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2017 DIGILAW 1484 (RAJ)

BHANWARLAL v. RADHEY SHYAM

2017-07-05

ALOK SHARMA

body2017
JUDGMENT : Alok Sharma, J. Under challenge is the order dated 17-11-2016 passed by the Additional Senior Civil Judge Jhalawar dismissing the petitioner returned candidate's (hereinafter 'the RC') application seeking to determine the question of limitation in filing the election petition as a preliminary issue. The trial court took the issue of limitation as a preliminary issue and by the impugned order has held that the election petition was filed within limitation. Aggrieved the RC is before this court. 2. Relevant facts of the case are that election to the post of Sapranch of Gram Panchayat Kohdijhar were held and result thereof was declared on 24-1-2015. Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994 (hereinafter 'the Election Rules of 1994') provides that an election under the Rajasthan Panchayati Raj Act, 1994 and Rules thereunder including that of Sarpanch may be called in question by any candidate at such an election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared. 3. Section 10 of the Rajasthan General Clauses Act, 1955 provides thus:- "10. Commencement and termination of time.- In any Rajasthan law, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and, for the purpose of including the 1st in a series of days or any other period of time, to use the word "to". 4. This Section has been construed by this court in Mojiram Meena v. Mukesh Kumar Meena, SBCWP No. 4682 of 2017, decided on 25-4-2017, to exclude the day of declaration of result of an election for computation of the period of limitation. Resultantly 24- 1-2015, the day on which result of election was declared would be excluded while computing limitation of thirty days for filing of the election petition. 5. In the instant case result of the election for the post of Sarpanch was declared on 24-1-2015, the limitation for filing the election petition there against was thirty days. Reckoning for Section 10 of the Rajasthan General Clauses Act, 1955, the last date for filing the election petition was 23-2-2015. Admittedly the election petition was filed by the election petitioner on 24-2-2015 i.e. on the 31st day. Reckoning for Section 10 of the Rajasthan General Clauses Act, 1955, the last date for filing the election petition was 23-2-2015. Admittedly the election petition was filed by the election petitioner on 24-2-2015 i.e. on the 31st day. The trial court has however taken into consideration the factum of the election petitioner moving an application on 21-2-2015 under Rule 81(2) of the Election Rules of 1994 seeking permission for depositing the requisite sum of Rs. 500/- as security for the costs of the opposite party. Based on the filing of the application under Rule 81(2) of the Election Rules of 1994 on 21-2- 2105, the trial has held that steps for filing of the election petition having been taken before the expiry of limitation i.e. on 23-2-2015, the election petition even though filed on 24-2-2015, would have to be treated as within limitation. 6. Mr. Sanjay Mehrishi, counsel for the RC submitted that the view taken by the trial court is ex facie perverse. Nothing prevented the election petitioner from filing the election petition on 21-2-2015 alongwith the application under Rule 81(2) of the Election Rules of 1994 for depositing Rs. 500/- as security for the costs of the opposite party in the election petition. And more so on 23-2-2015 when the court has passed an order on the application under Rule 81(2) of the Election Rules of 1994. He submitted that Rule 80 of the Election Rules of 1994, clearly provides for filing an election petition within thirty days from the date of declaration of result, and the filing of the application under Rule 81(2) of the Election Rules of 1994 cannot be construed as filing the election petition itself while pleading the material facts in support of the allegations/grounds on which the election of the returned candidate is impugned is mandatory. It is an admitted fact that the election petitioner did not file election petition till 24-2-2015. Thus the election petition without anything, was evidently filed beyond the limitation of thirty days, from the date of declaration of result in issue i.e. on 24-1-2015. He submitted that consequently the patently illegal order of the trial court be set aside, the preliminary issue before the trial court be decided against the election petitioner, the election petition be dismissed. 7. Mr. Anshuman Saxena, appearing for the election petitioner has however supported the impugned order passed by the trial court. 8. He submitted that consequently the patently illegal order of the trial court be set aside, the preliminary issue before the trial court be decided against the election petitioner, the election petition be dismissed. 7. Mr. Anshuman Saxena, appearing for the election petitioner has however supported the impugned order passed by the trial court. 8. Heard counsel for the parties and perused the impugned order dated 17-11-2016 passed by the trial court. 9. It is not in dispute that the result of the election for the post of Sarpanch of village Kohdijhar, Panchayat Samiti Aklera, District Jhalawar was declared on 24-1-2015. It is also not in dispute that the limitation for filing the election petition under Rule 80 of the Election Rules of 1994 is thirty days from the date of declaration of the result. Section 10 of the General Clauses Act, 1955 would exclude the date of declaration of the election result for the purpose of computation of limitation. Even excluding the said date, the limitation of thirty days for filing the election petition expired on 23-2-2015. Admittedly the election petition was filed on 24-2-2015, subsequent to limitation having expired. I am of the considered view that the election petitioner moving an application under Rule 81(2) of the Election Rules of 1994 for depositing the sum of security for the costs of the opposite party in the election petition did not tantamount to filing of the election petition on that date as has been held by the trial court. An election petition requires pleading of material facts (Rule 83 of the Election Rules of 1994) and cannot be equated with an application under Rule 81(2) of the Election Rules of 1994. Nothing prevented the petitioner from filing election petition alongwith the application under Rule 81(2) of the Election Rules of 1994. Moreover nothing prevented him from so doing on 23-2-2015, the last date of limitation, when order on the application under Rule 81(2) of the Election Rules of 1994 was passed by the trial court. Besides equity is foreign to adjudication of election petitions which are to be adjudicated under the governing statutory law without regard to common law or even fundamental rights under the Constitution. 10. Consequently, the impugned order dated 17-11-2016 passed by the trial court holding that the election petition was filed within limitation is quashed and set aside. Besides equity is foreign to adjudication of election petitions which are to be adjudicated under the governing statutory law without regard to common law or even fundamental rights under the Constitution. 10. Consequently, the impugned order dated 17-11-2016 passed by the trial court holding that the election petition was filed within limitation is quashed and set aside. Issue No.2A before the trial court would therefore stands decided in favour of the returned candidate and against the election petitioner. The election petition resultantly would stand dismissed being beyond limitation. 11. The petition stands accordingly allowed.