Chukka Yesuratnam Vs. Shaik Saidulu and Others - Court Judgment

Excerpt:
limitation - delayed election petition - sections 71 and 671 of hyderabad municipal corporations act, 1955 - delayed election petition filed by unsuccessful candidate along with condonation - petition against election must be filed within time specified in section 71 - delay in filing election petition cannot be condoned as section 671 applicable to appeals or applications only - held, petition not maintainable. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - in respect of any elections, the unsuccessful candidate is entitled to challenge the election under section 71 of the act by filing election petition. the legislature had provided a substantive right to the unsuccessful candidate to challenge the election within a period of two months.orderg. bikshapathy, j 1. this civil revision petition is filed under article, 227 of the constitution of india of india assailing the order dated 10-11-2000 passed by the election tribunal, hyderabad in ia no.6 of 2000 in epno. 7 of 2000.2. the 1st respondent filed election petition in ep no.7 of 2000 questioning the election of the petitioner herein - mayor of the municipal corporation, guntur. he also filed interlocutory application in ia no.6 of 2000 under section 5 of the limitation act, seeking condonation of delay of 42 days in filing the election petition. the said application was heard by the election tribunal and by order dated 10-11-2000 thedelay was condoned. the validity of the said order is challenged in this revision petition.3. learned counsel for the petitioner submits that there is no power vested with the election tribunal to condone the delay in filing the election petition and that section 5 of the limitation act is not applicable to the election petition, which is a original proceeding; therefore, the order of the election tribunal is illegal and liable to be set aside. he takes recourse to section 71 of the hyderabad municipal corporation act, 1955.4. the question that arises for consideration is whether section 5 of the limitation act can be invoked in respect of election petition. for proper appreciation of case, it is necessary to refer to section 71, which reads thus:'election petition :--(1) no election held under this act shall be called in question except by an election petition which shall be presented in such manner as may be prescribed. (2) an election petition calling in question any election may be presented on one or more of the grounds specified in clauses (i) and (ii) of sections 79 and 80 to the election tribunal by any candidate at such election or any voter, within two months from, but not earlier than the date of the election of the returned candidate or if there are more than one returned candidate at the election and the dates of the election are different is the latter of those two dates.' chapter xx of the act, relates to appeals and connected proceedings. section 671 prescribes limitation for appeals or application, where no time is fixed under the act. it also makes applicable sections 5, 12 and 13 of the limitation act for computingthe period of limitation. section 671 reads thus:'limitation :--(1) in computing the period of limitation fixed for an appeal or application referred to in this act, the provisions of sections 5,12 and 13 of the indian limitation act, 1908 shall so far as may be, apply. (2) when no time is fixed by this act for the presentation of an appeal or application, such appeal or application shall be presented within thirty days from the date of the order in respect of or against which the appeal, or application is presented.' 5. it is an admitted fact that the election petition was filed with delay, for which application was made to condone the delay. the learned counsel for the respondent would contend that the expression 'application' referred to in section 671 has to be interpreted so as to include the election petition and therefore section 5 of the limitation act can be invoked in case of any delay.6. sections 71 to 87 contain the procedure of presentation of election petitions and their disposal. in respect of any elections, the unsuccessful candidate is entitled to challenge the election under section 71 of the act by filing election petition. a definite period has been prescribed for filing such petitions. the legislature had provided a substantive right to the unsuccessful candidate to challenge the election within a period of two months. section 71 did not cave out any exceptions for condonation of delays. therefore, when a specific limitation has been fixed under section 71 and in the absence of application of section 5 by reference, no petition can be entertained beyond the limitation fixed. section 671 permits the application of section 5 of limitation act but that has to be confined to appeals and applications underthe act. the election petition is neither an appeal nor application and it is an original proceeding. therefore, we are of the, considered opinion that section 671 is not applicable to election petition filed under section 71 of the act and consequently the order of the tribunal is not maintainable in law.7. therefore, we set aside the impugned order and hold that the election petition is barred by limitation. accordingly, the civil revision petition is allowed. no costs.

Judgment:
ORDER

G. Bikshapathy, J

1. This civil revision petition is filed under Article, 227 of the Constitution of India of India assailing the Order dated 10-11-2000 passed by the Election Tribunal, Hyderabad in IA No.6 of 2000 in EPNo. 7 of 2000.

2. The 1st respondent filed election petition in EP No.7 of 2000 questioning the election of the petitioner herein - Mayor of the Municipal Corporation, Guntur. He also filed Interlocutory Application in IA No.6 of 2000 under Section 5 of the Limitation Act, seeking condonation of delay of 42 days in filing the Election Petition. The said application was heard by the Election Tribunal and by order dated 10-11-2000 thedelay was condoned. The validity of the said order is challenged in this revision petition.

3. Learned Counsel for the petitioner submits that there is no power vested with the Election Tribunal to condone the delay in filing the Election Petition and that Section 5 of the Limitation Act is not applicable to the Election Petition, which is a original proceeding; therefore, the order of the Election Tribunal is illegal and liable to be set aside. He takes recourse to Section 71 of the Hyderabad Municipal Corporation Act, 1955.

4. The question that arises for consideration is whether Section 5 of the Limitation Act can be invoked in respect of election petition. For proper appreciation of case, it is necessary to refer to Section 71, which reads thus:

'Election Petition :--(1) No election held under this Act shall be called in question except by an election petition which shall be presented in such manner as may be prescribed.

(2) An Election Petition Calling in question any election may be presented on one or more of the grounds specified in clauses (i) and (ii) of Sections 79 and 80 to the Election Tribunal by any candidate at such election or any voter, within two months from, but not earlier than the date of the election of the returned candidate or if there are more than one returned candidate at the election and the dates of the election are different is the latter of those two dates.'

Chapter XX of the Act, relates to appeals and connected proceedings. Section 671 prescribes limitation for appeals or application, where no time is fixed under the Act. It also makes applicable Sections 5, 12 and 13 of the Limitation Act for computingthe period of limitation. Section 671 reads thus:

'Limitation :--(1) In computing the period of limitation fixed for an appeal or application referred to in this Act, the provisions of Sections 5,12 and 13 of the Indian Limitation Act, 1908 shall so far as may be, apply.

(2) When no time is fixed by this Act for the presentation of an appeal or application, such appeal or application shall be presented within thirty days from the date of the order in respect of or against which the appeal, or application is presented.'

5. It is an admitted fact that the election petition was filed with delay, for which application was made to condone the delay. The learned Counsel for the respondent would contend that the expression 'application' referred to in Section 671 has to be interpreted so as to include the election petition and therefore Section 5 of the Limitation Act can be invoked in case of any delay.

6. Sections 71 to 87 contain the procedure of presentation of election petitions and their disposal. In respect of any elections, the unsuccessful candidate is entitled to challenge the election under Section 71 of the Act by filing election petition. A definite period has been prescribed for filing such petitions. The Legislature had provided a substantive right to the unsuccessful candidate to challenge the election within a period of two months. Section 71 did not cave out any exceptions for condonation of delays. Therefore, when a specific limitation has been fixed under Section 71 and in the absence of application of Section 5 by reference, no petition can be entertained beyond the limitation fixed. Section 671 permits the application of Section 5 of Limitation Act but that has to be confined to appeals and applications underthe Act. The Election Petition is neither an appeal nor application and it is an original proceeding. Therefore, we are of the, considered opinion that Section 671 is not applicable to election petition filed under Section 71 of the Act and consequently the order of the Tribunal is not maintainable in law.

7. Therefore, we set aside the impugned order and hold that the Election Petition is barred by limitation. Accordingly, the civil revision petition is allowed. No costs.