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2005 DIGILAW 85 (HP)

GIAN CHAND v. NAND LAL

2005-04-05

V.K.GUPTA

body2005
JUDGMENT V.K. Gupta, C.J.—The only question of law which is involved in this petition filed under Article 227 of the Constitution of India is as to whether, with respect to an appeal filed by an aggrieved person under Section 67 of the H.P. Panchayati Raj Act, 1994, Limitation Act, particularly Section 5 thereof, is attracted or not and consequently, whether an aggrieved appellant is entitled to invoke Section 5 and seek condonation of delay in filing his time-barred appeal. But first brief facts. 2. Gram Panchayat, Hatwar vide an order passed on 25th May, 2005 convicted the petitioner Gian Chand under Section 504, Indian Penal Code and sentenced him to pay a fine of Rs. 5/- and also damages amounting to Rs. 600/- per year. Against this order passed by the Gram Panchayat, Hatwar the petitioner filed an appeal in terms of Section 67 of 1994 Act before the learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, being case No. 12/10 of 2004. This appeal, however, was dismissed by the learned Additional Chief Judicial Magistrate, Ghumarwin vide his judgment dated 31st August 2004, inter-alia, on the ground that the appeal was time-barred and there was no provision in 1994 Act whereby the appellant could invoke the benefit of Section 5 of the Limitation Act for condoning delay in filing the appeal, even though the appellant had, along with the appeal, actually filed an application under Section 5 of the Limitation Act seeking such condonation of delay. In what can be considered as an insight into the working of the mind of the learned Additional Chief Judicial Magistrate, the following part of the impugned judgment reveals that the learned Additional Chief Judicial Magistrate took a view that the Limitation Act did not apply to a proceeding under the aforesaid 1994 Act and in taking the said view he apparently was influenced by Section 60 of the said Act. The following two paras being apposite, are reproduced verbatim, which read thus:— "(11) The learned Counsel for the appellant has argued that the appellant has also filed application for condoning the delay in filing the present appeal. But here again, it has to be observed that the provisions of the Limitation Act do not apply to the proceedings under the H.P. Panchayati Raj Act. But here again, it has to be observed that the provisions of the Limitation Act do not apply to the proceedings under the H.P. Panchayati Raj Act. Here, reference may be made to the provisions of Section 60(4) of the Act, which provides as under:— 60(4).The Gram Panchayat shall follow the procedure prescribed by or under this Act. The Code of Civil Procedure, 1908, the Indian Evidence Act, 1872, the Code of Criminal Procedure 1973 and the Limitation Act, 1963, shall not apply to any suit, case or proceedings before a Gram Panchayat except as provided in this Act or as may be prescribed. (12) It thus, appears that the Panchayat will only follow the procedure prescribed by or under the Act and that the provisions of the C.P.C., Cr.P.C, the Evidence Act and the Limitation Act do not apply to the proceedings of the Gram Panchayat. Therefore, it has to be held that the application filed for condoning the delay is not maintainable in such cases and will not help the appellant in this case. (See also: Rajesh Kumar v. Vipin Kumar, 2003(1) S.L.J. 76)." Section 67 of 1994 Act reads thus:— "Any person aggrieved by an order or decree of a Bench of the Gram Panchayat may appeal within a period of thirty days from the date of such order or decree to the Judicial Magistrate/Sub-Judge in respect of any case or suit, as the case may be, and the Collector concerned in respect of any proceedings under the Himachal Pradesh Land Revenue Act, 1953." 3. Since in para 11 (supra) of the impugned judgment the learned Magistrate has quoted only sub-section (4) of Section 60 of 1994 Act, I consider it desirable that the entire Section 60 is reproduced verbatim so that one gets a fair view of the scope and ambit of this Section. Section 60 reads thus:— "60.(1) The Gram Panchayat shall receive such evidence in a case, suit or proceeding, as the parties may adduce and may call for such further evidence as, in their opinion, may be necessary for the determination of the points in issue. (2) The Gram Panchayat may make local investigation in the village to which the dispute relates. (2) The Gram Panchayat may make local investigation in the village to which the dispute relates. (3) It would be the duty of the Gram Panchayat to ascertain the facts of every case, suit or proceeding before it by every lawful means, in its power and thereafter to make such decree, or order, with or without costs as it may deem just and legal. (4) The Gram Panchayat shall follow the procedure prescribed by or under this Act. The Code of Civil Procedure, 1908, the Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Limitation Act, 1963, shall not apply to any suit, case or proceedings before a Gram Panchayat except as provided in this Act or as may be prescribed." 4. I must say that the approach adopted by the learned Magistrate in coming to the conclusion that the Limitation Act is not applicable to the appeals filed under Section 67 of 1994 Act and in his deriving support for this approach from Section 60(4) of the said Act was wholly erroneous and totally misplaced. There are two reasons for my saying so. First and foremost, as is clearly evident from a bare perusal of Section 60 of the Act, this Section deals with only the Gram Panchayats and the functions being performed by the Gram Panchayats as well as the proceedings before the Gram Panchayats. The heading of the Section "Procedure and power to ascertain truth" clearly suggests that this Section is not at all attracted in so far as appeals are concerned. Sub-section (1) of Section 60 talks of the Gram Panchayat receiving evidence as the parties may adduce and also for calling for further evidence as may be necessary for the determination of points in issue. Sub-section (2) relates to the Gram Panchayat making local investigation in the village in which the dispute occurs. Subsection (3) pertains to the duties of the Gram Panchayat to ascertain