Dr. Bimal Kumar Raj vs Jaharlal Paul & Ors

Subhasis Dasgupta, J

The impugned orders No. 35 dated 17.01.2018 and No. 46 dated 24.01.2018, passed by the learned Additional District Judge, Special Court, Paschim Medinipur in Judicial Misc. Case No. 40 of 2015, rejecting the application for condonation of delay, and another application for addition of party are the subject of challenge in this Revisional Application, under Article 227 of the Constitution of India.

In order to address the issue, pertaining to the applicability of Section 5 of Limitation Act over the facts and circumstances of the case, where election petition challenging the validity of the result of Municipal Election was made, some salient facts may be mentioned as follows for properly understanding the matter in controversy between the parties.

One Surajit Sil being petitioner filed election petition, which was registered as Judicial Misc. Case No. 40 of 2015 of Special Court, Paschim Medinipur on 11.05.2015, under Section 75 of the West Bengal Municipal Elections Act, 1994, challenging the municipal election result in respect of Ward No. 35 of Kharagpur Municipality, wherein one Jaharlal Paul (O.P. No. 1) won the election being returned candidate, and accordingly declared to be elected. In such election petition, the Opposite Party No. 1 was alleged to have involved in corrupt practices in wining the aforesaid municipal election, and further Opposite Party No. 1 was alleged to have committed electoral offences, as contemplated under Section 81 of the West Bengal Municipal Elections Act, 1994. The petitioner of Judicial Misc. Case No. 40 of 2015, therafter, filed an application for withdrawing the case on 22.06.2017. The application for withdrawal of the election petition, filed by Surajit Sil, was ultimately dismissed on the ground that election petition could not be allowed to be withdrawn without leave being granted by the Hon'ble High Court, and further in the absence of gazette publication, as required under Section 109 of the Representation of the People Act, 1951. Petitioner of this Revisional Application, one Dr. Bimal Kumar Raj having also felt aggrieved with the election result, published on 28.04.2015, and further upon noticing the prayer of Surajit Sil for withdrawal of the election petition, filed an application contending, inter alia, that in the absence of notice being published in the official gazette intimating the next date of hearing of the application for withdrawal together with want of leave being granted by the Hon'ble High Court, the prayer for withdrawal of the election petition was against the sanction of law, and sought for an order providing an opportunity to willing persons, like Dr. Bimal Kumar Raj, to participate in the proceeding, as petitioner, instead of original petitioner, Surajit Sil. Such petition of Dr. Bimal Kumar Raj, dated 01.07.2017, was summarily dismissed on the ground that Bimal Kumar Raj had no locus standi to move such application, as he was not a party to the proceeding. Admittedly after having lost the petition dated 01.07.2017, another prayer, dated 15.09.2017, for addition of party was again made by petitioner, Dr. Bimal Kumar Raj, which was supported by another application praying for condonation of delay, filed on 14.11.2017. Similar petition seeking self-same prayer for addition of party coupled with another prayer for condonation of delay was similarly filed by one Choton Sen, who also felt aggrieved with the result of municipal election, and accordingly, sought to be added, as petitioner, in the original election petition, in place of original petitioner namely Surajit Sil.

The learned court below, thought it prudent to dispose of the prayer for addition of the parties read with Section 5 application for condonation of delay first, before recording any order of dismissal in this case for non-appearance of the petitioner, namely Surajit Sil on successive dates, whose prayer for withdrawal of the election petition was previously rejected.

Learned advocate for the petitioner submitted with much emphasis that provisions of Section 5 of the Limitation Act, would be very much applicable over the election petition, and petitioner should have been allowed as added party, instead of original petitioner of Judicial Misc. Case No. 40 of 2015 in the instant case, where the original petitioner, Surajit Sil had expressed his inclination to withdraw his election petition, which was rejected by the learned court below. Adverting to the provisions of Section 109 of Representation of the People Act, 1951, learned advocate for the petitioner submitted that in the absence of leave being granted by the Hon'ble High Court, and further in the absence of notice being published in the official gazette intimating the date of hearing of the withdrawal application, which was basically intended to give an opportunity to the willing candidates, like petitioner, to challenge the election result, the court below was under an obligation to get the petitioner impleaded, as added party in place of the original petitioner, who admittedly showed his apathy and reluctancy, to proceed with the election petition. It was thus proposed by the learned advocate for the petitioner that when the result of the municipal election was challenged, taking grounds of corrupt practices together with the commission of electoral offences, as contemplated under Chapter III of Part 7 of the Representation of the People Act, 1951, the provisions of Representation of the People Act, 1951 would be a guiding or governing factor, in the instant case, for having made sufficient reference of the Representation of the People Act, 1951 with regard to its applicability in the subsequent legislation by the State legislature, like the West Bengal Municipal Elections Act, 1994, which is nothing but a State or special legislation for the purpose.

Learned advocate for the Opposite Party No.1 refuting the submission raised by petitioner in this case submitted that West Bengal Municipal Elections Act, 1994 being a self-contained Act would be very much applicable in this case, as referred legislation incorporated in the West Bengal Municipal Elections Act, 1994 at different parts of the Act, would not be ipso facto determinative of applicability of the Representation of the People Act, 1951, and further the provisions of Section 75 of the West Bengal Municipal Elections Act, 1994 being in the nature of exclusionary in effect , the applicability of Section 5 of the Limitation Act in the given set of facts would not arise. It was further contended by the learned advocate for the O.P. No.1 that in view of Section 75(2) of the West Bengal Municipal Elections Act, 1994 making the provisions of the Code of Civil Procedure applicable as far as may be necessary in the matter of adjudication of a election petition under Sub-Section 1 of Section 75 of the West Bengal Municipal Elections Act, 1994, the Court rightly dismissed the original Judicial Misc. Case No. 40 of 2015 for the non-appearance of the petitioner involved therein, and further that the West Bengal Elections Act, 1994 being a self-contained legislation providing the remedy available under Section 76 of the Act after detailing out the exhaustive procedure involved in the process together with providing the period of limitation for challenging the election petition, the provisions of Section 5 of the Limitation Act would not be applicable in the instant case.

