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2024 DIGILAW 2395 (ALL)

Sanjay Singh v. Abhay Pratap Singh

2024-11-22

NEERAJ TIWARI

body2024
JUDGMENT : Hon'ble Neeraj Tiwari, J.-Heard learned Sri Birendra Singh, learned counsel for the petitioner, Sri Prabhakar Awasthi, learned counsel for the respondent No. 1, Sri K.P. Singh, learned counsel for the respondent No. 3 and Sri S.K. Singh, learned Additional Chief Standing Counsel for the respondent Nos. 2, 4 and 5. 2. Present petition has been filed for setting aside the impugned order dated 29.5.2024 passed by learned Additional District Judge, Court No. 1, Fatehpur whereby application 7C2, under Section 5 and 14 of Limitation Act in being Misc. Case No. 70/74/2023 (Sanjay Singh v. Abhay Pratap Singh and others) has been rejected in Election Petition, under Section 14 of U.P. Kshettra Panchayat and Zila Panchayat. 3. Brief facts of the case are that the State Election Commission, Uttar Pradesh pursuant to notification dated 26.3.2021 issued information vide letter No. 726 dated 26.3.2021 for holding general elections in all the Gram Panchayat in District Fatehpur for the members of Zila Panchayat Village Panchayat and date for casting the vote was fixed as 2.5.2021, in which respondent No. 1 was elected as Member, Zila Panchayat, Fatehpur. Subsequently vide notification dated 15.6.2021 State Election Commission, Uttar Pradesh issued notification No. 520 dated 16.6.2021 for holding elections for the post of Chairman, Zila Panchayat, Fatehpur. As per the Schedule, date for holding the election was fixed on 3.7.2021. The result of general election for Chairman, Zila Panchayat, Fatehpur was declared on 3.7.2021 declaring the winning candidate and certificate dated 3.7.2021 was also issued. Petitioner has earlier preferred Public Interest Litigation (PIL) No. 1396 of 2023 before this Court for a writ, order or direction in the nature of mandamus cancelling the election of Member, Zila Panchayat, Fatehpur, so far as it relates to respondent No. 1. The said PIL was dismissed vide order dated 12.6.2023. Thereafter, petitioner has preferred election petition being Misc. Case No. 70/74 of 2023 for declaring the respondent No. 1 disqualified for the post of Member, Kshetra Panchayat and further for the post of Chairman, Zila Panchayat, Fatehpur. The said case was heard and ultimately dismissed on the ground of limitation, hence present petition. 4. Thereafter, petitioner has preferred election petition being Misc. Case No. 70/74 of 2023 for declaring the respondent No. 1 disqualified for the post of Member, Kshetra Panchayat and further for the post of Chairman, Zila Panchayat, Fatehpur. The said case was heard and ultimately dismissed on the ground of limitation, hence present petition. 4. Learned counsel for the petitioner submitted that respondent No. 1 has contested the election of Member of Zila Panchayat, Ward No. 36, Teni, Tehsil Khaga, District Fatehpur in the year 2021 and later on, he was also elected as Chairperson of Zila Panchayat, Fatehpur. Before contesting the election, respondent No. 1 had adopted Buddhism, but while filing nomination, he has shown himself as Kshatriya Hindu for getting the benefit of majority votes. He next submitted that law is settled that after conversion of religion, caste of a person is lost and he cannot get the benefit of his original cast. Election of respondent No. 1 was based on false caste certificate, therefore, petitioner has challenged the same by filing Public Interest Litigation (PIL) No. 1396 of 2023, which was dismissed vide order dated 12.6.2023 leaving it open for petitioner to pursue available remedy. At this stage, he has filed Election Petition No. 70/74 of 2023 under Section 14 of the U.P. Kshettra Panchayat and Zila Panchayat Act, 1961 (hereinafter, referred to as, 'Act, 1961') to disqualify the respondent No. 1 from the post of member Kshettra Panchayat, Fatehpur and further from the post of Chairperson of Zila Panchayat, Fatehpur on the ground of filing false affidavit in the election of Zila Panchayat, 2021. He next submitted that in the aforesaid election petition, respondent No. 1 has also filed objection. Application 7C2 filed alongwith the election petition was rejected vide impugned order dated 29.5.2024 with the finding that petitioner cannot get the benefit of Section 5 and 14 of the Limitation Act, 1963 (hereinafter, referred to as, 'Limitation Act') and the provision of Limitation Act shall not be applicable so far as election petition is concerned. He firmly submitted that as there is order of Division Bench of this Court passed in Public Interest Litigation(PIL) No. 1396 of 2023 that to file election petition, he is entitled for benefit of Section 5 and 14 of the Limitation Act. In light of such facts, impugned order dated 29.5.2024 is bad and liable to be set aside. He firmly submitted that as there is order of Division Bench of this Court passed in Public Interest Litigation(PIL) No. 1396 of 2023 that to file election petition, he is entitled for benefit of Section 5 and 14 of the Limitation Act. In light of such