Allahabad High Court
Smt. Phool Kumari vs Sub-Divisional Officer Tehsil Maholi ... on 9 November, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 7 Case :- MISC. SINGLE No. - 7620 of 2020 Petitioner :- Smt. Phool Kumari Respondent :- Sub-Divisional Officer Tehsil Maholi Distt. Sitapur & Ors. Counsel for Petitioner :- Naveen Chandra Upadhyay Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
This petition has been filed challenging the order dated 22.02.2020 passed by the Sub-Divisional Officer/Prescribed Authority in Case No.02772 of 2019 under Section 12(C) of the U.P. Panchayat Raj Act, 1974 and the order dated 22.10.2019 passed by the Additional District Judge, Court No.5, Sitapur in Revision No.4 of 18 under Section 12C (6) of the Act and also praying for a mandamus to the authorities not to interfere in the working of the petitioner as Gram Pradhan of Village- Semrahan, Block- Alia, P.O- Padarkha, Tehsil- Maholi, Pargana and District- Sitapur.
The facts of the case as pleaded by learned counsel for the petitioner is that the petitioner is the elected Gram Pradhan of Village Semrahan. The respondent no.3-Smt. Jai Devi filed a Writ Petition No.7822(M/S) of 2015: Smt. Jai Devi Vs. State of U.P. and others, under Article 227 of the Constitution of India, challenging the election of the petitioner. The said petition was dismissed leaving it open for Smt. Jai Devi to approach appropriate forum under the U.P. Panchayat Raj Act, 1947. Smt. Jai Devi filed a time barred and defective election petition bearing No.7 of of 2017 on 28.04.2017 before the Prescribed Authority-Sub-Divisional Officer, Maholi, praying for re-counting of votes. The election petition was not accompanied by any application of condonation for delay. The Prescribed Authority issued notices and the petitioner filed objection on 13.06.2017 pointing out the question of maintainability of the delayed election petition. The Prescribed Authority dismissed the aforesaid election petition on 03.08.2017 on grounds of delay.
The respondent no.3 thereafter filed a Writ Petition No.19105 (M/S) of 2017: Smt. Jai Devi Vs. S.D.M., Maholi, Sitapur and others, challenging the order dated 03.08.2017. This Court dismissed the petition as not pressed on 04.12.2017. The respondent no.3 again filed a highly time barred Revision No.4 of 2018 under Section 12-C (6) of the U.P. Panchayat Raj Act, 1947, before the court of District Judge, Sitapur. The petitioner filed her objection on 21.02.2018. The respondent no.2- Additional District Judge, allowed the said Revision on 22.10.2019 and remanded the matter to the Prescribed Authority to decide the matter afresh on the application of condonation for delay filed under Section 5 of the limitation Act. Now, the respondent no.1-Sub-Divisional Officer, Maholi, has been pleased to allow the application of condonation for delay on 22.02.2020 without any jurisdiction.
Hence this petition.
It has been argued by Sri Naveen Chandra Upadhyaya, learned counsel for the petitioner, that this Court in Ansar Ahmad Vs. Sub-Divisional Officer, Kairana and others, reported in 1998 (3) A.W.C. 1807 (Allahabad High Court), has held that Section 5 of the Limitation Act is not available for the purpose of condonation for delay in entertaining election petition filed beyond the period of limitation i.e. 90 days.
Learned counsel for the petitioner has also placed reliance upon the judgment of Hon'ble Supreme Court rendered in Reji Thomas and others Vs. State of Kerala and others, reported in (2018 ALL.C.J. 1570) (S.C.), holding that in case of election petition, the Court has to adopt a strict interpretation of the law.
Learned counsel for the petitioner has read out paragraphs-10 and 11 of the said judgment, which are being quoted hereinbelow:-
"10. Article 243-ZK of the Constitution of India, which provides for election of members to the Managing Committee of a cooperative society, reads as follows:
"243-ZK. Election of Members of Board.?(1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a Board shall be conducted before the expiry of the term of the Board so as to ensure that the newly elected members of the Board assume office immediately on the expiry of the term of the office of members of the outgoing Board.
(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a cooperative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:
Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections."
11. Section 69 of the Act is the mechanism provided by the State Legislature as contemplated under Article 243-ZK(2) of the Constitution of India. Once the mechanism provided under the statute provides for a time schedule for preferring an election petition, in the absence of a provision in the statute for enlarging the time under any given circumstances, no court, whether the High Court under Article 226 or this Court under Articles 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant v. Jagdeeshwari Jagdish Amin and others, reported in (2015) 12 SCC 169, though in a different context, has held at para 33 that "In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law."
It is apparent from a perusal of the judgment of this Court and of the Hon'ble Supreme Court that with regard to Section 12C of the U.P. Panchyat Raj Act and Uttar Pradesh Panchayat Raj (Settlement of Election Disputes) Rules, 1994, there is no power given to the Prescribed Authority to condone the delay in filing the election petition.
This Court finds from the orders impugned that the respondent no.2- Additional District Judge, Sitapur, has decided the Revision on 22.10.2019 in ignorance of the law settled by Hon'ble Supreme Court and followed by this Court. Consequently, the order dated 22.10.2019 is set aside. The order passed by the Prescribed Authority dated 22.02.2020 has been rendered without jurisdiction, is also set aside.
The writ petition stands allowed.
Order Date :- 9.11.2020 Rahul