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1996 DIGILAW 1267 (RAJ)

Naseem Bano v. Khalrun

1996-11-08

SHIV KUMAR SHARMA

body1996
Honble SHARMA, J. – In the words of John Voet, controversies are restricted to a fixed period of time lest they should become immortal while men are mortal. It secures peace as it ensures security of rights ; and it secures justice, as by lapse of time evidence in support of rights may be destroyed. There can thus be no doubt that it rests on sound policy. The operation of the law of prescription has been ex- plained by Lord Plunket in a striking metaphor. He stated that Time holds in one hand a scythe in the other,an hour glass. The scythe mows down the evidence of our rights, while the hour glass measures the period which renders that evidence superfluous. Commenting on this, a learned author observes that the metaphor have been completed by adding, so far as India is concerned, that the framework of the hour- glass would certainly decay, the glass be broken and the sand scape. The utility of a statute of Limitation has never been a matter of serious doubt or dispute. It has been said that the statue of limitation is staturte of repose, peace and justice. (2) The short and interesting question which has to be adjudicated in this civil miscellaneous appeal is whether the provisions of Limitation Act are applicable in the petitions pertaining to municipal elections. The factual matrix are that the appe- llant contested election to Municipal Board Hindaun as a candidate from Ward No. 21. The appellant challenged the election of respondent No. 1 by way of election petition before the District Judge, Sawai Madhopur u/s 36 of the Rajasthan Municipalities Act,1959(hereinafter to be referred to as the Act). The appellant also filed an application u/s 5 of the Limitation Act duly supported by her own affidavit, see- king condonation of delay of two days in filing the election petition. The District Judge, vide order dated 21.11.1995, dismissed the election petition with costs of Rs. 200/- as barred by limitation holding that the provisions of Sec. 5 of the Limitation Act are not applicable to election petitions filed u/s 36 of the Act of 1959.The said order has been assailed in this miscellaneous appeal. The District Judge, vide order dated 21.11.1995, dismissed the election petition with costs of Rs. 200/- as barred by limitation holding that the provisions of Sec. 5 of the Limitation Act are not applicable to election petitions filed u/s 36 of the Act of 1959.The said order has been assailed in this miscellaneous appeal. (3) It has been vehemently contended by the learned counsel for the appellant Mr.Ajeet Kumar Sharma, that there is no provision in the Act which expressly excludes the applicability of the provisions of Limitation Act to election petitions presented u/s 36 of the Act of 1959 and therefore in view of the provisions contained in sub-sec. (2) of Sec.29 of the Limitation Act, application u/s . 5 of the Limitation Act was clearly maintainable and was required to be decided on merits, as such the impugned order is contrary to law and deserves to be set aside . It has also been argued by Mr. Sharma, learned counsel that the Act of 1959 is a special law and Sec.36 of the Act provides for aperiodof limitation for presentation of the election petition and in such situation Sec. 5 of the Limitation Act would become applicable in view of the provisions contained in Sec. 29(2) of the Limitation Act. (4) On the other hand, Mr. S.K. Gupta, learned counsel for the respondent No. 1 has supported the impugned order and argued that the provisions of Sec. 5 of the Limitation Act are not applicable to the election petitions submitted under the provisions of the Act of 1959.With a view to appreciate the controversy raised in this appeal it is necessary to examine the provisions of Sec 36 of the Act of 1959. According to which the election petition shall be presented within 30 days from the date on which the result of the election in question is announced by the returning officer. This section is mandatory in nature and there is no provision for condonation of delay in filing the election petition, in this section. (5) There are conflicting decisions of the various High Courts with regard to the applicability of Sec. 5 of the Limitation Act to the matters pertaining to elections. This section is mandatory in nature and there is no provision for condonation of delay in filing the election petition, in this section. (5) There are conflicting decisions of the various High Courts with regard to the applicability of Sec. 5 of the Limitation Act to the matters pertaining to elections. While interpreting Sec. 81 & 67-A of the Representation of Peoples Act, 1951, the Madhya Pradesh High Court in Abhimanyu Rath vs. Virendra Pandey (1) has observed that ``the Representation of the People Act is a special Act which provides a different period of limitation for an election petition for which no period is prescribed by the Schedule to the Limitation Act. It has been held in the said case that ``even if it is assumed that by of Sec. 29 of the Limitation Act, certain provisions of the Limitation Act can be made applicable to an election petition, there is no scope for applying the provisions of Sec. 5 of the Limitation Act. The exclusion of the same is clearly borne out from the language of Secs. 81 & 86 (1) of the Representation of Peoples Act. Section 81 in an unqualified manner prescribes that an election petition shall be