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2002 DIGILAW 1615 (ALL)

RAMA KANT v. DISTRICT JUDGE GHAZIPUR

2002-10-31

ASHOK BHUSHAN

body2002
ASHOK BHUSHAN, J. Heard Dr. R. G. Padia, Senior Advocate for the writ petitioner and Sri R. N. Rai learned Counsel appearing for election petitioners, Respondent Nos. 2 and 3. Counter and rejoinder affidavits have been exchanged. Both the parties have agreed that writ petition itself be decided. 2. By this writ petition the petitioner has prayed for quashing for the order dated 23rd May, 2002 passed by the District Judge, Ghazipur and well as the order dated 27th August, 2001 passed by the District Judge, Ghazipur. 3. Respondent Nos. 2 and 3 filed election petition No. 257 of 2001 under Section 27 (2) of Uttar Pradesh Kshetra Samitis and Zila Parishads Adhiniyam, 1961 challenging the declaration of election of petitioner as void and declaring the election petitioners as elected. Election was held for electing members for Zila Panchayat, Ghazipur for area Bhanwarkol. Election petitioners as well as other candidates contested the election. Rama Kant, the writ petitioner who was Respondent No. 1 in the election petition was declared elected as member in Zila Panchayat, Ghazipur which election was challenged. Alongwith the election petition an application was filed under Section 5 of Limitation Act praying for condonation of delay in filing the election petition supported by an affidavit. The District Judge vide order dated 27th August, 2001 allowed the application under Section 5 of Limitation Act and directed for issue of notice to the opposite parties fixing 12th October, 2001 for written statement and 19th October, 2001 for issues. The election petition was ex parte allowed and the election of the writ petitioner, Rama Kant was declared illegal by the order dated 23rd May, 2002. This writ petition has been filed challenging the order of District Judge condoning the delay in filing the election petition as well as allowing the election petition. This Court vide its order dated 21st June, 2002, after hearing both the parties, took the view that this petition could be disposed of on the short ground that election petition as filed was barred by time and the delay in filing the same could not have been condoned. The arguments of both the Counsel have been heard on the question of condonation of delay in filing the election petition. 4. The Counsel for the petitioner Dr. R. G. Padia, Senior Advocate submitted that provisions of Section 5 of Limitation Act are not applicable in the election petition. The arguments of both the Counsel have been heard on the question of condonation of delay in filing the election petition. 4. The Counsel for the petitioner Dr. R. G. Padia, Senior Advocate submitted that provisions of Section 5 of Limitation Act are not applicable in the election petition. He submitted that there is no dispute that election petition was filed beyond the period of limitation as prescribed under the relevant rules he submitted that Section 5 of the Limitation Act being not applicable the delay could not have been condoned nor petition could have been allowed. In support of his submission the Counsel for the petitioner placed reliance on AIR 1974 Supreme Court 480, Hukumdev Narain Yadav v. Lalit Narain Mishra; 1998 Allahabad Civil Journal 736; Ansar Ahmad v. SDO Kairana, Muzaffar Nagar and others ; AIR 1970 Mysore 166, Nagreddy v. Khandappa and others and AIR 1980, Patna 180 ; Ramnandan Rai v. The District Judge, Sitamarhi and others. 5. Counsel for the contesting respondents Sri R. N. Rai, refuting the submission of Counsel for the petitioner contended that Section 5 of the Limitation Act is applicable in the election petition and the delay has rightly been condoned by the District Judge. In support of his submission Counsel for the respondents placed reliance on a judgment of the Apex Court in 2002 (47) ALR 221, Shaik Saidullu @ Saidan v. Chukka Yesu Ratnam and others. 6. I have considered the submissions of both the parties and perused the record. The question which has arisen in the writ petition is as to whether provisions of Section 5 of the Limitation Act are applicable in the election petition filed by respondent Nos. 2 and 3 challenging the election of the writ petitioner. For considering the aforesaid submission it is appropriate to look into the relevant statutory provisions pertaining to election petition. Composition of Zila Panchayat is provided for in the provisions of Uttar Pradesh Kshetra Samitis and Zila Parishads Adhiniyam, 1961 (hereinafter referred as to 1961 Act ). Section 27 of the 1961 Act provides that if any dispute arises as to whether a particular person has been lawfully chosen as member of Zila Parishad, the dispute shall be referred in the manner prescribed by the State Government. Section 27 of 1961 Act is extracted below : "27. Section 27 of the 1961 Act provides that if any dispute arises as to whether a particular person has been lawfully chosen as member of Zila Parishad, the dispute shall be referred in the manner prescribed by the State Government. Section 27 of 1961 Act is extracted below : "27. Disputes as to membership or disqualification.