Bharat Singh vs Sri Ajay and Others

Prakash Krishna, J.—This is an appeal under Section 74 of the U.P. Municipal Corporations Adhiniyam, 1959 against the judgment and order dated 7th of August, 2007 passed in Election Petition No.1 of 2007, declaring the election of the appellant as Corporator (Sabhasad) from ward No.25, Balaganj of Lucknow Nagar Nigam as void.

The only point motted in the present appeal is whether the Election Petition No.1 of 2002, which was apparently barred by time, was rightly entertained and allowed by the Court below.

The facts of the case may be noticed in brief. Ajay (hereinafter called as petitioner) was one of the candidates for the seat of Corporator (Sabhasad) from ward No.25, Balaganj of Lucknow Nagar Nigam in the general election, 2006. In the said election, Bharat Singh, the appellant herein was also a candidate. He was declared successful in the said election which was held on 31.10.2006 and the result was declared on 7th of November, 2006.

Being aggrieved by the result declaring the present appellant as a successful candidate in the said election, a writ petition No.7221 (M/B) of 2006 by the petitioner was preferred before the Lucknow Bench of this Court. In the said writ petition besides the quashing the result of the election, a further relief restraining the opposite parties therein from giving effect to the declaration of result was also sought for. The writ petition was filed inter alia on the ground that Bharat Singh, the appellant was shown to have obtained 1458 votes. While the petitioner, the nearest rival had secured 887 votes and 1461 votes were cancelled or rejected. It was also pleaded that more than 1200 votes were rejected due to the lack of signatures of the Presiding Officer on the ballot papers. It was contended by the petitioner (Ajay) that in view of the irregularities committed by the officials at the election, the writ is the appropriate remedy as considerable number of votes were declared invalid due to the fault of the Presiding Officer or the Officers conducting the election. The said writ petition, on contest, was dismissed by the judgment and order dated 12th of January, 2007 on the ground that such a writ petition is not an appropriate remedy. However, it was provided that it shall be open to the petitioner to file Election Petition as provided for under the relevant Statute, before the Election Judge. On the question of limitation the writ court expressed that the delay, if any, may be condoned as the filing of the writ petition was illadvised. While doing so this Court provided that if the Election Petition is presented within a week in that event the Election Judge shall condone the delay and proceed in accordance with law. Armed with the said judgment of this Court, the Election Petition No.1 of 2007 was preferred, which came up for consideration before the Additional District Judge, Court No.2, Lucknow. The said Election Petition has been allowed by the judgment and order dated 7th of August, 2007 which is under challenge in the present appeal. The election of successful candidate i.e. the appellant has been declared void and has been set aside with the direction to the State Election Commissioner to hold fresh election within three months from the date of the order. This Court while admitting the appeal, on the stay application stayed the operation and enforcement of the judgment and order dated 7th of August, 2007 passed on the Election Petition.

The only point urged by the learned counsel for the appellant is that the Election Petition being barred by time was wrongly entertained and allowed by the Court below. The learned counsel for the petitioner, on the other hand, submits that in view of the judgment and order of the Division Bench of this Court passed on the writ petition No.7221 of 2006, referred to above, the Election Judge was bound to entertain and decide the election petition by condoning the delay. In other words, the Election Judge has not committed any mistake in passing the judgment and order which is under challenge in appeal. The learned counsel for the petitioner further submits that no allegation was made in the Election Petition against the present appellant and the allegations in the Election Petition were confined to the irregularities committed by Election Officer or the other officers, the appellant could have no grievance at all with regard to the order under appeal.

Considered the respective submissions of the learned counsel for the parties.

