VIJAY DEORAO PATIL CHONDHIKAR Vs. MANOHARRAJUSINGH NAIK

JUDGEMENT

(1.) BY this application, the respondent no. 1- the returned candidate has sought the relief that the election petition is liable to be dismissed on the ground of limitation. It is not in dispute that on account of the death of Shri Sudhakarrao Naik, the then sitting M. L. A. , the seat from Pusad assembly constituency had fallen vacant and bye-election was held on 20. 9. 2001. The result was declared on 22. 9. 2001 and the respondent no. 1 was declared as returned candidate. The petitioner and respondents 2 to 5 are the defeated candidates. Respondents 6 and 7 conducted the election as per directions of respondent no. 8. The election petition was presented on 7. 11. 2001.

(2.) MR. SAMBRE, the learned counsel for respondent no. 1, submitted that as per the provisions of Section 81 of the Representation of the People Act, 1951 (for short, the R. P. Act) the petition ought to have been presented within a period of 45 days. He submitted that the cause of action for filing of the Election Petition arose on 23. 9. 2001 and thus the petition filed on the 46th day is clearly barred by period of limitation. He further submitted that the election petition is required to be presented to the Additional Registrar in accordance with the Rules framed by The High Court of Judicature at Bombay in regard to Election Petitions under the R. P. Act (Act No. 43 of 1951) (for short, the Rules ). He contended that the Additional Registrar had passed an order on 13. 12. 2001 holding that the petition was filed within the period of limitation. He contended that the Additional Registrar had no jurisdiction to pass such an order and the matter ought to have been either mentioned by the learned counsel for the petitioner before the Court or listed before the Court by the office for passing appropriate orders.

(3.) MR. SAMBRE further contended that the proviso to Section 10 of the General Clauses Act makes it clear that nothing in that Section shall apply to any Act or proceeding to which the Indian Limitation Act, 1887 (XV of 1887) applies. He contended that since the Indian Limitation Act does not apply to the election petitions filed under the R. P. Act, the election petition ought to have been presented within 45 days, as provided under Section 81 (1) of the R. P. Act and, therefore, the petition is clearly barred by the period of limitation. In support of his submissions, he relied on the decision of the Apex Court in Lachhman Das Arora vs. Ganeshi Lal and others (1999) 8 SCC 532.