Smt. Heera Devi vs Additional District and Others

V.K. Shukla, J.—Election for the post of President/Chairman of Nagar Palika Parishad (Nagar Panchayat), Rath, District Hamirpur was held on 28.10.2006. Result of aforementioned election was declared on 6.11.2006 wherein Smt. Heera Devi, Petitioner was declared elected having secured highest valid votes. In the said election Smt. Ram Janki secured second highest votes and she filed Civil Misc. Writ Petition No. 65930 of 2006 before this Court on 30.11.2006 questioning the validity of elections and this Court on 6.12.2006 dismissed the writ petition as not maintainable. Smt. Ram Janki thereafter filed election petition before the District Judge, Hamirpur accompanied with application u/s 5 of the Limitation Act read with application u/s 14 of Limitation Act, 1963.

On the presentation of the election petition, on 11.12.2006 application u/s 5 of the Limitation Act was objected to by the Petitioner by contending that provision of Limitation Act are not applicable while trying election petition under the provision of U.P. Municipalities Act, 1916. Thereafter, Tribunal rejected the objection filed on behalf of the Petitioner and entertained the election petition as having been filed well within time. At this juncture present writ petition has been filed.

On the presentation of the writ petition, this Court on 18.8.2010 passed following order, which is being extracted below:

Issue notice to Respondent No. 2 fixing 20th September, 2010 as thedate. Petitioner to take steps by registered post within three days. Respondents may file counter affidavit by the next date fixed. List on the date fixed.

On behalf of the Petitioner it is contended that under the provisions of the U.P. Act No. 2 of 1916, the provisions of the Limitation Act have not been made applicable to election petition and therefore no election petition can be filed beyond the prescribed period. The District Judge under the impugned order has wrongly entertained and granted the application made u/s 5 of the Limitation Act. Hence this petition. The matter does require enquiry by this Court.

Till the next date of listing further proceedings in Election Petition No. 1 of 2010 shall remain stayed.

Thereafter, counter affidavit has been filed and therein entertainment of election petition has been sought to be justified.

After pleadings mentioned above, have been exchanged, thereafter present writ petition has been taken up for final hearing/disposal with the consent of the parties.

Sri. Manish Kumar Nigam, Advocate, learned Counsel for the Petitioner contended with vehemence that in the present case under the provision of U.P. Municipalities Act, 1916 election petition is to be filed u/s 20, and said section deals with form and presentation of election petitions and therein manner and time as per which election petition is to be filed has been clearly provided for and once said section itself clearly indicates manner of presentation as well as time as may be prescribed then there is no scope to attract anything else other than as has been prescribed, as such provision of Section 5 of the Limitation Act cannot be pressed into service and election petition has wrongly been entertained by giving benefit of Section 5 of the Limitation Act.

Countering the said submission Sri Ram Kishore Gupta, Advocate representing contesting Respondents on the other hand contended that rightly delay has been condoned and election petition has rightly been treated to be filed well within time as provisions of Section 5 of the Limitation Act are fully applicable, as such no interference should be made.

In order to appreciate respective arguments, provision of Section 20 and 22 of U.P. Municipalities Act, 1916 is being looked into:

From and presentation of election petitions: 1. An election petition shall be presented within 30 days after the day of which the result of the election sought to be questioned is announced by the Returning Officer, and shall specify the ground or grounds on which the election of the Respondent is questioned and shall contain a concise statement of the material facts on which the Petitioner relies and set for the full particulars of any corrupt practices that the Petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the dates and place of the commission of each such practice.

(2) The petition shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (V of 1908), for the verification of pleadings.

(3) The petition may be presented by any candidate in whose favour votes have been recorded and who claims in the petition to be declared elected in the room of the person whose election is questioned or by ten or more electors of the municipality or by a person who claims that his nomination paper was improperly rejected.

(4)The person whose election is questioned and, where the Petitioner claims that any other candidate should be declared elected in the room of such person, every unsuccessful candidate who is not a Petitioner in the petition shall be made a Respondent to the petition.

(5) The petition shall be presented to the District Judge exercising jurisdiction in the area in which the municipality, to which the election petition relates, is situate: Provided that the petition shall not be entertained by the District Judge unless it is accompanied by a treasury challan showing that the prescribed security has been deposited.

Hearing of election petition: (1) An election petition not complying with the provisions of Section 20 or upon which the requisite court fee has not been paid at the time of presentation or with in such further time not exceeding fourteen days as the District Judge, as the case may be, may have granted , shall be rejected by such judge.

(2) An election petition not rejected under Sub-section (1) shall be heard by the District Judge.

