Srikanta Das Adhikari Vs. Jareswar Chanda and ors. - Court Judgment

A. Lala, J.

1. This is an application under Article 227 of the Constitution of India. The petitioner challenged an order passed by the learned Civil Judge [Junior Division) at Dantan, Midnapore (now West). The order passed by the learned Court below dated 14th July, 2003 in J. Misc. Case No. 32 of 2003 is under challenge. The order was passed considering an application (herein petition) under Section 5 of the Limitation Act.

2. Originally a petition under Section 204 of the West Bengal Panchayat Act was filed by the petitioner being plaintiff therein challenging the result of the election on 21st June, 2003. The petitioner was ill from 12th May, 2003 to 20th June, 2003. The petitioner prayed for condonation of delay since the cause of delay was not intentional but was physical problem. According to the Court below, Section 5 of the Limitation Act provides that one can apply for condonation of delay having sufficient cause for not preferring an appeal or making application within the period. But the application under Section 204 of the Panchayat Act is not an application but a proceeding in the nature of suit. Section 29(2) of the Limitation Act provides that where any special or local law prescribes for any suit, appeal or application a period of limitation is different from the period prescribed by the schedule. The provisions of Section 3 shall apply as if such period prescribed by the schedule for the purpose of determining the period of limitation is prescribed for any suit, appeal or, application by any special or local law. The provisions contained in Sections 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The West Bengal Panchayat Act being a special law is hit by Section 29(2) of the Limitation Act as such Section 5 of the Limitation Act finds no application in the petition. Having rejecting the petition under Section 5 of the Limitation Act the plaint was also rejected under Order 7 Rule 11 of the Code of Civil Procedure.

3. The learned counsel appearing for the petitioner herein contended that as per Section 2(b) of the Limitation Act, 1963 'application' includes a petition. Section 81 of the Representation of People Act, 1951 speaks about the presentation of petitions. It has been highlighted by the learned counsel appearing for the petitioner that the election petition under the Act is the petition but not the suit.

4. In : AIR1968Cal69 (Bhakti Bh. Mondal v. Khagendra K. Bandopadhya and Ors.) it was held that the election petition is not a suit but only an application. Section 5 of the Limitation Act applies in case of the election petition. However, it has been held by the High Court that it is permissible to argue that for the election petitions to the High Court no period has been fixed by the Limitation Act, and these petitions could be ordinarily presented at any time. But when Section 81 of the Special Act says that the petition is to be presented within 45 days of the date of election, the period so prescribed is different from the period under the Limitation Act. From this point of view there is no difficulty in applying Section 29(2). However, Section 5 of the Limitation Act was applied therein in condoning the delay by taking into account erroneous advice of counsel as 'sufficient cause'. In : [2002]1SCR403 (Shaik Saidulu alias Saida v. Chukka Yesu Ratnam and Ors.) it was further held by the Supreme Court that according to the dictionarical meaning the word 'application' could be understood in a generic sense as a prayer made to an authority for some relief to set aside an order of another authority. Therefore, the word 'application' would include within its ambit an election petition wherein a voter or the candidate makes the prayer to the Court and seeks the redressal of his grievances regarding the conduct of the elections.

It was held by the Supreme Court that the provision of the Act applicable to the election under a particular Act cannot exclude the applicability of Section 5 of the Limitation Act, It was further held that the remedy provided under a statute cannot be defeated under the cloak of technicalities by adopting a hypertechnical approach. Free and fair elections are a guarantee of a democratic polity and for achieving such an objective various provisions are made applicable to the election laws, most important of which is that the remedy of challenging the elections on the grounds specified under the statute. In the absence of the applicability of Section 5 of the Limitation Act, the rights of the aggrieved person, intending to challenge an election, can be defeated in such judgment. I further find the reference of Hukumdev Narain Yadav v. Lalit Narain Mishra reported in : [1974]3SCR31 wherein it was held that the provisions of Section 10 of the General Clauses Act would apply to election petition filed under the Representation of the People Act, 1951 without specifically deciding the applicability of Section 4 of the Limitation Act to the election petitions. The Court held that the applicability of Section 5 of the Limitation Act to election petitions filed under the Representation of the People Act can be determined upon the terms of Section 29(2) of the Limitation Act. It was further observed therein that in Mangu Ram v. Municipal Corporation of Delhi reported in : 1976CriLJ179 it was held that for non-applicability of Section 5 of the Limitation Act the exclusion must be specific under the special statute.

5. No doubt that the West Bengal Panchayat Act, 1973 is a special statute to govern the elections of the Panchayat in the State of West Bengal. Section 204 of the Act says that--(1) if any dispute arises as to the validity of an election under this Act, any person entitled to vote at such election may, within thirty days after the date of the declaration of the result of such election, filed a petition, calling in question such election-(a) before the Munsif having jurisdiction where such election is in respect of a Gram Panchayat or a Panchayat Samiti, and

(b) before the District Judge of the District, where such election is in respect of a Zilla Parishad.

(2) When filing a petition under Sub-section (1), the petitioner shall deposit in Court, as security for the costs likely to be incurred, sum of--

(a) fifty rupees, where the petition is filed before the Munsif, and

(b) two hundred rupees, where the petition is filed before the District Judge.

