The free and
fair elections are a guarantee of the
democratic polity and for achieving such
an objective various provisions are made
applicable to the election laws, most
important of which is the remedy of
challenging the elections on the grounds
specified under the statute. In the
absence of the applicability of Section 5
of the Limitation Act, the rights of the
aggrieved person, intended to challenge
an election, can be defeated by the
executive of the State by not appointing
the Election Tribunal as is shown to have
been done in the instant cases. In the
appeal filed by the Gogineni Sujatha, it
is not disputed that the Election
Tribunal was constituted after the expiry
of period of limitation prescribed for
filing an election petition. Similarly
in the case of Shaikh Saidulu alias Saida
sufficient time was allowed to lapse
preventing the filing of the election
petition for no fault of the appellant.
Can an interpretation be accepted which
facilitates the defeating of purpose of
the Act? The answer is emphatically,
No."
18. These observations of the Supreme Court
while dealing with identical provisions are
binding upon me. No decision of the Hon’ble
Supreme Court has been brought to my notice
taking a contrary view. In fact, the Supreme
Court decision applies with full force.
Although, the learned Judge while passing the
impugned order has not referred to this decision,
this decision is squarely applicable. The
Supreme Court has observed that the word
"application" appearing in relevant provisions of
the Hyderabad Municipal Corporation Act so also
the provisions which are pari materia to section
435 would make Limitation Act applicable. In
such circumstances, by resorting to section 5,
the delay should have been condoned is the
conclusion of the Supreme Court.
19. It is not proper to ignore this
authoritative pronouncement as suggested by
Mr.Godbole. This decision fully covers the
controversy before me. Merely because there are
several headings under Chapter 26 does not mean
that the Supreme Court decision or section 435 of
B.P.M.C. Act would become inapplicable. It is
not necessary to enter into any larger
controversy as to whether to all proceedings
contemplated under Chapter 26, the Indian
Limitation Act and the provisions referred to in
section 435 or C.P.C. would be applicable.
Suffice it to state that insofar as election
petitions contemplated by section 16 are
concerned, the same are squarely covered and fall
within sub-section 1 of section 435 of the Act.
20. In this view of the matter, learned Judge
was fully empowered to take cognisance of the
application preferred by the first respondent,
seeking condonation of delay of 32 days in filing
election petition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8170 OF 2007
Yogesh Mangalsen Bahal Vs Rajesh Chimanrao Wable
CORAM : S.C.DHARMADHIKARI, J.
DATE : 10th January 2008
Citation: 2008(5) Bom CR 243
Rule. Respondents waive service. By
consent rule made returnable forthwith. Heard
Counsel for respective parties.
2. By this petition under Article 226 and
227 of the Constitution of India, the petitioner
original opponent No.1 is challenging the order
passed by the learned Civil Judge, Senior
Division, Pune on 1st October 2007 allowing
Miscellaneous Application No.277 of 2007. By the
order under challenge the Misc.Application
seeking condonation of delay has been allowed and
delay in filing of the election petition has been
condoned.
3. Respondent No.1 filed Election Petition
against the petitioner in the Court of Civil
Judge, Senior Division, Pune invoking his
jurisdiction under section 16 of the Bombay
Provincial Municipal Corporation Act, 1949 (for
short "BPMC Act"). The first respondent
challenged the election of the petitioner as a
Councillor from Ward No.32 to the
Pimpri-Chinchwad Municipal Corporation. The
Election Petition was filed on 13th March 2007.
The election, on the own showing of parties
concluded by the Declaration of result on 2nd
February 2007. The election results were
published on 8th February 2007. According to
respondent No.1, the results came to the
knowledge of public on 8th February 2007 and the
election petition was filed on 13th March 2007.
Aware of the provisions contained in section 16
of the B.P.M.C.Act, the Misc.Application was
filed seeking condonation of delay of 32 days in
filing election petition.
