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RMA / ATU

ININ THETHE HIGHHIGH COURTCOURT OFOF JUDICATUREJUDICATURE ATAT BOMBAYBOMBAY

CIVIL APPELLATECIVIL APPELLATE JURISDICTION JURISDICTION

WRIT PETITION NO. 1273 OF 2024

Rajesh Chandrakant Shingade ..Petitioner

Versus

The State of Maharashtra & Ors. ..Respondents

WITH

WRIT PETITION NO. 1360 OF 2024

Nita Ramesh Thakore & Anr. ..Petitioners

Versus

The State of Maharashtra & Ors. ..Respondents

....................

Ms. Shivani Kondekar a/w. Mr. Siddharth Jagushte, Advocates for

Petitioners.

Mr. Jitendra P. Patil, AGP for Respondent Nos.1 to 4 – State.

Mr. C.G. Gavnekar a/w. Mr. Ashutosh Gavnekar and Mr. Rohit

Parab, Advocate for Respondent No.5.

...................

CORAM:MILIND N. JADHAV, J.

DATE :MARCH 21, 2024.

ORAL JUDGMENT:

1. Both Writ Petitions are disposed of by this common

judgment. Facts are absolutely identical in both Writ Petitions. For

convenience and reference, facts in Writ Petition No.1273 of 2024 are

referred to herein. The result applies to both Petitions. In Writ

Petition No.1360 of 2024, two Petitioners have filed the Election

Petition jointly. It is verified by both Petitioners.

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2. The question that arises before the Court in the present

Writ Petitions is “Whether any procedural deficiency in the

proceedings filed online within the prescribed limitation period

designated with objection can be labelled as proceedings filed beyond

limitation?” Strict period of limitation applies in the present case. The

proceedings is an Election Petition filed to challenge result of an

Election (public).

3. Petitioner in Writ Petition No.1273 of 2024 - Rajesh

Chandrakant Shingade has filed the Election Petition. Facts in the

Election Petition as also other relevant dates are not in dispute.

Election result was declared on 06.11.2023. Respondent No.5

represented by Mr. Gavnekar was declared elected from Ward No.3 of

the Gram Panchayat of Mauje Jambulpada Varhad, Taluka Sudhagad,

District Raigad in the election. Petitioner being unsuccessful

challenged the election of Respondent No.5 by filing Election Petition.

Under the statute, such Election Petition is required to be filed within

15 days from the date of declaration of results of election. That

prescribed period of limitation would end on 21.11.2023.

4. Petitioner has come with the case that on 20.11.2023,

Petitioner filed Election Petition through his Advocate before the Civil

Judge Junior Division Pali, District Raigad through e-filing i.e. online.

Petitioner got e-filing No.C2023000012 which is supported by

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document at page No.201 of the Petition. According to Petitioner,

remark which appeared pursuant to e-filing action undertaken by

Petitioner on 20.11.2023 reads as “document not serial”.

Petitioner would submit that this was due to technical failure of the

internet and there was a network issue. Advocate for Petitioner

immediately thereafter on the same date proceeded to Pali District

Court for exercising the option of physically filing the Election Petition

as well. Distance between the Court at Alibag and Pali is 55 kms. It is

averred by Petitioner that in Pali District Court, Petitioner’s Advocate

attempted to physically file the Election Petition but was informed by

the Court Filing Staff that the online attempt made by Petitioner raised

the objection “Document not serial” and it was due to network

reception problem in Pali District Court. It is averred that Petitioner’s

Advocate was informed to return back after 2-3 days but that would be

beyond 21.11.2023 i.e. beyond the prescribed period of limitation. It is

next averred by Petitioner that on 22.11.2023, Petitioner approached

the Assistant Superintendent in the office of District Court at Pali and

submitted Application dated 23.11.2023, copy of which is appended at

page No.203 of Petition, stating the action taken by Petitioner on

20.11.2023 and what transpired thereafter be considered and delay of

two days in physically filing the Election Petition be condoned.

Application was resisted by Respondent No.5. It was heard by the

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learned District Court and by order dated 21.12.2023, Application was

rejected resultantly leading to filing of the present Writ Petition. The

impugned order in Writ Petition No.1360 of 2024 is dated 21.12.2023.

