Chet Ram vs State of Punjab and Others

Alok Singh, J.—These are five revision petitions involving same questions of law and facts, hence, all are being disposed of with the consent

of learned Counsel for both the parties, by this common order.

In the present petition, order impugned is dated 23.2.2010 passed by learned Deputy Commissioner-cum-Election Tribunal, Nawanshahr. Brief

facts of the present case are that for the Municipal Committee, Nawanshahr, election was held on 30.6.2008 and the result was declared on the

same day; respondent No. 3 herein filed a writ petition being C.W.P. No. 14592 of 2008 before this Court challenging the election and its result

dated 30.6.2008; a Division Bench of this Court vide order dated 20.8.2008, disposed of the writ petition with liberty to the petitioner therein to

file an election petition before the Election Tribunal with further direction that if election petition is filed, it shall be decided expeditiously; against the

order dated 20.8.2008, a review application was moved by the petitioner herein/returned candidate, however, same was also rejected; order

dated 20.8.2008 was challenged before the Hon''ble Apex Court in SLP No. 27853-27854 of 2008; the Hon''ble Apex Court vide order dated

1.12.2008 dismissed the Special Leave to Appeal with permission to the petitioner(s) herein to raise all questions of facts and/or law as

permissible under the law before the Election Tribunal.

An election petition was filed by the respondent No. 3 herein before the Election Tribunal on 3.9.2008 with certain defects. However, defects

were removed on 24.9.2009. Alongwith the election petition, an application for condonation of delay was also moved by respondent No. 3 which

was allowed by the Election Tribunal vide impugned order dated 23.2.2010.

Learned Election Tribunal in the impugned order dated 23.2.2010 has held that although provisions of Limitation Act are not applicable,

however, in view of the filing of the writ petition prior to filing of the election petition and in view of the order passed by this Court directing the

petitioner therein to file election petition and the direction that petition shall be disposed of on merit, delay in filing the election petition is condoned.

Feeling aggrieved from the order of the Election Tribunal dated 23.2.2010, returned candidates/petitioners herein have filed present revision

petitions.

Mr. Vikas Bahl, learned Counsel for the petitioner(s) vehemently argued that election petition is filed u/s 76(1) of the Punjab State Election

Commission Act, 1994 (for brevity ''Act, 1994'') challenging the election of the Municipal Committee. He further states that as per Section 76(1)

of the Act, 1994, election petition is to be filed within 45 days from the date of election of the returned candidate. He further states that Section 80

of the Act, 1994 further provides that if petition is not filed in accordance with Section 76 of the Act, 1994, the same shall be dismissed. Mr.

Vikas Bahl, learned Counsel for the petitioner(s) while taking shelter of Section 76(1) and Section 80 of the Act, 1994 vehemently argued that if

petition is not filed within 45 days from the date of election of returned candidate, Tribunal has no other option except to dismiss it in accordance

with Section 80 of the Act, 1994. He further states that in view of Section 80 of the Act, 1994, limitation Act shall not be applicable in the matter

of the election petitions filed u/s 76 of the Act. Mr. Vikas Bahl, learned Counsel for the petitioner(s) has heavily relied upon the judgment of the

Hon''ble Apex Court in the matter of Lachhman Das Arora Vs. Ganeshi Lal and Others, and judgment of learned Single Judge of this Court in the

matter of Joginder Singh v. Baldeep Singh and Ors. reported in 2010 (1) R.C.R. (Civil) 78.

Mr. R.P. Dhir, learned Counsel for respondent No. 3/election petitioner argued that since this Court while disposing writ petitions filed by the

election petitioner vide order dated 20.8.2008 directed the election petitioner to file an election petition and has further directed to decide the

election petition, hence, learned Tribunal was well within its jurisdiction while condoning the delay. He further argued that even the Hon''ble

Supreme Court in the SLP filed by the petitioner herein has directed that election petition shall be decided on merit in accordance with law, hence,

election petition can not be dismissed on the ground of limitation and Election Tribunal was well within its jurisdiction while condoning the delay. He

further argued that if petition is dismissed at the initial stage without condoning the delay it would amount to non-deciding of the petition at its own

merit as directed by this Court as well as the Hon''ble Apex Court. Mr. R.P. Dhir, learned Counsel for respondent No. 3 has heavily relied upon

the judgment of the Hon''ble Apex Court in the matter of Shaik Saidulu @ Saida Vs. Chukka Yesu Ratnam and Others, .