Certain facts which are not in dispute may be noted in chronological order to appreciate the controversy involved herein. Election was held on 31st of October, 2006 and its result was declared on 7th of November, 2006. The writ petition No.7221 of 2006 challenging the declaration of the result was filed on 12th of November, 2006 which was ultimately dismissed on the ground of availability of alternative remedy by way of Election Petition by the judgment and order dated 12.1.2007. The operative portion of the judgment delivered in the writ petition being subject mater of different interpretations by the counsel is reproduced below, for the sake of convenience:

�In view of the sequence of events referred to above, the justice demand that even if the election petition has become time barred, the delay shall not be allowed to occasion a failure of justice especially under the circumstances when the remedy was availed by the petitioner before this Court. Accordingly, if the petition is presented within a week in that event the Election Judge shall condone the delay and will proceed in accordance with law. With these observations, the writ petition is disposed of finally.�

The learned counsel for the petitioner informed that certified copy of the said judgment was applied for on 16th of January, 2007, which was received by the petitioner on 17th of January, 2007. Thereafter, the counsel who was conducting the writ petition declined to draft the Election Petition and the petitioner, therefore, engaged another counsel, who filed the Election Petition on Monday i.e. 22nd of January, 2007.

Having noticed the relevant dates, we may at this place refer to the relevant statutory provisions. Sections 62 and 66 of the said Adhiniyam, 1959 being relevant, are reproduced below:

�62. Questioning of election of [(Omitted by U.P. Act 12 of 1994 (w.e.f. 30 May, 1994) Corporator. (Subs, By U.P. Act 12 of 1997)] [(1) The election of any person as Corporator may be questioned by any unsuccessful candidate at the election or by any person whose nomination paper was rejected at the election, or by any elector of the ward concerned.]

(2) The petition may be presented on any one or more of the grounds mentioned in Section 71.

(3) The election of any person as (Omitted by U.P. Act 12 of 1977) Corporator shall not be questioned on the ground that the name of any person qualified to vote, has been omitted from, or the name of any person not qualified to vote, has been inserted in the electoral roll or rolls.

[(4) The petition shall be presented to the District Judge exercising jurisdiction in the City within 30 days of the declaration of result of the election. (Subs. By U.P. Act 12 of 1977)]

xx xx xx xx

xx xx xx xx

Petition when to be dismissed If an election petition has not been presented within the time allowed by this Act or it does not comply with any provisions made under Section 79 relating to deposit of security or the necessary courtfee payable thereon is not furnished within the time allowed therefor it shall forthwith be rejected by the District Judge.�

A bare perusal of the aforesaid sections would show that a period of limitation of 30 days for filing the Election Petition has been provided for from the date of declaration of result. In the case on hand, the result was declared on 7th of November, 2006 and as such the Election Petition could have been filed within 30 days therefrom. However, in the present case, as noticed above, the Election Petition was filed on 22nd of January, 2007. The learned counsel for the appellant submits that in view of the authoritative pronouncement of the Apex Court in the case of Hukumdev Narain Yadav v. Lalit Narian Mishra: AIR 1974 SC 480, the provisions of Section 5 of the Limitation Act do not govern the filing of Election Petition or their trial. In this view of the matter, the Election Petition giving rise to the present appeal was clearly barred by time, submits the learned counsel for the appellant. Elaborating the argument, he further submits that Section 66 of the U.P. Municipal Corporations Adhiniyam, 1959 further buttresses or fortifies the above stand. The said provision casts a mandatory duty on the Election Judge to dismiss an Election petition if the same has been filed beyond the prescribed period of limitation. The learned counsel appearing for the contesting petitioner (respondent No.1) submits only this much that the law laid down in the case of Hukumdev Narain Yadav (supra) is not applicable in as much as the said promouncement is confined to the Election Petitions filed under the provisions of Representation of People Act.

In the alternative, he submits that the delay stands condoned by the judgment dated 12th of November, 2006 of this Court delivered in the writ petition referred to above, the plea of limitation is no longer open. The said judgment of the High Court has attained finality as it has not been challenged so far by the present appellant.

We will consider the alternative argument of the learned counsel for the petitioner in the latter part of this judgment.

