TMI Blog2008 (1) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndoned. Mr. Joshi in support of his contentions relies upon a decision of the Supreme Court in the case of (Shaikh Saidulu @ Saida v. Chukka Yesu Ratnam and Ors.) reported in [2002]1SCR403 . 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. Section 5 : (Limitation Act): 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 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 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 1999(1)BomCR212 , (Dayaram Tulshiram Rajguru v. 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: 7. Section 2(29) of the Bombay Provincial Municipal Corporation Act, 1949, defines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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: (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 specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Union of India) reported in (1994)6SCC731 . If the proceedings at the trial stage were to be intended 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertain 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 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 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 electio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Sections 5, 12 and 14 of the Limitation Act shall so far as may be applied. The word referred to appearing in Section 435(1) demonstrates that the intent was to make Sections 5, 12 and 14 of the Limitation Act Applicable so far as may be to the proceedings and enquiries contemplated in the Chapter. Even Sections 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 extension would be granted. Learned Judge to thereafter proceed with the election petition on merits and in accordance with law. Petition dismissed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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