# Akhilesh v. A.D.J./Special Judge E.C. Act, Varanasi & Ors

- **Citation:** (2020) 2 ILRA 1145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-06
- **Case number:** Matters Under Article-227 No. 118 of 2020
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-v-a-d-j-special-judge-e-c-act-varanasi-ors-45632
- **Pages:** 7

## Headnote

Sri Raj Kumar Kesari

A. Election Petition - U.P. Kshettra
Panchayats
and
Zila
Panchayats
Adhiniyam, 1961- Section 27- Disputes as
to membership or disqualification - U.P.
Zila Panchayats (Settlement of Disputes
Relating to Membership) Rules, 1994 -
Rule 3 - Manner of raising disputes under
Section 27(1) - Rule 4 - Manner of raising
disputes under Section 27(2)(a) and (b) -
Limitation Act, 1963 - Section 3 - Bar of
limitation - Section 5 - delay condonation
- Election Petition filed beyond the
Limitation - defence of limitation not
taken, under Section 3(1) of the of the
Limitation Act - question of limitation is a
question of jurisdiction - order rejecting
recall application no. 111C and order
condoning delay in filing Election petition
- quashed.(Para-11,12)

An election for electing a member of Zila
Panchayat Ward/Sector was held - result
declared - writ petition filed challenging
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
election result - dismissed on the round of
alternate remedy under section 27 of U.P.
Kshettra Panchayats and Zila Panchayats
Adhiniyam, 1961 - Election petition filed -
belatedly - codonation application - allowed -
Election petition served by publication - no
notice served on the petitioner - Election
petition proceeded ex parte - Application
No.111C filed for recall - rejected - objection
filed - Election Tribunal rejected application
(Para-1,2,3)

Held :- An Election Petition could not have
been filed beyond the Limitation provided -
even if the defence of limitation is not taken,
under Section 3(1) of the of the Limitation Act
the Court itself could have looked into the
question of limitation and could have refused to
proceed with the Election Petition - question of
limitation is a question of jurisdiction and could
have been raised at any point of time while the
case was being proceeded with.(Para-11)

Matters Under Article 227 allowed. (E-7)

List of cases cited:-

## Text

2 All. Akhilesh Vs. A.D.J./Special Judge E.C. Act, Varanasi & Ors.
1145
instruct
learned
Standing
Counsel
appearing for the State of U.P. to make
any such statement that the State had no
objection in case result of the petitioners
of the said case was declared by
University. the manner in which the case
of Ankit Kumar was conducted on behalf
of State of U.P. though cannot be
appreciated for non-disclosure of full and
complete facts, however, we do not find it
a case of any deliberate attempt by the
officers of the State Government to
mislead the Court so as to make the
officers liable to be proceeded against,
under contempt jurisdiction. In this view of
the matter, question no. 2 referred to us is
answered as follows:

Since
instructions
of
State
Government
contained
in
its
communication dated 28.11.2018 did not
disclose full and complete facts including
the order dated 10.09.2018 passed by
Hon'ble
Supreme
Court
on
the
interlocutory application moved by State
of U.P. itself (IA No. 1216 of 2017), the
said instructions could not be acted upon,
however, in absence of any specific
instruction to learned State Counsel to
submit before this Court that State did not
have any objection if result of those
admitted students is declared by the
University, the contempt proceedings
against officers of the State may not be
initiated/instituted.

Reference made is answer thus."

6. In view of the aforesaid decision of the
larger Bench and the answer given to the
questions referred to it, as admittedly the
petitioner was granted admissions subsequent
to 16.09.2013, in non-adherence and violation
to the time schedule fixed by the Hon'ble
Supreme Court, the relief prayed for in this
petition cannot be granted. It is accordingly
declined.