- (1) If any dispute arises as to whether a particular person is a member of the Zila Parishad under clause (i), clause (iii) clause (vi) or clause (vii) of sub- section (1) of Section 18, the dispute shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding. (2) If a dispute arises as to whether a person - (a) has been lawfully chosen or co-opted a member of a Zila Parishad under Section 18, or (b) has ceased to remain eligible for being chosen or co-opted a member of the Zila Parishad for the purposes of Section 20, or (c) has become disqualified to the Adhyaksha or Upadhyaksha for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding. " 7. In exercise of power under Section 27 of 1961 Act rules have been framed, namely Uttar Pradesh Zila Panchayat (Settlement of Disputes Relating to Membership) Rules, 1994 (hereinafter referred to as 1994 Rules ). Rule 4 provides for manner of raising dispute. Rule 11 provides for procedure before the Judge. Rule 4 and Rule 11 of the 1994 Rules are extracted below : "manner of raising disputes under Section 27 (2) (a) and (b ).-If a dispute arises as to whether a person has been lawfully chosen under clause (b) of sub-section (1) of Section 18 the matter shall be referred by means of a written petition by any person who could legally be a candidate at such choosing to the Judge within thirty days of the date of choosing. (2) If a dispute arises as to whether a person has ceased to remain eligible for being chosen a member the matter shall in the manner as provided in sub-section (1) be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat. (2) If a dispute arises as to whether a person has ceased to remain eligible for being chosen a member the matter shall in the manner as provided in sub-section (1) be raised by any person whose name is registered as an elector in the Electoral roll for the territorial constituency of the concerned Zila Panchayat. (3) Every petition under sub-rule (1) or sub-rule (2) shall be presented in person by the petitioner and if there are more than one petitioners by any or all of them. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Procedure before the Judge.- (1) Except so far as provided by the Act or in these Rules, the procedure provided in Code of Civil Procedure, 1908 in regard to suits shall in so far as it is not inconsistent with the Act or any provisions of these rules and it can be made applicable, be followed in the hearing of the petitions : Provided that - (a) any two or more petitions to the membership of the same person may be heard together. (b) the Judge shall not be required to record the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case. (c) the Judge may at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to the incurred by any respondent. (d) for the purpose of deciding any issue the Judge shall only be found to order production of or to receive only so much evidence oral or documentary as he considers necessary. (e) any person aggrieved from the decision of the Judge may appeal for review to the Judge within15 days from the date of decision and the Judge may thereupon review the decision. (2) The provisions of the Indian Evidence Act, 1872 (Act No. 1 of 1872) shall subject to the provision of the Act and these rules be deemed to apply in all respects in the proceedings for the disposal of the petition. " From Rule 4 as quoted above, it is clear that limitation for filing election petition is 30 days from the date of chosen. " From Rule 4 as quoted above, it is clear that limitation for filing election petition is 30 days from the date of chosen. The provisions of 1961 Act did not lay down any other procedure or limitation for filing the petition, 1961 Act also does not provide or lay down as to whether the provisions of Limitation Act will be applicable or not. Rule 11 of 1994 Rules although provide for applicability of certain provisions provided in Code of Civil Procedure, 1908 and the applicability of Indian Evidence Act up to some extent but there is no reference in any of the provisions of the Rules or the Act regarding applicability of Limitation Act. The question as to whether the provision of Section 5 of Limitation Act is applicable or not has been engaging attention of the Apex Court and this Court from time to time. A three Judges Bench of Apex Court considered the provisions of Representation of People Act, 1951 and applicability of Limitation Act on the election petition in Hukumdevs case (supra ). The Apex Court considered the provisions of Section 29 (2) of the Limitation Act and held in paragraph 17 of the judgment which is as under : " (17) Though Section 29 (2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where Section 29 (2) has been made applicable to an election petition filed under Section 81 of the Act by virtue of which either Sections 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29 (2) would be attracted and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words expressly excluded would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. It is contended before us that the words expressly excluded would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon but what we have to see is whether the scheme of the special law that is in this case the Act