5. Ms. Kondekar, learned Advocate for Petitioners in both

Writ Petitions would submit that as a result of the impugned order,

substantial right of challenge of the Petitioners to the election result

stands ousted despite the Petitioner having approached and having

filed the Election Petition in the Court within the limitation period on

20.11.2023 through e-filing which is evident from the fact that

Petitioners were allotted a filing number bearing

AMH20210052373C202300016 and AMH20220000917C202300012

respectively with the remark “Document not Serial” on 20.11.2023

itself. She would submit that there was an inherent internet technical

failure on 20.11.2023 due to which immediately after the e-filing

procedure having been complied with, Petitioners as a matter of

abundant caution approached the District Court at Pali to file the

physical copy of Election Petition so as to ensure that there is no

transgression of the limitation period which was supposed to end on

the following day i.e. on 21.11.2023.

5.1. In her submissions, she would submit that after the

declaration of election result on 06.11.2023, Election Petition was filed

by Petitioners on 20.11.2023 online and thereafter the Petitioners’

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Advocate approached the Bench Clerk in Pali Court, namely Pradip

Mhatre for filing the Election Petition physically. She would submit the

fact that the Petition was filed online is evidenced from the online

acknowledgment placed on record at page No.201 of the Writ Petition.

The first entry on the said document notes that Rajesh Chandrakant

Shingade (Petitioner) has filed the Election Petition against Sandesh

Dnaneshwar Londhe and the e-filing number allocated thereunder

namely AMH20210052373C202300016 evidences such filing.

She would submit that on that date, there was a network failure due

to which some technical difficulty had arisen. The remark which is

mentioned after e-filing of the Election Petition namely “Document not

serial” could not be rectified online on that date. Hence she would

submit that as a matter of abundant caution, Petitioners’ Advocate

immediately left from the Court of the Civil Judge Junior Division,

Pali, District Raigad to carry out the physical filing of the Election

Petition on that date itself. She would draw this Court’s attention to

the fact that the Election Petition was filed online on 20.11.2023

whereas the last date of filing of the Election Petition was on

21.11.2023. She would submit that on 20.11.2023, physical filing of

the Election Petition was also effected and the Petitioners were infact

informed by the Court filing staff that e-filing of the Election Petition

was showing the objection “Document not serial” due to network

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problem in Pali District Court. Next she would submit that Petitioners’

Advocate was therefore asked to revisit the Court after 2–3 days by

which date the network problem would be sorted out.

5.2. At this stage, she would make a point that the fact of the

Election Petition having been filed on 20.11.2023 is clearly evidenced

by the e-filing number allocated on that date. She would submit that

in order to arrest the period of limitation, the Election Petition had to

be e-filed on or before 21.11.2023, which was accomplished.

5.3. She would fairly inform the Court that though averments

made in paragraph Nos.8 to 11 of the Petition pertain to the exercise

of physical filing of the Petitions also, but in view of the averments

made in paragraph No.13 onwards, this Court should not hold

otherwise i.e. the Petitioner had waived his right of having filed the

Election Petition online on 20.11.2023 against the Petitioners, because

the Petitioners approached the Court to file the Petition physically.

This fact incidentally has been capitalized upon by Mr. Gavnekar

appearing for Respondent No.5 in his response, which I will advert to

later.

5.4. In support of her submissions, she has referred to and

relied upon the following 3 decisions of this Court:-

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(i) Trafigura Global Services Pvt. Ltd. Vs. Principal

Commissioner of CGST & Central Excise

1

;

(ii) NBK Films LLP Vs. Reliance Industries Limited

2

; and

(iii) Yogesh Rajendra Mehra Vs. Principal Commissioner

CGIT and Central Excise Raigad and Ors.

3

.

