Sushanta Kumar Chand and ors. Vs. the Speaker, Orissa Legislative Assembly and anr. - Court Judgment

Excerpt:
- 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 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]. - murty, however, raised an interesting question and wanted us to resolve the dispute. ' there seems to be no doubt that in united kingdom by 1950 when the constitution of india came into force the position was well settled that the house of commons could pass an order for detaining a contemner for a fixed term, but the unexpired portion of the sentence was to lapse as and when the session during which the detention order was made ended.r.n. misra, j.1. the 8 petitioners styling themselves as members of the samajwadi yubak sabha (utkal) applied under article 226 of the constitution of india for a writ of habeas corpus when they were detained in custody in the bhubaneswar sub-jail under a warrant issued by the speaker of the orissa legislative assembly.2. the orissa legislative assembly was in session when the petitioners got into the legislative assembly hall and submitted to the speaker and the members of the assembly a printed letter alleging several acts of misconduct, maladministration, corruption and high-handed acts of excesses through utilisation of police force for suppressing civil liberties. the petitioners shouted slogans and disturbed the proceedings. they were taken into custody and ultimately they were sentenced to 7 days' simple imprisonment. under a warrant issued by the speaker, they were lodged to custody with opposite party no. 2. the warrant was to the following effect:'whereas the orissa legislative assembly has decided at its meeting held on the 8th october, 1969, that the follow-ing named persons be sentenced to simple imprisonment till the 15th october, 1969 for committing the offence of the contempt of the orissa legislative assembly, it is accordingly ordered that the persons named below be detained in the bhubaneswar jail till the 15th october. 1969. sri susant kumar chand, sri brajakishore tripathi, sri purna chandra sahu, sri susant kumar mohanty, sri hrushikesh chain. sri girija prasad misra. sri naren sinha. sri subodh kumar mohanty * * * * * the writ application was presented in this court on 10-10-1969 and the petitioners were asked to be released on bail. the application was admitted for hearing, but prayer for bail was rejected.3. the sentence of 7 days' imprisonment has been suffered by the petitioners and they have been released.the petition for habeas corpus has thus become infructuous. normally such apetition should have been dismissed as not maintainable on that score. mr. murty, however, raised an interesting question and wanted us to resolve the dispute. according to him when the application was admitted for hearing but bail was refused, it was known that long before hearing of the petition, the petitioners would be out of jail having served sentence. accordingly, mr. murty contends that the writ petition was pursued until now only to obtain a judgment from this court on the point raised by him.4. mr. murty does not dispute the power of the orissa legislative assembly to take cognizance of its contempt and even to award sentence of imprisonment, as has been done in this case. on the authority of the decision by their lordships of the supreme court in the case of in re under article 143 of the constitution of india, air 1965 sc 745. mr. murty also agrees that this court has no jurisdiction to question the correctness of the sentence of imprisonment and the warrant in question. he, however contends that the petitioners were entitled to be released when the orissa legislative assembly was prorogued on 13-10-1969. there is no dispute that the orissa legislative assembly was prorogued as contemplated under article 174(2)(a) of the constitution on 13th of october. 1969. according to mr. murty the detention of the petitioners should have come to an end with the adjournment of the house on 13-10-1969 and they should not have been detained until 15-10-1969. in support of his contention he contends that under article 194(3) of the constitution, the privileges of a houseof legislature of a state are those of the house of commons of the parliament of the united kingdom as at the commencement of the constitution of india. there is no dispute that the powers and privileges of the house of the orissa legislative assembly has not vet been defined by the legislators by law. it is mr. murty's contention that in the united kingdom it is long settled that even if there has been an order of detention for contempt of the house of commons for a fixed term, with the adjournment of a session of parliament, the unexpired term of the sentence's waived and the contemner gets acquitted. in terms of article 194(3) of the constitution of india that must be taken to be the law applicable in india and the petitioners were, therefore, entitled to be set at liberty on the 13th of october, 1969.5. dealing with this aspect of the matter. erskine may in his famous book 'parliamentary practice' states-'persons committed by the commons, if not sooner discharged by the house, are immediately released from their confinement on a prorogation, whether they have paid the fees or not. if they were held longer in custody, they would be discharged by the courts upon a writ of habeas corpus.'(18th edn. page 1241 in support of this proposition reliance has been placed on the observation of lord denman, c. j., in stockdale v. hansrad. in 'ridges constitutional law, 8th edn.' page 71, it has been stated-'the house of commons (unlike the house of lords) cannot commit for a fixed term, but only until prorogation or dissolution, when the prisoner would be entitled to his discharge upon writ of habeas corpus.'wade and phillips in their 'constitutional law. 7th edn.' at page 160 have also stated to the same effect according to the learned authors-'.........such commitment can be fora fixed term, but a prisoner is automatically entitled to release when the house is prorogued.........'chalmers and hood phillips on 'constitutional law' have also stated to the same effect drawing the distinction between the detention by house of lords and the house of commons. the learned authors have said-'there is this difference that the commons can only commit till the close of the session whereas the lords can commit for a definite period.'(6th edn. page 1091 6. the position has been authoritatively stated in 'halsbury's laws of england, vol. 28' (lord simonds p. 464).'the lords claim to have power to commit an offender for a specified periodeven beyond the period of a session. this course was also formerly pursued by the commons but was later abandoned; and it would now seem that they no longer have power to keep offenders in prison beyond the period of session.....'in the famous earl of shaftsbury's case, 86 english reports page 792. the court of king's bench has also ruled to that effect. dealing with a petition of 'habeas corpus on behalf of the earl of shaftsbury, their lordships at page 796 of the reporter discussed the position in law and ultimately concluded by saving:--'.........and so concluded, that theorder is determined with the session, and that the earl of shaftsbury ought to be discharged.'there seems to be no doubt that in united kingdom by 1950 when the constitution of india came into force the position was well settled that the house of commons could pass an order for detaining a contemner for a fixed term, but the unexpired portion of the sentence was to lapse as and when the session during which the detention order was made ended. that being the law applicable to india in view of the provisions under article 194(3) of the constitution, the petitioners were entitled to be released on 13-10-1969 when admittedly the autumn session of the orissa legislative assembly came to an end and was prorogued.7. as we have already said no relief in this petition is available because the petitioners have already suffered the imprisonment and are now out of custody. we would accordingly dismiss the petition.panda, j.8. i agree.