- (1.) ARUN Tandon, J. Heard Sri A. M. Tripathi, learned Counsel for the petitioner and Sri Sanjeev Khare, learned Counsel for respondent.
(2.) THIS writ petition was taken up as fresh matter on 8th August, 2007 and on the said date learned Counsel for the parties agreed that since only a legal issue qua application of section-5 of the Limitation Act to an election petition filed under the provisions of Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994 is involved, it is not necessary to file any counter affidavit and the writ petition may be decided at the admission stage itself without calling for counter affidavit. In view of the stand taken up by the parties, the Court has proceeded to hear the present writ petition finally on legal issue raised. There is no dispute between parties about the facts as are on record. Elections to the office of the member of Zila Panchayat from Vikash Khand Barsathi, Jaunpur was held on 17th October, 2005. Petitioner was declared elected and a certificate in that regard was issued by the Election Commission on 27th October, 2005. Respondent No. 1, who contested the election and lost, challenged the election of the petitioner by means of the election petition under section 27 (2) of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 read with Rules 3 and 4 of the Uttar Pradesh Zila Panchayats (Settlement of Disputes Relating to Membership) Rules, 1994. The election petition was registered as Election Petition No. 07 of 2005. The election petition was presented on 28th November, 2005. An objection was raised by the elected candidate (petitioner) to the effect that the election petition was barred by limitation by one day. Since the provisions of section-5 of the Limitation Act were not applicable, Election Tribunal has no other option but to dismiss the election petition as barred by limitation.
(3.) ON behalf of the election petitioner (respondent) it was contended that limitation for filing of the election petition is 30 days and since the result was declared on 28th October, 2005, the period of 30 days would expire only on 27th November, 2005, which was Sunday and therefore, the election petition is within time. Even otherwise the application under section-5 of the Limitation Act for condoning the delay of one day has been filed, which may be considered on merit. Learned Counsel for the petitioner points out that the result of the election was declared on 28th October, 2005, the period of 30 days for filing of the election petition would expire on 26th November, 2005, inasmuch as in the month of October, there were 31 days. 26th November, 2005 was admittedly Saturday and was a working day. Election petition could have been filed up to 26th November, 2005 only. He clarifies that since the election petition has been filed on 28th November, 2005, as admitted to the election petitioner, it was beyond the prescribed period of 30 days and the provisions of Limitation Act being not applicable, the election petition was liable to be dismissed on the ground of delay.;