5.5. On the basis of the aforesaid decisions, she would submit

that Petitioner has filed the Election Petition online on 20.11.2023 and

this has to be construed as having filed the Election Petition within

limitation. She would draw my attention to paragraph No.8 of the

decision in the case of Trafigura Global Services Pvt. Ltd. (1

st

supra)

and would contend that the Division Bench of this Court has taken a

categorical view that even assuming that the Petitioner had

subsequently submitted the relevant documents, once the Writ Petition

has been filed by online method and there is evidence of it being filed

online, it could not have been held that the Petitioner’s Application

(filing) was barred by limitation due to any defect and deficiency,

which was a curable defect and hence she would submit that filing of

the Election Petition online on 20.11.2023 has to be held within the

prescribed period of limitation only.

1WPL No.23118 of 2023 decided on 16.01.2024

2IAL No.8410 of 2023 decided on 18.01.2024

3WP No.1632 of 2024 decided on 20.01.2024

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5.6. Next she would submit that in the decision of NBK Films

LLP (2

nd

supra) the learned Single Judge of this Court (Coram: Smt.

Bharati Dangre, J) has returned a finding that once the action is

generated on the date of filing which is electronically received by the

Registry, it has to be considered, rather it shall be considered as the

date of e-filing. She would submit that even though, it is quite

possible, that on that ‘action’ being generated there may be objections

which are notified on a subsequent date and these objections can be

cured later on, but the date of filing will be the date on which the

proceeding is received electronically by the Registry.

5.7. In the third decision which is the decision of the Division

Bench of this Court in the case of Yogesh Rajendra Mehra (3

rd

supra),

Ms. Kondekar has drawn my attention to paragraph Nos.11 to 16

thereof and she has relied upon them in support of Petitioner’s case in

its entirety. She would submit that the findings returned by the

learned Division Bench of this Court, support the Petitioners’

contentions that Petitioners’ filing of Election Petition on 20.11.2023

by electronic filing method and the electronic filing number having

been generated needs to be accepted as the Election Petition having

been filed on 20.11.2023 i.e. within the period of limitation.

5.8. She would submit that the Writ Petitioners have strictly

abided by the strict period of limitation i.e. the 15 days window period

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which is their fundamental right and filed the Election Petition well

before the said limitation would end on 21.11.2023 and in that view

of the matter, the impugned orders deserved to be quashed and set

aside.

5.9. She would submit that in the facts and circumstances of

the present case, a very hyper-technical view cannot be adopted by

holding that though admittedly the Election Petition was electronically

filed/received on 20.11.2023 with objections or defects, the same will

have to be rejected as having not been filed within the period of

limitation. According to her, the objection raised on e-filing of the

Election Petition on 20.11.2023 i.e. “Document not serial” is a curable

defect which is in the nature of objections required to be cured and

removed and such objection cannot oust the legal right and the legal

remedy available to the Writ Petitioner to file the Election Petition.

She has drawn an analogy of e-filing of the Election Petition with e-

filing of matters in the Bombay High Court which on being filed are

initially allocated a stamp registration number and various objections

are raised which required to be removed subsequently. She would

submit that after the objections are removed the matter is allocated a

final registration number. Hence she would submit that the date of

filing is the date of the stamp number of the Petition always.

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5.10. In view of the above, she would submit that the electronic

filing number generated in both cases which is at page No.201 of the

Writ Petition No.1273 of 2024 and which is at page No.224 of Writ

Petition No.1360 of 2024, within the period of limitation as on

20.11.2023 as prescribed deserves to be accepted and both the

impugned orders deserve to be quashed and set aside.

6. Mr. Patil, learned AGP appearing for Respondent Nos.1 to

4 – State and its functionaries. He would submit that in the facts and

circumstances of the present case and the submissions advanced by the

Petitioners and Respondent No.5, this Court after considering the legal

position and the Rules be pleased to pass an appropriate decision in

the Writ Petitions.

7. PER CONTRA, Mr. Gavnekar, learned Advocate appearing

for Respondent No.5 would succinctly submit that in the present case

e-filing has been unsuccessfully done by electronic filing on

20.11.2023 and therefore the Application dated 23.11.2023 was filed

by Petitioner for taking the Petition on record. Hence according to

him, this action of physically filing the Application after the prescribed

period of limitation renders the challenge to the Election result

nugatory as it is maintained beyond limitation.