The Apex Court in the case of Hukumdev Narain Yadav (supra) has considered the matter in great depth and has held that Section 5 of the Limitation Act is not applicable to the Election Petitions. The said pronouncement will be applicable to the Election Petition giving rise to the present appeal also. In para 25 of the report the Apex Court has held as follows:

�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.�

The ratio laid down by the Apex Court in the case of Hukumdev Narain Yadav (supra), we find, is being consistently followed by all the Courts. Reference can be made to Anwari Basavaraj Patil and others v. Siddaramaiah and others, (1993) 1 SCC 636, wherein it was held that there is no provision in the Representation of the People Act, 1951 making all or any of the provisions of Limitation Act applicable to the proceedings under the said Act. Dealing with the argument of the appellant therein with regard to the applicability of the provisions of the Limitation Act contained in Sections 4 to 24 (both inclusive) in view of Subsection (2) of Section 29 it was held that the words �expressly excluded� occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference to in the Special Act or the local law to the specific provisions of Limitation Act, the operation of which is sought to be excluded. It was held that if on examination of relevant provisions of the Special Act, it becomes clear that the provisions of the Limitation Act are necessarily excluded, then benefit conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act.

Pointedly, a query was put to the learned counsel for the petitioner to point out any provision from the U.P. Municipal Corporations Adhiniyam, 1959 to show that the provisions of Section 5 of the Limitation Act, 1963 have been made applicable to the Election Petitions under Adhiniyam, 1959, bu the failed to do so. A conjoint reading of Sections 62(4) and 67 of the Adhiniyam, 1959 leave no room of doubt that an Election Petition challenging the election has to be filed within the prescribed period of 30 days mandatorily, failing which the Court or the authority concerned has no option but to dismiss the same being barred by time. Section 74 of the Adhiniyam, 1959 is reproduced below:

�74. Appeal against order of District Judge (1) An appeal shall lie from every order made by the District Judge under Section 69 or Section 70 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.�

Section 74(1) of the Adhiniyam reproduced above provides period of limitation for filing an appeal. It further provides that the delay in filing of appeal can be condoned provided it occasions due to sufficient cause in not filing the appeal within the prescribed period of limitation. The said provision is akin to Section 5 of the Limitation Act but the Legislatures in their wisdom have provided that delay in filing the appeal, on sufficient cause being shown can be condoned, not making the provisions of Section 5 of the Limitation Act applicable instead. This is also indicative of the fact that the intention of the Legislature was not to extend the provisions of limitation for filing an Election Petition beyond the one prescribed by Section 62(4) of the Adhiniyam. Noticeably, there is no such provision as it is in respect of appeals, with regard to Election Petition. There is no such provision like Section 74(1) of the Municipal Corporation Act.

This makes it clear that an election petition has to be filed within the prescribed period of 30 days mandatorily.

In Lachhman Das Arora v. Ganeshi Lal and others; (1999) 8 SCC 532, it has been held that Courts cannot extend the period of limitation on equitable grounds more particularly in the matter of filing of Election Petitions under the representation of the People Act. The facts of the case discloses a very interesting controversy. The Election Petition was required to be filed within 45 days. Section 86 (1) of the R.P. Act provides that High Court shall dismiss an Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. In this case the period of limitation expired during the summer vacations between 1st of June, 1996 and 30th June, 1996 both these dates were inclusive. The Election Petition was presented in the Registry on the reopening day of High Court on 1st of July, 1996. The question was whether the presentation of Election Petition was within the period of limitation or not. Section 10 of the General Clauses Act which provides computation of time where the provisions of Limitation Act do not apply was pressed into service. Repelling the said argument, the Apex Court observed that since there was a notification by the High Court notifying for general information that the High Court of Punjab and Haryana will be closed for civil business �except for hearing Election Petitions or any other matter arising out of Representation of the People Act, 1951� during the period of 1st of June, 1996 to 30th of June, 1996, it was held that the Election Petition was barred by time as the High Court was not closed for the purposes of hearing of the Election Petitions in view of the aforesaid notification.

