TATINENI TULASI LAVANYA Vs. GOGINENI SUJATHA

JUDGEMENT

(1.) The sole question that arises for consideration in this revision petition filed under Art. 227 of the Constitution of India is, whether S. 5 of the Limitation Act, 1963 is applicable to an election petition filed under S. 71 of the Hyderabad Municipal Corporation Act before the election tribunal.

(2.) Brifely stated the facts are these: The first respondent who lost the election as Member from Ward No. 32 in Vijayawada Municipal Corporation held on 9-3-2000 which results were declared on 11-3-2000 challenged the election of the petitioner as such under S. 71 of the Hyderabad Municipal Corporation Act (for short "HMC Act")by way of election petition before the Election Tribunal constituted under S. 75, for trial of election petitions under Municipal Corporation of Hyderabad (Election of Mayor, Members and Election Petitions) Rules, 1987 (for short "the Election Rules, 1987"). Initially, she filed election petition before the District Judge, Krishna at Machilipatnam on 3-5-2000 and the same was returned on 25-5-2000 for presenting before the proper forum by granting seven days time. It is not in dispute that the election tribunal was constituted on 13-5-2000 and the Presiding Officer was appointed on 25-5-2000. On return of election petition by the District Judge,Krishna at Machilipatnam, the same was presented before the Election Tribunal on 29-5-2000. The period of limitation prescribed under S.71 is 2 months from the date of declaration of results which expired on 12-5-2000. Therefore, the respondent No. 1 filed 1A No. 1/2000 under S. 5 of the Limitation Act, 1963 r/w 671 of the HMC Act for condoning the delay of 18 days in representing the same stating that due to in correct advice of the lawyer, the same was filed before the District Judge and on return, the petition was presented within seven days time granted by the district Judge. The petitioner herein opposed the same by filing counter contending that the election petitioner is not entitled to invoke the provisions of S. 5 of the Limitation Act and delay of 18 days in filing the petition is neither willful nor deliberate but is purely on account of the lawyer's wrong advice and prayed for dismissal of the application filed for condoning the delay. The Election Tribunal by its order dt. 13-9-2000 took the view that as the Government delayed the constitution of Election Tribunal, the petitioner approached the District Court, Krishna at Machilipatnam by filing the Elction Petition within the period of limitation prescribed under the Limitation Act and on coming to know of the constitution of the separate Tribunal, the same was returned by granting seven days time for presentation. As the petition is filed within seven days time granted by the District Judge and by S. 671 the provisions of the Limitation Act are made applicable for the proceedings initiated under the HMC Act, he condoned the delay of 18 days in presentation of the Election petition by order dt. 13-9-2000 which is impugned in the present revision petition.

(3.) Learned counsel for the revision petitioner contended that certain provisions of the Limitation Act are made applicable only for appeals or applications referred to under Chapter 20 of the HMC Act and the same cannot be made applicable to the election petitions filed under S. 71 of the HMC Act. Under S. 29 (2) of the Limitation Act if the special law or local law prescribes any period of limitation different from the period prescribed under Schedule of the Limitation Act, then only S. 4 to 24 will be applicable if they are not specifically excluded by the local or special Act. As the Limitation Act has not prescribed any period of limitation different from the period prescribed, provisions of the Limitation Act are not applicable to the election petitions. He further contends that as the election petition is filed after expiry of the period prescribed under S. 71 of the HMC Act the tribunal cannot entertain the same and it has to be dismissed for non compliance of the provisions, therefore the tribunal committed an error in condoning the delay of 18 days in presenting the election petition and prayed for setting aside the same.