ARPANA DAS Vs. DERHASAT BASUMATARY

JUDGEMENT

(1.) Heard Mr. M. Sarania, learned counsel for the petitioner. Also heard Mr. M.U. Mahmud, learned counsel, appearing for the respondent. The Assam State Election Commission had issued a Notification dated 18.03.2015 notifying 08.04.2015 as the date of election for constitution of General Council of Bodoland Territorial Council. The petitioner, the respondent and 3 (three) other candidates submitted their nominations for being elected as General Member from No. 12 Salakati (ST) Constituency. All the 5(five) nomination papers were found to be valid after due scrutiny. As notified, the election was held on 08.04.2015 and the result was declared on 11.04.2015. All total 35949 votes were cast, out of which 34306 votes were found valid. While the petitioner polled 12334 votes, the respondent polled 11282 votes. The petitioner defeated the respondent, who polled second highest number of votes, by a margin of 1052 votes.

(2.) By this application, the petitioner seeks to challenge the order dated 14.03.2017 passed by the learned District Judge, Kokrajhar in Misc. (J) Case No. 26/2015, registered on the basis of an application under Section 5 of the Limitation Act, 1963 (for short, "Limitation Act") read with Section 151 CPC, arising out of Title Suit (Election Petition) No. 27/2015, whereby delay of 29 (twenty-nine) days in filing the election petition by the respondent under Rule 78 of the Bodoland Territorial Council (Election) Rules, 2004, (for short, "Election Rules") read with Section 151 CPC on 06.06.2015 to challenge the election of the present petitioner as Member to the General Council of Bodoland Territorial Council from No. 12 Salakati (ST) Constituency and to declare the election petitioner as elected from the said Constituency, was allowed.

(3.) Mr. Sarania has submitted that Rule 78 (3) of the Election Rules is very specific that the election petition is required to be presented within a period of 30(thirty) days from the date of the election of the Returned Candidate. There is no power to condone delay in filing election petition under the Election Rules and, therefore, the learned District Judge committed jurisdictional error in condoning the delay of 29(twenty-nine) days in filing the election petition with the aid of Section 5 of the Limitation Act, which has no application to an election petition, he submits. In support of his submission, learned counsel relies upon the decisions in the cases of K. Venkateswara Rao v. Bekkam Narasimha Reddi and Others., (1969) AIR SC 872, Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133, Smita Subhash Sawant v. Jagdeeshwari Jagdish Amin and Others., (2015) 12 SCC 169, Union of India v. Jasiruddin Talukdar, (2011) 2 GauLT 497 and Aslima Khatun v. State of Assam and Others.,2014 5 GauLR 442.