Patna High Court
Anil Kumar Jha vs The State Of Bihar & Ors on 4 July, 2010
Author: S K Katriar
Bench: Sudhir Kumar Katriar, Birendra Prasad Verma
CIVIL WRIT JURISDICTION CASE No.7046 of 2007
In the matter of an application under Article 226 of the Constitution of India
ANIL KUMAR JHA, son of late Tejnarayan Jha, resident of
village & PO Kasraur, PS Ghanshyampur, District
Darbhanga ............. Petitioner
Versus
1. THE STATE OF BIHAR
2. The District Election Officer-cum-District Magistrate,
Darbhanga
3/ Returning-cum-Circle Officer, Keoti, PO Keoti, District
Darbhanga
4. Assistant Returning Officer-cum-Junior Engineer, Gora
Bauram Block, located at Biraul, PO & PS Biraul, District
Darbhanga
5. Observer-cum-DCLR. Sadar Darbhanga
6. Vishwa Mohan Jha, son of late Harekant Jha, resident of
Village & P O Kasraur, PS Ghanshyampur, District
Darbhanga
7. Shri Arvind Yadav, son of late Yogendra Yadav, resident
of village Mongoura, PO Punhad, PS Ghanshyampur,
District Darbhanga
8. Shri Kamlesh Bihari Jha, son of Shri Shivshankar Jha
9. Shri Kailash Jha, son of Shri Bachchan Jha
10. Shri Janki Prasad Jha, son of late Gopalji Jha
-All 8 to 10 residents of village & PO Kasraur, PS
Ghanshyampur, District Darbhanga
11. Shri Pawan Kumar Yadav, son of Nand Kishore Yadav,
resident of village Mongoura, PO Punhad, PS
Ghanshyampur, District Darbhanga
12. Shri Punyanand Jha, son of late Dhanushdhari Jha
13. Shri Vinay Kumar Jha, son of late Vishnu Kant Jha
14. Shri Vishwanath Jha, son of Ram Kripal Jha
-All 12 to 14 residents of Village & PO Kasraur, PS
Ghanshyampur, District Darbhanga.......... Respondents
For the Petitioner : Mr. Alok Kumar, Advocate
For the State : Mr. Mani Kant Mishra, Govt.Pleader 21
M/s Kinkar Kumar, Gopi Jha
AC to GP 21
For Respondent no.6 : Mr. Kamal Nayan Choubey
Senior Advocate
Mr. Girish Chandra Jha, Advocate
PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA
S K KATRIAR, J.This writ petition is directed against the order dated 23.4.2007, passed by learned Munsif, Biraul at Benipur (Darbhanga), in Election Petition No.8 of 2006 (Vishwa Mohan Jha vs. Anil Kumar Jha), whereby the application of the present petitioner under the provisions of Order 7, Rule 11(d) of the Civil Procedure Code (hereinafter referred to as `the Code'), has been rejected. The matter is before us on reference by a learned single Judge of this Court by order dated 19.12.2007, whereby 2 he has disagreed with the view taken in the two judgments of learned single Judges of this Court.
2. A brief statement of facts essential for the disposal of this writ petition may be indicated. Respondent no.6 herein (the plaintiff-election petitioner) and the writ petitioner (the defendant) and others, contested the election for the post of Mukhiya of Gram Panchayat Raj Kasraur Basauli, Block Gora Bauram, District Darbhanga. The writ petitioner was declared elected. Respondent no.6 challenged the same by preferring the aforesaid Election Petition no.8 of 1986, which was admitted and notices were issued. The writ petitioner entered appearance and filed an application under the provisions of Order 7, Rule 11(d) of the Code that the election petition had been filed beyond the prescribed period of limitation. In the absence of any provision for condonation of delay, the election petition should be dismissed on the ground of limitation at the threshold. On a consideration of the matter, the application was rejected by order dated 23.4.2007, and the delay was condoned, leading to the present writ petition.
