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TMI Blog2015 (9) TMI 1648X X X X Extracts X X X X X X X X Extracts X X X X ..... de available for sale or inspection, it is necessary to read Section 28 (k) of the Act - if the State Election Commissioner has failed to frame the Rules for proper implementation of the functions set out in Section 28 (k) of the Act and due to that reason, there appears to be some kind of ambiguity noticed in its interpretation, then, such provision should be interpreted as far as possible in a manner which may benefit the elected candidate rather than the election petitioner. On which date such list was available for sale or inspection to the voter of the ward? - Held that:- There is no hesitation in holding that the list prescribed under Section 28 (k) was made available to all the parties including the voter of the ward in question on 17.02.2012 by the Returning Officer - the list prescribed under Section 28(k) was available for inspection and sale to the voters of the ward in question on 17.02.2012. In view of this finding, the limitation to file election petition would begin from 17.02.2012 and it will be up to 27.02.2012. In other words, period of limitation of 10 days prescribed for filing the election petition in Section 33 (1) of the Act would begin from 17.02.2012 and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso issued by the Election Officer in favour of the appellant herein in Form No. 21-C as per Rule 103 of Municipal Corporation of Greater Mumbai conduct of Election Rules 2006 (hereinafter referred to as 'the Rules') on 17.02.2012. Thereafter on 21.02.2012, the Municipal Commissioner published the Official Gazette declaring the names of the candidates elected from all the 227 wards of the Municipal Corporation with the names of their political parties and the votes polled by them as per Section 10 and Section 32 (i) of the Act and Rule 104 of the Rules. (c) Challenging the election of the appellant herein, on 28.02.2012, respondent No.1 filed Election Petition No. 129 of 2012 in the Court of Chief Judge, Small Causes Court, Mumbai. After service of notice, the appellant herein appeared before the Chief Judge and filed written statement contesting inter alia on the ground that the said election petition filed by respondent No.1 herein was barred by limitation as provided in Section 33 (1) of the Act. According to the appellant, the election petition was required to be filed within 10 days from the date on which the list prescribed under clause (k) of Section 28 was available for sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as being barred by limitation. 6. Elaborating the aforementioned submissions, learned counsel contended that in order to decide the question of limitation and how it will apply to the facts of the case in hand, two Sections are relevant, namely, Section 33 (1) and Section 28 (k) of the Act. Learned counsel contended that Section 33 (1) prescribes limitation of 10 days for filing the election petition and the period of 10 days has to be counted from the date on which the list prescribed under Section 28 (k) of the Act is available for sale or inspection. 7. Learned counsel pointed out that the election in question was held on 16.02.2012 and counting of votes was done on 17.02.2012 followed by declaration of election result declaring the appellant to have won the election and finally issuance of certificates of the election result as required under Rule 103 of the Rules in the prescribed format (Form No. 21-C) were given to the appellant herein and the election petitioner (respondent No. 1 herein) on the same day, i.e., 17.02.2012 by the Returning Officer. Similarly, it was pointed out that the list of the ward was also made available for sale or/and inspection on 17.02.2012 to al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner may frame for the purpose and on payment of such fee as may be prescribed by him a copy of such list shall be supplied to any candidate of the ward and shall be available for inspection to any voter of the ward. Section 33 (1) Election petitions to be heard and disposed of by Chief Judge of the Small Cause Court. (1) If the qualification of any person declared to be elected for being a councilor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the State Elections Commissioner of a nomination or of the improper reception of refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of section 28F, any person enrolled in the municipal election roll may, at any time, within ten days from the date on which the list prescribed under clause (k) of section 28 was available for sale or inspection apply to the Chief Judge of the Small Causes Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Election Rules 2006. 17. Rule 2 (q) of the Rules defines "Returning Officer" as an Officer appointed as such under Rule 3. Rule 3 enables the Municipal Commissioner designate to nominate any officer of the State Government not below the rank of Deputy Collector or of the Corporation not below the rank of Assistant Municipal Commissioner as the Returning Officer for the purpose of conducting the election. Rule 103 provides that the Returning Officer shall complete and certify the return of election in Form- 21 C and send the signed copies thereof to the Municipal Commissioner and State Election Commissioner. Rule 104 inter alia provides for grant of certificate of election to returned candidate as required under Section 32 and also empowers the State Election Commission to publish the result in the Official Gazette. 18. At the outset, we consider it apposite to state that if the State Election Commissioner has failed to frame the Rules for proper implementation of the functions set out in Section 28 (k) of the Act and due to that reason, there appears to be some kind of ambiguity noticed in its interpretation, then in our considered opinion, such provision should be interpreted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of votes polled by each contesting candidate as prescribed under clause (k) of section 28 of Mumbai Municipal Corporation Act which is a same list annexed hereto as Exhibit A and also annexed as Exhibit E of the Election Petition. I say that the said Election result as contemplated under section 28 (k) of MMC Act was available for sale and inspection since 17th Feb. 2012. I say that the Petitioner and his election Agent and his Counting Agents who were present in the counting Hall during Counting of votes, took inspection of the Election Result declared by the Returning/Election officer I prepared as per Section 28 (k) of the MMC Act. I say that thereafter the copy of the Election Result was taken by the Petitioner on 17.02.2012 itself which is annexed as Exhibit E to the Election Petition. 6…………………………………………………………… ……………………………………………………………… … 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering Section 33(1) of the said Act." 26. After reading the aforesaid two statements of the parties, we have no hesitation in holding that the list prescribed under Section 28 (k) was made available to all the parties including the voter of the ward in question on 17.02.2012 by the Returning Officer. This we say so for the reasons that firstly, there is no ground much less sufficient ground to disbelieve the sworn testimony of the appellant wherein she said that the appellant and respondent No.1 herein (election petitioner) including their voting agents and other persons were throughout present in-person on 17.02.2012 during counting of votes. Indeed, counting of votes is always done in presence of the candidates and their agents and in this case also it was done in presence of the candidates, who contested the election. Secondly, as soon as the results were announced on 17.02.2012, the appellant and respondent No.1 herein were given their respective certificates in Form-21C as prescribed in Rule 103 of the Rules by the Returning Officer. Thirdly, respondent No.1 herself inspected the list prepared by the Returning Officer, which she could not do unless the list was made availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and/or Section 32, as contended by the learned counsel for respondent No.1, then instead of mentioning Section 28 (k), the legislature would have mentioned Section 10 and/or Section 32 in Section 33(1) of the Act. However, it was not done. The legislative intention, therefore, appears to be clear leaving no ambiguity therein by including Section 28 (k) only and excluding Section 10 and 32 in Section 33 (1). 30. It is a settled principle of rule of interpretation that the Court cannot read any words which are not mentioned in the Section nor can substitute any words in place of those mentioned in the section and at the same time cannot ignore the words mentioned in the section. Equally well settled rule of interpretation is that if the language of statute is plain, simple, clear and unambiguous then the words of statute have to be interpreted by giving them their natural meaning. [See. Interpretation of statute by G.P. Singh 9th Edition page 44/45]. Our interpretation of Section 33 (1) read with Section 28 (k) is in the light of this principle. 31. We accordingly, hold that the list prescribed under Section 28(k) was available for inspection and sale to the voters of the ward i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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