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2015 (9) TMI 1648 - SUPREME COURTAppellant’s election as a Councilor of the Bruhan Mumbai Municipal Corporation from Ward No. 76 - Time limitation prescribed under Section 33 of the Mumbai Municipal Corporation Act, 1888 - whether the election petition filed by respondent No.1 against the appellant under Section 33 (1) of the Act before the Chief Judge is within limitation as prescribed under Section 33 (1) of the Act? Held that:- The period of 10 days prescribed for filing the election petition begins from "the date" on which the list prescribed under clause (k) of Section 28 of the Act was available for sale or inspection. In other words, the starting point of limitation for filing the election petition for counting 10 days is “the date" on which the list prescribed under clause (k) of Section 28 of the Act was available for sale or inspection. Therefore, in order to see as to when the list was prepared and made available for sale or inspection, it is necessary to read Section 28 (k) of the Act - if the State Election Commissioner has failed to frame the Rules for proper implementation of the functions set out in Section 28 (k) of the Act and due to that reason, there appears to be some kind of ambiguity noticed in its interpretation, then, such provision should be interpreted as far as possible in a manner which may benefit the elected candidate rather than the election petitioner. On which date such list was available for sale or inspection to the voter of the ward? - Held that:- There is no hesitation in holding that the list prescribed under Section 28 (k) was made available to all the parties including the voter of the ward in question on 17.02.2012 by the Returning Officer - the list prescribed under Section 28(k) was available for inspection and sale to the voters of the ward in question on 17.02.2012. In view of this finding, the limitation to file election petition would begin from 17.02.2012 and it will be up to 27.02.2012. In other words, period of limitation of 10 days prescribed for filing the election petition in Section 33 (1) of the Act would begin from 17.02.2012 and it would be up to 27.02.2012. The legislative intention, appears to be clear leaving no ambiguity therein by including Section 28 (k) only and excluding Section 10 and 32 in Section 33 (1). The election petition filed by respondent No.1 out of which this appeal arises was barred by limitation and hence it should have been dismissed as being barred by limitation.
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