Quashed

Vinod Kumar v. Somnath

Chhattisgarh HC20 Sept 2022WP227/101/2016

Case brief

AI extract

What is this about?

In a writ petition, the High Court of Chhattisgarh set aside a District Judge's order allowing condonation of delay for an election petition. The Court held that the Limitation Act does not apply to election proceedings, which are governed by a self-contained code requiring strict adherence to the 30-day statutory limit. Consequently, the election petition was dismissed.

What did the court decide?

The order allowing condonation of delay dated 04-01-2016 is quashed, and the consequent election petition is held to be dismissed.

Vinod Kumar Vs Somnath — Election Law | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WP227 No. 101 of 2016

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Vinod Kumar S/o Shri Basant Ram, Aged About 41 Years, Caste Uraon, R/o Village Kusmi, Tahsil Kusmi, District Balrampur, Chhattisgarh, Chhattisgarh

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---- Petitioner

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Versus

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Somnath S/o Late Shri Maheli Bhagat, Aged About 59 Years, Caste Uraon, R/o Village Kusmi, Tahsil Kusmi, District Balrampur, Chhattisgarh, Chhattisgarh

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Radhe Shyam Nageshiya, S/o Ropna Nageshiya, Aged About 60 Years, R/o Village Kusmi, Tahsil Kusmi, District Balrampur, Chhattisgarh, District : Balrampur, Chhattisgarh

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Sub Divisional Officer, Kusmi, Sub Division Kusmi, District Returning Officer, Kusmi, District Balrampur, Chhattisgarh, District : Balrampur, Chhattisgarh

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Tahsildar Kusmi, Assistant Returning Officer, Tahsil Kusmi, District Balrampur, Chhattisgarh, District : Balrampur, Chhattisgarh

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The Chief Municipal Officer, Nagar Panchayat Kusmi, District Balrampur, Chhattisgarh, District : Balrampur, Chhattisgarh

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----Non-applicant

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For Petitioner – Dr. Sudeep Agrawal, Advocate. For Respondent No.1 – Mr. R.V. Rajwade, Advocate. For Respondents No.3 and 4 – Mr. Sudhir Sahu, Panel Lawyer. For Respondent No.5 – Mr. Vivek Kumar Agrawal, Advocate.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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20-09-2022

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The petitioner is challenging the order dated 04-01-2016 passed by the District Judge Surguja, District Ambikapur in Petition No.22/2015 whereby the application moved by respondent No.1 under Section 5 read with Section 14 of the Limitation Act has been allowed.

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The election of Nagar Panchayat Kusmi was scheduled on 31-12-2014

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and counting took place on 04-01-2015. The result of election was notified in the gazette on 08-01-2015. The petitioner as well as respondents No.1 and 2 contested the election for office of Nagar Panchayat Kusmi and the petitioner was declared elected. After notification of the election, respondent No.1, being the unsuccessful candidate, preferred election petition under Section 20 of

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Chhattisgarh Municipalities Act before the Collector. On 05-02-2015 the case was registered before the Collector, Balrampur-Ramanujganj and the Collector vide order dated 01-04-2015 dismissed the election petition on the ground that the same is not maintainable.

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The respondent No.1 thereafter preferred election petition under Section 20 of the Municipalities Act, 1961 before the District Judge, Surguja on 09-042015 and the same was registered as Petition No.22/2015. The respondent No.1 moved an application for condonation of delay under Section 5 read with Section 14 of the Limitation Act assigning the reason that earlier petition was preferred before the Collector and thereafter, the same has been filed before the District Judge.

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The learned District Judge without issuing notice to the other party vide order dated 04-01-2016 allowed the application filed by respondent No.1 under Section 5 read with Section 14 of the Limitation Act on the ground that erroneously the earlier petition was preferred before the Collector and that period may be condoned as the election petitioner was honestly prosecuting the case there. It was observed that the election petition preferred by respondent No.1 is within limitation.

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Learned counsel for the petitioner Dr. Sudeep Agrawal, submits that in election law limitation Act does not apply and the application for condonation of delay cannot be entertained. He further submits that the learned District Judge has committed illegality in condoning the delay. Referring to Section 20 subsection 3 of the Act, 1961 he argues that the election petitions are to be filed strictly in accordance with provisions of the act, the law of election is selfcontained code and provisions of the Limitation Act do not apply in election proceedings.

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On the other hand, learned counsel for respondent No.1, Mr. R.V. Rajwade supports the order passed by the District Judge and submits that the

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District Judge has exercised the power given under the law and the order passed by the District Judge dated 04-01-2016 is in accordance with law which does not require any interference by this Court.

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Learned counsel for respondent No.5, Mr. Vivek Kumar Agrawal submits that limitation law does not apply to election law.

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Learned counsel for the State supports the order.

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I have heard learned counsel for the parties and perused the record.

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The provisions of Section 20 of the Municipalities Act, 1961 is reproduced hereinbelow:-

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“ Section 20 - Election petitions

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(1) No election or [nomination] under this Act shall be called into question except by a petition presented in accordance with the provisions of this section.

