PREM BALLABH BRIJWASI Vs. KEDAR PALARIYA

JUDGEMENT

(1.) The petitioner is a returned candidate, who was elected as a Member of Zila Panchayat from Ward No. 26 Amritpur (General) constituency of District Nainital. His election was put to challenge by the election petitioner i.e. respondent no. 1 herein by filing an Election Petition, invoking the provisions contained under Section 131-H (10) of the Uttarakhand Panchayati Raj Act, 2016. If the verification clause of the said Election Petition is taken into consideration, which has shown that the Election Petition was verified to be filed on 09.07.2020 and as per the averments made in the writ petition, the Election Petition was placed in the drop box of the Court in accordance with the procedure, which was laid down by the Government of India in order to meet up crises and the process of sanitization and thereafter the matter was placed before the learned District Judge on 10.07.2020. Apparently, and admittedly also as per the provisions contained in the Act, if the election petition is treated to have been filed on 09.07.2020, it would be falling to be well within time and if it is presented before the District Judge on 10.07.2020, then the bar of limitation, would come into play.

(2.) As far as the said aspect is concerned pertaining to the bar of limitation, in principle and very candidly too the parties are not on quarrel on the said aspect of limitation that the election petition, would be barred by the provisions contained under Section 131-H (10), because if on account of certain aforesaid Covid-19 contingency if the Election Petition has been presented before the Court, as per the procedure prescribed therein and by putting the same in the drop box on 09.07.2020, it would be treated to have been instituted on 09.07.2020, may be that it was presented, for it is considered before the District Judge on 10.07.2020; but that contingency in itself will not make the Election Petition, as to be barred by limitation, though only grievance which the petitioner has, presently confined to be canvassed is with regards to the apprehension, which he has expressed that while deciding the suit on issue of limitation, the learned District Judge in its judgment dated 20.02.2021 has made the following observations:-

(3.) His submission is that the observations, which has been made by the Election Tribunal i.e. District Judge, Nainital that the election petition would be tenable before him and the bar of limitation would not come into play while deciding issue no. 1, would create an obstacle qua the petitioner because he contends that as per the provisions contained under Section 131-H (10), the institution of the election petition could have been only after a reference being made of an election dispute to the District Judge. To present an election dispute before the District Judge for its institution under Section 131-H(10), his contention is that in the absence of there being a reference being made the proceedings itself would be barred and this observation which has been made in the impugned order, about the tenability of the proceedings before the District Judge, will deprive him of his rights to raise his objections in the light of the objections contained under Section 131-H(10) of the Act. While dismissing this writ petition so far it relates to the limited issue of limitation, I hold that the learned District Judge by the impugned order has rightly decided the aspect of limitation and had rightly held that the election petition, which was preferred by the election petitioner/respondent no. 1, was within time with a slight clarification, only to the effect that observation made in the paragraphs as quoted above will not create any impediment for the petitioner so far it relates to the petitioner contentions on the issue of the institution of election petition before the District Judge, in the absence of there being prior a reference made by the District Magistrate, as per the provisions contained under Section 131-H(10) of the Act and also as per the ratio, which had been laid down by the Coordinate Bench of this Court in a bunch of writ petition with a leading Writ Petition No. 3350 of 2019, Bhupendra Singh vs. State of Uttarakhand and others. The said question would still be left open to be argued and decided by the learned District Judge before venturing into the merits of the election petition.