3. The writ petition was placed before a learned single Judge of this Court and the question was considered. On an exhaustive consideration of the matter, the learned single Judge has in his order of reference observed that, in view of the Scheme of the Bihar Panchayat Raj Act 2006 (hereinafter referred to as `the Bihar Act'), read with the Bihar Panchayat Election Rules 2006 (hereinafter referred to as `the Rules), the relevant provisions of the Limitation Act 1963 (hereinafter referred to as `1963 Act') are applicable and, therefore, the provision for condonation of delay is available with respect to the proceedings under the Bihar Act. The learned single Judge has further observed that he, therefore, disagrees with the view taken by learned single Judges of this Court in the case of Birendra Kumar v. State Election Commission [2004(3) PLJR 313], and Shambhu Lal v State of Bihar [2007(2) PLJR 698. It has been held in these two judgments that the provisions of 1963 Act are inapplicable to the proceedings under the Bihar Act and, therefore, there is no provision for condonation of delay for the proceedings under the Bihar Act. In view of such disagreement, the learned single Judge has referred the issue for the decision of a Division Bench to decide the correctness of the two opposite views. 3
4. Learned counsel for the writ petitioner contests the order of the learned Munsif and submits that the Bihar Act, like the Representation of the People Act, 1951 (hereinafter referred to as `1951 Act'), is a complete Code by itself, and the provisions of 1963 Act are inapplicable. The Bihar Act read with the Rules is a complete Code by itself and the period of limitation and the provision for condonation of delay, if any, has to be found within the four corners of the Act. He relies on the judgment of the Supreme Court in Jyoti Basu v Debi Ghosal [AIR 1982 SC 983] (paragraphs 8 and 9). He next submits that the provision of Section 29(2) of the 1963 Act provides that the provisions contained in Sections 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. In order to ascertain whether or not it was intended to be so excluded in the present context, the scheme of the Act as a whole has to be examined. He relies on the judgments of the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra [AIR 1974 SC 480], and in Lachhman Das Arora v. Ganesh Lal [AIR 1999 SC 3101]. He lastly submits that the two learned single Judges of this Court have in the following judgments laid down to the effect that there is no provision for condonation of delay in filing an election petition under the Bihar Act:-
(a) Birendra Kumar v State Election Commission [2004(3) PLJR 313] This judgment was rendered with respect to the provisions of the Bihar Panchayat Raj Act 1993.
(b) Shambhu Lal v. State of Bihar [2007(2) PLJR 698] This judgment was with respect to the provisions of the Bihar Act.
5. Learned Government Counsel for respondent nos. 1 to 5 has supported the writ petition, and submits that the Bihar Act is a complete Code by itself, and there is absence of provision for extension of time in presenting an election petition. He relies on the judgment of the Supreme Court in Chhattisgarh State Electricity Board v Central Electricity Regulatory Commission [2010 AIR SCW 2680], which dealt with similar provisions in the Electricity Act 2003.
6. Learned counsel for respondent no. 6, on the other hand, has supported the order of the learned Munsif. He submits that the provisions of the Bihar Act are different from 1951 Act and, therefore, parity cannot be drawn between the two. The 4 Bihar Act is not a complete Code and, therefore, has to be read with the provisions of 1963 Act. He adopts the reasoning in the order of reference. He submits that the right to elect, and the right to get elected, is a common law right rather than statutory right. He relies on the following passage occurring in Halsburry's Law of England, Third Edition :-
"The decision 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."
He has also submitted that this portion is absent in the 4th edition. 6.1) He next submits that there is no corresponding provision of Section 86(1) of 1951 Act in the Bihar Act. The relevant provisions in the two enactments are differently couched. Therefore, Hukumdev Narain Yadav's case (supra) is inapplicable to the present situation. He relies on the judgment of the Supreme Court in Krishna Kumar Chaudhary v Alliance Agro Industries (P) Ltd. [1991(1) PLJR (SC) 3]. He also submits that wisdom lies in extending the jurisdiction so that all grievances of aggrieved parties are adjudicated, and no one is left remedyless. He lastly submits that non-applicability of the provisions of section 5 of 1963 Act will affect the jurisdiction of the Court, and such a situation has to be avoided in the interest of justice. He relies on the judgment of the Supreme Court in Jagan Nath v. Jaswant Singh [AIR 1954 SC 210].
