FAO No.5194 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.5194 of 2009 (O&M) DATE OF DECISION: 14.10.2010 **** Pargat Singh . . . . Appellant Vs. Mohinder Kaur and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.P.S. Sekhon, Advocate for the appellant. Ms.G.K. Mann, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) The two questions involved in this appeal are (i) whether the limitation prescribed for the presentation of election petition under Section 76(1) of the Punjab State Election Commission Act, 1994 (for short ‘the Act’) can be extended by the State Election Commissioner (for short ‘the Election Commissioner’)? (ii) Whether in the given facts and circumstances, the election petitioner was justified in counting the limitation of 45 days for the purpose of presentation of the election petition from the date of order dated 7.11.2008 passed in COCP No.1290 of 2008. Before finding the answers of the aforesaid questions, little history of this case requires to be traced out. FAO No.5194 of 2009 (O&M) -2- The dispute has arisen out of the election petition which is filed by respondent No.1 (Mohinder Kaur) under Section 89 of the Act challenging the election of the appellant (Pargat Singh) to the post of Panch of Gram Panchayat of Village Jangiana. Admittedly, the elections were held on 26.5.2008 and the election petition was filed on 14.01.2009. Learned counsel for the appellant has submitted that in terms of Section 76(1) of the Act, the election petition could be presented within a period of 45 days from the date of election of the returned candidate and since the present election petition was presented beyond the period of 45 days, therefore, it was barred by limitation and should have been dismissed by the Election Tribunal, who had illegally and erroneously entertained the election petition considering it to be within limitation on the basis of the order passed by the Election Commissioner on 30.7.2008. In reply, learned counsel for the election petitioner has submitted that just after the election was over, the election petitioner had filed CWP No.10722 of 2008 titled as “Mohinder Kaur Versus Punjab State Election Commission and others” and sought a direction that though the election petitioner had secured third highest votes and was entitled to be elected from general category but her election result was not declared. It was also alleged therein that the election petitioner had already made a representation before the Election Commissioner in this regard but the same was not disposed of. In the said case, following order was passed by this Court on 11.06.2008: - “The petitioner is candidate in the election for the post of Panch from General Category from village Jangiana, Tehsil Tappa, District Barnala. Counsel for the petitioner states that the petitioner secured the third highest votes and is to be elected from the General category but the respondent have not declared the result. The petitioner has already made a representation (Annexure P/1) which is pending before respondent No.1. The petitioner seeks disposal of the said representation. FAO No.5194 of 2009 (O&M) -3- This petition is accordingly disposed of with a direction to respondent No.1 to consider and dispose of the representation (Annexure P/1) of the petitioner in accordance with law with four weeks from the date a copy of this order is made available to the competent authority.” Despite the aforesaid order, the Election Commissioner did not pass any order on the representation as a result of which the election petitioner had to file COCP No.1290 of 2008 for the non-obedience of the order passed by the Division Bench of this Court on 11.06.2008. During the pendency of the said Contempt Petition, in which notice was issued to the Election Commissioner, order dated 30.7.2008 was passed by him to the effect that: “however, keeping in view the overall circumstances of the case, the Deputy Commissioner Barnala or any other officer acting as Election Tribunal shall decide the Election Petition expeditiously preferably within a period of four months. Further any delay in filing the election petition on account of pendency of this matter before the Hon’ble High Court and the State Election Commission shall be condoned by the Election Tribunal.” Pursuant thereto, COCP No.1290 of 2008 was also disposed of vide order passed by Single Bench of this Court dated 7.11.2008 as having become infructuous. Learned counsel for the petitioner further submits that certified copy of the said order was obtained on 7.12.2008 and the election petition was filed on 14.1.2009 i.e. within a period of 45 days thereafter and hence the election petition is well within limitation and the objection raised by the appellant herein is ill-founded. FAO No.5194 of 2009 (O&M) -4- In view of the aforesaid brief relevant facts, the questions posed in the beginning of the judgment arises for determination. In order to answer the first question, learned counsel for the appellant has submitted that the period of 45 days in filing the election petition has to be counted from the date of election as provided under Section 76(1) of the Act and it cannot be extended in any manner. However, in order to assist the Court in all fairness, he himself has referred to a Division Bench judgment of this Court in the case of “Kishan Chand and others Versus State of Punjab and others” 2008(2) Local Acts Reporter 353 in which the election of the returned candidate was challenged by way of a writ petition. Since, the Court had found that there are disputed questions of fact which cannot be adjudicated upon by the writ Court, therefore, the election petitioner in the said case was relegated to avail his remedy of filing election petition in accordance with Section 89 of the Act. However, the petitioner in the said case made a request that as the election petition has to be filed within 45 days from the date of writ and he had already consumed some time in the filing of the writ petition, therefore, some more time may be granted. He relied upon a judgment of the Supreme Court in the case of “Danda Rajeshwari Versus Bodavula Hanumayamma and others” 1996(6) SCC 