- (1.) ASHOK Bhushan, J. Heard Dr. R. G. Padia, Senior Advocate for the writ petitioner and Sri R. N. Rai learned Counsel appearing for election petitioners, Respondent Nos. 2 and 3. Counter and rejoinder affidavits have been exchanged. Both the parties have agreed that writ petition itself be decided.
(2.) BY this writ petition the petitioner has prayed for quashing for the order dated 23rd May, 2002 passed by the District Judge, Ghazipur and well as the order dated 27th August, 2001 passed by the District Judge, Ghazipur. Respondent Nos. 2 and 3 filed election petition No. 257 of 2001 under Section 27 (2) of Uttar Pradesh Kshetra Samitis and Zila Parishads Adhiniyam, 1961 challenging the declaration of election of petitioner as void and declaring the election petitioners as elected. Election was held for electing members for Zila Panchayat, Ghazipur for area Bhanwarkol. Election petitioners as well as other candidates contested the election. Rama Kant, the writ petitioner who was Respondent No. 1 in the election petition was declared elected as member in Zila Panchayat, Ghazipur which election was challenged. Alongwith the election petition an application was filed under Section 5 of Limitation Act praying for condonation of delay in filing the election petition supported by an affidavit. The District Judge vide order dated 27th August, 2001 allowed the application under Section 5 of Limitation Act and directed for issue of notice to the opposite parties fixing 12th October, 2001 for written statement and 19th October, 2001 for issues. The election petition was ex parte allowed and the election of the writ petitioner, Rama Kant was declared illegal by the order dated 23rd May, 2002. This writ petition has been filed challenging the order of District Judge condoning the delay in filing the election petition as well as allowing the election petition. This Court vide its order dated 21st June, 2002, after hearing both the parties, took the view that this petition could be disposed of on the short ground that election petition as filed was barred by time and the delay in filing the same could not have been condoned. The arguments of both the Counsel have been heard on the question of condonation of delay in filing the election petition. The Counsel for the petitioner Dr. R. G. Padia, Senior Advocate submitted that provisions of Section 5 of Limitation Act are not applicable in the election petition. He submitted that there is no dispute that election petition was filed beyond the period of limitation as prescribed under the relevant rules he submitted that Section 5 of the Limitation Act being not applicable the delay could not have been condoned nor petition could have been allowed. In support of his submission the Counsel for the petitioner placed reliance on AIR 1974 Supreme Court 480, Hukumdev Narain Yadav v. Lalit Narain Mishra; 1998 Allahabad Civil Journal 736; Ansar Ahmad v. SDO Kairana, Muzaffar Nagar and others ; AIR 1970 Mysore 166, Nagreddy v. Khandappa and others and AIR 1980, Patna 180 ; Ramnandan Rai v. The District Judge, Sitamarhi and others.
(3.) COUNSEL for the contesting respondents Sri R. N. Rai, refuting the submission of COUNSEL for the petitioner contended that Section 5 of the Limitation Act is applicable in the election petition and the delay has rightly been condoned by the District Judge. In support of his submission COUNSEL for the respondents placed reliance on a judgment of the Apex Court in 2002 (47) ALR 221, Shaik Saidullu @ Saidan v. Chukka Yesu Ratnam and others. I have considered the submissions of both the parties and perused the record. The question which has arisen in the writ petition is as to whether provisions of Section 5 of the Limitation Act are applicable in the election petition filed by respondent Nos. 2 and 3 challenging the election of the writ petitioner. For considering the aforesaid submission it is appropriate to look into the relevant statutory provisions pertaining to election petition. Composition of Zila Panchayat is provided for in the provisions of Uttar Pradesh Kshetra Samitis and Zila Parishads Adhiniyam, 1961 (hereinafter referred as to 1961 Act ). Section 27 of the 1961 Act provides that if any dispute arises as to whether a particular person has been lawfully chosen as member of Zila Parishad, the dispute shall be referred in the manner prescribed by the State Government. Section 27 of 1961 Act is extracted below : "27. Disputes as to membership or disqualification.- (1) If any dispute arises as to whether a particular person is a member of the Zila Parishad under clause (i), clause (iii) clause (vi) or clause (vii) of sub- section (1) of Section 18, the dispute shall be referred in the manner prescribed to the State Government and the decision of the State Government shall be final and binding. (2) If a dispute arises as to whether a person - (a) has been lawfully chosen or co-opted a member of a Zila Parishad under Section 18, or (b) has ceased to remain eligible for being chosen or co-opted a member of the Zila Parishad for the purposes of Section 20, or (c) has become disqualified to the Adhyaksha or Upadhyaksha for the purposes of Section 19, the dispute shall be referred in the manner prescribed to the Judge whose decision shall be final and binding. ";