SAJJANSINGH Vs. BHOGILAL PANDYA

JUDGEMENT

(1.) THIS is an application for writ by Sajjansingh and Maharaval Laxmansingh under article 226 of the Constitution and arises under the following circum-stances.

(2.) THE petitioners were respectively a voter and a candidate in and from the Aspur assembly Constituency in this State at the general election held in early 1957. Opposite Party No. 1 Bhogilal was declared to have been duly elected as a member from the Aspur Constituency to the Legislative Assembly of the State as a result of the said election. Sajjansingh filed an election petition on 23-4-1957, before the election Commission, praying that the ejection of Bhogilal Pandya be set aside and that the petitioner No. 2 Maharaval Laxmansingh the rival contesting candidate be declared as duly elected from the said constituency. Shri Sumairnath Gurtu District and Sessions Judge, Udaipur, was appointed by the election Commission as a Tribunal to try this election Deti-tion in July, 1957. The election Commission fixed 23-7-1957, as the date for the parties to appear before the Tribunal and ordered notices to be issued accordingly. On 12-8-1957, Bhogilal Pandya filed a recriminatory petition under Section 97 of the Representation of the People Act (No. XLIII of 1951) 1951 as amended (hereinafter called the Act) before the Tribunal, and also made the security deposit on the same date. The petitioners objected to the aforesaid petition being entertained as barred by time, the ground bring that the petition in question had been filed beyond 14 days from the date of the commencement of the trial, (which was said to be 23-7-1947), and further that the deposit required by Section 117 of the Act had also been made beyond the limit of 14 days as prescribed in Section 97 of the Act. The opposite party Bhogilal Pandya met this objection in the following way. It was urged that the 14th day from the 23-7-1957, was 5-8-1957, but the single-member Tribunal did not sit at Udai-pur from. 5th to the 10th August 1957, and that the 10th August was a gazetted holiday and the 11th August was Sunday, and further that the Tri-bunal had not appointed any one to receive petitions in its absence, and, therefore, the recriminatory application which was filed on the 12-81957, was properly filed. Reliance was placed on Section 10 of the General Clauses act in support of the argument. 2a. This plea prevailed with the Election Tri-bunal and it found that the Tribunal did not sit at Udaipur from the 5th to llth August, 1957, and that it sat for the first time on the 12th August and also that if had not appointed anybody to receive petitions and notices etc. , on its behalf up to that time and, therefore, the recriminatory petition and the security deposit having been filed on that date were within time. The petitioners seek to challenge this order by the present writ petition.

(3.) IT is contended on behalf of the petitioners that the order of the Election tribunal is erroneous on the very face of it as it had no authority in law to extend the time for filing the recriminatory petition or making the deposit in that connection beyond the limit of time fixed by Section 97 of the Act, and that such an order was without jurisdiction, and consequently we should quash it by a writ of certiorari, and that we shouid issue a further writ prohibiting the Tribunal from proceeding with the trial of the recriminatory petition against the petitioners.