1. The respondent no.6 has filed an application being G.A. No. 3 of 2025 for recalling of the order dated 19th December, 2024 and for allowing the respondent no. 6 to file written statement.

2. One Mr. Tarik Hasan has filed an application being G.A. No. 4 of 2025 for substitution in place of Returned Candidate, namely, Sk. Nurul Islam and to file written statement.

3. Originally, the petitioner, namely, Smt. Rekha Patra has filed an Election Petition being E.P. No. 3 of 2024 for declaring the returned candidate from the 18-Basirhat Parliamentary Constituency of District North 24 Parganas in the House of the People as void and to set aside.

4. In the Election Petition, the petitioner had made all together 16 respondents including Chief Election Commissioner and Returning Officer being the respondent nos. 15 and 16. The respondent no.1 is the returned candidate and the respondent no.2 was the candidate setup by the All India Secular Front, the respondent no.3 was the candidate set-up by the Communist Party of India (Marxist), the respondent nos. 4, 5, 6, 8, 10, 11 and 13 were independent candidates, the respondent no. 7 was set-up by the Bahujan Samaj Party, the respondent nos. 9, 12 and 14 were set-up by the Bharatheeya Jawan Kisan Party, Socialist Unity Centre of India (Communist) and Mulnibashi Party of India respectively.

5. The Notice of the Election Petition was served upon the respondent no.1 on 8th August, 2024. On 24th September, 2024, the respondent no.1 passed away. The respondent nos. 15 and 16 have entered appearance and filed their respective written statements. Other respondents inspite of service of notice of the Election Petition, have not entered appearance. During pendency of the case, the respondent nos. 15 and 16 have filed an application for deletion of their names from the case and accordingly by an order dated 13th August, 2025, the name of the respondent nos. 15 and 16 were deleted from the case.

6. By an order dated 13th August, 2025, this Court directed the petitioner for taking appropriate steps by publishing in the “Calcutta Gazette” in compliance of the provisions of Section 116 of the Representation of Peoples Act, 1951 read with Rule 41 of the Election Petition Rules, 1967 of the High Court at Calcutta. In compliance with the order, the petitioner has published Gazette on 8th September, 2025. On publication of Gazette, the respondent no. 6 and one Mr. Tarik Hasan, applicant herein have filed their respective applications being G.A. No. 3 of 2025 and G.A. No. 4 of 2025.

7. Mr. Bilwadal Bhattacharyya, Learned Senior Advocate representing the petitioner raised an objection and submits that the applications filed by the respondent no. 6 and Mr. Tarik Hasan, are barred by limitation. He submits that as per Section 116 of the Representation of the People Act, 1951 and the Rule 41 of the Election Petition Rules, 1967 of the High Court at Calcutta, provides that within 14 days from the date of publication, apply to substitute in place of the returned candidate but both applications have been filed after the period of 14 days. In support of his submissions, he has relied upon the judgment in the case of Election Commission of India Vs. Telangana Rastra Samithi and Another reported in (2011) 1 SCC 370 and submits that the Representative of the People Act, 1951, is a complete code for the conduct of elections by the Election Commission of India appointed under Article 324 of the Constitution of India which provides for superintendence. He further relied upon the judgment in the case of Anwari Basavaraj Patil and Others Vs. Siddaramaiah and Others reported in (1993) 1 SCC 636 and submitted that the applicability of Section 5 is excluded in the matter of filing of an election petition.

8. Mr. Bhattacharyya submits that writ of summons was duly served upon the respondent no.6 but the respondent no.6 has failed to appear in the proceeding and accordingly the Election Petition was placed as “undefended” against the respondent no. 6 and now the respondent no.6 intends to file written statement which is not permissible under law.

9. Mr. Bhattacharyya submits that the respondent no.6 claims recrimination but the respondent no. 6, is a party to the suit and chose not to appear and also did not come forward for cross-examine the petitioner when the suit was at the stage of trial.

10. Mr. Rajarshi Dutta, Learned Advocate representing the respondent no.6 submits that though the respondent no. 6 after receipt of notice of the election petition has not come forward to contest the same but after the publication of Official Gazette, a fresh cause of action arose and accordingly, the respondent no. 6 has filed the present application.

