Allahabad High Court
Smt. Sharda Devi vs State Of U.P. Thru Secy. And Others on 5 December, 2012
Author: Dilip Gupta
Bench: Dilip Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 21st November, 2012 Judgment delivered on 5th December, 2012 Court No.2 Civil Misc. Writ Petition No. 56867 of 2012 Smt. Sharda Devi Vs. State of U.P. through Secretary and Ors. ****** Hon. Dilip Gupta, J.
The petitioner, who had contested the election for the office of Adhyaksha of the Zila Panchayat, Jaunpur reserved for a Scheduled Caste candidate, has filed this petition for quashing the order dated 12th October, 2012 passed by the Additional District Judge, Court No.1, Jaunpur by which the application filed by the petitioner under Section 5 read with Section 14 of the Limitation Act 1963 (hereinafter referred to as the 'Limitation Act') for condoning the delay in filing the election petition to question the election of respondent No.4-Aneeta Rawat under Rule 33 of the Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the '1994 Rules') has been rejected and consequently the election petition has been dismissed.
It transpires from the records of the writ petition that the petitioner was elected as a member of the Zila Panchayat, Jaunpur from Ward No.58 reserved for a Scheduled Caste candidate and respondent No.4-Aneeta Rawat was also elected as a member of the Zila Panchayat from Ward No.23 reserved for a Scheduled Caste candidate. A notification dated 21st November, 2010 was issued for election of Adhyaksha of the Zila Panchayat, Jaunpur reserved for a candidate belonging to the Scheduled Caste. The petitioner contested the election in which respondent No.4-Aneeta Rawat was declared elected as Adhyaksha of Zila Panchayat, Jaunpur on 12th December, 2010.
The petitioner contends that respondent No.4-Aneeta Rawat is not a candidate belonging to the Scheduled Caste as she belongs to the Backward Classes and, therefore, could not have been elected as a member of the Zila Panchayat or as Adhyaksha of the Zila Panchayat. The petitioner, accordingly, filed Writ Petition No.10418 of 2011 with a prayer that the District Magistrate may decide the representation filed by the petitioner for cancellation of the caste certificate of Aneeta Rawat-respondent No.4. The petitioner also filed Writ Petition No.74380 of 2011 for issue of a writ of quo warranto directing Aneeta Rawat to justify her continuance as Adhyaksha of the Zila Panchayat. These petitions were dismissed by the judgment and order dated 23rd May, 2011. With respect to Writ Petition No.10418 of 2010, the Court observed that the petitioner could file an appeal before the Appellate Forum while with respect to Writ Petition No.74380 of 2011, the Court observed that the petitioner could avail of the alternative remedy of filing an election petition.
The petitioner, accordingly, filed Election Petition No.219 of 2011 on 12th July, 2011 before the District Judge, Jaunpur under Rule 33 of the 1994 Rules. This election petition was accompanied by an application under Section 5 read with Section 14 of the Limitation Act for condoning the delay in filing the election petition as the result was declared on 12th December, 2010 and under Rule 33 of the 1994 Rules the petition could be filed within thirty days from the date of declaration of the result. The application filed by the petitioner under Section 5 read with Section 14 of the Limitation Act was rejected by the order dated 12th October, 2012 for the reason that the Limitation Act was not applicable to the election petition filed under Rule 33 of the 1994 Rules. It is this order dated 12th October, 2012 that has been assailed in this writ petition.
Sri Ashwani Kumar Mishra, learned counsel appearing for the petitioner assisted by Sri Ajeet Singh, submitted that the finding recorded in the impugned order that the provisions of the Limitation Act are not applicable to an election petition filed under Rule 33 of the 1994 Rules deserves to be set aside for the reason that the provisions of the Limitation Act would be applicable to the proceedings in view of the provisions of Section 29(2) of the Limitation Act. Learned counsel submitted that the provisions of the Limitation Act are neither expressly nor by implication excluded as the 1994 Rules are not a complete code with regard to filing of election petition and in support of his contention he placed reliance on the decision of the Supreme Court in Vidhyacharan Shukla Vs. Khub Chand Baghel AIR 1964 SC 1097. In this connection, learned counsel for the petitioner also placed the provisions of Sections 81, 82, 86 and 117 of The Representation of the People Act, 1951 and submitted that in view of the provisions of Rules 33, 34, 35, 38, 43 and 47 of the 1994 Rules, the law laid down in the decisions of the Supreme Court in Hukumdev Narain Yadav Vs. Lalit Narain Mishra, AIR 1974 SC 480 and Anwari Basavaraj Patil & Ors., Vs. Siddaramaiah & Ors., reported in AIR 1994 SC 512 will not be applicable to an election petition filed under Rule 33 of the 1994 Rules as The Representation of the People Act, 1951 is a complete code whereas the 1994 Rules are not a complete code and they do not provide for consequences if the election petition is not filed in accordance with the provisions of the 1994 Rules.
