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2020 DIGILAW 399 (ALL)

Akhilesh v. Additional District Judge

2020-02-06

SIDDHARTHA VARMA

body2020
JUDGMENT : 1. An election for electing a member of Zila Panchayat Ward/Sector No. 6, Vikas Khand Narayanpur, District -Varanasi was held on 17.10.2015. The result of that election was declared on 2.11.2015. The respondent no. 6 Rakesh who was aggrieved by the election of petitioner filed a writ petition being Writ -C No. 3466 of 2016 to challenge the election result dated 2.11.2015. On 27.1.2016, the writ petition was dismissed on the ground that an alternative remedy was available to the petitioner of that writ petitioner (respondent no. 6 in this writ petition) and that he could have availed the remedy of filing an Election Petition under Section 27 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. Thereafter, the respondent no. 6 filed an Election Petition being Election Petition No. 43 of 2016 on 30.1.2016. 2. This Election Petition, as was filed belatedly, was accompanied by an application to condone the delay in filing the election petition as it was filed beyond the limitation prescribed by Rule 4 of the U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994. Notices, it appears, were issued in the Election Petition and on 21.7.2016 after deeming sufficient notice on the petitioner, through publication, the application under Section 5 of the Limitation Act was allowed. As the petitioner here and the opposite party in the Election Petition was served by publication and as the notice, in fact, was not served on the petitioner, the proceedings in the Election Petition proceeded ex parte. 3. Upon knowledge being gained by the petitioner on 29.1.2018 about the Election Petition a written statement was filed by the petitioner Akhilesh. During the course of hearing, the petitioner Akhilesh who was a candidate and who had won the Election filed an application being Application No. 111C to recall the order dated 21.7.2016 by which the delay in filing the election petition had been condoned. This application was filed on 23.10.2019. The election petitioner (respondent no. 6 here) filed his objection and prayed that the application filed on 23.10.2019 i.e. application no. 111C be rejected. On 3.12.2019, the Election Tribunal i.e. the Court of the Additional District Judge/Special Judge, E.C. Act, Varanasi, rejected the application of the petitioner, hence the instant writ petition. 4. This application was filed on 23.10.2019. The election petitioner (respondent no. 6 here) filed his objection and prayed that the application filed on 23.10.2019 i.e. application no. 111C be rejected. On 3.12.2019, the Election Tribunal i.e. the Court of the Additional District Judge/Special Judge, E.C. Act, Varanasi, rejected the application of the petitioner, hence the instant writ petition. 4. Learned counsel for the petitioner relied upon Section 27 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, and upon Rules 3 and 4 of the U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994 and submitted that against the result of an election which was declared on 2.11.2015 as per Rule 4 of the U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994, an Election Petition could have been filed within a period of 30 days. Since the learned counsel for the petitioner took recourse to the provisions of Section 27 of the U.P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, and to Rules 3 and 4 of the U.P. Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994, the same are being reproduced here as under:- 27. Disputes as to membership or disqualification.— (1) if any dispute arises as to whether a particular person is a member of Zila Panchayat under clause (a) 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 a member of a Zila Panchayat under Section 18 or (b) has ceased to remain eligible for being chosen a member of the Zila Panchayat for the purposes of Section 20 or (c) has become disqualified to be 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. Rule 3. Manner of raising disputes under Section 27(1). (1) If any dispute arises as to whether a person is a member of the Zila Panchayat under clause (a) of subsection (1) of Section 18, the same may 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. (1) If any dispute arises as to whether a person is a member of the Zila Panchayat under clause (a) of subsection (1) of Section 18, the same may 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) The application shall specify the ground on which the dispute is raised and shall be presented to the District Magistrate by the person making the application and if there are more signatories to it by any or all of them. (3) The District Magistrate shall, as soon thereafter as may be, refer the application alongwith the entire records and his own comments to the State Government for decisions. (4) The State Government may, after such enquiry as it considers necessary and after affording a reasonable opportunity of hearing to the parties, pass such order as it considers just and proper. Rule 4. Manner of raising disputes under Section 27(2)(a) and (b).—(1) 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-rule (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. 5. Learned counsel for the petitioner submitted that when the Election Petition itself was not filed within the limitation provided then it should have been dismissed on the ground of limitation even if the question of limitation was not raised. 6. In this regard, learned counsel for the petitioner relied upon Section 3(1) of the Limitation Act, 1963, and, therefore, the same is being reproduced here as under:- S.3 : Bar of limitation. 6. In this regard, learned counsel for the petitioner relied upon Section 3(1) of the Limitation Act, 1963, and, therefore, the same is being reproduced here as under:- S.3 : Bar of limitation. (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. 7. Learned counsel for the petitioner submitted that a question of jurisdiction could be raised at any point of time during the continuance of a case and further submitted that limitation in a given case was a question of jurisdiction and if the petitioner raised the same even after some delay then that question had to be looked into and answered. Learned counsel submitted that question of limitation is a plea of law which covered the jurisdiction of a Court and could be raised at any stage. To emphasize this proposition of law, learned counsel relied upon 2015 (6) SCC 412 (Foreshore Co. operative Housing Society Limited v. Praveen D.Desai (Dead) thr. Lrs. and others). Since the learned counsel specifically relied upon paragraphs 49 to 54 they are being reproduced here as under :- “49. A Constitution Bench of five Judges of this Court in the case of Pandurang Dhondi Chougule vs. Maruti Hari Jadhav, 1966 SC 153, while dealing with the question of jurisdiction, observed that a plea of limitation or plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceeding. The Bench held :- “10. The provisions of Section 115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under Section 115, it is not competent to the High Court to correct errors of fact however gross they may, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. As clauses (a), (b) and (e) of Section 115 indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under Section 115.” 