PETITIONER:
DANDA RAJESHWARI
Vs.
RESPONDENT:
BODAVULA HANUMAYAMMA & ORS.
DATE OF JUDGMENT: 30/07/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (7) 212 1996 SCALE (5)871
ACT
HEADNOTE
JUDGMENT
ORDER
The only question raised in this case is: whether the direction issued by the High Court in the impugned order to file the Election Petition within three weeks from the date of the disposal of the writ petition and after filing of the petition to dispose of the same, without going into the question of limitation is valid in law? The High Court of Andhra Pradesh in the impugned order dated June 26, 1995 in Writ Petition No.11106 of 1995 and batch observed as follows:
"We are not inclined to go into the
questions raised in this Writ
Petition. The appropriate form is
the Election Tribunal. It is open
to the petitioners to file an
election petition within three
weeks from today and if such a
petition is filed, the same shall
be entertained by the Election
Tribunal without going in the
question of limitation and dispose
it of in accordance with law as
expeditiously as possible, in any
event not later than four months
from the date of filing of the
Petition. No costs."
Shri B. Nageshwara Rao, counsel for the petitioner placing reliance on Rule 3 of the A.P. Panchayat Raj (Election Tribunal) in respect of Gram Panchayats and mandal Parishads and Zila Parishad Rules, 1995 (for Short, the ’Rules’) Contended that the rules contemplate filing of an Election Petition within 30 days from the date of declaration of the result of the election, It reads as under:
"3(1) The election petition shall
be presented within thirty days
from the date of the declaration of
the result of the election.
Explanation:- If the Court of the
Subordinate Judge or the District
Munsiff, as the case may be, or the
Officer of the Officer of the
Government who is the Election
Tribunal is closed of the last day
of the thirty days Aforesaid, the
petition may be presented to the
Election Tribunal on the next day
afterwards on which such Court or
Tribunal is open.
(ii) The petition shall contain a
statement in concise form, the
material facts on which the
petitioner relies and the
particulars of any corrupt
practices which he alleges and
shall where necessary, be divided
into paragraphs numbered
consecutively. It shall be signed
by the petitioner and verified in
the manner prescribed for the
verification of pleadings in the
Code of Civil Procedure, 1908."
The remedy is statutory remedy and limitation is one of the candidates to entertain election petition. By judicial order the limitation cannot be nullified. In support thereof, he placed reliance on the judgment of this Court in Union of India & Anr. v. Kirloskar Pneumatic Co. Ltd. [(1996) 4 SCALE 317 ]. We find no force in his contention. It is not his case that the High Court lacks jurisdiction to entertain the writ petition against the election of a Sarpanch and declaration of the result of the election of a Sarpanch, etc. The High Court exercising its power under Article 226 of the Constitution declined to interfere in the election disputes since alternative remedy of filing election petition and adjudication has been provided in the relevant statutory rules. Far from saying that the High Court has no jurisdiction, High Court exercised self restraint in exercise of the power under Article 226 and directed the parties to avail of alternative remedy. In this admittedly, the elections of Sarpanch was held result was declared on June 24, 1995 and the writ petition was filed on June 25, 1995. Power of the Government on the process of electoral rolls was challenged in a batch of writ petitions. The writ petition in question is also one of such writ petitions. Under the circumstances the High Court thought it expedient that since elections were already held, the disputed questions of facts would be canvassed in an election petition as provided In Rule 3 of the Rules, the High Court rightly declined to investigate into disputed question of facts and refused to go into the question relegating the parties to pursue the remedy of election dispute. In view of this the High Court has rightly directed filing of the election petition within three weeks from the date of disposal of the writ petition and further directed the Tribunal not to go into the question of limitation and instead decide the matter on merits. This Court in Kirlosker Pneumatic Co.’ case held as under:
"According to these sub-section, a
claim for refund or an order of
refund can be made only in
accordance with the provisions of
Section 27 which inter alia
includes the period of limitation
mentioned therein. Mr. Hidayatullah
submitted that the period of
limitation prescribed by Section 27
does not apply either to a Suit
filed by the importer or to a writ
petition filed by him and that in
such cases the period of limitation
would be three years. Learned
counsel refers to certain decisions
of this Court to that effect. We
shall assume for the purposes of
this appeal that it is so
notwithstanding the fact that the
said question is now pending before
a larger constitution Bench of nine
Judges along with the issue
relating to unjust enrichment. Yet
the question is whether it is
permissible for the High Court to
direct the authorities under the
Act to act contrary to the
aforesaid statutory provision. We
do not think is, even while acting
under Article 226 of the
Constitution. The power conferred
by Article 226/227 is designed to
effectuate the law, to enforce the
Rule of law and to ensure that the
several authorities and organs of
the State act in accordance with
law. It cannot be invoked for
directing the authorities to act
contrary to law. In particular, the
Customs authorities, who are the
creatures of the Customs Act,
Cannot be directed to ignore or act
contrary to Section 27, whether
before or after amendment. May be
the High Court or a Civil Court is
not bound by the said provisions
but the authorities under the Act
are. Nor can there be any question
of the High Court clothing the
authorities with its power under
Article 226 or the power of a civil
court, No such delegation or
conferment can ever be conceived.
We are, therefore, of the opinion
that the direction contained in
clause (3) of the impugned order is
unsustainable in law. When we
expressed this view during the
hearing Mr. Hidayatullah requested
that in such a case the matter be
remitted to the High Court and the
High Court be left free to dispose
of the writ petition according to
law.
The ratio of the said decision has no bearing to the facts of this case. Therein, rules prescribed limitation to claim refund and the application was filed after limitation. The High Court had directed refund ignoring the limitation. In that context, it was held that no direction or mandamus could be issued to the authorities for disobeying the law.
The special leave petition is accordingly dismissed.