7. The petition is dismissed with the
aforesaid observations.
----------
(2020)02ILR A1145

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Matters Under Article-227 No. 118 of 2020
(Civil)

Akhilesh ...Petitioner
Versus
A.D.J./Special Judge E.C. Act, Varanasi &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Singh, Sri Ashish Kumar
Singh

Counsel for the Respondents:
Sri Raj Kumar Kesari

A. Election Petition - U.P. Kshettra
Panchayats
and
Zila
Panchayats
Adhiniyam, 1961- Section 27- Disputes as
to membership or disqualification - U.P.
Zila Panchayats (Settlement of Disputes
Relating to Membership) Rules, 1994 -
Rule 3 - Manner of raising disputes under
Section 27(1) - Rule 4 - Manner of raising
disputes under Section 27(2)(a) and (b) -
Limitation Act, 1963 - Section 3 - Bar of
limitation - Section 5 - delay condonation
- Election Petition filed beyond the
Limitation - defence of limitation not
taken, under Section 3(1) of the of the
Limitation Act - question of limitation is a
question of jurisdiction - order rejecting
recall application no. 111C and order
condoning delay in filing Election petition
- quashed.(Para-11,12)

An election for electing a member of Zila
Panchayat Ward/Sector was held - result
declared - writ petition filed challenging
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
election result - dismissed on the round of
alternate remedy under section 27 of U.P.
Kshettra Panchayats and Zila Panchayats
Adhiniyam, 1961 - Election petition filed -
belatedly - codonation application - allowed -
Election petition served by publication - no
notice served on the petitioner - Election
petition proceeded ex parte - Application
No.111C filed for recall - rejected - objection
filed - Election Tribunal rejected application
(Para-1,2,3)

Held :- An Election Petition could not have
been filed beyond the Limitation provided -
even if the defence of limitation is not taken,
under Section 3(1) of the of the Limitation Act
the Court itself could have looked into the
question of limitation and could have refused to
proceed with the Election Petition - question of
limitation is a question of jurisdiction and could
have been raised at any point of time while the
case was being proceeded with.(Para-11)

Matters Under Article 227 allowed. (E-7)

List of cases cited:-

1. Foreshore Co-operative Housing Society
Limited Vs. Praveen D.Desai (Dead) thr. Lrs.
and others, 2015 (6) SCC 412

2. Smt. Sharda Devi Vs. State of U.P., 2013 (2)
AWC 1649

3. Kanwar Singh Saini Vs. High Court of Delhi ,
2012 (4) SCC 307

(Delivered by Hon'ble Siddhartha Varma,
J.)

1. An election for electing a member
of Zila Panchayat Ward/Sector No. 6,
Vikas Khand Narayanpur, District -
Varanasi was held on 17.10.2015. The
result of that election was declared on
2.11.2015. The respondent no. 6 Rakesh
who was aggrieved by the election of
petitioner filed a writ petition being Writ -
C No. 3466 of 2016 to challenge the
election
result
dated
2.11.2015.
On
27.1.2016, the writ petition was dismissed
on the ground that an alternative remedy
was available to the petitioner of that writ
petitioner (respondent no. 6 in this writ
petition) and that he could have availed the
remedy of filing an Election Petition under
Section 27 of the U.P. Kshettra Panchayats
and Zila Panchayats Adhiniyam, 1961.
Thereafter, the respondent no. 6 filed an
Election Petition being Election Petition
No. 43 of 2016 on 30.1.2016.

2. This Election Petition, as was filed
belatedly,
was
accompanied
by
an
application to condone the delay in filing
the election petition as it was filed beyond
the limitation prescribed by Rule 4 of the
U.P. Zila Panchayats (Settlement of
Disputes Relating to Membership) Rules,
1994. Notices, it appears, were issued in
the Election Petition and on 21.7.2016
after deeming sufficient notice on the
petitioner,
through
publication,
the
application under Section 5 of the
Limitation Act was allowed. As the
petitioner here and the opposite party in
the Election Petition was served by
publication and as the notice, in fact, was
not
served
on
the
petitioner,
the
proceedings in the Election Petition
proceeded ex parte.

