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2012 DIGILAW 1630 (PAT)

Ramesh Singh v. State of Bihar

2012-12-05

JYOTI SARAN

body2012
ORDER 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. 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 that in the circumstances, the order impugned cannot be sustained. The argument of the learned counsel has been contested by Mr. 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 that in the circumstances, the order impugned cannot be sustained. The argument of the learned counsel has been contested by Mr. Ashutosh Ranjan Pandey, learned counsel appearing for respondent no.5 who submits that the present application is not maintainable for the reasons that the petitioner did not choose to question the order of condonation of delay at any stage and secondly that the provisions of the Bihar Panchayat Raj Act, 2006, is much different from those as found in the provisions of the Representation of Peoples Act. It is submitted that whereas the provisions of the Representation of Peoples Act specifically provides that no election petition would be entertained upon expiry of limitation period there is no such prohibition in the Bihar Panchayat Raj Act and thus the election petition filed together with a petition for condonation of delay has to be considered independently on its own merits I have heard learned counsel for the parties and perused the records. As already indicated, the provisions of Rule 106 of the Bihar Panchayat Election Rules 2006 prescribes a period of 30 days for filing an election petition to be calculated from the date of declaration of election result. While prescribing a limitation period for filing such election petition, the legislature has not vested any power in the election court for condoning the delay. In the aforesaid view of the matter, the election court could not have taken recourse to the general provisions of the Limitation Act for entertaining the election petition filed belatedly. The learned court below by the impugned order by refusing to entertain the application filed by the petitioner under order 7 Rule 11(d) of the Code has merely perpetuated the illegality. 4. The issue as raised before this court having been contested and concluded by the judicial pronouncements of this court as taken note of hereinabove, this court would not be swayed by the attempt made by Mr. Pandey appearing for the election petitioner and would unhesitatingly hold the order impugned unsustainable. 4. The issue as raised before this court having been contested and concluded by the judicial pronouncements of this court as taken note of hereinabove, this court would not be swayed by the attempt made by Mr. Pandey appearing for the election petitioner and would unhesitatingly hold the order impugned unsustainable. In consequence, the impugned order dated 4.6.2012 passed by the learned Munsif, Kaimur at Bhabhua in Election Case no.63 of 2011 is set aside and as admittedly the election petition has been filed beyond the period of limitation, the said Election Case No.63 of 2011 also cannot proceed and is accordingly set aside . This writ application is allowed.