4. The only contention raised before me in
this petition is that the learned Judge had no
power to condone the delay in filing of this
election petition. It needs to be clarified that
the parties have not addressed me on the question
as to whether sufficient cause was made out for
condoning the delay or not. They have proceeded
on the basis that sufficient cause was made out
for condoning the delay. The issue is lack of
power in the learned Judge.
5. Mr.Godbole, learned Counsel appearing for
petitioner questions this order on the ground
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that the learned Judge had no power to condone
the delay. He submits that the B.P.M.C. Act
provides for an election petition. That election
petition is contemplated by section 16 which is
entitled "Election Petitions". That election
petition can be submitted to the "Judge". The
word "Judge" is defined in section 2(29) of the
B.P.M.C. Act. Mr.Godbole urges that Chapter 26
of the B.P.M.C. Act is a chapter which
exclusively deals with the proceedings before a
Judge, Dist.Judge and Magistrate. There are
several sub-headings in this chapter. Election
Enquiry is one sub-heading, References to the
Judge is another sub-heading so also Appeals
against valuation and tax. He submits that if
the sub-headings are perused, then, it is clear
that the Legislature has not provided for
condonation of delay in filing an election
petition. He submits that section 435 which
appears under the sub-heading "Miscellaneous" in
this Chapter would take within its import, only
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5
the appeals or applications referred to in the
chapter which are maintainable before the Judge
or the appellate authority. The election
petition is a distinct remedy. That is advisedly
kept out of the purview of this Chapter.
Therefore, with the aid of section 435, the delay
could not have been condoned. Mr.Godbole was at
pains to point out that sections 434 and 435 will
have to be seen in the background of the various
sub-headings under Chapter 426. He submits that
there is nothing in section 16 which would enable
the Judge to condone the delay. In such
circumstances, the order under challenge suffers
from a patent illegality and is wholly without
jurisdiction. The same, therefore, requires to
be quashed and set aside.
6. On the other hand, Mr.Joshi appearing for
the original election petitioner submits that the
learned Judge has rightly condoned the delay. He
submits that the learned Judge was right in
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taking recourse to and aid of section 435. Once
the election petition is nothing but an
application and that the same is before the Judge
of a Court specified in Section 2(29), then, the
provisions of Limitation Act would apply. The
provisions of Limitation Act and more
particularly those referred in section 435 would,
therefore, apply. Section 5 is one of them.
Section 5 enables a Judge to condone the delay in
filing of an application. In such circumstances,
the delay has rightly been condoned. Mr.Joshi in
support of his contentions relies upon a Decision
of the Supreme Court in the case of Shaikh
Saidulu @ Saida Vs. Chukka Yesu Ratnam and Ors.
reported in A.I.R. 2002 S.C. 749.
7. Mr.Godbole has sought to distinguish this
decision by urging that the decision will have to
be seen in the backdrop of the facts before the
Supreme Court, inasmuch as in the case before the
Supreme Court, the election tribunal was not
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7
constituted within the period of limitation
prescribed for filing of election petition. The
Tribunal was constituted later on. In these
circumstances, the delay of 18 days was rightly
condoned by the Supreme Court. That judgement
will have no application to the facts of the
present case. Further, section 435 and the
provisions of the Supreme Court are not pari
materia. Similarly, the distinction between the
provisions contained in Chapter 26 of the
B.P.M.C. Act and its several sub-headings was
not an issue before the Supreme Court. In such
circumstances, the Supreme Court judgement is
distinguishable.
8. Mr.Godbole sought to urge that the
application is before a Judge. The Judge is,
therefore, persona designata. That is not an
application to the Court. In any event,
therefore, the provisions of the Limitation Act
would not apply.
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8
9. Before dealing with the rival
contentions, it will be appropriate to reproduce
Sections 16 and 435 of B.P.M.C. Act so also
section 5 of the Limitation Act, 1963.
