Judgment:
ORDER
1. The petitioner seeks the issuance of the writ of mandamus, directing the 5th respondent to permit the petitioner to represent his Election Petition inS.R.No.14590 of 1996, which has been returned with an endorsement as belated, and thereby entertain the election petition to prosecute the election case in accordance with the provisions of the Tamil Nadu Panchayats Act.
2. The petitioner was one of the candidates who contested for the post of Council Member to the Kollidam Panchayat Union. He was a candidate from Ward No.4, which is a single member ward, and there were four candidates. The election was held on 12.10.1996, and the counting was taken up on 14.10.1996. It is said that the Election Officer failed to observe the rules contemplated under the Panchayats Act for counting the votes and declaration of results. It is said that even though he secured 1029 votes, it was stated by the Election Officer that he secured only 960 votes, and 130 votes polled in his favour was not accounted for. The petitioner was declared unsuccessful. Immediately thereafter, the petitioner applied for a copy of Form No.22 under Rule 67(d) of the Panchayat Rules. But the Election Officer refused to give a copy of the same. He also asked for recounting of the votes, and the same was also refused by him. He made a representation to the Election Commissioner and Returning Officer as well as the Commissioner of Kollidam Panchayat Union, without success.
3. In those circumstances, he filed the election petition before the 5th respondent - District Judge, Nagapattinam District (Election Court). The election petition was returned by the 5th respondent, on the ground that the petition is time barred. The grievance of the petitioner is that there is no provision to condone the delay in election petition, and therefore, it is not possible to file an election petition; with an application to condone the delay. It is said that the delay in filing the election petition was not due to the fault of the petitioner, and the basic material which itself discloses the case of the petitioner, could not be obtained. Unless and until the correct authenticated copy is supplied to the petitioner, he could not proceed with the election petition. Because of the delay in supplying the details under Form No.22, some delay was occurred and the same is purely due to the belated action of the respondents. It is therefore, prayed that the order of the 5th respondent be quashed and he may be compelled to receive the election petition.
4. After service of notice, counsel for the parties are heard, and I feel that the order of the learned District Judge, is perfectly correct, and the same do not call for any interference.
5. Part XI of the Tamil Nadu Panchayats Act, 1994, deals with 'Adjudication of Election Disputes'. Section 123 of the said Act, which deals with 'lime-limit for presenting election petitions', says that (1) an election petition shall be presented within fifteen days from the date of publication of the result of the election, under the Act.
Explanation to the said Section says that 'if the court of the District Judge is closed on the last day of the fifteen days aforesaid the petition may bepresented on the next following day on which the said Court is open'. Sub-section (2) is not relevant, and hence it is not extracted.
6. The question that has to be considered is whether the District Judge has the power to condone the delay in presenting the election petition. Similar cases have come up for consideration under the Representation of the People Act, before the Supreme Courts. In K.Venkateswara Rao and another v. Bekkam Narasimha Reddi and others, : [1969]1SCR679 , necessary party to the election petition was not impleaded, and so an application was filed under Order 6, Rule 17 C.P.C., to implead the party. The question that came up for consideration was whether the Civil Procedure Code will apply and what will be the effect on the person who has not already been impleaded and who is sought to be impleaded. Following the earlier decision of that Court reported in, Kamaraja Nadar v. Kunju Thevar, : [1959]1SCR583 , where it has been held that 'the provisions of the Act go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law, and a petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested; Their Lordship, in the above referred decision in paragraph 14, held thus:-
'The Indian Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment; the extent of such application is governed by Section 29(2) of the Limitation Act. In our opinion however the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act.'
7. This position of law was reiterated in the decision reported in, Hukumdev Narain Yadav v. Lalit Narain Mishra, : [1974]3SCR31 , wherein Their Lordships said that 'Section 10 of the General Clauses Act could be made applicable.' The principle under Section 10 of the General Clauses Act is incorporated in the explanation to the Section, already extracted. In that case, an election petition ought to have been presented on Saturday, before the High Court. Judges were not sitting on that date. The petition was presented on Monday. The question was whether there is any limitation. Their Lordships said that even though the Court is closed on Saturday when the Judges do not sit, but the office of the High Court is open, and the papers could be received. In paragraph 6 of the Judgment, Their Lordships observed thus:-
'A long course of decisions have held that a Court is not closed notwithstanding the fact that Judges do not sit on any day if otherwise the Court is open on that day. Harries, C.J. during the course of the arguments in Lachemshwar Prasad Shukul v. Giridhari Lal Chaudhuri : AIR1939Pat667 observed that 'Saturday' is a Court day although the Judges are not sitting on that day. The learned Chief Justice and Fazl Ali, J., as he then was, Agrawala, J., dissenting, went to the extent of holding that even in the vacations the Court is not closed and money can be deposited. Turner, C.J., speaking for himself, Kernan, Kindersley and Muttusami Ayyar, JJ., Innes, J., dissenting, observed in Nachiyappa Mudali and others v. Ayyasami Ayyar ILR 1882 (5) Mad. 189
'The judicial sittings of the Court may be adjourned; but the offices of the Court may still remain open for the presentation of pleadings. The Court may be open for this purpose although the Judge is not engaged in judicial functions or is not present in the Court-house or in the place were the Court is held.'
