The Supreme court being the final court having onerous responsibility for settling disputes and putting quietus to the myriad of contentious issues and most of the times it has to go into the interpretation of words in the statutes, contractual clauses, agreements etc., its interpretation is having a binding effect across the legal forums and in a common parlance those interpretation are followed by the institutions, corporations and governments across the country.
Herein, the light has been thrown on two of such judgement’s wherein interpretation regarding the interplay of day, date and time has come into picture.
The latest being Pradeep Kumar sonthalia vs. Dhiraj prasad sahu & anr. in Civil Appeal no. 611 of 2020 and Civil Appeal no. 2159 of 2020 , In this an interesting question with far-reaching consequence arised for consideration, It was “Whether the vote cast by a Member of the Legislative Assembly in an election to the Rajya Sabha, in the forenoon on the date of election, would become invalid, consequent upon his disqualification, arising out of a conviction and sentence imposed by a Criminal Court, in the afternoon on the very same day? The brief facts of the case were as follows: –
i) By a 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 Bhartiya 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 2.30 P.M. He was sentenced to various periods of imprisonment for those offences, but all of them were to run concurrently. The maximum punishment was for the offence under Section 506/149 and the Court awarded RI for a period of two years;
(vi) Since the election to the Council of States is by a system of proportional representation by means of single transferable vote, the counting of votes began at 7.30 P.M on 23.03.2018. Out of the 80 votes cast, two were declared invalid by the Returning Officer. The remaining 78 votes, which were validly cast, were converted into points (at the rate of 100 points per vote) and Pradeep Kumar Sonthalia was declared to have secured 2599 value of votes, Samir Uraon was declared to have secured 2601value of votes and Dhiraj Prasad Sahu was declared to have secured 2600 value of votes. Thus, the election petitioner was declared defeated and the other two, declared duly elected;
(vii) That an objection was lodged at 11.20 P.M., requesting the Returning Officer to declare the vote cast by Shri Amit Kumar Mahto invalid, on the basis of the conviction and sentence imposed in the afternoon on the same day by the Criminal Court;
(viii) However, the Returning Officer went ahead and declared the results at 12.15 A.M. on 24.03.2018. Shri Samir Uraon and Shri Dhiraj Prasad Sahu were declared by the Returning Officer to be duly elected and they were also issued with a certificate in Form No. 24 in terms of Rule 85 of the Conduct of Election Rules, 1961;
(ix) Therefore, Pradeep Kumar Sonthalia, the defeated candidate filed an election petition in Election Petition No.01/2018, praying for a declaration that the Returning Officer has caused improper reception of the void vote of Shri Amit Kumar Mahto. He also prayed for setting aside the election of Shri Dheeraj Prasad Sahu with a consequential declaration that the petitioner was duly elected as a member of Rajya Sabha;
The court was poised with the interesting question to answer that 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 Section 8(3) of the Representation of the People Act, 1951, by virtue of his conviction and sentence by the Sessions Court in a criminal case, rendered at 2.30 P.M. on the very same date 23.03.2018.
The argument of the appellant in this case was that the event of conviction and sentencing that happened at 2.30 P.M. on 23.03.2018 can relate back to 00.01 A.M., that wherever the word “date” is used in a Statute, it should be understood to relate back to 00:01 a.m., court held that than in the event of voting by Shri. Amit Kumar Mahto which happened at 9.15 A.M. can also relate back to 00.01 A.M. Once both of them are deemed to relate back to the time of commencement of the date, the resulting conundrum cannot be resolved.
The court rejected the argument of the appellant and held that Amit Kumar mahto was not disqualified at the time of voting in the morning that the vote cast by Shri Amit Kumar Mahto at 9:15 a.m. on 23.03.2018 was rightly treated as a valid vote, went on to say that, to hold otherwise would result either in an expectation that the Returning Officer should have had foresight at 9:15 a.m. about the outcome of the criminal case rendered at 2.30 P.M. on the very same date 23.03.2018 in the afternoon.
Another interesting case having the interplay of interpretation of date and time was Union of India & Ors. vs. M/S G.S Chatha Rice Mills & Anr. Civil Appeal no. 3250 of 2020 in this case, a notification was issued by the Government of India under section 8A of the Customs Tariff Act 1975, introducing a tariff of enhanced customs duty of 200% on all goods originating in or exported from Pakistan, and this was done in wake of terrorist attack at Pulwama, Jammu and Kashmir on 14.02.2019, The notification of the same was uploaded on the e-gazette at 20:46:58 hours on 16.02.2019. The Government of India took a stand that the enhanced rate of duty was applicable even to those who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-gazette. The importers successfully challenged the claim of the customs authorities before the High court and the Union of India came up on appeal to the Supreme Court.
Customs authorities at the land customs station at the Attari border sought to enforce the enhanced rate of duty on importers who had already presented bills of entry for home consumption before the enhanced rate was notified in the e-Gazette. The customs authorities refused to release the goods which were assessed earlier and reassessed them by levying revised duty at 200% and IGST at 28%.
This was challenged before the Punjab and Haryana High Court a division bench of the high court allowed a batch of writ petitions. The high court held that since the importers, who had imported goods from Pakistan, had presented their bills of entry and completed the process of “self-assessment” before the notification enhancing the rate of duty to 200% was issued and uploaded, the enhanced rate of duty was not attracted.
The high court found that the bills of entry were presented on February 16, 2019, before the issuance of notification 5/2019. The filling of the bill of entry and the entry of the vehicle were fulfilled before the publication of notification 5/2019. The absence of customs’ clearance had no bearing on the rate applicable; the notification 5/2019 having been released after working hours, it would apply from the next day as held in the decision of the Supreme Court in Union of India v Param Industries Limited.
The Union of India contended before the Supreme Court that the e-Gazette notification would have effect from the expiry of the previous day. Thus though it was issued late in the evening on February 16, 2019, since the previous day, February 15, 2019 expired at midnight, the notification must be treated as born and alive from the first tick of time past the midnight of February 15, 2019.
A three-judge bench of the Supreme Court said, with the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance. Such notifications, akin to the exercise of delegated legislative power, cannot operate retrospectively, unless authorised by statute, it said that,
In the era of the electronic publication of gazette notifications and electronic filing of bills of entry, the revised rate of import duty under the Notification 5/2019 applies to bills of entry presented for home consumption after the notification was uploaded in the e-Gazette at 20:46:58 hours on February 16, 2019.
It held that , a rule framed by the delegate of the legislature does not have retrospective effect unless the statutory provision under which it is framed allows retrospectively either by the use of specific words to that effect or by necessary implication.
Thus through above two cases it makes an interesting study of how an interpretation of events occurred at various time of the day will have an effect and bearing on the stakes involved in the cases.
Rishesh Sikarwar is an advocate practising before the Supreme Court of India.