ANIL KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition is directed against the order dated 23-4-2007, passed by learned Munsif, Biraul at Benipur (Darbhanga), in Election Petition No. 8 of 2006 (Vishwa Mohan Jha v. Anil Kumar Jha), whereby the application of the present Petitioner under the provisions of Order 7, Rule 11(d) of the Code of Civil Procedure (hereinafter referred to as 'the Code'), has been rejected. The matter is before us on reference by a learned single Judge of this Court by order dated 19-12-2007, whereby he has disagreed with the view taken in the two judgments of learned single Judges of this Court.

(2.) A brief statement of facts essential for the disposal of this writ petition may be indicated. Respondent No. 6 herein (the Plaintiff-election Petitioner) and the writ Petitioner (the Defendant) and others, contested the election for the post of Mukhiya of Gram Panchayat Raj Kasraur Basauli, Block Gora Bauram, District Darbhanga. The writ Petitioner was declared elected. Respondent No. 6 challenged the same by preferring the aforesaid Election Petition No. 8 of 1986, which was admitted and notices were issued. The writ Petitioner entered appearance and filed an application under the provisions of Order 7, Rule 11(d) of the Code that the election petition had been filed beyond the prescribed period of limitation. In the absence of any provision for condonation of delay, the election petition should be dismissed on the ground of limitation at the threshold. On a consideration of the matter, the application was rejected by order dated 23-4-2007, and the delay was condoned, leading to the present writ petition.

(3.) The writ petition was placed before a learned single Judge of this Court and the question was considered. On an exhaustive consideration of the matter, the learned single Judge has in his order of reference observed that, in view of the Scheme of the Bihar Panchayat Raj Act 2006 (hereinafter referred to as 'the Bihar Act'), read with the Bihar Panchayat Election Rules 2006 (hereinafter referred to as 'the Rules'), the relevant provisions of the Limitation Act 1963 (hereinafter referred to as ' 1963 Act') are applicable and, therefore, the provision for condonation of delay is available with respect to the proceedings under the Bihar Act. The learned single Judge has further observed that he, therefore, disagrees with the view taken by learned single Judges of this Court in the case of Birendra Kumar v. State Election Commission,2004 3 PLJR(SC) 313, and Shambhu Lal v. State of Bihar, 2007 2 PLJR 698. It has been held in these two judgments that the provisions of 1963 Act are inapplicable to the proceedings under the Bihar Act and, therefore, there is no provision for condonation of delay for the proceedings under the Bihar Act. In view of such disagreement, the learned single Judge has referred the issue for the decision of a Division Bench to decide the correctness of the two opposite views.