(3) The District Judge may transfer any petition before him under Sub-section (1) to any Judicial Officer subordinate to him not below the rank of a Subordinate Judge.

(4) In dealing with a petition under Sub-section (1), the Munsif, the District Judge or the Judicial Officer to whom the petition is transferred under Sub-section (3) (hereinafter referred to as the Judge) may hold such enquiry as he deems necessary.

(5) The procedure to be followed to be followed by the Judge including all matters relating to filing of such petition shall be such as may be prescribed.

(6) The Judges shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents.

(7) The decision of the Judge shall be final and shall not be called in question in any Court.

(8) No Court shall grant an injunction--(i) to postpone the election of --

(a) a member of a Gram Panchayat, a Nyaya Panchayat, a Panchayat Samiti or a Zilla, Parishad, or

(b) a Pradhan, an Upa-Pradhan, a Pradhan Vicharak, a Sabhapati, a Sahakari Sabhapati, a Sabhadhipati, [a Sahakari Sabhadhipati or members and Karmadhyakshas of Sthayee Samitis;] or

(ii) to prohibit a person declared to have been elected under this Act, from taking part in the proceedings of the Gram Panchayat, Nyaya Panchayat, Panchayat Samiti, or Zilla Parishad, as the case may be, to which he has been elected; or

(iii) to prohibit the members formally elected or appointed to a Gram Panchayat, Nyaya Panchayat, Panchayat Samiti or Zilla Parishad, as the case may be, under this Act from entering upon their offices.

6. There is no description in the Act whether the election petition will be treated as 'application' or a 'suit'. At each and every place of Section 204 there is the word 'petition'. There is no indication in the definition clause as to whether the election dispute will be construed as 'election petition' or 'suit'. On the other hand, Section 2 Sub-section 28 speaks that 'suit' means a Civil Suit triable by a Nyaya Panchayat. Such Nyaya Panchayat is constituted under Section 58 of the Act as per the definition clause being Section 2(15) of the Act. Such dispute, from the plain reading of the section, does not constitute 'election petition'. Therefore, one Act cannot give two meanings of the Civil Suit. Hence, 'election' is application. As it is an application numbers are given by the Civil Suit as miscellaneous case. Therefore, structurally election petition is an application but the proceedings will be regulated following the principles of suit. Therefore, when the dispute herein is about initiation of the proceeding but not with the determination of the proceedings the same would be justifiably and from the plain reading be construed as an 'application'. Hence, in case of condonation of delay the principle as laid down for application will be applicable herein subject to the applicability of the Limitation Act as discussed hereunder. General principle is that the Limitation Act is applicable to Court. Section 204 Sub-section (6) says that the Judges shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oath, enforcing the attendance of witnesses and compelling the discovery and production of documents. Therefore, in hearing the election petition either the learned Munsif (now called as Civil Judge) or the District Judge will act as a Court. Therefore, it can safely be said that Limitation Act applies in toto in respect of conducting the business of the Court hearing the writ petitions.

7. That apart, Rule 74 of the West Bengal Panchayat (Election) Rules, 1974 provides how and in what way the election petition is to be filed in the Court. The petitioner will file the verified petition in the manner as prescribed in the Code of Civil Procedure, 1908, to the learned Munsif and/or learned District Judge and/or learned Judicial Officer called as 'Judge'. Rule 77 says the provision of the Indian Evidence Act, 1872 shall apply in all respects to the trial of an election petition. Therefore, I have no hesitation in my mind to hold that a Judge of the Civil Court, as it is, is entitled to entertain an election petition and proceed following the principles of suit to come to an appropriate conclusion in respect of the subject matter of dispute. In such circumstances, non-applicability of Limitation Act, 1963 does not arise at all.

8. The next question is in what manner the Limitation Act, 1963 will be applicable in the case of election petition. The answer is simple in this respect. Having availability of Section 29(2) of the Act the West Bengal Panchayat Act, 1973 can be called as special Act only for the purpose of non-applicability of the schedule of the Limitation Act. But that does not necessarily mean that Limitation Act, for the purpose of condonation of delay in case of application, will not be made applicable herein. Condonation of delay is a part of business of the Court as per the explanation of the sufficient cause. Having so, the Court is entitled to contain it subject to the applicability of Section 29(2) of the Act. In agreeing with the analysis of the Supreme Court I am of the view that unless the applicability of Limitation Act is expressly excluded by such special or local laws the same cannot be made inapplicable.

9. Therefore, disallowing the application of Section 5 of the Limitation Act learned Civil Judge committed an error.

10. Hence, such order stands set aside. Consequently order of rejection of plaint under Order 7 Rule 11 of the Code of Civil Procedure also stands set aside. Accordingly, the Civil revision case under Article 227 of the Constitution of India is allowed. The same is disposed of without imposition of any cost. The learned Judge of the Court below is entitled to proceed with the merit of the application under Section 5 of the Limitation Act.

Let an urgent xerox certified copy of this judgment, if applied for, be given to the learned advocates for the parties within two weeks from the date of putting the requisites.

Petition allowed