50. In the case of Manick Chandra Nandy vs. Debdas Nandy, (1986) 1 SCC 512 , this Court, while considering the nature and scope of High Court’s revisional jurisdiction in a case where a plea was raised that the application under Order IX Rule 13 was barred by limitation, held that a plea of limitation concerns the jurisdiction of the court which tries a proceeding for a finding on this plea in favour of the party raising it would oust the jurisdiction of the court. 51. In the case of National Thermal Power Corpn. Ltd. vs. Siemens Atkeingesellschaft, 2007 (4) SCC 451 , this Court considering the similar question under the Arbitration and Conciliation Act held as under:- “17. In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction. Even the dismissal of the claim as barred by limitation may in a sense touch on the jurisdiction of the court or tribunal. When a claim is dismissed on the ground of it being barred by limitation, it will be, in a sense, a case of the court or tribunal refusing to exercise jurisdiction to go into the merits of the claim. In Pandurang Dhoni Chougule v. Maruti Hari Jadhav this Court observed that: (AIR p. 155, para 10) “10......It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. In Pandurang Dhoni Chougule v. Maruti Hari Jadhav this Court observed that: (AIR p. 155, para 10) “10......It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of Section 115 of the Code.” 52. In the case of Official Trustee vs. Sachindra Nath Chatterjee, AIR 1969 SC 823 , a three Judges Bench of this Court while deciding the question of jurisdiction of the Court under the Trust Act observed:- “15. From the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties.” 53. In the case of ITW Signode India Ltd. vs. CCE, (2004) 3 SCC 48 , a similar question came before a three Judges Bench of this Court under the Central Excise Act, 1944, when this Court opined as under:- “69. The question of limitation involves a question of jurisdiction. The finding of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question is to be determined having regard to both fact and law involved therein. The Tribunal, in our opinion, committed a manifest error in not determining the said question, particularly, when in the absence of any finding of fact that such short-levy of excise duty related to any positive act on the part of the appellant by way of fraud, collusion, wilful misstatement or suppression of facts, the extended period of limitation could not have been invoked and in that view of the matter no show-cause notice in terms of Rule 10 could have been issued.” 54. In the case of Kamlesh Babu vs. Lajpat Rai Sharma, (2008) 12 SCC 577 , the matter came to this Court when the trial court dismissed the suit on issues other than the issue of limitation. The Bench held:- “23. The reasoning behind the said proposition is that certain questions relating to the jurisdiction of a court, including limitation, goes to the very root of the court’s jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. However, we are not required to elaborate on the said proposition, inasmuch as in the instant case such a plea had been raised and decided by the trial court but was not reversed by the first appellate court or the High Court while reversing the decision of the trial court on the issues framed in the suit. We, therefore, have no hesitation in setting aside the judgment and decree of the High Court and to remand the suit to the first appellate court to decide the limited question as to whether the suit was barred by limitation as found by the trial court. Needless to say, if the suit is found to be so barred, the appeal is to be dismissed. If the suit is not found to be time-barred, the decision of the first appellate court on the other issues shall not be disturbed.” 8. In this regard, learned counsel for the petitioner also relied upon a judgment reported in 2012 (4) SCC 307 ( Kanwar Singh Saini v. High Court of Delhi). He specifically relied upon paragraph 22 and, therefore, the same is being reproduced here as under:- “22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. (Vide United Commercial bank Ltd. v. Workmen, Nai Bahu v. Lala Ramnaraya, Natraj Studios(P) Ltd. v. Navrang Studios, Sardar hasan Siddiqui v Stat. A.R Antulay v. R.S. Nayak, Union of India v. Deoki Nandan Aggarwal, karnal Improvement Trust v. Parkash Wanti, U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., State of Gujarat v. Rajesh Kumar Chimanlal Barot, Kesar Singh v. Sadhu, Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and CCE v. Flock (India) (P) Ltd.” 9. Learned counsel for the petitioner, therefore, submitted that the judgment of the Court below which had stated that the decision on the point of limitation, wherein the delay in filing the Election Petition was condoned on 21.7.2016 could not have been questioned in the proceedings of the Election Petition was absolutely erroneous and, therefore, the impugned order dated 3.12.2019 be set aside. 10. Learned counsel appearing for the Election Petitioner (the respondent no. 6 here), however, submitted that the question of limitation could not have been raised after the lapse of almost 3 years and six months. Learned counsel for the respondent no. 6 relied upon Section 23 and stated that the Act provided a limitation of five years for the declaration of any candidate as incapable. Alongwith the written submissions which have been made a part of the record of the case, learned counsel submitted a certified copy of the order sheet of the case and stated that the question of limitation could not have been raised in the manner the petitioner had raised and, therefore, submitted that the order passed by the Election Tribunal was absolutely correct. 11. Having heard the learned counsel for the parties, I am of the view that an Election Petition could not have been filed beyond the Limitation provided. 11. Having heard the learned counsel for the parties, I am of the view that an Election Petition could not have been filed beyond the Limitation provided. This has also been held in the judgment reported in 2013 (2) AWC 1649 Smt. Sharda Devi vs. State of U.P. Further, I am of the view that even if the defence of limitation is not taken, under Section 3(1) of the of the Limitation Act the Court itself could have looked into the question of limitation and could have refused to proceed with the Election Petition. Still further, I am of the view that a question of limitation is a question of jurisdiction and could have been raised at any point of time while the case was being proceeded with. 12. Under such circumstances, the order dated 3.12.2019 by which the application no. 111C was rejected and the order dated 21.7.2016 by which the delay in filing the Election Petition was condoned both are being quashed. 13. Since the order dated 21.7.2016 is being set aside, the Election Petition being Election Petition No. 43 of 2016 cannot now be further proceeded with. 14. With the above observation, the writ petition stands allowed.