relying upon the aforesaid statement, made attempt
to contend that the limitation would begin, as held
by the High Court in her favour from 21.02.2012,
for filing election petition which is the date on which
the election results were declared and then were
published in the 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 clear leaving no ambiguity therein by
including Section 28 (k) only and excluding Section
10 and 32 in Section 33 (1).
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 6848 OF 2015
(ARISING OUT OF SLP (C) No. 6244/2015)
Smita Subhash Sawant …….Appellant(s)
VERSUS
Jagdeeshwari Jagdish Amin & Ors. ……Respondent(s)
Citation;AIR 2016 SC 1409
2. This appeal is directed against the final
judgment and order dated 09.02.2015 passed by
the High Court of Judicature at Bombay in Writ
Petition No. 9388 of 2014 which arises out of
1Page 2
judgment and order dated 24.09.2014 passed by
the Court of Small Causes at Bombay in Municipal
Election Petition No. 129 of 2012 holding that the
election petition filed by respondent No.1 herein
questioning the appellant’s election as a Councilor
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
2Page 3
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 appellant herein in Form No. 21-C as
per Rule 103 of Municipal Corporation of Greater
Mumbai conduct of Election Rules 2006 (hereinafter
referred to as ‘the Rules’) on 17.02.2012. Thereafter
on 21.02.2012, the Municipal Commissioner
published the Official Gazette declaring the names
3Page 4
of the candidates elected from all the 227 wards of
the Municipal Corporation with the names of their
political parties and the votes polled by them as per
Section 10 and Section 32 (i) of the Act and Rule
104 of the Rules.
(c) Challenging the election of the appellant
herein, on 28.02.2012, respondent No.1 filed
Election Petition No. 129 of 2012 in the Court of
Chief Judge, Small Causes Court, Mumbai. After
service of notice, the appellant herein appeared
before the Chief Judge and filed written statement
contesting inter alia on the ground that the said
election petition filed by respondent No.1 herein was
barred by limitation as provided in Section 33 (1) of
the Act. According to the appellant, the election
petition was required to be filed within 10 days from
the date on which the list prescribed under clause
(k) of Section 28 was available for sale or inspection
4Page 5
as provided in Section 33 (1) of the Act. It was
contended that since in this case, the list was
published and was available for sale or inspection
on 17.02.2012, hence, the limitation to file election
petition was up to 27.02.2012 as prescribed under
Section 33 (1) of the Act whereas the election
petition was filed on 28.02.2012 by the election
petitioner. It was, therefore, barred by limitation
and hence liable to be dismissed as being barred by
time. She also filed an application before the Chief
Judge praying for framing the issue of limitation as
a preliminary issue. Initially, the Chief Judge had
rejected the said application but thereafter by order
dated 30.07.2013 issued direction to try the said
issue as a preliminary issue. After hearing the
parties, by judgment and order dated 24.09.2014,
the Chief Judge held that the election petition was
within limitation. He accordingly entertained the
5Page 6
election petition filed by respondent No.1 herein for
being tried on merits.
(d) Aggrieved by the said judgment, the appellant
herein approached the High Court of Bombay by
way of W.P. No. 9388 of 2014. By judgment and
order dated 09.02.2015, the learned Single Judge of
the High Court dismissed the petition and upheld
the judgment 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.
6Page 7
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 aforementioned submissions,
learned counsel contended that in order to decide
the question of limitation and how it will apply to
the facts of the case in hand, two Sections are
7Page 8
relevant, namely, Section 33 (1) and Section 28 (k)
of the Act. Learned counsel contended that Section
33 (1) prescribes limitation of 10 days for filing the
election petition and the period of 10 days has to be
counted from the date on which the list prescribed
under Section 28 (k) of the Act is available for sale
or inspection.
7. Learned counsel pointed out that the election
in question was held on 16.02.2012 and counting of
votes was done on 17.02.2012 followed by
declaration of election result declaring the appellant
to have won the election and finally issuance of
certificates of the election result as required under
Rule 103 of the Rules in the prescribed format
(Form No. 21-C) were given to the appellant herein
and the election petitioner (respondent No. 1 herein)
on the same day, i.e., 17.02.2012 by the Returning
Officer. Similarly, it was pointed out that the list of
8Page 9
the ward was also made available for sale or/and
inspection on 17.02.2012 to all including the
candidates immediately after declaration of result
and handing over the certificates in Form No. 21-C
to both the candidates by the Returning Officer.
Learned counsel thus contended that in the light of
these admitted facts, the limitation to file Election
Petition began from 17.02.2012 as prescribed under
Section 33 (1) and ended on 27.02.2012. Since the
election petition was filed by respondent No.1 on
28.2.2012, it was liable to be dismissed as being
barred by limitation.