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7.1. At the outset, Mr. Gavnekar draws my attention to the e-

filing record which is appended at page No.201 of the Writ Petition

and would submit that what has been allocated to the Petitioner is not

a final number assigned to the Election Petition, but a mere e-filing

number. He would therefore draw my attention to the averments

made in the Writ Petition and more specifically paragraph No.7 to 12

of the Writ Petition and after reading them would submit that only

because the Petitioners failed in e-filing the Petition they filed the

Election Petition physically by invoking Rule 14 of the e-Filing Rules of

the High Court of Bombay 2022 which apply to the present case.

He would submit that specific averments made by Petitioners in

paragraph Nos.8 to 10 leave no room for doubt to construe that

Petitioners invoked Rule 14 which is the alternate method of filing the

Election Petition by physical filing. He would buttress his submissions

by drawing my attention to the averments in paragraph No.14 of the

Petition wherein reference is made to the Application filed 23.11.2023

filed by the Petitioner seeking condonation of delay, which is appended

at page No.203 of the Writ Petition. While taking me through the

Application and its averments, he would submit that Petitioner has

accepted that he has successfully filed the Election Petition by physical

filing on 23.11.2023 and that amounted to Petitioner having waived

his right of filing the Petition online by e-filing. While drawing my

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attention to Rule 14 of the said Rules and more specifically Rule 14.3,

he would submit that the said Rule applies when there is a difficulty in

registering and filing of the matter online through e-filing due to a

technical failure. He would submit that Rule 14.3 states that the

facility for online e-filing through the web portal shall be available

during all twenty four hours of each day, subject to breakdown, server

downtime, system maintenance or “such other exigencies” when

online e-filing is not possible due to any of the reason and therefore it

sets out, that parties can either approach to the designated counters or

take recourse to physical filing. In the facts of the present case, he

would therefore submit that the act of Petitioner invoking the remedy

of physically filing the Election Petition on 23.11.2023 clearly waived

his right of e-filing the Petition and the physical filing was admittedly

beyond the prescribed period of limitation. Hence it will have to be

construed that the said Election Petition is not filed within limitation

and the impugned order deserved to be sustained.

7.2. Besides the above factual submissions, Mr. Gavnekar has

made legal submissions stating that once the document is filed and a

stamp number and login ID number is generated, then the document

becomes the property of the Court. He would draw my attention to

Section 3 of the Limitation Act, 1963 and would contend that the key

words used in the said Section are the words “……….

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instituted………..” and “…………. shall be dismissed………...” in that

Section.

7.3. He would submit that in the facts and circumstances of

the present case, the Election Petition has to be construed as having

been filed, rather “instituted” in the Designated Court only on

23.11.2023 when the Election Petition was physically filed by the

Petitioner and therefore the same having not been filed before the

expiry of the limitation period on 21.11.2023, the Election Petition is

time barred and has to be therefore dismissed as filed beyond

limitation.

7.4. While distinguishing the above 3 judgments of this Court

referred to by Ms. Kondekar, Mr. Gavnekar would submit that the facts

of the cases in the 2 Division Bench judgments were entirely different.

He would submit that the issue in one of the case therein pertained to

filing of proceedings in this Court i.e. High Court whereas in the

second decision it pertained to filing of proceedings electronically

under the Income Tax Act. He would submit that those facts are clearly

distinguishable from the facts in the present case. In the instant case,

Petitioner filed the Election Petition physically by electing that option

and thus the Election Petition is filed beyond the period of limitation

which is not the case in the two Division Bench judgments. In so far

as the Single Judge’s decision is concerned, while referring to

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paragraph No.10 of the said decision he would submit that the said

decision would not apply to the facts of the present case as the

Respondent is arguing the present case only on the basis of waiver of

the Petitioner’s right in view of the Petitioner’s subsequent action of

having filed the Election Petition physically on 23.11.2023.

7.5. Mr. Gavnekar on the basis of his submissions has urged

the Court to dismiss both Writ Petitions and sustain the impugned

orders passed by the learned Trial Court and to hold that the Election

Petitions are filed beyond the period of limitation.

