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2006 DIGILAW 720 (KER)

Danam v. Purushothaman Nair

2006-10-19

M.SASIDHARAN NAMBIAR

body2006
Judgment :- M. Sasidharan Nambiar, J. Petitioner is the successful candidate to Chandramangalam Ward (No. 6) of Kattakada Grama Panchayath. Respondent, one of the unsuccessful candidates filed Election O.P.7/05 to set aside the election of petitioner and to declare himself as the elected candidate. Notice was seat to petitioner from Court for appearance on 26-11-2005. When the case was taken up, on that day it was found that notice was not returned. The case was posted for appearance to 9-12-2005. Under S.99 of Kerala Panchayat Raj Act (hereinafter referred to as the 'Act') a recrimination petition is to be filed by the respondent within fourteen days from the date of commencement of the trial. As provided under explanation to S.93(3) the trial of an election petition shall be deemed to commence on the date fixed for the appearance of respondent before the Court. But petitioner filed recrimination petition along with an application to condone the delay of 9 days on 2-1-2006. It was contended that though recrimination petition should have been filed on 23-12-2005, as his wife was seriously ill and was admitted at Medical College Hospital and subsequently. Died on 25-12-2005, he could not file the recrimination petition in time and it could be filed only on the reopening day after Christmas vacation and therefore the delay of 9 days may be condoned and recrimination petition May be received. Respondent opposed the application. 2. As per Ext.P-5 order, Court below dismissed the application holding that under S.99 of the Act recrimination petition should be filed within 14 days from the date of commencement of the trial and the trial commenced on 26-11-2005 the date on which petitioner was directed to appear as per the notice and the delay cannot be condoned. This order is challenged in this petition filed under Art.227 of Constitution of India. 3. This order is challenged in this petition filed under Art.227 of Constitution of India. 3. The argument of learned Counsel appearing for petitioner is that even though petitioner was directed to appear on 26-11-2005 the Court adjourned the date for appearance to 9-12-2005 and therefore the date of commencement of the trial could only be 9-12-2005 and if so, the period provided under S.99 expired only on 23-12-2005 and as the wife of petitioner was laid up and subsequently died from the hospital on 25-12-2005, and the Court closed for Christmas vacation from 24-12-2005 till 31-12-2005, recrimination petition was filed on reopening day and the delay is to be condoned. 4. Relying on the decision of Apex Court in Sreekumar Mukherjee v. Zainel Abedin & Ors. (1999 (2) Supreme 217), learned Counsel argued that the date of appearance could only be the subsequent date posted for appearance of respondent on 9-12-2005 and the fourteenth day was the penultimate working day before Christmas vacation and on the reopening day the recrimination petition was filed. 5. Relying on the decision of Apex Court in Shaik Saidulu alias Saida v. Chukka Yesu Ratnam & Ors. ((2002) 3 SCC 130) and in Gopalan v. Aboobacker (1995 (2) KLT 205), it was argued that as the provisions of Limitation Act was not specifically excluded under the Act, S.5 of the Limitation Act has to be made applicable and the delay was only 9 days and the fact that the wife of petitioner was hospitalised and subsequently died from the hospital were not disputed and therefore the delay should have been condoned and petitioner should have been permitted to file the recrimination petition. 6. Learned Counsel appearing for respondent relying on the Division Bench decision of this Court in Anandavally v. Ajith (2001 (3) KLT 758), argued that this Court laid the principles that provisions of Limitation Act including S.5 cannot be made applicable to an election petition and therefore there is no reason to interfere with the order passed by the Court below. Learned Counsel appearing for respondent relying on the Division Bench decision of this Court in Anandavally v. Ajith (2001 (3) KLT 758), argued that this Court laid the principles that provisions of Limitation Act including S.5 cannot be made applicable to an election petition and therefore there is no reason to interfere with the order passed by the Court below. Learned Counsel relying on the decision of the Apex Court in Hukumdev Narain Yadav v. Lalit Narain Mishra (AIR 1974 SC 480) and in Fairgrowth Investments Ltd. v. Custodian ((2004) 11 SCC 472) argued that proviso to S.113 (2) of the Act provides for condonation of delay in preferring an appeal and there is no provision under S.99 to condone delay or to admit the recrimination petition filed after a period of 14 days fixed therein and therefore by implication, operation of S.29 (2) is excluded and therefore the order of the Court below cannot be interfered with. 7. A Division Bench of this Court in Anandavally's case considered the question of applicability of S.5 of Limitation Act. It was argued before the Division Bench that as operation of S.5 of Limitation Act was not specifically excluded, S.29 (2) of the Limitation Act is to be made applicable to an election Petition. Relying on Art.243-O of Constitution of India, this Court held that election petition has to be presented to such authority and in such manner as is Provided for under any law made by Legislature of the State and the procedure for presenting an application has been tale down under S.89 of the Act and since constitutional provisions specifically say that election petition shall be presented in such manner as is provided for by or under any law made by the Legislature of the State, the' procedure as laid down in Kerala Panchayat Raj Act for entertaining an election petition are to be followed and therefore provisions of S.5 of Limitation Act cannot be made applicable. 8. The argument of learned counsel appearing for petitioner relying on the decision of Apex Court in Shaik Saidulu alias Saida v. Chukka Yesu Ratnam & Ors. 8. The argument of learned counsel appearing for petitioner relying on the decision of Apex Court in Shaik Saidulu alias Saida v. Chukka Yesu Ratnam & Ors. (2002) 3 SCC 130, is that in view of the declaration of law by Apex Court that unless there is specific exclusion, S.29 (2) of Limitation Act has to be made applicable and therefore the decision of the Division Bench of this Court is not good law and it cannot be followed. As rightly pointed out by learned counsel appearing for respondent, Apex Court in Shaik Saidulu alias Saida's case (supra) was considering the applicability of Limitation Act to an election Petition filed under S.71 of Hyderabad Municipal Corporation Act. Even though that Act does not stipulate as to the applicability or non-applicability of the provisions of Limitation Act, S.671 appearing in the miscellaneous provision of that Act provides for application of provisions of Ss.5, 12 and 13 of Limitation Act for an appeal or application to be filed under the Act. Apex Court interpreting the provisions of the Act held that application include an election petition also and hence S.5 of Limitation Act applies to an election petition filed under that Act. That decision has no application to the Kerala Panchayat Raj Act as there is no identical provision to S.671 of that Act, in the Act. It as vehemently 'argued by Advocate Mr. Suresh that the Act provides a period of limitation different from that prescribed under Limitation Act and does not expressly exclude the application of Limitation Act, and so S.29(2) of Limitation Act applies and, this aspect, was not considered by the Division Bench in, Anandavally's case (supra) and , therefore the question is to be referred to a larger Bench. As rightly, argued by Advocate Mr. Ram Mohan in view of the decision of Apex Court in Fairgrowth Investments Ltd's case (supra) the submission cannot be accepted, Moreover the provisions of Representation of Peoples Act are in pari materia with the provisions of the Act dealing with election petitions including the procedure for trial and grounds for setting aside the election. In Hukumdev Narain Yadav v. L.N. Mishra (AIR 1974 SC 480), it was declared that S.5 of Limitation Act do net govern the filing, of election petition or their trial. In Hukumdev Narain Yadav v. L.N. Mishra (AIR 1974 SC 480), it was declared that S.5 of Limitation Act do net govern the filing, of election petition or their trial. That principle applies to the election petition and its trial including the recrimination petition as provided under S.99 of the Act. As declared by the Apex Court in Union of India v. Popular Construction Co. ((2001) 8 SCC 470), exclusion oho includes exclusion by necessary implication. Proviso to sub-s.2 of S.113 of the Act enables the appellate Court to entertain an appeal after the period of thirty days prescribed for preferring an appeal, if the appellant satisfies the appellate Court that he had sufficient cause for not preferring an appeal within such period. By implication the operation of provisions of Limitation Act is excluded as held by the Apex Court in Fairgrowth investment's case. Hence it can only be held that a recrimination petition cannot be entertained, if not filed within the period of 14 days as provided under S.99 of the Act. There is no infirmity in Ext.P-5 order passed by the Court below. Learned Counsel appearing for petitioner then submitted that it may be clarified that dismissal of the petition do not disentitle the petitioner from contesting the case Petitioner is entitled to defend the election petition on all available grounds as provided under the Act. Petition is dismissed.