Gauhati High Court
Aslima Khatun vs The State Of Assam & 5 Ors on 11 June, 2014
Bench: Chief Justice, Ujjal Bhuyan
W.A. No.34 of 2014
BEFORE
HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE, THE CHIEF JUSTICE
HON'BLE MR. JUSTICE UJJAL BHUYAN
11.06.2014
(A.M.Sapre, CJ)
This is an intra-court appeal filed by the writ petitioner of
WP(C) No.303/2014 under Rule 2(3) of Chapter V-A of the
Gauhati High Court Rules against the order dated 24.01.2014
passed by the Single Judge in abovementioned writ petition.
By impugned order, the learned Single Judge (writ court)
dismissed the appellant's writ petition and declined to set aside
the order dated 23.12.2013 passed by the Election Tribunal
(District Judge) in the election petition filed by the respondent no.
6 against the appellant.
So the short question which arises for consideration in this appeal is whether learned Single Judge was justified in dismissing the appellant's writ petition and thereby was justified in upholding the order of the Election Tribunal passed under the provisions of The Assam Panchayat Act (hereinafter for brevity called "The Act") in an election petition filed by the respondent no 6 against the appellant?
The facts of the case lie in a narrow compass. They however need mention in brief infra to appreciate the legal issue arising in the case.
An election to the post of "President of 32 No. Malegarh Gaon Panchayat in the District Bogaigaon" was held on 6.2.2013. The appellant and respondent no. 6 were the candidates amongst others who contested the election for the said post. The Page 1 of 9 appellant was declared elected as President of 32 No. Malegarh Gaon Panchayat.
The respondent no. 6 who lost the election felt aggrieved and filed the writ petition under Article 226/227 of the Constitution of India in the High Court questioning the validity and legality of the appellant's election in W.P(C) No.1425//2013. By order dated 26.6.2013, the writ court (Single Judge) dismissed the writ petition in limine. It was held that remedy of the writ petitioner (Respondent no. 6) lay in filing the election petition under Section 129-B of the Act before the Election Tribunal (District Judge) instead of filing the writ petition under Article 226/227 of the Constitution of India.
The respondent no. 6 then filed the election petition being Election Petition No.5/2013 before the Election Tribunal/District Judge, Bongaigaon on 4.7.2013 and questioned the legality and correctness of the entire election, which eventually had resulted in appellant's winning the election for the post of President.
The appellant who was non-applicant in the election petition raised a preliminary objection before the Tribunal contending inter alia that the election petition was liable to be dismissed on the ground of limitation. It was contended that the limitation to file the election petition before the Tribunal is 60 days from the date of declaration of election results as prescribed by Section 129-B of the Act ibid and since the result of election was declared on 6.2.2013 and hence the respondent no 6 should have filed the election petition on or before 6.4.2013 i.e. within 60 days from 6.2.2013. It was pointed out that since the respondent no. 6 filed the election petition on 4.7.2013 which was apparently barred by limitation and hence it was liable to be dismissed as barred by limitation.
The Tribunal (District Judge) by order dated 23.12.2013 overruled the preliminary objection raised by the appellant and held that since the respondent no. 6 had filed the writ petition in the first instance to challenge the legality and validity of the Page 2 of 9 election within 60 days from the date of declaration of result of election and hence the delay in filing the election petition before the Tribunal was liable to be condoned by taking recourse to the provisions of Section 5 read with Section 14 of the Limitation Act. The delay was accordingly condoned and election petition was entertained as if filed within time.
The appellant having felt aggrieved filed the writ petition out of which this appeal arises and questioned the legality and correctness of the order passed by the Tribunal. By impugned order, the learned Single Judge (writ court) upheld the order of the Tribunal and dismissed the appellant's writ petition. The writ court was also of the view, that respondent no. 6 (election petitioner) was entitled to take benefit of Section 5 read with Section 14 of the Limitation Act to seek condonation of delay in filing the election petition because prior to filing of the election petition, he had filed the writ petition for prosecuting his grievance in the High Court. Though learned Single Judge did not refer to any of the sections of the Limitation Act but at the same time held that delay can be condoned in filing election petition. It is against this order of the writ court, the appellant has felt aggrieved and has filed this intra court appeal.
Heard Mr. GN Sahewalla, learned senior counsel assisted by Mr. J Ahmed, learned counsel for the appellant and Mr. B.R.Dey, learned senior counsel assisted by Mr. P Sen, learned counsel for the respondents.
Learned senior counsel Shri G.N. Sahawala while assailing the impugned order, contended that when admittedly the election petition was filed before the Tribunal beyond the period of limitation prescribed under the Act and when there is no provision in the Act to condone the delay in filing the election petition, if filed beyond the period of 60 days from the date of declaration of result of election, then in the light of these 2 admitted facts, the two courts below erred in condoning the delay in filing the election petition. Learned Counsel urged that Page 3 of 9 the Act is a special Act and provide a special period of limitation for filing the election petition, and hence the courts below should not have applied the provisions of the Limitation Act, which has no application to the Act.
Learned Counsel placed heavy reliance on two decisions of the Supreme Court reported in AIR 1969 SC 872, K. Venkateswara Rao vs. Bekkam Narasimha Reddi and AIR 1974 SC 480, Hukumdev Narain Yadav vs. Lalit Narain Mishra and contended that the issue urged by him no more remains resintegra and stands decided in appellant's favour by these two decisions of Supreme Court. He therefore urged that appeal be allowed by setting aside the impugned order.
Learned Counsel for the respondent (election petitioner) supported the impugned order and contended that both the courts below rightly condoned the delay by taking recourse to the provisions of Section 5 read with Section 14 of the Limitation Act and hence appeal be dismissed by upholding the impugned order.
Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of the learned Counsel for the appellant.
Section 129-B of the Act and Rule 54 of The Assam Panchayat (Constitution) Rules 1995 (for short hereinafter called The Rules) which are relevant for the disposal of the appeal need mention herein below.
(1) Section 129. Bar to interference by Courts in electoral matters. -
Notwithstanding anything contained in this Act-
(a) ......
(b) No election to any Panchayat shall be called in question except by an election petition presented within sixty days from the date of declaration of election results to the Tribunal constituted under Section 127."Page 4 of 9
(2) Rule 54. Other matters not provided in these Rules.- As regard other matters not provided in the Assam Panchayat (Constitution) Rules, 1995, the matters shall be guided by the relevant Rules under the Representation of the Peoples Act, 1951."
The question arose before the Supreme Court in the case reported in AIR 1969 SC 872, K. Venkateswara Rao vs. Bekkam Narasimha Reddi as to whether provisions of Limitation Act applies to election petition filed under the provisions of Representation of People Act. Their Lordships examined this question in the context of the provisions of Limitation Act and Representation of People Act and held that provisions of Limitation Act are not applicable to an election petition filed under the Representation of People Act.
Mittar, J speaking for the Bench held in para 14 as under:
"It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the Court in respect thereof are all circumscribed by the Act. The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and same special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment:
the extent of such application is governed by Section 29(2) of the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principle or the provisions of law contained in the Indian Limitation Act."Page 5 of 9
This very issue again came up for consideration before the three Judges Bench of the Supreme Court in the case reported in AIR 1974 SC, Hukumdev Narain Yadav vs. Lalit Narain Mishra.
Justice P.J. Reddy speaking for the Bench while approving the ratio laid down in K.V.Rao's case supra, held in Para 17 as under:
"17. Though s. 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 s. 29(2) has been made applicable to an election petition filed under s. 81 of the Act by virtue of which either ss. 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 under s. 81 of the Act, s. 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 ss. 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. The provisions of s. 3 of the Limitation Act that a suit instituted, appeal preferred and application made after Page 6 of 9 the prescribed period shall be dismissed are provided for in s. 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 ss. 81, 82 or
117. It will be seen that s. 81 is not the only section mentioned in s. 86, and if the Limitation Act where to apply to an election petition under s. 81 it should equally apply to ss. 82 and 117 because under s. 86 the High Court cannot say that by an application of s. 5 of the Limitation Act, s. 81 is complied with while no such benefit is available in dismissing an application for non- compliance with the provisions of ss. 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to s. 82 and s. 117 of the Act, it cannot be said that they apply to s. 81. Again, s.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, ss. 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial."
Applying the aforementioned principle of law to the election petition filed under The Act, we are of the considered opinion that the provisions of the Limitation Act have no application to the election petition filed under Section 129-B of the Act - a fortiori - neither Section 5 and nor Section 14 of the Limitation Act will have application to election petition filed under Section 129-B of the Act. In these circumstances, in our considered view, the delay in filing the election petition could not have been condoned by taking recourse to the provisions of Section 5 and 14 of the Limitation Act by the Tribunal.
On perusal of the scheme of the Act, we find that the Act in question being a special Act is a complete code in itself and contains special provision of limitation (Section 129-B) for filing the election petition to challenge the election specified under the Act. Secondly, Rule 54 provides that Rules enacted under the Representation of People Act would apply to the Act. Thirdly, the Page 7 of 9 Act does not make any provision to make the Limitation Act applicable to the Act and hence, so long as there is no provision to make the Limitation Act applicable, no benefit of Section 5 or Section 14 of the Limitation Act can be taken by the parties while prosecuting election petition under Section 129-B of the Act and lastly once the Supreme Court in two decisions have held that provisions of the Limitation Act have no application to the Representation of People Act while prosecuting the election petition under the Representation of People Act than as a necessary corollary and with the same reasoning, the Limitation Act will not apply to the Act in question.
Learned Counsel for the respondent placing reliance on Section 29 of the Limitation Act contended that by virtue of Section 29, the provisions of Section 5 and 14 of the Limitation Act would apply to the election petition filed under Section 129-B of the Act.
We do not agree. It is for the reason that this argument was repelled by the Supreme Court in two decisions referred above. Once such argument was repelled by the Supreme Court, the same cannot be again pressed in service before the High Court, it does not survive for any judicial debate.
Learned Counsel for the respondent cited a decision of Supreme Court reported in [(2009)1 SCC 786, Shakti Tubes Limited vs. State of Bihar & Others] and contended that Section 14 of the Limitation Act would apply to the facts of this case in the light of law laid down in this decision and hence this court should uphold the impugned order.
We have perused this decision rendered in Shakti Tubes Limited (supra) and find that it has no application to the case in hand. In that case, the Supreme Court interpreted Section 14 independently dehors the question as to whether provisions of Limitation Act have application to the election petition filed under any special law. The case in hand is squarely covered by the 2 decisions of Supreme Court referred above.
Page 8 of 9In the light of foregoing discussion, we cannot concur with the view taken by the Election Tribunal (District Judge) and by the writ court. We therefore uphold the preliminary objection raised by the appellant before the Tribunal and hold that election petition filed by the respondent under Section 129-B of the Act against the appellant out of which this appeal arises was barred by limitation, it having been filed beyond the period of 60 days prescribed under Section 129-B ibid. It was therefore liable to be dismissed as barred by limitation. It is accordingly dismissed as barred by limitation.
The appeal thus succeeds and is allowed. The impugned order and the order dated 23.12.2013 passed by the Tribunal are set aside.
No cost.
JUDGE CHIEF JUSTICE
TUC/-
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