11. Mr. Dutta submits that the Official Gazette was not published in accordance with law as in the said publication nowhere it is mentioned that no other respondent is opposing the petition. He submits that by an order dated 13th August, 2025, this Court directed the petitioner to take appropriate steps by publishing in the Calcutta Gazette but the petitioner has not complied with the said order by publishing Gazette in accordance with Section 116 of the Representation of Peoples Act, 1951.

12. Mr. Dutta relied upon the order passed in EP No. 9 of 2021 dated 22nd February, 2023, in the case of Kalyan Chaubey Vs. Sadhan Pande and Ors. and submits that the Coordinate Bench of this Court held that the existing non-appearing respondent who can also respond to a notice under Section 116 of the Representation of Peoples Act, 1951.

13. Mr. Anirban Ray, Learned Senior Advocate representing Mr. Tarik Hasan, submits that it is mandatory on the part of the petitioner while publishing the Gazette under Section 116 of the Representation of People Act, 1951, it is to be mentioned that no other respondent is opposing the petition but in the publication made by the petitioner, it is not mentioned. In support of his submissions, he has relied upon the order passed in the case of Yashovardhan Sinha HUF & Anr. Vs. Satyatej Vyapaar Pvt. Ltd. in C.O. No. 4125 of 2023 dated 19th February, 2024 and submits that the law is settled that ordinary, when the expression “shall” is used, it is mandatory in nature, but even after the of expression “shall” if the statute is silent about the consequences of the non-compliance of such provision, it cannot be held that the provision is mandatory.

14. Mr. Ray further relied upon the judgment in the case of Union of India & Ors. Vs. Mahendra Singh passed in Civil Appeal No. 4807 of 2022 dated 25th July, 2022 and submits that where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law without deviating from the prescribed procedure.

15. Mr. Ray submits that in the election petition, Code of Civil Procedure, 1908, is applicable. The applicant is the voter of the said Parliamentary Constituency came to know from the Gazette about the pendency of the election petition and accordingly appointed an Advocate for taking steps and had filed the present application. He submits that the applicant has the personal knowledge that the petitioner at the time of election has adopted corrupt practice.

16. Mr. Ray submits that inspite of several efforts, the applicant has not been able to come across any Gazette notification made under Section 116 of the Representation of People Act, 1951. The applicant was not able to get election petition. Learned Advocate for the applicant made request to the Learned Advocate for the petitioner for supply of copy of election petition as the department was not accepting the application of the applicant without full cause title of the case but the same was not supplied and accordingly the Learned Advocate for the applicant mentioned the matter before this Court and this Court allowed the applicant to file application with short cause title, accordingly on 24th September, 2025, the applicant has filed the present application.

17. Mr. Ray relied upon the judgment in the case of State of Bihar and Others Vs. Bihar Rajya Bhumi Vikas Bank Samiti reported in (2018) 9 SCC 472 and submits that where the object of such a provision is only to expedite the hearing and not to scuttle the same. All rules of procedure are handmaids of justice and if, in advancing the cause of justice, it is made clear that such provision should be construed as directory.

18. Heard the Learned Counsel for the respective parties, perused the materials on record, it is admitted fact that both the applications have been filed after the period of 14 (fourteen) days prescribed under Section 116 of the Representation of People Act, 1951. Section 116 of the Representation of People Act, 1951, reads as follows:

                    “116. Abatement or substitution on death of respondent.— If before the conclusion of the trial of an election petition, the sole respondent dies or gives notice that he does not intend to oppose the petition or any of the respondents dies or gives such notice and there is no other respondent who is opposing the petition, [the High Court] shall cause notice of such event to be published in the Official Gazette, and thereupon any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue the proceedings upon such terms as [the High Court] may think fit.”

19. From the bare reading of the above provision, it is clear that the statue has prescribed a definite period, that is 14 days of such publication. The Gazette Notification was published on 8th September, 2025. As per Section 116 of the Representation of Peoples Act, 1951, “any person who might have been a petitioner may, within fourteen days of such publication, apply to be substituted in place of such respondent to oppose the petition, and shall be entitled to continue proceedings upon such terms as [the High Court] may think fit”. 14 (fourteen) days of such publication expired on 22nd September, 2025. The respondent no.6 as well as the applicant has filed the instant application on 24th September, 2025 that is on 16th day form the date of publication of the Gazette.

