Prem Lal vs Rajender Prashad and Another

Deepak Gupta, J.—This petition is directed against the order dated 30.4.2004 passed by the Learned Additional Chief Judicial Magistrate, Ghumarwin whereby he rejected the appeal filed by the present Petitioner u/s 67 of the H.P. Panchayati Raj Act on the ground that it is barred by limitation and further that the provisions of Section 5 of the Limitation Act are not applicable to the proceedings under the Panchayati Raj Act.

The question whether Section 5 of the Limitation Act is attracted in case of an appeal filed u/s 67 of the H.P. Panchayati Raj Act, is no longer res integra. This Court in Gian Chand v. Nand Lal and Anr. Latest HLJ 2005 (HP) 685 held as follows:

Clearly the H.P. Panchayati Raj Act, 1994 is both a special as well as a local law and equally clearly. Section 67 of this Act provides a period of limitation for filing appeals which is different from the period prescribed in the Schedule to the Limitation Act. That being the case, apart from Section 3 of the Limitation Act. That being the case, apart from Section 3 of the Limitation Act, 4 to Section 24 are also applicable and, therefore, if with respect to a time-barred appeal preferred u/s 67 of 1994 Act the Appellant seeks condonation of delay, Section 5 of the Limitation Act immediately is attracted and comes to his rescue and aid and he, as a matter of right, is entitled to, through the medium such an application u/s 5 of the Limitation Act pray for condonation of delay in filing a time-barred appeal. That right vests in such an Appellant. Whether on facts and/or merits delay is to be condoned, or it is not to be condoned, is a different matter altogether. The fact remains that the right of seeking condonation of delay vests in such an Appellant and that right inheres in him by virtue of Section 29 of the Limitation Act. This right cannot be taken away by juxtaposing something from Section 60 of the Act which is not at all related or applicable to Section 67 of the Act.

In view of the above law, this petition has to be allowed. The same is accordingly allowed and the matter is remanded to the learned Additional Chief Judicial Magistrate, Ghumarwin. The Petitioner, if he has not filed an application u/s 5, is permitted to file such an application on or before the date fixed for appearance before the Ld. Trial Court. The parties through their learned Counsel are directed to appear before the Ld. Trial Court on 10th January, 2011. The Registry is directed to ensure that the records of the case are sent back so as to reach well before the next date. As ordered above, the Petitioner shall file his application u/s 5 on the said date. Thereafter the Ld. Trial Court shall proceed in accordance with law. In case no application u/s 5 is filed, the present petition will be deemed to have been dismissed. No order as to costs.