Full Judgment Text
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CASE NO.:
Appeal (civil) 652 of 2002
PETITIONER:
SHAIK SAIDULU @ SAIDA
Vs.
RESPONDENT:
CHUKKA YESU RATNAM & ORS.
DATE OF JUDGMENT: 23/01/2002
BENCH:
G.B. Pattanaik & R.P. Sethi
JUDGMENT:
(CA No.653 of 2002 @ SLP 8744 of 2001)
J U D G M E N T
SETHI,J.
Leave granted.
Both the appeals are filed against the similar orders of the High
Court by which the election petitions filed by the appellants under
Section 71 of the Hyderabad Municipal Corporation Act, 1955 (hereinafter
referred to as "the Act") were dismissed on the ground that such
petitions were barred by limitation. The High Court held that the
provisions of Section 671 of the Act were not applicable to an election
petition filed under Section 71 of the said Act. To arrive at such a
conclusion, the High Court held that applications, referred to in
Section 671 of the Act, did not include within its ambit, an election
petition, as provided under the Act vide Section 71. The only question
of law, argued before us, which would decide the fate of the appeals, is
as to whether Section 5 of the Limitation Act is applicable to the
election petitions filed under the Act or not.
The facts giving rise to the filing of the appeals are that the
appellant Shaik Saidulu @ Saida (in Civil Appeal arising out of SLP 8034
of 2001) filed nomination for the post of Mayor of Guntur Municipal
Corporation on behalf of Indian National Congress Party on 21.2.2000.
Upon scrutiny, the nomination papers of the parties contesting the
appeals, were found to be in order. Elections were held on 9.3.2000 and
the first respondent, who contested the elections as a candidate of
Telugu Desam party, was declared elected to the post of Mayor, Guntur
Municipal Corporation on 11.3.2000. Aggrieved by the result of the
election, the appellant filed an election petition before the District
Judge, Guntur on 29.3.2000 which was returned to him on 31.3.2000 on the
ground that the District Judge was not the Tribunal to hear the election
petition. The Election Tribunal was constituted in the first week of
May, 2000 when the courts were closed for summer vacation and its
notification was allegedly published on 28.5.2000. After re-opening of
the courts, the appellant again filed the election petition before the
District Judge, Guntur on 3.6.2000, allegedly not being aware of the
constitution of the Election Tribunal. His election petition was again
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returned on 17.6.2000. After coming to know about the constitution of
the election Tribunal, the appellant presented the election petition
before the Tribunal at Hyderabad on 22.6.2000. The Tribunal returned
the election petition allowing the appellant 7 days time for filing the
election petition along with application for condonation of delay. As
per direction of the Election Tribunal, the appellant again filed his
election petition with an application under Section 5 of the Limitation
Act seeking the condonation of delay of 42 days in filing the election
petition. The Election Tribunal allowed IA No.6 of the appellant and
condoned the delay in filing the petition. Aggrieved by the order
passed by the Election Tribunal, the respondent No.1 moved the High
Court of Andhra Pradesh invoking its extraordinary jurisdiction under
Article 227 of the Constitution of India praying for the dismissal of
the election petition of the appellant on the ground of being barred by
limitation. The High Court allowed the petition vide the order impugned
in this appeal and held the petition filed by the appellant barred by
time.
The appellant Gogineni Sujatha (in Civil Appeal arising out of SLP
8744 of 2001) was a candidate to the elections of a Member of Vijayawada
Municipal Corporation from Ward No.32. The respondent No.1 in that
appeal was declared elected as Member of the Municipal Corporation from
Ward No.32 on 9.3.2000. The appellant filed an election petition in the
court of District and Sessions Judge, Krishna on 3.5.2000 as by that
time no Election Tribunal, as contemplated under the Act, had been
constituted. The Government constituted the Election Tribunal for the
area on 13.5.2000, admittedly, after the period of limitation prescribed
for filing the election petition under the Act. When the Election
Tribunal issued notice regarding its appointment and invited
applications for disputes with respect to the elections to the Municipal
Corporations of Andhra Pradesh on 24.5.2000, the District Judge, Krishna
returned the election petition of the appellant on 25.5.2000 directing
him to file the same before the appropriate Tribunal by granting him
seven days time. The appellant presented the election petition before
the Election Tribunal at Hyderabad on 29.5.2000, concededly within the
time allowed by the District Judge for presentation of such a petition.
