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Satrughna Sahoo vs Sri Kameswar Mahadev, Bije Mundi … on 23 September, 2004

Orissa High Court
Satrughna Sahoo vs Sri Kameswar Mahadev, Bije Mundi … on 23 September, 2004
Equivalent citations: 98 (2004) CLT 609
Author: M Das
Bench: A Patnaik, M Das


JUDGMENT

M.M. Das, J.

1 . This writ petition is at its threshold and is heard on the question of admission before issuing notice to the Opp. Parties, as two subtle points of law have been raised by the petitioner which are required to be dealt with elaborately.

2. The facts of the case briefly are that the petitioner filed an application under Section 41(1) of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the ‘Act’) praying therein to declare the deity, Opp. Party No. 1 as a public deity and the petitioner as its hereditary trustee. The said application filed before the learned Addl. Assistant Commissioner of Endowments, Sambalpur was numbered as O.A. No. 6 of 2000 and by order dated 14.5.2001 the learned Addl. Asst. Commissioner of Endowments declared the Deity-Opp. Party No. 1 as a public deity and also the petitioner as its hereditary trustee.

3. One Ranjan Kumar Rout, Opp. Party No. 2 herein, preferred an appeal against the said order of the learned Addl. Asst. Commissioner of Endowments before the Commissioner of Endowments, Orissa, Bhubaneswar which was numbered as F.A. No. 1 of 2001. The appeal was purported to have been filed under Section 44(1) of the Act. The said appeal being filed beyond 30 days as prescribed under Section 44 of the Act, an application under Section 5 of the Limitation Act was filed along with the appeal by the Opp. Party No. 2.

4. The petitioner appearing before the learned Commissioner of Endowments in the above appeal filed objection to the application under Section 5 of the Limitation Act and also contended before the Commissioner of Endowments that the appeal is not maintainable at the instance of the appellant, i.e., the Opp. Party No. 2 since he was not a party in the original application under Section 41 of the Act. The learned Commissioner of Endowments by order dated 1.3.2004 condoned the delay in filing the appeal and granted leave to proceed with the appeal holding the appeal to be maintainable at the instance of the present Opp. Party No.

5. Being aggrieved, the petitioner has filed this writ application under Articles 226 and 227 of the Constitution of India praying for quashing the said order of the Commissioner of Endowments vide Annexure-1 to this writ petition.

6. Mr. S.K. Nayak, learned counsel for the petitioner submitted that the Orissa Hindu Religious Endowments Act being a special Statute, the provisions of Section 5 of the Limitation Act will not be applicable to an appeal under Section 44(1) of the said Act and persons representing the Hindu Public having been impleaded as parties in the original proceeding under Section 41 of the Act, the Opp. Party No. 2 who was not a party to the proceeding under Section 41 (1) of the Act, had no locus standi to prefer the appeal.

7. Mr. A. Rath, learned counsel appearing for the Commissioner of Endowments contended that the position with regard to applicability of Section 5 of the Limitation Act to an appeal under the Orissa Hindu Religious Endowments Act was different before the new Limitation Act came into force in 1963. But under the new Limitation Act, by virtue of the provisions of Section 29(2) of the said Act, the provisions of Sections 4 to 24 (both inclusive) shall apply to an appeal preferred under the Act and hence Section 5 of the Limitation Act is applicable to such an appeal and the learned Commissioner of Endowments has not committed any illegality in condoning the delay in filing the appeal by Opp. Party No. 2.

8. Mr. Nayak, however, on the other hand submitted that the first part of 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 different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period was the period prescribed by the Schedule”. Interpreting this part of Section 29(2) of the Limitation Act, he submitted that Section 29(2) can only be attracted where in identical appeal the period of limitation has been prescribed by the special or local law and the period is also prescribed by the Schedule to the Limitation Act and there is difference between these two periods.

9. Mr. Rath has brought to the notice of the Court a Bench decision of this Court in the case of Vysyaraju Badarinarayana Moorty Raju v. State of Orissa reported in AIR 1981 Orissa 180 wherein it was held that Section 29(2) of the Limitation Act, 1963 is different from the corresponding provision of the earlier Act of 1908 and that the new Act extends the application of provisions of Sections 4 to 24 unless there be exclusion by the Special Act whereas the old Act required specified provisions to make these Sections applicable to the Special Act. Mr. Rath also placed reliance on the Full Bench decision of Kerala High Court reported in AIR 1980 Kerala 82 (State of Kerala and Anr. v. Ayilammal Syamala Thamburatti and Ors.) to the same effect. The Supreme Court in Mohd. Ashfaq v. State Transport Appellate Tribunal, U. P. and Ors., AIR 1976 SC 2161 while dealing with the questions as to whether provisions of Section 5 of the Limitation Act are applicable for condoning the delay in making the application for renewal of a permit under the Motor Vehicles Act where a period of 15 days has been prescribed by the said Act, held that Section 29(2) of the Limitation Act, 1963 makes Section 5 applicable to such an application filed beyond the period of time prescribed by the Special Act.

10. In view of the aforesaid decisions, we have no hesitation to hold that the provisions of Section 5 of the Limitation Act, 1963 are applicable to an appeal under Section 44 of the Orissa Hindu Religious Endowments Act, 1951 and no illegality has been committed by the Commissioner of Endowments in condoning the delay in filing the appeal by Opp. Party No. 2 in the impugned order vide Annexure 1.

11. The other question raised by the petitioner in this writ application regarding the locus standi of Opp. Party No. 2 as appellant before the Commissioner of Endowments has been extensively dealt with in the impugned order and we find no reason to interfere with the said finding in granting leave to Opp. Party No. 2 to proceed with the appeal.

12. This writ application is thus devoid of merit and we are not inclined to admit the same, which is accordingly dismissed.

A.K. Patnaik, J.

13. I agree.

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