Point of Law
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.

JUDGMENT :

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 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 an