SHAYAMAKANT VERMA Vs. HARISHANKER PRASAD

JUDGEMENT

(1.) The question to be determined in this case is whether the Election Commissioner of Cham-paran acted in excess of his jurisdiction in entertaining the election petition filed by the opposite party, Dr. Shyamakant Verma, beyond the period of fourteen days from the date of the election as prescribed by Rule 5(1) of the rules framed by the Provincial Government under Section 19, Bihar and Orissa Municipal Act, 1922.

(2.) The material facts are not controverted. In March 1952 there was an election of the commissioners of the Motihavi Muni finality at which the petitioner, the opposite party and twenty other persons were elected as commissioners. A notification publishing the names of the commissioners so elected was duly published in an issue of the Bihar Ga7ette dated 30-4-1952. On 20-8-1952, five more persons were nominated by the State Government as Municipal Commissioners of the Motihari Municipality. It is stated that on 8-9-1952, there was a meeting of the commissioners for electing a chairman. The petitioner and the opposite party each secured an equal number of votes, but the President gave his casting vote in favour of the petitioner who was declared duly elected as Chairman of the Municipality. As there was an apprehension of the breach of the peace, the District Magistrate directed the petitioner not to take charge of the office of the Chairman pending an enquiry. On 21-10-1952, the District Magistrate informed the petitioner that he had received instructions from Government and that the petitioner would be permitted, to take charge as the Chairman of the Motihari Municipality from Jagannath Chaudhury who had been officiating as Chairman. This order was communicated to the opposite party, Dr. Harishanker Prasad, on the same date. On 27-10-1952, the opposite party filed an application before the Election Commissioner praying that the election of the petitioner, Dr. Shyamakant Verma, be declared as null and void on the ground that the entire election proceedings were illegal. An objection was raised on behalf of the petitioner to the effect that the election petition ought to have been filed within fourteen days from the date of the election, and the election petition not being filed within the time fixed, it ought to be rejected by the Election Commissioner. The objection was overruled by the Election Commissioner on the ground that the opposite party had sufficient cause for not filing the election petition within the prescribed period and the delay should be condoned.

(3.) Against this order the petitioner has filed an application under Section 115, Civil P. C. He has also filed an application under Article 226 of the Constitution as a matter of precaution.