Punjab-Haryana High Court
Parkasho vs Bholi Devi on 28 May, 2012
Author: Rajesh Bindal
Bench: Rajesh Bindal
Civil Revision No. 6086 2011 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 6086 of 2011 (O&M)
Date of decision : 28.5.2012
Parkasho ..... Petitioner
vs
Bholi Devi ..... Respondent
Coram: Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Vikas Kumar, Advocate, for the petitioner.
Rajesh Bindal J.
The election petition along with application for condonation of
delay filed by the appellant having been dismissed by the learned Court
below vide orders dated 28.7.2011 and 4.8.2011, the same are impugned
before this court.
Briefly, the facts are that election for Sarpanch of village Tappi,
Tehsil Dabwali, District Sirsa was held on 6.6.2010. The appellant, being
aggrieved, challenged the same before the learned court below on the
ground that some forged and bogus votes were casted in favour of the
elected candidate. The petitioner Parkasho initially challenged the election
of Sarpanch by filing CWP No. 11997 of 2010 Parkash Devi and others vs
State of Haryana and others in this court. The same was dismissed as
withdrawn on 12.7.2010 with liberty to file election petition. Thereafter, the
petitioner filed election petition along with application for condonation of
delay before the learned court below. Application for condonation of delay
was dismissed on 28.7.2011, consequently, the election petition was also
dismissed on account of delay vide order dated 4.8.2011. These orders are
impugned before this court.
Learned counsel for the petitioner submitted that in fact, there
was no delay in filing of election petition. The result of election was
Civil Revision No. 6086 2011 (2)
declared on 6.6.2010. The petitioner filed Civil Writ Petition No. 11997 of
2010 before this Court, which was dismissed as withdrawn on 12.7.2010
with liberty to the petitioner to file election petition. Immediately thereafter,
on 28.7.2010, the election petition was filed before the court below. When
the petitioner was pursuing her remedy before this court in writ jurisdiction,
the period spent therein should have been excluded for the purpose of
consideration of period for filing the election petition before the court
below.
Heard learned counsel for the petitioner and perused the paper-
book.
To appreciate the arguments advanced by learned counsel for
the petitioner, a reference to the appropriate provisions of the Limitation
Act, 1963 (for short, the Limitation Act) and the Haryana Panchayati Raj
Act, 1994 (for short, the Panchayati Raj Act) is required, which are
extracted below:-
Section 5 of the Limitation Act
5. Extension of prescribed period in certain cases.-
Any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908 (5 of 1908), may be admitted after the
prescribed period if the appellant or the applicant satisfies
the court that he had sufficient cause for not preferring the
appeal or making the application within such period.
Explanation.--The fact that the appellant or the
applicant was misled by any order, practice or judgment of
the High Court in ascertaining or computing the prescribed
period may be sufficient cause within the meaning of this
section.
Section 176 (1) of the Panchayati Raj Act
176. Determination of validity of election enquiry
by judge and procedure.-- (1) If the validity of any election
of a member of a Gram Panchayat, Panchayat Samiti or Zila
Parishad or Sarpanch of Gram Panchayat, Chairman or
Civil Revision No. 6086 2011 (3)
Vice-Chairman, President or Vice-President of Panchayat
Samiti or Zila Parishad respectively is brought in question
by any person contesting the election or by any person
qualified to vote at the election to which such question
relates, such person may at any time within thirty days after
the date of the declaration of results of the election, present
an election petition to the civil court having ordinary
jurisdiction in the area within which the election has been or
should have been held, for the determination of such
question.
A perusal of Section 5 of the Limitation Act reveals that it is
applicable only to appeals and applications, other than the applications
made under any of the provisions of Order XXI of the CPC. It is not
applicable to suits. Now question arises as to the applicability of the law of
Limitation on election petitions. Section 176 of the Panchayati Raj Act is
silent about the same.
In Chet Ram and others vs State of Punjab and others 2010 (4)
PLR 718, this court held that in the matter of election petition filed under
the Punjab State Election Commission Act, 1994, the Limitation Act is not
applicable in view of Section 80 of the Act and the 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. Relevant paras of the
judgment are extracted below :-
"10. 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
Civil Revision No. 6086 2011 (4)
days from the date of the election of the retuned candidate as
provided by Section 76 of the Act, 1994.