8. I have heard Ms. Kondekar, learned Advocate for

Petitioners in both Writ Petitions; Mr. Patil, learned AGP for

Respondent Nos.1 to 4 – State and Mr. Gavnekar, learned Advocate for

Respondent No.5 in both Writ Petitions and with their able assistance

perused the pleadings and record of the case. Submissions made by

the learned Advocates have received due consideration of the Court.

9. It has been urged by Petitioners that the Election Petitions

have been filed electronically and received by the Court online on

20.11.2023 i.e. before the end of the limitation period on 21.11.2023,

despite the objection “Document not serial” and that action be

considered as having filed the Petitions within the period of limitation.

The learned Trial Court while deciding the Application filed by

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Petitioners has held that Limitation Act would not apply in the facts

and circumstances of the present case, but in the same breath has

rejected the Applications filed by the Petitioners.

10. It is an admitted position and both the learned Advocates

are ad idem that the Rules framed by the State Government, namely

E-Filing Rules of the High Court of Bombay 2022 would apply for the

purpose of e-filing of the Petitions in the learned Trial Court in the

present case.

11. The said Rules are relevant and will have to be read in its

entirety. They cannot be read piecemeal which is attempted to have

been the position advocated by Respondent No.5 by restricting reading

and applicability of Rule 14.2 and 14.3 only. In my opinion, the

definition of Electronic Filing (e-filing) under Rule 2.7 is most relevant

and reads thus:-

“2.7. Electronic Filing (e-filing): means e-filing as

prescribed through the Internet (at the web portal of the Court)

and through the internet / intranet at Designated Counters,

unless the context requires otherwise.”

12. From the above definition, it is clear that all that is

contemplated is e-filing as prescribed through the internet (at the web

portal of the Court) and through the internet / intranet at the

designated counters. In the present cases, this specific action has been

undertaken and complied with by both Petitioners on 20.11.2023 and

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it is evidenced by the document placed at page Nos.201 and 224 in

both Writ Petitions wherein electronic filing number is clearly

mentioned and allocated to both Election Petitions as having been e-

filed through the internet at the web portal of the Court through the

designated counter on 20.11.2023.

13. Once the Petitioners have cleared this hurdle of electronic

filing as prescribed under the definition enumerated in Rule 2.7 read

with the General Instructions under Rule 3 which have also been

complied with in its entirety in the present case, it will have to be

construed that the Election Petitions have been filed on 20.11.2023

within the period of limitation.

14. Though Respondent No.5 has laid thrust on the averments

of Petitioners having approached the Trial Court subsequently for

physical filing of the Election Petitions on 23.11.2023 and therefore

having waived their right of having filed the Election Petition online

through e-filing on 20.11.2023, I am not willing to accept the said

submission of the said Respondent due to the fact that Petitioners have

filed the Election Petition electronically online on 20.11.2023 well

before the end of limitation period on 21.11.2023 and the said Petition

was received electronically and the e-filing number was generated on

that date.

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15. I have not heard Respondents having made any specific

submission on the fact that after e-filing has been effected by

Petitioners on 20.11.2023, the remark “Document not serial” would

preclude them from maintaining the Election Petition as having been

filed on that date.

16. The only thrust of Respondent No.5’s submission is that

the subsequent approach of Petitioners to file the Petitions physically

on 23.11.2023 amounted to waiver of the e-filing done unsuccessfully

on 20.11.2023.

17. In this regard, I wish to refer to the decision in the case of

Yogesh Rajendra Mehra (3

rd

supra) and paragraph Nos.11 to 16 of the

said decisions which are relevant and read thus:-

“11. On behalf of the Petitioner, it is submitted that this is

clearly a case of an inadvertent / bona fide error on the part of

the Petitioner’s Chartered Accountant in filing the returns and

depositing tax under a cancelled registration number and for the

second time filing the same return under new registration

number. He therefore submitted that the Petitioner was entitled

to seek refund of the tax which was erroneously deposited with

the returns filed under the first (cancelled) registration number.

