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2023 DIGILAW 488 (CHH)

Milind Kumar Gwalvanshi @ Milind Goutam S/o Pradeep Kumar Gwalvanshi v. Sahdeo Mahanad S/o Shri Chatur Mahanand

2023-09-15

SANJAY K.AGRAWAL

body2023
ORDER : 1. This civil revision has been preferred by the applicant herein/returned candidate under Section 441-F (2) of Chhattisgarh Municipal Corporation Act, 1956 (hereinafter referred as “the Act of 1956”) against the impugned order dated 05.02.2019 passed by the learned District Judge, Raipur in Election Petition No. 3/2015 by which his election on the post of Councillor of Ward No. 34 (Guru Govind Singh Ward) Municipal Corporation Raipur held on 04.01.2015 has been set aside and non-applicant/respondent No. 1 herein has been declared elected on the said post. The question of law that emanates for consideration in this civil revision as under: “Whether the Election Tribunal constituted under Section 441(2) of the Act of 1956, has power and jurisdiction to condone the delay in presenting the Election Petition under Section 441(3)(i) of the Act of 1956?” Brief facts: 2. The applicant herein was declared elected as Councillor from Ward No. 34 (Guru Govind Singh Ward) of Municipal Corporation Raipur, on 04.01.2015. Election Petitioner/ non-applicant No. 1 preferred an election petition under Section 441 (2) of the Act of 1956, before the Election Tribunal (Principal Civil Court of original jurisdiction) on 24.02.2015. The said election petition presented by non-applicant No. 1 herein ought to have been preferred within 30 days from the date on which result of election was declared i.e. 04.01.2015 by virtue of provision contained under Section 441(3)(i) of the Act of 1956, but non-applicant No. 1 preferred election petition on 24.02.2015 with a delay of 22 days. Non-applicant No. 1 also preferred an application for condoning the delay in presenting the election petition which was registered as I.A. No. 1 by the learned District Judge, Raipur. The said I.A. No. 1 under Section 5 of the Limitation Act, 1963 (hereinafter referred as “the Act of 1963”) was considered by the learned District Judge, Raipur on 27.02.2015 and finding sufficient cause for delay of 22 days in presenting the election petition, application was allowed and delay in filing the election petition was condoned and notices were issued to the returned candidate/applicant herein and other candidates. 3. The applicant herein being a returned candidate while appearing before the Election Tribunal on 23.07.2015 filed an I.A. No. 2, application under Section 441 of the Act of 1956, for dismissing the election petition as it was barred by 22 days. 3. The applicant herein being a returned candidate while appearing before the Election Tribunal on 23.07.2015 filed an I.A. No. 2, application under Section 441 of the Act of 1956, for dismissing the election petition as it was barred by 22 days. The said I.A. No. 2 was considered by the learned District Judge on 23.07.2015 and it was rejected holding that the delay in presenting the election petition has already been condoned by order dated 27.02.2015. After full-fledged trial election of the applicant herein was declared void by the learned District Judge by order dated 05.02.2019 and non-applicant No. 1 has been declared elected candidate of Ward No. 34 (Guru Govind Singh Ward) of Municipal Corporation Raipur. 4. Feeling dissatisfied and aggrieved against the impugned order, the applicant/returned candidate has preferred this civil revision under Section 441-F (2) of the Act of 1956. One of the ground of challenge raised by the applicant in this civil revision is that delay of 22 days in presenting election petition could not have been condoned by the learned District Judge as the provisions of Section 5 of the Act of 1963, is inapplicable in presenting election petition under Section 441(2) of the Act of 1956. This Court by order dated 26.02.2019 stayed the effect and operation of order dated 05.02.02019 subject to condition mentioned in the order dated 26.02.2019. Submissions: 5. Ms. Priyanka Rai, learned counsel for the applicant, would make a solitary submission that the learned District Judge committed a grave legal error in condoning the delay of 22 days in presenting the election petition as by virtue of Section 441(3)(i) of the Act, 1956, presentation of election petition within 30 days from the date on which result of election was declared is mandatory and in the instant case the result was declared on 04.01.2015 and notified on the same date and, accordingly, the provisions of Section 5 of the Act of 1963, was inapplicable. As such, the final order dated 05.02.2019 deserves to be set aside on that ground alone as the order condoning the delay dated 27.02.2015 has merged into the final order dated 05.02.2019. She would rely upon the decision of the Supreme Court in the matter of Reji Thomas and Others vs. State of Kerala and Others, (2018) 16 SCC 778 to buttress her submission. 6. Mr. She would rely upon the decision of the Supreme Court in the matter of Reji Thomas and Others vs. State of Kerala and Others, (2018) 16 SCC 778 to buttress her submission. 