Learned Standing Counsel appearing for respondent Nos. 1, 2 and 3 and Sri Rahul Mishra, learned counsel appearing for respondent No.4, however, supported the impugned order and submitted that the provisions of the Limitation Act will not be applicable to an election petition filed under Rule 33 of the 1994 Rules as the Rules are a complete code for questioning the election. Learned counsel also submitted that the decisions of the Supreme Court in Vidhyacharan Shukla (supra) was subsequently distinguished by the Supreme Court in Hukum Dev Yadav (supra) and Anwari Patil (supra) and will not help the petitioner.
I have considered the submissions advanced by learned counsel for the parties.
Section 17 of the U.P. Kshettra Panchayats & Zila Panchayats Adhiniyam 1961 (hereinafter referred to as the 'Act') refers to the establishment and incorporation of the Zila Panchayats and Section 18 which deals with the composition of Zila Panchayats provides that a Zila Panchayat shall consist of an Adhyaksha who shall be its Chairperson and the other members of the Zila Panchayat will be as provided for in sub-sections (a) to (d) of the said Section. Section 19 of the Act provides that in every Zila Panchayat an Adhyaksha shall be elected by the elected members of the Zila Panchayat from amongst themselves and Section 19-A of the Act provides that the offices of Adhyakshas of the Zila Panchayats in the State shall be reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribe and the Backward Classes in the manner contained in the proviso to the section. Section 264-B of the Act deals with the manner and conduct of election and provides that the election of the office of an Adhyaksha or a member of a Zila Panchayat shall be held by secret ballot in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of such Adhyaksha.
In exercise of the powers conferred on the State Government under Section 237 of the Act read with Section 27(2)(c) and Section 264-B of the Act, the 1994 Rules have been framed. Chapter IV of the 1994 Rules deals with disputes regarding elections of Adhyaksha and Upadhyaksha and the relevant Rules 33, 34, 35, 36, 37, 38, 40, 47 and 49 are reproduced below:-
"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. 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. 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.
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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.
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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.
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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.
It is seen that while Rule 33 does not provide for condoning the delay in filing the application to question the election of the Adhyaksha, Rule 47 which provides for filing of an appeal against an order passed under Rule 40 does provide for condoning the delay even if the appeal is filed after the expiry of thirty days if the appellant is able to establish that he had sufficient cause for not preferring the appeal within such period. This clearly shows that the Legislature intended to exclude the applicability of the Limitation Act to the provisions of the 1994 Rules because if it was not so, there would have been no necessity of giving power to the Appellate Court to condone the delay even if the appeal was filed beyond the statutory period of thirty days.
In Commissioner of Customs and Central Excise Vs. Hongo India Private Limited & Anr. (2009) 5 SCC 791 a Constitution Bench of the Supreme Court examined whether the High Court had the power to condone the delay in presentation of the appeal under the unamended Section 35-G or a reference application under the unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period by applying Section 5 of the Limitation Act when the other provisions of Section 35 did provide for condoning the delay. The High Court had dismissed the Reference Application holding that it had no power to condone the delay. The Supreme Court noticed that under Section 35 of the Central Excise Act, 1944, an appeal could be filed to the Commissioner of Central Excise (Appeals) against the order passed by the Central Excise Officer within sixty days from the date of communication but the Commissioner (Appeals) could condone the delay upto a further period of thirty days if the appellant was able to satisfy that he was prevented by sufficient cause in not presenting the appeal within the period prescribed. The Supreme Court also noticed that under Section 35-B of the Central Excise Act an appeal could be filed before the Appellate Tribunal against the said order within three months with power to the Appellate Tribunal to condone the delay if sufficient cause was shown. The Supreme Court also noticed that under Section 35-EE a Revision could be filed before the Central Government within three months, but the Revisional Authority could condone the delay for a further period of three months if it was satisfied that the applicant was prevented by sufficient cause from presenting the application within three months. The Supreme Court then noticed that under the unamended provisions of Section 35-G or Section 35-H(1), an appeal or a reference respectively could be filed in the High Court within 180 days without any power to the High Court to condone the delay if the same were not filed within the aforesaid period.
