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TMI Blog2015 (9) TMI 1648X X X X Extracts X X X X X X X X Extracts X X X X ..... or of the Bruhan Mumbai Municipal Corporation from Ward No.76 is within the period of limitation prescribed under Section 33 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "the Act"). 3. In order to appreciate the issue involved in this appeal, it is necessary to state a few relevant facts: (a) The election schedule for General Election 2012 of Councilors under the Act was published by Notification dated 02.02.2012 declaring the date of poll as 16.02.2012 and counting of votes on 17.02.2012. The said Notification also declared that the list of elected candidates along with total number of valid votes polled by them will be published in the Government Gazette on or before 21.02.2012 as required under the provisions of Sections 10, 28(k) and 32 of the Act. (b) The appellant and respondent No.1 herein contested the election from Ward No.76 for Municipal Corporator. The election was held on 16.02.2012 and after counting, which took place on 17.02.2012, the Election Officer declared the appellant herein to have been elected as a Municipal Corporator from Ward No.76. A certificate to that effect was also issued by the Election Officer in favour of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Chief Judge. The High Court also held that the election petition filed by respondent No.1 herein is within limitation as prescribed under Section 33 (1) of the Act. (e) Against the said judgment, the present appeal has been filed by way of special leave. 4. Heard Mr. Vinay Navare, learned counsel for the appellant and Mr. Sudhanshu S. Choudhari, learned counsel for respondent No.1, Ms. Jayashree Wad, learned counsel for respondent No.2 and Mr. Vijay Kumar, learned counsel for respondent No.3. 5. Learned Counsel for the appellant while assailing the legality and correctness of the impugned order reiterated the submissions, which were urged by him before the Courts below. According to the learned counsel, both the Courts below erred in holding that the election petition filed by respondent No. 1 herein (election petitioner) is within limitation as prescribed under Section 33 (1) of the Act. In other words, it was his submission that both the Courts below should have held that the election petition filed by respondent No. 1 herein was beyond the period of limitation and in consequence was liable to be dismissed as being barred by limitation. 6. Elaborating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on filed by the election Petitioner (respondent no. 1) on 28.02.2012 was within limitation and hence was rightly held to be within time for being tried on merits. 9. Having heard the learned Counsel for the parties and on perusal of the record of the case including their written submissions, we find force in the submissions of the learned counsel for the appellant. 10. The question which arises for consideration in this appeal is 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? 11. Section 28 (k) and Section 33 (1) of the Act, which are relevant for deciding the aforesaid question, read as under: " Section 28 (k) (k) the State Election Commissioner shall, as soon as may be, declare the result of the poll, specifying the total number of valid votes given for each candidate, and shall cause lists to be prepared for each ward, specifying the name of all candidates, and the number of valid votes given to each candidate. In accordance with such rules as the State Election Commissioner may frame for the purpose and on payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad Section 28 (k) of the Act. 14. Section 28 (k) of the Act provides that the State Election Commissioner shall, as soon as may be, declare the result of the poll, specifying the total number of the valid votes given for each candidate and shall cause lists to be prepared for each ward, specifying the names of all candidates and the number of valid votes given to each candidate. It also confers power on the State Election Commissioner to frame Rules for payment of such fee as may be prescribed by him for supply of a copy of such list to any candidate of the ward and for its inspection by any voter of the ward. 15. It is pertinent to mention here that till date the State Election Commissioner has not framed any Rules as required under Section 28 (k) of the Act. 16. Section 29 empowers the State Government to frame rules for the conduct of election on the subjects specified in clause (a) to (i). In addition, the State is also empowered to make rules on other subjects regarding conduct of election as it may think proper. The State has accordingly framed rules called Municipal Corporation of Greater Mumbai Conduct of Election Rules 2006. 17. Rule 2 (q) of the Rules defines " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Para 23 has held that the list was prepared by the Returning Officer immediately after the declaration of the result of the election on 17.02.2012 and it satisfied all the requirements of Section 28 (k) of the Act. The High Court therefore held that the list was issued under Section 28 (k) of the Act. 22. We are in agreement with this finding of the High Court as in our opinion also, the list prepared by the Returning Officer on 17.02.2012 was in conformity with all the requirements specified in Section 28 (k) of the Act. 23. The next question that needs to be examined is on which date such list was available for sale or inspection to the voter of the ward. To decide this question, we consider it apposite to read the evidence adduced by the parties on this issue in the affidavits. 24. This is what the appellant (respondent No. 3 in the election petition) said on affidavit on this issue: "5. I say that the Election Result of Ward No. 76 of Mumbai Municipal Corporation was declared by the Returning Election Officer on 17th Feb. 2012 at about 12.30 p.m. I say that after the counting was over the Election officer prepared list of votes polled by each contesting candidate as pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 1 Corporation by its letter dated 28.02.2012 informed my advocate that Gazette Notification under Section 10 to 32 of the MMC Act was published in Government Gazette on 21.02.2012. I hereby produce original letter dated 28.02.2012 addressed by the Dy. Election Officer attached to the respondent No. 1 as Document No.1, I, therefore, pray that the said letter issued by the respondent No. 1 through its Dy. Election Officer be read into as evidence in relation to the preliminary issue framed by this Hon'ble Court. 4. I thus, say that the Respondent No. 1 notified result of the election in the Official Gazette by its Notification dated 21st February, 2012 as required under Section 28 (k) of the Municipal Corporation of Greater Mumbai. 5. I, therefore, say that since the above-said Gazette Notification was published on 21.02.2012, election petition filed by me is within limitation considering Section 33(1) of the said Act." 26. After reading the aforesaid two statements of the parties, we have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official gazette as provided in Section 10 read with Section 32 of the Act and hence 10 days will have to be counted from 21.02.2012. Learned counsel, thus submitted that the election petition filed by respondent No.1 on 28.02.2012 was within limitation because 10 days period prescribed under Section 33 (1) ended on 02.03.2012. 29. We do not agree with this submission. It is, in our opinion, wholly misplaced in the facts of this case. Firstly, Section 33 (1) only mentions Section 28 (k) and does not refer to any other section much less Section 10 or/and 32 for deciding the issue of limitation. In other words, Section 33 (1) is controlled by Section 28 (k) only and not by any other section of the Act for deciding the issue of limitation. Secondly, if the intention of the legislature was to calculate the period of limitation from the date of issuance of Official Gazette as provided in Section 10 and/or Section 32, as contended by the learned counsel for respondent No.1, then instead of mentioning Section 28 (k), the legislature would have mentioned Section 10 and/or Section 32 in Section 33(1) of the Act. However, it was not done. The legislative intention, therefore, appears to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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