SMITA SUBHASH SAWANT Vs. JAGDEESHWARI JAGDISH AMIN AND ORS.

Tags Election

Supreme Court of India

Appeal (Civil), 6848 of 2015, Judgment Date: Sep 04, 2015

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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