- (1.) JANARDAN Sahai, J. The petitioner, Jilajeet and the respondent Panch Lal contested the election for the office of Pradhan of Gram Panchayat Anirudhpur Purab Patti, Pargana Kathi, District Mirzapur.
(2.) ON 25-6-2000 a declaration was made in favour of the respondent Panch Lal as having been elected. A certificate of election was also delivered to Panch Lal. The petitioner, Jilajeet filed an application before the District Election Officer on the same date for recounting of votes and cancellation of the result in favour of Panch Lal. The votes were recounted and the declaration in favour of Panch Lal was cancelled and the petitioner, Jilajeet was declared elected. A certificate was also issued in his favour. Panch Lal filed Writ Petition No. 28595 of 2000 challenging this order. It was held by this Court that after the declaration of result earlier made in favour of Panch Lal, the Returning Officer became functus officio and ceased to have jurisdiction to recount the ballot papers and declare any other person as elected. The petition was allowed on 7-9-2000 and it was directed that Panch Lal shall be treated as elected Pradhan of the Gaon Sabha and it was left open to Jilajeet to file an election petition. Jilajeet filed special leave petition, which was dismissed by the Supreme Court on 29-9- 2000. ON 10-10- 2000 an election petition was filed by the petitioner Jilajeet challenging the election of Panch Lal. Before the Prescribed Authority a question arose as to whether the election petition was filed within the period of limitation. Rule 3 of the U. P. Panchayat Raj Settlement of Election Disputes Rules, 1994 provides a period of limitation of 90 days from the date of announcement of result. The Prescribed Authority held that the date of declaration of result would be the date of the decision of the writ petition i. e. , 7-9-2000 and accordingly held that the election petition was filed within the period of limitation of 90 days. A revision was filed by the respondent Panch Lal against the order of the Prescribed Authority dated 23- 2- 2001 and the District Judge by his impugned order held that the election petition was time barred computing the period of 90 days from 25-6-2000 the date on which the initial declaration of result was made in favour of Panch Lal. The present writ petition has been filed against this order. I have heard Sri R. S. Maurya, learned Counsel for the petitioner and Sri Ashok Khare, learned Senior Counsel for the respondent Panch Lal. Learned Counsel for the petitioner made two submissions. First that provision of Sections 5 and 14 of the Limitation Act apply to election petitions under the Panchayat Raj Act. He relied upon a decision in Smt. Krishna Kanti v. District Judge, Shravasti, 2002 (93) RD 747. In that case it was held that the provisions of Sections 5 and 14 of the Limitation Act, 1963 are applicable to revisions under Section 12-C (6) of the Panchayat Raj Act. The case is not directly applicable to an election petition under the Panchayat Raj Act. The direct case upon the applicability of Sections 5 and 14 of the Limitation Act to election petitions is Ansar Ahmad v. Sub- Divisional Officer, Kairana and others, 1998 (89) RD 500. In this case it has been held after considering the scheme of the various provisions of the Panchayat Raj Act and Section 29 (2) of the Limitation Act that the application of Sections 5 and 14 of the Limitation Act is excluded by necessary implication. A similar view has been taken in respect of election petition filed under the U. P. Zila Parishad Settlement of Disputes Relating to Membership Rules, 1994 in Rama Kant v. District Judge, Ghazipur, 2003 ALJ 205. In view of these decisions which are directly on the point and are binding upon me it is held that the petitioner is not entitled to the benefit of Sections 5 and 14 of the Limitation Act as these provisions have no application to election petitions under the U. P. Panchayat Raj Act.