He submits that returns as filed under the old registration were

void ab initio and consequently, the amount deposited

thereunder was of no legal consequence, so as to amount to be

any tax either validly paid or collected. It is submitted that these

facts were not taken into consideration by the authorities below,

in passing the impugned orders. It is hence submitted that the

said orders are contrary to law. Insofar as the impugned order

passed by the appellate authority is concerned, the submission is

that although the order records that the Appellant had filed the

appeal Online on 8

th

August 2022, the appellate authority has

not set out any reasons as to why such online filing of the appeal

was not taken into consideration in deciding the issue of

limitation. He submits that, although there was an error in

submitting copies of some of the documents, that cannot make

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the filing of the appeal to be invalid and/or not within the

limitation when according to him, the same was filed within the

prescribed limitation as prescribed by Sections 107(1) and (4) of

the CGST Act.

12. On the other hand, Mr.Mishra, the learned counsel for

the Respondents, would support the impugned orders. He

however submits that the portal indicates that there is no

dispute in presenting the appeal online. He would also submit

that the first registration under which the tax was deposited was

cancelled and, thereafter, the Petitioner applied for a fresh

registration, which was granted to the Petitioner on 26

th

March

2022.

13. Having heard the learned counsel for the parties and

perused the documents on record, in our opinion we find that

the approach of both the Authorities in dealing with the

Petitioner’s refund application is not correct in facts as also in

law. This appears to be clearly a case wherein, admittedly, the

Petitioner’s first registration stood cancelled by an order dated

1

st

January 2019. It is not in dispute that the Petitioner, was

granted a fresh registration on 26

th

March 2022 which was his

valid registration under the CGST Act, under which the

Petitioner was expected to file his returns. However, it appears

that there was an inadvertent / bona fide mistake, on the part of

the petitioner’s Chartered Accountant in filing the Petitioner’s

return for the first quarter of the year 2022 on both the

registrations instead of filing such returns under the new /

second registration. Not only this, the returns were identical,

also, the tax deposited was of the similar amount of

Rs.1,22,220/-.

14. Considering these facts, it was required to be

considered by the authorities below that an assessee cannot be

expected to file his return and deposit any tax under an invalid

cancelled registration number. Further, a legitimate and proper

return was filed by the Petitioner under the second (new)

registration which was a valid registration. Thus, insofar as the

tax deposited under the first (cancelled) registration is

concerned, the said registration itself being non-existent, the tax

return filed thereunder and any tax deposited under such

return, could not have been retained by the respondents as it

was not a deposit as per law, it also cannot be a deposit received

or any collection of tax under authority of law. Insofar as the

second registration return is concerned, the same was

appropriately filed and similar amount of Rs.1,22,220/- was

deposited.

15. In these circumstances, it was not correct for the

original authority to furnish the reasons, as noted by us above,

so as to deny the refund claim of the Petitioner. Further, the

appellate authority on a purely technical reason that the

Petitioner’s appeal was barred by limitation under Sections 107

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(1) and (4) rejected the Petitioner’s appeal. It is not in dispute

that the Petitioner had filed his appeal online on 18

th

August

2022, which was within the prescribed limitation i.e. within a

period of four months from the impugned order dated 8

th

June

2022. Although, in paragraph 4.5 of its order, the appellate

authority has recorded the said fact, however, merely on the

ground that physical copies were not furnished and/ or on some

deficiencies on documents to be uploaded being not complied by

the Petitioner, the appellate authority taking a hyper-technical

view of the matter, rejected the Petitioner’s appeal, without

examining such essential facts and without touching the merits

of the Petitioner’s case. Such approach of the appellate authority,

in our opinion, was not only contrary to the record and illegal,

but also not consistent with the provisions of Sections 107(1)

and (4) of the CGST Act.

16. We may observe that, in such circumstances, any

deficiency in filing the appeal / application like failure to file

physical documents, cannot make the appeal, which was

registered on the online portal within the prescribed period of

limitation, to be labelled and/or held to be barred by limitation.