3. Upon knowledge being gained by
the petitioner on 29.1.2018 about the
Election Petition a written statement was
filed by the petitioner Akhilesh. During
the course of hearing, the petitioner
Akhilesh who was a candidate and who
had won the Election filed an application
being Application No. 111C to recall the
order dated 21.7.2016 by which the delay
in filing the election petition had been
condoned. This application was filed on
23.10.2019.
The
election
petitioner
(respondent no. 6 here) filed his objection
2 All. Akhilesh Vs. A.D.J./Special Judge E.C. Act, Varanasi & Ors.
1147
and prayed that the application filed on
23.10.2019 i.e. application no. 111C be
rejected. On 3.12.2019, the Election
Tribunal i.e. the Court of the Additional
District Judge/Special Judge, E.C. Act,
Varanasi, rejected the application of the
petitioner, hence the instant writ petition.

4. Learned counsel for the petitioner
relied upon Section 27 of the U.P. Kshettra
Panchayats
and
Zila
Panchayats
Adhiniyam, 1961, and upon Rules 3 and 4
of the U.P. Zila Panchayats (Settlement of
Disputes Relating to Membership) Rules,
1994 and submitted that against the result
of an election which was declared on
2.11.2015 as per Rule 4 of the U.P. Zila
Panchayats
(Settlement
of
Disputes
Relating to Membership) Rules, 1994, an
Election Petition could have been filed
within a period of 30 days. Since the
learned counsel for the petitioner took
recourse to the provisions of Section 27 of
the U.P. Kshettra Panchayats and Zila
Panchayats Adhiniyam, 1961, and to Rules
3 and 4 of the U.P. Zila Panchayats
(Settlement
of
Disputes
Relating
to
Membership) Rules, 1994, the same are
being reproduced here as under:-

27. Disputes as to membership
or disqualification.--(1) if any dispute
arises as to whether a particular person is a
member of Zila Panchayat under clause (a)
of Section 18 the dispute shall be referred
in the manner prescribed to the State
Government and the decision of the State
Government shall be final and binding. (2)
If a dispute arises as to whether a person-

(a) has been lawfully chosen a
member of a Zila Panchayat under Section
18 or

(b) has ceased to remain eligible
for being chosen a member of the Zila
Panchayat for the purposes of Section 20
or

(C) has become disqualified to
be Adhyaksha or Upadhyaksha for the
purposes of Section 19,

the dispute shall be referred in
the manner prescribed to the Judge whose
decision shall be final and binding.

Rule 3. Manner of raising
disputes under Section 27(1). (1) If any
dispute arises as to whether a person is a
member of the Zila Panchayat under
clause (a) of sub-section (1) of Section 18 ,
the same may be raised by any person
whose name is registered as an elector in
the Electoral roll for the territorial
constituency
of
the
concerned
Zila
Panchayat.

(2) The application shall specify
the ground on which the dispute is raised
and shall be presented to the District
Magistrate by the person making the
application
and
if
there
are
more
signatories to it by any or all of them.

(3) The District Magistrate shall,
as soon thereafter as may be, refer the
application alongwith the entire records
and his own comments to the State
Government for decisions.

(4) The State Government may,
after such enquiry as it considers necessary
and
after
affording
a
reasonable
opportunity of hearing to the parties, pass
such order as it considers just and proper.

Rule 4. Manner of raising
disputes under Section 27(2)(a) and (b).-
-(1) If a dispute arises as to whether a
person has been lawfully chosen under
clause (b) of sub-Section (1) of Section 18
the matter shall be referred by means of a
written petition by any person who could
legally be a candidate at such choosing to
the Judge within thirty days of the date of
choosing.
1148 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) If a dispute arises as to
whether a person has ceased to remain
eligible for being chosen a member, the
matter shall in the manner as provided in
sub-rule (1) be raised by any person whose
name is registered as an elector in the
Electoral
roll
for
the
territorial
constituency
of
the
concerned
Zila
Panchayat.

(3) Every petition under sub-rule
(1) or sub-rule (2) shall be presented in
person by the petitioner, and if there are
more than one petitioners by any or all of
them.