Perusal of provision would go to show that qua election held under the provision of U.P. Municipalities Act Section 20 of U.P. Municipalities Act, 1916 forum has been provided for questioning the validity of election by way of filing election petition and therein it has been clearly and categorically provided for that election petition shall be presented within 30 days after the day of which the result of the election sought to be questioned is announced by the Returning Officer and in the election petition, Petitioner has to give specific ground or grounds on which the election of elected candidate is questioned and same is to contained a concise statement of the material facts on which the Petitioner relies and also set out the full particulars of any corrupt practices, which election Petitioner alleges. Thus the provision in question is clear that election petition has to be presented within 30 days after the result of the election has been declared by the Returning Officer. Section 22 on the other hand provides that an election petition not complying with the provisions of Section 20 or upon which the requisite court fee has not been paid at the time of presentation or within such further time not exceeding fourteen days as the District Judge, as the case may be, may have granted, shall be rejected by such judge. Thus both the provisions are clear that election petition is to be presented within 30 days after declaration of result by the Returning Officer and in case there is defect which is reflected at the time of presentation, then District Judge has been given authority to give time not exceeding fourteen days in removing such defect. The scheme of things provided for under U.P. Municipalities Act, in no way confer authority on the District Judge, to entertain the election petition, even after expiry of period of presentation.

Akin provisions are available under Sections 81 and 86 of Representation of the People Act, 1950 and said provisions have been considered by Hon''ble Apex Court vis-a-vis provisions of the Limitation Act in the case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra, and after examining the provision of Limitation Act as well as provision of Representation of the People Act, 1950, view has been taken that provision of Limitation Act do not govern the filing of election petition or their trial. Relevant extract of said judgment paragraphs 17,18 and 25 are extracted below:

Though Sction 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where Section 29(2) has been made applicable to an election petition filed u/s 81 of the Act by virtue of which either Section. 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed u/s 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature, intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Section 4 - 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, 82 or 117. It will be seen that Section 81 is not the only section mentioned in Section 86, and if the Limitation Act where to apply to an election petition u/s 81 it should equally apply to Sections 82 and 117 because u/s 86 the High Court cannot say that by an application of Section 5 of the Limitation Act, Section 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of Sections 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to Section 81. Again, Section 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to, an election petition. Similarly, Sections 7 - 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial.

It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what Section 29(2) of the Limitation Act says, because it provides that Sections 4 - 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law. A person who is a minor or is insane or is an idiot cannot file an election petition to challenge an election, nor is there any provision in the Act for legal representation of an election Petitioner or Respondent in that petition who dies, in order to make Section 16 of the Limitation Act applicable. 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.

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.

View to the similar effect has been taken by this Court in the case of Shamsher Singh v. Sub Divisional Officer 1991 RD 440 by holding that provisions of Limitation Act are excluded in the matter of filing of election petition under U.P. Panchayat Raj Act and the provisions contained under Representation of People Act are paramateeia to the aforementioned provisions. Election Petition to be filed is subject to the limitation provided in Section 12C of the Act itself, as it clearly indicates manner and time prescribed and same are mandatory. View to the similar effect has been reiterated in the case of Ansar Ahmad v. Sub Divisional Officer Kairana and Ors. 1998 RD 500. Hon''ble Apex Court in the case Chhattishgarh State Electricity Board v. Central Electricity Regulatory Commission and Ors. (2010) 5 SC 23 has taken view following the judgment in the case of Hukum Dev Narain Yadav (Supra) that once there is no provision in the Act for extension of time beyond prescribed period, then same is clearly reflected that it is excluded from the purview of the limitation act by virtue of Section 29(2) of the Limitation Act. Relevant paragraph 27 is being extracted below:

It is thus evident that the Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit , appeal or application a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period where the period prescribed by the Schedule and provisions contained in Section 4 - 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law.

Learned Counsel representing election-Petitioner has placed reliance in the case of Smt. Krishna Kanti v. District Judge, Shravasti and Ors. 2002(93) RD.747 and Union of India and Ors. v. West Coast Paper Mills Ltd. and Anr. 2004(3) AWC 2027 (SC). Said two judgment will not help the election-Petitioner for the simple reason that said judgment has been delivered in reference of filing of Revision before District Judge u/s 12C(6) of U.P. Panchayat Raj Act 1947 and not at all in reference of filing of election petition. Paragraph 13 and 25 of the said judgment itself answers the question. The second judgment is not at all in reference to the provision of Section 29(2) of Limitation Act, rather same is in reference of extending benefit u/s 14(2) of Indian Limitation Act, for instituting suit by excluding period spend in perusing the writ petition. Election Tribunal is special adjudicating forum provided for deciding election dispute and special limitation has been provided for filing of election petition within thirty days from the date of declaration of election result by Returning Officer. Provisions contained under U.P. Municipalities Act qua holding of elections and qua challenge to the said elections clearly reflects that said provisions are self contained and do not intend to give any scope for extending the said period by taking aid of Section 5 of Limitation Act. The provisions of Limitation Act are excluded by implication and period mentioned for filing election petition under U.P. Municipalities Act 1916, cannot be supplanted. Both these judgment will not come to the rescue of the Petitioner in view of precise judgment of Hon''ble Apex Court in the case of Chhattishgarh State Electricity Board v. Central Electricity Regulatory Commission and Ors. (2010) 5 SC 23.

Consequently, order dated 16.7.2010 passed by the Respondent No. 1 is hereby quashed and set aside. Election petition in question could not have been entertained by taking aid of Section 5 of Indian Limitation Act.

With these observations, writ petition is allowed.