Madhya Pradesh High Court
Akhtar Ali vs State Of M.P. And Ors. on 10 February, 2000
Equivalent citations: AIR2000MP257, 2000(2)MPHT2, AIR 2000 MADHYA PRADESH 257, (2000) 1 MPLJ 551
JUDGMENT S.P. Srivastava, J.
Heard Shri A. K. Shrivastava, learned counsel for the petitioner as well as Shri K. N. Gupta, learned Govt. Advocate representing the respondents/State who has put in appearance on advance notice.
Perused the writ petition.
1. The petitioner feels aggrieved by an order passed by the Collector/appellate authority, Krishi Upaj Mandi Nirvachan. District Shivpuri whereunder the appeal filed by the petitioner under the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tathas Mandi Samiti Gathan) Niyam, 1974, which was directed against the rejection of his nomination paper by the election authority dated 21-4-1999 has been dismissed holding that the said appeal was not maintainable on the ground that the appeal had been filed beyond the prescribed period of limitation.
2. It may be noticed that the appeal had been filed on 2-2-2000 whereas the order rejecting the nomination paper in question had been passed on 21-4-1999.
3. The petitioner has asserted that along with the appeal he had submitted an application praying for the condonation of delay in filing the appeal, a copy of which has been annexed as Annexure P/1 to the writ petition. The only explanation in the application which has been furnished explaining the delay in filing the appeal was that in the evening of the day on which the nomination paper had been rejected, under an interim order passed by the High Court, the election had been stayed and since the election had been stayed, he could not submit the memorandum of appeal.
4. No affidavit in support of the aforesaid application had been filed. Even the copy of the interim order of the High Court referred to in the application had not been filed but from the assertions made in the application, it is indicated that the stay order was only for the postponement of the election and not the other proceedings leading up to the date fixed for holding the election itself.
5. The petitioner has prayed only for a direction requiring the appellate authority to decide the appeal on merits.
6. The learned Govt. Advocate has opposed this writ petition asserting that the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974, is a complete code in itself including the qualifications and disqualifications of all the contestants, providing for the Election Authority and Determination of Constituencies, Right to Vote and the Preparation and Maintenance of the List of Voters, Notice of Election, Nomination of Candidates, Procedure at and Conduct of Election, Counting of Votes and Publication of Election Result and Nominations, Election Petitions, Electoral Offences, Nomination of Members and the proceedings for filling up the Office of Adhyaksh of the Mandi Samiti, etc.
7. It is further pointed out that Rule 17 of the aforesaid Rules of 1974 regulates the procedure for Scrutiny of nominations and an order rejecting the nomination paper has been made appealable under Rule 17 (4) of the said Rules. Rule 17 (4) specifically provides that such an appeal shall not lie unless a notice is given by the affected candidate or his proposer or seconder to the election authority, expressing an intention to appeal, as soon as the order rejecting the nomination paper is passed by it and it is lodged in the office of the appellate authority before 2.00 p.m., on the day next to the date of scrutiny fixed under Clause (c) of Sub-rule (2) of Rule 14. The appellate authority has to take up all such appeals in the order in which they have been filed, commencing at 12 noon on the day following the date on which they have been filed. The appellate authority shall not be required to issue any notice but all candidates and their proposers or seconders shall be entitled to be present and every candidate shall be entitled to be heard in connection with any appeal relating to the constituency for which he is a candidate. Appearance by Counsel shall not be permitted.
8. The contention of the learned Govt. Advocate representing the respondents/State is that taking into consideration the urgency-of the situation in the matter relating to the elections, When the election proceedings have already started, the Legislature in its wisdom has prescribed the period of limitation as indicated hereinabove for filing and entertainment of appeal and its disposal.
9. Under the scheme underlying the rules indicated hereinabove, no provision has been made for the condonation of delay in filing the appeal on its entertainment and the period prescribed there for. It is, therefore, urged that the appellate authority cannot be taken to have refused to exercise its jurisdiction by dismissing the appeal straightway holding it to be not entertainable. It is further urged that in fact the Appellate Authority was not vested with any jurisdiction to condone the delay in filing the appeal and the legislative intent underlying the provision in question was to exclude the entertainment of the appeals filed beyond the prescribed period of limitation.
10. The learned counsel for the petitioner has strenuously urged that though no provision has been made vesting the appellate authority with any jurisdiction to condone the delay in filing the appeal, yet in view of the provision contained in Section 29 Sub-clause (2) of the Limitation Act, the requisite jurisdiction in this regard has to be deemed to be there, and the appellate authority is bound to consider on merits the application seeking condonation of delay in filing the appeal and on finding that sufficient cause had been made out explaining the delay then the appeal should be heard on merits. The contention is that since the appeal though presented much beyond the prescribed period of limitation was accompanied by an application seeking condonation of delay in filing the appeal, therefore the appellate authority was bound to dispose of that application and thereafter should have taken up the appeal for consideration and in case the appellate authority was not satisfied with the explanation for the delay, the appeal could have been dismissed on the ground that it was barred by limitation but not otherwise.
11. The provision contained in Section 29 Sub-clause (2) of the Limitation Act, 1963 is to the following effect:
29. Savings.-
(1) ....., (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provision of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far, and to the extent to which, they are not expressly excluded by such special or local law."
(3) & (4) ... ..