facts of every case, suit or proceedings before it by lawful means and thereafter to pass decrees or orders with or without costs as the Gram Panchayat may deem just and legal. Subsection (3) pertains to the duties of the Gram Panchayat to ascertain facts of every case, suit or proceedings before it by lawful means and thereafter to pass decrees or orders with or without costs as the Gram Panchayat may deem just and legal. After prescribing the aforesaid, in sub-section (4) it is laid down that the Gram Panchayat shall follow the procedure prescribed by 1994 Act itself and that Civil Procedure Code, Indian Evidence Act, Code of Criminal Procedure and the Limitation Act shall not apply to any suit, case or proceedings before a Gram Panchayat. Naturally and obviously sub-section (4) when it talks of the Gram Panchayat following the procedure prescribed by 1994 Act and the aforesaid four Statutes not applying to any proceeding before the Gram Panchayat, the legislative intent is clearly discernible that sub-section (4) has a clear nexus with sub-sections (1), (2) and (3) of Section 60 and that in totality of circumstances non-application (or the exclusion) of the provisions of the aforesaid four Statutes is only with respect to the proceedings before the Gram Panchayats. 5. Viewed from the aforesaid background and the aforesaid legal perspective, let us now look at Section 67 of 1994 Act which relates to the right of an aggrieved person to file an appeal before a Judicial Magistrate or a Sub-Judge, (as the case may be) against an order or decree of a Bench of the Gram Panchayat. It provides that such an appeal has to be filed within a period of 30 days from the date of the passing of the order or the decree. Relating Section 60 to Section 67 of the Act would be wholly misplaced. These two Sections have no connection with each other. Holding or saying that because the Limitation Acts applicability is excluded by virtue of Section 60(4) of the Act and, therefore, delay in filing a time-barred appeal cannot be condoned/amounts to reading into Section 67 of the Act something which is not there, as it is only applicable to Section 60 of the Act. To sum it up, what has been prescribed or proscribed in Section 60(4) of the Act cannot be valid nor can it be applicable to Section 67 of the Act. Both the Sections are totally independent of each other and both relate to different areas and operate in different fields of operation. To sum it up, what has been prescribed or proscribed in Section 60(4) of the Act cannot be valid nor can it be applicable to Section 67 of the Act. Both the Sections are totally independent of each other and both relate to different areas and operate in different fields of operation. To further sum it up, a bare reading of Section 67 clearly suggests that in so far as the appeals are concerned, the applicability of Limitation Act to such appeals has not been excluded. 6. Section 29 of the Limitation Act clearly, in pith and substance suggests that in a situation like the present one the provisions contained in Section 3 and Sections 4 to 24 of the Limitation Act are applicable. Sub-section (2) of Section 29 being relevant for this purpose, is reproduced herein, which reads thus:— "(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law." 7. Clearly the H.R Panchayati Raj Act, 1994 is both a special as well as a local law and equally clearly, Section 67 of this Act provides a period of limitation for filing appeals which is different from the period prescribed in the Schedule to the Limitation Act. That being the case, apart from Section 3 of the Limitation Act, Sections 4 to 24 are also applicable and, therefore, if with respect to a time-barred appeal preferred under Section 67 of 1994 Act the appellant seeks condonation of delay, Section 5 of the Limitation Act immediately is attracted and comes to his rescue and aid and he, as a matter of right, is entitled to, through the medium of such an application under Section 5 of the Limitation Act pray for condonation of delay in filing a time-barred appeal. That right vests in such an appellant. That right vests in such an appellant. Whether on facts and/or merits delay is to be condoned, or it is not to be condoned, is a different matter altogether. The fact remains that the right of seeking condonation of delay vests in such an appellant and that right inheres in him by virtue of Section 29 of the Limitation Act. This right cannot be taken away by juxtaposing something from Section 60 of the Act which is not at all related or applicable to Section 67 of the Act. 8. The view that the Limitation Act is applicable with respect to a time-barred appeal filed under Section 67 of the 1994 Act can also be very easily discernible from the text of a Single Bench Judgment of this Court in the case of Subhash Chand v. Puran Chand and another reported in 2003 Latest HLJ (HP) 755, in which K.C. Sood, J. both in paras 4 and 6 has clearly indicated that benefit of Section 5 of the Limitation Act is available to an appellant filing a time-barred appeal. In para 4 of the said judgment his Lordship observed as under:— "...The appeal was not accompanied by any application under Section 5 of the Limitation Act for the condonation of the delay." 9. Similarly in para 6 of the judgment it was held and observed as under:— "....If the order was ex parte and the appellant was not aware of such an order then he could have claimed condonation of delay under Section 5 of the Limitation Act which was not done." 10. That is quite a support as far as my aforesaid view with respect to the applicability of the Limitation Act is concerned. 11. On a totality of the circumstances, I hold that the learned Court below erred in adopting the aforesaid approach and dismissing the time-barred appeal of the petitioner without affording him an opportunity of putting forth his claim seeking condonation of delay in terms of Section 5 of the Limitation Act. 12. The judgment under challenge in this petition is accordingly set aside. The matter is remanded to the learned Court below with a direction to consider afresh, on its merits and in accordance with law the petitioners application seeking condonation of delay. The petition is allowed. No orders as to costs. Petition allowed.