A combined reading of sections 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 sections 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 sections 5, 12 and 14 of the Limitation Act Applicable sofar 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.{Para 16}
Bombay High Court
(Before Dharmadhikari S.C., J.)
Yogesh Mangalsen Bahai Vs Rajesh Chimanrao Wable
Writ Petition No. 8170 of 2007
Decided on January 10, 2008
Citation: 2008 SCC OnLine Bom 12 : (2008) 5 Bom CR 243
The Judgment of the Court was delivered by
Dharmadhikari S.C., J.:— Rule. Respondents waive service. By consent rule made returnable forthwith. Heard Counsel for respective parties.
2. By this petition under Articles 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. 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 “B.P.M.C. 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.
3. 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.
4. Mr. Godbole, learned Counsel appearing for petitioner questions this order on the ground 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 vaiuation 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 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 subheadings 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.
5. 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 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 v. Chukka Yesu Ratnam)1, reported in 2002 DGLS (soft) 89 : (2002) 3 SCC 130 : A.I.R. 2002 S.C. 749 : (2002) 3 SCC 130.
6. 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.
7. Mr. Godbole sought to urge that the application is before a Judge. The Judge is, therefore, persona designala. That is not an application to the Court. In any event, therefore, the provisions of the Limitation Act would not apply.
8. 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 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;
(2-A) No election to any Corporation 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 sections 5, 12 and 14 of the Indian Limitation Act, 1908 shall, so far as may be, apply;
(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 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.”
9. The last contention of Mr. Godbole, that need not detain me. In the case reported in 1999 (1) Bom.C.R. 212 : 1998 (3) Mh.L.J. 829, (Dayaram Tulshiram Rajguru v. Mamasaheb @ Balctsaheb Bhimrao Janrao)2, 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 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 v. Dwarka Prasad)3, reported in 1961 DGLS (soft) 19 : A.I.R. 1961 S.C. 606 and it reads as under:—
“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. Osbom, 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 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 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:—
(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 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 105-F specifically states as under:—
“105-F. An appeal shall lie from every order of the Commissioner, made in respect of any Corporation premises, under section 105-B or section 105-C, 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.”
10. In all the abovereferred clauses, while 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 Navalkcur v. Mrs. Sarojini Naidu)4, reported in (1923) 25 Bom.L.R. 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 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 v. Union of India)5, reported in 1994 DGLS (soft) 943 : (1994) 6 SCC 731. 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 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 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. v. State of Madhya Pradesh)6, reported in 1978 B.C.I. 5 : 1977 DGLS (soft) 302 : (1978) 1 SCC 27 : A.I.R. 1978 S.C. 1 : (1978) 1 SCC 27, 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 6-C, 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 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 6-C 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 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 perpona 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 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 by resorting to sub-section (1) or sub-section (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”. Sections 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 particular candidate shall be deemed to Rave 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 the election of a returned candidate has been procured or induced or the result of the election has beet, 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 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 (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 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 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 sections 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 sections 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 sections 5, 12 and 14 of the Limitation Act Applicable sofar 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 in paras 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 v. Ram Charan)7, 1974 DGLS (soft) 84 : (1974) 2 SCC 1 : A.I.R. 1974 S.C. 968 : (1974) 2 SCC 1 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 hypertechnical 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. Rule is accordingly discharged. However, there shall be no costs. Ad interim order passed by this Court on 1st November, 2007 stands vacated.
21. 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.
22. Petition dismissed.
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