ARUN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner was declared elected to the post of Mukhiya of Diha Gram Panchayat in the district of Sheikhpura. Respondent No. 4 challenged his election in a petition under Section 140 of the Bihar Panchayat Raj Act, 1993 before the learned Munsif, Sheikhpura. THE election case remains pending but in the meanwhile the petitioner has come in this Court challenging the order, dated 28.8.2001 passed by the Munsif in the election case. By the impugned order the Munsif declined to finally decide certain preliminary objections raised by the petitioner regarding the maintainability of the election petition and observed that he would decide the question of maintainability along with the other issues framed in the suit. THE learned Munsif pointed out that the proceedings were at an advanced stage. THE evidence of the election applicant (respondent No. 4) was already over and now it was the turn of the petitioner to lead his evidence after which parties will make their arguments on ail the, issues including the issue of maintainability of the suit.

(2.) THE petitioner is not satisfied by this order and he has come to this Court in this writ petition, seeking a direction to the learned Munsif to first decide the issue of maintainability of the election petition before proceeding further with the suit. THE maintainability of the election petition is questioned primarily on two grounds. One is that all the contesting candidates were not made parties to the suit and, therefore, the suit was incompetent to proceed for non-joinder of the parties. It is further stated that in the suit the election applicant had challenged the election result alleging that ballot boxes from six polling booths were looted away by the supporters of the petitioner while those boxes were being taken for safe deposit. According to the petitioner, this ground for challenging the election was no longer available inasmuch repoll were held on all those six polling booths. Respondent No. 4 did not challenge the repoll and hence, he cannot maintain the election petition on the basis of a cause of action (the looting away of the ballot boxes) which was superseded by the subsequent event and was therefore, no longer in existence.

(3.) MR. Ram Balak Mahto, learned Sr. Counsel appearing for respondent No. 4 submitted that the learned Munsif had rightly proceeded with the suit, observing that be could hear and decide all issues, including the preliminary objections raised by the petitioner together. MR. Mahto pointed out that the decisions relied upon by MR. Sharma were rendered in cases arising out from the Representation of the People Act and submitted that the procedure for the trial of an election case under the R.P. Act was governed by the extremely rigorous and stringent provisions contained inter alia in Section 81 of 86 of the Act. MR. Mahto submitted that there were no similar provisions in the Bihar Panchayat Raj Act or the rules framed thereunder. On the contrary Rule 111 stated that an election petition filed under Section 140 of the Act will be heard in the manner prescribed by the Civil Procedure Code, 1908.