The petitioner, who had contested the election for the office of Adhyaksha of the Zila Panchayat, Jaunpur reserved for a Scheduled Caste candidate, has filed this petition for quashing the order dated 12th October, 2012 passed by the Additional District Judge, Court No.1, Jaunpur by which the application filed by the petitioner under Section 5 read with Section 14 of the Limitation Act 1963 (hereinafter referred to as the 'Limitation Act') for condoning the delay in filing the election petition to question the election of respondent No.4-Aneeta Rawat under Rule 33 of the Uttar Pradesh Zila Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the '1994 Rules') has been rejected and consequently the election petition has been dismissed.
It transpires from the records of the writ petition that the petitioner was elected as a member of the Zila Panchayat, Jaunpur from Ward No.58 reserved for a Scheduled Caste candidate and respondent No.4-Aneeta Rawat was also elected as a member of the Zila Panchayat from Ward No.23 reserved for a Scheduled Caste candidate. A notification dated 21st November, 2010 was issued for election of Adhyaksha of the Zila Panchayat, Jaunpur reserved for a candidate belonging to the Scheduled Caste. The petitioner contested the election in which respondent No.4-Aneeta Rawat was declared elected as Adhyaksha of Zila Panchayat, Jaunpur on 12th December, 2010.
The petitioner contends that respondent No.4-Aneeta Rawat is not a candidate belonging to the Scheduled Caste as she belongs to the Backward Classes and, therefore, could not have been elected as a member of the Zila Panchayat or as Adhyaksha of the Zila Panchayat. The petitioner, accordingly, filed Writ Petition No.10418 of 2011 with a prayer that the District Magistrate may decide the representation filed by the petitioner for cancellation of the caste certificate of Aneeta Rawat-respondent No.4. The petitioner also filed Writ Petition No.74380 of 2011 for issue of a writ of quo warranto directing Aneeta Rawat to justify her continuance as Adhyaksha of the Zila Panchayat. These petitions were dismissed by the judgment and order dated 23rd May, 2011. With respect to Writ Petition No.10418 of 2010, the Court observed that the petitioner could file an appeal before the Appellate Forum while with respect to Writ Petition No.74380 of 2011, the Court observed that the petitioner could avail of the alternative remedy of filing an election petition.
The petitioner, accordingly, filed Election Petition No.219 of 2011 on 12th July, 2011 before the District Judge, Jaunpur under Rule 33 of the 1994 Rules. This election petition was accompanied by an application under Section 5 read with Section 14 of the Limitation Act for condoning the delay in filing the election petition as the result was declared on 12th December, 2010 and under Rule 33 of the 1994 Rules the petition could be filed within thirty days from the date of declaration of the result. The application filed by the petitioner under Section 5 read with Section 14 of the Limitation Act was rejected by the order dated 12th October, 2012 for the reason that the Limitation Act was not applicable to the election petition filed under Rule 33 of the 1994 Rules. It is this order dated 12th October, 2012 that has been assailed in this writ petition.
Sri Ashwani Kumar Mishra, learned counsel appearing for the petitioner assisted by Sri Ajeet Singh, submitted that the finding recorded in the impugned order that the provisions of the Limitation Act are not applicable to an election petition filed under Rule 33 of the 1994 Rules deserves to be set aside for the reason that the provisions of the Limitation Act would be applicable to the proceedings in view of the provisions of Section 29(2) of the Limitation Act. Learned counsel submitted that the provisions of the Limitation Act are neither expressly nor by implication excluded as the 1994 Rules are not a complete code with regard to filing of election petition and in support of his contention he placed reliance on the decision of the Supreme Court in Vidhyacharan Shukla Vs. Khub Chand Baghel AIR 1964 SC 1097. In this connection, learned counsel for the petitioner also placed the provisions of Sections 81, 82, 86 and 117 of The Representation of the People Act, 1951 and submitted that in view of the provisions of Rules 33, 34, 35, 38, 43 and 47 of the 1994 Rules, the law laid down in the decisions of the Supreme Court in Hukumdev Narain Yadav Vs. Lalit Narain Mishra, AIR 1974 SC 480 and Anwari Basavaraj Patil & Ors., Vs. Siddaramaiah & Ors., reported in AIR 1994 SC 512 will not be applicable to an election petition filed under Rule 33 of the 1994 Rules as The Representation of the People Act, 1951 is a complete code whereas the 1994 Rules are not a complete code and they do not provide for consequences if the election petition is not filed in accordance with the provisions of the 1994 Rules.
