The nature of subject matter and scheme of the special law i.e. Bihar Panchayat Raj Act, 1993 and Rules 108 to 114 had excluded the application of sec. 5 of the Limitation Act.

Chandramauli Kumar Prasad, J.

1. Petitioner as also respondent No. 4 contested for election to the office of the Mukhiya of Gram Panchayat, Katchore for which the election was held on 19.4.2001. In the said election, petitioner (hereinafter referred to as the returned candidate) was elected Mukhiya and respondent No. 4 (hereinafter referred to as the election petitioner) lost. Election petitioner filed application challenging the election of the returned candidate, which was registered as Election Petition No. 28 of 2001. The election petition presented by the election petitioner was barred by limitation but the learned Munsif by order dated 11.7.2001 condoned the delay in its filing, on an application filed by the election petitioner u/s. 5 of the Limitation Act and thereafter transferred the case to the Court of 2nd Additional Munsif for trial. During the trial of the election petition one of the issues framed was as follows :

"Is the Court competent to condone the delay in filing this election petition u/s. 5 of the Limitation Act?

2. The aforesaid issue was taken up for consideration by the learned Munsif as a preliminary issue and by order dated 6.3.2002 answered the same in favour of the election petitioner and against the returned candidate/While doing so, the learned Munsif observed that once his predecessor-in-office had condoned the delay in filing the election petition, it has no jurisdiction to review/rescind the said order.

3. It is this order of the learned Munsif which has been assailed in the present application and prayer has been made to issue a writ in the nature of certiorari quashing the order dated 6.3.2002 passed by the 2nd Additional Munsif, Sitamarhi in Election Petition No. 28 of 2001.

4. Mr. Ram Balak Mahto, Senior Advocate appears on behalf of the petitioner whereas State Election Commission is represented by Mr. K.B. Nath. State is represented by Mr. Rajeshwar Prasad, GP VI and respondents 4 and 5 are represented by Mr. Mahendra Thakur and Dilip Kumar Mishra.

5. Mr. Mahto contends that the Bihar Panchayat Raj Act, 1993 and the Rules framed thereunder govern the field which is complete in itself arid as such the provision of sec. 5 of the Limitation Act shall not be available for condoning the delay in filing the election petition. In any view of the matter, Mr. Mahto contends that election petition being an original proceeding, Section 5 of the Limitation Act shall not be applicable for condoning the delay in filing the election petition. In support of his submission he has placed reliance on a judgment of the Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 and my attention has been drawn to paragraph 25 of the judgment, which reads as follows :

"25. For all these reasons we have come to the conclusion that the provisions of sec. 5 of the Limitation Act do not govern the filing of election petitions or their trial and, in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay."

6. Mr. Mishra, however, contends that in view of sec. 29(2) of the Limitation Act, the delay in filing the election petition can be condoned on sufficient cause being shown u/s. 5 of the Limitation Act. He further submits that Sec. 5 of the Limitation Act covers the election petition also. He emphasises that election petition having once presented has to culminate in final judgment and cannot be dismissed even on the ground of limitation in mid way.

7. The rival submission necessitates examination of the provisions of Bihar Panchayat Raj Act, 1993 and the Bihar Panchayat Election Rules, 1995 and poses a question as to whether the Limitation Act applies in case of election petition presented under the Bihar Panchayat Raj Act, 1993 .

8. Art. 243-O of the Constitution of India, inter alia, provides that no election to any Panchayat shall be called in question except by an election petition presented to such authority an