(3.) I shall now examine the other submission that limitation ought to be computed from the date of the decision in the writ petition. The facts of this case are rather peculiar. If the certificate declaring Panch Lal as having been elected had not been cancelled by the Election Officer after recounting the votes on the same date declaring the petitioner as having been elected, there is no doubt that the period of limitation would run from the date of declaration of the result made in favour of Panch Lal, namely, from 25-6-2000. However, the declaration of result in favour of Panch Lal was cancelled and the petitioner was declared elected and the certificate to that effect was also issued in favour of the petitioner by the Election Officer on the same date viz. , 25-6-2000. The effect of this declaration made in favour of the petitioner was that he had no cause of action for filing an election petition. In view of the cancellation of the certificate in favour of Panch Lal and the declaration in favour of the petitioner made by the Election Officer Panch Lal had to file a writ petition and it was directed therein that he would be treated the elected Pradhan. The High Court had also given liberty to the petitioner Jilajeet to file an election petition. It was only after the declaration made by the High Court in favour of the respondent Panch Lal that cause of action arose for Jilajeet to file an election petition. The election petition undisputedly was filed within 90 days from the date of decision in the writ petition. Sri Ashok Khare, learned Senior Counsel for the respondent Panch Lal submitted that there was only one declaration of result in favour of Panch Lal which is dated 25-6-2000 and it was on the basis of this declaration that the High Court directed Panch Lal to be treated as duly elected Pradhan as such the limitation would not run from the date of the decision of the writ petition but from the date of the original declaration of result on 25-6-2000 in favour of Panch Lal. However, as the cause of action for filing the election petition did not arise on account of cancellation of the declaration in favour of Panch Lal and the declaration of the petitioner as the elected Pradhan it would on the peculiar facts of this case be wholly unjust to hold that limitation started running from 25-6-2000 when the respondent Panch Lal was declared elected by the Election Officer-a declaration which on the same day was cancelled by the election officer. If the Election Officer had taken a correct view of law and had rejected the application for counting of votes and for declaring the petitioner as elected on the same day i. e. , on 25-6-2000 the cause of action to file an election petition would have arisen on 25-6-2000 but on account of the erroneous orders passed by the very authority empowered to declare the result, the petitioner could not file the election petition. The respondent Panch Lal had rather to file a writ petition against the order of the Election Officer. The petitioner cannot be made remedyless on account of an erroneous order passed by the very authority, which was entrusted with the duty of declaring the election result. In 1996 (6) SCC page 199, Danda Rajeshwari v. Bodarula Hanumaya Amma and others, a writ petition was filed challenging the election of the returned candidate. The writ petition was disposed of with a direction to the writ petitioner to avail the statutory remedy of filing an election petition before the Tribunal within three weeks from the date of disposal of the writ petition and further direction was given to the Tribunal not to go into the question of limitation. The order of the High Court was challenged before the apex Court on the ground that the statutory period of limitation could not be extended by the High Court. The apex Court turned down this contention and dismissed the special leave petition. No doubt the facts of that case were a little different as the High Court in the writ petition had jurisdiction to grant relief by setting aside the declaration in favour of the returned candidate and, therefore, the petitioner could not be left remedyless if the High Court chose to relegate the petitioner to his statutory remedy of election petition. But it is clear that the effect of the order of the High Court in that case was to allow the petitioner in the circumstances to file the election petition beyond the prescribed period of limitation. In AIR 1931 Madras 149, Peerummal v. N. S. Nallu Swami Pillai and others, a decree was passed ex-parte which on an application made by the defendant was set aside but on appeal to the High Court the decree was restored. It was held that the limitation for filing an appeal would run not from the date of the original ex-parte decree but from the date of the order of the restoration of that decree. If the order cancelling the declaration of result in favour of Panch Lal had not been passed by the very authority who was given the power to declare the result and issue the certificate the consequences would have been different. But a certificate of being elected was given to Jilajeet by the election officer who was the authority conferred with such power, and in these circumstances it would be taking an wholly inequitable and technical view that the petitioner Jilajeet should have ignored the subsequent declaration made in his favour treating it to be void and to have filed an election petition. In my opinion the cause of action to Jilajeet should be treated to have arisen after the order of the election officer in his favour was held by the High Court in writ petition to have been passed by an authority which had become functus officio and it was directed that Panch Lal would be treated the elected Pradhan. This order of the High Court shall in such a situation be treated as the announcement of result and would provide a fresh starting point of limitation. So viewed the election petition was filed within time. In the result the petition is allowed and the order of the District Judge dated 31- 12-2001 is set aside and that of the Prescribed Authority dated 23-2-2001 is restored. Petition allowed. .;