Writ Petition No.3817 of 2017

26th April, 2018.

Petitioner Counsel: Shri N.R. BHISHIKAR
Respondent Counsel: Shri C.S. KAPTAN, Sr. Adv. with Shri P.S. CHAWHAN, Shri H.R. DHUMALE

Cases Cited:
Mukri Gopalan Vs. Cheppilat Puthanpurayil Aboobacker, 1995 ALLMR ONLINE 1236 (S.C.) : (1995) 5 SCC 5 [Para 5,8]
P. Sarathy Vs. State Bank of India, (2000) 5 SCC 355 [Para 5]
Karnataka State Financial Corporation Vs. Deputy Commissioner for Transport, Bangalore and ors., AIR 2010 Karnataka 91 [Para 5]
Hukumdev Narain Yadav Vs. Lalit Narain Mishra, 1973 ALLMR ONLINE 597 (S.C.) : (1974) 2 SCC 133 [Para 6,8]
Smita Subhash Sawant Vs. Jagdeeshwari Jagdish Amin and ors., 2015(5) ALL MR 962 (S.C.)=(2015) 12 SCC 169 [Para 6,9]
Pratik Prakashbapu Patil Vs. Maruti Mura Vagare and ors., 2012(4) ALL MR 123=2012 (5) Mh.L.J.86 [Para 6,8]
Atharoddin s/o. Mujroddin Kazi Vs. Rajendra s/o Ramchandra Indrale and ors., 2008(6) ALL MR 769=2008 (6) Mh.L.J. 322 [Para 6,9]
Nisar Ahmad Ibrahim Khan Vs. Deolali Cantonment Board and ors., 1987 ALLMR ONLINE 775 (S.C.) : AIR 1988 SC 290 [Para 7]
Reji Thomas and ors. Vs. The State of Kerala and ors., Civil Appeal No.4001/2018, Dt.19.04.2018, (SC) [Para 10]

JUDGMENT

JUDGMENT :- Rule.

Heard finally with consent of learned counsel for the parties.

The question that arises for determination in this writ petition is whether the delay in filing an election petition under Section 21 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, the said Act) can be condoned by the Court trying the election petition ?

2. The respondent No.1 had contested elections to Municipal Council Pauni in the month of December 2016. She was elected as per results that were declared on 23/12/2016. The petitioners who are electors and whose names are found in the voters' list challenged the election of the respondent No.1 by filing election petition under Section 21 of the said Act on 09/01/2017. Along with the election petition an application for condonation of delay was filed. According to the petitioners the results were published in the Official Gazette on 23/12/2016. After making an application for supply of relevant documents and on receiving the same, the proceedings were filed on 09/01/2017. It was thus prayed that the delay of eight days in filing the election petition under Section 21 of the said Act be condoned.

3. The respondent No.1 filed her reply and opposed the application on the ground that there was no provision empowering the Court to condone delay in filing the election petition.

4. The trial Court by the impugned order upheld that objection and dismissed the application as well as the proceedings on the ground that delay in filing the election petition could not be condoned. Being aggrieved the present writ petition has been filed.

5. Shri N. R. Bhishikar, learned counsel for the petitioners submitted that in absence of any specific bar to condone delay in filing an election petition under Section 21 of the said Act, it could not be said that the provisions of Section 29(2) of the Limitation Act, 1963 (for short, the Act of 1963) were excluded. The provisions of Sections 5 to 24 of the Act of 1963 were applicable and delay as caused could be condoned. The election petition was in the nature of an application to the civil Court and therefore the civil Court had the power to condone delay. According to him as per provisions of Section 21(7) of the said Act, powers conferred on the civil Court were specified. This would therefore include the power to condone delay. He thus submitted that the trial Court erroneously held that it had no power to condone delay. In that regard the learned counsel placed reliance on the following decisions :

i) Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5 : [1995 ALLMR ONLINE 1236 (S.C.)].

ii) P. Sarathy vs. State Bank of India, (2000) 5 SCC 355.

iii) Karnataka State Financial Corporation vs. Deputy Commissioner for Transport, Bangalore and ors., AIR 2010 Karnataka 91.

6. Shri C. S. Kaptan, learned Senior Advocate for respondent No.1 supported the impugned order. According to him in absence of any specific provision conferring power on the civil Court to condone delay in filing the election petition, such delay was not liable to be condoned. He submitted that the remedy of filing an election petition was specifically conferred by Section 21 of the said Act and the provisions in that regard were in the nature of a Code in itself. There being no power conferred to condone delay, the civil Court rightly declined to condone the same. Referring to the provisions of Section 87 of the Representation of the People Act, 1951 it was submitted that the said provisions were in pari materia with Section 21 of the said Act. In view of the judgment of the Honourable Supreme Court in Hukumdev Narain Yadav vs. Lalit Narain Mishra, (1974) 2 SCC 133 : [1973 ALLMR ONLINE 597 (S.C.)], there was no question of the power to condone delay in filing the election petition being invoked by the civil Court. He also referred to the decisions in Smita Subhash Sawant vs. Jagdeeshwari Jagdish Amin and ors. (2015) 12 SCC 169 : [2015(5) ALL MR 962 (S.C.)], Pratik Prakashbapu Patil vs. Maruti Mura Vagare and ors. 2012 (5) Mh.L.J.86 : [2012(4) ALL MR 123] and Atharoddin s/o Mujroddin Kazi vs. Rajendra s/o Ramchandra Indrale and ors. 2008 (6) Mh.L.J. 322 : [2008(6) ALL MR 769] in that regard. It was thus submitted that the civil Court had rightly held that it had no power to condone the delay.