facts, impugned order dated 29.5.2024 is bad and liable to be set aside. In support of his contention, he placed reliance upon the judgment of Hon'ble Apex Court in Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others, (1964) 0 AIR(SC) 1027, Shaik Saidulu @ Saida v. Chukka Yesu Stnam and others, AIR 2002 SC 749 , Writ Petition (Civil) No. 63 of 2022 (Ashwini Kumar Upadhyay v. Union of India), Civil Appeal No. 6576 of 2022 (S. Rukmini Madegowda v. The State Election Commission and others), Civil Appeal No. 4628 of 2023 (Raheem Shah and another v. Govind Singh and others), SLP(Civil) No. 17665 of 2018 (Purni Devi and another v. Babu Ram and another), Writ C No. 6979 of 2024 (Arvind Singh and 4 others v. Union of India Thru. General Manager N.E.R. Gorakhpur), 5. Per contra, Sri Prabhakar Awasthi, learned counsel for the respondent No. 1 submitted that as petitioner was contractor of Zila Panchayat and there are several complaints against him before respondent No. 1, therefore, petitioner has filed Public Interest Litigation(PIL) No. 1396 of 2023, which was dismissed only leaving it open for the petitioner to seek available legal remedy. In fact, no specific order has been passed by the Court granting leave to petitioner to file election petition. He next submitted that election of Chairman, Zila Panchayat and members is governed by provisions of Act, 1961 and in exercise of power of Section 237 of the Act, 1961, Rules have been framed as The U.P. Kshettra Panchayats and Zila Panchayats (Election of Member) Rules, 1994 (hereinafter, referred to as, 'Rules, 199'), Rule 33 of Rules, 1994 provides time and manner for presenting petition and according to that, election petition has to be filed in person by the petitioner within 30 days from the date of declaration of the result. There is no provision in the Rules for applicability of Limitation Act. Therefore, if application is filed beyond the limitation provided under Rule 33 of Rules, 1994, same may be rejected on the ground of limitation. There is no provision in the Rules for applicability of Limitation Act. Therefore, if application is filed beyond the limitation provided under Rule 33 of Rules, 1994, same may be rejected on the ground of limitation. He also submitted that Rule 33 of Rules, 1994 is in pari materia with Section 81 of The Representation of People Act, 1951 (hereinafter, referred to as, 'Act, 1951'), in which it is provided that election petition may be filed within 45 days against the elected member of Parliament and Members of Legislative Assembly on the ground so mentioned in Section 100 of Act, 1951. He next submitted that such matter went up to Hon'ble Apex Court and the Court has held that Limitation Act would not be applicable and delay in filing the election petition cannot be condoned. In support of his contention, he placed reliance upon the judgment of this Court dated 5.12.2012 passed in Civil Misc. Writ Petition No. 56867 of 2012 (Smt. Sharda Devi v. State of U.P. through Secretary and others), Hukum Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 , Lachhman Das Arora v. Ganeshi Lal and others, (1999) 8 SCC 532 and Suman Devi v. Manisha Devi and others, (2018) 9 SCC 808 6. Sri S.K. Singh, learned Additional Chief Standing Counsel, appearing on behalf of respondent Nos. 2, 4 and 5 has also supported the argument advanced by Sri Prabhakar Awasthi, learned counsel for the respondent No. 1 and firmly submitted that election petition challenging the election of Adhyaksha, Zila Panchayat may be filed in accordance with Rule 33 of Rules, 1994, which does not have any provision for condonation of delay in filing the election petition. He also reiterated that while deciding the Public Interest Litigation (PIL) No. 1396 of 2023, Court has not given any liberty or permission to petitioner to file election petition, leaving it open to petitioner to seek alternative remedy without condoning the delay. He also placed reliance upon the judgment of Smt. Sharda (Supra) so relied by Sri Prabhakar Awasthi, learned counsel for the respondent No. 1. 7. He also placed reliance upon the judgment of Smt. Sharda (Supra) so relied by Sri Prabhakar Awasthi, learned counsel for the respondent No. 1. 7. Sri K.P. Singh, learned counsel for the respondent No. 3 has also supported the argument advanced by Sri Prabhakar Awasthi, learned counsel for the respondent No. 1 and also placed reliance upon the judgment of Smt. Sharda (Supra) so relied by Sri Prabhakar Awasthi, learned counsel for the respondent No. 1. 8. I have considered the submissions raised by learned counsel for the parties, perused the record as well as judgments relied upon. 9. Learned counsel for the petitioner has raised many issues, but the election petition was dismissed only on the ground of limitation, therefore, the Court is confined to decide the issue of limitation only. 10. Learned counsel for the petitioner seeking benefit of Section 5 and 14 of Limitation Act, 1963 on the ground of pendency of Public Interest Litigation (PIL) No. 1396 of 2023. His argument is that said PIL was dismissed vide order dated 12.6.2023 with liberty to petitioner to file election petition. I have perused the order dated 12.6.2023. PIL was dismissed leaving it open to the petitioner to avail remedy available in law and no liberty or concession has been granted in favour of petitioner enabling him to take benefit of Section 5 and 14 of Limitation Act, 1963. Therefore, pendency of PIL cannot be ground to avail the benefit of aforesaid Sections. 