SUMAN DEVI versus MANISHA DEVI AND ORS. on 21 August 2018

26

[2018] 10 S.C.R. 26

SUPREME COURT REPORTS

[2018] 10 S.C.R.

A

SUMAN DEVI

v.

MANISHA DEVI AND ORS.

(Civil Appeal No. 8337 of 2018)

B

AUGUST 21, 2018

[DIPAK MISRA, CJI AND DR. D.Y. CHANDRACHUD, J.]

Haryana Panchayati Raj Act, 1994 – s. 176 – Electionpetition – Applicability of Limitation Act, when appeal filed afterthe period prescribed under the Act – Held: Election petition mustCbe filed within a period of 30 days of the date of the declaration ofresults – Said period cannot be extended – Provision of s. 14 of theLimitation Act, 1963 is clearly excluded – Election petition which isfiled after the prescribed period is barred by Limitation and is liableto be dismissed – On facts, grant of liberty to file a fresh electionDpetition cannot obviate the bar of limitation – Fresh election petitionfiled by the first respondent was beyond the statutory period of 30days, thus, is dismissed – Limitation Act, 1963 – s. 14.

On facts, first respondent was permitted to withdraw theelection petition challenging the election of the appellant-returnedEcandidate, with liberty to institute a fresh petition. Thereafter,the first respondent filed a second election petition. Appellantfiled an application under Order 7 Rule 11 CPC for rejection ofthe election petition on the ground that it was barred by limitation.First respondent then filed an application u/s. 5 read with Section14 of the Limitation Act that if the limitation for filing the electionFpetition had expired, the period spent between the filing of theearlier petition and its withdrawal may be excluded. Trial Courtallowed the application under Order 7 Rule 11. However, theDistrict Judge as also the High Court set aside the same. Hence,the present appeal.

G

Allowing the appeal, the Court

HELD: The Haryana Panchayati Raj Act, 1994 is a completecode for the presentation of election petitions. The statute hasmandated that an election petition must be filed within a periodof 30 days of the date of the declaration of results. This period H

A

cannot be extended. The provision of Section 14 of the LimitationAct 1963 would clearly stand excluded. The legislature havingmade a specific provision, any election petition which fails tocomply with the statute is liable to be dismissed. The High Courtfailed to notice both the binding judgments of this Court and itsown precedents on the subject. The first respondent filed anelection petition in the first instance to which there was anobjection to maintainability under Order 7 Rule 11 CPC.Confronted with the objection under Order 7 Rule 11, the firstrespondent obviated a decision thereon by withdrawing theelection petition. On facts, grant of liberty to file a fresh electionpetition cannot obviate the bar of limitation. The fresh electionpetition filed by the first respondent was beyond the statutoryperiod of 30 days and hence is dismissed. The impugned order ofthe High Court is set aside. [Paras 9, 10] [33-F-H; 34-A, B]

B

C

Joginder Singh v Baldev Singh 2010 (1) PLR 769 ;Rashpal Singh @ Rachpal Singh v Jasvir Singh2009 (3) RCR (Civil) 408 ; Chet Ram v State of Punjab2010 (4) PLR 718 ; Darshan Singh v Karamjit Singh2012 (2) PLR 831 ; Parkasho v Bhola Devi 2012(3)PLR 541;Deepa Mangla v Nanak ChandCR No 523/2013 decided on 06.02.2015 ; Hukum DevNarain Yadav v Lalit Narain Mishra (1974) 2 SCC133 : [1974] 3 SCR 31 ; Charan Lal Sahu v NandkishoreBhatt (1973) 2 SCC 530 : [1974] 1 SCR 294 ;Lachhman Das Arora v Ganeshi Lal (1999) 8 SCC532 : [1999] 2 Suppl. SCR 174 – referred to.

D

E

F

Case Law Reference

H

ACIVIL APPELLATE JURISDICTION : Civil Appeal No. 8337of 2018.

From the Judgment and Order dated 11.08.2017 of the High Courtof Punjab and Haryana at Chandigarh in Civil Revision No. 1120 of2017.BMs. Kaveeta Wadia, Shashank Tripathi, Shish Pal Later, JohriMal, Sonit Sinhmar, Devesh Kumar Tripathi, Advs. for the appearingparties.

The Judgment of the Court was delivered by

CDR. D. Y. CHANDRACHUD, J. 1. The appellant and the firstrespondent contested elections for the post of Ward Councilor, fromWard No 18 of the District Council of Mahendergarh. The results ofelection were declared on 28 January 2016.The appellant was declaredto be the elected candidate. On 10 February 2016, the first respondentfiled an Election Petition namely, Civil Suit 9/2016 (CS 1086/2016) underDSection 176 of the Haryana Panchayati Raj Act 1994 challenging theelection of the appellant. Upon service of the election petition, theappellant filed an application under Order 7 Rule 11 of the CPC forrejection of the petition on the ground that the first respondent had failedto present it in person as required by Section 176. Notice was issued onEthe application. The respondent filed her reply. On 1 March 2016, thefirst respondent moved an application for withdrawal of the electionpetition. The application was allowed by the Civil Judge, Junior Divisionon the same day and the first respondent was permitted to withdraw theelection petition with liberty to institute a fresh petition. Subsequently on2 March 2016 the first respondent filed a second election petition, CivilFSuit 361/2016(CS 1106/2016). The appellant filed an application underOrder 7 Rule 11 for rejection of the election petition on the ground that itwas barred by limitation. An application was thereupon filed by the firstrespondent purportedly under Section 5 read with Section 14 of theLimitation Act submitting inter alia that if the limitation for filing theGelection petition had expired, the period spent between the filing of theearlier petition and its withdrawal may be excluded since the firstrespondent was bona fide espousing her remedies. The appellant opposedthe application.

