Ashif Khan Vs. Prasanta Kumar Das and ors.

Ashif Khan vs Prasanta Kumar Das and ors.

Disposition Petition dismissed Court Orissa Decided Feb 24, 2005

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https://sooperkanoon.com/case/525916

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Citation: sooperkanoon.com/525916
Court: Orissa High Court
Judge: Sujit Barman Roy, C.J. and ;M.M. Das, J.
Decided On: Feb 24, 2005
Case Number: W.P.(C) No. 38 of 2005
Subject: Election;Limitation
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Election;Limitation
Outcome / disposition: Petition dismissed
Acts & sections: Orissa Municipal Act - Sections 19 and 399; Limitation Act, 1908 - Sections 5; Hyderabad Municipal Act - Sections 671

Parties & Advocates

Appellant / Petitioner

Ashif Khan

Advocate S.K. Rath, Adv.

Respondent

Prasanta Kumar Das and ors.

Advocate R.K. Parida, Adv.

Legal References

Acts: Orissa Municipal Act - Sections 19 and 399; Limitation Act, 1908 - Sections 5; Hyderabad Municipal Act - Sections 671
Cases Referred: Saida v. Chukka Yesy Ratnam and Ors.
Reported In: 99(2005)CLT534

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - ' 4. a plain reading of the above section clearly shows that under the said section, it is specifically provided that section 5 of the limitation act would apply to..........court, learned counsel for the petitioner submits that section 5 of the limitation act would apply to election petition as contemplated under section 19 of the act. learned counsel for the petitioner further drew our attention to section 339 of the act. the said section reads as follows :'339. limitation of time for appeal: save as otherwise expressly provided or may be prescribed, every appeal under this act shall, subject to the provisions of section 5 of the india limitation act, ix of 1908, be presented ;(a) where the appeal is against an order granting a licence or permission within thirty days after the date of the publication of the order on the notice board of the municipal council; and(b) in other cases, within thirty days after the date of the receipt of the order or proceeding against which the appeal is made.'4. a plain reading of the above section clearly shows that under the said section, it is specifically provided that section 5 of the limitation act would apply to appeals where such appeal is filed against an order granting a licence or permission or appeals in other cases which are required to be filed within the period prescribed under sub-section (a) and (b) quoted above.5. in the decision of the supreme court in the case of sheik saidula (supra), referred to by the learned counsel for the petitioner, we find that the said judgment was given in the context of section 671 of the hyderabad municipal act. it is clear from the said decision that section 671 of the hyderabad municipal act is not a provision which is in pari materia with section 339 of the orissa municipal act. it also appears from the case that section 671 of the said act clearly provides that section 5 of the limitation act would be applicable to an appeal as well as an application under the hyderabad municipal act. in that view of the matter, the supreme court held that an election petition being an application, section 5 of the limitation act would be applicable to an election.....

Full Judgment

ORDER

1. Heard Learned Counsel for the petitioner.

2. In this Writ Petition, the petitioner seeks to challenge the

JUDGMENT / ORDER

dated 2.11.2004 passed by the Learned District Judge-cum-Tribunal, Dhenkanal, Angul, in Election Petition No. 247 of 2003. The petitioner having lost the election to the seat of Councilor of Ward No. 1 of Talcher Municipality against Opp. Party No. 1, filed election petition before the Learned District Judge-cum-Tribunal, Dhenkanal, Angul, Section 19 of the Orissa Municipal Act (hereinafter referred to as 'the Act') provides that such election petition has to be presented/filed before the Tribunal within 15 days after the day on which the result of the election is announced, Admittedly, the result of the election was declared on 20.9.2003, but the election petition was filed on 27.10.2003. Therefore, the election petition having been filed much beyond the period of limitation of 15 days prescribed under Section 19 of the Act, the Learned Tribunal dismissed the election petition being barred by limitation. While filing such election petition for setting aside the election, an application under Section 5 of the Limitation Act was filed, to condone the delay, before the Learned Tribunal. The Learned Tribunal held that Section 5 of the Limitation Act does not apply to the election proceeding as contemplated under Section 19 of the Act and on that score, rejected the petition.

3. Learned Counsel for the petitioner referred to a decision of the Apex Court in Sheik Saidula @ Saida v. Chukka Yesy Ratnam and Ors., AIR 2002 SC 749. Referring to the said decision of the Apex Court, Learned Counsel for the petitioner submits that Section 5 of the Limitation Act would apply to election petition as contemplated under Section 19 of the Act. Learned Counsel for the petitioner further drew our attention to Section 339 of the Act. The said Section reads as follows :

'339. Limitation of time for appeal: Save as otherwise expressly provided or may be prescribed, every appeal under this Act shall, subject to the provisions of Section 5 of the India Limitation Act, IX of 1908, be presented ;

(a) where the appeal is against an order granting a licence or permission within thirty days after the date of the publication of the order on the notice board of the Municipal Council; and

(b) in other cases, within thirty days after the date of the receipt of the order or proceeding against which the appeal is made.'

4. A plain reading of the above Section clearly shows that under the said section, it is specifically provided that Section 5 of the Limitation Act would apply to appeals where such appeal is filed against an order granting a licence or permission or appeals in other cases which are required to be filed within the period prescribed under Sub-section (a) and (b) quoted above.

5. In the decision of the Supreme Court in the case of Sheik Saidula (supra), referred to by the Learned Counsel for the petitioner, we find that the said judgment was given in the context of Section 671 of the Hyderabad Municipal Act. It is clear from the said decision that Section 671 of the Hyderabad Municipal Act is not a provision which is in Pari materia with Section 339 of the Orissa Municipal Act. It also appears from the case that Section 671 of the said Act clearly provides that Section 5 of the Limitation Act would be applicable to an appeal as well as an application under the Hyderabad Municipal Act. In that view of the matter, the Supreme Court held that an election petition being an application, Section 5 of the Limitation Act would be applicable to an election petition filed under the Hyderabad Municipal Act as provided under Section 671 of the Act. But under Section 339 of the Orissa Municipal Act, it is clearly mentioned that Section 5 of the Limitation Act would apply to only appeals filed under the Act and nowhere it provides that it would also apply to applications. Therefore, we are unable to accept the contention raised by the Learned Counsel for the petitioner that by applying the above decision of the Supreme Court, the Learned Tribunal below should have exercised his power under Section 5 of the Limitation Act to condone the delay in filing of the election dispute before him. We, therefore, find no infirmity in the impugned order passed by the Learned District Judge-cum-Tribunal, in which the election petition filed by the petitioner was dismissed on the ground of limitation.

6. The Writ Petition is, therefore, dismissed at the threshold.

Same Court & Year Orissa · 2005 Same Parties Ashif Khan vs Prasanta Kumar Das and ors. Same Subject Election;Limitation Same Judge Sujit Barman Roy, C.J. and ;M.M. Das, J. Acts & Sections Orissa Municipal Act - Sections 19 and 399; Limitation Act, 1...

Election;Limitation