ORDER [ENTITY], J.
1. The sole question that arises for consideration in this revision petition filed under [SECTION] of the [ACT] is, whether [SECTION] of the [ACT] is applicable to an election petition filed under [SECTION] of the [ACT] before the Election Tribunal.
2. Briefly stated the facts are those: The first respondent who lost the election as Member from Ward No.32 in Vijayawada Municipal Corporation held on 9-3-2000 which results were declared on 11-3-2000 challenged the election of the petitioner as such under [SECTION] of the [ACT] (for short "[ACT]") by way of election petition before the Election Tribunal constituted under [SECTION], for trial of election petitions under [ACT] (for short "the [ACT]). Initially, she filed election petition before the District Judge, [ENTITY] at Machilipatnam on 3-5-2000 and the same was returned on 25-5-2000 for presenting before the proper forum by granting seven days time. It is not in dispute that the Election Tribunal was constituted on [SECTION]-5-2000 and the Presiding Officer was appointed on 25-5-2000. On return of election petition by the District Judge, [ENTITY] at Machilipatnam, the same was presented before the Election Tribunal on 29-5-2000. The period of limitation prescribed under [SECTION] is 2 months from the date of declaration of results which expired on [SECTION]-5-2000. Therefore, the respondent No.1 filed [CASE NUMBER] under [SECTION] of the [ACT] read with 671 of the [ACT] for condoning the delay of 18 days in representing the same stating that due to incorrect advise of the Lawyer, the same was filed before the District Judge and on return, the petition was presented within seven days time granted by the District Judge. The petitioner herein opposed the same by filing counter contending that the election petitioner is not entitled to invoke the provisions of [SECTION] of the [ACT] and delay of 18 days in filing the petition is neither wilful nor deliberate but is purely on account of the Lawyer's wrong advice and prayed for dismissal of the application filed for condoning the delay. The Election Tribunal by its order dt. [SECTION]-9-2000 took the view that as the Government delayed the constitution of Election Tribunal, the petitioner approached the District Court, [ENTITY] at Machilipatnam by filing the election petition within the period of limitation prescribed under the [ACT] and on coming to know of the constitution of the separate Tribunal, the same was returned by granted seven days time for presentation. As the petition is filed within seven days time granted by the District Judge and by [SECTION] the provisions of the [ACT] are made applicable for the proceedings initiated under the [ACT], he condoned the delay of 18 days in presentation of the election petition by order dt. [SECTION]-9-2000 which is impugned in the present revision petition.
3. Learned Counsel for the revision petitioner contended that certain provisions of the [ACT] are made applicable only for appeals or applications referred to under [SECTION] of the [ACT] and the same cannot be made applicable to the election petitions filed under [SECTION] of the [ACT]. Under [SECTION] of the [ACT] if the special law or local law prescribes any period of limitation different from the period prescribed under schedule of the [ACT], then only [SECTION] will be applicable if they are not specifically excluded by the local or special Act. As the [ACT] has not prescribed any period of limitation different from the period prescribed, provisions of the [ACT] are not applicable to the election petitions. He further contends that as the election petition is filed after expiry of the period prescribed under [SECTION] of the [ACT] the Tribunal cannot entertain the same and it has to be dismissed for non-compliance of the provisions, therefore the Tribunal committed an error in condoning the delay of 18 days in presenting the election petition and prayed for setting aside the same.
4. In support of his contentions, he relied upon the following decisions:
1. [ENTITY] v. Ganesh Lal, ;
2. [PRECEDENT];
5. On the other hand, learned Counsel for the respondents Sri [ENTITY] supported the order under revision by contending that the provisions of [SECTION], [SECTION] and [SECTION] of the [ACT] are made applicable to the appeals or applications referred to in the Act and the election petition can be treated as application for the purpose of the [ACT], therefore, the lower Court has rightly held that the [ACT] is made applicable and condoned the delay. He further contended that the lower Court exercised its discretion in its proper perspective for condoning the delay. Moreover the Government has constituted Election Tribunals for trial of election petitions under [SECTION] of the [ACT] and the Tribunal itself was constituted on [SECTION]-5-2000 i.e., much after the period of limitation prescribed. In view of the same, as per the advise of the Lawyer, the election petition was filed within the period of limitation before the District Judge, [ENTITY] at Machilipatnam and on its return by the District Judge granting seven days time, the same was presented before the proper forum within the time granted. In view of all these facts the Tribunal is justified in condoning the delay which is discretionary in nature and this Court in exercise of its jurisdiction under [SECTION] of the [ACT] cannot interfere with the discretionary order. In support of his contentions, he placed reliance on the following decisions:
1. [PRECEDENT], , and
2. [PRECEDENT], .
6. In order to appreciate the rival contentions of the parties, it is relevant to refer to the provisions, which govern the controversy.
[SECTION] of the [ACT] reads as follows:
"71. Election petition : (1) No election held under this Act shall be called in question except by an election petition which shall be presented in such manner as may be prescribed.
(2) An election petition calling in question any election may be presented on one or more of the grounds specified in [SECTION] of the Election Tribunal by any candidate at such election or any voter, within two months from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidates at the election and the dates of the election are different is the latter of those two dates"
[SECTION] of the [ACT] reads as follows:
"671: Limitation : (1) In computing the period of limitation fixed for an appeal or application referred to in this Act the provisions of [SECTION], [SECTION] and [SECTION] of the [ACT] shall so far as may be, apply.
(2) When no time is fixed by this Act for the presentation of an appeal or application such appeal or application shall be presented within thirty days from the date of the order in respect of or against which the appeal or application is presented."
[SECTION] of the [ACT] reads as follows:
"71. Procedure before the Tribunal :
(1) x x x x;
(2) xx x x;
(3) The Tribunal shall dismiss an election petition which does not comply with the provisions of [SECTION], [SECTION] or [SECTION]. (4) x x x ."
[SECTION] of the [ACT] reads as follows:
"5. Extension of prescribed period in certain cases : Any appeal or any application, other than an application under any of the provisions of [SECTION] of the [ACT], may be admitted after the prescribed, period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation : The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
[SECTION] of the Act reads as under:
"29. Savings : (1) x x x x ;
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of [SECTION] shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions' contained in [SECTION] shall apply only insofar as, and to the extent to which they are not expressly excluded by such special or local law.
(3) xx xx x x;
(4) x x x x x x."
7. Before we dwell upon the contentious issue, canvassed by the learned Counsel for the parties, it is advantageous to have a look at the law laid down by the Apex Court with regard to the application of [ACT], before the Tribunals constituted under special laws.
8. In [ENTITY] v Life Insurance Corporation of India, , while considering the applicability of [SECTION] of the [ACT] in an application by employees under [SECTION] of [ACT], their Lordships considered the earlier view expressed by a two Judge Bench in [PRECEDENT], , and affirmed the view as regards to the applicability of the provisions of the [ACT], only to the proceedings taken before civil Court and stated at para 4 as follows:-
"Further [SECTION] of the [ACT], provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is 'when the Court is closed'. Again under [SECTION] it is only a Court which is enabled to admit an application after the prescribed period has expired if the Court is satisfied that the applicant had sufficient cause for not preferring the applications. It seems to us that the scheme of the [ACT] is that it only deals with applications to Courts, and that the Labour Court is not a Court within the [ACT]."
9. The Apex Court had an occasion to consider both the cases i.e., [ENTITY] and [PRECEDENT] (supra) in the light of definition of an application contained in [SECTION] of the [ACT] which indicates the object of the Act to include petitions, original or otherwise, under special laws in [PRECEDENT], . After referring to the previous history and the interpretation of old [SECTION] compared with [SECTION] of [ACT] at para 21 and 22 held as follows:
"The changed definition of the words "applicant" and "application contained in [SECTION] and [SECTION] of the [ACT] indicates the object of the [ACT] to include petitions, original or otherwise, under special laws. The interpretation which was given to [SECTION] of the [ACT] on the principle of ejusdem generis is not applicable with regard to [SECTION] of the [ACT]. [SECTION] stands in isolation from all other Articles in [SECTION] of the third division. This Court in [ENTITY]'s case has rightly thrown doubt on the two-Judge Bench decision of this Court in [PRECEDENT] case where this Court construed [SECTION] to be referable to applications under the [ACT]. [SECTION] includes petitions within the word "applications". These petitions and applications can be under any special Act as in the present case.
The conclusion we reach is that [SECTION] of the [ACT] will apply to any petition or application filed under any Act to a civil Court. With respect we differ from the view taken by the two Judge Bench of this Court in [PRECEDENT] case and hold that [SECTION] of the [ACT] is not confined to applications contemplated by or under the [ACT]. The petition in the present case was to the District Judge as a Court. The petition was one contemplated by the [ACT] for judicial decision. The petition is an application falling within the scope of [SECTION] of the [ACT].
10. The Apex Court in [ENTITY] case (supra) held that the Courts cannot extend the period of limitation on equitable grounds more particularly in the matter of filing of election petition under the Act.
11. In the case of [PRECEDENT] (supra) the Supreme Court considered the provisions of [SECTION] of the [ACT], which governs the appeal against the order passed by the Election Tribunal to the High Court. Proviso to [SECTION] leaves discretion to the High Court to entertain an appeal after expiry of period of 30 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.
[SECTION]. The above judgment was considered by the Supreme Court in [PRECEDENT]'s case (supra) and observed that the [ACT] cannot apply to the proceedings like an election petition inasmuch as [ACT] is a complete and self-contained code, which does not admit of the introduction of principles or the provisions of law contained in the [ACT] and held as follows:
" The [ACT] is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a Court of law unless the application thereof has been excluded by any enactment; the extent of such application is governed by [SECTION] of the [ACT]. In our opinion however the [ACT] cannot apply to proceedings, like an election petition inasmuch as the [ACT] is a complete and self contained code which does not admit of the introduction of the principles or the provisions of law contained in the [ACT]." (para 14)
[SECTION]. The Supreme Court after considering the decision of [PRECEDENT] (supra), held as follows:
" An appeal being a creature of a statute the rights conferred on the appellant must be found within the four corners of the Act. Sub-section (2) of the present [SECTION] expressly gives this Court the discretion and authority to entertain an appeal after the expiry of the period of thirty days. No right is however given to the High Court to entertain an election petition, which does not comply with the provisions of [SECTION], [SECTION] or [SECTION]. (Para 18)
14. It is not in dispute that election petition challenging the election of the petitioner as Member from Ward No. 32 was presented before the Election Tribunal on 29-5-2000 i.e., after expiry of two months period prescribed under [SECTION] of the [ACT] which is in para materia with [SECTION] of the [ACT]. There is no corresponding provision like that of [SECTION] of [ACT] in [ACT] which mandates dismissal of election petition which does comply with the provisions of [SECTION], [SECTION] or [SECTION].
But [SECTION] mandates that the Tribunal shall dismiss the election petition which does not comply with the provisions of [SECTION], [SECTION] or [SECTION]. A similar Rule under [ACT] in respect of Grampanchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 was considered by us in [PRECEDENT] in [CASE NUMBER], dt. 17-11-2000 and we held that the said Rule is mandatory and the election petition presented without deposit of a sum of Rs. 100/- entails the consequence of dismissal of election petition and the Tribunal has to dismiss the same in limini.
15. [SECTION], [SECTION] and [SECTION] of the [ACT] are made applicable for an appeal or application referred to under the [ACT]. Nowhere the said provisions are made applicable to the original proceedings initiated under [ACT]. The Tribunal which is constituted under [SECTION] of the [ACT] will adjudicate the rights of the parties, though the discretion is conferred on it, it is to be exercised objectively and judicially. It is now authoritatively held by Apex Court in the case of [PRECEDENT] (supra) that [ACT] will apply to any petitions or applications filed under any Act to a civil Court. Moreover [SECTION] of the [ACT] deals only with proceedings taken before the Court and not by persona designata.
16. An identical issue came up for consideration before a Division Bench of Mysore High Court in [PRECEDENT], wherein an election petition challenging the election of the returned candidate under [SECTION] of the [ACT] was filed before the District Munsif designated for the said purpose with an application to condone the delay of 2 days in filing the election petition. The District Munsif allowed the same. On challenge, the Division Bench of the Mysore High Court after considering the law laid down by the Supreme Court in the cases of [ENTITY] and [PRECEDENT] (supra) held that [SECTION] of the [ACT] is not applicable to the proceedings initiated on an application under 17 of the Rules. Under [SECTION] of the [ACT], [SECTION], [SECTION] and [SECTION] of the [ACT] are made applicable to the appeal or application referred to in the above Act. Though the application is not defined under Act, [SECTION] specifies that if no time is fixed by the Act for presentation of an appeal or application such appeal or application shall be presented within thirty days from the date of the order in respect of or against with the appeal, or application is presented. Only in those cases where an appeal is provided against that order or for filing an application where time is not specified, [SECTION], [SECTION], [SECTION] of the [ACT] were made applicable but not to the other cases. As held by the Apex Court in the case of [PRECEDENT] (supra) no right is however given to the Tribunal to entertain an election petition which does not comply with [SECTION] of the [ACT] as the Tribunal is only & persona designata but not a Court. Whereas in cases where the Election Tribunal is constituted by designation and his successors-in-office can pick up the thread of the proceedings from the stage where his predecessor left it and in such cases alone [SECTION] of the [ACT] can be made applicable as the Tribunal is tapped with all the powers of Court. Whereas in the present case a person retired as District Judge is notified as Election Tribunal to decide the dispute is only a persona designata and cannot be equated with a Court. In view of the same, we are the view that the Tribunal erred in coming to the conclusion that [SECTION] of the [ACT] is applicable to the election petitions filed under [SECTION] of the [ACT]. As the mandatory provision has not been complied with, namely, election petition was not filed within two months the Tribunal has no option but except to dismiss the petition. In view of the same, the Tribunal committed an error apparent on the face of record by condoning the delay in filing the election petition which is without jurisdiction. Therefore, the impugned order is liable to be set-aside and it is accordingly set aside.
17. In the result, the civil revision petition is allowed and the impugned order dt. [SECTION]-9-2000 made in [CASE NUMBER] in [CASE NUMBER] passed by the Election Tribunal, Hyderabad is set-aside, Consequently, [CASE NUMBER] on the file of Election Tribunal, Hyderabad stands dismissed. No costs.