and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference it would nonetheless be open to the Court to examine whether and to what extent the nature of the subject-matter and scheme of the special law exclude their operation. The provisions of Section 3 of the Limitation Act that a suit instituted appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117. It will be seen that Section 81 is not the only section mentioned in Section 86 and if the Limitation Act were to apply to an election petition under Section 81 it should equally apply to Sections 82 and 117 because under Section 86 the High Court cannot say that by an application of Section 5 of the Limitation Act, Section 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of Sections 82 and 117 of the Act or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act it cannot be said that they apply to Section 81. Again Section 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot isin applicable to an election petition. Similarly, sub-sections 7 to 24 are in terms inapplicable to the proceedings under the Act particularly in respect of the filing of election petitions and their trial. " 8. After considering several other decisions it was concluded by the apex Court in paragraph 25 that provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial. Paragraph 25 of the said judgment is quoted as below : " (25) For all these reasons we have come to the conclusion that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial and in this view it is unnecessary to consider whether there are any merits in the application for condonation of delay. " 9. The Apex Court again had occasion to consider the question of applicability of the Limitation Act on the recrimination notice under Section 97 of the Representation of People Act in AIR 1994 Supreme Court 512, A. B. Patil and others v. Siddharamaiah and others, and held that provisions of the Limitation Act are not applicable. It was held in paragraph 10 of the said judgment : " (10) This decision in our view practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition. The language of Section 97 makes the said fact abundantly clear. The relevant words are : "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. " The proviso to sub-section (1) applies the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non- compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of sub-section (1) of Section 86. " The proviso to sub-section (1) applies the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non- compliance with the requirement of Section 117 an election petition is liable to be dismissed by virtue of sub-section (1) of Section 86. Sub-section (2) of Section 97 further says that the "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. " We may also say that the proviso to sub-section (1) of Section 97 which requires such a notice to be given to the High Court within fourteen days of the "date fixed for the respondents to appear before the High Court to answer the claim or claims" (reading the definition of "commencement of trial" into it) has also a particular meaning and object behind it. The idea is that the recrimination notice if any should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 does not apply to the filing of an election petition it does not equally apply to the filing of the recrimination notice. " 10. A three Judges Bench against held in 2000 (1) LBESR 76 (SC) : 1999 (8) SCC 532 , Lachhman Das Arora v. Ganeshi Lal and others, that Limitation Act is not applicable to election petition filed under Representation of People Act. Paragraph 9 of the aforesaid judgment is quoted as below : " (9) The proviso to Section 10 makes the provisions of Section 10 inapplicable to cases where the Indian Limitation Act applies and since the Indian Limitation Act does not apply to election petitions filed under the Act, Section 10 of the General Clauses Act in terms would apply to the filing of election petitions also. According to Section 10 (supra) an act should be considered to have been done within the prescribed period, if it is done on the next day on which the Court or office is open. According to Section 10 (supra) an act should be considered to have been done within the prescribed period, if it is done on the next day on which the Court or office is open. The applicability of Section 10 (supra) would however depend upon the facts of each case and the manner in which the High Court transacts its business during the period of vacations. " 11. This Court in Ansar Ahmads case (supra), had occasion to consider the provisions of U. P. Panchayat Raj Act and U. P. Panchayat Raj (Settlement of Disputes Relating to Membership) Rules,1994 with regard to question of applicability of Section 5 of the Limitation Act in election petition filed under Section 12-C of U. P. Panchayat Raj Act. Submission was made before this Court that the law laid down while interpreting the provisions of Representation of People Act cannot be held applicable while deciding the question quo the election petition filed under U. P. Panchayat Raj Act. The aforesaid submission was repealed by this Court and this court after consider the various decisions took the view that Section 5 of