Shri Shankar Sadu Pawar vs Shri Balu Laxman Dalvi and Others

R.M. Lodha, J.—By this petition, the petitioner seeks to challenge the legality and correctness of the order dated 15.11.95 passed by the IInd Joint Civil Judge, Junior Division, Pune in Election Petition No. 17 of 1995 whereby the said Court (Election Tribunal) set aside the election of the petitioner who was elected to Gram Panchayat, Shire, Taluka Mulshi.

Shankar Sadu Pawar, the petitioner herein contested the election of Gram Panchayat Shire, from Ward No. 2. Sou. Mangala Tikone, Sou. Kusum Bhalerao and Shri Balu Laxman Dalvi also contested the said election from Ward No. 2. On 19th May, 1995, the result of election was declared by which the petitioner was declared elected. Balu Laxman Dalvi (Respondent No. 1 herein) filed election petition on 6th June, 1995 u/s 15 of the Bombay Village Panchayat Act, challenging the validity of election of the petitioner by way of election petition. It was the case of the defeated candidate Balu before the Election Tribunal that the name of the elected candidate (present petitioner) was not mentioned on the ballot paper and the names of other persons were printed on the ballot paper, as a result of which voters got confused and therefore, declaration of Shankar as elected candidate was illegal. The elected candidate (present petitioner) opposing the election petition set up various defences inter alia that the election petition was time barred and liable to be rejected. However, the Election Tribunal negatived all the pleas set up by the present petitioner, allowed the election petition and set aside present petitioner''s election to Gram Panchayat.

Ms. Dipti Kale, the learned Counsel appearing for petitioner assailed the judgment of the Election Tribunal principally on the ground that the said Tribunal seriously erred in treating the election petition within time which was apparently time barred.

The respondents have been served but they have not chosen to appear before this Court.

The only question that falls for determination in this writ petition is whether the election petition filed by Balu (respondent No. 1 herein) was within limitation. For this purpose, the following dates are relevant; the election was declared on 19th May, 1995; the concerned Court of Civil Judge, Junior Division was closed due to Summer Vacations from first week of May upto 4th June, 1995; the said Court reopened on 5th June, 1995; and the election petition was filed by respondent No. 1 herein on 6th June, 1995. In the background of these dates of events, Section 15 of Bombay Village Panchayat Act, 1958 may be adverted to which provides for the procedure for determination of validity of elections and the limitation for challenging such election. Section 15(1) and (2) which are relevant for the present purpose read thus:-

(1) If the validity of any election of a member of a panchayat is brought in question by (any candidate at such election or by) any person qualified to vote at the election to which such question refers, (such candidate or person) may, at any time within fifteen days after the date of the declaration of the result of the election, apply to the Civil Judge (Junior Division), and if there be no Civil Judge (Junior Division) then to the Civil Judge (Senior Division) (hereinafter, in each case, referred to as "the Judge") having ordinary jurisdiction in the area within which the election has been or should have been held for the determination of such question.

(2) Any enquiry shall thereupon be held by the Judge and he may after such enquiry as he deems necessary pass an order, confirming or amending the declared result, or setting the election aside, for the purposes of the said enquiry the said Judge may exercise all the powers of a Civil Court, and his decision shall be conclusive. (If the election is set aside, a date for holding a fresh election shall forthwith be fixed u/s 11).

It would be thus seen that by the special provision contained in Section 15(1), 15 days time is prescribed for challenging the election of a member of Gram Panchayat from the date of the declaration of result of the election. Sub-section (2) of Section 15 provides that for the purposes of the enquiry, concerned Civil Judge may exercise all the powers of the Civil Court.

The learned Counsel for petitioner pressed into service Section 4 of Limitation Act to bring home her contention that if the Court of concerned Civil Judge was closed on the day prescribed period of filing election petition expired, the same could have been instituted on the day when the Court reopened and not thereafter.

Section 4 of Limitation Act reads thus:

Expiry of prescribed period when Court is closed. - Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens.

Though the election petition challenging the election to Gram Panchayat u/s 15 of the Bombay Village Panchayat Act is required to be filed before Civil Judge (Junior Division) and if there is no Civil Judge (Junior Division) then to Civil Judge (Senior Division) but such Civil Judge (Junior Division) or for that matter Civil Judge (Senior Division) is only a persona designata and not a Court. It is true that under Sub-section (2) of Section 15, for the purposes of enquiry the said Judge has all the powers of Civil Court but on that count such Judge cannot be said to be Court necessary for applicability of provisions of Limitation Act. In Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, the Apex Court ruled that in view of Sections 4 and 5 of the Limitation Act and the Scheme of Limitation Act, it is clear that it only deals with applications to Courts. To attract Section 29(2) of Limitation Act also proceeding initiated under the special or local law must also be there which are legally capable of being instituted before a ''Court'' only. The Bombay Village Panchayat Act provides for a special forum to determine the validity of election to Gram Panchayat with different period of limitation and therefore, Section 29(2) of Limitation Act shall also be not attracted. Even if Section 4 of Limitation Act does not apply, Section 11 of General Clauses Act is relevant which reads thus:-

Where, by any Bombay Act (or Maharashtra Act) made after the commencement of this Act, any act of proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open :

Provided that nothing in this Section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 applies.

It is, thus, provided in Section 11 of General Clauses Act that where any proceeding is directed to be taken in any Court or office on a certain day by any Bombay Act or Maharashtra Act or within the prescribed period and if the Court or office is closed on that day or the last day of the prescribed period and if the proceeding is taken on the day the office or Court reopens, it is deemed to be taken in due time.

In the present case, the election of Gram Panchayat was declared on 19th May, 1995. The limitation prescribed for determination of validity of election is 15 days from the date of declaration of result of the election. On the day the prescribed limitation expired, the Court of Civil Judge was closed due to Summer Vacation. The Court of Civil Judge reopened on 5th June, 1995. However, the election petition was not filed on that day but was presented on 6th June i.e. one day after reopening of the Court of Civil Judge. Thus, the election petitioner is not entitled to the benefit u/s 11 of General Clauses Act and it cannot be said that the election petition filed on 6th June, 1995 was within time.

The Civil Judge, Junior Division was, therefore, clearly in error in holding the election petition within limitation. In view of the finding that the election petition was time barred, the merits of the election petition does not deserve to be examined and the judgment and order passed by the IInd Joint Civil Judge, Junior Division, Pune impugned in the present writ petition is liable to be quashed.

Accordingly, writ petition is allowed. The judgment and order dated 15.11.95 passed by the IInd Joint Civil Judge, Junior Division, Pune is quashed and set aside. Consequently, Election Petition No. 17 of 1995 stands dismissed. No order as to costs.