5. Learned counsel for the petitioner
submitted that when the Election Petition
itself was not filed within the limitation
provided then it should have been
dismissed on the ground of limitation even
if the question of limitation was not raised.

6. In this regard, learned counsel for
the petitioner relied upon Section 3(1) of
the Limitation Act, 1963, and, therefore,
the same is being reproduced here as
under:-

S.3 : Bar of limitation. (1)
Subject to the provisions contained in
sections 4 to 24 (inclusive), every suit
instituted,
appeal
preferred,
and
application made after the prescribed
period shall be dismissed although
limitation has not been set up as a
defence.

7. Learned counsel for the petitioner
submitted that a question of jurisdiction
could be raised at any point of time during
the continuance of a case and further
submitted that limitation in a given case
was a question of jurisdiction and if the
petitioner raised the same even after some
delay then that question had to be looked
into and answered. Learned counsel
submitted that question of limitation is a
plea of law which covered the jurisdiction
of a Court and could be raised at any stage.
To emphasize this proposition of law,
learned counsel relied upon 2015 (6) SCC
412 (Foreshore Co-operative Housing
Society Limited v. Praveen D.Desai
(Dead) thr. Lrs. and others). Since the
learned counsel specifically relied upon
paragraphs 49 to 54 they are being
reproduced here as under:-

"49. A Constitution Bench of
five Judges of this Court in the case of
Pandurang Dhondi Chougule vs. Maruti
Hari Jadhav, 1966 SC 153, while dealing
with the question of jurisdiction, observed
that a plea of limitation or plea of res
judicata is a plea of law which concerns
the jurisdiction of the court which tries the
proceeding. The Bench held:-

"10. The provisions of Section
115 of the Code have been examined by
judicial decisions on several occasions.
While exercising its jurisdiction under
Section 115, it is not competent to the
High Court to correct errors of fact
however gross they may, or even errors of
law, unless the said errors have relation to
the jurisdiction of the court to try the
dispute itself. As clauses (a), (b) and (e) of
Section 115 indicate, it is only in cases
where the subordinate court has exercised
a jurisdiction not vested in it by law, or has
failed to exercise a jurisdiction so vested,
or has acted in the exercise of its
jurisdiction illegally or with material
irregularity that the revisional jurisdiction
of the High Court can be properly invoked.
It is conceivable that points of law may
arise in proceedings instituted before
subordinate courts which are related to
questions of jurisdiction. It is well settled
that a plea of limitation or a plea of res
2 All. Akhilesh Vs. A.D.J./Special Judge E.C. Act, Varanasi & Ors.
1149
judicata is a plea of law which concerns
the jurisdiction of the court which tries the
proceedings. A finding on these pleas in
favour of the party raising them would
oust the jurisdiction of the court, and so,
an erroneous decision on these pleas can
be said to be concerned with questions of
jurisdiction which fall within the purview
of Section 115 of the Code. But an
erroneous decision on a question of law
reached by the subordinate court which
has no relation to questions of jurisdiction
of that court, cannot be corrected by the
High Court under Section 115."

50. In the case of Manick Chandra
Nandy vs. Debdas Nandy, (1986) 1 SCC 512,
this Court, while considering the nature and
scope of High Court's revisional jurisdiction in
a case where a plea was raised that the
application under Order IX Rule 13 was barred
by limitation, held that a plea of limitation
concerns the jurisdiction of the court which
tries a proceeding for a finding on this plea in
favour of the party raising it would oust the
jurisdiction of the court.

51. In the case of National Thermal
Power
Corpn.
Ltd.
vs.
Siemens
Atkeingesellschaft, 2007 (4) SCC 451, this
Court considering the similar question under
the Arbitration and Conciliation Act held as
under:-

"17. In the larger sense, any refusal
to go into the merits of a claim may be in the
realm of jurisdiction. Even the dismissal of the
claim as barred by limitation may in a sense
touch on the jurisdiction of the court or
tribunal. When a claim is dismissed on the
ground of it being barred by limitation, it will
be, in a sense, a case of the court or tribunal
refusing to exercise jurisdiction to go into the
merits of the claim. In Pandurang Dhoni
Chougule v. Maruti Hari Jadhav this Court
observed that: (AIR p. 155, para 10)

"10......It is well settled that a plea of
limitation or a plea of res judicata is a plea of
law which concerns the jurisdiction of the
court which tries the proceedings. A finding on
these pleas in favour of the party raising them
would oust the jurisdiction of the court, and so,
an erroneous decision on these pleas can be
said to be concerned with questions of
jurisdiction which fall within the purview of
Section 115 of the Code."