2. By a judgment dated 19 July 2016 the Trial Court allowed theapplication under Order 7 Rule 11 on the ground that the fresh electionpetition was presented after the expiry of 30 days prescribed for theinstitution of an election petition. The first respondent preferred an appealwhich was allowed by the District Judge, Narnaul on 18 January 2017.The appellant challenged the order of the District Judge before the HighCourt. The Civil Revision has been dismissed by the impugned order ofthe High Court dated 11 August 2017. The High Court has observedthus:

“The application under Section 14 of the Limitation Act was filedsubsequently when petitioner herein raised an objections(sic).Section 14 of the Limitation Act does not provide for filing of aseparate application. In any case, now application under Section14 of the Limitation Act has already been filed, therefore, theirregularity, if any, stand cured.”

3. The learned counsel appearing on behalf of the appellantsubmits that the Haryana Panchayati Raj Act 1994 is a complete codefor the presentation and adjudication of election petitions. Counselsubmitted that an election petition has to be instituted under Section 176within 30 days from the date of the declaration of the results of theelections. An election petition which does not comply with Section 176must be rejected outright. Learned counsel submitted that this view hasconsistently been followed in several decisions of the Punjab and HaryanaHigh Court, to which a reference was made. These are: JoginderSingh v Baldev Singh[1], Rashpal Singh @ Rachpal Singh v JasvirSingh[2], Chet Ram v State of Punjab[3], Darshan Singh v KaramjitSingh[4], Parkasho v Bhola Devi[5] and Deepa Mangla v NanakChand[6].

4. On the other hand, learned counsel appearing on behalf of thefirst respondent submitted that a triable case arises against the appellantfor submitting a false certificate of Matriculation and hence, the order ofthe High Court may not be interfered with.

12010(1) PLR 769 paras 6 & 722009(3) RCR (Civil) 40832010(4) PLR 71842012(2) PLR 83152012(3) PLR 5416CR No 523/2013 decided on 06.02.2015

AB

C

DEF

G

H

[2018] 10 S.C.R.

A

5. Section 176 of the Haryana Panchayati Raj Act 1994 providesas follows:

176. Determination of validity of election enquiry by judge andprocedure:

(1) If the validity of any election of a member of a GramBPanchayat, Panchayat Samiti or Zila Parishad or 2 [ * * * ]Sarpanch of Gram Panchayat, Chairman or Vice-Chairman,President or Vice-President of Panchayat Samiti or Zila Parishadrespectively is brought in question by any person contesting theelection or by any person qualified to vote at the election to whichsuch question relates, such person may at any time within thirtyCdays after the date of the declaration of results of the election , present an election petition to the civil court having ordinaryjurisdiction in the area within which the election has been or shouldhave been held, for the determination of such question.

(2) A petitioner shall not join as respondent to his election petitionDexcept the following persons :—

(a) where the petitioner in addition to challenging the validity ofthe election of all or any of the returned candidates claims a furtherrelief that he himself or any other candidate has been duly elected,all the contesting candidates other than the petitioner and whereno such further relief is claimed, all the returned candidates ; E

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

(3) All election petitions received under sub-section (1) in whichthe validity of the election of members to represent the sameFelectoral division is in question, shall be heard by the same civilcourt.

(4) (a) If on the holding such inquiry the civil court finds that acandidate has, for the purpose of election committed a corruptpractice within the meaning of sub-section (5) he shall set asidethe election and declare the candidate disqualified for the purposeGof election and fresh election may be held.

1[(aa) If on holding such enquiry the Civil Court finds that-

(i) on the date of his election a returned candidate was notqualified to be elected; H

(ii) any nomination has been improperly rejected; or

(iii) the result of the election, in so far it concerns a returnedcandidate, has been materially affected by improperacceptance of any nomination or by any corrupt practicecommitted in the interest of the returned candidate by anagent other than his election agent or by the improperreception, refusal or rejection of any vote or the receptionof any vote which is void or by any non-compliance with orviolation of the provisions of the Constitution of India or ofthis Act, or any rules or orders made under this Act,election of such returned candidate shall be set aside andfresh election may be held.;]

(b) If, in any case to which 2[clause (a) or clause (aa)] does notapply, the validity of an election is in dispute between two or morecandidates, the court shall after a scrutiny and computation of thevotes recorded in favour of each candidate, declare the candidatewho is found to have the largest number of valid votes in hisfavour, to have been duty elected : Provided that after suchcomputation, if any, equality of votes is found to exist betweenany candidate and the addition of one vote will entitle any of thecandidate to be declared elected, one additional vote shall be addedto the total number of valid votes found to have been received inthe favour of such candidate or candidates, as the case may be,elected by lot drawn in the presence of the judge in such manneras he may determine.