7. We have perused the materials on record and considered the submissions of learned counsel for the parties. The issues are not free from difficulties. We must at the very outset candidly state that the view taken in the order of reference is indeed a possible view. We, however, take the opposite view that we have taken for the reasons assigned hereinbelow. The Supreme Court had to consider this issue with respect to the provisions of 1951 Act in the case of Hukumdev Narain Yadav (supra). 5 Section 86 of 1951 Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81, or section 82, or section
117. Sub-section (1) of section 86 is reproduced hereinbelow:-
"86. Trial of election petitions.-(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117."
Section 81 provides the period of limitation. Section 82 enjoins on the petitioner as to the persons who shall be impleaded as party respondents. The Supreme Court in Hukumdev Narain Yadav's case (supra) interpreted these provisions, laying emphasis on the consequence indicated in section 86, in mandatory terms that a belated election petition shall be dismissed. On an exhaustive discussion of the scheme of 1951 Act, the attendant circumstances, and various relevant materials, the Supreme Court came to the conclusion that it is a complete Code by itself and, therefore, the provisions of the 1963 Act including the provision for condonation of delay, are inapplicable to 1951 Act. The relevant portions of the judgment are reproduced hereinbelow:-
"17. Though S. 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where S. 29(2) has been made applicable to an election petition filed under S. 81 of the Act by virtue of which either Section 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under S. 81 of the Act, S.29(2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. 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 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 S. 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 S. 86 of the Act which gives a peremptory command that the High Court shall dismiss an 6 election petition which does not comply with the provisions of Ss. 81, 82 or 117. It will be seen that S. 81 is not the only section mentioned in Section 86, and if the Limitation Act were to apply to an election petition under S. 81 it should equally apply to Ss. 82 and 117 because under S.86 the High Court cannot say that by an application of Section 5 of the Limitation Act, S.81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of Sections 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to S. 81. Again S. 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, Ss. 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial.
"18. It was sought to be contended that only those provisions of the Limitation Act which are applicable to the nature of the proceedings under the Act, unless expressly excluded, would be attracted. But this is not what S. 29(2) of the Limitation Act says, because it provides that Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. If none of them are excluded, all of them would become applicable. Whether those sections are applicable is not determined by the terms of those sections, but by their applicability or inapplicability to the proceedings under the special or local law. A person who is a minor or is insane or is an idiot cannot file an election petition to challenge an election, nor is there any provision in the Act for legal representation of an election petitioner or respondent in that petition who dies, in order to make Section 16 of the Limitation Act applicable. The applicability of these provisions has, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Act relating to the filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit of the application of any of the provisions of the Limitation act mentioned in S. 29 of that Act."
8. The Supreme Court, inter alia, concluded that Section 86 of 1951 Act is couched in such terms and in peremptory language to the effect that, if the election petition is not filed within a period of 45 days, then the same shall be dismissed. It has been further observed that the Parliament advisedly did not provide for enlargement of time because every elected office has a fixed term, and the election petition challenging the same must be disposed of most expeditiously. The Supreme Court has held as follows in Para 20 of Hukumdev Narain Yadav (supra):-
"20. It is also significant that delay in the presentation of the election petition under the repealed Section 81 could be condoned by the Election Commission in its discretion under the proviso to the repealed S. 85 of the Act. But there was nothing to S. 85 which permitted the Election Commission to condone the non-compliance with the provisions of S. 117 of the Act. When the Act was amended and the jurisdiction was given to the High Court to entertain and try election petitions, a provision similar to the proviso for condoning delay was not enacted. This omission definitely expresses Parliament's intention not to confer the power to condone any delay 7 in the presentation of the petition. The whole object of the amendment in 1966 was to provide a procedure for a more expeditious method of disposal of election disputes, which experience had shown had become dilatory under the former procedure where election trials were not concluded even after five years when the next elections were held, notwithstanding the fact that every petition was enjoined to be tried as expeditiously as possible and endeavour was required to be made to conclude the trial within six months from the date on which the election petition was presented to the High Court for trial."