11. Learned counsel for the petitioner has placed reliance upon the judgment of Hon'ble Apex Court in the matter in Ashwini Kumar Upadhyay (Supra) and Ch. Subbarao (Supra) which is having no concern with condonation of delay, therefore, the same is having no relevance to the present controversy. He also placed reliance upon the judgment of Hon'ble Apex Court in Purni Devi (Supra) and Raheem Shah (Supra) arising out of filing of civil suit, which has nothing to do with the election petition and therefore, same is also having no relevance to the present controversy as in that case, applicability of Limitation Act was not disputed. He also placed reliance upon the judgment of Apex Court in S. Rukmini Madegowda (Supra) in which issue was non disclosure of certain facts, therefore, this judgment is also having no relevance to the present controversy. He also placed reliance upon the judgment of Apex Court in S. Rukmini Madegowda (Supra) in which issue was non disclosure of certain facts, therefore, this judgment is also having no relevance to the present controversy. He lastly placed reliance upon the judgment of Hon'ble Apex Court in the matter Shaik Saidulu @ Saida (Supra). In the said case, election tribunal itself was not constituted, therefore, Court has permitted to accept the petition even beyond limitation. He lastly placed reliance upon the judgment of this Court in Arvind Singh (Supra) arising out of dispute before the Railway Claims Tribunal. In the said case also, there is no dispute about the applicability of Limitation Act, therefore, this judgment would also not come in the rescue of petitioner. 12. Now coming to the argument advanced by learned counsel for the opposite parties. 13. Exercising the power conferred on State Government under Section 237 of the Act, 1961 read with Section 27(2)(c) and Section 264-B of the Act, 1961, the Rules 1994 have been framed. Chapter IV of the Rules 1994 deals with the dispute regarding elections of Adhyaksha and Upadhyaksha. Rule 33 of the Rule 1994 provides time and manner of presenting the election petitions. Relevant Rules of Rules, 1994 are being quoted hereinbelow: ''33. Time and manner of presenting petitions.-(1) An election petition calling in question the election of an Adhyaksha or Up-Adhyaksha may be presented to the Judge at any time within thirty days from the date of declaration of the result under Rule 13, Rule 28, as the case may be. (2) It shall be presented in person by the petitioner or if there are more than one petitioner, by any one or more of them. 34. Form, etc. of petition.-(1) An election petition shall specify the ground or grounds on which the election of the returned candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds. (2) The person whose election is questioned and where the petitioner claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition. 35. (2) The person whose election is questioned and where the petitioner claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition. 35. Relief that may be claimed by the petitioner.-(1) A petitioner may claim either of the following declarations.- (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. 36. Security.-(1) At the time of presenting an election petition the petitioner shall enclose with it a receipt showing that a sum of two hundred and fifty rupees has been deposited by him or on his behalf in a Government Treasury or in the State Bank of India as security for the costs of the petition. (2) There shall be paid on an election the Court-fee prescribed in the Court Fees Act, 1870, or if no such Court fee is prescribed in that Act, a fee of Rs. 125 in Court-fee stamps. 37. Recrimination when seat claimed.-When in 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. 38. 38. Procedure.-(1) Except so far as provided by the Act or in these rules, the procedure provided in the Civil Procedure Code, 1908, in regard to suits, shall, insofar as it is not inconsistent with the Act or any provisions of these rules and it can be made applicable, be allowed in the hearing of the election petitions: Provided that- (a) any two or more elections relating to the election of the same person may be heard together; (b) the Judge shall not be required to record or to have recorded 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 be incurred by any respondent; (d) for the purpose of deciding any issue the Judge shall be required to order production of or to receive only so much evidence, oral or documentary, as he considers necessary; (e) no appeal or revision shall lie on a question of fact or law against any decision or the Judge; (f) the Judge may review his decision on any point on an application being made