Randhir Singh v. Deputy Registrar, Cooperative

as barred by time. The present petitioner had challenged the election to the Managing Committee of the society held on 26.9.2008 claiming to be a member of the society. The election was primarily challenged on the ground that the election programme has not been properly got approved by the society and no proclamation was effected in the area of the operation of the society. Eligibility to contest election by Karam Singh, one of the elected candidate was also challenged. CWP. No. 16312 of 2009 -2- It is admitted case of the petitioner that the election petition was filed much beyond the time. The election petition was accompanied with an application for interim stay and an application for condonation of delay. It was pleaded that the petitioner came to know of the election of the Managing Committee from one Manphool Singh son of Banta Singh, who also provided the copy of the election programme and the result declared by the Returning Officer to the petitioner on 24.4.2009.

No other ground was urged. The Deputy Registrar without going into the merits of the plea raised by the petitioner dismissed the election petition being barred by time. Learned counsel for the petitioner while laying emphasis on the misconduct of the Managing Committee has argued that the election was not properly approved by respondent no.2 nor any proclamation had been made in the effected area. It is admitted case of the petitioner that the limitation for filing the election petition is prescribed under the Punjab Cooperative Societies Act, 1961. The act is a special statute. No provision of the act providing for condonation of delay has been brought to the notice of the Court. In absence of any such provision for condonation under the statute itself, the condonation can only be made under Section 5 of the Limitation Act, if, applicable. Section 5 of the Limitation Act, 1963 reads as under:- “ 5.

Extension of prescribed period in certain cases:- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civi Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfied the court that he had sufficient cause for not preferring the appeal or making the application within such period.” CWP. No. 16312 of 2009 -3- Section 29 (2) of the Limitation Act deals with the applications of various provisions of the Limitation Act in respect to statute, appeal or application governed by limitation under any special or local law. The relevant provision of Section 29 reads as under: “ 29. Savings-(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). (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 provisions 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) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Section 25 and 26 and the definition of “easement” in section 2 shall not apply to case arising in the territories to which the Indian Easements Act, 1882 (5 of 1882) may for the time being extend.” From the above, it is evident that whenever any special or local law prescribes any period of limitation for any statute, appeal or application different from the period prescribed under the schedule to Limitation Act, the provision of Section 3 is applicable, whereas the provisions of Sections 4 to 24 shall be applicable to the extent they are not expressly excluded by such special or local law. This provision has two dimensions; (1) Section 3 CWP. No. 16312 of 2009 -4- of the Limitation Act will be attracted.

Section 3 of the Limitation Act inter alia provides for dismissal of the suit, appeal or application filed beyond the period of limitation. Section 4 to 24 deals with the exclusion and extension of period of limitation under various conditions as prescribed under these sections. Section 5 is also one of such provisions which is sought to be applied seeking condonation. It is admitted case of the petitioner that there is no specific provision under the Punjab Cooperative Societies Act, 1961 and the rules framed thereunder by virtue of which sections 4 to 24 have been made applicable in appeals and other proceedings under the Cooperative Societies Act. Since Section 5 has not been made applicable expressly, it is to be deemed to have been excluded from its application in view of the interpretation of the provisions of Section 29 by the Hon'ble Supreme Court in case of Gopal Sardar Vs. Karuna Sardar, (2004) 4 SCC 252 has held as under:- “ 13.

Section 8 of the Act prescribes definite period of limitation of three months or four months, as the case may be, for initiating proceedings for enforcement of right of pre-emption by different categories of people with no provision made for extension or application of Section 5 of the Limitation Act. When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act. Considering the scheme of the Act being self-contained code in dealing with the matters arising under Section 8 of the Act and in the light of the aforementioned CWP. No. 16312 of 2009 -5- decisions of this Court in the case of Hukumdev Narain Yadav, Anwari Basavaraj Patil and M/s.

Parson Tools (supra), it should be construed that there has been exclusion of application of Section 5 of the Limitation Act to an application under Section 8 of the Act. In view of what is stated above, the non-applicability of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act is certain and sufficiently clear. Section 29(2) of the Limitation Act as to the express exclusion of Section 5 of the Limitation Act and the specific period of limitation prescribed under Section 8 of the Act without providing for either extension of time or application of Section 5 of the Limitation Act or its principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability or frustrating the object of the Act. At any rate in the light of the Three-Judge Bench decision of this Court in Hukumdev Narain Yadav case (supra) and subsequently followed in Anwari Basavaraj Patil case (supra), even though special or local law does not state in so many words expressly that Section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered.

Thus, a conscious and intentional omission by the Legislature to exclude application of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act, looking to the scheme of the Act, nature of right of pre-emption and express application of Section 5 of the Limitation Act to the other provisions under the Act, itself means and amounts to "express exclusion" of it satisfying the requirement of Section 29(2) of the Limitation Act.” In view of the above position, the election petition has been rightly dismissed being barred by limitation. Otherwise also the only CWP. No. 16312 of 2009 -6- ground for condonation is that the petitioner had no knowledge of the election. Such a vague plea when the petitioner was admittedly a member of the society can not be accepted without there being any material on record. Petition dismissed.

18.2.2010. (PERMOD KOHLI) JUDGE