12. The submission of the learned counsel for the petitioner is that under the Rules of 1974, there is no express exclusion of the applicability of Section 5 of the Limitation Act, 1963. and therefore in any appeal or application, the said provision automatically gets attracted and has to be taken to be applicable to any appeal or application filed under the aforesaid Rules of 1974.
13. A similar question had arisen before the Apex Court in the case of H. N. Yadav v. L.N. Mishra, reported in AIR 1974 SC 480. wherein the Apex Court had held that the words "expressly excluded" occurring in Section 29(2) of the Limitation Act do not mean that there must necessarily be express reference in the special or local law to the specific provisions of the Limitation Act, the operation of which is sought to be excluded. It was held that if on an examination of the relevant provisions of the Special Act, it la clear that the provisions of the Limitation Act are necessarily excluded then the benefits conferred by the Limitation Act cannot be called in aid to supplement the provisions of the Special Act.
14. The aforesaid case of H. N. Yadav (supra) was a case arising under the Representation of the People Act and the question was whether Section 5 of the Limitation Act is applicable to the filing of the election petition. The test to determine whether the provisions of the Limitation Act applied to proceedings under the Representation of the People Act by virtue of Section 29(2) of the Limitation Act was stated in the following words (at page 490) :
The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete Code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act."
15. In the present case, the statutory rules relating to the election proceedings contained in Rule 17 (4) of the Rules of 1974 specifically provide the period for the filing of the appeal. Further, Rule 43 clearly provides that an Election Petition has to be presented to the Collector within fourteen days from the date on which the result of the election was published under sub-Rule (3) of Rule 38.
16. In the aforesaid connection, it may be noticed that if the provision of Section 29(2) of the Limitation Act is applied to the proceedings under Rule 17 (4) of the Rules of 1974, with the logical extension it will apply to the proceedings contemplated under Rule 43 of the Rules of 1974 making it permissible to entertain the election petition even after the expiry of the limitation on making out a sufficient cause for the delay. This could never have been intended in order to secure the finality of the election and the proper functioning of the public office, filled up on the basis of election in the public interest,
17. The submission if accepted will lead to absurdity and manifest injustice and the result would be to upset the balance of the Statute as a whole.
18. It must not be lost sight of that so far as regards the efficiency and policy and of that the legislature is the only judge its wisdom cannot be scanned by the Court. They are. however, responsible for what they do, and of that the Court is the only judge.
19. The law does not operate in a vacuum. It cannot be interpreted without taking into account the social, political and economic setting in which it is intended to operate. A mechanical approach is altogether out of step in the modern positive approach which is to have a purposeful construction that is to effectuate the object and purpose of the Act. In the present case, the obvious object is to get the election process completed within the frame work prescribed maintaining the time schedule for holding the election and fill up the public office as early as possible.
20. Taking into consideration the rules regulating the election proceedings and the filing of the election petition, it is apparent that it is a complete code in itself which does not admit of the application of the provision contained in Sections 4 to 24 as stipulated in Section 29(2) of the Limitation Act, 1963.
21. The learned counsel for the petitioner has placed strong reliance on the decision in the case of Nihalkaran S/o Chhatrakaran Zamindar v. Commissioner of Wealth Tax, Bhopal reported in 1987 MPLJ 562 : [1988 Tax LR 584), rendered by a Full Bench of this Court, whereunder after noticing the legislative history of Section 27 of the Wealth Tax Act, 1957, the Court had come to the conclusion that unless application of Section 5 of the Limitation Act was expressly excluded to an application under Section 27(3) of the Act, that would apply. Observing further that Parliament would be deemed to be aware of this changed legal position at the time when it enacted the Amendment Act, No. 46 of 1964.
22. The ratio of the aforesaid decision cannot be said to be attracted to the facts and circumstances of the present case specially in view of the clarification of the expression "expressly excluded" as contained in Section 29(2) of the Limitation Act and its real import and significance as explained by the Apex Court in its decision in the case of H.N. Yadav (supra), which was later on reiterated by the Apex Court in its decision in the case of Anwari Basavaraj Patil v. Siddaramaiah reported in AIR 1994 SC 512.
23. In the aforesaid view of the matter, the situation which emerges in the present case is that the application seeking condonation of delay in filing the appeal itself was not entertainable. Even on a perusal of the application filed by the petitioner, a copy of which has been annexed, does not disclose any such circumstance which could prevent him from filing the appeal on the next day of the rejection of his nomination paper within the time as prescribed under Rule 17 (4) of the Rules of 1974 as according to the petitioner himself the interim order passed by the High Court was with regard to the stay of the election which was scheduled to take place later on and there is nothing to indicate that all the proceedings upto the date of election had been stayed.
24. In any view of the matter, since the application seeking condonation of delay in filing the appeal itself was not maintainable, no useful purpose is going to be served by directing the appellate authority to decide the same on merits. The issuance of such direction will be an exercise in futility, specially when the said application has been found to be not at all entertainable.
25. It may be noticed that the petitioner has prayed for a direction requiring the appellate authority to decide the appeal on merits. There is absolutely no justification for issuing any such direction in the peculiar facts and circumstances of the present case.
26. In view of my conclusions indicated hereinabove, no justifiable ground has been made out for any interference while exercising the extraordinary jurisdiction envisaged under Article 226 of the Constitution of India.
27. The writ petition is accordingly dismissed.