It is on examination of the aforesaid provisions of the Central Excise Act, 1944 that the Supreme Court held that in such circumstances the High Court had no power to condone the delay in filing the reference or appeal under the unamended Section 35-G or Section 35-H(1) of the Central Excise Act, 1944 and the observations are:-
"30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
31. In this regard, it is useful to refer to a recent decision of this Court in Commissioner of Central Excise & Customs Vs. Punjab Fibres Ltd., Noida (2008) 3 SCC 73. The Commissioner of Customs, Central Excise, Noida was the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35-H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 concluded that:
"8.........the High Court was justified in holding that there was no power for condonation of delay in filing reference application."
32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days."
(emphasis supplied) A learned Judge of this Court in Hind Majdoor Sabha Vs. State of U.P. & Ors., 1998 (81) FLR 216 also examined this issue while examining the provisions of the Payment of Wages Act. The appeal was filed under Section 17 of the Payment of Wages Act with a delay of about two months. The appeal was, therefore, accompanied by an application under Section 5 of the Limitation Act. The delay was condoned and the appeal was admitted. This order was assailed in the writ petition and the learned Judge after referring to various decisions of the Supreme Court held that Section 5 of the Limitation Act would not be applicable since under Section 15 of the Act the delay in filing the application could be condoned but under Section 17 of the said Act there was no such power to condone the delay and the relevant observations are:-
"9. In view of the aforesaid law as decided in the case of Hukum Narain Yadav v. Lalit Narayan Misra, AIR 1974 SC 480 and followed in the case of Shri Anwari Basavaraj Patil vs. Sri Siddaramaiah, JT 1993 (1) SC 328 only thing to be considered is as to whether in the present case the provisions of Payment of Wages Act on examination make it clear that the provisions of the Limitation Act are necessarily excluded so far as appeal under provision of the said Act is concerned.
10. A comparison of the language used in Section 15 and Section 17 of the said Act clearly indicates that for the purpose of proceeding under Section 15 the power has been provided categorically for entertaining an application even after the period prescribed for filing such application. But, in the case of an appeal under Section 17 of the said Act such provision for condonation of delay has been omitted. Such specific omission on the part of the Legislature has to be interpreted as withholding the power of condonation of delay from the appellate authority. The provision of sub-section (2) of Section 17 also indicates finality of the order passed under Section 15(2) same as provided in Section 17(1) i.e., an appeal filed within thirty days."
(emphasis supplied) This decision was followed by the Court in Writ Petition No.45385 of 2012 (Mantri Khadi Gram Udyog Samiti, Harijan Gurukul, Heera Patti, Sadar, District Azamgarh Vs. The Prescribed Authority, Azamgarh & Ors.,) decided on 25th September, 2012.
Thus, for the reasons stated by the Supreme Court in the aforesaid decisions in Hongo India (supra) and the decisions of this Court in Hind Majdoor Sabha (supra) it has to be held that the provisions of the Limitation Act will not be applicable to an election petition filed under Rule 33 of the Rules and consequently there is no power to condone the delay in filing the election petition under Rule 33 of the 1994 Rules.
Learned counsel for the petitioner, however, placed reliance upon Section 29(2) of the Limitation Act and submitted that since a period of limitation different from the period prescribed by the Schedule to the Limitation Act has been provided under Rule 33 of the 1994 Rules, the provisions of Sections 4 to 24 of the Limitation Act shall apply for the purposes of determining the period of limitation prescribed for filing the election petition as the Limitation Act has not been expressly or impliedly excluded by the Act or the 1994 Rules. It is his contention that the principle of law laid down by the Supreme Court in Anwari Patil (supra) and Hukumdev (supra) will not be applicable to an election petition filed under Rule 33 of the Rules as The Representation of the People Act, 1951 is a complete code with regard to the filing of election petition but the 1994 Rules are not a complete code.
In order to appreciate the contention advanced by learned counsel for the petitioner, it would be appropriate to reproduce the provisions of Section 29(2) of the Limitation Act which are as follows:-
"29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."