11. 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:-
"7. 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."
12. 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:-
Civil Revision No. 6086 2011 (5)
"7. 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."
13. 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.
In Rashpal Singh alias Rachpal Singh and others vs Jasvir
Singh and others (P&H) 2010 (2) R. C. R. (Civil) 408, this Court held that
Civil Revision No. 6086 2011 (6)
an election petition is like on original suit in which delay cannot be
condoned. The relevant paragraphs of the judgment are extracted below:-
10. The question in this case is whether election petition
has been filed by the candidate (respondent No.1.)
challenging the election of the appellants on the grounds
provided under Section 89 (1) within 45 days from the date
of election.
In the present case, facts have already been noticed.
11. Election was held on 26.5.2008. Writ petition was
filed by respondent No.1. in this Court which was ultimately
disposed of on 4.10.2008. Admittedly, the time which has
been consumed by respondent No.1 in pursuing his remedy
in the writ Court, was not condoned. Then the question is
that if the limitation is counted from 4.10.2008, whether the
election petition is within limitation ?. The answer is 'No'
because the election petition has been filed on 15.12.2008
after the expiry of 71 days. The question then arises whether
provisions of the Limitation Act, 1963 are applicable to the
facts of this case for the purpose of condonation of delay.
12. In this regard, learned counsel for the appellants has
relied upon a decision of the Apex Court in the case of G.V.
Sreerama Reddy & Anr. Vs. Returning Officer & Ors,
2009 (3) RCR (Civil) 937. This was a case under the
Representation of the People Act, 1951. Provisions of
Section 81 (1) of the Act provides that election petition
should be presented within 45 days. The question arose
whether provisions of Limitation Act, 1963 are applicable.
The apex Court held that Limitation Act cannot apply to the
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 principles or the provisions of law contained in the
Indian Limitation Act. Similarly, same language has been
Civil Revision No. 6086 2011 (7)
adopted in the Act in Section 76 that an election petition has
to be filed within 45 days. The Apex Court held that the
object of presenting an election petition by a candidate or
elector is to ensure genuineness and to curtail vexatious
litigations. If we consider sub section (1) along-with the
other provisions in Chapters II and III, the object and intent
of the Legislature is that this provision i.e, Section 81 (I) is
to be strictly adhered to and complied with. Thus, the
election petition is highly belated as respondent No.1. has
failed to seek condonation of delay even at the stage when
the writ petition was disposed of by this Court. Moreover,
election petition is like an original suit in which delay
cannot be condoned.
In FAO No. 2749 of 2009- Smt. Gurdev Kaur vs Smt. Surjit
Kaur and others, decided on 7.2.2011, this court held that an election
petition filed beyond the statutory period from the date of order even if filed
after withdrawal of writ petition challenging the same very election, would
be beyond limitation and consequently was directed to be dismissed.
Relevant paragraph thereof is reproduced here:-
"A perusal of the aforesaid order shows that the writ
petition was simply withdrawn with liberty to challenge the
election by filing an election petition in accordance with
law. That would necessarily mean that the Tribunal was to
consider whether in terms of the provisions of the Act, the
election petition was maintainable or not. If considered with
reference to Section 76 thereof, the election petition filed by
the appellant was clearly beyond 45 days, which is the
period of limitation provided for the purpose of filing the
election petition and had to be dismissed as time-barred.
The consequence of filing of an election petition in
violation of the provisions of Section 76 of the Act have
been provided for in Section 80 thereof, which mandates
that the Election Tribunal shall dismiss an election petition
Civil Revision No. 6086 2011 (8)
which does not comply with the provisions of Sections 76,
77 or 103 of the Act. An identical issue came up before this
Court in Bagicha Singh's case (supra), wherein it was held
that an election petition filed beyond 45 days of the date of
order of the Tribunal, even if filed after withdrawal of the
writ petition challenging the same very election would be
beyond limitation and consequently was directed to be
dismissed."