presented within 45 days from the date of election.The special Act thereafter makes a mandatory provisions in Sec. 86(1) that if an election petition has not been presented in compliance of Sec. 81 the same shall be dismi- dismissed by the High Court. Neither the restrictive words as``subject to the provisions of the Limitation Act have been used by the Parliament, nor any power has been conferred on the Court by adding a proviso to the aforesaid sections or otherwise to extend the period or to condone the delay. Wherever legislature wanted to provide for condonation of delay for instituting proceedings contemplated by the Act, it made a special provision for the same. (6) Section 36 of the Act of 1959, also in an unqualified manner, prescribes that an election petition shall be presented within thirty days from the date on which the result of election in question is announced by the returning officer. (6) Section 36 of the Act of 1959, also in an unqualified manner, prescribes that an election petition shall be presented within thirty days from the date on which the result of election in question is announced by the returning officer. The special Act of 1959 thereafter makes a mandatory provision in sub-sec.(3) of Sec. 44 that the Judge shall dismiss an election petition which does not comply with the provisions of Sec. 36 or Sec.37 or Sec.53 and neither restricted the words as subject to the provisions of the Limitation Act have been used by the framers of this Special Actnor any power has been conferred on the Court by adding a provi- sion to Sec.36 or otherwise to extend the period to condone the delay. Similarly Mysore High Court in P.Naranappa vs. A Shanker Alva & Ors.(2) has observed that the provisions of Sec. 5 of the Limitation Act would not be applicable to election petitions. (7) In Ramnandan Rai vs. The District Judge, Sitamiarhi & ORs (3) it has been observed that ``when an election petition is filed beyond time, it has to be dismissed in limine and the Election Tribunal has no power to condone the delay.Section 5 or other sections of the Limitation Act are not attracted in such cases. (8) In Hukumdev Narain Yadav vs. Lalit Narain Mishra, (4), it has been observed that ``even in a case where the special law does not exclude the provi- sions of Secs. 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of the provisions of the special law or the nature of the subject matter and scheme of the special law exclude their operation. What the Court has to see is whether the scheme of the special law and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special Act. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special Act. (9) In Nagreddy vs. Khandappa & Ors,(5), the Division Bench of the Mysore High Court has held that Sec. 5 of the Limitation Act, 1963 is not applicable to an application filed before the Munsiff u/ R 17 of the Mysore village Panchayat (Election of the Chairman and Vice Chairman) Rules,1959. The scheme of the Limitation Act is that it deals only with proceedings taken before Court. Hence, the delay in filing the election petition before the Munsiff who is only a person designata cannot be condoned. (10) But in Bhakti Bh. Mondal vs. Khagendra K. Bandopadhyay (6), it has been held that an election petition being an application, Sec. 5 of the Limitation Act applies to it and in appropriate cases the Court has power, when sufficient cause is shown to admit an election petition after the prescribed period. I do not agree with the view expressed by the Calcutta High Court in Bhakti Bh.Mondal Khagendra K. Bandopadhyay (supra). (11) In P. Naranappa vs. A Shanker Alva & Ors. (supra) the Mysore High Court emphasised on the peculiar character of an election period, while quoting from the observations of A. Sreenivasan vs. Election Tribunal Madras, (7). Reference was also made to the Tipperary case(8) where Morris,J.said: ``......a petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested. Agreeing with the said view, the Patan High Court was of the view that an election petition is not a proceeding of a civil nature and provisions contained in Sec. 5 of the Limitation Act would not be applicable in election petition. As earlier observed by me in foregoing paras, the Rajasthan Municipalities Act, 1959 is a special Act and Sec. 36 & 44(3) of the said Act are parimateriar with Sec. 81 and Sec. 86(1) of the Representation of People Act, 1951. The provisions of Limitation Act have been excluded and this exclusion of the same is clearly borne out from the language of Sec. 36 and Sec.44(3)of the Act of 1959. The provisions of Limitation Act have been excluded and this exclusion of the same is clearly borne out from the language of Sec. 36 and Sec.44(3)of the Act of 1959. Neither restrictive words subject to the provisions of Limitation Act have been used by the framer of the Act nor any power has been conferred on the Court by adding the provisions to the aforesaid to extend the period or to condone the delay.The State Legislature has not provided any special provision in the Act of 1959 for applicability of the provisions of the Limitation Act and special provision for condonation of delay. In the absence of special provision in the Act to provide for condonation of delay, I am of the considered view that the provisions of Sec. 5 of the Limitation Act are not applicable in the instant case. Consequently, I dismiss this miscellaneous appeal and confirm the impugned order passed by the District Judge, Sawai Madhopur No costs.