IMPORTANT POINTS
Starting point of limitation of 10 days would be “the date" on which the list prescribed under clause (k) of Section 28 of the Act was available for sale or inspection.
As the election result cannot be declared without preparing the list, the date of declaration of result would be the starting point for limitation for election petition.
In absence of the rules to be framed by the State Election Commissioner, provisions of section 28 and 33 should be interpreted in a manner beneficial to elected candidate rather than election petitioner.
In view of legislative intent of excluding sections 10 and 32 from purview of section 33, provisions of sections 10 and 32 cannot be read into section 33.

JUDGMENT :

A.M.SAPRE, J.

1. Leave granted.

2. This appeal is directed against the final judgment and order dated 09.02.2015 passed by the High Court of Judicature at Bombay in Writ Petition No. 9388 of 2014 which arises out of judgment and order dated 24.09.2014 passed by the Court of Small Causes at Bombay in Municipal Election Petition No. 129 of 2012 holding that the election petition filed by respondent No.1 herein questioning the appellant’s election as a Councilor of the Bruhan Mumbai Municipal Corporation from Ward No.76 is within the period of limitation prescribed under Section 33 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “the Act”).

3. In order to appreciate the issue involved in this appeal, it is necessary to state a few relevant facts:

(a) The election schedule for General Election 2012 of Councilors under the Act was published by Notification dated 02.02.2012 declaring the date of poll as 16.02.2012 and counting of votes on 17.02.2012. The said Notification also declared that the list of elected candidates along with total number of valid votes polled by them will be published in the Government Gazette on or before 21.02.2012 as required under the provisions of Sections 10, 28(k) and 32 of the Act.

(b) The appellant and respondent No.1 herein contested the election from Ward No.76 for Municipal Corporator. The election was held on 16.02.2012 and after counting, which took place on 17.02.2012, the Election Officer declared the appellant herein to have been elected as a Municipal Corporator from Ward No.76. A certificate to that effect was also 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 sale or inspection as provided in Section 33 (1) of the Act. It was contended that since in this case, the list was published and was available for sale or inspection on 17.02.2012, hence, the limitation to file election petition was up to 27.02.2012 as prescribed under Section 33 (1) of the Act whereas the election petition was filed on 28.02.2012 by the election petitioner. It was, therefore, barred by limitation and hence liable to be dismissed as being barred by time. She also filed an application before the Chief Judge praying for framing the issue of limitation as a preliminary issue. Initially, the Chief Judge had rejected the said application but thereafter by order dated 30.07.2013 issued direction to try the said issue as a preliminary issue. After hearing the parties, by judgment and order dated 24.09.2014, the Chief Judge held that the election petition was within limitation. He accordingly entertained the election petition filed by respondent No.1 herein for being tried on merits.

(d) Aggrieved by the said judgment, the appellant herein approached the High Court of Bombay by way of W.P. No. 9388 of 2014. By judgment and order dated 09.02.2015, the learned Single