9. Article 243(O) of the Constitution of India reads as follows:-
"243O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution -
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State."
In other words, election to any Panchayat shall be called in question by way of an election petition presented in the manner prescribed by the law made by the Legislature of the State.
10. The Supreme Court in the case of Jyoti Basu (supra) was, inter alia, required to examine the question as to who may be joined as respondents to an election petition under the 1951 Act. Paragraph - 8 of the judgment is relevant in the present context and is reproduced hereinbelow:-
"8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the 8 Representation of the People Act 1951, and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?
(Emphasis added) The Supreme Court in substance held that right to elect is neither a fundamental right nor a common law right, and is essentially a statutory right. So is the right to be elected. It follows that the method of election, the procedure to challenge it, etc. - are all statutory in nature. Therefore, the procedure to file a petition and the power, if any, to condone the delay in filing the same, have to be found within the four corners of the relevant statute. Neither the common law nor the equities are any guidance in this respect.
11. In the light of the judgments of the Supreme Court noticed hereinabove, we now proceed to examine the scheme of the Bihar Act and the Rules thereunder. Section 137 of the Bihar Act reads as follows:-
"137. Election Petition.- (1) The election to any office of a Panchayat or a Gram Katchahry shall not be called in question except by an election petition as prescribed:
Provided that if an election to any office of a Gram Panchat or gram Katchahry is under dispute, the election petition shall lie before such Munsif within whose jurisdiction such Gram Panchayat or Gram Katchahry is situated and if the election to any office of Panchayat Samiti or to a Zila Parishad is under dispute, the election petition shall lie before such sub-Judge within whose jurisdiction such Panchayat Samiti or Zila Parishad, as the case may be, is situated.
(2) "Parties to the petition"- A petitioner shall join as a respondent to his petition -
(a) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates, and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition."
Rule 106 of 2006 Rules reads as follows:-
"106. Election petition :- (1) An election petition against any elected candidate may be filed under section 137 of the Ordinance before the prescribed Court of Law within thirty days from the date of declaration of the election results.9
(2) The following may be joined as respondents by the petitioner to his/her election petition -
(a) Where the petitioner, claims to declare the election of all or any of the returned candidate as void in addition to his/her claim for any other candidate to be legally elected, in such a case all the contesting candidates other than the petitioner; and where no such additional claim has been made, all the candidates, and,
(b) Any other candidate against whom allegation of any corrupt practices is made in the petition."
Two things are particularly noticeable in the present context. Section 86 of 1951 Act provides the consequence that shall ensue if the election petition is filed in violation of Section 81, or section 82, or Section 117. Section 81 of the Act prescribes the period of limitation. In other words, if election petition is not filed within the period of 45 days, then the same shall be dismissed. Such a consequence coupled with the peremptory language is absent in the provisions of 2006 Act, and weighs in our mind heavily. Secondly, the provisions of sections 82 and 86 of 1951 Act are combined together in section 137 of the Bihar Act. Rule 106 provides the period of limitation of 30 days within which the election petition may be filed. Althrough the expression `may' is used, and the mandatory `shall be dismissed' of section 86 of the 1951 Act is absent.