We could lay our hands to a judgment of the Apex Court in Shaik Saidulu @ Saidan v. Chukka Yesu Ratnam and others: JT 2002 (1) SC 247 wherein on the statutory setting of Hyderabad Municipal Corporation Act, 1955 it was held that the provisions of the Limitation Act are applicable to the Election Petitions. In that case a controversy arose as to whether an Election Petition is synonymous with the word ''application'' or not. The case of Hukumdev Narain Yadav (supra) was relied upon and discussed. Section 71(2) of the Act provided that an Election Petition can be filed within two months. There was no provision under the Chapter which contained the Section 71(2) which may stipulate as to applicability or nonapplicability of all the provisions of Limitation Act. Section 671 appearing in the part of the miscellaneous provisions under the said Act provides that in computing the period of limitation, fixed for appeal or application referred to in the said Act, the provisions of Sections 5, 12 and 30 of the Limitation Act shall, so far as may be, apply. Subsection (2) of Section 671 provides that when no time is fixed by the Act for presentation of an appeal or application, such appeal or application shall be presented within 30 days from the date of order in respect of or against which the appeal or application is presented. The Election Petition was dismissed as barred by time by the High Court holding that �petition� is different from �application�. Reversing the judgment of the High Court it was held by the Apex Court that the word �application� is synonymous with the term �petition�. In view of Subsection (2) of Section 671 of the said Act it was held therein that the provisions of Section 5 of the Limitation Act would not be excluded. The said decision was not referred by the counsel for the parties, but we ourselves took it into consideration and arrived at the conclusion that the verdict contained in that very judgment cannot be attracted to the facts of the present case. There is no such corresponding provision to Section 671 under the Adhiniyam and at least none was pointed out by counsel for either side.

We could also lay our hands to a judgment of the learned Single Judge of this Court in Ansar Ahmad v. SubDivisional Officer, 1998 (89) RD 500 in respect of an election dispute under the U.P. Panchayat Raj Act, involving an identical controversy. A learned Single Judge of this Court after taking into consideration the ratio of the Apex Court in the case of Hukumdev Narain Yadav (supra) and various other pronouncements has held that the order of the Prescribed Authority condoning the delay in presenting the Election Petition beyond the period prescribed is without jurisdiction.

There is another reason which fortifies our view. Jyoti Basu and others v. Debi Ghosal and others, AIR 1992 SC 983, is an authority for proposition that a �right to elect�, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute provides, will apply. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes.

We find that ChapterII contains Sections 4 to 87. Sections 60 to 87 are under the title �disputes relating to Election� in the said Chapter. A survey of these provisions would show that mechanism in respect of resolution of election disputes has been provided for. The grounds on which an election of elected candidate can be questioned, forms and contents of such petitions, procedure for hearing of petition, transfer of petition, grounds for declaring an election to be void etc. have been provided for under Sections 60, 61, 62, 63, 67, 68, 71 etc. The period of limitation for filing of Election Petition and final order which may be passed in the Election Petition have also been provided for. It further provides the procedure to be adopted in case of equality of votes during trial of Election Petition. The forum and limitation for filing an appeal has been provided for under Section 74 thereof. Section 75 of the said Adhiniyam provides for the finality and decision of an Election Petition and in appeal. The grounds of corrupt practices have been defined under Section 78 of the Adhiniyam. A meaningful reading of these provisions would show that these provisions are self contained complete code. The Limitation Act, 1963, on the other hand, does not prescribe any limitation for filing an Election Petition. This being so, the provisions relating to election under the said Adhiniyam being Special Act will prevail and will have overriding effect. The provisions of Limitation Act, therefore, shall be deemed to be excluded from its applicability to such election disputes.

In view of the above discussion, we find sufficient force in the argument of the learned counsel for the appellant that the provisions of Section 5 of the Limitation Act are not applicable to such election disputes.

Now, we take up the second limb of the argument of the petitioner''s counsel that the delay was condoned by the High Court while dismissing the writ petition filed by the petitioner. The operative portion of the judgment of the High Court has already been reproduced above. To recapitulate the fact; the writ petition was dismissed on 12th of January, 2007. It was also provided therein that if an Election Petition is presented within a week in that event the Election Judge shall condone the delay and proceed in accordance with law.

