Gauhati High Court
Anjuwara Ahmed vs Nazma Ahmed And 3 Ors on 16 December, 2022
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GAHC010150802022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5006/2022
ANJUWARA AHMED
WIFE OF IMAM HUSSAIN,
VILLAGE- SIMALUATI, P.S.- JURIA,
P.O.- ALITANGANI, PIN- 782124,
DISTRICT- NAGAON (ASSAM).
VERSUS
NAZMA AHMED AND 3 ORS.
WIFE OF MD. RAFIQUL ISLAM AHMED,
VILLAGE- SIMALUATI, P.S.- JURIA,
P.O.- ALITANGANI, PIN- 782124,
DISTRICT- NAGAON (ASSAM).
2:THE STATE ELECTION COMMISSION (PANCHAYAT ELECTION
2018)
REPRESENTED BY THE STATE ELECTION COMMISSIONER
ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI
PIN- 781006.
3:THE DEPUTY COMMISSIONER
NAGAON CUM RETURNING OFFICER
PANCHAYAT ELECTION
2018
NAGAON
P.O. AND P.S.- NAGAON
DISTRICT- NAGAON (ASSAM)
PIN- 782001.
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4:MUSTT. JESMIN NAHAR
WIFE OF MD. NUR JAMAL
VILLAGE- SIMALUATI
P.S.- JURIA
P.O.- ALITANGANI
PIN- 782124
DISTRICT- NAGAON (ASSAM)
Advocate for the Petitioner : MR. M K HUSSAIN
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
16.12.2022
Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. M. K.
Hussain, learned counsel appearing for the writ petitioner. Also heard Mr. J. I.
Barbhuiya, learned counsel for the respondent No.1 and Mr. R. Dubey, learned
Standing Counsel, Assam State Election Commission, appearing for the
respondent No.2.
In this writ petition, the judgment dated 27.07.2022 passed by the learned
Panchayat Election Tribunal, Nagaon in connection with Election Petition
No.19(N) of 2019 challenging the election of the writ petitioner has been
assailed on the ground that the election petition was barred under the law of
limitation and therefore, the learned Election Tribunal had committed manifest
illegality in entertaining the election petition beyond the period of limitation.
By referring to Section 129(b) of the Assam Panchayat Act, 1994, Mr.
Choudhury submits that the expression used in Section 129(b) is clear and
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categorical which makes it apparent that no election petition can be
entertained beyond the statutory period of 60 days from the date of
declaration of the result of the election. The proposition of law that the
provisions of Sections 5 and 14 of the Limitation Act, 1963 would not be
applicable to an election petition filed under section 129(b) of the Act of 1994
has, according to Mr. Choudhury, been settled by the Division Bench of this
Court by the judgment and order dated 11.06.2014 passed in connection with
Writ Appeal No.34/2014 [Aslima Khatun vs. State of Assam and 5 others] and
therefore, the said issue is no longer res integra. Under the circumstances, Mr.
Choudhury submits that the election petition having evidently been filed
beyond the period of 60 days from the date of declaration of the result, the
same is barred under the law of limitation.
Responding to the above, Mr. Barbhuiya submits that as per section
129(b) of the Act of 1994 the date of declaration of result cannot be counted
and to that extent, the election petition was filed on the 60th day. Therefore,
there is no infirmity in the judgment and order dated 27.07.2022 passed by the
learned Election Tribunal.
I have considered the submissions made by the learned counsel for both
the sides and have also gone through the materials available on record.
It appears from the record that the Panchayat Election in this case was
held on 05.12.2018 and the results were declared on 14.12.2018. The election
petition was filed on 13.02.2019.
Section 129(b) of the Assam Panchayat Act, 1994 prescribes the period of
limitation for filing election petition which reads as follows :-
"129(b). No election to any Panchayat shall be called in
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question except by an election petition presented within sixty
days from the date of declaration of election results to the
Tribunal constituted under Section 127."
Mr. K. N. Choudhury, learned senior counsel has produced a date-wise
calculation sheet, reckoned from 14.12.2018 till 13.02.2019 to show that if each
day from 14.12.2018 till 13.02.2019 is counted, even then the total days till filing
of the Election Petition would be 62 days. According to Mr. Choudhury, in view
of the language employed in Section 129(b) of the Act of 1994, the date of
declaration of the result is also to be counted. However, even if the date of
declaration of the election result i.e. 14.12.2018 is excluded, even then, submits
Mr. Choudhury, the election petition was presented on the 61st day which is not
permissible in the eye of law.
Mr. R. Dubey, learned Standing Counsel, Assam State Election
Commission has supported the submission of the petitioner's counsel and
agrees that the election petition was presented on the 61st day.
The aforesaid submission has, however, been strongly refuted by Mr.
Barbhuiya by submitting that it was presented on the 60th day. However, Mr.
Barbhuiya could not substantiate his above argument.
By taking note of the law laid down by the Division Bench of this Court in
the case of Aslima Khatun (supra), and the plain language used in Section
129(b) as quoted above, this Court is left with no element of doubt that an
election petition presented before the learned Tribunal beyond 60 days from
the date of declaration of result would not be maintainable.
In the present case, even if the date of declaration of result i.e. 14.12.2018 is
excluded, even then, the election petition having been filed on 13.02.2019, was
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evidently presented beyond 60 days from the date of declaration of results. In
view of the above, the Election Petition was not maintainable in the eye of law.
Therefore, the observations made by the learned Tribunal holding that the
election petition was presented within 60 days from the date of declaration of
the result appears to be perverse and therefore, liable to be interfered with by
this Court.
In view of the observations made herein above, it would not be
necessary for this Court to go into the issue as to whether the date of
declaration of result is to be included or the same is to be excluded while
computing 60 days within the ambit of Section 129(b) of the Act of 1994 and
the said aspect of the matter is kept open to be decided in an appropriate
case.
For the reasons herein above, this writ petition succeeds and the same is
hereby allowed. The impugned judgment and order dated 27.07.2022 stands
set aside.
Parties to bear their own cost.
JUDGE
Comparing Assistant