52. In the case of Official Trustee
vs. Sachindra Nath Chatterjee, AIR 1969 SC
823, a three Judges Bench of this Court while
deciding the question of jurisdiction of the
Court under the Trust Act observed:-

"15. From the above discussion
it is clear that before a Court can be held to
have jurisdiction to decide a particular
matter it must not only have jurisdiction to
try the suit brought but must also have the
authority to pass the orders sought for. It is
not sufficient that it has some jurisdiction
in relation to the subject-matter of the suit.
Its jurisdiction must include the power to
hear and decide the questions at issue, the
authority to hear and decide the particular
controversy that has arisen between the
parties."

53. In the case of ITW Signode
India Ltd. vs. CCE, (2004) 3 SCC 48, a
similar question came before a three
Judges Bench of this Court under the
Central Excise Act, 1944, when this Court
opined as under:-

"69. The question of limitation
involves a question of jurisdiction. The
finding of fact on the question of
jurisdiction would be a jurisdictional fact.
Such a jurisdictional question is to be
determined having regard to both fact and
law involved therein. The Tribunal, in our
opinion, committed a manifest error in not
determining the said question, particularly,
when in the absence of any finding of fact
that such short-levy of excise duty related
to any positive act on the part of the
appellant by way of fraud, collusion,
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
wilful misstatement or suppression of
facts, the extended period of limitation
could not have been invoked and in that
view of the matter no show-cause notice in
terms of Rule 10 could have been issued."

54. In the case of Kamlesh Babu
vs. Lajpat Rai Sharma, (2008) 12 SCC
577, the matter came to this Court when
the trial court dismissed the suit on issues
other than the issue of limitation. The
Bench held:-

"23. The reasoning behind the said
proposition is that certain questions relating to
the jurisdiction of a court, including limitation,
goes to the very root of the court's jurisdiction
to entertain and decide a matter, as otherwise,
the decision rendered without jurisdiction will
be a nullity. However, we are not required to
elaborate on the said proposition, inasmuch as
in the instant case such a plea had been raised
and decided by the trial court but was not
reversed by the first appellate court or the High
Court while reversing the decision of the trial
court on the issues framed in the suit. We,
therefore, have no hesitation in setting aside
the judgment and decree of the High Court and
to remand the suit to the first appellate court to
decide the limited question as to whether the
suit was barred by limitation as found by the
trial court. Needless to say, if the suit is found
to be so barred, the appeal is to be dismissed. If
the suit is not found to be time-barred, the
decision of the first appellate court on the other
issues shall not be disturbed."

8. In this regard, learned counsel for the
petitioner also relied upon a judgement
reported in 2012 (4) SCC 307 ( Kanwar Singh
Saini v. High Court of Delhi). He specifically
relied upon paragraph 22 and, therefore, the
same is being reproduced here as under:-

"22. There can be no dispute
regarding the settled legal proposition that
conferment of jurisdiction is a legislative
function and it can neither be conferred with
the consent of the parties nor by a superior
court, and if the court passes order/decree
having no jurisdiction over the matter, it would
amount to a nullity as the matter goes to the
roots of the cause. Such an issue can be raised
at any belated stage of the proceedings
including in appeal or execution. The finding
of a court or tribunal becomes irrelevant and
unenforceable/inexecutable once the forum is
found to have no jurisdiction. Acquiescence of
a party equally should not be permitted to
defeat the legislative animation. The court
cannot derive jurisdiction apart from the
statute. (VideUnited Commercial bank Ltd. v.
Workmen, Nai Bahu v. Lala Ramnaraya,
Natraj Studios(P) Ltd. v. Navrang Studios,
Sardar hasan Siddiqui v Stat. A.R Antulay v.
R.S. Nayak, Union of India v. Deoki Nandan
Aggarwal, karnal Improvement Trust v.
Parkash Wanti, U.P. Rajkiya Nirman Nigam
Ltd. v. Indure (P) Ltd., State of Gujarat v.
Rajesh Kumar Chimanlal Barot, Kesar Singh
v. Sadhu, Kondiba Dagadu Kadam v.
Savitribai Sopan Gujar and CCE v. Flock
(India) (P) Ltd."