Learned Standing Counsel appearing for respondent Nos. 1, 2 and 3 and Sri Rahul Mishra, learned counsel appearing for respondent No.4, however, supported the impugned order and submitted that the provisions of the Limitation Act will not be applicable to an election petition filed under Rule 33 of the 1994 Rules as the Rules are a complete code for questioning the election. Learned counsel also submitted that the decisions of the Supreme Court in Vidhyacharan Shukla (supra) was subsequently distinguished by the Supreme Court in Hukum Dev Yadav (supra) and Anwari Patil (supra) and will not help the petitioner.
I have considered the submissions advanced by learned counsel for the parties.
Section 17 of the U.P. Kshettra Panchayats & Zila Panchayats Adhiniyam 1961 (hereinafter referred to as the 'Act') refers to the establishment and incorporation of the Zila Panchayats and Section 18 which deals with the composition of Zila Panchayats provides that a Zila Panchayat shall consist of an Adhyaksha who shall be its Chairperson and the other members of the Zila Panchayat will be as provided for in sub-sections (a) to (d) of the said Section. Section 19 of the Act provides that in every Zila Panchayat an Adhyaksha shall be elected by the elected members of the Zila Panchayat from amongst themselves and Section 19-A of the Act provides that the offices of Adhyakshas of the Zila Panchayats in the State shall be reserved for the persons belonging to the Scheduled Castes, the Scheduled Tribe and the Backward Classes in the manner contained in the proviso to the section. Section 264-B of the Act deals with the manner and conduct of election and provides that the election of the office of an Adhyaksha or a member of a Zila Panchayat shall be held by secret ballot in the manner provided by rules which shall also provide for resolution of doubts and disputes relating to the election of such Adhyaksha.
In exercise of the powers conferred on the State Government under Section 237 of the Act read with Section 27(2)(c) and Section 264-B of the Act, the 1994 Rules have been framed. Chapter IV of the 1994 Rules deals with disputes regarding elections of Adhyaksha and Upadhyaksha and the relevant Rules 33, 34, 35, 36, 37, 38, 40, 47 and 49 are reproduced below:-
"33. Time and manner of presenting petitions.-(1) An election petition calling in question the election of an Adhyaksha or Up-Adhyaksha may be presented to the Judge at any time within thirty days from the date of declaration of the result under Rule 13, Rule 28, as the case may be.
(2) It shall be presented in person by the petitioner or if there are more than one petitioner, by any one or more of them.
34. Form, etc. of petition.-(1) An election petition shall specify the ground or grounds on which the election of the returned candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such grounds.
(2) The person whose election is questioned and where the petitioner claims that any other candidate shall be declared elected in the place of such person, every unsuccessful candidate shall be made a respondent to the petition.
35. Relief that may be claimed by the petitioner.-(1) A petitioner may claim either of the following declarations.-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected.
36. Security.-(1) At the time of presenting an election petition the petitioner shall enclose with it a receipt showing that a sum of two hundred and fifty rupees has been deposited by him or on his behalf in a Government Treasury or in the State Bank of India as security for the costs of the petition.
(2) There shall be paid on an election the Court-fee prescribed in the Court Fees Act, 1870, or if no such Court fee is prescribed in that Act, a fee of Rs.125 in Court-fee stamps.
37. Recrimination when seat claimed.- When in election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election.
38. Procedure.-(1) Except so far as provided by the Act or in these rules, the procedure provided in the Civil Procedure Code, 1908, in regard to suits, shall, insofar as it is not inconsistent with the Act or any provisions of these rules and it can be made applicable, be allowed in the hearing of the election petitions:
Provided that-
(a) any two or more elections relating to the election of the same person may be heard together;
(b) the Judge shall not be required to record or to have recorded the evidence in full but shall make a memorandum of the evidence sufficient in his opinion for the purpose of deciding the case;
(c) the Judge may, at any stage of the proceedings require the petitioner to give further cash security for the payment of the costs incurred or likely to be incurred by any respondent;
(d) for the purpose of deciding any issue the Judge shall be required to order production of or to receive only so much evidence, oral or documentary, as he considers necessary;
(e) no appeal or revision shall lie on a question of fact or law against any decision or the Judge;
(f) the Judge may review his decision on any point on an application being made within fifteen days from the date of the decision by any person considering himself aggrieved thereby; and
(g) no witness or other person shall be required to state for whom he has voted at an election.
