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Madhavrao Tatyasaheb Ghatge Vs. the Collector - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 696 of 1963
Judge
Reported in(1963)65BOMLR763; 1964MhLJ42
AppellantMadhavrao Tatyasaheb Ghatge
RespondentThe Collector
Excerpt:
.....v of 1962), section 27 - application under section 27(1) presented to clerk of district court-district judge taking cognizance of it within time prescribed for-making application-competency of such application-expression 'may apply' in section 27(1) whether means 'may per. sonally apply'.; an application under section 27(1) of the maharashtra zilla parishad and panchayat samitis act, 1961, may be made either by post or by a messenger or personally. once the district judge has received the application within the time prescribed by the act, it must be held that the application was properly made to the district judge.; an election petition under section 27(1) of the act addressed to the district judge was presented to an officer of the court and the district judge took cognizance of it..........petitioner seeks to challenge the order made by the assistant judge exercising the powers of the district judge at kolhapur dismissing the election petition made by the petitioner on a preliminary ground.2. the short facts are : elections to the taluka panchayat samiti from sidhanerli electorate group of kagal taluka panchayat samiti were held on july 31, 1962. the petitioner and respondents nos. 5 to 9 contested the said election. at this election the petitioner and respondent no. 5 each secured 17 votes. as required by the rules, there being equality of votes, lots were drawn and respondent no. 5 was declared elected as a member of the taluka panchayat samiti. the result was declared on august 3, 1962. the petitioner presented an election petition on august 13, 1962, challenging the.....
Judgment:

Patel, J.

1. By this application the petitioner seeks to challenge the order made by the Assistant Judge exercising the powers of the District Judge at Kolhapur dismissing the election petition made by the petitioner on a preliminary ground.

2. The short facts are : Elections to the Taluka Panchayat Samiti from Sidhanerli electorate group of Kagal Taluka Panchayat Samiti were held on July 31, 1962. The petitioner and respondents Nos. 5 to 9 contested the said election. At this election the petitioner and respondent No. 5 each secured 17 votes. As required by the rules, there being equality of votes, lots were drawn and respondent No. 5 was declared elected as a member of the Taluka Panchayat Samiti. The result was declared on August 3, 1962. The petitioner presented an election petition on August 13, 1962, challenging the election of respondent No. 5 on various grounds. The last date for the making of the application was August 18, 1962. Though the application was addressed to the District Judge and not to the Court of the District Judge, it was presented to an Officer of the Court and the District Judge actually took cognizance of it on August 14, 1962. It is assumed by the learned Assistant Judge that the petitioner was present on both August 13 and 14 when the petition was presented and also when the cognizance was taken by the District Judge.

3. A preliminary objection was taken on behalf of respondent No. 5 that the application being not presented directly to the District Judge who was a persona designata under the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, the application was incompetent and, therefore, it ought to be dismissed. This contention found favour with the learned Judge who dismissed it on that ground.

4. Section 27(1) of the Act provides:

If the validity of any election of a Councillor or the legality of the order made or proceedings held under Section 26 is brought in question by any person qualified to vote at the election such person may, at any time within fifteen days after the date of the declaration of the result of the election or the date of the order or proceeding, apply to the District Judge of the district within which the election has been held, for the determination of such question.

There is nothing in the section which requires that the application must be made in a particular manner. Under these circumstances there cannot possibly be any reason to introduce words into the section and read the section as if it were 'may at any time within 15 days.personally apply to the District Judge of the District. Ordinarily words in a statute must receive their ordinary meaning unless there is something in it to suggest that a technical meaning was intended-provided that they have received a technical meaning. In the first place it is not even suggested that the words 'may apply' have been interpreted to mean 'may personally apply'. The words 'may apply' must, therefore, be read in their ordinary significance and an application may be made in any of the recognized modes i.e. either by post or by a messenger or personally. It is undoubtedly true that if an applicant relies on any other mode except that of personal presentation, he must take the risk of the application not reaching the District Judge within the time provided by the provision. If there had been rules which permitted presentation otherwise than personally, it may be that the delay may not be a ground for dismissal of the application. In the absence of such rules, if the petitioner elects to apply not personally but hands over the application through a messenger or by post, as we have said, he must take the risk. In the present case no question of risk arises for the obvious reason that the District Judge has taken cognizance of the application on the next day, i.e. on August 14, while the last date for the making of the application was August 18-four days much too earlier than the last date.

5. It has been argued by Mr. Bhasme that the District Judge acts as persona designata and not as a Court and, therefore, presentation of the application to the Clerk of the Court would not be a proper presentation. This postulates that the application is to be presented personally to the District Judge. It must be noticed that the Civil Procedure Code is not made applicable nor is it provided that the application is to be presented in the same manner as a plaint. By Sub-section (2) of Section 27 the Judge deciding an election application is enabled to exercise all or any of the powers of a Civil Court but that is not the same as applying the provisions of the Civil Procedure Code regarding the presentation of a plaint. Sub-section (4) is merely a limitation on the generality of powers of the Judge and hence cannot affect the question. In our view, the presentation as such to 'X' or 'Y' ought not to make any difference inasmuch as the proper authority i.e. the District Judge as persona designata received that application and entertained it on August 14. Once the District Judge has received the application, within the time prescribed by the Act, it must be held that the application was properly made to the District Judge.

6. Wherever an application is required to be personally presented, a provision to that effect would ordinarily he found to exist. The words 'may apply' do not mean 'personally apply' and there is no reason why the words should not be given their ordinary meaning. An application can be made in any way the condition being that it has to reach before the date proscribed. The ruling in Gangadhar v. Hubli Municipality (1925) 28 Bom. L.R. 519 has really no bearing on the question. The High Court under similar circumstances refused to entertain a revisional application under Section 115 of the Act not on the ground that the judgment of the Assistant Judge which expressed a view similar to that of the Assistant Judge in this case was correct in law but on the ground that the District Judge was acting as persona designata and not as a Court subordinate to the High Court. We are also not prepared to accept that in Hambirrao Bhaurao v. Balisha : (1960)62BOMLR749 , it was held that the application must be presented personally. The Court did not decide the question. On the assumption, that the contention was correct the Court treated it as mere irregularity not sufficient to vitiate the proceedings which were commenced before the District Judge who also acted as persona designata. This ruling instead of helping Mr. Bhasme helps Mr. Paranjape since it was held in that case at best it amounted to a mere irregularity.

7. We, therefore, set aside the order made by the learned Assistant Judge and direct that he should decide this matter on merits from the stage from which he has left it. The matter should be decided within a fortnight of the order reaching him. The costs would be costs in the cause.


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