within fifteen days from the date of the decision by any person considering himself aggrieved thereby; and (g) no witness or other person shall be required to state for whom he has voted at an election. (2) The provisions of the Indian Evidence Act, 1872 (Act No. 1 of 1872) shall be deemed to apply in all respects to the trial of an election petition. (3) Before the hearing of an election petition commences or before the final hearing takes place, the petition may be withdrawn by the petitioner or the petitioners, as the case may be, by making an application to the Judge requesting for the withdrawal of the petition and upon the making of such an application the petition shall stand withdrawn and no further action shall be taken for its trial. ...................... 40. Orders of the Judge.-(1) If the Judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition that his election was valid, he shall dismiss the petition as against such person and award costs at his discretion. ...................... 40. Orders of the Judge.-(1) If the Judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition that his election was valid, he shall dismiss the petition as against such person and award costs at his discretion. (2) If the Judge finds that the election of any person was invalid he shall either- (a) declare a casual vacancy to have been created; or (b) declare another candidate to have been duly elected and in either case may award costs at his discretion. ....................... 47. Appeal against the order of the Judge.-(1) An appeal shall lie from every order made by the Judge under Rule 40 to the High Court within thirty days from the date of the order: Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period. (2) Every person who prefers an appeal under sub-rule (1) shall enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees has been made by him either in a Government Treasury or in the State Bank of India in favour of the High Court as security for costs of the appeal. .............................. 49. Form, etc. of petition.-(1) A petition presented under Rule 48 shall specify the grounds on which the person is alleged to have become disqualified to be Adhyaksha or Up-Adhyaksha and shall contain a summary of the circumstances alleged to justify the dispute being raised on such grounds. (2) The Adhyaksha or the Up-Adhyaksha against whom the dispute has been raised shall be made as a respondent to the petition. 14. Rule 33 of Rules, 1994 provides for limitation of 30 days for filing of election petition questioning the election of Adhyaksha and Upadhyaksha of the Zila Panchayat and there is no provision for condonation of delay in the said rule. 15. Section 81 of the Act, 1951 is also relevant to the present controversy and the same is quoted hereinbelow: 81. 15. Section 81 of the Act, 1951 is also relevant to the present controversy and the same is quoted hereinbelow: 81. Presentation of petitions.-(1) An election petition calling in question any election may be presented on one or more of the grounds specified in 8 [sub-section (1)] of Section 100 and Section 101 to the 6 [High Court] by any candidate at such election or any elector 9 [within forty-five days 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 their election are different, the later of those two dates]. Explanation.-In this sub-section, ''elector'' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not. [(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.] 16. It is clear that Section 81 of the Act, 1951 provides 45 days for filing of election petition against the returned candidate and there is no provision under the said Act for condonation of delay or applicability of Limitation Act. 17. From the perusal of Rule 33 of the Rules, 1994 as well as Section 81(1) of the Act, 1951 it is apparently clear that both the provisions are pari materia to each other, therefore, interpretation made by the Courts of either of the provisions shall be applicable to another also. 18. The very same controversy came before this Court in the matter of Smt. Sharda (Supra) which pertains to election petition filed against the Adhyaksha of Zila Panchayat alongwith delay condonation application and the delay condonation application was rejected. The Court while considering several judgments of Hon'ble Apex Court occupying the filed has held that Limitation Act would not be applicable to election petition under Rule 33 of the Rules, 1994 for questioning the election of Adhyaksha. The Court while considering several judgments of Hon'ble Apex Court occupying the filed has held that Limitation Act would not be applicable to election petition under Rule 33 of the Rules, 1994 for questioning the election of Adhyaksha. Relevant paragraph of the aforesaid judgment is being quoted hereinbelow: ''It is, therefore, not possible to accept the contention of learned counsel for the petitioner that the provisions of the Limitation Act would be applicable to an election petition filed under Rule 33 of the 1994 Rules for questioning the election of the Adhyaksha. The impugned order dismissing the application filed by the petitioner under Sections 5 and 14 of the Limitation Act for condoning the delay in filing the election petition under Rule 33 of the Rules on the ground that the provisions of the Limitation Act are not applicable, therefore, does not suffer from any illegality. The writ petition is, accordingly, dismissed.'' 