BANWARI LAL AGRAWAL Vs. JAI SINGH AGRAWAL

JUDGEMENT

(1.) THE petitioner and the respondent contested the Election of Member of Legislative Assembly from Korba Constituency No. 21. The result was declared on 8.12.2008. The respondent was declared elected. The election of the respondent was called in question by the petitioner by filing Election Petition No. 2/2009. On 1.5.2009, the petitioner filed an application (I.A. No. 8/2009) for withdrawal of the Election Petition. The proposed withdrawal was published in Official Gazette in terms of sub-section (2) of Section 109 of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act 1951'). The copy of the Gazette Notice dated 1st of July, 2009 regarding publication of withdrawal was brought on record. No objections were received. The respondent also did not object the withdrawal. I.A. No. 8/2009, therefore, was allowed and the petitioner was permitted to withdraw the Election Petition. The Election Petition, thus, was dismissed as withdrawn on 10/8/2009. While dismissing the Election Petition as withdrawn, this Court directed that notice of withdrawal be published in the Official Gazette in terms of Clause (b) of sub-section (3) of Section 110 of the Act, 1951. The notice of withdrawal of the Election Petition by order of this Court dated 10.08.2009 was published in the Official Gazette on 28th of August, 2009. The proposed petitioner- Kedarnath Agrawal, thereafter, filed an application for substitution as Election Petitioner in place of Banwari Lal Agrawal (Original Election Petitioner) on 8.10.2009. On the said application of substitution filed on 8.10.2009 by the proposed election petitioner, this MCC was registered. Notices were issued to the original election petitioner and the respondent. Returned candidate has opposed the substitution of the proposed petitioner to prosecute the election petitioner. The main objection raised by the counsel for the returned candidate is that the aforesaid application for substitution, filed by the proposed petitioner is barred by limitation, therefore, it should be dismissed and the proposed petitioner cannot be permitted to be substituted to prosecute the election petitioner.

(2.) MR . B.P. Gupta, learned counsel appearing on behalf of the proposed petitioner, has raised two fold submissions. He argued that though notice of withdrawal was published in the Official Gazette on 28th of August, 2009, but it was not published in any other manner as required u/s 110 (3) (b) of the Act, 1951 and the proposed election petitioner got the knowledge of withdrawal only on 7.10.2009, therefore, the period of limitation shall begin to run from the said date and the substitution application was well within the time. Alternatively, he argued that even if application was not in time, the proposed petitioner should be given an opportunity to file an application u/s 5 of the Limitation Act, 1963, because sufficient ground to condone the delay is available in favour of the proposed petitioner.

(3.) LET us firstly considered about the applicability of the Limitation Act in Election Petitions.