8. In reply, learned counsel for respondent No. 1
while supporting the reasoning and the conclusion
of the High Court, contended that the view taken by
the High Court is just and proper and hence it does
not call for any interference by this Court. It was his
submission that the limitation to file election
9Page 10
petition began from 21.02.2012, this being the date
on which the gazette publication of election results
in the official Gazette was published by the Election
Commissioner as required under Section 10 read
with Section 32 of the Act and Rule 104 of the
Rules. According to learned counsel, 10 days’ period
prescribed for limitation therefore began from
21.02.2012 and ended on 02.03.2012. Learned
counsel, therefore, urged that the election petition
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.
1Page 11
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 of such fee
as may be prescribed by him a copy of such
list shall be supplied to any candidate of the
ward and shall be available for inspection to
any voter of the ward.
1Page 12
Section 33 (1)
Election petitions to be heard and disposed of
by Chief Judge of the Small Cause Court.
(1) If the qualification of any person declared
to be elected for being a councilor is
disputed, or if the validity of any election is
questioned, whether by reason of the
improper rejection by the State Elections
Commissioner of a nomination or of the
improper reception of refusal of a vote, or for
any other cause or if the validity of the
election of a person is questioned on the
ground that he has committed a corrupt
practice within the meaning of section 28F,
any person enrolled in the municipal election
roll may, at any time, within ten days from
the date on which the list prescribed under
clause (k) of section 28 was available for sale
or inspection apply to the Chief Judge of the
Small Causes Court. If the application is for
a declaration that any particular candidate
shall be deemed to have been elected, the
applicant shall make parties to his
application all candidates who although not
declared elected, have, according to the
results declared by the State Election
Commissioner under section 32, a greater
number of votes than the said candidate, and
proceed against them in the same manner as
against the said candidate.
(emphasis supplied) ’’
12. The question is – what is the true meaning of
the words "any person enrolled in the municipal
election roll may, at any time, within ten days
1Page 13
from the date on which the list prescribed under
clause (k) of section 28 was available for sale or
inspection apply to the Chief Judge of the Small
Causes Court” occurring in Section 33 (1) of the
Act.
13. A plain reading of the aforementioned words
shows 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.
1Page 14
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,
1Page 15
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 “Returning
Officer” as an Officer appointed as such under Rule
3. Rule 3 enables the Municipal Commissioner
designate to nominate any officer of the State
Government not below the rank of Deputy Collector
or of the Corporation not below the rank of
Assistant Municipal Commissioner as the Returning
Officer for the purpose of conducting the election.
Rule 103 provides that the Returning Officer shall
complete and certify the return of election in Form-
21 C and send the signed copies thereof to the
Municipal Commissioner and State Election
Commissioner. Rule 104 inter alia provides for
1Page 16
grant of certificate of election to returned candidate
as required under Section 32 and also empowers
the State Election Commission to publish the result
in the Official Gazette.
18. At the outset, we consider it apposite to state
that 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 in our
considered opinion, such provision should be
interpreted as far as possible in a manner which
may benefit the elected candidate rather than the
election petitioner.
19. This Court in Anandilal and another vs. Ram
Narain and others [AIR 1984 SC 1383] had the
occasion to construe Section 15 of the Limitation
Act. While construing the said section, the learned
1Page 17
Judge A.P. Sen J. speaking for the Bench observed
in para 10 “It is also true that in construing statutes
of limitation considerations of hardship and anomaly
are out of place. Nevertheless, it is, we think,
permissible to adopt a beneficent construction of a
rule of limitation if alternative constructions are
possible.’’ Our observations made above are also in
line keeping in view this principle.
20. This we have said because we find that the
High Court in Para 30 has held that since no rules
have been framed and there appears to be some
ambiguity in applying Section 28 (k), therefore, in
such circumstances while interpreting such
provision, its benefit must go to the election
petitioner (defeated candidate) rather than to the
elected candidate. We do not agree with the High
Court on this issue as in our opinion it should be
the other way round as held by us supra.
1Page 18
21. On perusal of the impugned judgment, we find
that the High Court 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
1Page 19
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 prescribed under
clause (k) of section 28 of Mumbai Municipal
Corporation Act which is a same list annexed
hereto as Exhibit A and also annexed as
Exhibit E of the Election Petition. I say that
the said Election result as contemplated
under section 28 (k) of MMC Act was available
for sale and inspection since 17th Feb. 2012.
I say that the Petitioner and his election
Agent and his Counting Agents who were
present in the counting Hall during Counting
of votes, took inspection of the Election
Result declared by the Returning/Election
officer I prepared as per Section 28 (k) of the
MMC Act. I say that thereafter the copy of
the Election Result was taken by the
Petitioner on 17.02.2012 itself which is
annexed as Exhibit E to the Election Petition.
6……………………………………………………………
………………………………………………………………
…
7. I say that on the date of counting i.e.
on 17.02.2012, I was present in the counting
hall and the Petitioner was also present in
counting hall with her Election Agent and
counting Agents. I further say that after
counting was completed on the same day, the
concerned election officer had published the
1Page 20
Election Result as prescribed under section
28 (k) of the MMC Act and gave inspection
and copies of the Result to all the candidates
present on 17.02.2012. I say that the
Petitioner himself took the inspection of the
result on the same day i.e. 17.02.2012 and
thereafter collected the copy of the Result
sheet as declared by the Election officer
under section 28 (k) of the Mumbai Municipal
Corporation Act. The copy of the same is
filed by the Petitioner and marked as exhibit
“E” to the election petition.”
