Dhatu Ram Das vs State of Assam and Others

G. Mehrotra, J.—This rule arises out of an application under Article 226 of the Constitution praying for a writ or certiorari quashing the order passed by the (sic)ndar Munsiff of Gauhati dated the 16th January 1961 and the order passed by the District Judge, Gauhati on the 11th April 1961 affirming the order of the Munsiff.

The proceedings which led up to the present petition arose out of an election for the presidentship of the Abhoypur Gaon Panchayat The election was held on the 13th June 1960. The Petitioner Dhatu Ram Das and opposite party No. 2 Lalit Chandra Das were the two rival candidates for the presidentship of the aforesaid Gaon Panchayat. The Petitioner was duly elected as the President and the results were duly declared under Rules 21 and 22 of the Assam Panchayats (Constitution) Rules 1960 (hereinafter called the Rules''). The opposite party No. 2 filed on the 20th July 1960 a petition under Rule 25 of the rules challenging the validity of the election of the Petitioner before the Munsiff. Rule 25 of the Rules provides that a petition is to be made before the Munsiff challenging the validity of the election within a period of thirty days from the date on which the election was held. The election was held on the 13th June 1960 as I have already indicated above. The petition therefore on the plain reading of Rule 25 had to be filed within thirty days from the 13th June 1960. The petition was thus admittedly filed beyond the period prescribed under Rule 25.

The opposite party No. 2 however claimed the exclusion of the period taken by him for obtaining the copy of the report submitted by the presiding officer to the Magistrate. The Munsiff accepted the contention of the opposite party No. 2 that by virtue of Section 29(2) of the Limitation Act, Section 12(2) of the Limitation Act was attracted to the application for setting aside an election and as the framers of the Rules have described such a petition as an appeal, the period taken in obtaining the copy of the report submitted to the Magistrate is to be excluded. This decision was affirmed by the District Judge in revision filed under Rule 29 of the Rules. It is the correctness of these two decisions which has been challenged by means of the present petition.

The contention raised by the Petitioner is that even though Section 12 of the Limitation Act may be made applicable by virtue of Section 29(2) of the Limitation Act to a proceeding challenging the validity of the election under Rule 25, the proceeding cannot be said to be in the nature of an appeal so as to attract the provisions of Section 12(2) of the Limitation Act. There is no difficulty in accepting the contention of the opposite party that by virtue of Section 29(2) of the Limitation Act the provisions of Section 12 will apply to proceedings arising but of an application under Rule 25 for setting aside an election. Section 29(2) of the Limitation Act provides as follows:

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefore in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:

(a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.

The special law, namely the Assam Panchayat Act, 1958 provides for a period of limitation different from the period prescribed under the first schedule of the Limitation Act. The provisions of Section 4 and Section 9 to 18 of the Limitation Act therefore, will apply to proceedings arising out of an application for setting aside an election. There is nothing expressly laid down in the special Act which excludes the application of these sections. The question however, still remains whether the time required for obtaining the copy of the report submitted by the presiding officer to the Magistrate can be excluded by virtue of Section 12(2) of the Limitation Act. Section 12(2) of the Limitation Act reads as follows:

(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded

Section 12(2) applies to the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment. It cannot be disputed that the application for setting aside the election is neither an application for leave to appeal, nor an application for the review of judgment. The only question is whether it can come within the meaning of the word ''appeal'' in Section 12(2). It'' is also necessary that the appeal should have been filed against an order appealed from and the time requisite in obtaining a copy of the aforesaid order is to be excluded.

The contention of the opposite party is that the word ''appeal'' in Section 12(2) of the Limitation Act has been liberally interpreted in various decisions of various High Courts. The word ''appeal'' should not be given a restricted meaning so as to confine it to the power exercised by the courts under the provisions of the CPC when hearing an appeal against the decree of the subordinate courts. The word ''appeal'' should be given a wider connotation and if such an interpretation is given to the word ''appeal'', the proceeding initiated on an application under Rule 25 will be covered by the word ''appeal''. We do not think that there is any substance in this contention. It is true that the word ''appeal'' need not be given a restricted meaning in Section 12(2). It will have to be seen having regard to the relief which the authority grants and having regard to the procedure which it follows in determining the rights of the parties, whether it can be said that the authority is exercising appellate power or is examining the order passed by a subordinate court in the exercise of its appellate power in order to attract the provisions of Section 12(2) of the Limitation Act.