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(2) Such petition may be presented on one or more of the grounds specified in Section 22--

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(a) by any candidate at such election or [nomination]; or

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(b) (i) in the case of an election of a Councillor, by any voter of the ward concerned;

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(ii) in the case of a nomination of Councillor, by any Councillor;

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[(iii) in the case of election of President by any voter of the Municipal area,]

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to the District Judge, where such election or [nomination] is held within the revenue district in which the Court of the District Judge is situate, and in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue district in which such election or

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[nomination] is held and if there be more than one such Additional District Judge within the said revenue district, to such one of them as the District Judge may specify for the purpose (hereinafter such District Judge or Additional District Judge referred to as Judge).

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(3) No petition presented under sub section(2), shall be admitted unless -

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(i) It is presented within 30 days from the date on which the result of such election or [nomination] was notified in the Gazette; and

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(ii) it is a accompanied by a Government Treasury receipt showing a deposit of two hundred rupees, in the case of [election or nomination to municipal Councils] and one hundred rupee, in the case of election or nomination to Nagar Panchayats.

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(4) A petitioner shall join as respondents to his petitioner

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(a) where the petitioner, in addition to claiming a declaration that the election or [nomination], as the case may be, of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected or [nominated], all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

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(b) any other candidate against whom allegations of any corrupt practice are made in the petition.

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(5) An election petition shall

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(a) contain a concise statement of the material facts on which the petitioner relies;

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(b) set forth with sufficient particulars, the ground or grounds on which the election or [nomination] called in question,

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(c) be signed by the petitioner and verified in the manner prescribed in the Code of Civil Procedure, 1908 (V of 1908), for the verification of pleadings.”

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Section 20(3) of the Act, 1961 deals with limitation and the period of limitation given in this section for filing of election petition is 30 days. The period of limitation prescribed under this section cannot be extended by application of Section 5 or other provisions of the Limitation Act.

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This Court in the matter of Taukir Dani Vs. Chandagi Ram and others in Civil Revision No.23/2006 has dealt with similar issue and in paragraphs No.15, 17, 18, 19, 23 and 24 as under :-

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“15. From a conjoint reading of section 20 sub-section 1, sub-section 2 and sub-section 3, it emerges that the election petition is to be presented strictly in accordance with the provisions of this section which provides that the petition is to be presented by any candidate in such election to the District Judge of the revenue district where such election is held and in any other case, to the Additional District Judge having the permanent seat of his Court within the revenue district in which such election is held and where there are more than one Additional District Judge within the said revenue district, to such Additional District Judge who has been specified for this purpose by the District Judge.

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Sub-section 3 of section 20 of the Act makes it mandatory that no petition is to be admitted under sub-section 2 by the Tribunal unless it is presented within thirty days from the date on which the result of such election was notified in the Gazette. Thus as per provisions of sub-section 2 of section 20 which is mandatory, the election petitioner could not have

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filed the election petition in the Court of First Additional District Judge, Mahasamund as the said court was not specified by the District Judge, Raipur as a Judge for the election petition under the Act and the learned Additional District Judge, Mahasamund rightly returned the petition for want of jurisdiction.

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The next question is - whether the District Judge was justified in condoning he time spent by respondent No.1 (the election petitioner) in bonafidely prosecuting his election petition in the Court of First Additional District Judge, Mahasamund?

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The above question has come for consideration before the Supreme Court on number of occasions. Paragraph- 14 of the judgment of the Supreme Court in the matter of K. Venkateswara Rao (supra) [AIR 1969 S.C. 872] is being reproduced hereinunder:

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“14. It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such 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 some 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. In our opinion however the Limitation act cannot apply to proceedings like an election petition inasmuch as the Representation of People Act is a complete and selfcontained code which does not admit of the introduction of the

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principles or the provisions of law contained in the Indian Limitation Act .”

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In the matter of Lachhman Das Arora Vs. Ganeshi Lal and others reported in (1999) 8 SCC 532 it has been held by the Supreme Court in paragraph -7 that “no period for filing of an election petition is described 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 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.”

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In the instant case also as has been mentioned above, section 20 sub-section 1, sub-section 2 and sub-section 3 clearly provides that no petition presented to the designated Tribunal under sub-section 2 shall be admitted unless it is presented within thirty days from the date on which result of such election is notified in the Gazette. It has already been held by referring to various provisions of the special Act that Act is a complete code insofar as it relates to presentation and trial of election dispute, therefore, section 4 to section 24 of the Indian Limitation Act has no application in the matters of election petition under the Act and it is mandatory for the Tribunal to dismiss any election petition presented beyond the period prescribed under the Limitation Act i.e. 30 days.“ (emphasis supplied)

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On the basis of the aforesaid discussion and after going through the provisions of Section 20(3) of the Chhattisgarh Municipalities Act, 1961 and the law laid down by this Court, it is quite vivid that the Tribunal/District Judge has

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no power to condone the delay in filing the election petition. Consequently, the order passed by the learned tribunal is illegal and the same is accordingly set aside. Consequence of the same would be that the election petition is dismissed.

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Sd/-

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(Rakesh Mohan Pandey ) Judge

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Aadil

Vinod Kumar v. Somnath

Case brief

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Vinod Kumar v. Somnath

Case brief

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