"16: Election Petitions:
(1) If the qualification of any
person declared to be elected a
Councillor is disputed, or if the
validity of any election is questioned,
whether by reason of the improper
rejection by the State Election
Commissioner of a nomination, or of the
improper reception or refusal of a vote,
or by reason of a material irregularity
in the election proceedings corrupt
practice, or any other thing materially
affecting the result of the election, any
person enrolled in the municipal election
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9
roll may at any time within ten days
after the result of the election has been
declared submit an application to the
Judge for the determination of the
dispute or question;
(2) The State Election Commissioner
may, if it has reason to believe that an
election has not been a free election by
reason of the large number of cases in
which undue influence or bribery has been
exercised or committed by order in
writing, authorise any officer of the
Commission to make an application to the
Judge at any time within one month after
the result of the election has been
declared for a declaration that the
election of the returned candidate or
candidates is void;
(2A) No election to any Corporation
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10
shall be called in question except by an
election petition presented to the Judge
referred to in sub-section (1) and no
Judge other than the Judge referred to in
sub-section (1) shall entertain any
dispute in respect of such election;
(3) The Judge shall decide the
applications made under sub-section (1)
or (2) after holding an inquiry in the
manner provided by or under this Act."
"435: Limitation:
(1) In computing the period of
limitation prescribed for an appeal or
application referred to in this Chapter,
the provisions of section 5, 12 and 14 of
the Indian Limitation Act, 1908 shall, so
far as may be, apply;
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11
(2) When no time is prescribed by
this Act for the presentation of an
appeal, application or reference, such
appeal or application shall be presented
or reference shall be made within thirty
days from the date of the order in
respect of or against which the appeal,
application or reference is presented or
made".
"Section 5 : (Limitation Act):
"Extention 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 Civil Procedure, 1908, may
be admitted after the prescribed period,
if the appellant or the applicant
satisfies the Court that he had
sufficient cause for not preferring the
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12
appeal or making the application within
such period."
Explanation:- The fact that the
appellant or the applicant was misled by
any order, practice or judgement of the
High Court in ascertaining or computing
the prescribed period may be sufficient
cause within the meaning of this
section."
10. The last contention of Mr.Godbole, that
need not detain me. In the case reported in
1998(3) Mh.L.J. 829, (Dayaram Tulshiram Rajguru
Vs.Mamasaheb @ Balasaheb Bhimrao Janrao) a
Division Bench of this Court was concerned with
an issue as to whether the Judge who has been
named for deciding election petitions, is a
persona designata or not. After referring to
section 2(29) of the B.P.M.C. Act, this is what
is observed by the Division Bench:-
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"7. Section 2(29) of the Bombay
Provincial Municipal Corporation Act,
1949, defines the word "Judge" and it
reads as follows:-
"(29) "The Judge" means in the (city of
Pune) the Judge of the Court of Small
Causes, and in any other city the Civil
Judges (Senior Division) having
jurisdiction in the City."
It is relevant to bear in mind the
guideline laid down by the Supreme Court
while considering the issue as to whether
an authority is a persona designata or
otherwise. This guideline has been laid
down in the case of Central Talkies Ltd.
Kanpur Vs. Dwarka Prasad reported in
A.I.R. 1961 S.C. 606 and it reads as
under:-
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14
". A persona designata is a "person
who is pointed out or described as an
individual, as opposed to a person
ascertained as a member of a class or as
filling a particular character".
This guideline is based on the definition
of persona designata as found in the 4th
Edition of Law Dictionary by P.G.Osborn.
It, therefore, becomes apparent that when
a person is referred to, maintaining his
individuality in the office as
distinguished from general class, he
should be styled as persona designata.
Now, in this context let us examine the
definition of the word "Judge" as
appearing in section 2(29). Two
authorities are included in the said
definition. For City in Pune, the Judge
of Court of Small Causes and in any other
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City, the Civil Judge (Senior Division)
having jurisdiction in the City. There
is nothing that we can read in this
definition to specify the individuality
of an office or a person manning such
post. Whenever an authority is referred
to as persona designata, the
individuality of that office is
specifically emphasised and maintained.