6. Mr. Akhilesh Kumar, learned counsel for non-applicant No. 1/election petitioner, would support the impugned order and submit that the impugned order passed by the learned District Judge setting aside the election of the applicant herein on the post of Councillor of Ward No. 34 (Guru Govind Singh) of Municipal Corporation Raipur is strictly in accordance with law in view of the decision rendered by the Supreme Court in the matter of Shaik Saidulu @ Saida vs. Chukka Yesu Ratnam and Others, (2002) 3 SCC 130 . 7. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. Legal Analysis and Discussion: 8. Undiputedly, the applicant was declared elected as a Councillor of Ward No. 34 (Guru Govind Singh) of Municipal Corporation Raipur on 04.01.2015 and the election petition challenging the election of the applicant herein under Section 441 (2) of the Act of 1956, was presented on 24.02.2015 with a delay of 22 days and delay in filing the election petition was condoned unilaterally without issuing notice to the applicant herein and other candidates by the learned District Judge, Raipur by order dated 27.02.2015 and the application filed by the applicant herein for dismissing the election petition as barred by limitation was also rejected by the learned District Judge on 23.07.20215 and ultimately, the election of the applicant herein was set aside by order dated 05.02.2019. Against which this civil revision has been preferred by the applicant and submission is that the delay of twenty two days in presenting the election petition under Section 441 (2) could not have been condoned by the learned District Judge as the provisions of Section 5 of the Act of 1963 is inapplicable in presenting the election petition. In order to consider the plea raised at the bar by the applicant herein, it would be appropriate to notice Section 441(1), 441(2) and 441(3)(i) of the Act of 1956, which state as under: “441. Election Petitions: (1) No election or nomination under this Act shall be called into question except by a petition presented in accordance with the provision of this section. Election Petitions: (1) No election or nomination under this Act shall be called into question except by a petition presented in accordance with the provision of this section. (2) Such petition may be presented on one or more of the grounds specified in Section 44-B: (a) by any candidate at such election or nomination. (b) (i) in the case of an election of a Councillor, by any voter of the ward concerned. (ii) in the case of nomination of a Councillor, by any Councillor. (iii) in the case of election of Mayor, by any elected Councillor, to the Principal Civil Court of original jurisdiction (hereinafter referred as the Court) within the local limits of whose jurisdiction the election or nomination was held. (3) No petition presented under sub-section (2) shall be admitted unless: (i) it is presented within thirty days from the date on which the result of such election or nomination was notified in the Gazette.” 9. The sub-section (i) of sub-section (3) of Section 441 of the Act of 1956 starts with word “no petition under sub-section (2) shall be admitted, unless it is presented within 30 days from the date of result of such election or nomination was notified in the Gazette. Use of word “No” in Section 441(3)(i) of the Act of 1956, denotes the mandatory requirement of presenting election petition before the learned District Judge within 30 days from the date on which result of such election was declared. The Legislature by using negative word “No” in Section 441(3)(i) of the Act of 1956, had made its intention clear that the provision of presenting the election petition within 30 days from the date of result of election is mandatory. Justice G.P. Singh in the Principles of Statutory Interpretation 14th Edition at Page 446 has held that negative words are clearly prohibitory and are ordinary used as a legislative device to make a statute imperative. It was held as under: Use of negative word Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by CRAWFORD: “Prohibitive or negative words can rarely, if ever, be directory. It was held as under: Use of negative word Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by CRAWFORD: “Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience.” As observed by SUBBARAO, J: “Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative.” 10. Now, the question would be whether Section 5 of the Act of 1963, would apply in presenting the election petition under Section 441(2) of the Act of 1956 in view of Section 441(3)(i) of the Act of 1956 which provides that no petition presented under Section 441(2) shall be admitted unless it is presented within 30 days from the date of declaration of such result. It would be appropriate to notice Section 5 of the Act of 1963, which states as under: 5. Extension 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 (5 of 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 judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 11. Similarly, it would be appropriate to notice Section 29(2) of the Act of 1963, which states as under: “29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” 12. A careful perusal of the provisions of Section 29(2) of the Act of 1963, would show that this sub section is only an enactment of general principle enunciated in maxim generalia specialibus non derogant - general words do not derogate form the special. It provides that when a special or local law provides for any suit, appeal or application, a period of limitation different from period prescribed by Limitation Act, it is the provision in the special act or local act that will prevail and not the provisions of the Limitation Act, except to the extent specified in the section. 13. The Supreme Court in the matter of Mukri Gopalan vs. Cheppailat, AIR 1995 SC 2272 laid down the condition for applicability of Section 29(2) of the Act of 1963 and held as under: “8.......A mere look at the aforesaid provision shows for its applicability to the facts of a given case and for importing the machinery of the provisions containing Sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision. (i) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application. (ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the schedule to the Limitation Act. 09. If the aforesaid two requirements are satisfied the consequences contemplated by Section 29(2) would automatically follow. These consequences are as under: (i) In such a case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the schedule. (ii) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law.” 14. (ii) For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing Sections 4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law.” 14. The Supreme Court in the matter of Hukumdev Narain Yadav vs. Lalit Narain Mishra, (1974) 2 SCC 133 while considering whether the provisions of Limitation Act, 1963 would be applicable to an election petition presented under the Representation of People Act, 1951 (hereinafter referred as “the Act of 1951”) and their Lordships held that the provisions of Section 5 of the Limitation Act do not govern filing of the election petitions or their trial under the Act of 1951: “18.....The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether - it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of that Act.” xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 25. For all these reasons we have come to the conclusion that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial and in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay.” 15. The principles of law laid down by the Supreme Court in the matter of Hukumdev Narain Yadav (supra) has been followed with approval in the matter of Suman Devi vs. Manisha Devi and Others, (2018) 9 SCC 808 . 16. The principles of law laid down by the Supreme Court in the matter of Hukumdev Narain Yadav (supra) has been followed with approval in the matter of Suman Devi vs. Manisha Devi and Others, (2018) 9 SCC 808 . 16. Similarly, in the matter of Smita Subhash Sawant vs. Jagdeeshwari Jagdish Amin and Others, (2015) 12 SCC 169 while dealing with the election petition under the Bombay Municipal Corporation Act, 1888, their Lordships of the Supreme Court held that in absence of any provision in the Act, the Court had no power to condone the delay and held as under: “33........In the absence of any provision made in the Act for condoning the delay in filing the election petitioner, 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.” Conclusion: 17. Bearing in mind the principles of law laid down by their Lordships of Supreme Court in the aforesaid judgments, it is quite vivid that the Chhattisgarh Municipal Corporation Act, 1956 being a special law, is a complete code for presentation of the election petition incorporated in Part XII Chapter XXXIX “Election Petitions.” Section 441(3)(i) mandates that the election petition must be filed within 30 days from the date of declaration of the result and there is no provision for condoning the delay in filing the election petition and in absence of provision in the Act of 1956, for extension of time in filing election petition and also by virtue of Section 29(2) of the Limitation Act, 1963, the provisions of Section 5 of the Limitation Act, 1963, would be inapplicable for extending the period of limitation prescribed for presenting election petition under Section 441(3)(i) of the Act of 1956, and judgment rendered by the Supreme Court in the matter of Shaik Saidulu @ Saida (supra) is inapplicable to the facts of the present case. 18. In that view of the matter, learned District Judge has committed jurisdictional error in applying Section 5 of the Limitation Act, 1963, and condoning the delay of 22 days in presenting the election petition holding sufficient cause has been shown in filing election petition. 18. In that view of the matter, learned District Judge has committed jurisdictional error in applying Section 5 of the Limitation Act, 1963, and condoning the delay of 22 days in presenting the election petition holding sufficient cause has been shown in filing election petition. Since Section 5 of the Limitation Act, 1963, is totally inapplicable in presenting the election petition and as such, the election petition could have not been admitted and could not have been entertained for hearing by learned District Judge by condoning the delay of 22 days in presenting the election petition. As such, impugned order dated 27.02.2015 and final order dated 05.02.2019 are hereby set aside and the election petition preferred by non-applicant No. 1 is hereby dismissed. 19. With the aforesaid observation, the instant civil revision is allowed, leaving the parties to bear their own costs.