SABBIRBHAI FAKRODDIN Vs. ABDUL LATIF DIN MOHAMMAD

JUDGEMENT

(1.) THE petitioner herein is challenging the order passed by the Third Additional District Judge, Akola in Election Petition No. 3/91.

(2.) BRIEFLY stated, the facts are as under: The petitioner is an elected candidate in the elections of Akola Municipal Council from Ward No. 73. It is an admitted fact that after the elections were held, the name of the petitioner was published in the official gazette on 5 -12 -1991. This election was, however, challenged by way of an Election Petition under Section 21 of the Maharashtra Municipalities Act (hereinafter referred to 'as 'the Act') at the instance of the respondent No. 1 Abdul Latif. It is also undisputed that this Election Petition came to be presented on 4 -12 -1991. It seems to have been prepared and signed on 3 -12 -1991. A preliminary objection was, therefore, taken by the petitioner and in that preliminary objection the petitioner pointed out that firstly the petition was presented not by the election -petitioner but by his counsel -and, therefore, it was not a proper presentation of the petition. The second ground which is germane to the controversy in the present petition was that though the names of the elected councillors were published in the official gazette on 5 -12 -1991 the petition was filed on 4 -12 -1991 and as such, it was a premature petition and could not be entertained by the Election Tribunal. It was reiterated in this objection further that the election petition was liable to be dismissed summarily and the Tribunal could not proceed with the petition as the same was premature.

(3.) SHRI G. B. Lohia, the learned Counsel for the petitioner, contended that the interpretation of Section 21 of the Act on the basis of which the application was rejected by the trial Court is wholly erroneous. He reiterated that language of Section 21 itself very clearly provided the exact points when the petition could be presented and also the period during which the said election petition could be filed by the parties. According to him, the interpretation holding that the petition was not premature is wholly incorrect and if the election petition which was presented prematurely was allowed to continue, it will mean giving a premium on an illegality which went to the root of the jurisdiction of the Election Tribunal. He restricted himself to the question of the premature nature of the petition itself. It will, therefore, have to be considered as to whether the Election Petition was premature and whether such premature Election Petition could be allowed to continue? Shri Lohia also relied heavily on the Division Bench judgment of this Court in 1960 Nag. L. J. 38, Narayan Bansi v. Ratanlal Jankilal and Ors. According to Shri Lohia, though the said decision is concerning the provisions of C. P. and Berar Municipalities Act, the law laid down in the decision applied wholly on all fours to the present controversy.