9. Learned counsel for the petitioner,
therefore, submitted that the judgement of
the Court below which had stated that the
decision on the point of limitation,
wherein the delay in filing the Election
Petition was condoned on 21.7.2016 could
not
have
been
questioned
in
the
proceedings of the Election Petition was
absolutely erroneous and, therefore, the
impugned order dated 3.12.2019 be set
aside.

10. Learned counsel appearing for
the Election Petitioner (the respondent no.
6 here), however, submitted that the
question of limitation could not have been
raised after the lapse of almost 3 years and
six months. Learned counsel for the
respondent no. 6 relied upon Section 23
2 All. Rajendra Nath Bajpai Vs. State of U.P. & Anr.
1151
and stated that the Act provided a
limitation of five years for the declaration
of any candidate as incapable. Alongwith
the written submissions which have been
made a part of the record of the case,
learned counsel submitted a certified copy
of the order sheet of the case and stated
that the question of limitation could not
have been raised in the manner the
petitioner had raised and, therefore,
submitted that the order passed by the
Election Tribunal was absolutely correct.

11. Having heard the learned counsel
for the parties, I am of the view that an
Election Petition could not have been filed
beyond the Limitation provided. This has
also been held in the judgement reported in
2013 (2) AWC 1649 Smt. Sharda Devi vs.
State of U.P. Further, I am of the view that
even if the defence of limitation is not taken,
under Section 3(1) of the of the Limitation
Act the Court itself could have looked into
the question of limitation and could have
refused to proceed with the Election Petition.
Still further, I am of the view that a question
of limitation is a question of jurisdiction and
could have been raised at any point of time
while the case was being proceeded with.

12. Under such circumstances, the
order dated 3.12.2019 by which the
application no. 111C was rejected and the
order dated 21.7.2016 by which the delay in
filing the Election Petition was condoned
both are being quashed.

13. Since the order dated 21.7.2016 is
being set aside, the Election Petition being
Election Petition No. 43 of 2016 cannot now
be further proceeded with.

14. With the above observation, the
writ petition stands allowed.
----------
(2020)02ILR A1151

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

U/S 482/378/407 No. 3665 of 2010

Rajendra Nath Bajpai ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Kapil Misra

Counsel for the Opposite Party:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 319 - Scope-
Power under Section 319 Cr.P.C. can be
exercised by Court against a person not named
in First Information Report or no charge-sheet
is filed by Police against him and the accused
can be summoned only on the basis of
examination-in-chief of witness and the Court
need not wait for cross-examination.
A person not named in the FIR or in the
chargesheet can be summoned by the Court
u/s 319 Cr.Pc only on the basis of examination-
in- chief of the witness.

B.
Criminal
Law-Code
of
Criminal
Procedure, 1973- Section 319- Degree of
satisfaction of Court for summoning the
accused under Section 319 Cr.P.C- the tests
are not only same as applicable for framing
charge, but a little more in degree. Mere taking
of name is not sufficient to exercise power
under Section 319 Cr.P.C. but there must be
something more i.e. evidence must be such
wherefrom on judicious consideration, Court
must be satisfied that such person can be tried
alongwith accused already facing trial. It
cannot be said that Trial Court, in the case in
hand, has exercised jurisdiction casually or in a
cavalier manner and there is no appropriate
and reasonable evidence to summon applicant.
Name of the person who has filed the