ANIL KUMAR JHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER has filed this writ application assailing the Order dated, 23.04.2007, passed by the Election Tribunal in Election Petition No. 8 of 2006, Annexure -5, whereunder the learned Tribunal below has refused to dismiss the election petition under Or. 7 R. 9(d) of the Code of Civil Procedure. It appears from perusal of the impugned Order dated, 23.04.2007, Annexure -5 that the election petition was filed beyond the period of limitation provided under the Election Rules, 2006. The election result was declared on 15th June, 2006 and the petition was filed beyond 30 days on 7.08.2006. No sooner the returned candidate/Petitioner learnt about the belated filing of the said election petition, he filed a petition under Or. 7 R. 11(d) of the Code of Civil Procedure praying, inter alia, to reject the election petition on the ground that the same has been filed beyond the period of limitation, which petition has been dismissed holding that the delay in filing the petition is properly explained and the question of applicability of the Limitation Act to election petition is an issue to be decided by the Tribunal in course of trial of the election petition.

(2.) LEARNED Counsel appearing in support of this application has submitted that in terms of the Bihar Panchayat Raj Act, 2006 and the Election Rules framed thereunder, the election petition is required to be filed within 30 days of the declaration of result in terms of R. 106 of the Rules and if the same is filed beyond the period of 30 days of the declaration of result then the election petition is required to be dismissed as barred by law of limitation, since in the Gram Panchayat Act and the Rules, there is no provision to condone the delay, but the Election Tribunal has erroneously observed that delay in filing the election petition has been properly explained. According to the learned Counsel for the petitioner, provisions of the Limitation Act, 1963 has no application to the proceedings taken before the Election Tribunal constituted under the Gram Panchayat Act, 2006. He further placed reliance on the provisions contained in Art. 243(O) of the Constitution of India and submitted that no election to any office of Panchayat shall be called in question, except by an election petition presented in a manner provided for in the Gram Panchayat Act, 2006 and the election rules framed thereunder. In this connection, he has made specific reference to the provisions contained in Ss. 137 to 142 of the said Act and R. 106 of the said Rules, which, inter alia,, mandates that the election petition in terms of the said Act must be filed before the Tribunal constituted under the Gram Panchayat Act, 2006 within 30 days of the declaration of the election result. In this connection, he further pointed out that as the different provisions of the Gram Panchayat Act and Rules do not provide for condonation of delay in filing the election petition, the delay in filing the election petition cannot be condoned by applying different provisions of the Limitation Act as the provisions of the Limitation Act by necessary implication have been excluded from the proceedings taken before the Election Tribunal constituted under the Gram Panchayat Act. In support of such submission, he has relied on the Judgments of the learned Single Judge of this Court in the case of Birendra Kumar V/s. The State Election Commission and Ors., 2004 3 PLJR 313, Shambhu Lal V/s. The State of Bihar and Ors., 2007 2 PLJR 698 and submitted that this Court being a Co -ordinate Bench should take the same view, which has been taken in the aforesaid two Judgments and should not only set aside the impugned Order but also dismiss the election petition as barred by law. He also placed reliance over the Judgment of the Division Bench in the case of Krishna Kumari and Anr. V/s. Alliance Agro Industries private Ltd. and Ors., 1986. 0 PLJR 832, paragraphs 4, 5 and 6 for the proposition that considering different provisions of local/special law, the Court has to decide as to whether the provisions of the Limitation Act, has been excluded by necessary implication from the said local/special law. Perusal of the Judgment in the case of Krishna Kumari Choudhary and Anr. (Supra) indicates that Division Bench of this Court having considered the different provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 held that the provisions of the Limitation Act has been excluded by necessary implication from the proceedings taken under the Ceiling Act.

(3.) LEARNED Counsel for private Respondent No. 6 further submitted that earlier Judgments of this Court in the case of Birendra Kumar and Shambhu Lal (Supra) although considered the Judgment of the Hon ble Supreme Court in the case of Hukumdev Narain Yadav(Supra) but did not take notice of the fact that in the Gram Panchayat Act, 1993/2006, there is no provision in the nature of Sec. 86 of the Representation of the People Act, 1951 and thus, the aforesaid Judgments have been rendered ignoramus of the provisions contained in Sec. 86 of the Representation of the People Act, 1951 and as the two Judgments have been rendered ignoramus of the legal position that Gram Panchayat Act 1993/2006 does not contain provision in the nature of Sec. 86 of the Representation of People Act, 1951, the law laid down in respect of Ss. 81, 86 of the Representation of the People Act, 1951 may not have any application to the proceedings taken before the Tribunal constituted under the Gram Panchayat Act. In this connection, he referred to the following passage from the Halsbury 'sLaws of England, 4th Edition, paragraph 578: