Mobile View
Main Search Forums Advanced Search Disclaimer
Cites 35 docs - [View All]
The Limitation Act, 1963
The Representation Of The People Act, 1951.
The Indian Penal Code, 1860
The Land Acquisition Act, 1894
Sri Baru Ram vs Shrimati Prasanni & Others on 30 September, 1958

User Queries
Patna High Court
Anil Kumar Jha vs The State Of Bihar And Ors. on 19 December, 2007
Equivalent citations: 2008 (1) BLJR 712
Author: V Sinha
Bench: V Sinha

ORDER

V.N. Sinha, J.

Page 0713

1. Petitioner has filed this writ application assailing the order dated 23.4.2007, 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 Order VII Rule XI(d) of the Code of Civil Procedure. It appears from perusal of the impugned order dated 23.4.2007, 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 15.6.2006 and the petition was filed beyond 30 days on 7.8.2006. No sooner the returned candidate/petitioner learnt about the belated filing of the said Election Petition, he filed a petition under Order VII Rule XI(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 Rule 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 Article 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 Sections 137 to 142 of the said Act and Rule 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. The State Election Commission and Ors. reported in 2004(3) PLJR. 313, Shambhu Lal v. The State of Bihar and Ors. reported in 2007(2) PLJR 698 and submitted that this Court being a Coordinate Bench should take the same view, which has been taken in the aforesaid two judgments and should not only set aside the impugned Page 0714 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. Alliance Agro Industries Private Ltd. and Ors. reported in 1986 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 & another (Supra) indicates that Division Bench of this Court having considered the different provisions of the 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. Counsel for Private Respondent No. 6, the election petitioner has opposed the prayer and has submitted that the writ petition is fit to be dismissed in view of the provisions contained in Sub-section (2) of Section 29 of the Limitation Act, which inter alia provides that the provisions contained in Sections 4 to 24 of the Limitation Act shall apply to a proceeding taken before the Tribunal constituted under a special law, if not expressly or by necessary implication excluded from such special law and according to him the court below having appreciated the provisions of the Gram Panchayat Act, 2006, rightly applied Section 5 of the Limitation Act to the facts of the present case and proceeded to condone the delay in filing the Election Petition. He further submitted that a close perusal of the different provisions of the Gram Panchayat Act, 2006, including the provisions contained in Sections 137 to 142, 146 and Rule 106 does not exclude the application of the Limitation Act to the proceeding taken before the Election Tribunal constituted under the Gram Panchayat Act. In this connection, it was also pointed out that failure to file the Election Petition within 30 days shall not ipso facto lead to its dismissal as the different provisions of the Gram Panchayat Act and the Rules referred to above do not prescribe the consequence therefore, namely, penalty of dismissal of the Election Petition itself for failure to file the same within 30 days of the declaration of the election result as is provided under Section 86 of the Representation of the People Act, 1951. According to him the Election Tribunal has rightly considered the facts of the present case for condoning the delay in filing the Election Petition and this Court should not interfere with the impugned order. In this connection, he relied on the judgment of the Hon'ble Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra and submitted, with

reference to the provisions contained in Sections 81 and 86 of the Representation of the People Act, 1951, that an Election Petition under the Representation of the People Act, 1951 is required to be filed within 45 days of the declaration of result and if the same is not filed within the said period then consequence thereof is provided under Section 86 of the Representation of the People Act, 1951 and the Election Tribunal has no option but to dismiss the petition filed beyond the period of limitation indicated under Section 81 of the Representation of the People Act, 1951. He further submitted that from a conjoint reading of the provisions contained in Sections 81 and 86 of the Representation of the People Act, 1951, it is obvious that the provisions of the Limitation Act have been excluded by necessary implication from being applied to the proceeding taken before the Election Tribunal constituted under the Representation of the People Act, 1951. In the light of the aforesaid two provisions, it is submitted that had there been a similar provisions in the nature of Section 86 of the Representation of the People Act, 1951 inserted in the Gram Panchayat Act, 2006, there would have been no occasion for the Election Tribunal to apply the provisions of the Limitation Act to the proceedings pending before it, but as there is no provision in the nature of Section 86 of the Page 0715 Representation of the People Act, 1951 in the Gram Panchayat Act, 2006, the Limitation Act will apply to the proceedings taken before the Election Tribunal constituted under the Gram Panchayat Act by virtue of Sub-section (2) of Section 29 of the Limitation Act and the court below has rightly applied the provisions of the Limitation Act to the Election petition filed before it and this Court should not interfere in the matter.