12. The Supreme Court has, inter alia, held in the case of Hukumdev Narain Yadav (supra) that, in order to ascertain whether or not the Act is a complete Code by itself, absence of the consequence and the peremptory tone in the relevant Section is not enough to complete the task. It is open to the Court to examine the entire scheme of the Act to ascertain the intent of the Parliament whether or not it is a complete Code by itself, and whether or not the provisions of 1963 Act are applicable. 12.1) Paragraph 12 of Chattisgarh State Electricity Board vs. Central Regulatory Election Commission [AIR 2010 SCW 2680, at page 2689), reads as follows:-
"12. In Hukumdev Narain Yadav v. L N Mishra [(1974) 2 SCC 133:
(AIR 1974 SC 480)], the Court interpreted Section 29(2) of the Limitation Act in the backdrop of the plea that the provisions of that Act are not applicable to the proceedings under the Representation of the People Act, 1951. It was argued that the words "expressly excluded"
appearing in Section 29(2) would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. While rejecting the argument, the three-Judge Bench observed:
"........what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of 10 the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. 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 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."
(Emphasis supplied)"
13. Analysis of the Bihar Act read with the Rules shows that it is a self- contained Code. Chapter I of the Act indicates the extent of application of the Act, and also includes the definitions. Chapter II comprising of eight sections deals with the Gram Sabha giving details of its duties and functions, and powers etc. Chapter III comprising of twenty-two sections deals with Gram Panchayat giving details about composition of the Gram Panchayat, reservation of seats, duration of Gram Panchayat, election of Mukhiya and Up-Mukhiya, their term of office, and powers, functions and duties, resignation etc. According to Section 11(3) of the Act, every Gram Panchayat is a body corporate. Chapter III provides for power of taxation, audit, etc. Chapter IV comprising of twenty eight sections, deals with Panchayat Samiti with detailed provisions for its elected members, reservation of seats, duration of election, powers and functions and duties of Pramukh and Up-Pramukh etc. Chapter V comprising of twenty eight sections, deals with Zila Parishad with similar provisions, and also provides for details of office and tenure of Adhyaksha and Upadhyaksha, their powers of taxation and right to allowances etc. Chapter VI comprising of thirty three sections deals with establishment, powers, duties and procedure of Gram Katchary and Benches thereof. It also provides for appointment of Sarpanch and Up-Sarpanch etc., institution of suits and cases. It is noticeable that Section 101 provides for institution and hearing of suits and cases, and does not provide for any period of limitation. Section 106 vests criminal jurisdiction in Gram Katchahry, and Section 110 vests Gram Katchahry with civil jurisdiction. Section 112 provides for appeal and does not provide for a period of limitation. This provision is not very relevant in the present context because we have confined our scrutiny to the election petition, the initial stage of commencement of litigation. Section 120 of the Bihar Act provides for limitation of suits and reads as follows:-
"120. Limitation of Suits. - No suit shall be entertained by a bench of the Gram Katchahry after the expiration of three years from the date when the right to sue first accrued :11
Provided that the period of limitation for suits specified in the first column of the Table when instituted before a bench of the Gram Katchahry shall be the period specified in the corresponding entry of the second column thereof."