The appellant also filed an application for condonation of delay of 18
days under Section 5 of the Limitation Act. The Election Tribunal
accepted the prayer and condoned the delay of 18 days vide its order
dated 13.9.2000. Not satisfied with the order of the Tribunal, the
respondent No.1 moved the High Court invoking its powers under Article
226 of the Constitution of India, praying that the order of the Election
Tribunal be set aside. The High Court allowed the prayer of the
respondent No.1 and held the election petition, filed by the appellant,
not maintainable as per Limitation Act.
There is no dispute that the elections of the Mayor and the
Members of the Corporations are governed by the provisions of the Act.
Any person aggrieved has a right to challenge the election by way of an
election petition under the Act. Section 71 of the Act provides:
"Election Petition: (1) No election held under this Act
shall be called in question except by an election petition
which shall be presented in such manner as may be
prescribed.
(2) An Election petition calling in question any election
may be presented on one or more of the grounds specified in
clauses (i) and (ii) of Sections 79 and 80 to the Election
Tribunal by any candidate at such election or any voter,
within two months from, but not earlier than the date of
election of the returned candidate or if there are more than
one returned candidate at the election and the dates of the
election are different is the latter of those two dates."
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Even though the period of limitation for challenging the election
petition, under the Act, is provided vide sub-section (2) of Section 71,
yet the Section or the Chapter in which it appears, does not stipulate
as to the applicability or non-applicability of the provisions of the
Limitation Act. However, Section 671, appearing in the Part of
Miscellaneous Provisions under the Act, provides that in computing the
period of limitation, fixed for an appeal or application, referred to in
the Act, the provisions of Sections 5, 12 and 13 of the Limitation Act
shall, so far as may be, apply. Sub-section (2) of Section 671 provides
that when no time is fixed by the Act for the presentation of an appeal
or application such appeal or application shall be presented within 30
days from the date of order in respect of or against which the appeal or
application is presented.
This Court in Hukumdev Narain Yadav v. Lalit Narain Mishra [1974
(3) SCR 31] held that the provisions of Section 10 of the General
Clauses Act would certainly apply to election petition filed under the
Representation of People Act, 1951 without specifically deciding the
applicability of Section 4 of the Limitation Act to the election
petitions. The Court held that the applicability of Section 5 of the
Limitation Act to election petitions, filed under the Representation of
People Act, can be determined upon the terms of Section 29(2) of
Limitation Act. It held:
"Whether s.5 could be invoked would also depend on the
applicability of sub-s.(2) of s.29 of the Limitation Act to
election petitions. Under this sub-section where a special
or local law provides for any suit, appeal or application a
period different from the period prescribed therefor by the
Schedule, the provisions specified therein will apply only
in so far as and to the extent to which they are not
expressly excluded by such special or local law. Under
s.29(2) of the Limitation Act of 1908 as amended in 1922,
only s.4, ss.9 to 18 and s.22 of that Act applied ordinarily
unless excluded by a special or local law."
The Court further held:
"It was sought to be contended that only those provisions of
the Limitation Act which are applicable to the nature of the
proceedings under the Act, unless expressly excluded, would
be attracted. But this is not what s.29(2) of the
Limitation Act says, because it provides that ss.4 to 24
(inclusive) shall apply only in so far as, and to the extent
to which, they are not expressly excluded by such special or
local law. If none of them are excluded, all of them would
become applicable. Whether those sections are applicable is
not determined by the terms of those sections, but by their
applicability or inapplicability to the proceedings under
the special or local law. A person who is a minor or is
insane or is an idiot cannot file an election petition to
challenge an election, nor is there any provision in the Act
for legal representation of an election petitioner or
respondent in that petition who dies, in order to make s.16
of the Limitation Act applicable. the applicability of
these provisions has, therefore, to be judged not from the
terms of the Limitation Act but by the provisions of the Act
relating to the filing of election petitions and their trial
to ascertain whether it is a complete code in itself which
does not admit of the application of any of the provisions
of the Limitation Act mentioned in s.29(2) of that Act."
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Again in Mangu Ram v. Municipal Corporation of Delhi [1976 (2) SCR
260], this Court held that the provisions of Section 5 of the Limitation
Act were not applicable to the election petitions as sub-section (2) of
Section 29 of the Limitation Act specifically excluded the applicability
of Section 5 of the Limitation Act. However, in Limitation Act of 1963,
sub-section (2) of Section 29 was deleted and the provisions of Sections
4 to 24 (inclusive) were made applicable to any special or local law
prescribing different period of limitation for any suit, appeal or
application. It was held that for non-applicability of Section 5 of the
Limitation Act, the exclusion must be specific under the special
statute.
In this case, the High Court, vide impugned order, made a
distinction between application and petition to hold that the election
petition, under the Act, was not an application referred to in Section
671 of the Act. Neither the application, nor the election petition is
defined under the Act. The Dictionary meaning of the word "application"
is: "(1) a formal request to an authority, (2) the action of putting
something into operation, practical use or relevance, (3) the action of
applying something to a surface, (4) sustained effort, (5) computing a
program or piece of software designed to fulfil a particular purpose".
The word "application" could be understood in a generic sense as a
prayer made to an authority for some relief to set aside an order of
another authority.
This Court in Prem Raj v. Ram Charan [AIR 1974 SC 968] observed
that the plaint, which makes a request to the court, is an application.
However, written statement was held not to be an application because it
does not include any request to the court.
In P. Philip v. The Director of Enforcement, New Delhi & Anr. [AIR
1976 SC 1185] the Court held the word "application" is synonymous with
the term "petition" which means a written statement of material facts,
requesting the court to grant the relief or remedy based on those facts.
It is a peculiar mode of seeking redress recognised by law.
We have no doubt in holding that the word "application", as used in
Section 671 of the Act, would include within its ambit an election
petition wherein a voter or the candidate makes the prayer to the court
and seeks the redressal of his grievances regarding the conduct of the
elections. Holding election petition not to be covered within the term
"application" would amount to adopting a hyper-technical approach which
would defeat the very purpose of the Act and the provisions made therein
for disputing the authenticity and the conduct of the election. To
overcome the confusion regarding the definition between the application
and the petition, a new definition of an application was inserted in the
Limitation Act, 1963 which defined it to include a petition. The object
of the new definition is to provide a period of limitation for original
applications, interlocutory applications and petitions under special law,
to which the Act has been made applicable.
In our considered opinion the High Court was not justified in
holding that the election petition was not an application within the
meaning of Section 671 of the Act. Sub-section (2) of Section 71 of the
Act specifically provides the period of limitation for filing the
election petition for which sub-section (1) of Section 671 of the Act
would be applicable to attract the sub-section (2) of Section 71 thereby
applying the provisions of Section 5 of the Limitation Act to the
election petitions filed under the Act.
We do not agree with the submissions made on behalf of the
respondent that no period of limitation is prescribed for the election
petition and that the provisions of sub-section (2) of Section 671 would
be attracted excluding the applicability of Section 5 of the Limitation
Act. The harmonious interpretation of various provisions of the Act
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would clearly show that the election petition was intended to be taken,
by the Legislature, as an application for the purposes of limitation in
terms of Section 671. Taking any other view would defeat the very
purpose of the enactment providing for filing of an election petition
calling in question any elections on the grounds specified under the Act.
The remedy provided under a statute cannot be defeated under the cloak of
technicalities by adopting a hyper-technical approach. The free and fair
elections are a guarantee of the democratic polity and for achieving such
an objective various provisions are made applicable to the election laws,
most important of which is the remedy of challenging the elections on the
grounds specified under the statute. In the absence of the applicability
of Section 5 of the Limitation Act, the rights of the aggrieved person,
intended to challenge an election, can be defeated by the executive of
the State by not appointing the Election Tribunal as is shown to have
been done in the instant cases. In the appeal filed by Gogineni Sujatha,
it is not disputed that the Election Tribunal was constituted after the
expiry of period of limitation prescribed for filing an election
petition. Similarly in the case of Shaikh Saidulu @ Saida sufficient
time was allowed to lapse preventing the filing of the election petition
for no fault of the appellant. Can an interpretation be accepted which
facilitates the defeating of purpose of the Act? The answer is
emphatically, No.
In the instant appeals, the High Court appears to have adopted a
very technical approach by totally ignoring the purpose and object of the
Act and the conduct of the respondents in not constituting the Tribunal,
with the result of preventing the aggrieved from approaching the Tribunal
to challenge the election by way of election petition. The orders of the
High Court, being contrary to law, are thus not sustainable.
The appeals are allowed accordingly by setting aside the impugned
orders and remitting the cases back to the Election Tribunal for deciding
the election petitions on merits. No order as to costs.
.......................J.
(G.B. Pattanaik)
.......................J.
(R.P. Sethi)
January 23, 2002