4. 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 Section 86 of the Representation of the People Act, 1951 and thus the aforesaid judgments have been rendered ignoramus of the provisions contained in Section 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 Section 86 of the Representation of People Act, 1951, the law laid down in respect of Sections 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's Laws of England, 4^th Edition, paragraph 578:

The decisions of the Court of Appeal upon questions of law must be followed by Divisional Courts and Courts of first instance, and, as a general rule, are binding on the Court of Appeal until a contrary determination has been arrived at by the House of Lords. There are, however, three, and only three, exceptions to this rule; thus (1) the Court of Appeal is entitled and bound to decide which of two conflicting decisions of its own it will follow; (2) it is bound to refuse to follow a decision of its own which, although not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords; and (3) the Court of Appeal is not bound to follow a decision of its own if given per incuriam. Unlike the House of Lords, the Court of Appeal does not have liberty to review its own earlier decisions.

5. As regards the judgment in the case of Krishna Kumari Choudhary & another (Supra), it was submitted by the learned Counsel for Respondent No. 6 that the said judgment appears to have been sub silentio overruled by the Hon'ble Supreme Court in the case of Krishna Kumar Choudhary v. Alliance Agro Industries (P) Ltd. and Ors. reported in 1991 (1) PLJR 3(SC), whereunder the Hon'ble Supreme Court held that Limitation Act does apply to the proceedings taken under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act.

6. In rejoinder, counsel for the petitioner submitted that the judgments rendered by the Single Judge of this Court in the case of Birendra Kumar and Shambhu Lal (Supra) may have been rendered ignoramus of the provisions contained in Section 86 of the Representation of the People Act, 1951 but in those judgments Hon'ble Single Judge of this Court having considered the different provisions of the Gram Panchayat Act and the Rules have categorically concluded that Limitation Act has Page 0716 no application to the proceedings taken before the Election Tribunal constituted under the Gram Panchayat Act, which judgments are binding on this Court as this Court being a Coordinate Bench is not empowered to take a different view in the matter and in this connection relied on the judgments of the Hon'ble Supreme Court in the case of Mahadeolal Kanodia v. The Administrator General of West Bengal , in the case of K. Ajit Babu and Ors. v. Union of India and Ors. and in the case of State

Bank of India and Ors. v. Labour Enforcement Officer (Central) and Anr., .

7. When this Court noticed the fact that the earlier judgments of this Court in the case of Birendra Kumar and Shambhu Lal (Supra) have been rendered ignoramus of the provisions contained in Section 86 of the Representation of the People Act, 1951, which is so relevant for holding that the proceedings taken before the Election Tribunal constituted under the Representation of the People Act, is to proceed in accordance with the provisions of the Representation of the People Act as the said Act is a self contained Code and the Limitation Act has no application to the proceedings taken before the Election Tribunal constituted under the Representation of the People Act, invited Sri S.N.P. Sharma, Senior Advocate to assist this Court Amicus curiae and to make submissions on the question as to whether the provisions of the Limitation Act are applicable to the proceedings taken before the Election Tribunal constituted under the Gram Panchayat Act in view of the legal position that there is no provision like Section 3 of the Limitation Act or Section 86 of the Representation of the People Act inserted in the Gram Panchayat Act, 1993/2006. Sri Sharma with reference to the constitutional and statutory provisions, submitted that right to be elected and to dispute the election is a statutory right dependent on the statute whereunder election has been conducted and the election dispute raised. An Election Petition is neither an action at common law nor in equity. It is a statutory proceeding as the statute whereunder the elections are conducted is a complete Code and whenever statute requires a particular act to be done in a particular manner, the said act has to be done in the manner required by the statute and not otherwise. In the background of the aforesaid submissions, with reference to the provisions contained in Section 137 to 142 of the Gram Panchayat Act and Rule 106 of the Rules, he further submitted that the Election Petition raising the grounds, as provided under the Gram Panchayat Act itself, is to be filed within 30 days of the declaration of the election result and if the election petition is not filed within the said period then natural consequence, which is to follow is the dismissal of the Election Petition as the verdict of the people announced by the Returning Officer requires certain amount of stability, which is so essential for the democracy to function. In this connection, he relied on the judgments of the Hon'ble Supreme Court in the case of Jagan Nath v. Jaswant Singh and Ors. , in the case of Shri Baru Ram v. Smt. Prasanni and Ors. , in the case of Chanda Singh v. Ch.