To give a few instances, we can refer to
the decisions cited by Mr.Apte. While
dealing with the provisions of Hyderabad
Houses (Rent, Eviction and Lease) Control
Act, the Division Bench was concerned
with Section 25 thereof containing a
provision of an Appeal. Section 25,
inter alia, provided that an appeal from
an order made by the Controller shall lie
to the Dist.Judge. When reference is
made to the District Judge, it is obvious
that it is made as an authority
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identifiable and in that context, the
Division Bench has held that reference to
the District Judge would be as persona
designata. Similarly, reference could be
made to few other provisions in Public
Premises (Eviction of Unauthorised
Occupants) Act, 1971. Section 9 of the
said Act specifically refers that "An
appeal shall lie from every order of the
Estate Officer made in respect of any
public premises under (Section 5 or
Section 5-B) (or section 5-C) or Section
7 to an appellate officer who shall be
the district judge of the district in
which the public premises are situate or
such other judicial officer in that
district of not less than ten years’
standing as the district judge may
designate in this behalf. "Sub-section
(6) of section 9, while dealing with the
presidency-town, prescribes as follows:-
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(6) For the purposes of this section,
a presidency-town shall be deemed to be a
district and the chief judge or the
principal judge of the city civil court
therein shall be deemed to be the
district judge of the district."
When an appeal is provided against an
order, it is specifically referred that
it should be heard by the "Principal
Judge". Under the Bombay Municipal
Corporation Act, filing and hearing of
Election Petitions is as per the
provisions of Section 33 and it
specifically refers to filing of Election
Petitions and disposal thereof by "Chief
Judge of Small Cause Court". Similarly,
an appeal in a tax matter is provided
under section 217 of the Bombay Municipal
Corporation Act and it specifically
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refers that appeals against any rateable
value or tax fixed or charged under this
Act shall be heard and determined by the
Chief Judge of the Small Cause Court.
While providing for an appeal relating to
eviction of persons regulated by Chapter
V-A, Section 105F specifically states as
under:-
"105F. An appeal shall lie from every
order of the Commissioner, made in
respect of any Corporation premises,
under section 105B or section 105C, to an
appellate officer who shall be the
principal Judge of the City Civil Court
of Bombay or such other judicial officer
in Greater Bombay of less than ten years
standing as the Principal Judge may
designate in this behalf."
In all the abovereferred clauses, while
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in reference individuality is maintained,
Courts have interpreted such reference to
be as persona designata. In proceedings
for eviction under the Bombay Municipal
Corporation Act, when an appeal is
provided under section 105, it is
referred to the "Principal Judge" of the
City Civil Court. Even under the
provisions of the City of Bombay
Municipal Act, when the Election
Petitions were to be filed, the Chief
Judge of the Small Cause Court, Bombay
was required to entertain these petitions
and whenever such a reference is made to
an individual Designated Officer, the
Courts have always interpreted to mean as
reference to persona designata. In the
case of reference to the Chief Judge of
Small Causes Court, as appearing in the
provisions of City of Bombay Municipal
Act, this Court in the case of
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20
R.S.Navalkar Vs. Mrs.Sarojini Naidu
reported in (1923) 25 BLR 463 has held
such reference to be a persona designata.
In the instant case, the definition with
which we are concerned, makes a reference
to a Judge for the City of Pune and a
Civil Judge, Senior Division having
jurisdiction in any other city. This is
obviously a reference to a person
ascertained as a member of a class of
Judges. Same is the case in respect of
the reference to Civil Judge, Senior
Division. The individuality of a person
manning the office is conspicuously
absent. If that be so, it is not
possible to interpret and hold that the
reference to the word "Judge" is a
persona designata. In this view of the
matter, we see nothing wrong in the view
taken by the learned Trial Judge in
holding that the Judge, Small Causes
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Court, Pune, is not a persona designata
for the purpose of deciding Municipal
Appeals and Election Petitions under the
provisions of Bombay Provincial Municipal
Corporations Act, 1949 and the Additional
Judge of Court of Small Causes, Pune, has
jurisdiction to try such Appeals and
Petitions.
