Citation Codes

Equivalent Citations

citation codes

Case Number

1) C.R No. 2287 of 2010 (O&M), 2) C.R No. 2288 of 2010 (O&M), 3) C.R No. 2289 of 2010 (O&M), 4) C.R No. 2290 of 2010 (O&M), 5) C.R No. 2291 of 2010 (O&M), C.R No. 2287 of 2010 (O&M); C.R No. 2288 of 2010 (O&M); C.R No. 2289 of 2010 (O&M); C.R No. 2290 of 2010 (O&M); and C.R No. 2291 of 2010 (O&M)

Advocates

Mr. Vikas Bahl, Advocate for the petitioner(s).
Mr. R.P Dhir, Advocate for respondent No. 3.
Mr. Munish Garg, Advocate for respondent No. 4.
Mr. Satish Bhanot, Addl. A.G, Punjab.

Judges

Alok Singh, J.

Acts

Section 76(1) of the Punjab State Election Commission Act, 1994 (for brevity Act, 1994)
provisions of section 76 or section 77 or section 103.Explanation:-
provisions of Sections 4 to 24 of the Indian Limitation Act
provisions of Section 81 or Section 82 or Section 117,
SECTION 5 LIMITATION ACT
provision of Section 76 of the 1994 Act,
REPRESENTATION OF THE PEOPLE ACT 1951
Hyderabad Municipal Corporation Act
sub-section (1) of Section 89
INDIAN LIMITATION ACT

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Smart Summary

Structured Summary of the Opinion (ALOK SINGH, J.)

Factual and Procedural Background

This matter comprises five revision petitions raising the same questions of law and fact; they were disposed of by a common order. For the Municipal Committee, Nawanshahr, elections were held on 30.6.2008 and results declared the same day. Respondent No. 3 (the election petitioner) initially filed a writ petition (CWP No. 14592 of 2008) before this Court challenging the election and the result. A Division Bench of this Court disposed of the writ petition on 20.8.2008, granting liberty to the petitioner therein to file an election petition before the Election Tribunal and directing that, if filed, it shall be decided expeditiously. A review application against the Division Bench order was rejected, and the order dated 20.8.2008 was challenged before the Supreme Court in SLP No. 27853-27854 of 2008. The Supreme Court dismissed the Special Leave Petition on 1.12.2008, permitting the petitioner(s) to raise questions of fact and law before the Election Tribunal.

An election petition was filed by respondent No. 3 before the Election Tribunal on 3.9.2008 with defects later cured on 24.9.2009. Along with the petition an application for condonation of delay was filed and allowed by the Election Tribunal by its order dated 23.2.2010. The returned candidates/petitioners filed the present revision petitions challenging that order.

Legal Issues Presented

Whether the Election Tribunal was legally entitled to condone the delay in filing the election petition notwithstanding Section 76(1) and Section 80 of the Punjab State Election Commission Act, 1994 (which prescribe filing within 45 days and mandate dismissal for non-compliance).
Whether the provisions of the Indian Limitation Act apply to election petitions filed under the Act, 1994, or whether the special code in the Act, 1994 excludes the Limitation Act.
Whether prior orders of this Court and the Supreme Court (granting liberty to file an election petition and directing decision on merits) operate as or amount to condonation of delay in filing the election petition.

Arguments of the Parties

Appellant(s) / Returned Candidates (represented by Mr. Vikas Bahl)

The election petition was filed under Section 76(1) of the Punjab State Election Commission Act, 1994, and must be presented within 45 days from the date of election of the returned candidate.
Section 80 of the Act, 1994 provides that an election petition not filed in accordance with Section 76 must be dismissed; the use of the word "shall" makes dismissal mandatory.
The Limitation Act is not applicable to election petitions under the Act, 1994; accordingly, the Tribunal had no option but to dismiss a time-barred petition and could not condone delay.
Relied upon the Supreme Court decision in Lachhman Das Arora v. Ganeshi Lal ((1999) 8 SCC 532) and a Single Judge decision of this Court in Joginder Singh v. Baldeep Singh (2010(1) R.C.R (Civil) 78).