(5) A person shall be deemed to have committed a corruptpractice-

(5) A person shall be deemed to have committed a corruptpractice- (a) who with a view to induce a voter to give or to refrain fromgiving a vote in favour of any candidate, offers or gives any moneyor valuable consideration, or holds out any promise of individualprofit, or holds out any threat of injury to any person ; or (b) who, with a view to induce any person to stand or not to standor to withdraw or not to withdraw from being a candidate at anelection, offers or gives any money or valuable consideration orholds out any promise or individual profit or holds out any threatof injury to any person ; or A

B

C

D

E

F

G

H

A

(c) who hires or procures whether on payment or otherwise, anyvehicle or vessel for the conveyance of any voter (other than theperson himself, the members of his family or his agent) to andfrom any polling station.

Explanation 1.– A corrupt practice shall be deemed to have beenBcommitted by a candidate, if it has been committed with hisknowledge and consent by a person who is acting under thegeneral or special authority of such candidate with reference tothe election.

Explanation 2.– The expression “vehicle” means any vehicle usedor capable of being used for the purpose of road transport whetherpropelled by mechanical power or otherwise, and whether usedfor drawing other vehicles or otherwise.”

C

Sub-section (1) of Section 176 clearly specifies a period of 30days from the date of the declaration of the results of the election withinDwhich an election petition has to be filed. There is no provision forcondoning delay or for extending the period of limitation.

6. In Hukum Dev Narain Yadav v Lalit Narain Mishra[7], whileconsidering whether the provisions of the Limitation Act 1963 would beapplicable to an election petition under the Representation of People ActE1951, P.Jaganmohan Reddy, J., speaking for a three Judge bench of thisCourt held thus:

“..The applicability of these provisions has, therefore, to be Judgednot from the terms of the Limitation Act but by the provisions ofthe Act relating to the filing of election petitions and their trial toascertain whether it is a complete code in itself which does notFadmit of the application of any of the provisions of the LimitationAct mentioned in Section 29(2) of that Act.”

This Court held that the provisions of Section 5 of the LimitationAct do not govern filing of election petitions or their trial.

7. In Charan Lal Sahu v Nandkishore Bhatt[8], a two Judgebench held that there is no common law right to challenge an electionsince it is purely a matter of regulation by the terms of the statute. Theright being statutory, the terms of the statute must be complied with.

G

7(1974) 2 SCC 1338(1973) 2 SCC 530H

8. A three Judge bench of this Court in Lachhman Das Arora vGaneshi Lal[9], construed the provisions of Section 81 (1) of theRepresentation of the People Act 1951, which prescribes a period of 45days to file an election petition. Chief Justice Dr AS Anand, speaking forthe Court, held thus:

“7. On its plain reading, Section 81(1) lays down that an electionpetition calling in question any election may be presented on oneor more of the grounds specified in sub-section (1) of Section 100and Section 101 of the Act to the High Court by any candidate atsuch election or by an elector within forty-five days from, but notearlier than, the date of election of the returned candidate, or ifthere are more than one returned candidate at the election andthe dates of their election are different, the later of those twodates. The Act is a special code providing a period of limitationfor filing of an election petition. No period for filing of an electionpetition is prescribed under the Indian Limitation Act. The Actinsofar as it relates to presentation and trial of election disputes isa complete code and a special law. The scheme of the speciallaw shows that the provisions of Sections 4 to 24 of the IndianLimitation Act do not apply. If an election petition is not filed withinthe prescribed period of forty-five days, Section 86(1) of the Act,which provides that the High Court shall dismiss an election petitionwhich does not comply with the provisions of Section 81 or Section82 or Section 117, is straightaway attracted.”

9. The Haryana Panchayati Raj Act 1994 is a complete code forthe presentation of election petitions. The statute has mandated that anelection petition must be filed within a period of 30 days of the date ofthe declaration of results. This period cannot be extended. The provisionof Section 14 of the Limitation Act 1963 would clearly stand excluded.The legislature having made a specific provision, any election petitionwhich fails to comply with thestatute is liable to be dismissed. The HighCourt has failed to notice both the binding judgments of this Court and itsown precedents on the subject, to which we have referred. The firstrespondent filed an election petition in the first instance to which therewas an objection to maintainability under Order 7 Rule 11 of the CPC.Confronted with the objection under Order 7 Rule 11, the first respondentobviated a decision thereon by withdrawing the election petition. The A

BC

D

E

F

G

H

Agrant of liberty to file a fresh election petition cannot obviate the bar oflimitation. The fresh election petition filed by the first respondent wasbeyond the statutory period of 30 days and was hence liable to be rejected.

10. We, accordingly, allow the appeal and set aside the impugnedorder of the High Court dated 11 August 2017. We hold that the electionBpetition filed by the first respondent shall stand dismissed There shall beno order as to costs.

Nidhi Jain

Appeal allowed.

C

D

E

F

G

H