"8. One more indication must be
referred to. An appeal against the
decision is provided under Section 411
and the forum as described is District
Court. It is apparent and needs no
emphasis that the Court is different than
the Judge as held by the Supreme Court in
the case of Supreme Court Legal Aid
Committee Representing Undertrial
Prisoners Vs. Union of India reported in
(1994) 6 S.C.C. 731. If the proceedings
at the trial stage were to be intended
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22
before the persona designata, the
provision of Appeal would have been
worded in a different fashion. When an
appeal lies to the Court, it is obviously
indicated that the same shall be governed
and conducted by the procedure applicable
to the ordinary civil proceedings. If
that be so, a person who has rendered the
impugned decision, has to be a person
amenable to ordinary civil jurisdiction.
". Further the trial Court has
rightly relied upon section 403(4)(a) of
the Bombay Provincial Municipal
Corporation Act, which pertains to the
procedure in election inquiries and
provides "All applications received under
section 16 in which the validity of the
election of Councillors elected to
represent the same ward is in question
shall be heard by the same Judge". This
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23
reveals the legislative intent that
applications can be entertained and tried
by all the Judges of the Small Causes
Court. However, in case of validity of
election of councillors elected to
represent the same ward, it shall be
heard by the same Judge. Therefore, the
contention of the learned Counsel for the
petitioners that "Judge" means only Chief
or Principal Judge of the Small Causes
Court is without any substance."
." The intention, therefore, is
clear and it is to eliminate his status
as persona designata. We see no reason
to take a different view than the one
taken by the learned trial Judge in the
order impugned in these petitions."
11. In another decision in the case of Thakur
Das (dead) by Lrs. Vs. State of Madhya Pradesh
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24
and Anr. reported in A.I.R. 1978 S.C. 1, the
Supreme Court was concerned with the concept of
"persona designata". The Supreme Court in the
said decision has observed thus:-
"11. We are accordingly of the opinion
that even though the State Government is
authorised to appoint an appellate
authority under Section 6C, the
legislature clearly indicated that such
appellate authority must of necessity be
a judicial authority. Since under the
Constitution the Courts being the
repository of the judicial power and the
officer presiding over the court derives
his designation from the nomenclature of
the court, even if the appointment is
made by the designation of the judicial
officer the appellate authority indicated
is the Court over which he presides
discharging functions under the relevant
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25
Code and placed in the hierarchy of
courts for the purposes of appeal and
revision. Viewed from this angle, the
Sessions Judge, though appointed an
appellate authority by the notification,
what the State Government did was to
constitute an appellate authority in
Sessions Court over which the Sessions
Judge presides. The Sessions Court is
constituted under the Code of Criminal
Procedure and indisputably it is an
inferior criminal court in relation to
High Court. Therefore, against the order
made in exercise of powers conferred by
Section 6C a revision application would
lie to the High Court and the High Court
would be entitled to entertain a revision
application under sections 435 and 439 of
the Code of Criminal Procedure 1898 which
was in force at the relevant time and
such revision application would be
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26
competent."
12. In the light of the clear pronouncement
of the Supreme Court and the Division Bench of
this Court, there is no substance in the
contentions of Mr.Godbole that the Judge deciding
election petition is persona designata.
13. In the light of the clear pronouncement
of this Court, whether the Limitation Act is
applicable to all proceedings before a Judge is
the larger issue that need not be considered.
The only question now remains is whether it would
apply to the election petitions under section 16
or not?