Respondent No. 3 / Election Petitioner (represented by Mr. R.P. Dhir)

Argued that this Court's order dated 20.8.2008 directing the petitioner to file an election petition and directing that the petition be decided entitled the Election Tribunal to condone delay; the Tribunal acted within jurisdiction in condoning delay.
Noted that the Supreme Court in the SLP had permitted the petitioner to raise all questions of fact and/or law before the Tribunal and had directed the petition to be decided on merits; hence, dismissal on limitation grounds would defeat that mandate.
Contended that dismissal at the initial stage without condoning the delay would amount to non-deciding the petition on merits, contrary to directions of this Court and the Supreme Court.
Relied upon Shaik Saidulu alias Saida v. Chukka Yesu Ratnam and others (AIR 2002 SC 749) to support his position.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lachhman Das Arora v. Ganeshi Lal, (1999) 8 SCC 532	Held that the Representation of the People Act is a special code prescribing a period of limitation for filing election petitions; provisions of the Indian Limitation Act (Sections 4 to 24) do not apply to election petitions under the special statute; if an election petition is not filed within the prescribed period the court shall dismiss it.	The Court followed the ratio of the three-Judge Bench in Lachhman Das Arora and applied it to the 1994 Act context: concluded that the Limitation Act is not applicable and that Section 80 of the 1994 Act mandates dismissal of petitions filed beyond 45 days.
Joginder Singh v. Baldeep Singh and others, 2010(1) R.C.R (Civil) 78 (Single Judge of this Court)	Interpreted Section 76 of the 1994 Act and held that a High Court's dismissal of a writ petition with liberty to file an election petition does not amount to condonation of delay; where no specific direction for condonation was given, the election petition filed beyond 45 days was time barred.	The Court observed that the facts of the present case were almost identical to Joginder Singh and relied on its reasoning to conclude that mere liberty to file an election petition does not equate to condoning delay.
Shaik Saidulu alias Saida v. Chukka Yesu Ratnam and others, AIR 2002 Supreme Court 749	Held, in the context of the Hyderabad Municipal Corporation Act, that exclusion of Section 5 of the Limitation Act must be specified under the special statute; if the special act is silent on exclusion, Section 5 of the Limitation Act can be invoked.	The Court acknowledged the dictum but noted that this decision was not referred to the three-Judge Bench in Lachhman Das Arora. Despite Shaik Saidulu, the Court determined it must follow the three-Judge Bench ratio in Lachhman Das Arora and therefore applied that precedent to hold the Limitation Act inapplicable to the 1994 Act.

Court's Reasoning and Analysis

The Court undertook a textual and precedential analysis focused on Sections 76 and 80 of the Punjab State Election Commission Act, 1994. The Court reproduced Sections 76 and 80 and observed:

Section 76(1) prescribes that an election petition must be presented within 45 days from the date of election of the returned candidate (or the later date if multiple returned candidates exist).
Section 80(1) provides that the Election Tribunal "shall" dismiss an election petition which does not comply with Section 76 (or Section 77 or 103). The Court interpreted the word "shall" as making dismissal mandatory where the time-limit in Section 76 is not met.
The Court considered the three-Judge Bench decision in Lachhman Das Arora, which held that the Representation of the People Act constitutes a special code prescribing limitation for election petitions and that the Indian Limitation Act's provisions (Sections 4 to 24) do not apply; non-compliance with the prescribed period mandates dismissal. The Court treated this ratio as binding and directly applicable in principle to election petitions under a special statute.
The Court examined the Single Judge decision in Joginder Singh, which held that a High Court's dismissal of a writ petition with liberty to file an election petition does not amount to condonation of delay. The Court found the facts in the present case almost identical to Joginder Singh and relied on that reasoning to reject the contention that the earlier liberty operated as condonation.
The Court also noted the two-Judge Bench decision in Shaik Saidulu which allowed invocation of Section 5 of the Limitation Act where a special statute was silent about exclusion of the Limitation Act. The Court observed that Shaik Saidulu was not cited before the three-Judge Bench in Lachhman Das Arora. Given the binding nature of a three-Judge Bench decision, the Court concluded it must follow Lachhman Das Arora rather than the reasoning in Shaik Saidulu for the issue before it.
The Court further analyzed the Supreme Court's order (1.12.2008) permitting the petitioner to raise all questions of fact and law and directing the Tribunal to decide the petition on merits. The Court interpreted that order to mean the Tribunal must consider any limitation objection on its merits; it did not amount to an automatic bar on deciding limitation, nor did it amount to condoning delay.
On applying the legislative text and the binding precedents, the Court concluded the Election Tribunal erred in condoning the delay; where an election petition under the 1994 Act was filed beyond 45 days, the Tribunal was bound by Section 80 to dismiss it.

Holding and Implications

Holding: The Court allowed the present revision petition, set aside the impugned order dated 23.2.2010, and dismissed the election petition as being time barred. The election petition was held to be time barred and dismissed; the Tribunal's condonation order was set aside.

Implications:

Direct effect on the parties: The Election Tribunal's order condoning delay (23.2.2010) is set aside and the election petition stands dismissed as time barred; the revision petition by the returned candidates succeeds.
Legal consequence for tribunals: For election petitions under the Act, 1994, a petition filed beyond the 45-day period of Section 76(1) must be dismissed under Section 80(1); tribunals cannot condone such delay where the statutory scheme (read with the binding three-Judge Bench precedent) excludes application of the Limitation Act.
Precedential note: The Court relied on and followed the three-Judge Bench ratio in Lachhman Das Arora. The opinion does not purport to create new precedent beyond applying existing authority; it declines to treat prior directions to file an election petition (or the Supreme Court's permission to raise issues on merits) as amounting to condonation of delay.