7. I have heard the learned counsel for the parties at length and I have given due consideration to their respective submissions. While considering the challenge as raised, it is necessary to note that there is no common law of elections as observed in Nisar Ahmad Ibrahim Khan vs. Deolali Cantonment Board and ors. AIR 1988 SC 290 : [1987 ALLMR ONLINE 775 (S.C.)]. The proceedings calling in question the validity of an election are purely statutory proceedings. The Court does not possess any common law power and the statutory requirements must be strictly complied with.

8. Under provisions of Section 21(1) of the said Act an election of a Councillor can be called in question only by way of a petition presented to the District Court by a candidate at the election or by any person entitled to vote at the election within ten days from the date of publication of the names of the Councillors in the Official Gazette. The aforesaid provision therefore prescribes the manner in which an election of a Councillor can be called in question. One of the requisites is that such challenge can be raised within ten days from the date of publication of the names of the Councilors in the Official Gazette. There is no provision in the said Act to condone any delay in preferring an election petition beyond the period of ten days as prescribed. It is in this context that the learned counsel for the petitioners sought to rely upon the provisions of Section 29(2) of the Act of 1963 to contend that as the provisions of Sections 4 to 24 of the Act of 1963 have not been expressly excluded by the provisions of the said Act, same can be applied for the purposes of condoning delay. A somewhat similar contention was considered by the Honourable Supreme Court in Hukumdev Narain Yadav [1973 ALLMR ONLINE 597 (S.C.)] (supra). It was urged that since the provisions of the Representation of the People Act, 1951 did not expressly exclude the provisions of Sections 4 to 24 of the Act of 1963, same could be applied for condoning the delay. In that context it was observed that if on an examination of the relevant statutory provisions it was clear that the provisions of the Act of 1963 were necessarily excluded then the benefit conferred therein could not be called in aid to supplement provisions of the Representation of the People Act, 1951. It was accordingly held that the provisions of that Act specifically required the election petition to be filed within the specified period and if the same was not done, it was not liable to be entertained on merits. It was thus held that the delay in filing the election petition under Section 81 of the Representation of the People Act, 1951 could not be condoned. This view has been followed in Pratik Prakshbapu Patil [2012(4) ALL MR 123] (supra). On that count the decisions relied upon by the learned counsel for the petitioners in Mukri Gopalan [1995 ALLMR ONLINE 1236 (S.C.)] and P. Sarathy (supra) cannot assist the case of the petitioners.

9. In Atharoddin Mujroddin Kazi [2008(6) ALL MR 769] (supra), learned Single Judge while considering a somewhat similar question has held that the Election Tribunal considering an election petition under Section 21 of the said Act cannot condone delay in filing an election petition. The Honourable Supreme Court in Smita Subhash Sawant [2015(5) ALL MR 962 (S.C.)] (supra) has held that in absence of there being any provision in the Mumbai Municipal Corporation Act, 1888 for condoning delay in filing an election petition, the Court had not power to condone the same. It is thus clear that in absence of any power with the Court to condone delay in filing an election petition under Section 21 of the said Act, the same cannot be condoned. Moreover, in view of the nonobstante provisions of Section 21(1) of the said Act the jurisdiction to entertain an election petition is derived only if it is filed within ten days from the day of publication of the names of the Councillors in the Official Gazette.

10. Though it was submitted by the learned counsel for the petitioners that with a view to maintain purity of the electoral process, such power should be exercised for condoning delay, said submission cannot be accepted. Reference in that regard can be usefully made to the recent decision of the Honourable Supreme Court in Civil Appeal No.4001 of 2018 (Reji Thomas and ors. vs. The State of Kerala and ors.) decided on 19/04/2018. In paragraph 11 thereof it has been observed thus :

"11. .... Once the mechanism provided under the Statute provides for a time schedule for preferring an election petition, in the absence of a provisions in the Statute for enlarging the time under any given circumstances, no court, whether the High Court under Article 226 or this Court under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant vs. Jagdeeshwari Jagdish Amin and ors. reported in (2015) 12 SCC 169, though in a different context, has held at paragraph 33 that " 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."

11. Thus from the aforesaid discussion, it is clear that the learned Judge of the District Court did not commit any error while concluding that the Court had no jurisdiction to entertain an application for condonation of delay in filing election petition. In absence of any jurisdictional error there is no case made out to interfere in writ jurisdiction.

The Writ Petition therefore stands dismissed. Rule stands discharged with no order as to costs.

Petition dismissed.