19. Applicability of Limitation Act was also considered by the Hon'ble Apex Court in the matter of Hukum Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 and the Court was of the opinion that in lack of provision, the Limitation Act would not be application in relation to filing of election petition. Relevant paragraph is being quoted hereinbelow: ''18. 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.'' 20. Apex Court in the matter of Lachhman Das Arora v. Ganeshi Lal and others, (1999) 8 SCC 532 , has again considered the applicability of Limitation Act while filing the election petition under Sections 100 of the Act, 1951 beyond the limitation provided under Section 81 of the Act, 1951. Relevant paragraph is being quoted hereinbelow: ''9. The proviso to Section 10 makes the provisions of Section 10 inapplicable to cases where the Indian Limitation Act applies and since Indian 5 Limitation Act does not apply to election petitions filed under the Act Section 10 of the General Clauses Act in term would apply to the filing of election petitions also. The proviso to Section 10 makes the provisions of Section 10 inapplicable to cases where the Indian Limitation Act applies and since Indian 5 Limitation Act does not apply to election petitions filed under the Act Section 10 of the General Clauses Act in term 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. 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.'' 21. The issue of applicability of Limitation Act was again decided by the Hon'ble Apex Court in the matter of Suman Devi v. Manisha Devi and others, (2018) 9 SCC 808 , where the election petition was filed beyond the limitation provided under Section 176 of the Haryana Panchayati Raj Act, 1994 and the Court has held that Haryana Panchayati Raj Act, 1994 is complete code for presentation of election petitions prescribing time period of 30 days for filing election petition from the date of declaration of the result and the said period cannot be extended. 22. The issue of applicability of Limitation Act in filing election petition under Section 100 of the Act, 1951 once again came up before the Hon'ble Apex Court in the matter of Maneka Sanjay Gandhi v. Rambhual Nishad and others, 2024:AHC-LKO:56237 and considering various judgments, the Court has taken the earlier view that Limitation Act, specially Section 5 has no applicability in election petition. Relevant paragraph is being quoted hereinbelow: ''16. From the aforesaid discussion it is apparent that the Limitation Act, 1963, especially Section 5 thereof, is not applicable to election petitions. In fact, the applicability appears to be specifically excluded in view of the provision of Section 86 (1) of the Act 1951 which makes it mandatory for the High Court/Election Judge to dismiss the election petition if it is not in conformity with the provision of Section 81 of the Act 1951.'' 23. In fact, the applicability appears to be specifically excluded in view of the provision of Section 86 (1) of the Act 1951 which makes it mandatory for the High Court/Election Judge to dismiss the election petition if it is not in conformity with the provision of Section 81 of the Act 1951.'' 23. After having consideration of provisions of law quoted hereinabove as well as judgments relied upon, this Court is of the firm view that in case of filing of election petition, applicaton of limitation Act shall be governed by provisions of Rules under which election petition has been filed. Either Act, 1951 and 1961 or Rules, 1994 is not having any provision for filing of limitation application for condonation of delay, therefore, any election petition filed beyond the limitation prescribed under Rules or Act cannot be accepted. Further, in case without provision of law, any application for condonation of delay alongwith election petition is filed, same is bad in law and liable to be rejected. 24. Now coming to the present case. Undisputedly, election petition has been filed under the provisions of Act, 1961 and Rules, 1994 framed thereunder. Rules, 1994 is a complete code and Chapter IV absolutely deals with the provision of filing of election petition under Rule 33, which provides 30 days for filing of election petition from the date of declaration of result and any other rules under the Rules, 1994 did not provide any remedy for delay in filing the election petition. Therefore, any election petition filed beyond 30 days even alongwith delay condonation application, cannot be entertained, bad in law and is liable to be rejected. 25. Therefore, under such facts and circumstances of the case as well as law laid down by the Courts, I found no infirmly or illegality in the impugned order. 26. Accordingly, petition lacks merit and is dismissed. 25. No order as to costs.