A copy of the order was directed to be placed on the files of the connected cases. (Order dated 31st August, 2010; Judge: ALOK SINGH)

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Chet Ram Petitioner v. State Of Punjab And Others S

ALOK SINGH, J. (ORAL)

1. These are five revision petitions involving same questions of law and facts, hence, all are being disposed of with the consent of learned Counsel for both the parties, by this common order.

2. In the present petition, order impugned is dated 23.2.2010 passed by learned Deputy Commissioner-cum-Election Tribunal, Nawanshahr. Brief facts of the present case are that for the Municipal Committee, Nawanshahr, election was held on 30.6.2008 and the result was declared on the same day; respondent No. 3 herein filed a writ petition being CWP No. 14592 of 2008 before this Court challenging the election and its result dated 30.6.2008; a Division Bench of this Court vide order dated 20.8.2008, disposed of the writ petition with liberty to the petitioner therein to file an election petition before the Election Tribunal with further direction that if election petition is filed, it shall be decided expeditiously; against the order dated 20.8.2008, a review application was moved by the petitioner herein/returned candidate, however, same was also rejected; order dated 20.8.2008 was challenged before the Hon'ble Apex Court in SLP No. 27853-27854 of 2008; the Hon'ble Apex Court vide order dated 1.12.2008 dismissed the Special Leave to Appeal with permission to the petitioner(s) herein to raise all questions of facts and/or law as permissible under the law before the Election Tribunal.

3. An election petition was filed by the respondent No. 3 herein before the Election Tribunal on 3.9.2008 with certain defects. However, defects were removed on 24.9.2009 Alongwith the elec- tion petition, an application for condonation of delay was also moved by respondent No. 3 which was allowed by the Election Tribunal vide impugned order dated 23.2.2010

4. Learned Election Tribunal in the impugned order dated 23.2.2010 has held that although provisions of Limitation Act are not applicable, however, in view of the filing of the writ petition prior to filing of the election petition and in view of the order passed by this Court directing the petitioner therein to file election petition and the direction that petition shall be disposed of on merit, delay in filing the election petition is condoned.

5. Feeling aggrieved from the order of the Election Tribunal dated 23.2.2010, returned candidates/petitioners herein have filed present revision petitions.

6. Mr. Vikas Bahl, learned Counsel for the petitioner(s) vehemently argued that election petition is filed under Section 76(1) of the Punjab State Election Commission Act, 1994 (for brevity ‘Act, 1994’) challenging the election of the Municipal Committee. He further states that as per Section 76(1) of the Act, 1994, election petition is to be filed within 45 days from the date of election of the returned candidate. He further states that Section 80 of the Act, 1994 further provides that if petition is not filed in accordance with Section 76 of the Act, 1994, the same shall be dismissed. Mr. Vikas Bahl, learned Counsel for the petitioner(s) while taking shelter of Section 76(1) and Section 80 of the Act, 1994 vehemently argued that if peti- tion is not filed within 45 days from the date of election of returned candidate, Tribunal has no other option except to dismiss it in accordance with Section 80 of the Act, 1994. He further states that in view of Section 80 of the Act, 1994, limitation Act shall not be applicable in the matter of the election petitions filed under Section 76 of the Act. Mr. Vikas Bahl, learned Counsel for the petitioner(s) has heavily relied upon the judgment of the Hon'ble Apex Court in the matter of Lachhman Das Arora v. Ganeshi Lal and others reported in (1999) 8 Supreme Court Cases 532 and judgment of learned Single Judge of this Court in the matter of Joginder Singh v. Baldeep Singh and others reported in 2010(1) R.C.R (Civil) 78.

7. Mr. R.P Dhir, learned Counsel for respondent No. 3.election petitioner argued that since this Court while disposing writ petitions filed by the election petitioner vide order dated 20.8.2008 directed the election petitioner to file an election petition and has further directed to decide the election petition, hence, learned Tribunal was well within its jurisdiction while condoning the delay. He further argued that even the Hon'ble Supreme Court in the SLP filed by the petitioner herein has directed that election petition shall be decided on merit in accordance with law, hence, election petition can not be dismissed on the ground of limitation and Election Tribunal was well within its jurisdiction while condoning the delay. He further argued that if petition is dismissed at the initial stage without condoning the delay it would amount to non-deciding of the petition at its own merit as directed by this Court as well as the Hon'ble Apex Court. Mr. R.P Dhir, learned Counsel for respondent No. 3 has heavily relied upon the judgment of the Hon'ble Apex Court in the matter of Shaik Saidulu alias Saida v. Chukka Yesu Ratnam and others reported in AIR 2002 Supreme Court 749.