I have carefully heard learned Counsel for both the parties and examined the relevant provisions of law and judgments cited by both the

Counsel.

To appreciate the respective arguments advanced by learned Counsel for the parties, I deem it proper to reproduce Sections 76 and 80 of the

Act, 1994.

Presentation of petition: (1) An election petition may be presented on one or more of the grounds specified in Sub-section (1) of Section 89 to

the Election Tribunal by any candidate to such election or by any elector within a period of forty five days from the date of election of the returned

candidate or if there are more than one returned candidates at the election and there are different dates of their election, then the later of these

dates shall be taken into account for this purpose.

(2) 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 signatures to be a true copy of the petition.

Trial of election petitions: (1) The Election Tribunal shall dismiss an election petition which does not comply with the provisions of Section 76

or Section 77 or Section 103.

Explanation: An order of the Election Tribunal dismissing an election petition under this sub-section, shall be deemed to be an order made under

Clause (a) of Section 87.

(2) Where more than one election petitions are presented to the Election Tribunal in respect of the same matter, the Presiding Officer of the

Election Tribunal may, in his discretion, try them separately or in one or more groups.

(3) Any candidate not already a respondent shall, upon application made by him to the Election Tribunal within fourteen days from the date of

commencement of the trial of the election petition and subject to any order as to security for costs which may be made by the Election Tribunal, be

entitled to be joined as a respondent.

Explanation: For the purposes of this subsection and of Section 86, the trial of a petition shall be deemed to commence on the date fixed for the

respondents to appear before the Election Tribunal and to answer the claim or claims, as the case may be, made in the petition.

(4) The Election Tribunal may, upon such terms as to costs and otherwise, as it may deem fit, allow to particulars of any corrupt practice alleged in

the petition to be amended or amplified in such manner, as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but

shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice which has not been

previously alleged in the petition.

(5) The trial of an election petition shall, so far as is practicable consistently with the interest of justice of the trial be continued from day-to-day

until the conclusion, unless the Election Tribunal finds the adjournment of the trial beyond the following day to be necessary for reasons to be

recorded in writing.

(6) Every election petition shall be tried as expeditiously as possible and every endeavour shall be made to conclude the trial within a period of six

months from the date on which the election petition is presented to the Election Tribunal for trial.

From the perusal of Section 76 of the Act, 1994, it can safely be said that election petition has to be filed within 45 days from the date of

election of the returned candidate or if there are more than one returned candidates from the last date of the election of the last returned candidate.

Section 80 of the Act, 1994 provides that if election petition does not comply with the provision of Section 76 of the Act, 1994, then Court shall

dismiss the petition. Word ''shall'' used in Section 80 of the Act, 1994 makes it mandatory for the Tribunal to dismiss the petition, if it is not filed

within 45 days from the date of the election of the returned candidate as provided by Section 76 of the Act, 1994.

Three Judges Bench of the Hon''ble Apex Court in the matter of Lachhman Das Arora (supra) while dealing with the election petition filed

under the Representation of the People Act, 1951 in paragraph No. 7 has held as under:

On its plain reading, Section 81(1) lays down that an election petition calling in question any election may be presented on one or more of the

grounds specified in Sub-section (1) of Section 100 and Section 101 of the Act to the High Court by any candidate at such election or by an

elector 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. The Act is a special code providing a period of

limitation for filing of an election petition. No period for filing of an election petition is prescribed under the Indian Limitation Act. The Act insofar

as it relates to presentation and trial of election disputes is a complete code and a special law. The scheme of the special law shows that the

provisions of Sections 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of forty-five

days, Section 86(1) of the Act, which provides that the High Court shall dismiss an election petition which does not comply with the provisions of

Section 81 or Section 82 or Section 117, is straightway attracted.