The matter was also considered by Andhra Pardesh High Court
in Vardhineedi Sree Devi vs Chegondi Ramalakshmi 2007 (5) Andhra Law
Times 727, wherein it was opined that an elected candidate cannot be kept
in suspense during the entire tenure to the elected post as in case the
Limitation Act is held to be applicable, sword of a possible challenge to his
election will keep on hanging on his head. Relevant para 6 of the judgment
is extracted below:-
"6. In LACHHMAN DAS ARORA's case (4 supra),
HUKUMDEV NARAIN YADAV's case (3 supra) and
ANWARI BASAVARAJ PATIL's case (1 supra), the Apex
Court held that the courts cannot extend the period of
limitation on equitable grounds particularly in the matter of
election petitions. No doubt, the election petitions in those
cases were filed under the provisions of the Representation
of the Peoples Act. But, the ratio in those cases that the
petition questioning the election has to be filed within the
period of limitation prescribed, and question of extension of
period of limitation does not arise, applies on all fours to
election petitions filed under the A.P. Panchayat Raj Act
also, because a candidate declared elected in an election
cannot be kept under suspense during the entire tenure to
the elected post, because if Section 5 of Limitation Act is
held to apply to election petitions, it would tantamount in
holding that the election of the elected candidate would be
subject to scrutiny by court i.e. Election Tribunal at any
Civil Revision No. 6086 2011 (9)
time during his tenure, which obviously is not the intention
of the law makers. Just like limitation for filing a suit
cannot be extended by invoking Section 5 of Limitation
Act, period of limitation to file an election petition also
cannot be extended by taking the aid of Section 5 of
Limitation Act."
Reference can also be made to other judgments of this court in
upon Bagicha Singh (Ex-Sarpanch) vs Punjab State Election Commission,
Punjab, 2001(3) RCR (Civil) 526; Joginder Singh vs Baldeep Singh and
others, 2010(1) RCR (Civil) 78 and order dated 27.1.2010 passed in FAO
No. 3939 of 2009 -Satnam Singh vs Amrik Singh and others.
Similar view has been expressed by other High Courts.
Reference can be made to Anil Kumar Jha vs State of Bihar AIR 2011 Patna
1; B.M. Anandavally vs T.Ajitha and others AIR 2001 Kerala 110; Ansar
Ahmad vs Sub-Divisional Officer, Kairana and others AIR 1998 Allahabad
341.
The undisputed facts on record are that result for the election of
Sarpanch of Gram Panchayat, Tappi was declared on 6.6.2010. In terms of
the provisions of Section 176 (1) of the Panchayati Raj Act, an election
petition could be filed within 30 days after the date of the declaration of
result of the election. The petitioner filed the same on 28.7.2010, which was
apparently belated. The reason sought to be pleaded by the petitioner that as
the matter in dispute remained pending before this court in a writ petition,
the period spent therein should be excluded, has no merit. This court on
12.7.2010 permitted the petitioner to withdraw the writ petition with liberty
to file election petition. No further time was granted for filing of election
petition. The relevant part of order dated 12.7.2010 passed in writ petition is
extracted below:-
"Having perused Section 176(4)(a)(iii) of the
Haryana Panchayati Raj Act, in the opinion of this Court,
question of bogus and forged votes can be gone into in the
election petition.
At this stage, learned counsel for the petitioners
Civil Revision No. 6086 2011 (10)
seeks permission to withdraw this petition with liberty to
file election petition.
Petition is dismissed as withdrawn with liberty as
aforementioned. However, petitioners are directed to pay
Rs.5,000/- towards exemplary costs for filing frivolous
petition and arguing against the provisions of Section 176
(4) (a) (iii) of the Haryana Panchayati Raj Act. Costs be
deposited with the High Court Free Legal Aid Committee
within week from today. Payment of costs would be a
condition precedent for filing the election petition."
Facts of the present case are identical to that of Chet Ram's case
(supra). In that it was held that dismissal of the writ petition filed by the petitioners therein merely granting liberty to avail alternate remedy of filing election petition, will not amount to condoning delay in filing the election petition.
A perusal of the order passed in the writ petition shows that the writ petition was simply dismissed as withdrawn with liberty to challenge the election by filing an election petition in accordance with law. That would necessarily mean that the court below was to consider whether in terms of the provisions of the Act, the election petition was within limitation or not. As the election petition filed by the petitioner was clearly beyond 30 days, the same has rightly been dismissed as time-barred.
For the reasons mentioned above, I do not find any merit in the present petition and the same is dismissed.
28.5.2012 (Rajesh Bindal)
vs. Judge
(Refer to Reporter)