A Bench of the Madras High Court in In re Thokkudubivyanu Immaniyelu and others, AIR 1948 Mad. 521, dealt with a similar practice which is followed by all High Court and this Court for the summer vacation when the Courts close. The notifications in respect thereof specify a. period between Monday to Friday both days inclusive as the vacation. The Court reopens on a Saturday, but judicial work starts only on the following Monday. It was held that the first day of the Court was a Saturday which was the day for receiving papers though the Judges actually sat for judicial work on Monday, as such an application, for which the prescribed period of limitation expired on Saturday the 5th when the Court was open and was not filed on that day, but on Monday the 7th, was held to be barred.'
Since the Election Petition was not presented on Saturday and since Section 5 of the Limitation Act was not applicable, Their Lordships said that the election petition is barred by limitation.
8. In, Simhadri Satya Narayana Rao v. M.Budda Prasad & others 1991(1) S.C.J. 281 the same principle was enunciated. A Division Bench of the Andhra Pradesh High Court, in the case of Thoorotu Nookamma v. Election Commissioner, Peddapuram, E.Godavari Dist. and another1958 (I) AWR 241 has considered a similar question under the Madras Village Panchayats Act, whether the provisions of the Limitation Act can be applied in the election proceedings under the Panchayat Act.
It was held thus:-
'Rule I, sub-rule (3) of the Rules framed under the Madras Village Panchayats Act, says in unequivocal terms that an Election Commissioner acts as a persona designata and not as a Judge. Persona designate as the expression implies, is a person pointed out by name or other personal description in contra distinction to one whose identity is to be ascertained by the office which he holds. As such the provisions of the Limitation Act which apply only to Courts do not apply to election petitions filed under the Madras Village Panchayats Act and the rules thereunder. The rules are a complete Code with regard to matters pertaining to panchayat elections; the procedure applicable to election petitions is contained within the four corners of these rules, and it is not permissible to travel beyond them for purposes of extending the period of limitation.'
The same legal position was also reiterated in the case reported in, Hari Shankar Tripathi v. Shiv Harsh and others, : [1976]3SCR308 . In that case, Their Lordships, said 'that provisions of Sections 4 & 5 of the Limitation Act, has no application to election petitions'.
9. Under the Tamil Nadu Panchayats Act, the District Judge acts as an Election Tribunal and insofar as the panchayat elections are concerned, the Act is a self-contained Code. Similar provisions in the Representation of People Act, are provided in the Tamil Nadu Panchayats Act also. As Their Lordships observed in K.Venkateswara Rao and another v. Bekkam Narasimha Reddi and others, : [1969]1SCR679 , the election dispute is not a common law right, but it is only a right created by a Statute, and naturally, the petitioner cannot claim the benefit of Section 5 of the Limitation Act, which applies only to suit and to proceedings similar to suits, and to some of the criminal proceedings. Section 29(2) of the Limitation Act also may not have any application, in sofaras the election disputes under the Tamil Nadu Panchayats Act, are concerned.
10. Learned counsel for the petitioner submitted that so long as Form No.21 - declaration was not given to him, he could not present the election petition in time, as the same shall form part of the record of the election dispute. Therefore, he was justified in presenting the same, after the same was received. According to me, the said contention also cannot stand. What the petitioner pleads is that he is justified in presenting the same after the period of limitation provided under the Act. What he pleads is that there was bar on him in presenting the election application in time. There also, the Court is only considering whether the petitioner was prevented by sufficient cause, in not filing the election petition in time. The question of 'sufficient cause' will apply only in cases where the Tribunal/Court has got the power to condone the delay. Even if it is a hard case, where the petitioner was prevented from filing the petition, when the petitioner exercising the right under the Panchayats Act, regarding election, he is bound by the same. The Tribunal has not power to receive the election petition, after the statutory period.
11. The order of the 5th respondent is, therefore, correct. The writ petition is dismissed. Consequently, the connected W.M.P. is also dismissed.