Dismissed

Shri.Duryodhan Narayan Patil v. Shri. Subhash Shripat Kot and Ors.

Bombay HC3 Jul 2012WP/3075/2012

Case brief

AI extract

What is this about?

This writ petition challenged an order condoning a seven-day delay in filing an election petition under the Bombay Provincial Municipal Corporations Act, 1949. The court examined whether the trial judge had the authority to apply the Limitation Act for condonation of delay.

What did the court decide?

The writ petition was dismissed, holding that the trial judge had the power to condone the delay in filing the election petition.

Shri.Duryodhan Narayan Patil Vs Shri. Subhash Shripat Kot and Ors. — Election Law | Bombay HC (2012)

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Tapadia RR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.3075 OF 2012

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Shri Duryodhan Narayan Patil

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..Petitioner

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Shri Subhash Shripat Kot & Ors

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.. Respondents

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Shri R.D.Suryawanshi Advocate, for the Petitioner.

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CORAM : R.G.KETKAR,J. DATE : 03/07/2012

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PC:

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Heard Shri R.D.Suryawnashi, learned counsel for the petitioner at length.

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By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the Judgment and order dated 27.12.2011 passed by the learned Civil Judge Sr.Dn, Kalyan in Misc. Appeal No.409 of 2010. Respondent no.1 herein filed Election Petition under section 16 read with section 403 of the Bombay Provincial Municipal Corporations Act, 1949(for short, 'Act') challenging the election of the petitioner as Municipal Counsellor from Ward No.11 of Kalyan Dombivali Municipal Corporation. The result of the election was declared on 1.11.2010. The first respondent filed Misc. Application No.409 of

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2010 for condonation of delay of seven days in filing the election petition. By the impugned order, the learned trial Judge allowed the application and condoned the delay of seven days in filing the election petition. It is against this order, the petitioner has instituted this petition under Articles 226 and 227 of the Constitution of India.

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In support of this petition, Mr Suryawanshi strenuously contended that the learned trial Judge committed serious error in condoning the delay. He submitted that the learned trial Judge has no power to entertain and condone the delay application. In support of his submissions, he relied upon the following judgments : (i) Yogesh Mangalsen Bahal Vs. Rajesh Chimanrao Wable and ors, 2008 (5) Bom C.R. 243, (ii) Umesh Tukaram Kamble Vs Shamrao Sakharam Patil, 2008 (2) Mh.L.J.727, (iii) Rajendra Dhanji Sakhala Vs State of Election Commission, 2008(1) Mh.L.J. 398, (iv) Pushpa Jivatram Mihani Vs State of Maharashtra, 2007(3) Mh.L.J.754.

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I have considered the submissions made by Shri Suryawanshi. I have perused the material on record. In so far as the Judgment in the case of Umesh Tukaram Kamble (supra) is concerned, the election petition was instituted under section 15 of the Bombay Village Panchayats Act, 1958. The learned Single Judge of this Court (Dr. D.Y.Chandrachud, J.) held that provisions

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of section 5 of the Limitation Act,1963 would stand excluded for condonation of delay. In the case of of Rajendra Dhanji Sakhala (supra) the Division Bench of this Court held that provisions of section 5 of the Limitation Act do not apply to the election petition filed under section 33 of the Mumbai Municipal Corporation Act, 1888. In the case of Pushpa Jivatram Mihani (supra) the Division Bench of this Court held that the Collector hearing the appeal under section 137 of the Bombay Prohibition Act,1949 is not a Court and, therefore, cannot invoke powers of condonation of delay under section 5 of the Limitation Act.

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It is not in dispute that the election petition is instituted under section 16 read with section 403 of the Act. Section 435 of the Act provides that in computing the period of limitation prescribed for an appeal or application referred in this Chapter, the provisions of sections 5,12, and 14 of the Indian Limitation Act, 1908 shall, so far as may be, apply. This aspect is considered by the learned Single Judge of this Court (S.C.Dharmadhikari, J.) in the case of Yogesh Mangalsen Bahal (supra). In view of this, the learned trial Judge has not committed any error in entertaining and condoning the delay of seven days in filing the election petition. The decisions in (i) Umesh Tukaram kamble (supra), (ii) Rajendra Dhanji Sakhala (supra ) and (ii) Pushpa Jivatram Mihani (supra) are not applicable. In the result, the writ

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petition fails and the same is dismissed.

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It is made clear that I have not expressed any opinion on the merits of the election petition.

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(R.G.KETKAR, J.)

Shri.Duryodhan Narayan Patil v. Shri. Subhash Shripat Kot and Ors.

Case brief

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Shri.Duryodhan Narayan Patil v. Shri. Subhash Shripat Kot and Ors.

Case brief

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