The provisions of Rules 33 to 49 of the 1994 Rules provide for a detailed procedure for questioning the election of an Adhyaksha. It is seen from the aforesaid provisions that under Rule 33 of the 1994 Rules, an election petition calling in question the election of an Adhyaksha may be presented to the Judge at any time within thirty days from the date of declaration of the result under Rule 13 or Rule 28, as the case may be. Under Rule 13 a candidate is declared elected unopposed while under Rule 28 a candidate is declared elected after the counting is completed and the result of the voting has been determined. The form of the petition is provided for in Rule 34, while the relief that can be claimed in the petition is provided for in Rule 35. A detailed procedure applicable in the hearing of the election petition is provided for in Rule 38 and as the said Rule has been quoted, it is not necessary to reproduce it. Rule 40 provides that 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 but if the Judge finds that the election of any person was invalid he shall either declare a casual vacancy to have been created or declare another candidate to have been duly elected. Rule 47 provides that an appeal shall lie to the High Court from every order made by the Judge under Rule 40 within thirty days from the date of the order. It is, however, 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.
It is, therefore, clear from the aforesaid provisions that the Rules are a complete code in themselves so far as the election petition is concerned and it is not possible to accept the contention of learned counsel for the petitioner that the 1994 Rules are not a complete code merely because they do not provide for dismissing an election petition if it is not filed within the period prescribed.
There is no provision in Rule 33 for condoning the delay in filing the petition though there is a specific provision in Rule 47 for condoning the delay in filing the appeal filed against the order passed under Rule 40 of the 1994 Rules. The scheme of the Rules, as noticed hereinabove, therefore, clearly suggests that the time limit prescribed for filing an application under Rule 33 is absolute and cannot be extended by taking resort to the provisions of Section 5 of the Limitation Act.
The Constitution Bench of the Supreme Court also rejected such a plea in Hongo India (supra) and the observations are:-
"34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court.
35. It was 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. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is 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 considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 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. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by a court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act.
37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the "reference application" filed by the Commissioner under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.
The decision of the Supreme Court in Anwari Patil (supra) and the decisions of this Court in Ajai Kumar Tripathi Vs. Ram Bahadur Yadav 2008 (1) AWC 1041 and Ansar Ahmad Vs. Sub-Divisional Officer, Kairana & Ors., AIR 1998 All 341 need to be now examined.
In Anwari Patil (supra) the issue that arose for consideration before the Supreme Court was whether Section 5 of the Limitation Act would be applicable to the recrimination notice given under Section 97 of The Representation of the People Act, 1951. The recrimination notice was required to be given within fourteen days from 4th November, 1991 but admittedly it was submitted beyond the said period. It is in this context that the Supreme Court examined whether the benefit of Section 29(2) of the Limitation Act could be taken for condoning the delay in submitting the said notice and observed that Section 5 of the Limitation Act will not apply and the observations are:-
"7. There is no provision in the Representation of the People Act, 1951 making all or any of the provisions of the Limitation Act applicable to the proceedings under this Act. The appellant, however, relies upon Section 29(2) of the Limitation Act. According to him by virtue of the said provision, all the provisions contained in Sections 4 to 24 (both inclusive) apply to the proceedings under the Act including the recrimination notice under Section 97..........
8. In H.N. Yadav v. L.N. Misra, AIR 1974 SC 480, this Court 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 in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act. That too was a case arising under the Representation of the People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under Representation of the People Act by virtue of Section 29(2) was stated in the following words :
"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."
9. On an examination of the provisions of the Representation of the People Act and the earlier decisions of the Court, it was held that the Representation of the People Act is a self-contained code and, accordingly, it was concluded that "the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial."
10. This decision, in our view, practically concludes the question before us inasmuch as the Act equates a recrimination notice to an election petition. The language of Section 97 makes the said fact abundantly clear. The relevant words are : "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." The proviso to sub-section (1) applies the provisions of Sections 117 and 118 to such a recrimination notice. It may be noticed that for non-compliance with the requirement of Section 117 and election petition is liable to be dismissed by virtue of sub-section (1) of Section 86. Sub-section (2) of Section 97 further says that the "notice referred to in sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner." We may also say that the proviso to sub-section (1) of Section 97 which requires such a notice to be given to the High Court within fourteen days of the "date fixed for the respondents to appear before the High Court to answer the claim or claims" (reading the definition of "commencement of trial" into it) has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. If Section 5 of the Limitation Act does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice.
11. In view of the above position, we do not think it necessary to deal with the several decisions cited before us relating to the interpretation of sub-section (2) of Section 29 of the Limitation Act.