199. Relying upon the said judgment, this Court allowed the writ petitioner to withdraw the writ petition with liberty to file election petition and further directed the Election Tribunal to entertain the election petition and decide the same on merits if it is filed within a period of three weeks from the date of passing of the order. Learned counsel for the appellant has further submitted that no such order has been passed by the Division Bench in the CWP No. 10722 of 2008 when a direction was given to the Election Commissioner to decide the representation filed by the election petitioner. Therefore, the Election Commissioner had no jurisdiction to direct the election Tribunal to condone the delay in filing of the election petition. He further submits that no direction was given by the contempt Court as well, while disposing of COCP No. 1290 of 2008, to the Election Tribunal to entertain the election petition if it is filed within a particular time. It is, thus, submitted that in the absence of any categoric direction by this Court, the direction given by the said Election Commissioner would be patently illegal and would not help FAO No.5194 of 2009 (O&M) -5- the respondents for the purpose of condoning the delay. He also relies upon a decision of this Court in the case of “Major Singh Versus Presiding Officer, Election Tribunal (ADC), Sangrur and others” decided on 24.5.2010 to contend that the period of 45 days cannot be extended. On the contrary, learned counsel for the respondents has submitted that there was no fault on the part of the election petitioner in not coming to the Court in time as she had been litigating throughout in the Court of law for the redressal of her grievance. She had immediately come to the High Court for the purpose of filing writ petition challenging the inaction on the part of the Election Commissioner who was sitting over the representation made by her wherein she had alleged that she has not been declared elected though she had secured more votes than the returned candidate. It is further submitted that she had to file contempt petition to seek compliance of the order passed by the Division Bench of this Court on 11.6.2008 and then after a great effort the Election Commissioner had passed the order on 30.7.2008 and had granted four months to the Election Tribunal to decide the election petition and in that process time consumed by the election petitioner has been ordered to be condoned. It is, thus, submitted that provision of Section 76(1) of the Act may not be construed so strictly to take away the justifiable rights of the election petitioner. I have heard both the learned counsel for the parties and perused the record with their assistance. The question involved in this case is that whether the period of limitation can be condoned by the Election Commissioner. The answer is empathically ‘No’. The period of limitation provided under Section 76(1) of the Act is para materia with Section 81(3) of the Representation of People Act, 1951. In the case of “Ashok Shankar Gholap Vs. Krishnarao H. Deshmukh and another” AIR 1980 Bombay 224, the election petition was filed on the last day of limitation without requisite number of copies. On the next day copies were handed over to the designated officer and the objection was removed. It was held by the High Court that there was non- compliance of Section 81(3) of the Representation of the People Act, 1951 and as such the election petition was not held to be filed within limitation. FAO No.5194 of 2009 (O&M) -6- In this regard, learned counsel for the respondents has relied upon a decision of the Supreme Court in the case of Chandrakant Shukla Versus Maharaja Martand Singh” AIR 1973 Supreme Court 584, to contend that condonation of delay in filing of the election petition is discretionary and once a Court exercised its discretion, the Appellate Court should be reluctant to interfere. Insofar as the extension of time for filing of the election petition is concerned, the Supreme Court has held that the High Court does not lack jurisdiction to entertain the writ petition against the election but had declined to exercise its jurisdiction under Article 226 of the Constitution of India since alternative remedy of filing the election petition is provided in the relevant Statute. Therefore, it was found expedient to relegate the parties to avail the remedy of election petition because of the involvement of disputed questions of fact. In this background, the Supreme Court had held that the High Court had rightly directed the filing of the election petition within three weeks from the date of disposal of the writ petition with further direction not to go into the question of limitation and rather decide the matter on merits. To my mind, the said extraordinary jurisdiction available under Article 226 of the Constitution of India exercised by the High Court and approved by the Supreme Court is not available to the Election Commissioner to extend the time of limitation as has been done in the present case, therefore, the question raised in the beginning of the judgment is answered in favour of the appellant in affirmative and it is held that the Election Commissioner has no jurisdiction to extend the period of limitation, for the purpose of presentation of election petition, as prescribed under Section 76(1) of the Act. As regards the second question about justification of the election petitioner to count its limitation from the date of order of the receipt of certified copy of the order passed in contempt petition is concerned, to my mind, the election petitioner cannot take advantage of the said order because the said order was of simple dismissal of the contempt petition as having become infructuous. The period of limitation, until and unless directed by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, cannot be extended. FAO No.5194 of 2009 (O&M) -7- In view thereof, I find merit in the present appeal and as such the same is hereby allowed and the impugned order passed by the Election Tribunal is set aside and the election petition is dismissed with costs. (RAKESH KUMAR JAIN) OCTOBER 14, 2010 JUDGE Vivek