Rule 25 of the Rules reads as follows:

25(1) The validity of any election held under these Rules may be questioned only by a petition in writing to the Munsiff, having jurisdiction over the area by an unsuccessful candidate at such election, or jointly by not less than twenty voters or one third of the electorate whichever is less, at any time within thirty days after the day on which the election was held. Such petition shall be accompanied by a deposit fifty rupees, which shall be subject to forfeiture if it is held by the Court that the petition has been made without reasonable cause or that it is frivolous or vexatious.

Provided that the validity of such election shall not be questioned in any such petition:

(a) on the ground that the name of any person qualified to vote has been omitted from the electoral roll; or

(b) on the ground that the name of any person not qualified to vote has been inserted in the electoral roll.

(2) A Petitioner under Sub-rule (1) shall join as Respondents to his petition:

Where the Petitioner, in addition to claiming a declaration that election of all or any of the returned candidates is void, claims a further declaration that be himself or any other candidate has been duly elected, all the contesting candidates other than the Petitioner, and where no such further declaration is claimed, all the returned candidates.

(3) An appeal petition under this rule, shall be based either on any one or all of the following grounds that there has been omission, mistake or irregularity in the proceedings under these Rules or the Act.

(4)(a) Such appeal petition shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleading.

(b) Any schedule of Annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition.

The heading of the rule is -- "Petition of appeal, Parties to the petition and ground of appeal". Sub-rule (3) of Rule 25 also uses the words ''An appeal petition under this rule shall be based either on any one or all of the following grounds''. Rule 23 also provides that

The Presiding Officer''s declaration as to the Presidentship, Vice-Presidentship or Membership of the Gaon or Anchalik Panchayat concerned shall be final subject to such right of appeal as are allowed by the Act or Rules.

By the opening words of Sub-rule (1) of Rule 25 it is laid down that the validity of any election held under these rules may be questioned only by a petition in writing to the Munsiff, having jurisdiction over the area by an unsuccessful candidate. The sub-rule clearly lays down that the election is to be challenged by means of a petition. It is true that the heading of Rule 25(1) uses the words -- "Petition of appeal, Parties to the petition and ground of appeal". But the nature of the proceedings before the Munsiff is to be determined on the language of the section and not the heading. Having regard to the scope of inquiry under Rule 25 and the order which the munsiff has to pass when dealing with a petition under Rule 25, it cannot be said that the Munsiff exercises an appellate power in disposing of the matter under this rule, howsoever extended meaning may be given to the word ''appeal'' u/s 12(2) of the Limitation Act. Rule 21(4) only provides that as soon as practicable after completion of election under Sub-rule (3) the Presiding Officer shall subject to the provisions of Rule 22 declare the names of the candidates who have been duly elected. Rule 21(5) provides that

After declaration of the result under Sub-rule (4), the Presiding Officer shall prepare a brief report on the conduct of the elections giving the names of the candidates duly elected as the President and the Vice-President and members of the Gaon Panchayat and as the member or members to the Anchalik Panchayat and deliver or cause to deliver the same to the Magistrate.

The report cannot therefore, be regarded as an order passed by the presiding officer. Nor can the declaration made by him be regarded as an order and therefore it cannot be said that when the Munsiff is hearing the petition challenging the election, he is examining in appeal any order passed by the presiding officer.

Our attention is drawn to Rule 26(1) which lays down that

Where a petition has been filed under Rule 25 the Munsiff may, after holding such inquiry as he deems necessary after giving adequate notice to the parties concerned to substantiate their cases with precise and relevant evidence which shall be open to the public, pass an order confirming or amending the declared result of the election or setting the election aside which shall be communicated by him forthwith to the Magistrate.

It is regarded that the Munsiff in dealing with the application is empowered to order the amendment of the declaration given by the presiding officer and thus the declaration itself is an order which is under appeal before the Munsiff. We do not think that any such interpretation can be put on Rule 26(1). Under Rule 25 it is the entire process of election which is challenged before the Munsiff. The Munsiff examines the validity of the entire election and he has got full power to set aside the election and not only to amend the declaration. Moreover the amendment can be made in any declaration of the result made by the presiding officer in this view of the matter we think that the proceedings before the Munsiff are in the nature of an original proceeding challenging the validity of the election and it cannot be said that when the proceedings are started before the Munsiff, he is hearing an appeal.