Learned Single Judge of this Court while interpreting Section 76 of the Act, 1994 in the matter of Joginder Singh (supra) in paragraph No. 7

has held as under:

Thus, from the above, it is apparent that while granting liberty to avail the remedy of election petition, no direction qua condonation of delay was

passed. The mere fact that the High Court had dismissed the writ petition as withdrawn with direction to avail the remedy of election petition in

accordance with law, in itself, does not amount to a direction for condonation of delay. Thus, to have condoned the delay on the ground that a

liberty had been granted to the respondents to file election petition, can not be sustained. It is admitted that neither any application for condonation

of delay was filed nor has any provision for condonation of delay has been pointed out by the learned Counsel for the respondents. The provision

of Section 76 of the 1994 Act, reproduced above, shows that the election petition should have been filed within a period of forty five days from

the date of election of the returned candidate. In the present case, the election of Gram Panchayat Mehal Khurd was held on 26.5.2008 and the

forty five days were expired on 09.07.2008. The election petition was filed on 11.11.2008, which is clearly time barred and the same should not

have been entertained.

Facts of the present case are almost identical to the facts of Joginder Singh''s case (supra). Learned Single Judge of this Court in the Joginder

Singh''s case has observed that if instead of filing election petition writ petition is filed and writ petition is dismissed by this Court with liberty to the

petitioner to avail alternate remedy of filing election petition, then it will not amount to condoning the delay in filing the election petition.

From the order passed by this Court dated 20.8.2008, I am unable to find out any observation made by Divisional Bench of this Court of the

effect that if election petition is filed the delay in filing the election petition shall be condoned on account of filing of the writ petition before this

Court. Not only this, the Hon''ble Apex Court vide order dated 1.12.2008 has permitted the present petitioner/returned candidate to raise all

questions of fact and/or law before the Election Tribunal. The Hon''ble Apex Court further directed the Tribunal to consider all the questions raised

before the Tribunal on merit and to decide the petition in accordance with law. The only meaning of the order of the Hon''ble Apex Court would

be, if question of limitation is raised then Tribunal shall decide the question of limitation at its own merit in accordance with law. However, order of

the Hon''ble Apex Court can not be interpreted to mean that question of limitation shall not be decided and election petition shall be decided at its

own merit as suggested by Mr. R.P. Dhir, learned Counsel for respondent No. 3/election petitioner.

However, in the matter of Shaik Saidulu alias Saida (supra), two Judges Bench of Hon''ble Apex Court while interpreting the Hyderabad

Municipal Corporation Act has held that exclusion of Section 5 of the Limitation Act must be specified under the special statute and it has further

been held that since Act is silent about the exclusion of the Limitation Act, hence, Section 5 of the Limitation Act can be pressed into service.

Although judgment of the Hon''ble Apex Court in the matter of Shaik Saidulu alias Saida (supra) was not referred before the three Judges

Bench of the Hon''ble Apex Court in the matter of Lachhman Das Arora (supra), however, in view of the dictum of the Hon''ble Apex Court in the

matter of Lachhman Das Arora (supra) (three Judges Bench), I have to follow the ratio laid down in the matter of Lachhman Das Arora (supra). In

view of the above, I find that in the matter of election petition filed under the provisions of the Act, 1994, Limitation Act is not applicable in view of

Section 80 of the Act and Tribunal has no other option except to dismiss the election petition if filed beyond 45 days from the date of election of

the returned candidate.

In view of the observation made above, impugned order dated 23.2.2010 can not be sustained in the eyes of law. Present petition is allowed.

Impugned order dated 23.2.2010 is set aside. Election petition is dismissed as being time barred.

A copy of this order be placed on files of the connected cases.