Mange Ram Vs. District Development and Panchayat Officer-cum-returning Officer and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - it has, therefore, been prayed that the application as well as the election petition deserves to be dismissed on this ground alone.ordersat pal, j.1. in this petition petitioner mange ram has prayed for setting aside the election of respondent no. 4 risal singh from 07 mullana assembly constituency, of haryana vidhan sabha held on 27-4-1996. along with the petition, the petitioner has filed application bearing cm no. 5-e of 1996 under section 5 of the indian limitation act read with section 151 c.p.c. for condoning the delay of two days in filing the election petition. in para 4 of the application, it has been stated that papers for filing the election petition were handed over by the applicant to his advocate sh. r.s. mamli and the last date for filing the election petition was 24-6-1996. it has further been stated that the counsel had called the petitioner on 23-6-1996 to put signatures and verify the facts but on 23-6-1996 petitioner had fallen sick and he was advised complete bed rest by the doctor and he could recover from his sickness only on 25-6-1996 and came to the counsel for putting the signatures. it was in these circumstances that there was delay of two days in filing the election petition.2. notice of this application was issued to the respondents. reply on behalf of respondent no. 4 has been filed. in the reply, inter alia, it has been stated that in terms of law laid down by the hon'ble supreme court, the limitation act is not applicable when the election petition is filed beyond the period of limitation. it has, therefore, been prayed that the application as well as the election petition deserves to be dismissed on this ground alone.3. mr. mamli, learned counsel appearing on behalf of the petitioner during the course of his arguments conceded that the section 5 of the limitation act has no application to the election petition. he, however, submitted that under section 10 of the general clauses act, the delay in filing the election petition could be condoned. he submitted that the last date for filing the election petition was 24-6-1996 but since the court was closed up to 30-6-1996 on account of summer vacations, the election petition could be filed on or before 1-7-1996. he, therefore, contended that in fact there was no delay in filing the petition. in support of his submissions, the learned counsel placed reliance on a judgment of the supreme court in simhadri satya narayana rao v. m. budda prasad, 1994 supp (1) scc 449.4. mr. mohunta, learned senior counselappearing on behalf of respondent no. 4, however,drew my attention to notification no. 313 genl./xvii. 3 dated 27-11-1995 and submitted that interms of this notification, though the high courtwas closed from i-6-1996 to30-6-19966n accountof long vacation but during this period the courtwas not closed for entertaining and hearing theelection petitions. he, therefore, contended thatdelay could not be condoned. he also relied on thejudgment of the supreme court in simhadri satyanarayana rao's case (supra).5. i have given my thoughtful consideration tothe submissions made by the learned counsel for the parties and have perused the record.6. as held by the hon'ble supreme court in hukumdev narain yadav v. lalit naratn mishra, air 1974 sc 480 : 1974 (2) scc 133; hari shankar tripathi v. shiv harsh, 1976 (1) scc 897, section 5 of the limitation act has no application to the election petition under the act. it was, however, held that section 10 of the general clauses act would in terms be applicable to the election petitions under the act. it has, therefore, not been disputed before me that section 5 of the limitation act has no application to the election petition. it is also not disputed that benefit of section 10 of the general clauses act can be availed to save limitation under the act. but the question to be examined is as to whether high court registry was open during summer vacation in the year 1996 from 1-6-1996 to 30-6-1996. in this connection reference may be made to high court notification no. 313 dated 27-11-1995 which reads as under :--'it is hereby notified for general information that the court of punjab and haryana at chandigarh will be closed for civil business except for hearing election petitions or any other matter arising out of the representation of the people act, 1951, urgent civil appeals/petitions etc. including petitions under article 226 of the constitution of india, on account of long vacations in the year 1996 from june 1, to june 30, 1996 (both days inclusive). the court will resume sitting on july 1, 1996 (monday). during this period except on sundays and holidays appeals/petitions etc. will be received at the court at chandigarh from such persons as may choose to present them.' from this notification it is clear that the court was closed during the said period for civil business except for hearing election petition or any other matter arising out of the representation of thepeople act, 1951 and certain other matters mentioned in the notification. in terms of this notification the high court registry was open for filing of the election petitions during the period 1 -6-1996 to 30-6-1996. as held by the hon'ble supreme court in the case of simhadri satya narayana rao (supra), it is the vacation notification which has to be looked up to find out whether the registry is open for presenting the election petitions. since in terms of the notification, the registry was open for filing the election-petitions, i do not find any substance in the contention of the learned counsel for the petitioner that the election petition could be filed on or before 1-7-1996. in fact that the petitioner in para-4 of the application himself has admitted that the date for filing the election petition was 24-6-1996 and since he fell ill, he could not come to the counsel for briefing before the last date. from these facts, it is evident that the election petition in the present case has been filed beyond the period of limitation. as stated hereinabove, the delay in filing the election petition cannot be condoned, if the registry is open for presenting the election petition in view of the law laid down by the hon'ble supreme court in the case of simhadri satya narayana rao (supra).7. for the reasons recorded hereinabove, i do not find any merit in this application for condonation of delay and accordingly the application is dismissed.8. since the application for condonation of delay in filing the election petition has been dismissed, the election petition also stands dismissed.9. with this order c.m. 5-e of 1996 and election petition no. 23 of 1996 stands disposed of.

Judgment:
ORDER

Sat Pal, J.