(2) The provisions of the Indian Evidence Act, 1872 (Act No.1 of 1872) shall be deemed to apply in all respects to the trial of an election petition.
(3) Before the hearing of an election petition commences or before the final hearing takes place, the petition may be withdrawn by the petitioner or the petitioners, as the case may be, by making an application to the Judge requesting for the withdrawal of the petition and upon the making of such an application the petition shall stand withdrawn and no further action shall be taken for its trial.
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40. Orders of the Judge.-(1) If the Judge after making such inquiry as he deems fit finds in respect of any person whose election is called in question by a petition that his election was valid, he shall dismiss the petition as against such person and award costs at his discretion.
(2) If the Judge finds that the election of any person was invalid he shall either-
(a) declare a casual vacancy to have been created; or
(b) declare another candidate to have been duly elected and in either case may award costs at his discretion.
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47. Appeal against the order of the Judge.-(1) An appeal shall lie from every order made by the Judge under Rule 40 to the High Court within thirty days from the date of the order:
Provided that the High Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.
(2) Every person who prefers an appeal under sub-rule (1) shall enclose with the memorandum of appeal a Government Treasury receipt showing that a deposit of five hundred rupees has been made by him either in a Government Treasury or in the State Bank of India in favour of the High Court as security for costs of the appeal.
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49. Form, etc. of petition.-(1) A petition presented under Rule 48 shall specify the grounds on which the person is alleged to have become disqualified to be Adhyaksha or Up-Adhyaksha and shall contain a summary of the circumstances alleged to justify the dispute being raised on such grounds.
(2) The Adhyaksha or the Up-Adhyaksha against whom the dispute has been raised shall be made as a respondent to the petition.
It is seen that while Rule 33 does not provide for condoning the delay in filing the application to question the election of the Adhyaksha, Rule 47 which provides for filing of an appeal against an order passed under Rule 40 does provide for condoning the delay even if the appeal is filed after the expiry of thirty days if the appellant is able to establish that he had sufficient cause for not preferring the appeal within such period. This clearly shows that the Legislature intended to exclude the applicability of the Limitation Act to the provisions of the 1994 Rules because if it was not so, there would have been no necessity of giving power to the Appellate Court to condone the delay even if the appeal was filed beyond the statutory period of thirty days.
In Commissioner of Customs and Central Excise Vs. Hongo India Private Limited & Anr. (2009) 5 SCC 791 a Constitution Bench of the Supreme Court examined whether the High Court had the power to condone the delay in presentation of the appeal under the unamended Section 35-G or a reference application under the unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period by applying Section 5 of the Limitation Act when the other provisions of Section 35 did provide for condoning the delay. The High Court had dismissed the Reference Application holding that it had no power to condone the delay. The Supreme Court noticed that under Section 35 of the Central Excise Act, 1944, an appeal could be filed to the Commissioner of Central Excise (Appeals) against the order passed by the Central Excise Officer within sixty days from the date of communication but the Commissioner (Appeals) could condone the delay upto a further period of thirty days if the appellant was able to satisfy that he was prevented by sufficient cause in not presenting the appeal within the period prescribed. The Supreme Court also noticed that under Section 35-B of the Central Excise Act an appeal could be filed before the Appellate Tribunal against the said order within three months with power to the Appellate Tribunal to condone the delay if sufficient cause was shown. The Supreme Court also noticed that under Section 35-EE a Revision could be filed before the Central Government within three months, but the Revisional Authority could condone the delay for a further period of three months if it was satisfied that the applicant was prevented by sufficient cause from presenting the application within three months. The Supreme Court then noticed that under the unamended provisions of Section 35-G or Section 35-H(1), an appeal or a reference respectively could be filed in the High Court within 180 days without any power to the High Court to condone the delay if the same were not filed within the aforesaid period.
It is on examination of the aforesaid provisions of the Central Excise Act, 1944 that the Supreme Court held that in such circumstances the High Court had no power to condone the delay in filing the reference or appeal under the unamended Section 35-G or Section 35-H(1) of the Central Excise Act, 1944 and the observations are:-
"30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.
31. In this regard, it is useful to refer to a recent decision of this Court in Commissioner of Central Excise & Customs Vs. Punjab Fibres Ltd., Noida (2008) 3 SCC 73. The Commissioner of Customs, Central Excise, Noida was the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35-H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Others, (2008) 3 SCC 70 concluded that:
"8.........the High Court was justified in holding that there was no powe