It is noticeable that Section 120 does provide the consequences of delay in filing the suit, namely, it shall not be entertained. Chapter VII comprising of twenty two sections provides for State Election Commission and further details including qualification and disqualification for membership etc. Section 137 provides for election petition and has been reproduced hereinabove. Section 141 provides for corrupt practices. Chapter VIII is headed Miscellaneous, comprising of 28 sections, and provides for revision of decisions of the Committee, power of Government to make rules, power of Gram Panchayats to make bye-laws, and such other rule- making powers. It also provides for power of Government to make model regulations, to dissolve and reconstitute Panchayats, etc. 13.1) The 2006 Rules are supplemental to the Bihar Act and provide for effective implementation of its provisions. Chapter 1 of 2006 Rules mainly deals with the definitions. Chapter 2 comprises of six rules and provides for constitution and assignment of number to the constituencies. Chapter 3 comprising of twelve rules and deals with reservation/allotment of constituencies. Chapter 4 comprising of seven rules and deals with electoral roll. Chapter 5 comprising of two rules and deals with polling stations. Chapter 6 comprising of eight rules deals with administrative machinery for the conduct of election. Chapter 7 comprising of nine rules deals with conduct of election. Chapter 8 comprising of eight rules and deals with the candidate and his/her agent. Chapter 9 comprising of nineteen rules deals with poll for election. Chapter 10 comprising of twelve rules provides for counting of votes. Chapter 11 comprising of three rules deals with records of election. Chapter 12 comprising of eighteen rules deals with election of Up-Mukhiya, Up-Sarpanch, Up-Pramukh, Pramukh, Upadhyaksha, and Adhyaksha. Chapter 13 is headed Miscellaneous and comprises of eighteen rules. Rule 106 provides for the period of limitation and the candidate who may be joined as respondent and has been reproduced hereinabove. Rule 109 is relevant in the present context and is reproduced hereinbelow:-
"109. Hearing of election petition :- The competent Court of Law shall hear the election petition in the manner prescribed by the Civil Procedure Code, 1908."12
Rule 111 is also relevant and is reproduced hereinbelow:-
"111. Application of the provisions of the Indian Evidence Act in the hearing of an election petition:- In the hearing of an election petition the Indian Evidence Act, 1872 shall apply."
It is evident on a perusal of the Act and the Rules that both are very comprehensive and detailed provisions have been made with respect to all relevant aspects of the matter. It is evident that the Legislature did not intend to provide for applicability of the provisions of the Limitation Act, and did not intend enlargement of time to file the election petition. Rule 106 of the Rules does provide for the period of limitation without provision for enlargement of time. Rules 109 and 111 provides for applicability of the Civil Procedure Code and the Indian Evidence Act to the hearing of an election petition. Had the Legislature intended that there may be a provision for condonation of delay, it could have either provided for enlargement of time in rule 106, or would have inserted a comparable provision like rule 109, or rule 111, to the effect that 1963 Act shall apply.
14. Section 137 of the Bihar Act read with rule 106 of the Rules makes it clear that an election petition has to be filed within the period of 30 days from the date of declaration of the election result. It is relevant to state that a number of specialized statutes provide for condonation of delay within the four corners of the Act. Enactments with respect to elections stand on a different footing, should normally be taken to be self-contained Code excluding applicability of 1963 Act, except specifically provided in an election-related Act; the object being expeditious disposal of the election petition. Every election to any office is for a fixed tenure, and if the election petition is not disposed of quickly, the tenure would be over and the purpose and object of an election petition would be frustrated.
15. The observations that the provisions of 1951 Act are a self-contained code were also made in the case of K.Venkateswara Rao vs. Bekkam Narasimha Reddi (1969) 1 SCR 679=(AIR 1969 SC 872)..In that case, after the issues were framed in an election petition, the appellants made an application to the Court for impleading one R but it was dismissed. The first respondent then filed an application under S. 86(1) praying for dismissal of the election petition on the ground that there had been non-compliance with S.82(b) of the Act inasmuch as R against whom corrupt practice had been alleged had not been made a party. The appellants filed an application 13 seeking to withdraw the allegation against R and in the alternative to implead him as a respondent. It was also prayed that delay in making the application may be condoned. The learned Judge of the High Court trying the election petition dismissed the aforesaid application and refused to condone the delay. One of the contentions urged in the appeal was that S. 5 and S. 29(2) of 1963 Act, were applicable to the case and the High Court and this Court had power to condone the delay made by the election petitioner in impleading a necessary party. This plea was rejected. After examining the relevant provisions of the Act in detail, the Supreme Court observed as follows at pp.682-686 observed at pp.686-687:
"It is well settled that amendments to a petition in a civil proceding and the addition of parties to such a proceeding are generally possible subject to the law of limitation. But an election petition stands on a different footing. The trial of such a petition and the powers of the court in respect thereof are all circumscribed by the Act. The Limitation Act of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith. The provisions of this act will apply to all civil proceedings which can be taken in a court of law unless the application thereof has been excluded by any enactment the extent of such application is governed by Section 29(2) of the Limitation Act. In our opinion however the Limitation Act cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act." (Emphasis added)
16. The judgment of the Supreme Court in Hukumdev Narain Yadav (supra) was handed down on 21.12.1973, whereas the Bihar Act was enacted in 2006. If the Legislature intended that there should be scope for enlargement of the period of limitation for filing an election petition, it was open to the Legislature to provide for the same in the Act itself. This appears to us to be an important circumstance in the present context.