Limitation Act cannot be attracted in election petition filed under the Panchayat Raj Act. This Court held in paragraphs 13 and 14 of the said judgment as under : " (13) A distinction has been sought to be made by the learned Counsel for the respondents to the extent that the said two decisions related to the matter concerning election dispute under Representation of Peoples Act which is Central Act, Central Law and not to local law. Therefore, according to them the said decision cannot be attracted to the present context. (14) Apart from the said decision referred to above in the case of H. N. Yadav v. State and others, AIR 1974 SC 480 , while considering the election petition under Representation of Peoples Act it was held that Section 5 of the Limitation Act does not apply to the election petition under Representation of Peoples Act. The said decision has also been sought to be explained by the learned Counsel for the respondents as the same is also decision on the Central law. Relying on the Rajasthan decision it is contended that Panchayat Raj Act being Local Law for virtue of Section 29 (2) of the Limitation Act, provisions of Section 424 are applicable. The said decision has also been sought to be explained by the learned Counsel for the respondents as the same is also decision on the Central law. Relying on the Rajasthan decision it is contended that Panchayat Raj Act being Local Law for virtue of Section 29 (2) of the Limitation Act, provisions of Section 424 are applicable. As I have already observed that the right to elect and right to be elected flows from the Statute. Therefore, the same has to be governed by the provisions contained in the Statute. Section 12-C itself confined the scope of questioning the election in very strict manner as indicated above there is little scope to fall back on any other law when rule is framed under Panchayat Raj Act prescribing time and manner for presenting election petition. It may also be noted that 1968 Calcutta decision had also proceeded on the basis of election under Panchayat Raj Act which stood overruled in Anwari Basayaraj (supra), quoted above. " The aforesaid judgment by this court in Ansar Ahmads case (supra), is fully attracted in the present case also. U. P. Panchayat Raj (Settlement of Disputes Relating to Membership) Rules, 1994 also prescribes period of limitation for filing an election petition as prescribed in the rules applicable in the present case. The judgments of other High Court cited by the Counsel for the petitioner also do support the submission raised by Counsel for the petitioner. 12. In support of his submission that Section 5 of the Limitation Act is fully attracted in the election petition filed under Section 27 of 1961 Act, reliance has been placed by Counsel for the respondents on the apex Court judgment in Shaik Saidulus case (supra ). Counsel for the respondents contended that in the aforesaid case before the Apex Court, the petition filed for setting aside the election of Mayor under the Hyderabad Municipal Corporation Act, 1955 was treated an application within meaning of Section 671 of Hyderabad Municipal Corporation Act, Section 671 of Hyderabad Municipal Corporation Act, 1955 appearing in the part of miscellaneous provisions under the aforesaid Act provided that in computing the period of limitation fixed for an appeal or application, referred to in the Act the provisions of Sections 5, 12 and 13 of the Limitation Act shall so far as may be apply. The election petition filed under the aforesaid Act was treated to be an application hence by virtue of provisions of Section 671, it was held by the Apex Court that Section 5 of the Limitation Act is attracted. Paragraph 4 of the judgment of the Apex Court in the aforesaid judgment is extracted below : " (4) There is no dispute that the elections of the mayor and the members of the corporations are governed by the provisions of the Act. Any person aggrieved has a right to challenge the election by way of an election petition under the Act. Section 71 of the Act provides : "election petition.- (1) No election held under this act shall be called in question except by an election petition which shall be presented in such manner as may be prescribed. (2) An election petition cooling in question any election may be presented on one or more of the grounds specified in clauses (i) and (ii) of Sections 79 and 80 to the election tribunal by any candidate at such election or any voter, within two months from but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and the dates of the election are different is the later of those two dates. " Even though the period of limitation for challenging the election petition under the Act is provided vide sub-section (2) of Section 71, yet the section or the chapter in which it appears does not stipulate as to the applicability or non-applicability of the provisions of the Limitation Act. However, Section 671 appearing in the part of miscellaneous provisions under the Act provides that in computing the period of limitation fixed for an appeal or application referred to in the Act the provisions of Sections 5, 12 and 13 of the Limitation Act shall so far as may be apply. Sub-section (2) of Section 671 provides