14. A bare perusal of Section 16 would show
that the said provision is inserted to question
qualification of any person declared to be
elected as a Councillor or validity of the
election itself. Various grounds on which the
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27
election petition can be filed are enunciated in
the provision itself. The election petition can
be filed by any person enrolled in the Municipal
Electoral Roll at any time within 10 days after
the election results are declared. Although,
marginal heading is election petition, in
sub-section 1 of section 16 itself, the
Legislature has taken care to word the proceeding
as an "application" to the Judge for
determination of the dispute or question
contemplated by sub-section 1 of section 16. In
sub-section 2 earlier, even the State Government
could have filed an application to a Judge within
one month after the result of the election has
been declared for declaration that the election
of returned candidate is void. Now the word
"State Government" in sub-section 2 has been
substituted by the word "State Election
Commissioner". Thus, not only the person
enrolled in the election roll but the Chief
Election Commissioner can question the election
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28
by resorting to subsection 1 or subsection 2 of
Section 16. The election cannot be questioned by
any other mode, except an election petition.
Sub-section 3 of section 16 states that the Judge
shall decide the application made under
sub-section 1 or 2 after holding an enquiry in
the manner provided by or under the B.P.M.C.
Act. It is not necessary to refer to the
explanation in Section 16 or the grounds on which
the elections could be questioned.
15. Chapter 26 of the B.P.M.C. Act is
entitled "Proceedings before the Judge,
Dist.Judge and Magistrate". Sub-heading 1
thereunder is "Election Enquiries". Section 403
and 404 following thereunder read thus:-
"403: Procedure in election inquiries:-
(1) If an application is made under
section 16 for a declaration that any
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29
particular candidate shall be deemed to
have been elected, the applicant shall
make parties to his application all the
candidates who were duly nominated for
the seat or seats in the ward in
question, whether or not the said
candidates have been declared elected,
and shall proceed against the candidate
or candidates declared elected;
(2) The applicant shall, whenever so
required by the Judge, deposit in the
Court a sum of five hundred rupees in
cash or Government Securities of
equivalent value at the market rate of
the day as security for any costs which
the applicant may be ordered to pay to
other parties to the said application;
(3) If, after making such inquiry as
he deems necessary, the Judge finds that
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30
the election of a returned candidate has
been procured or induced or the result of
the election has been materially affected
by any corrupt practice, or any corrupt
practice has been committed in the
interests of a returned candidate or the
result of the election has been
materially affected by the improper
acceptance or rejection of any nomination
or by reason of the fact that any person
nominated was not qualified or was
disqualified for election, or by the
improper reception or refusal of a vote,
or by the reception of a vote which is
void, or by any non-compliance with the
provisions of this Act or any rules made
thereunder relating to the election, or
by any mistake in the use of any
prescribed form, or the election has not
been a free election by reason of the
large number of cases in which bribery or
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31
undue influence has been exercised or
committed, he shall declare the election
of the returned candidate to be void and
if he does not so find he shall confirm
the election of the returned candidate.
(4) All applications received under
section 16 -
(a) In which the validity of the
election of councillors elected to
represent the same ward is in question
shall be heard by the same Judge, and
(b) in which the validity of the
election of the same councillor elected
to represent the same ward is in question
shall be heard together;
(5) If an application is made under
section 16 that any particular candidate
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32
(other than the candidate declared to
have been elected) shall be deemed to
have been elected, then the returned
candidate or any other party may give
evidence to prove that the election of
the person in whose favour such
declaration is sought would have been
void, if he had been declared elected and
an application had been presented calling
in question his election;
If the Judge is of opinion:-
(i) that in fact any candidate in
whose favour the declaration is sought
has received a majority of the valid
votes, or
(ii) that but for the votes obtained
by the returned candidate by corrupt
practices, such candidate would have
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33
obtained a majority of the valid votes;
the judge shall after declaring the
election of the returned candidate to be
void declare the candidate in whose
favour the declaration is sought, to have
been duly elected;
(6) The Judge’s order under this
section shall be conclusive;
(7) Every election not called in
question in accordance with the foregoing
provisions shall be deemed to have been
to all intents a good and valid election"
"404:- Disqualification for election as
councillor for certain election
offences:-
(1) If the Judge sets aside an
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34
election of a candidate on the ground
that a corrupt practice has been
committed in the interest of such
candidate, he shall declare such
candidate to be disqualified for the
purpose of any fresh election which may
be held under this Act;
(2) If in any proceedings under
section 16 the Judge finds that a corrupt
practice has been committed within the
meaning of that section by any person he
may, if he thinks fit, declare such
person to be disqualified for being
elected and for being a councillor for
such term of years not exceeding seven as
he may fix;"
16. A combined reading of section 16 and 403
and 404 leaves me in no manner of doubt that the
Legislature with a view to protect and preserve
purity of elections and democratic process has
inserted the provision providing for election
petition. The election process should be free
and impartial is the anxiety. Further, merely
because the election is over does not mean that
the results thereof cannot be questioned or
disputed. A person who has enrolled himself in
the Municipal Election Roll can call in question
the election itself or dispute qualifications of
person who has contested and is elected. It is
with this anxiety that in section 435, the
Legislature has taken care to provide that in
computing the period of limitation prescribed for
an appeal or application referred in Chapter 26,
the provisions of section 5, 12 and 14 of the
Limitation Act shall sofar as may be applied.
