Suman Devi vs Manisha Devi

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 8337 OF 2018 (Arising out of SLP (C) No 24000 of 2017)

SUMAN DEVI ..... APPELLANT

Versus

MANISHA DEVI AND ORS ..... RESPONDENTS

JUDGMENT

Dr D Y CHANDRACHUD, J

1 The appellant and the first respondent contested elections for the post of

Ward Councilor, from Ward No 18 of the District Council of Mahendergarh. The

results of election were declared on 28 January 2016. The appellant was declared Signature Not Verified

to be the elected candidate. On 10 February 2016, the first respondent filed an Digitally signed by DEEPAK GUGLANI Date: 2018.08.21 11:34:10 IST Reason:

Election Petition namely, Civil Suit 9/2016 (CS 1086/2016) under Section 176 of 2

the Haryana Panchayati Raj Act 1994 challenging the election of the appellant.

Upon service of the election petition, the appellant filed an application under Order

7 Rule 11 of the CPC for rejection of the petition on the ground that the first

respondent had failed to present it in person as required by Section 176. Notice

was issued on the application. The respondent filed her reply. On 1 March 2016,

the first respondent moved an application for withdrawal of the election petition.

The application was allowed by the Civil Judge, Junior Division on the same day

and the first respondent was permitted to withdraw the election petition with liberty

to institute a fresh petition. Subsequently on 2 March 2016 the first respondent

filed a second election petition, Civil Suit 361/2016(CS 1106/2016). The appellant

filed an application under Order 7 Rule 11 for rejection of the election petition on

the ground that it was barred by limitation. An application was thereupon filed by

the first respondent purportedly under Section 5 read with Section 14 of the

Limitation Act submitting inter alia that if the limitation for filing the election petition

had expired, the period spent between the filing of the earlier petition and its

withdrawal may be excluded since the first respondent was bona fide espousing

her remedies. The appellant opposed the application.

2 By a judgment dated 19 July 2016 the Trial Court allowed the application

under Order 7 Rule 11 on the ground that the fresh election petition was presented

after the expiry of 30 days prescribed for the institution of an election petition. The

first respondent preferred an appeal which was allowed by the District Judge, 3

Narnaul on 18 January 2017. The appellant challenged the order of the District

Judge before the High Court. The Civil Revision has been dismissed by the

impugned order of the High Court dated 11 August 2017. The High Court has

observed thus:

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

3 The learned counsel appearing on behalf of the appellant submits that the

Haryana Panchayati Raj Act 1994 is a complete code for the presentation and

adjudication of election petitions. Counsel submitted that an election petition has

to be instituted under Section 176 within 30 days from the date of the declaration

of the results of the elections. An election petition which does not comply with

Section 176 must be rejected outright. Learned counsel submitted that this view

has consistently been followed in several decisions of the Punjab and Haryana

High Court, to which a reference was made. These are:Joginder Singh v Baldev

Singh1, Rashpal Singh @ Rachpal Singh v Jasvir Singh2, Chet Ram v State 1 2010(1) PLR 769 paras 6 & 7 2 2009(3) RCR (Civil) 408 4

of Punjab3, Darshan Singh v Karamjit Singh4, Parkasho v Bhola Devi5 and

Deepa Mangla v Nanak Chand6.

4 On the other hand, learned counsel appearing on behalf of the first

respondent submitted that a triable case arises against the appellant for submitting

a false certificate of Matriculation and hence, the order of the High Court may not

be interfered with.

5 Section 176 of the Haryana Panchayati Raj Act 1994 provides as follows:

176. Determination of validity of election enquiry by judge and procedure:

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

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

(a) where the petitioner in addition to challenging the validity of the election of all or any of the returned candidates claims a further relief that he himself or any other candidate has been duly elected, all the contesting candidates other than the

3 2010(4) PLR 718 4 2012(2) PLR 831 5 2012(3) PLR 541 6 CR No 523/2013 decided on 06.02.2015 5

petitioner and where no such further relief is claimed, all the returned candidates ;

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

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

(4) (a) If on the holding such inquiry the civil court finds that a candidate has, for the purpose of election committed a corrupt practice within the meaning of sub-section (5) he shall set aside the election and declare the candidate disqualified for the purpose of 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 not qualified to be elected;