Shiv Ram Varma and Ors. and in the case

of Jyoti Basu and Ors. v. Debi Ghosal and Ors. and further submitted that the judgment in the case of Shambhu Lal (Supra) has already been affirmed by the Division bench of this Court under orders dated 28.5.2007, passed in L.P.A. No. 243 of 2007.

Page 0717

8. Having heard counsel for the parties as also Sri S.N.P. Sharma, learned Amicus Curiae, I am to consider their submissions in the light of the following observations of the Hon'ble Supreme Court in the case of Jagan Nath v. Jaswant Singh and Ors. ,

paragraph 7.

In cases where the election law does not prescribe the consequence or does not lay down penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the Tribunal entrusted with the trial of the case is not affected.

Aforesaid observations were recorded in the light of the provisions contained in Sections 82 and 85 of the Representation of the People Act, 1951, which inter alia required that in a Election Petition, all the candidates, who were duly nominated be joined as party. Section 85 provided that if provisions of Sections 81, 83 and 117 were not complied with, the Election petition be dismissed but no such command to dismiss the Election Petition which foiled to join all the nominated candidates as required by Section 82 was there and appreciating such legal position, aforesaid observation was recorded by the Hon'ble Supreme Court that where the election law does not prescribe the penalty for non-compliance then the trial of the election petition is not affected.

9. In this connection reference may also be made to the observations of the Hon'ble Supreme Court in the case of Shri Baru Ram v. Smt. Prasanni and Ors., , which is quoted below:

Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence.

The said observations were rendered by the Hon'ble Supreme Court, with reference to Sub-section (5) of Section 33 of the Representation of the People Act, 1951 which required the candidate to furnish the copy of the electoral roll so as to satisfy the returning officer that he was elector in another constituency, failing which his nomination paper is liable to be rejected under Sub-section (2)(b) of Section 36 of the said Act and as the candidate failed to satisfy the returning officer that he is elector in a particular constituency his candidature was rightly rejected and he was not a necessary party in the election petition.

10. Finally the following observations of the Hon'ble Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, is most relevant to decide the issue:

In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would be nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and scheme of the special law exclude their operation. The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, Page 0718 82 or 117 of the Representation of the People Act, 1951.

Besides the following passage from Halsbury's Laws of England, 4^th Edition, Volume 26, which has been quoted with approval by the Hon'ble Supreme Court in the case of Babu Parasu Kaikadi v. Babu, reported in AIR 2004 Supreme Court 754:

A decision is given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow or when it has acted in ignorance of a House of Lords decisions, in which case it must follow that decision: or when the decision is given in ignorance of the terms of a statute or rule having statutory force.

11. Having examined the provisions of the Gram Panchayat Act, 2006 and the Rules framed thereunder in the light of the aforesaid observations of the Hon'ble Supreme Court, I am of the view that in the Gram Panchayat Act, 2006 and the rules framed thereunder, there is no provision, which is akin to Section 3 of the Limitation Act or Section 86 of the Representation of the People Act, 1951 commanding the Election Tribunal constituted under the Gram Panchayat Act either by express words or by necessary implication to dismiss the election petition filed beyond the period of limitation contained in Rule 106. In view of such legal position, election to the office of a Panchayat constituted under the Gram Panchayat Act, 2006 can be called in question before the Election Tribunal constituted under the said Act by filing an Election Petition on the grounds mentioned under Sections 139 and 140 of the said Act and the petition raising such grounds is required to be filed within 30 days of the declaration of the election result as is provided under Rule 106 of the Rules, but as consequences/penalty for not filing the Election Petition within the time required under the Rules has been provided either in the said Act or in the Rules framed thereunder, in my opinion, by virtue of the provisions contained in Sub-section (2) of Section 29 of the Limitation Act, 1963, the Election Tribunal has the jurisdiction in appropriate case to consider the grounds for condoning the delay in filing the Election Petition.

12. My views recorded in paragraph 8 above is contrary to the views taken by another Hon'ble Single Judge of this Court in the case of Birendra Kumar and Shambhu Lal (Supra) as also of the views recorded in order dated 28.5.2007, passed in LPA No. 243 of 2007, in the circumstances, I deem it expedient to refer this writ petition to a Division Bench to consider the matter in the light of Section 3 of the Limitation Act and Section 86 of the Representation of the People Act, 1951. Put up before appropriate Division Bench under orders of Hon'ble the Chief Justice.