The limitation of time prescribed by Rule 5(1) of the rules framed by the Provincial Government under Sec.19, Bihar and Orissa Municipal Act, 1922, is a matter of jurisdiction, and that if the Election Commissioner entertains an election petition beyond the period prescribed by Rule 5(1), he will be acting in excess of his jurisdiction.

Ramaswami, J.

1. The question to be determined in this case is whether the Election Commissioner of Cham-paran acted in excess of his jurisdiction in entertaining the election petition filed by the opposite party, Dr. Shyamakant Verma, beyond the period of fourteen days from the date of the election as prescribed by Rule 5(1) of the rules framed by the Provincial Government under Sec.19, Bihar and Orissa Municipal Act, 1922.

2. The material facts are not controverted. In March 1952 there was an election of the commissioners of the Motihavi Muni finality at which the petitioner, the opposite party and twenty other persons were elected as commissioners. A notification publishing the names of the commissioners so elected was duly published in an issue of the Bihar Ga7ette dated 30-4-1952. On 20-8-1952, five more persons were nominated by the State Government as Municipal Commissioners of the Motihari Municipality. It is stated that on 8-9-1952, there was a meeting of the commissioners for electing a chairman. The petitioner and the opposite party each secured an equal number of votes, but the President gave his casting vote in favour of the petitioner who was declared duly elected as Chairman of the Municipality. As there was an apprehension of the breach of the peace, the District Magistrate directed the petitioner not to take charge of the office of the Chairman pending an enquiry.

On 21-10-1952, the District Magistrate informed the petitioner that he had received instructions from Government and that the petitioner would be permitted, to take charge as the Chairman of the Motihari Municipality from Jagannath Chaudhury who had been officiating as Chairman. This order was communicated to the opposite party, Dr. Harishanker Prasad, on the same date. On 27-10-1952, the opposite party filed an application before the Election Commissioner praying that the election of the petitioner, Dr. Shyamakant Verma, be declared as null and void on the ground that the entire election proceedings were illegal. An objection was raised on behalf of the petitioner to the effect that the election petition ought to have been filed within fourteen days from the date of the election, and the election petition not being filed within the time fixed, it ought to be rejected by the Election Commissioner. The objection was overruled by the Election Commissioner on the ground that the opposite party had sufficient cause for not filing the election petition within the prescribed period and the delay should be condoned.

3. Against this order the petitioner has filed an application under Sec.115, Civil P. C. He has also filed an application under Article 226 of the Constitution as a matter of precaution.

4. At the commencement of the argument in the case Mr. Lalnarain Sinha pointed out that there are two decisions of a Division Bench of this Court holding that an Election Commissioner is a "Court" within the meaning of Sec.115. Civil P. C. and that the High Court was competent to deal with an application in revision under Sec.115 of the Code against the order of the Election Commissioner constituted under the rules made by the State Government by virtue of Sec.19, Bihar and Orissa Municipal Act, 1922. See -- Abdul Razak V/s. Kuldip Narain, AIR 1944 Pat 147 (A) and -- Jamuna V/s. Jogendra, AIR 1951 Pat 209 (B). These authorities are binding upon this Court, and in view of this circumstance the learned Advocate General conceded that the petitioner could maintain an application in revision in the present case.

5. The principal question, therefore, is whether the Election Commissioner acted in excess of his jurisdiction in holding that the election petition filed by the opposite party could be entertained even beyond the period of fourteen days prescribed by Rule 5. To put it in other words, the question is whether the period of limitation prescribed by Rule 5 is merely a directory provision, or whether it is a preliminary condition for the exercise of juris