The word "referred to" appearing in section
435(1) demonstrates that the intent was to make
section 5, 12 and 14 of the Limitation Act
Applicable sofar as may be to the proceedings and
enquiries contemplated in the Chapter. Even
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36
section 434 and 436 are indicative of the
Legislature Intent. In such circumstances, it is
not proper to urge that section 5 of the Indian
Limitation Act would not apply to the election
petitions. Upon a plain reading of section 16
and sections 403 and 404 along with section 435
would make it clear that the Legislature did not
exclude applicability of sections 5, 12 and 14 of
the Limitation Act.
17. In the decision relied upon by Mr.Joshi,
The Supreme Court was considering an identical
controversy. Mr.Joshi’s reliance upon this
decision is appropriate. While referring to the
facts and the provisions in the Andhra Pradesh
Act, the Supreme Court in para 8, 11, 12 and 13
of this decision observed thus:-
"8. In this specific case, the High
Court, vide impugned order, made a
distinction between application and
petition to hold that the election
petition, under the Act, was not an
application referred to in Section 671 of
the Act. Neither the application, nor
the election petition is defined under
the Act. The dictionary meaning of the
word "application" is : (1) a formal
request to an authority, (2) the action
of putting something into operation,
practical use or relevance, (3) the
action of applying something to a
surface, (4) sustained effort (5)
computing a program or piece of software
designed to fulfil a particular purpose".
The word "application" could be
understood in a generic sense as a prayer
made to an authority for some relief to
set aside an order of another authority."
"9. This Court in Prem Raj Vs. Ram
Charan (A.I.R. 1974 S.C.968) observed
that the plaint, which makes a request to
the Court, is an application. However,
written statement was held not to be an
application because it does not include
any request to the Court."
"11. We have no doubt in holding that
the word "application", as used in
Section 671 of the Act, would include
within its ambit an election petition
wherein a voter or the candidate makes
the prayer to the Court and seeks the
redressal of his grievances regarding the
conduct of the elections. Holding
election petition not to be covered
within the term "application" would
amount to adopting a hyper-technical
approach which would defeat the very
purpose of the Act and the provisions
made therein for disputing the
authenticity and the conduct of the
election. To overcome the confusion
regarding the definition between the
application and the petition, a new
definition of an application was inserted
in the Limitation Act, 1963 which defined
it to include a petition. The object of
the new definition is to provide a period
of limitation for original applications,
interlocutory applications and petitions
under special law, to which the Act has
been made applicable."
"12. In our considered opinion the
High Court was not justified in holding
that the election petition was not an
application within the meaning of Section
671 of the Act. Sub-section 2 of Section
71 of the Act specifically provides the
period of limitation for filing the
election petition for which sub-section 1
of section 671 of the Act would be
applicable to attract the sub-section (2)
of Section 71 thereby applying the
provisions of section 5 of the Limitation
Act to the election petitions filed under
the Act."
