PRABODH MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The question for consideration in this writ application is whether the District Judge exercising appellate powers in Gram Panchayat election disputes can stay the operation of the order passed by toe Election Tribunal pending disposal of the appeal.

(2.) The petitioner along with respondents nos. 2 and 5 contested the election for the post of Mukhiya of Lohna Gram Panchayat in the district of Madhubani. Respondent no. 2 Gangai Kamat was declared elected as Mukhiya. The petitioner challenged his election by filing Election Petition No. 3 of 1978-79 before the Election Tribunal, Jhanjharpur. His main ground was that the valid votes polled by him were more than the valid votes polled by respondent no 2 and that the votes were wrongly counted by the Election Officer. The Tribunal allowed the recounting of votes and found that the petitioner had received more votes than respondent No. 2. Accordingly, the Tribunal set aside the election of respondent No. 2 and declared the petitioner as duly elected. That order is contained in Annexure 1 to the writ application. Against that order respondent No. 2 filed an appeal before the District Judge as provided under rule 70 of the Bihar Panchayat Election Rules (hereinafter referred to as the Election Rules). The appeal was registered as Miscellaneous Appeal No. 26 of 1978. Along with it an application was also filed praying to stay the operation of the order passed by the Election Tribunal. The petitioner filed a rejoinder stating, inter alia, that the District Judge had no jurisdiction to entertain any such application. The learned District Judge by his order dated the 10th of November, 1978, stayed the operation of the order of the Election Tribunal till the disposal of the appeal. It is this order contained in Annexure 4 which is under challenge in this writ application. It has been stated that the petitioner after having been declared elected by the Election Tribunal took oath on 6.10.78 and started functioning as the Mukhiya.

(3.) Shri T. K.Jha, learned Counsel appearing on behalf of the petitioner, submitted that under the scheme of the Bihar Panchayat Raj Act and the Election Rules, the District Judge, as the appellate authority, had no power to grant stay.