DSIDDAIAH AND Vs. SRUDRAPPA AND

JUDGEMENT

(1.) These two appeals arise out of two orders passed by the Subordinate Judge, Chitaldrug who is the Election Commissioner for the area concerned. On applications filed before him, by the Respondents in these two appeals, he set aside the declaration of the Returning Officer whereby the Appellants had been declared duly elected to the Nayakanahatti Town Municipal Council from the first and eleventh division respectively. The difference between them and the Respondents was only one vote in the first case and four votes in the second. In the applications before the Election Commissioner the Respondents complained that this difference represented the votes of certain persons who were not qualified to vote under Section 12 of the Mysore Town Municipalities Act, which governs the elections. Under that section the voters must have attained the age of 21 years in the official year preceding that in which the election roll is published before they can have their names included in the voters list. The Election Commissioner found that 4 voters in one case and one voter in the other were less than 21 years of age at the relevant time and that if those votes were excluded from computation, the Appellant in Mis. A. No. 34/1953 would fail as the Respondent would be found to have one vote in excess. In Mis. A. No. 33/1953 he found that they would be polling an equal number of votes. He therefore drew lots and declared the Respondent in that appeal as having succeeded as a result of such drawing.

(2.) It is contended by Mr. Krishnamurthi, learned Counsel for the Appellants that the applications challenging the election were made in these cases after the expiry of 10 days provided in Section 20, Mysore Town Municipalities Act. The result of the election was declared on 23-3-1952 and the applications were filed on 12-5-1952 when the Civil Courts in the State were reopened after the summer vacation which commenced that year on 1-4-1952. The Election Commissioner has found that the applications were saved from the bar of limitation on account of Section 4, Limitation Act. It is urged by Mr. Krishnamurthi that the learned Election Commissioner was really a 'persona designata' though it happens that he is a Subordinate Judge in a Civil Court and that as in the present case ho happens also to be the First Class Magistrate of the station and was present in that area during the concerned period, the Respondents could not say that they could not have presented their applications to him within time. He has relied on - '3 Mys LJ 253 (A)'; - '8 Mys. LJ 281 (B)'; - 'Abdul Azeez v. Basheer Ahmed', 13 Mys LJ 116 (C)', where no doubt it has been held that the Election Commissioner was a 'persona designata' for the purpose of determining the elections concerned under Municipal Acts. Those cases were, however, concerned with the question whether appeals or revisions lay to this Court in accordance with the Code of Civil Procedure from his orders. Those cases cannot obviously have much bearing on the question before us.

(3.) Section 4, Limitation Act provides that where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed the same may be made on the day when the Court re-opens. 'Prima facie' no doubt the reference is to a Court & whether the Election Commissioner is a Court is a matter for consideration. If the Subordinate Judge of the concerned area has been appointed Election commissioner it is difficult to see why he should not be deemed a Court for that purpose. It is provided by the same section that the Code of Civil Procedure shall as far as possible be followed in the enquiries before him. It is not disputed that there was no office of the Election Commissioner as such open at the concerned time for such applications being lodged. The applications were to be accompanied by a deposit of Rs. 50/- and there was no arrangement made for the receipt of that, money by him or in his office during the period of the summer vacation. Moreover under Section 30, General Clauses Act where any act or 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. We mink that that section if not Section 4, Limitation Act clearly operates to save the present applications from being barred by time and we agree with the learned Subordinate Judge that they were in time.