"13. We do not agree with the
submissions made on behalf of the
respondent that no period of limitation
is prescribed for the election petition
and that the provisions of sub-section
(2) of Section 671 would be attracted
excluding the applicability of Section 5
of the Limitation Act. The harmonious
interpretation of various provisions of
the Act would clearly show that the
election petition was intended to be
taken, by the Legislature, as an
application for the purposes of
limitation in terms of Section 671.
Taking any other view would defeat the
very purpose of the enactment providing
for filing of an election petition
calling in question any elections on the
grounds specified under the Act. The
remedy provided under a statute cannot be
defeated under the cloak of
technicalities by adopting a
hyper-technical approach. The free and
fair elections are a guarantee of the
democratic polity and for achieving such
an objective various provisions are made
applicable to the election laws, most
important of which is the remedy of
challenging the elections on the grounds
specified under the statute. In the
absence of the applicability of Section 5
of the Limitation Act, the rights of the
aggrieved person, intended to challenge
an election, can be defeated by the
executive of the State by not appointing
the Election Tribunal as is shown to have
been done in the instant cases. In the
appeal filed by the Gogineni Sujatha, it
is not disputed that the Election
Tribunal was constituted after the expiry
of period of limitation prescribed for
filing an election petition. Similarly
in the case of Shaikh Saidulu alias Saida
sufficient time was allowed to lapse
preventing the filing of the election
petition for no fault of the appellant.
Can an interpretation be accepted which
facilitates the defeating of purpose of
the Act? The answer is emphatically,
No."
18. These observations of the Supreme Court
while dealing with identical provisions are
binding upon me. No decision of the Hon’ble
Supreme Court has been brought to my notice
taking a contrary view. In fact, the Supreme
Court decision applies with full force.
Although, the learned Judge while passing the
impugned order has not referred to this decision,
this decision is squarely applicable. The
Supreme Court has observed that the word
"application" appearing in relevant provisions of
the Hyderabad Municipal Corporation Act so also
the provisions which are pari materia to section
435 would make Limitation Act applicable. In
such circumstances, by resorting to section 5,
the delay should have been condoned is the
conclusion of the Supreme Court.
19. It is not proper to ignore this
authoritative pronouncement as suggested by
Mr.Godbole. This decision fully covers the
controversy before me. Merely because there are
several headings under Chapter 26 does not mean
that the Supreme Court decision or section 435 of
B.P.M.C. Act would become inapplicable. It is
not necessary to enter into any larger
controversy as to whether to all proceedings
contemplated under Chapter 26, the Indian
Limitation Act and the provisions referred to in
section 435 or C.P.C. would be applicable.
Suffice it to state that insofar as election
petitions contemplated by section 16 are
concerned, the same are squarely covered and fall
within sub-section 1 of section 435 of the Act.
20. In this view of the matter, learned Judge
was fully empowered to take cognisance of the
application preferred by the first respondent,
seeking condonation of delay of 32 days in filing
election petition. As set out above, it is not
the contention of Mr.Godbole that no sufficient
cause was made out. Thus, on facts the impugned
order has not been questioned. It is only the
lack of power that was put in issue. That being
squarely and fully covered by the decision of the
Supreme Court (supra), there is no substance in
the writ petition.
21. Rule is accordingly discharged. However,
there shall be no costs. Ad-interim order passed
by this Court on 1st November 2007 stands
vacated.
22. At this stage Mr.Arjunwadkar for
petitioner prays for continuation of the
ad-interim order. The said request is opposed by
the first respondent. However, since a pure
legal issue is involved, it would be in the
interest of justice to continue the ad-interim
order for a period of eight weeks from today.
Ad-interim order is continued for twelve weeks
from today Needless to state that no extention
would be granted. Learned Judge to thereafter
proceed with the election petition on merits and
in accordance with law. Petition dismissed. No
costs.
(S.C.Dharmadhikari, J)
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