12. The counsel for the appellant brought to out notice a decision of this Court holding that the provisions of Section 12(2) of the Limitation Act, 1908 are applicable to an appeal under Section 116(A) of the Representation of the People Act, 1951 viz., V.C. Shukla v. Khubchand Baghel, AIR 1964 SC 1099. It is also brought to our notice that certain High Courts have taken the view that both Section 5 and Section 12(2) of the Limitation Act are applicable to the proceedings under the Act. Reference is to AIR 1968 Raj 145, AIR 1968 Cal 69 and (1976) 89 Mad LW 32: (AIR 1976 Mad 70). So far as the decision of this Court in V.C.Shukla is concerned, it is a decision dealing with the applicability of the provision in Section 12(2) of the Limitation Act to an appeal preferred under Section 116(A) and not with the filing of an election petition. The said decision was considered and distinguished in H.N. Yadav on the above basis. At page 42 of the SCR: (at p.468 of AIR) the Division Bench which decided H.N. Yadav distinguished the decision in V.C. Shukla (AIR 1964 SC 1099) in the following words:
'Vidyacharan Shukla's case (supra) is one which dealt with an appeal under the Act while what we have to consider is whether the Limitation Act is at all applicable to election petitions under the Act. Thirdly, Section 29(2) of the new Limitation Act does not now give scope for this controversy whether the two limbs of the old section are independent or integrated. No doubt Section 5 would now apply where Section 29(2) is applicable to even applications and petitions, unless they are expressly excluded. Even assuming that the Limitation Act applies to election petitions under the Act, what has to be seen is whether Section 5 is excluded from application to such petitions."
(emphasis supplied) A learned Judge of this Court in Ajay Kumar Tripathi (supra) also examined whether the provisions of the Limitation Act would be applicable to an election petition filed under Section 27(2) of the Act read with Rules 3 and 4 of the Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994. The petitioner therein was declared elected as a member of the Zila Panchayat on 27th October, 2005 but his election was challenged in the election petition filed on 28th November, 2005. Under Section 27(2) of the Act read with Rule 4 of the aforesaid Rules, the election petition could be filed within thirty days from the date the person was chosen but as the election petition was filed beyond the period of thirty days an application under Section 5 of the Limitation Act was also filed. It was sought to be contended on behalf of the opposite party that since the provisions of Section 5 of the Limitation Act were not applicable, the Election Tribunal had no option but to dismiss the election petition as barred by limitation. The Tribunal held that Section 5 of the Limitation Act was applicable and condoned the delay in filing the petition. This order was assailed in the writ petition.
The learned Judge after examining the provisions of the Act and the said Rules held that the provisions of the Limitation Act were not applicable and, accordingly, set aside the order passed by the Tribunal and dismissed the election petition as barred by time. The observations are:-
"11. The Hon'ble Supreme Court of India in the case of Anwari Basavaraj Patil AIR 1994 SC 512 has held that provisions of Section-5 of the Limitation Act would not apply to the proceedings undertaken by way of election petition. In the case of Ansar Ahmad Vs. Sub-Divisional Officer, Kairana & Ors., AIR 1998 Alld. 341, this Court after noticing the provisions of the Act and Rules applicable, which regulate the filing of the election petition, has recorded that such provisions are para meteria to the Representation of the People Act, 1951 and therefore, held that the provisions of Section-5 of the Limitation Act could not be invoked for entertaining the election petition filed beyond the limitation prescribed.
.................
19. It would be seen that although the provisions of Code of Civil Procedure and Evidence Act have been made applicable only for the purpose of hearing of the petitions, the Legislature has deliberately not provided for application of the Limitation Act to the said proceedings.
20. From the aforesaid statutory provisions, it will be seen that the provisions of Limitation Act, which would include Section-5 also have not been made applicable in respect of election petitions to be filed under Section 27(2) of the Uttar Pradesh Khsetra Panchayats and Zila Panchayats Adhiniyam, 1961 for condoning the delay, if any, in filing of the election petitions.
21. With reference to the judgment of the Hon'ble Supreme Court of India in the case of Bhuvanesh Bhusan Sharma (Supra), it is still to be examined as to whether any other provisions of the Uttar Pradesh Khsetra Panchayats and Zila Panchayats Adhiniyam, 1961 contemplates by necessary implication, that the provisions of Section-5 of the Limitation Act would be applicable to the election petition to be filed under Section 27(2) of the Uttar Pradesh Khsetra Panchayats and Zila Panchayats Adhiniyam, 1961 or not.