17. In Hukumdev Narain Yadav's case, the Supreme Court considered Lala Ram's case [(1970) 2 SCR 898 = AIR 1970 SC 1093], in paragraph 15, and is reproduced hereinbelow:-
"15. In Lala Ram's case, (1970) 2 SCR 898=(AIR 1970 SC 1093) to which a reference has been made already, a Bench of this Court to which one of us was a party (P. Jaganmohan Reddy, J.) considered the applicability of S.12 of the Limitation Act to an application under S. 417(3) of the Code of Criminal Procedure. In that case an application for leave to appeal to the High Court was filed under sub-s. (3) of S. 417 of the Code of Criminal Procedure against an order of acquittal by a Magistrate. It was claimed that two days were necessary for obtaining the certified copy of the order of the Magistrate and the application would be in time if these two days were deducted. The High Court 14 accepted the appeal and convicted the appellant. In appeal to this Court against his conviction the appellant contended that the period of 60 days mentioned in Sc. 417(4) was not a period of limitation within the meaning of S. 12 of the Limitation Act and that the sub-section barred the jurisdiction of the High Court to deal with the application if a period of 60 days had expired from the date of the order of acquittal. It was held that the application to the High Court was within time. It was, however, urged that S. 417 contains a prohibition that no application under sub-s. (3) shall be entertained by the High Court after the expiry of 60 days from the date of the order of acquittal and consequently the jurisdiction of the High Court to entertain such applications for leave to appeal is barred. The Court rejected the contention and relying on the case of Kaushalya Rani v. Gopal Singh (1964) 4 SCR 982 = (AIR 1964 SC 260) as well as on Anjanabai v. Yeshwantrao Daulatrao Dudhe, ILR (1961) Bom 135, 137 = (AIR 1961 Bom 154), observed at p. 901 :
"It is quite clear that the Full Bench of the Bombay High Court and this Court proceeded on the assumption that Section 417 (4) of the Criminal Procedure Code prescribes a period of limitation. The learned counsel, however, contends that there was no discussion of this aspect. Be that as it may, it seems to us that S. 417(4) itself prescribes a period of limitation for an application to be made under S. 417(3). It was not necessary for the legislature to have amended the Limitation Act and to have inserted an article dealing with applications under S. 417(3), Cr.P.C., it was open to it to prescribe a period of limitation in the Code itself."
The basis of this decision is that sub-section (4) of Section 417 of the Code of Criminal Procedure is not in a negative form as contended for by the learned Advocate in that case, but that it has a positive content for performing an act and it prescribes a definite period within which an act has to be done." (Emphasis added) It appears to us that Section 417(4) of Cr.P.C., and Section 137 of the Bihar Act read with rule 106, though not identical, but are similar. We are, therefore, of the view that our view is supported by the decision of the Supreme Court in Lala Ram's case and approved by the Supreme Court in Hukumdev Narain Yadav.
18. Learned counsel for respondent no.6 relied on the judgment of the Supreme Court in Krishna Kumar Choudhary (supra). That raised the question whether or not provisions of section 29 of 1963 Act are applicable to the proceedings under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961. The Patna High Court had held that the Ceiling Act is a complete Code by itself. In the absence of a provision for condonation of delay, an application under Section 16(3) of the Act has to be filed without the aid of any provision for condonation of delay. The Supreme Court disagreed with the High Court and by a short order held that the provisions of section 29 of the 1963 Act were applicable to the Act. The entire order of the Supreme Court is reproduced hereinbelow:- 15
"Special leave granted.