20. The question is, whether the time period of fourteen (14) days is directory or mandatory. To ascertain the same, it would be appropriate to see Section 2 of the Conduct of Election Rules, 1961, which reads as follows:

                    “2. Interpretation. (1) In these rules, unless the context otherwise requires,-

                    (a)"Act" means the Representative of the People Act, 1951 (43 of 1951);

                    (b)"ballot box" includes any box, bag or other receptacle used for the insertion of ballot paper by voters;

                    [(ba) "counterfoil" means the counterfoil attached to a ballot paper printed under the provisions of these rules;]

                    3* * * * *

                    (c) "election by assembly members" means an election to the Council of States by the elected members of the Legislative Assembly of a State by the members of the electoral college of a Union territory, or an election to the Legislative Council of a State by the members of the Legislative Assembly of that State;

                    (d) "elector", in relation to an election by assembly members, means any person entitled to vote at that election;

                    (e) "electoral roll", in relation to an election by assembly members, means the list maintained under section 152 by the returning officer for that election;

                    (f) "electoral roll number" of a person means

                    (i) the serial number of the entry in the electoral roll in respect of that person;

                    (ii) the serial number of the part of the electoral roll in which such entry occurs; and

                    (iii) the name of the constituency to which the electoral roll relates;

                    [(g) "Form" means a Form appended to these rules and in respect of any election in a State, includes a translation thereof in any of the languages used for official purposes of the State;]

                    [(gg) "marked copy of the electoral roll" means the copy of the electoral roll set apart for the purpose of marking the names of electors to whom ballot papers are issued at an election;]

                    (h) "polling station", in relation to an election by assembly members, means the place fixed under section 29 for taking the poll at that election;

                    (i)"presiding officer" includes-

                    (i) any polling officer performing any of the functions of a presiding officer under sub-section (2) or sub-section (3) of section 26; and

                    (ii) any returning officer while presiding over an election under sub-section (2) of section 29;

                    (j) "returning officer" includes any assistant returning officer performing any function he is authorised to perform under sub-section (2) of section 22;

                    (k) "section" means a section of the Act.

                    (2) For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if

                    (a) he has placed a mark on such instrument or other paper in the presence of the returning officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission, and

                    (b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person.

                    (3) Any requirement under these rules that a notification, order, declaration, notice or list issued or made by any authority shall be published in the Official Gazette shall, unless otherwise expressly provided in these rules, be construed as a requirement that it shall be published in the Gazette of India if it relates to an election to, or membership of, either House of Parliament or an electoral college, and in the Official Gazette of the State, if it relates to an election to, or membership of, the House or either House of the State Legislature.

                    (4) The General Clauses Act, 1897 (10 of 1897) shall apply for the interpretation of these rules as it applies for the interpretation of an Act of Parliament.”

21. There is no provision in the Representation of People Act, 1951 or in the Conduct of Election Rules, 1961, for providing extension of time for filing of different applications under the Act.

22. Section 86(4) and explanation of the Representative of People Act, 1951, therein reads as follows:

                    “86. Trial of election petitions.— (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 subsection 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.”

23. In the case State of U.P. Vs. Manbodhan Lal Srivastava reported in AIR 1957 SC 912, the Hon’ble Supreme Court held that whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision but also by considering its nature, its design and consequences which would follow from construing it one way or the other.

24. In the case of Rajsekhar Gogoi Vs. State of Assam and Others reported in AIR 2001 SC 2313, the Hon’ble Supreme Court held that when consequence of nullification on failure to comply with a prescribed requirement is provided by the statute itself, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory.

25. In the case of Haridwar Singh Vs. Bagun Sumbrui and Others reported in AIR 1972 SC 1242, the Hon’ble Supreme Court held that in statue conferring a power to be exercised on certain conditions, the conditions prescribed are normally held to be mandatory and the power inconsistent in those conditions is impliedly negative. It is further held that if an affirmative statute which is introduction of a new law directs a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way. However, when it comes to the statutes conferring private rights and benefits, which is the case in hand, it has been held that when certain requirements are prescribed by a statute as preliminary to the acquisition of a right conferred by the statute, such prescriptions are mandatory for acquisition of the right or benefit.