22. After scrutiny of the provisions of the Uttar Pradesh Khsetra Panchayats and Zila Panchayats Adhiniyam, 1961, learned counsel for the parties could bring to the notice of the Court only Section 251, which is being quoted herein below:
"251. Appeals from Order of Zila Panchayat.---(1) Any person aggrieved by any order or direction made by a Zila Panchayat or a Kshetra Panchayat, as the case may be, under the powers conferred upon it by Sections 165 (1), 171, 184, 191 (6), 193, 202, 216, 218, 221 or under a bye-law made under sub-head (a) of Heading D and under Heading E of sub-section (2) of Section 239, may within thirty days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such offers as the State Government may appoint, for the purpose of hearing such appeals or any of them or, failing such appointment, to the District Magistrate.
(2) The appellate authority may, if it thinks fit, extend the period allowed by sub-section (1) for appeal.
(3) No appeal shall be dismissed or allowed in part or whole unless reasonable opportunity of showing cause or being heard has been given to the parties."
23. The aforesaid Section 251 of 1961 Adhiniyam have no application qua filing of election petition under Section 27 (2) of Uttar Pradesh Khsetra Panchayats and Zila Panchayats Adhiniyam, 1961 read with the Rules of 1994. No other provision of the Act of 1961 or Rules of 1994 contemplates application of limitation Act to the proceedings to be initiated by way of election petition.
24. Thus, it is held that the provisions of limitation Act stand excluded, so far as the election petitions to be filed under Section 27(2) of the Uttar Pradesh Khsetra Panchayats and Zila Panchayats Adhiniyam, 1961 are concerned. There is no provision akin to Section 671 of the Hyderabad Municipal Corporation Act, 1955 in the Act of 1961 or rules framed thereunder. Consequently the judgment relied upon by the learned counsel for the respondent is clearly distinguishable, in the facts of the present case.
(emphasis supplied) In Ansar Ahmad (supra) the issue that arose for consideration before the Court was whether the Prescribed Authority was empowered to condone the delay in filing the election petition under Section 12-C of the U.P. Panchayat Raj Act, 1947 beyond the period prescribed under Rule 3 of the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994, and in this connection, the Court observed:-
"6. Section 12-C of Panchayat Raj Act provides for disputing election only in accordance with the provisions contained in the said Section according to the prescribed manner. Section 12-C provides that no election under the said Act can be "called in question except by application presented to such authority within such time and in such manner, as may be prescribed on the ground mentioned therein, which has been explained in various sub-sections of the said Section. Thus, it shows that the scope of the disputed election has been subject to the limitation provided in Section 12-C of the Act. It clearly indicates that the manner and time as prescribed are mandatory. The same cannot be decided otherwise than what is prescribed with regard to the time and manner of presenting the election petition. When section itself clearly indicates expressly that such a dispute is to be presented in such a manner and within such time as may be prescribed, there is no scope to attract anything foreign to what has been prescribed. Unless it is specifically prescribed, we cannot take the aid of any other provision, as it appears from the clear intention expressed in the section itself. The prescription as provided in Section 12-C is prescribed through enactment of U. P. Panchayat Raj (Settlement of Election Disputes) Rules. 1994. The said Rule is Rule-3 which provides that Election petition under Section 12-C has to be "presented before the Sub-Divisional Officer within whose jurisdiction concerned Gram Panchayat lies within 90 days after the date of which the result of election questioned, is announced......" Rule-3 limits time of presentation of the election dispute to 90 days from the commencement of result of the election. Thus, we see that authority has been prescribed and time within which it has to be presented has also been prescribed. The manner has also been prescribed with which I am not concerned. Manner of presentation as provided in Rule 3 does not provide for any relaxation or extension of time."
(emphasis supplied) What, therefore, transpires from the aforesaid decisions is that under Section 29(2) of the Limitation Act the word "expressly excluded" do not mean that there must necessarily be an express reference for exclusion in the Special Act and if, on an examination of the relevant provisions of the Special Act, it is clear that the provisions of the Limitation Act are excluded, then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act.
As noticed hereinabove, Rules 33 to 49 of the Rules admit of no doubt that the provisions of the Limitation Act are excluded by implication and in such circumstances the benefit of the Limitation Act cannot be taken for condoning the delay in filing the election petition under Rule 33 of the Rules.
The decision of the Supreme Court in Vidhyacharan Shukla (supra) which has been relied upon by learned counsel for the petitioner has been distinguished in Hukumdev Yadav (supra) and Anwari Patil (supra) for the reason that it interprets the provisions of Section 29(2) of the earlier Limitation Act, 1908. Learned counsel for the petitioner is, therefore, not justified in placing reliance on the said decision.
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.
Date: 5.12.2012 NSC