8. I have carefully heard learned Counsel for both the parties and examined the relevant provisions of law and judgments cited by both the Counsel.

9. To appreciate the respective arguments advanced by learned Counsel for the parties, I deem it proper to reproduce Sections 76 and 80 of the Act, 1994.

“76. Presentation of petition:- (1) An election petition may be presented on one or more of the grounds specified in sub-section (1) of Section 89 to the Election Tribunal by any candidate to such election or by any elector within a period of forty five days from the date of election of the returned candidate or if there are more than one returned candidates at the election and there are different dates of their election, then the later of these dates shall be taken into account for this purpose.

(2) Every election petition shall be accompanied by as many copies thereof, as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition.

80. Trial of election petitions:- (1) The Election Tribunal shall dismiss an election petition which does not comply with the provisions of section 76 or section 77 or section 103.

Explanation:- An order of the Election Tribunal dismissing an election petition under this sub-section, shall be deemed to be an order made under clause (a) of Section 87.

(2) Where more than one election petitions are presented to the Election Tribunal in respect of the same matter, the Presiding Officer of the Election Tribunal may, in his discretion, try them separately or in one or more groups.

(3) Any candidate not already a respondent shall, upon application made by him to the Election Tribunal within fourteen days from the date of commencement of the trial of the election petition and subject to any order as to security for costs which may be made by the Election Tribunal, be entitled to be joined as a respondent.

Explanation:- For the purposes of this subsection and of section 86, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the Election Tribunal and to answer the claim or claims, as the case may be, made in the petition.

(4) The Election Tribunal may, upon such terms as to costs and otherwise, as it may deem fit, allow to particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner, as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice which has not been previously alleged in the petition.

(5) The trial of an election petition shall, so far as is practicable consistently with the interest of justice of the trial be continued from day-to-day until the conclusion, unless the Election Tribunal finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(6) Every election petition shall be tried as expeditiously as possible and every endeavour shall be made to conclude the trial within a period of six months from the date on which the election petition is presented to the Election Tribunal for trial.”

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 days from the date of the election of the returned 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:-

“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.

14. From the order passed by this Court dated 20.8.2008, I am unable to find out any observation made by Divisional Bench of this Court of the effect that if election petition is filed the delay in filing the election petition shall be condoned on account of filing of the writ petition before this Court. Not only this, the Hon'ble Apex Court vide order dated 1.12.2008 has permitted the present petitioner/returned candidate to raise all questions of fact and/or law before the Election Tribunal. The Hon'ble Apex Court further directed the Tribunal to consider all the questions raised before the Tribunal on merit and to decide the petition in accordance with law. The only meaning of the order of the Hon'ble Apex Court would be, if question of limitation is raised then Tribunal shall decide the question of limitation at its own merit in accordance with law. However, order of the Hon'ble Apex Court can not be interpreted to mean that question of limitation shall not be decided and election petition shall be decided at its own merit as suggested by Mr. R.P Dhir, learned Counsel for respondent No. 3.election petitioner.

15. However, in the matter of Shaik Saidulu alias Saida (supra), two Judges Bench of Hon'ble Apex Court while interpreting the Hyderabad Municipal Corporation Act has held that exclusion of Section 5 of the Limitation Act must be specified under the special statute and it has further been held that since Act is silent about the exclusion of the Limitation Act, hence, Section 5 of the Limitation Act can be pressed into service.

16. Although judgment of the Hon'ble Apex Court in the matter of Shaik Saidulu alias Saida (supra) was not referred before the three Judges Bench of the Hon'ble Apex Court in the matter of Lachhman Das Arora (supra), however, in view of the dictum of the Hon'ble Apex Court in the matter of Lachhman Das Arora (supra) (three Judges Bench), I have to follow the ratio laid down in the matter of Lachhman Das Arora (supra). In view of the above, I find that in the matter of election petition filed under the provisions of the Act, 1994, Limitation Act is not applicable in view of Section 80 of the Act and Tribunal has no other option except to dismiss the election peti-tion if filed beyond 45 days from the date of election of the returned candidate.

17. In view of the observation made above, impugned order dated 23.2.2010 can not be sustained in the eyes of law. Present petition is allowed. Impugned order dated 23.2.2010 is set aside. Election petition is dismissed as being time barred.

18. A copy of this order be placed on files of the connected cases.

(ALOK SINGH) 31st August, 2010 JUDGE

ashish

Chet Ram Petitioner v. State Of Punjab And Others S

Structured Summary of the Opinion (ALOK SINGH, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant(s) / Returned Candidates (represented by Mr. Vikas Bahl)

Respondent No. 3 / Election Petitioner (represented by Mr. R.P. Dhir)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chet Ram Petitioner v. State Of Punjab And Others S

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