26. Taking into consideration of the Sections 116, 97 and sub-section 4 of Section 86 of the Representative of the People Act, 1951 and the judgments referred above, there can be no manner of doubt that even if no consequences have been provided for not acting within the stipulated period, the provision has to be treated as mandatory for the simple reason that it seeks to confer a particular benefit on a candidate by permitting him to join in the election petition as party. Since a positive benefit is intended to be conferred by the statue then the requirement of the statue cannot be done away with.

27. In the case of K. Venkateswara Rao and Another Vs. Bekkam Narasimha Reddi and Others reported in AIR 1969 SC 872, the Hon’ble Supreme Court held that:

                    “In our opinion however the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of People Act is a complete and self-contained code which does not admit of the introduction of the principles or provisions of law contained in the Indian Limitation Act.”

28. This Court finds that there is no specific consequences which have been prescribed for not acting within the time prescribed under the provisions of Section 116, 97 and Sub-Section 4 of Section 86, the provisions itself is to be treated as mandatory in nature as it seeks to confer a positive benefit on a candidate by permitting him to join as part. In such event, he can only act within the four corners of the provisions. That apart, it is also equally well settled law that when a statue requires a thing to be done in a particular manner, the same has to be done in that manner or not at all. In the absence of any provision conferring power on the Court to enlarge the time period prescribed in the statute, the Court is obviously denuded of its power to do so. It would be acting beyond the statutory provisions, which is not permissible.

29. The unreported judgement relied upon by the respondent no.6 in the case of Kalyan Chaubey (supra), is not applicable in the present case as in the said case, no issue was raised whether Limitation Act is applicable in the case of Election Petition.

30. Considering the above, this Court holds that the application filed by the respondent no.6 and the applicant is barred by limitation and Limitation Act is not applicable.

31. The respondent no.6 during argument also tried to make out a case of recrimination. Recrimination is provided under Section 97 of the Representative of the People Act, 1951, which reads as follows:

                    “97. Recrimination when seat claimed.— (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election:

                    Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of [commencement of the trial], given notice to [the High Court] of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively.

                    (2) Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by section 83 in the case of an election petition and shall be signed and verified in like manner.”

32. The election of the returned candidate can be challenged on any of the grounds mentioned in Section 100 of the said Act, 1951. A recrimination could, therefore, be filed by the returned candidate or any other party to the petition under Section 97. The requisite notice under Section 97 would be accompanied by the statement and particulars required by Section 83 in the case of an election petition and signed and verified in like manner. The notice would be, in effect, a counter petition presented by the returned candidate or any other party to the petition accompanied by the statement and particulars required by Section 83 in the case of an election petition and would also be supported by the deposit of security and further security referred in Section 117 and 118 of the said Act.

33. The purpose of a recrimination and the right to file a recrimination accrues to the return candidate or any other party to the petition the moment an election petition is presented containing a claim for a further declaration that the petitioner himself or any other candidate has been duly elected. The proviso of Section 97(1) merely enacts conditions for exercise of such right of recrimination and states that the returned candidate or such other party is not to be entitled to give such evidence unless he has, within fourteen (14) days from the date of commencement of trial, given notice to the Court of his intention to do so and has also given security and further security referred under Section 117 and 118 of the said Act.

34. In the case of Anwari Basavaraj Patil and Others (supra), the Hon’ble Supreme Court held that:

                    “6. According to the said definition, the notice of the recrimination should have been given in this case within fourteen days of November 4, 1991. Admittedly, it was submitted beyond the said period. Section 83 deals with “contents of petition”. According to sub-section (1), an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of all the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each of such practice and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. The proviso to sub-section (1) says that where a petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such practice and particulars therein. Sub-section (2) says that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. Section 117 requires the election petitioner to deposit in the High Court, at the time of presenting an election petition, a sum of Rs 2000 as security for the costs of the petition in accordance with the rules of the High Court. Section 118 says that no person shall be entitled to be joined as a respondent under subsection (4) of Section 86 unless he has given such security for costs as the High Court may direct. Section 86(1) declares 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”.

                    8. In H.N. Yadav v. L.N. Misra this Court held that the words “expressly excluded” occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representative of People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representative of People Act by virtue of Section 29(2) was stated in the following words:

                    “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.”

