Kerala High Court
Anandavally vs Ajitha on 6 December, 2000
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT M. Ramachandran, J.
1. The petitioner has filed an Election Petition, under S- 59 of the Kerala Panchayat Raj Act, to get the election of the first respondent set aside. The election for Trikaripur Grama Panchayat was held on 27.9.2000 and the results were declared on 28.9.2000. The first respondent was declared elected as a member from Ward No. VII. The petitioner had filed an election petition on 8.11.2000 before the Munsiff's Court, Hosdurg. Thus, it was filed beyond the time prescribed under the Act. Taking note of the above, the learned Munsiff has dismissed the election as barred by limitation, evidenced by Ext. P3.
2. The petitioner challenges the above said order as the petitioner submits that sufficient reasons were given for condoning the delay in filing the election petition and an application under S. 5 of the Limitation Act was maintainable.
3. I had heard the Standing Counsel for the Election Commission. He has submitted that there is no provision in the Kerala Panchayat Raj Act for condoning the delay in filing an election petition as the time prescribed is absolute. An election petition has to be fifed within 30 days of the declaration of results, under S. 59 of the Act. If it is not filed as prescribed under S. 93, the petition is liable to be rejected. It is further submitted that the explanation to the section provides that such an order is deemed to be an order passed under S. 100. In such a situation, the petitioner has got a right of appeal as envisaged under S. 113 of the Act. Therefore, the Standing Counsel submitted that even if the petitioner is aggrieved by the impugned order an appeal is the proper remedy and not a petition under Art. 226 of the Constitution of India.
4. Mr. Kaleeswaram Raj pointed out that the petitioner may not be entitled to get the remedy by pursuing with the appeal as the issue has finally to be resolved by this Court. Counsel relied on the decision reported in P. Sarathy v. State Bank of India ((2000) 5 SCC 355). It is pointed out that any authority or Tribunal having the trappings of a court would be a "Court" within the meaning of S. 14 of the Limitation Act and notwithstanding the absence of any provisions in the Panchayat Raj Act as regards the applicability of the Limitation Act the petitioner's application under S. 5 of the said Act ought to have been taken notice of.
5. As the parties had joined issue, I may have to examine the matter. As has been pointed out by the Standing Counsel, there is a statutory remedy of appeal available to the petitioner, but this has not been availed of as according to him, it may not be expedient. When there is a specific provision for appeal, especially in the mailer like an election petition, direct recourse to extra ordinary jurisdiction may not be advisable. submits the Counsel for the Election Commission. But as the counsel for the petitioner points that this is a case where an appeal may not be efficacious, for the scope of examination is very limited. However, that is no reason for entertaining an Original Petition, since an appellate authority will be competent to pronounce upon the matter whether it be a question of law or a question of fact.
6. The applicability or otherwise of the Limitation Act in an election petition is no more a matter of doubt. I may straight away refer to the decision reported in Hukumdev v. Lalit Narain (AIR 1974 SC 480). A three Judges Bench of the Supreme Court had examined the issue and it was a case where the application of the Limitation Act as also application of 10 of the General Clauses Act had been the issue. It has been categorically held that the scope of examination is whether the scheme of the special law or the nature of the remedy provided therein are such that the Legislature intended it to be a complete code. The relevant portion which may be applicable herein is extracted herein below:-
"23. In Charan Lal Sahu v. Nandkishore Bhatt (1973) 2 SCC 530 = (AIR 1973 SC 2464) it was held that there is no question of any common law right to challenge an election as such any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes. It was observed that if no discretion was conferred in respect of any of these matters, none can be exercised under any general law or on any principles of equity. If for non-compliance with the provisions of Ss. 82 and 117 which are mandatory, the election petition has to be dismissed under S. 86(1) the presentation of election petition within the period prescribed in S. 81 would be equally mandatory, the non-compliance with which visits the penalty of the petition being dismissed. The answer to the plea that if the petition were to be dismissed, allegations of serious corrupt practices cannot be enquired into and the purity of the elections cannot be maintained is that given by Mitter J., in Venkateswara Rao's case (1969) 1 SCR 679 = AIR 1969 SC 872) where he said at p. 689:
"That is however a matter which can be set right only by the Legislature. It is worthy of note that although the Act has been amended on several occasions, a provision like S. 86(1) as it now stands has always been on the statute book but whereas in the Act of 1951 the discretion was given to the Election Commission to entertain a petition beyond the period fixed if it was satisfied as to the cause for delay no such saving clause is to be found now. The legislature in its wisdom has made the observance of certain formalities and provisions obligatory and failure in that respect can only be visited with a dismissal of the petition."
7. On an examination of the Kerala Panchayat Raj Act, it is seen that Chapter 10 exclusively deals with the disputes relating to elections. S. 89 prescribes the method of filing of an election petition and there is provisions for an appeal. It may also be relevant to note that in a matter of appeal it has been stated that even though such an appeal has to be filed within a period of 30 days of the date of the order, there is provision to condone the delay in filing the appeal at the discretion of the Court. Here also there is no reference to the impact of the Limitation Act, but the jurisdiction has been conferred by the statutory provision itself.
8. In the above background, it will be difficult to accept the argument of the petitioner that S. 5 of the Limitation Act was applicable to the matter of filing an election petition.
9. The petitioner forcefully refers to the decision reported in Sarathy's case (2000) 5 SCC 355), referred to earlier. The principles of this decision, according to me, may not be applicable in the instant case, as the case therein was whether the Deputy Labour Commissioner was a "Court". S. 14 of the Limitation Act, it was held, does not speak of a civil court but speaks of only a court. Any authority or tribunal having trappings of a court come within its purview and it need not be a civil court. The Supreme Court had held, in the above circumstance, that an appeal filed under S. 41 of the Tamil Nadu Shops and Establishments Act, even if filed out of time, could have been entertained if there was an application under S. 5 of the Limitation Act. When the Kerala Panchayat Raj Act is a complete code in itself, import of the Limitation Act on the strength of the above decision is not warranted.
10. Consequently, I hold that the impugned order Ext. P3 does not suffer from any legal infirmities. The Original Petition is dismissed.