Once the appeal was filed (albeit under the Online method)

within the prescribed limitation, any deficiency in the appeal

certainly could be removed later on, as the law does not

provide, that the proceeding be strictly filed sans deficiency, and

only then, the proceedings would be held to be validly filed. If

such proposition is to be recognized as the correct position, it

would not only tantamount to a patent absurdity, but also would

result in a gross injustice, prejudicially affecting the legitimate

rights of persons to a legal remedy(access to justice). Thus, the

parties would necessarily have an opportunity to remove the

deficiencies, if any, which may prevail at the time of filing of the

proceedings, after the proceedings are filed. It may be observed

that procedural compliances can never defeat the substantive

remedy/right to pursue any proceedings when filed within

limitation. Thus, any procedural deficiency in the proceeding

filed within the prescribed limitation cannot be labelled to be a

proceeding filed beyond limitation.”

17.1. The facts of the above case are stated in paragraph No.11

to 13 and the findings are returned in paragraph Nos.14 to 16 therein.

This Court observed that any deficiency in filing the Appeal /

Application for failure to file the physical documents, cannot make the

Appeal or the proceedings which was registered on the online portal

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within the prescribed period of limitation to be labelled and held to be

barred by limitation. This Court held that once the proceedings are

filed albeit under the online method within the prescribed limitation,

any deficiency in the same certainly could be removed later on as the

law does not provide that proceedings be strictly filed sans deficiency

and only then the proceedings would be held to be validly filed.

18. In the above context, while referring to the e-filing Rules

applicable to the present case, it is seen that there is nothing in the

said Rules which could construe that the proceedings which have been

filed by Petitioners on 20.11.2023 would debar them from maintaining

the Election Petition. It is clear that the Petition is filed online and

electronically by them before the end of the limitation period

generating the remark “Document not serial”. This Court has held that

to take an extreme view that if there is deficiency in filing it would

debar the party from maintaining the action would tantamount to

patent absurdity and it would result in gross injustice prejudicially

affecting the legitimate right of persons to a legal remedy (access to

justice). It is trite that parties will undoubtedly have an opportunity to

remove the deficiencies, if any, which may prevail at the time of filing

the proceedings, after the proceedings are filed.

19. This Court has observed that procedural compliances can

never defeat the substantive remedy and right to pursue substantive

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challenge and proceedings when filed within the limitation period. In

the present case the procedural deficiency noted as “Document not

serial” after admittedly electronically filing and registration of the

Election Petition online on 20.11.2023 cannot be held to be as the

Petition being not filed within the limitation period. What is crucial is

the fact of receiving the Petition in the record of the Registry, which

infact has been accomplished.

20. The impugned orders dated 21.12.2023 passed by the

learned Trial Court though have rejected the Application filed by Writ

Petitioners which was on account of considering the physical filing of

the Election Petition two days later, the jurisdiction of this Court and

the amplitude of this Court while hearing writs under its extraordinary

jurisdiction under Articles 226 and 227 of the Constitution of India is

extremely wide. Respondent No.5 cannot construe and maintain an

argument that, by virtue of Petitioners adopting physical filing of the

Petitions, their challenge by electronic filing is waived by them. By

filing both the Election Petitions online, which were received online on

20.11.2023, despite the objection raised, the Election Petitions will

have to be held as filed on that date within limitation. The objection

raised or subsequent act of the Petitioners to file the Petition physically

later cannot render the electronic filing of the Petition on 20.11.2023

as nugatory. Petitioners’ right to maintain challenge is upheld as the

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Petitions are held to have been filed on 20.11.2023 online, despite the

objection raised. The objection undoubtedly being a curable defect.

This Court can always cure the defect of the action which is occurred.

21. In view of the above observations and findings, I am of

the clear opinion that both the aforesaid Election Petitions have been

filed within limitation on 20.11.2023 which was supposed to expire on

21.11.2023. They have therefore to be accepted as filed within

limitation. Learned Trial Court shall give appropriate time and

opportunity to all Petitioners to remove the defects and objections, if

any, and proceed with the said Election Petitions strictly in accordance

with law and dispose of the same as expeditiously as possible and at

the joint request of both the contesting parties, within a period of six

(6) months from today.

22. Needless to state that the impugned orders, both dated

21.12.2023 in both Writ Petitions are quashed and set aside and above

directions are issued in the Election Petitions.

23. With the above directions, Writ Petition No.1273 of 2024

and Writ Petition No.1360 of 2024 are both allowed and disposed.

Ajay [ MILIND N. JADHAV, J. ]

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