1. In this petition petitioner Mange Ram has prayed for setting aside the election of respondent No. 4 Risal Singh from 07 Mullana Assembly Constituency, of Haryana Vidhan Sabha held on 27-4-1996. Along with the petition, the petitioner has filed application bearing CM No. 5-E of 1996 under Section 5 of the Indian Limitation Act read with Section 151 C.P.C. for condoning the delay of two days in filing the election petition. In para 4 of the application, it has been stated that papers for filing the election petition were handed over by the applicant to his Advocate Sh. R.S. Mamli and the last date for filing the election petition was 24-6-1996. It has further been stated that the counsel had called the petitioner on 23-6-1996 to put signatures and verify the facts but on 23-6-1996 petitioner had fallen sick and he was advised complete bed rest by the Doctor and he could recover from his sickness only on 25-6-1996 and came to the counsel for putting the signatures. It was in these circumstances that there was delay of two days in filing the election petition.

2. Notice of this application was issued to the respondents. Reply on behalf of respondent No. 4 has been filed. In the reply, inter alia, it has been stated that in terms of law laid down by the Hon'ble Supreme Court, the Limitation Act is not applicable when the election petition is filed beyond the period of limitation. It has, therefore, been prayed that the application as well as the election petition deserves to be dismissed on this ground alone.

3. Mr. Mamli, learned counsel appearing on behalf of the petitioner during the course of his arguments conceded that the Section 5 of the Limitation Act has no application to the election petition. He, however, submitted that under Section 10 of the General Clauses Act, the delay in filing the election petition could be condoned. He submitted that the last date for filing the election petition was 24-6-1996 but since the Court was closed up to 30-6-1996 on account of summer vacations, the election petition could be filed on or before 1-7-1996. He, therefore, contended that in fact there was no delay in filing the petition. In support of his submissions, the learned counsel placed reliance on a judgment of the Supreme Court in Simhadri Satya Narayana Rao v. M. Budda Prasad, 1994 Supp (1) SCC 449.

4. Mr. Mohunta, learned senior counselappearing on behalf of respondent No. 4, however,drew my attention to notification No. 313 Genl./XVII. 3 dated 27-11-1995 and submitted that interms of this notification, though the High Courtwas closed from I-6-1996 to30-6-19966n accountof long vacation but during this period the Courtwas not closed for entertaining and hearing theelection petitions. He, therefore, contended thatdelay could not be condoned. He also relied on thejudgment of the Supreme Court in Simhadri SatyaNarayana Rao's case (supra).

5. I have given my thoughtful consideration tothe submissions made by the learned counsel for the parties and have perused the record.

6. As held by the Hon'ble Supreme Court in Hukumdev Narain Yadav v. Lalit Naratn Mishra, AIR 1974 SC 480 : 1974 (2) SCC 133; Hari Shankar Tripathi v. Shiv Harsh, 1976 (1) SCC 897, Section 5 of the Limitation Act has no application to the election petition under the Act. It was, however, held that Section 10 of the General Clauses Act would in terms be applicable to the election petitions under the Act. It has, therefore, not been disputed before me that Section 5 of the Limitation Act has no application to the election petition. It is also not disputed that benefit of Section 10 of the General Clauses Act can be availed to save limitation under the Act. But the question to be examined is as to whether High Court registry was open during summer vacation in the year 1996 from 1-6-1996 to 30-6-1996. In this connection reference may be made to High Court notification No. 313 dated 27-11-1995 which reads as under :--

'It is hereby notified for general information that the Court of Punjab and Haryana at Chandigarh will be closed for Civil Business except for hearing Election Petitions or any other matter arising out of the Representation of the People Act, 1951, urgent Civil Appeals/Petitions etc. including petitions under Article 226 of the Constitution of India, on account of long vacations in the year 1996 from June 1, to June 30, 1996 (both days inclusive). The Court will resume sitting on July 1, 1996 (Monday).

During this period except on Sundays and Holidays Appeals/Petitions etc. will be received at the Court at Chandigarh from such persons as may choose to present them.'

From this notification it is clear that the Court was closed during the said period for civil business except for hearing election petition or any other matter arising out of the Representation of thePeople Act, 1951 and certain other matters mentioned in the notification. In terms of this notification the High Court registry was open for filing of the election petitions during the period 1 -6-1996 to 30-6-1996. As held by the Hon'ble Supreme Court in the case of Simhadri Satya Narayana Rao (supra), it is the vacation notification which has to be looked up to find out whether the registry is open for presenting the election petitions. Since in terms of the notification, the registry was open for filing the election-petitions, I do not find any substance in the contention of the learned counsel for the petitioner that the election petition could be filed on or before 1-7-1996. In fact that the petitioner in para-4 of the application himself has admitted that the date for filing the election petition was 24-6-1996 and since he fell ill, he could not come to the counsel for briefing before the last date. From these facts, it is evident that the election petition in the present case has been filed beyond the period of limitation. As stated hereinabove, the delay in filing the election petition cannot be condoned, if the registry is open for presenting the election petition in view of the law laid down by the Hon'ble Supreme Court in the case of Simhadri Satya Narayana Rao (supra).

7. For the reasons recorded hereinabove, I do not find any merit in this application for condonation of delay and accordingly the application is dismissed.

8. Since the application for condonation of delay in filing the election petition has been dismissed, the election petition also stands dismissed.

9. With this order C.M. 5-E of 1996 and Election Petition No. 23 of 1996 stands disposed of.