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Saturday, September 19, 2015

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= 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. 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. 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.

                                                                  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)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1.    Leave granted.
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  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 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 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 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
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.
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  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 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 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.
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.




                               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
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.
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  “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  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  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.
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 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 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 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.

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 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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