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IN THE HIGH COURT OF JUDICATURE AT PATNA
JYOTI SARAN, J.
Ramesh Singh -Petitioner
Versus
The State of Bihar - Respondents
Civil Writ Jurisdiction Case No.12029 of 2012
Decided on : 05-12-2012.
Article 227 - Quashing of Election Case - Bihar Panchayati Raj Act, 2006, Rule 106 - The court discussed the provisions of Rule 106 of the Bihar Panchayat Election Rules 2006, which prescribes a period of 30 days for filing an election petition to be calculated from the date of declaration of election result. The court held that the election court could not have taken recourse to the general provisions of the Limitation Act for entertaining the election petition filed belatedly. The order impugned was set aside, and the Election Case No.63 of 2011 was also set aside as it was filed beyond the period of limitation.
Fact of the Case:
The election of the petitioner as Mukhiya, Gram Panchayat, Ghataon in the district of Kaimur was questioned by the respondent no.5 by filing an election case under the Bihar Panchayati Raj Act, 2006 and the Rules framed thereunder, after the prescribed period for filing an election case.
Finding of the Court:
The court held that the election court could not have taken recourse to the general provisions of the Limitation Act for entertaining the election petition filed belatedly. The order impugned was set aside, and the Election Case No.63 of 2011 was also set aside as it was filed beyond the period of limitation.
Issues: The main issue was whether the election petition filed beyond the period of limitation could be entertained under the Bihar Panchayati Raj Act, 2006 and the Rules framed thereunder.
Ratio Decidendi: The court held that the election court could not have taken recourse to the general provisions of the Limitation Act for entertaining the election petition filed belatedly, as the provisions of Rule 106 of the Bihar Panchayat Election Rules 2006 prescribe a specific limitation period for filing an election petition.
Final Decision: The impugned order dated 4.6.2012 passed by the learned Munsif, Kaimur at Bhabhua in Election Case no.63 of 2011 was set aside, and the Election Case No.63 of 2011 was also set aside as it was filed beyond the period of limitation.
1. Heard Mr. Arbind Nath Pandey, learned counsel appearing on behalf of the petitioner, Mr. Alok Ranjan, learned A.C. to G.P.17 for the State and Mr. Ashutosh Ranjan Pandey, appearing on behalf of respondent no.5. This application under Article 227 of the Constitution of India has been filed for quashing the order dated 4.6.2012 passed by the learned Munsif, Kaimur at Bhabhua in Election Case No.63 of 2011 whereby the learned court below, while considering the application filed on behalf of the petitioner who is the returned candidate under Order 7 Rule 11(d) of the Code of Civil Procedure quashing the Election Case on grounds of being barred by limitation, has been pleased to dispose of the same by holding that the issue raised thereunder shall be considered as an issue in course of the trial. Facts of the case lie in a narrow compass. The election of the petitioner as Mukhiya, Gram Panchayat, Ghataon in the district of Kaimur has been questioned by the respondent no.5 by filing the election case in question giving rise to Election Case No.63 of 2011 filed under the provisions of the Bihar Panchayati Raj Act, 2006 and the Rules framed thereunder.
2. It is not in contest that the result of the Panchayat Election in relation to the Panchayat in question was announced on 20.5.2011 whereas the election case in question was filed on 25.6.2011 after expiry of the period prescribed for filing an election case. Rule 106 of the Bihar Panchayat Election Rules of 2006 framed under the Act prescribes for a limitation period for filing an election petition within 30 days from the declaration of the result. The election petitioner that is respondent no.5 being well aware of this provision, had filed the election case together with an application for condonation of delay under Section 5 of the Limitation Act, 1963.
3. A perusal of the order impugned manifests that the predecessor in office in the court of Munsif, Kaimur had admitted the election case, while condoning the delay by order passed on 14.7.2011. The returned candidate that is the petitioner herein, appeared and filed an application under Order 7 rule 11 (d) of the Code praying for rejection of the plaint on grounds of being barred by law in view of the statutory provision underlying Rule 106 of the Bihar Panchayat Election Rules of 2006 prescribing a limitation of 30 days for filing the election case. The application filed by the petitioner has been rejected by the order impugned dated 4.6.2012, inter alia, on grounds that as the delay has been condoned by order dated 14.7.2011 passed by the Predecessor in office in the court of Munsif, hence, the said issue would be decided as an issue during the court of trial. Mr. Arbind Nath Pandey, learned counsel appearing for the petitioner submits that the issue stands concluded by several decisions of this court. Learned counsel for the petitioner has relied upon the following judgments of this court.
(a) 2004 (3) PLJR 313 (Birendra Kumar Vs. The State Election Commission.
(b) 2007 (2) PLJR-698 (Shambhu Lal V. State of Bihar & ors) which has been affirmed by the Division Bench in the judgment reported in AIR 2011 Patna page-1. Mr. Pandey, with reference to the judgment of this court in the case of Birendra Kumar (supra) has submitted that an identical issue came up for consideration before this court when learned Munsif taking into consideration the order passed by his predecessor in office condoning the delay, had rejected a similar objection as raised herein. This court, while discussing the provisions of the Bihar Panchayat Raj Act, and the election rules framed thereunder was of the opinion that the order was wholly without jurisdiction and while setting aside the order impugned, this court has been placed to set aside the election case itself. It is submitted that similar view was expressed in the subsequent judgment rendered in the case of Shambhu Lal (supra) which was affirmed by the Division Bench. He thus submits
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