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2009 DIGILAW 3614 (ALL)

SUNAINA SINGH v. RAMESH CHANDRA

2009-11-30

DILIP GUPTA

body2009
JUDGMENT Hon’ble Dilip Gupta, J.—The petitioner, who had been declared elected as a Pradhan under the provisions of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the ‘Act’), has sought the quashing of the order dated 18th August, 2009 passed by the Revisional Authority by which the order dated 21st July, 2008 passed by the Prescribed Authority dismissing the election petition filed by respondent No. 1 under Section 12-C of the Act was set aside and the Revision was allowed. 2. The petitioner was declared elected as Pradhan on 28th August, 2005. Respondent No. 1 challenged the election of the petitioner by filing Writ Petition No. 73040 of 2005 which was dismissed by this Court by the judgment and order dated 29th November, 2005 and the operative portion is reproduced below : “In the light of the aforementioned provisions present writ petition is not maintainable. Remedy of petitioner lies by filing election petition before Prescribed Authority under Section 12 C of the U.P. Panchayat Raj Act, 1947. In case any election petition is filed then endeavour shall be be made by Prescribed Authority to conclude the same preferably within a period of one year subject to cooperation being extended by the parties without granting any unnecessary adjournment. With the above direction, present writ petition is dismissed.” 3. Respondent No. 1 thereafter filed election petition on 22nd December, 2005. An objection was raised by the petitioner that the election petition should be dismissed as it was filed beyond the period of limitation prescribed under Rule 3 of the U.P. Panchayat Raj (Settlement of Election Dispute) Rules, 1994 (hereinafter referred to as the ‘Rules’). The Prescribed Authority on 15th November, 2007 passed an order for recounting of the ballet papers. This order was challenged by the petitioner by filing Writ Petition No. 57173 of 2007 which was allowed by the judgment and order dated 21st November, 2007 and the operative portion is quoted below : “The order of the Prescribed Authority is, therefore, set aside. The Prescribed Authority shall decide the matter and will consider the objections of the petitioner including the question of limitation as well as all other contentions which may be available to the parties under the law. The writ petition is allowed. The order dated 15.11.2007 passed by the Prescribed Authority is quashed.” 4. The Prescribed Authority shall decide the matter and will consider the objections of the petitioner including the question of limitation as well as all other contentions which may be available to the parties under the law. The writ petition is allowed. The order dated 15.11.2007 passed by the Prescribed Authority is quashed.” 4. The Prescribed Authority then by the order dated 21st July, 2008 dismissed the election petition both on the ground of limitation as well as on merits. Respondent No. 1 thereafter filed Revision which has been allowed by the learned District Judge, Mau by the order dated 18th August, 2009 holding that the Prescribed Authority dismissed the election petition only on the ground of limitation but did not frame issues and decide them. The order dated 21st July, 2008 passed by the Prescribed Authority was, accordingly, set aside and the matter was remanded to the Prescribed Authority to decide the matter in accordance with the judgment and order dated 21st November, 2007 passed in Writ Petition No. 57173 of 2007. 5. It is this order dated 18th August, 2009 that has been impugned in the present petition. 6. Sri M.D.Singh Shekhar, learned Senior Counsel appearing for the petitioner submitted that under Rule 3 of the Rules the period of limitation prescribed for filing an election petition under Section 12-C of the Act is 90 days and as the election petition was filed beyond the period of 90 days, the Prescribed Authority was justified in dismissing the election petition on the ground of limitation. He further submitted that the Prescribed Authority had no jurisdiction to condone the delay in filing the election petition and in support of his contention he has placed reliance upon the decision of this Court in Ansar Ahmad v. Sub-Divisional Officer, Kairana and others, 1998 (3) AWC 1807. He, therefore, submitted that the Revisional Authority committed an illegality in setting aside the order passed by the Prescribed Authority. 7. Sri Rajeshwar Tiwari, learned counsel appearing for the respondent No. 1, however, submitted that the order passed by the Revisional Authority does not suffer from any infirmity. He, therefore, submitted that the Revisional Authority committed an illegality in setting aside the order passed by the Prescribed Authority. 7. Sri Rajeshwar Tiwari, learned counsel appearing for the respondent No. 1, however, submitted that the order passed by the Revisional Authority does not suffer from any infirmity. According to him, the period of limitation for filing the election petition will start to run from the date the writ petition filed by respondent No. 1 was dismissed by this Court on 29th November, 2005 and as the election petition was filed within 90 days from this date, the Prescribed Authority was not justified in dismissing the election petition on the ground of limitation. 8. I have carefully considered the submissions advanced by learned counsel for the parties. 9. Article 243-O of the Constitution deals with bar to interference by Courts in election matters and the same is as follows : “243-O. Bar to interference by Courts in election matters.—Notwithstanding anything in this Constitution— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats of such constituencies made or purporting to be made under Article 243-K shall not be called in question in any Court. (b) no election to any Panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” 10. Section 12-C of the Act deals with application for questioning the elections and the relevant portion of Section 12-C(1) is as follows : “Section 12C : Application for questioning the elections.—(1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed.” 11. Rule 3 of the Rules which provides for the time period and the manner is as follows : Election Petition.