(ii) any nomination has been improperly rejected; or

(iii) the result of the election, in so far it concerns a returned candidate, has been materially affected by improper acceptance of any nomination or by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with or violation of the provisions of the Constitution of India or of this Act, or any rules or orders made under this Act, election of such returned candidate shall be set aside and fresh election may be held.;]

(b) If, in any case to which 2[clause (a) or clause (aa)] does not apply, the validity of an election is in dispute between two or more candidates, the court shall after a scrutiny and computation of the votes recorded in favour of each candidate, declare the candidate who is found to have the largest number of valid votes in his favour, to have been duty elected :

Provided that after such computation, if any, equality of votes is found to exist between any candidate and the addition of one vote will entitle any of the candidate to be declared elected, one additional vote shall be added to the total number of valid votes found to have been received in the favour of such candidate or candidates, as the case may be, elected by lot drawn in the presence of the judge in such manner as he may determine.

6 (5) A person shall be deemed to have committed a corrupt practice-

(a) who with a view to induce a voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit, 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 stand or to withdraw or not to withdraw from being a candidate at an election, offers or gives any money or valuable consideration or holds out any promise or individual profit or holds out any threat of injury to any person ; or

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

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

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

Sub-section (1) of Section 176 clearly specifies a period of 30 days from the date

of the declaration of the results of the election within which an election petition has

to be filed. There is no provision for condoning delay or for extending the period

of limitation.

6 In Hukum Dev Narain Yadav v Lalit Narain Mishra7, while considering

whether the provisions of the Limitation Act 1963 would be applicable to an election

7 (1974) 2 SCC 133 7

petition under the Representation of People Act 1951, P.Jaganmohan Reddy, J.,

speaking for a three Judge bench of this Court held thus:

“..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 Section 29(2) of that Act.”

This Court held that the provisions of Section 5 of the Limitation Act do not govern

filing of election petitions or their trial.

7 In Charan Lal Sahu v Nandkishore Bhatt8, a two Judge bench held that

there is no common law right to challenge an election since it is purely a matter of

regulation by the terms of the statute. The right being statutory, the terms of the

statute must be complied with.

8 A three Judge bench of this Court in Lachhman Das Arora v Ganeshi Lal9,

construed the provisions of Section 81 (1) of the Representation of the People Act

1951, which prescribes a period of 45 days to file an election petition. Chief Justice

Dr AS Anand, speaking for the Court, held thus:

“7. On its plain reading, Section 81(1) lays down that an election petition calling in question any election may be

8 (1973) 2 SCC 530 9 (1999) 8 SCC 532 8

presented on one or more of the grounds specified in sub-

section (1) of Section 100 and Section 101 of the Act to the High Court by any candidate at such election or by an elector within forty-five days 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 their election are different, the later of those two dates. The Act is a special code providing a period of limitation for filing of an election petition. No period for filing of an election petition is prescribed under the Indian Limitation Act. The Act insofar as it relates to presentation and trial of election disputes is a complete code and a special law. The scheme of the special law shows that the provisions of Sections 4 to 24 of the Indian Limitation Act do not apply. If an election petition is not filed within the prescribed period of forty-five days, Section 86(1) of the Act, which provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117, is straightaway attracted.”

9 The Haryana Panchayati Raj Act 1994 is a complete code for the

presentation of election petitions. The statute has mandated that an election

petition must be filed within a period of 30 days of the date of the declaration of

results. This period cannot be extended. The provision of Section 14 of the

Limitation Act 1963 would clearly stand excluded. The legislature having made a

specific provision, any election petition which fails to comply with the statute is

liable to be dismissed. The High Court has failed to notice both the binding

judgments of this Court and its own precedents on the subject, to which we have

referred. The first respondent filed an election petition in the first instance to which

there was an objection to maintainability under Order 7 Rule 11 of the CPC.

Confronted with the objection under Order 7 Rule 11, the first respondent obviated

a decision thereon by withdrawing the election petition. The grant of liberty to file 9

a fresh election petition cannot obviate the bar of limitation. The fresh election

petition filed by the first respondent was beyond the statutory period of 30 days

and was hence liable to be rejected.

10 We, accordingly, allow the appeal and set aside the impugned order of the

High Court dated 11 August 2017. We hold that the election petition filed by the

first respondent shall stand dismissed There shall be no order as to costs.

….....................................CJI [DIPAK MISRA]

…......................................J [Dr D Y CHANDRACHUD]

New Delhi August 21, 2018