The seminal point to be addressed by this Court is whether the provisions of Section 5 of Limitation Act would be applicable in the election petition for challenging the validity of election result of Municipal election or not.

Upon perusal of the impugned order, it appears that the court below proceeded to dispose of first the prayer for addition of party together with prayer for condonation of delay, as sought to be made by petitioner in this case, prior to recording any order of dismissal of the Judicial Misc. Case, for default, on the ground of non-appearance of the petitioner, demonstrated from his act of reluctance and indifference to proceeded further with election petition.

Though much was argued by the petitioner submitting that there was no intentional latches or negligence on the part of the petitioner in filing the application for addition of party in view of change in the circumstances, revealed from the prayer of the original petitioner expressing his inclination to withdraw the election petition, but for consideration of decision rendered in Subhankar Kundu vs. Municipal Returning Officer reported in 2016(3) CHN 227 and Tapas Biswas vs. West Bengal State Election Commission and Ors. reported in 2016(5) WBLR 127 by the court below propounding that the provision of the Limitation Act would not be applicable in the election petition, there hardly left anything for the decision of this court. The proposition of law decided, in the considered view of the court, still holds the field, and absence of intentional latches or negligence on the part of the petitioner proposing to be added, would not run counter to the settled proposition of law. The West Bengal Elections Act, 1994 being a self-contained Act having its own limitation period to challenge the election petition and thereby providing remedy therefor after delineating the procedure for the purpose, Section 5 of the Limitation Act has got no manner of application in the election petition, challenged basically against the declaration of result of Municipal election.

Upon considering the relevant provisions of West Bengal Municipal Elections Act, 1994, in context with challenge of election petition and the relief available under the Act, as shown in Sections 75 and 76 of the said Act, it appears that it is in effect exclusionary in nature by necessary implication, though there is no express provision in the Act itself, restricting the applicability of Section 5 of the Limitation Act.

The referred legislation, like the Representation of the People Act, 1951, as sought to be made applicable, by the petitioner in this case, in the given set of facts, cannot be allowed to be governing or guiding factor. Electoral offences, for the purpose of the Act of 1994 have been specifically mentioned in Section 81 of the West Bengal Municipal Elections Act, 1994. Though for the determination of alleged corrupt practices and the alleged commission of electoral offences by O.P. No.1, reference has to be made in appropriate cases to the provisions of Section 123 read with Chapter III of Part 7 of the Representation of the People Act, 1951, being the portion of referred legislation in the subsequent legislation like the West Bengal Municipal Elections Act, 1994, but the entire provision of the Representation of the People Act, 1951 will have no application in the given set of facts, being determinative of application for addition of party read with application for condonation of delay. The result of the municipal election having declared on 28.04.2015, the present prayer of the petitioner for addition of party would be necessarily attracted by the mischief engrafted in Section 75 of the West Bengal Elections Act, 1994, as such the petition for addition of party read with application for condonation of delay is barred by provision of the limitation, as specifically mentioned in the West Bengal Municipal Elections Act, 1994 itself.

Shelter was taken by the learned advocate for the petitioner on a decision rendered in the case of Inamati Mallappa Basappa vs. Desai Basavaraj Ayyappa and Ors. reported in AIR 1958 S.C. 698, in order to establish that when withdrawal petition of the original petitioner was not allowed by the learned Tribunal, the original election petition was liable to be continued by any person, who might have been a petitioner instead of the original petitioner, and as such the petitioner being highly interested to challenge the election petition ought to have been added simply to give effect to the provision of Section 109 of the Representation of the People Act, 1951. The aforesaid decision found its emergence in a case, where the provisions of the Representation of the People Act, 1951 were made absolutely applicable. As has already discussed that referred legislation cannot be governing/guiding factor to decide the fate of the election petition under West Bengal Municipal Elections Act, 1994, so the judgment referred above will not have any bearing effect over the merits of the case. The decision thus referred above is without any significance.

The learned court below/Tribunal has elaborately discussed the relevant provisions of law and the precedence operating in this field, while making rejection of the prayer for addition of the party read with application for condonation of delay. Since there has been extensive discussion by the learned Tribunal, while taking decision of the prayer for addition of the party together with prayer for condonation of delay, this court is of the view that the impugned orders rejecting the prayer for addition of party coupled with application for condonation of delay would not call for any interference by this Court. The learned Tribunal appears to have rightly reached the decision inviting the application of Section 76(2) of the West Bengal Municipal Elections Act, 1994 for making dismissal of the case, and further committed no illegality in restricting the application of Section 5 of the Limitation Act, while making consideration of the prayer for addition of party. There being no manifest error or apparent illegality committed by the learned Tribunal occasioning thereby a failure of justice, the findings, so reached by the learned Tribunal, would go definitely unaltered.

The Revisional Application fails being without any merits.

With this observation, the Revisional Application thus stands disposed of.

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.