole day. 37. The well-known presumption that a man is innocent until he is found guilty, cannot be subverted because the words can accommodate both competing circumstances. While it is known that an acquittal operates on nativity, no case has been cited before us for the proposition that a conviction takes effect even a minute prior to itself. Moreover, the word "date" can be used to denote occasion, time, year etc. It is also used for denoting the time up to the present when it is used in the phrase "the two dates". Significantly, the word "date" can also be used to denote a point of time etc. (See Roget's International Thesaurus third edition Note 114.4). 38. To say that this presumption of innocence would evaporate from 00.01 A.M., though the conviction was handed over at 14.30 P.....
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....ntext that the Constitution Bench held in K Prabhakaran that Section 8 of the R.P Act has to be construed in harmony with the provisions of Cr.P.C so as to give effect to the provisions contained in both. 41. Cases arising under the law of insurance, have no relevance to cases of disqualification. Even under the law of insurance, different principles of interpretation have been carefully nurtured and developed. For instance, New India Assurance Company Limited vs. Ram Dayal & Ors. (1990) 2 SCC 680, this Court was concerned with a case where a vehicle had insurance cover upto 31.08.1984, which was not renewed. However, a fresh policy was taken on 28.09.1984. It was on the very same day that the vehicle got involved in an accident. The Motor Accident Claims Tribunal upheld the repudiation of liability by the insurer, but the High Court held that the policy of insurance obtained on the date of the accident became operative from the commencement of the date of insurance, namely from the previous midnight. While upholding the view taken by the High Court, by a short order, this Court referred to In Re F.B. Warren (1938) 2 All ER 331, wherein it was held that a judicial act will be refe....
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....escribed. Article 193 which takes care of this contingency reads as follows: - "193. Penalty for sitting and voting before making oath or affirmation under Article 188 or when not qualified or when disqualified. - If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of Article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State." 45. On the basis of Article 193, it is contended that when law prescribes certain consequences for an act of commission, the Court cannot impose additional consequences. Reliance is placed in this regard on the decision of this Court in State of Madhya Pradesh vs. Centre for Environment Protection Research and Development & Ors. (2020) SCC Online SC 687, wherein it was held that when a Statute or the Statutory Rules prescribes a penalty for any a....
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....ning the names of elected members was issued on 09.06.1980 under Section 73 of the Representation of the People Act, 1951. The elected members were notified that they could take oath as required by Article 188 at the Session of the Assembly summoned to meet on 27.06.1980. But in the meantime, election for filling up a vacancy in the Rajya Sabha was notified on 17.06.1980. Therefore, the proposal of the name of a candidate for election to the Rajya Sabha, made by an elected member who was yet to take oath under Article 188, was objected to. The objection was overruled and the nominated candidate won the election. Therefore, the question as stated above arose, before this Court in an Election Petition. 51. Article 188 reads as follows: - "188. Oath or affirmation by members. - Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule." 52. In view of the mandate of Article 188, it was argued before this Court in Pashupati Nath Sukul (supra)that before t....
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....he public or third persons and not for their own benefit, are generally regarded as valid and binding as if they were the acts of the officers de jure, articulated in Pulin Behari Das & Ors. vs. King Emperor (1912) 15 Cal.LJ 517, was invoked by this Court in Gokaraju Rangaraju vs. State of Andhra Pradesh (1981) 3 SCC 132 when a question arose as to the validity of the judgments pronounced by an Additional Session Judge whose appointment was declared by the Court to be invalid subsequently. This Court pointed out that the de facto doctrine is founded on good sense, sound policy and practical expedience and that it is aimed at the prevention of public and private mischief and the protection of public and private interest. As stated by this Court this doctrine avoids endless confusion and needless chaos. 56. Again, in Pushpadevi M. Jatia vs. M.L. Wadhawan, Additional Secretary, Government of India & ors. (1987) 3 SCC 367, this Court reiterated the de facto doctrine as one born of necessity and public policy to prevent needless confusion and endless mischief. This Court held that "where an office exists under the law, it matters not how the appointment of the incumbent is made, so far....