Decided on May 31,1967

C.J. JOHN Appellant


- (1.) This Civil Miscellaneous Petition by an elector is for condonation of 10 days' delay in the presentation of the relative Election Petition. For the 4th general election held on February 20, 1967, the petitioner was an elector and the respondents were the three candidates in the Manalur Constituency in the Trichur District. The Returning Officer on February 21, 1967, declared the 1st respondent to have been elected to the State Legislature. The petitioner challenges the validity of that declaration by the Election Petition which was presented on April 17, 1967. Under S.81 of the Representation of the People Act, XLIII of 1951, an Election Petition has to be presented within 45 days from "the date of election"; and the date of election is defined in S.67A of the Act as the date on which the candidate is declared by the Returning Officer to be elected to the Legislature. Hence, the last date for presentation of the instant Election Petition fell on April 7, 1967, and there was a delay of 10 days in its presentation on April 17 only. C. M. P. No. 2984 is to condone that delay.
(2.) The cause for the late presentation of the Election Petition is stated in the C. M. P. thus: "...I was under a wrong impression, bona fide though it be, that the date of election is the date of notification of election result in the Government Gazette. The result was published in the Kerala Gazette Extraordinary dated 25 2 1967. Hence I thought that the last date for filing the Election Petition is 11 4 1967 which conies during the mid-summer recess of the High Court of Kerala. Therefore I bona fide thought that as in other cases, I need file the election petition on the reopening date after the mid-summer recess. For consultation in regard to the filing of the election petition I came to the office of my Advocate at Ernakulam on 7 4 1967 when I was told that the date of election as far as Manalur Constituency is concerned is 21 2 1967 and that the last date for filing the petition is 7th April itself, the Jast working day before the mid-summer recess. I had not come on 7th ready to file the petition on account of the wrong impression I had about the date of election as referred to earlier. I had to get ready Rs. 2000/- towards deposit towards security for costs. Immediately on receipt of information I returned home to make ready the money for deposit and towards the expenses for filing the petition. I was able to get ready the money required only by Saturday, 15th. As the petition could be filed only after deposit of money under the necessary Head in the State Bank of Travancore, as the petition has to be accompanied by receipt of such deposit for compliance with S.117 of the Representation of People Act, I am able to file the petition only today, 17th April. There is a delay of 10 days in filing the petition. The earlier averments would make it clear that there was no wanton negligence on my part in the matter. The delay is really the result of a bona fide mistake on my part."
(3.) Notice of the C. M. P. was ordered by Sadasivan J. on April 18. Respondents 1 and 2 accepted notice by April 24; and the 1st respondent has entered appearance through counsel. But the notices issued to the 3rd respondent have been returned unserved on the ground that he could not be found at the address given. The only prayer in the Election Petition is to declare the election of the 1st respondent void. There is no prayer for declaring any other candidate who contested the election as been duly elected, and there is no allegation of any corrupt practice made against any other candidate. In the circumstances, under S.82 (a) of the Representation of the People Act, 1951, the returned candidate alone is a necessary party to this Election Petition. The non service of notice on the 3sd respondent is therefore immaterial, and the petition is heard by me today.;

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