Danda Rajeshwari
Vs. Bodavula Hanumayamma & Ors [1996] INSC 871 (30 July 1996)
Ramaswamy,
K.Ramaswamy, K.G.B. Pattanaik (J)
CITATION:
JT 1996 (7) 212 1996 SCALE (5)871
ACT:
HEAD NOTE:
O R D
E R
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.
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