that when no time is fixed by the act for the presentation of an appeal or application such appeal or application shall be presented within 30 days from the date of order is respect of or against which the appeal or application is presented. " 13. Sub-section (2) of Section 671 provides that when no time is fixed by the act for the presentation of an appeal or application such appeal or application shall be presented within 30 days from the date of order is respect of or against which the appeal or application is presented. " 13. The Apex Court in the aforesaid case of Shaik Saidulu (supra), on the basis of specific provisions of Section 671 of the Act held that Section 5 of the Limitation Act is applicable. It was held in paragraphs 10 and 11 of the aforesaid judgment by the Apex Court : " (10) We have no doubt in holding that the word "application" as used in Section 671 of the Act would include within its ambit an election petition wherein a voter or the candidate makes the prayer to the Court and seeks the redressal of his grievances regarding the conduct of the elections. Holding election petition not to be covered within the term application would amount to adopting a hyper technical approach which would defeat the very purpose of the Act and the provisions made therein for disputing the authenticity and the conduct of the election. To overcome the confusion regarding the definition between the application and the petition a new definition of an application was inserted in the Limitation Act, 1963 which defined it to include a petition. The object of the new definition is to provide a period of limitation for original applications interlocutory applications and petitions under special law to which the Act has been made applicable. (11) In our considered opinion the High Court was not justified in holding that the election petition was not an application within the meaning of Section 671 of the Act. Sub-section (2) of Section 71 of the Act specifically provides the period of limitation for which sub-section (1) of Section 671 of the Act would be applicable to attract the sub-section (2) of Section 71 thereby, applying the provisions of Section 5 of the Limitation Act to the election petitions filed under the Act. " 14. The observations made by the Apex Court in the above judgment clearly prove that the aforesaid judgment applying provisions of Section 5 of the Limitation Act was based on specific provisions of Section 671 of the Hyderabad Municipal Corporation Act, 1955. " 14. The observations made by the Apex Court in the above judgment clearly prove that the aforesaid judgment applying provisions of Section 5 of the Limitation Act was based on specific provisions of Section 671 of the Hyderabad Municipal Corporation Act, 1955. In 1961 Act there is no such provision akin to Section 671 as mentioned above nor 1994 Rules as referred above contain any such provision applying provisions of Section 5 of Limitation Act to any application or petition under 1961 Act or 1994 Rules. Thus the aforesaid judgment of the Apex Court in Shaik Saidulus case (supra), is not applicable on the present case nor helps the respondents in any manner. To contest an election or to challenge the election is not a common law right but is statutory right governed by relevant statutory provisions. The election has to be challenged in accordance with the procedure prescribed under the statutes and the Rules, 1994 Rules contain complete procedure for hearing of election petition. The apex Court in Hukumdevs case (supra), in paragraph 17 of the judgment as extracted above, has held that for construing words "expressly excluded" as contained under Section 29 (2) of Limitation Act what has to seen is whether the scheme of the special law and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. On the examination of provisions of 1961 Act as well as 1994 Rules as referred above, it is clear that the provisions of Limitation Act are necessarily excluded, hence the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. Apex Court in aforesaid paragraph had laid down in following words : ". . . . . . . . . . . . . . . . even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " 15. From the scheme of election petition under 1961 Act and 1994 Rules, it is clear that legislature never intended to apply the provisions of the Limitation Act. 16. In view of what has been said above, it is clear that Section 5 of the Limitation Act is not applicable to the petition filed under Section 27 (2) of 1961 Act and the District Judge while hearing the election petition committed error in condoning the delay in filing the election petition under Section 5 of the Limitation Act. Section 5 of the Limitation Act not being applicable to the election petition as held above, the order of District Judge allowing the delay condonation application cannot be sustained. The delay in filing the election petition having wrongly been condoned, the election petition being barred by time could not have been allowed. 17. In view of the above, both the orders dated 27th August, 2001 as well as 23rd May, 2002 cannot be sustained and are hereby quashed. 18. The writ petition is allowed. There will be no order as to cost. Petition allowed.