                    13. The Division Bench then proceeded to examine whether the applicability of Section 5 is excluded in the matter of filing of an election petition and came to the conclusion that it was so excluded. This aspect has already been dealt with hereinabove. So far as the decisions of the High Courts are concerned, we cannot agree with them insofar as the applicability of Section 5 to filing of an election petition and/or recrimination notice is concerned in view of the decision of this Court in H.N. Yadav.”

35. The respondent no.6 has not fulfilled the above conditions and filed an application after the period of fourteen (14) days from the date of the publication, thus the respondent no.6 cannot claim recrimination.

36. The respondent no. 6 and the applicant have also raised the issue that the publication of Official Gazette in terms of the order passed by this Court dated 13th August, 2025, is not in accordance with law that in the said Gazette there is no mentioning that “there is no other respondent who is opposing the petition”.

37. By an order dated 13th August, 2025, this Court passed the following order:

                    “28. As per Section 112 of the Act, 1951, the Election Petition shall abate only on the death of a sole petitioner or of the survivor of several petitioners. In view of the same after the death of the respondent no.1, question of abatement does not arise in this case. The petitioner has informed the death of the respondent no.1 by an affidavit after serving copy to the other respondents. None of the respondents have filed written statement nor any notice given that they do not intend to oppose the petition.

                    29. The elections and election disputes are matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity. The right to vote or stand as candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitation imposed by it.

                    30. The general rule is well settled that the statutory requirement of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won an election should not be lightly inferred with any petition seeking such interference must strictly confirm to the requirements of law.

                    31. The entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representative of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. The legal position is, therefore, well settled that election disputes are strictly statutory proceeding.

                    32. Considering the above, this Court finds that after the death of the respondent no.1 provisions of Section 116 of 1951 Act read with Rule 41 of 1967 Rules has not been complied with by way of publishing in the “Calcutta Gazette”.

                    33. The petitioner is directed to take appropriate steps by publishing in the “Calcutta Gazette” in compliance of the provisions of Section 116 of the Act of 1951 read with Rule 41 of 1967 Rules within a period of three weeks from date.”

Section 116 provides that “no other respondent who is opposing the petition, [the High Court] shall cause notice of such event to be published in the Official Gazatte”.

The publication of the notice reads as follows:

                    “In terms of provision of Section 116 of the Representative of the People Act, 1951, read with Rule 41 of the Election Petition Rules of the High Court at Calcutta, 1967 and pursuant to an order dated 13th August, 2025 of the Hon’ble High Court at Calcutta, passed by the Hon’ble Justice Krishna Rao, in GA No. 01 of 2025; GA No.02 of 2025; in EP No. 03 of 2024 [Rekha Patra v. S.K. Nurul Islam & Ors.], IT IS NOTFIED for general information that the petitioner has filed an Election Petition being EP No.03 of 2024 on 16th July, 2024 in respect of 18- Bashirhat Parliamentary Constituency in connection with Parliamentary General Election, 2024 and during the pendency of the said Election Petition and affidavit dated 13th December, 2024 was filed by the petitioner, in terms of Rule 39 of the Election Petition Rules, 1967, stating the fact that the respondent No.1 namely Sk. Nurul Islam expired on 24th September, 2024 and any person, who might have been a petitioner, may, within 14 (fourteen) days of the publication of this Notification, apply to be substituted in place of respondent No.1 to oppose the petition and shall be entitled to continue the proceedings upon such terms as [the Hon’ble High Court] may thinks fit.

                    The matter shall further be listed before the Hon’ble Justice Krishna Rao on the 25th day of September, 2025.”

38. On the basis of the said publication, the respondent no.6 and the applicant have filed their respective applications. Neither the respondent no. 6 nor the applicant has made any prayer in their application for setting aside or recalling of the publication in the Calcutta Gazette dated 8th September, 2025. No format is prescribed either Section 116 of the Representative of the People Act, 1951 or under the Rules for publication in the Calcutta Gazette. The respondent no.6 and the applicant have acted upon the said Gazette by filing of their respective applications with the prayer to allow them to continue with the proceeding. This Court did not find any substance in raising the issue that the publication is not made in accordance with law. Considering the above, this Court finds that the applications filed by the respondent no.6 and the applicant are barred by limitation, accordingly, the same is rejected.

39. G.A. No. 3 of 2025 and G.A. No. 4 of 2025 are accordingly dismissed.