—(1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Division Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground. Provided that no such application shall be entertained unless it is accompanied by a treasury challan to show that the amount of rupees fifty has been deposited in the personal Ledger Account of the Gram Panchayat concerned as security. (2) The person whose election is questioned and where the petition claims that the petitioner or any other candidate shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application. (3) Every respondent may give evidence to prove that any person in respect of whom a claim is made, that such person be declared elected, should not be declared so elected on the same ground or grounds on which his election could have been questioned, if he had been elected.” 12. A learned Judge of this Court in Ansar Ahmad (supra) interpreted the provisions of Section 12-C of the Act and Rule 3 of the Rules and observed as follows : “Section 12C of Panchayat Raj Act provides for disputing election only in accordance with the provisions contained in the said Section according to the prescribed manner. Section 12C provides that no election under the said Act can be “called” in question except by application presented to such authority within such time and in such manner, as may be prescribed on the ground mentioned therein, which has been explained in various sub-sections of the said Section. Thus, it shows that the scope of the disputed election has been subject to the limitation provided in Section 12C of the Act. It clearly indicates that the manner and time as prescribed are mandatory. The same cannot be decided otherwise than what is prescribed with regard to the time and manner of presenting the election petition. Thus, it shows that the scope of the disputed election has been subject to the limitation provided in Section 12C of the Act. It clearly indicates that the manner and time as prescribed are mandatory. The same cannot be decided otherwise than what is prescribed with regard to the time and manner of presenting the election petition. When section itself clearly indicates expressly that such a dispute is to be presented in such a manner and within such time as may be prescribed, there is no scope to attract anything foreign to what has been prescribed. Unless it is specifically prescribed, we cannot take the aid of any other provision, as it appears from the clear intention expressed in the section itself. The prescription as provided in Section 12C is prescribed through enactment of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994. The said Rule is Rule 3 provides that election petition under Section 12C has to be “presented before the Sub-Divisional Officer within whose jurisdiction concerned Gram Panchayat lies, within 90 days after the date of which the result of election questioned, is announced.......” Rule 3 limits time of presentation of the election dispute to 90 days from the commencement of result of the election. Thus, we see that authority has been prescribed and time within which it has to be presented has also been prescribed. The manner has also been prescribed with which I am not concerned. Manner of presentation as provided in Rule 3 does not provide for any relaxation or extension of time.” 13. The learned Judge then in view of the decisions of the Supreme Court in Hukum Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 , and the decision of the Patna High Court in Ramanandan Rai v. The District Judge, Sitamarhi and others, AIR 1980 Patna 180, observed as follows : “Thus, for all the reasons, it is held that Section 5 of the Limitation Act cannot be attracted and Section 5 is not available for the purposes of condonation of delay in entertaining election petition filed beyond the period of limitation." (emphasis supplied) 14. In view of the aforesaid decision, it has to be held that Section 5 of the Limitation Act is not available for the purposes of condoning the delay in filing the election petition under Section 12-C of the Act. 15. In view of the aforesaid decision, it has to be held that Section 5 of the Limitation Act is not available for the purposes of condoning the delay in filing the election petition under Section 12-C of the Act. 15. In this view of the matter, the Prescribed Authority committed no infirmity in dismissing the election petition on the ground that it was filed beyond the period of 90 days prescribed under Rule 3 of the Rules. 16. The contention of learned counsel for the respondents that since the petitioner had first filed a writ petition in this Court which was dismissed on 29th November, 2005, the period of limitation would start to run from 29th November, 2005 has merely to be stated to be rejected. The period of filing the election petition was not extended by this Court in the said judgment and order dated 29th November, 2005. It needs to be mentioned that the respondent did not seek the benefit of Section 14 of the Limitation Act either before the Prescribed Authority, the Revisional Court or this Court. 17. Learned counsel for the respondents further submitted that this Court should not interfere with the impugned order as the Revisional Court has merely asked the Prescribed Authority to decide the election petition on merits also in view of the judgment and order dated 21st November, 2007 by this Court in Writ Petition No. 57173 of 2007. This contention cannot also be accepted. This Court in the said judgment had observed that the Prescribed Authority shall decide the matter and will consider the objections of the petitioner including the question of limitation as well as other contentions which may be available to the parties under the Rules. The question of deciding the other issues will arise only if the question of limitation is decided in favour of the election petitioner. In the instant case, the Prescribed Authority decided the question of limitation against the election petitioner and held that the election petition was barred by time. In such a situation, examination of the other issues is not required to be done at all. 18. Thus, for all the reasons stated above, the impugned order dated 18th August, 2009 passed by the Revisional Court cannot be sustained and is set aside. 19. The writ petition succeeds and is allowed. ————