The contention of the petitioner is that the Election Petition was filed in pursuance of the aforesaid judgment on 22nd of January, 2007 (Monday). The petitioner applied for certified copy of the judgment on 16th January, 2007 and was received by him on the next day. From the date of receiving, the Election Petition was filed within a week. On these facts, the learned counsel for the petitioner submits that the Election petition was filed within the time granted by the High Court. It is difficult to agree with him. On plain reading of the judgment of this Court it is evident that the delay was condoned in filing the election petition provided the same is filed within a week. The period of limitation commences from the date of judgment and not from the date of obtaining the certified copy of the judgment. Assuming for the sake of argument that the High Court condoned the delay and the said order has attained finality even then the election Petition was not filed within the time granted by the High Court, as rightly pointed out by the learned counsel for the appellant. At this juncture, the attention of the Court was invited towards an application filed by the petitioner in the present appeal to extend the period for filing of the Election Petition. The said application is still undisposed of. The submission is that this Court may extend the time for filing the election petition. The said prayer is being strongly opposed by the appellant on the ground that the application is not maintainable as the same has been filed in the present appeal.

Now, we take up the said application being Application No.24392 of 2008 dated 10th of March, 2008. The prayer clause of the said application reads as follows:

�That for the facts and circumstances, reasons and grounds as enumerated in the accompanying affidavit, it is most respectfully prayed that the time granted by this Hon''ble Court for filing the election petition under Section 71 & 72 of the U.P. Municipal Corporations Act may very kindly be extended for 7 days, and any other order or direction which this Hon''ble Court deems just and proper in the circumstances of the case, may also be very kindly passed in favour of the applicantrespondent No.1.�

Earlier the said application was presented before a Division Bench consisting of Hon''ble Mr. Justice K.K. Misra and Hon''ble Mr. Justice D.V. Sharma, J.J. But the case has been released by the order dated 22nd of May, 2009 and is, therefore before us. It has been stated in the application that the counsel for the petitioner prepared the petition on 20.1.2007 and got it typed, 21st of January, 2007 being Sunday, the petition was filed and presented before the District Judge, Lucknow on 22.1.2007. There was no slackness, negligence or even the slightest lack of diligence on the part of the petitioner in filing the petition before the District Judge. The time of one week to file Election Petition to be extended by one week more.

Having given careful consideration to the said application and the arguments in support thereof we are of the considered opinion that such an application is not maintainable for the reasons more than one. Firstly, the time to file the Election Petition within a week was granted by this Court in the writ petition filed by the petitioner. The application could have been filed, if at all, only before the writ court. In the present appeal no such application could possibly be filed. The extension of time could have been sought for, if at all in the writ petition itself by filing the appropriate application immediately before or after expiration of the time granted. The question of extension of time is not the subject matter in the present appeal. The filing of such a belated application is nothing but an afterthought. Secondly, the appeal was admitted and the stay order was passed on 17th of August, 2007, much prior to the filing of the said application. There is substance in the submission of the learned counsel for the appellant that when the writ petition has been disposed of finally, it cannot be reopened by means of the miscellaneous application. Reference was made to State of U.P. v. Shri Brahm Datt Sharma and another, AIR 1987 SC 943, para 10 of the report is reproduced below:

�The High Court''s order is not sustainable for yet another reason. Respondent''s writ petition challenging the order of dismissal had been finally disposed of on 10.8.1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29.1.86 he could have filed a separate petition under Art. 226 of the Constitution challenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the repsondent''s application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.�

The Apex Court in Union of India and another v. Kirloskar Pneumatic Company Limited: AIR 1996 SC 3285, has held that he High Court while acting under Article 226 of the Constitution of India cannot direct the authorities under the act to act contrary to the aforesaid statutory provisions. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State Act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs Authorities, who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a Civil Court. No such delegation or conferment can ever be conceived.

Viewed as above, we find no good ground to allow and extend the time as prayed for through the Application No.2439 of 2008. The said application stands rejected.

In nutshell we answer the question posed above by holding that an Election Petition under the Adhiniyam, 1959 can be filed and entertained within a period of 30 days from the date of election and the delay, if any, in its filing cannot be condoned by invoking the provisions of Section 5 of the Limitation Act. In the case on hand, indisputably, the Election Petition was filed on 22nd day of January, 2007 while the result was declared on 7th of November, 2006, beyond 30 days from the date of election.

In the result, the appeal succeeds and is allowed. The order under appeal dated 7th of August, 2007 passed in Election Petition No.1 of 2007 is hereby set aside with cost of Rs.10,000/ (Rupees Ten Thousand only).

(Appeal allowed)