On the point whether the word ''appeal'' used u/s 12(2) of the Limitation Act is to be given an extended meaning or a limited meaning certain authorities were cited in support of the contention by the counsel for the opposite party which may be examined at this stage. The first case referred to is Bunbai Chetiani v. Mahendra Nath Saikia reported in ILR (1952) 4 Assam 530 : AIR 1954 Assam 43. There the question arose in connection with an application u/s 81 of tile Assam Land and Revenue Regulation for setting aside a sale of lands. There the time requisite for obtaining the copy of the order passed by the Sub-divisional Officer confirming the auction sale was excluded from the period of limitation prescribed u/s 81, Relying upon the decision of the Madras High Court and other decisions, this Court has hold that the word ''appeal'' in Section 12(2) of the Limitation Act should be given a liberal interpretation so as to include the revisional power exercised by this Court.

This decision is based on the reasoning that the power which is exercised by this Court u/s 81 of the Assam Land and Revenue Regulation is in the nature of a revisional power exercised against the order of the Sub-Divisional Officer confirming the auction sale and the ratio of this decision cannot apply to the application made under Rule 25 of the Rules for setting aside an election. There the order is passed confirming the auction sale by the Sub-Divisional Officer which is liable to be set aside u/s 79 of the Regulation by an application made before him within sixty days. The extended period of limitation however has been prescribed when an application is made to this Court invoking its jurisdiction which may very well be described to be in the nature of a revisional jurisdiction, but the same reasoning cannot be applied to an application under Rule 25 for setting aside an election.

The next case cited is The Standard Type Foundry Vs. Chebolu Venkataramaniah, There a petition, was made u/s 73 of the Madras Village Courts Act before the District Munsiff against an order passed by the Panchayat Court in a suit brought by the Petitioner for recovery of certain amount of money. It was said that though Section 73 in terms uses the word ''revision'' the power exercised by the District Munsiff against the order of the Panchayat Court is in the nature of an appellate power. There the Panchayat Court itself had disposed or the matter after taking evidence between the parties and decided the rights of the parties and any petition made as against that order before the District Munsiff was in the mature of an appeal and it gave very wide power to the District Munsiff to set aside the order of the Panchayat Court. The same analogy will not apply to the present case. There is no determination of the rights between the parties by the presiding officer against which an appeal is filed before the Munsiff and thus no power either revisional or appellate, is conferred on the Munsiff when a petition is made before him for setting aside the report of the presiding officer.

It is not necessary to refer in detail to the other case cited by the counsel for the Petitioner, namely Jijibhoy N. Surty v. T.S. Chettyar Firm reported in AIR 1928 PC 103. There the decision was based on the interpretation of the words the time requisite for obtaining the copy''. The contention was that if under the CPC no copy of the order appealed against is required to be filed, the time required for obtaining the copy of such an order cannot be regarded as the time requisite for obtaining the copy of the order within the meaning of Section 12(2) of the Limitation Act. That contention was repelled by their Lordships of the Privy Council. It was held that even though under the provision of the CPC it was not necessary to file a copy of the order appealed against, still if the time was taken in obtaining a copy of the order, it will be time requisite within the meaning of Section 12(2) of the Limitation Act and has to be excluded in computing the period of limitation. That case is not applicable to the present case.

Reliance is also placed on the case of Sehat Ali Khan and Another Vs. Abdul Qavi Khan and Others, That was a case where the question arose for consideration whether the time requisite in obtaining the copy of the order passed by a single Judge of the High Court was to be excluded in filing an appeal under the Letter''s Patent. It was held that even though it may not be necessary under the rules of the Court to filed a copy of the judgment of the Single Judge appealed against, still if the copy was obtained and filed along with the appeal, the time requisite for obtaining the copy will have to be excluded. It is not necessary to deal with that case elaborately. It is sufficient to point out that the facts of this case

Reference in this connection also may be made to the case of Beharilal Chaurasiya Vs. Regional Transport Authority and Others, The matter which came up for consideration in this case was in connection with an appeal filed u/s 64-A, Motor Vehicles Act. It was held after consideration of all the authorities on the point by their Lordships of the High Court that the power exercised by the State Transport Authority was not in the nature of an appeal and thus the time requisite in obtaining the copy was not be excluded. We are in complete agreement with the reasonings adopted by that Court though it is not necessary for us to express our opinion if in cases of revision u/s 64-A, Motor Vehicles Act the time requisite for obtaining copy can or cannot be excluded in computing the limitation. In the result therefore, we allow this petition and quash the order of the Munsiff with cost which we assess at Rs. 50/ -.

Dutta, J.

I agree.