25. So far as the election petitioner is concerned,
she did not deny much less categorically the
statement of the appellant quoted above in her
affidavit and instead said as under:
“3. I say that in so far as preliminary issue
framed by this Hon’ble Court in regard to the
limitation is concerned, I say that result of
the Municipal Elections in question was
declared on 17.02.2012. My advocate,
thereafter, had taken up the matter with the
Respondent No. 1 Corporation so as to
ascertain as to when, the list prescribed
under clause (k) of section 28 has been made
available for sale and inspection by his letter
dated 23.02.2012. Accordingly, the Deputy
Election Officer of Respondent 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
2Page 21
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
Officer. This we say so for the reasons that firstly,
there is no ground much less sufficient ground to
disbelieve the sworn testimony of the appellant
wherein she said that the appellant and respondent
2Page 22
No.1 herein (election petitioner) including their
voting agents and other persons were throughout
present in-person on 17.02.2012 during counting of
votes. Indeed, counting of votes is always done in
presence of the candidates and their agents and in
this case also it was done in presence of the
candidates, who contested the election. Secondly, as
soon as the results were announced on 17.02.2012,
the appellant and respondent No.1 herein were
given their respective certificates in Form-21C as
prescribed in Rule 103 of the Rules by the
Returning Officer. Thirdly, respondent No.1 herself
inspected the list prepared by the Returning Officer,
which she could not do unless the list was made
available for inspection on 17.02.2012 by the
Returning Officer. Fourthly, the Returning Officer
could not have announced the results unless he
had first prepared the list specifying therein the
necessary details which were required for declaring
the result of election and lastly, there was no reason
for not making the list available to the voter on
17.02.2012 and keep withholding when it was
prepared on that day itself by the Returning Officer
for declaration of the result of the election.
27. When we read the statement of respondent No.
1(election petitioner) extracted supra, we find that
she did not deny her presence on the whole day on
17.02.2012 nor she denied what was specifically
stated by the appellant in her affidavit. All that
respondent No.1 herein said was that on
23.02.2012, her advocate wrote a letter to the
Corporation as to when the list would be available
and the Corporation by letter dated 28.02.2012
informed her that the Gazette Notification under
Sections 10 and 32 of the Act was published on
21.02.2012. On this basis, respondent no. 1
claimed that limitation to file election petition would
begin from 21.02.2012 and not from 17.02.2012.
28. Learned counsel for respondent No.1, therefore
relying upon the aforesaid statement, made attempt
to contend that the limitation would begin, as held
by the High Court in her favour from 21.02.2012,
for filing election petition which is the date on which
the election results were declared and then were
published in the 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 clear leaving no ambiguity therein by
including Section 28 (k) only and excluding Section
10 and 32 in Section 33 (1).
30. It is a settled principle of rule of interpretation
that the Court cannot read any words which are not
mentioned in the Section nor can substitute any
words in place of those mentioned in the section
and at the same time cannot ignore the words
mentioned in the section. Equally well settled rule
of interpretation is that if the language of statute is
plain, simple, clear and unambiguous then the
words of statute have to be interpreted by giving
them their natural meaning. [See. Interpretation of
statute by G.P. Singh 9th Edition page 44/45]. Our
interpretation of Section 33 (1) read with Section 28
(k) is in the light of this principle.
31. We accordingly, hold that 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.
32. It was, therefore, necessary for respondent
No.1 (election petitioner) to have filed the election
petition on any day between 17.02.2012 to
27.2.2012. Since the election petition was filed on
28.02.2012, a date beyond 27.02.2012, it was liable
to be dismissed as being barred by limitation. In the
absence of any provision made in the Act for
condoning the delay in filing the election petition,
the Chief Judge had no power to condone the delay
in filing the election petition beyond the period of
limitation prescribed in law. Indeed, no such
argument was advanced by the learned counsel for
respondent No.1 in this regard.
33. Before parting with the case, we consider it
appropriate to observe that the State Election
Commissioner would be at liberty to frame Rules
under Section 28 (k) for its proper implementation.
Indeed, when the legislature has conferred a rule
making power on the specified authority for proper
and effective implementation of Section 28 (k) then
in our opinion, such power should be exercised by
the State Election Commissioner within reasonable
time by framing appropriate Rules.
34. In view of the foregoing discussion, we cannot
agree with the reasoning and the conclusion arrived
at by the two courts below when both proceeded to
hold that the election petition filed by respondent
No.1 on 28.02.2012 was within limitation. We
accordingly hold that 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.
35. The appeal is accordingly allowed. Impugned
judgment is set aside. As a consequence, Election
Petition No.129 of 2012 filed by respondent No.1 is
dismissed as barred by limitation. There shall be no
order as to costs.
………...................................J.
[J. CHELAMESWAR]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
September 04, 2015.
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