2. We are of the opinion that Section 29 of the Limitation Act applies to the facts and circumstances of this case and that is now for the Deputy Collector, Land Reforms, and the Collector under the Act, to consider whether the delay in filing the proceeding should be condoned. Thereafter the Deputy Collector Land Reforms and the Collector under the Act will dispose of the case on the remaining points in accordance with the law.
3. The appeal is disposed of in these terms. There is no order as to costs."
18.1) We are of the view that the judgment in Krishna Kumar Choudhary (supra) is inapplicable to the present situation because election of a candidate is limited by the tenure of the post to which he has been elected. It is essential in the interest of democracy that an elected person should have stability in office. Election petition must be disposed of most expeditiously, much before the tenure is over. Therefore, with respect to election petitions, unless the Legislature in clear and unambiguous terms provides for condonation of delay, it may be presumed that the Legislature did not intend to provide for condonation of delay. Law of limitation in relation to election petitions has been exhaustively discussed by the Supreme Court in Hukumdev Narayan Yadav (supra). It thus appears to us that the view taken by the Supreme Court in Krishna Kumar Choudhary (supra) is, therefore, inapplicable to election laws because of its special features.
19. The judgment of the Supreme Court in Chhattisgarh State Electricity Board (supra), is also relevant in the present context and supports the case of the writ petitioner. That was a case under the Electricity Act (36 of 2003). It fell for the consideration of the Supreme Court whether or not the provisions of section 5 of 1963 Act can be invoked to entertain an appeal filed against the decision of the Tribunal beyond the maximum period of 120 days. The Supreme Court examined the scheme of the Act and came to the conclusion that the Act is a complete Code by itself, the Parliament has provided for limited enlargement of the period of limitation provided in the Electricity Act itself, unlike Section 5 of the Limitation Act which does not restrict enlargement of the period of limitation. The relevant portions of law considered by the Supreme Court are reproduced hereinbelow:
Electricity Act and the Rules
125. Appeal to Supreme Court - Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of 16 the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.
94. Pronouncement of order. - (1) The Bench shall as far as possible pronounce the order immediately after the hearing is concluded.
(2) When the orders are reserved, the date for pronouncement of order shall be notified in the cause list which shall be a valid notice of intimation of pronouncement"
(3) Reading of the operative portion of the order in the open court shall be deemed to be pronouncement of the order.
(4) Any order reserved by a Circuit Bench of the Tribunal may also be pronounced at the principal place of sitting of the Bench in one of the aforesaid modes as exigencies of the situation require.
98. Transmission of order by Court Master.- (1) The Court Master shall immediately on pronouncement of order, transmit the order with the case file to the Deputy Registrar.
(2) On receipt of the order from the Court Master, the Deputy Registrar shall after due scrutiny, satisfy himself that the provisions of these rules have been duly complied with and in token thereof affix his initials with date on the outer cover of the order. The Deputy Registrar shall thereafter cause to transmit the case file and the order to the Registry for taking steps to prepare copies and their communication to the parties.
106. Filing through electronic media. - The Tribunal may allow filing of appeal or petition or application through electronic media such an online filing and provide for rectification of defects by e-mail or net and in such filing, these rules shall be adopted as nearly as possible on and from a date to be notified separately and the Chairperson may issue instructions in this behalf from to time.
Limitation Act
5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
29. Savings.- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
17
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements act 1882 (5 of 1882), may for the time being extend."
19.1) The Supreme Court examined the scheme of the Electricity Act and held that the Act is a complete code, which itself provides for limited condonation of delay, and completely excludes applicability of 1963 Act. Para 16 of the judgment is reproduced hereinbelow:
"16. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory."
19.2) The Supreme Court also examined the scheme and the comparable provisions of the Arbitration and Conciliation Act 1996, and those of the Central Excise Act, and concluded that the same are self-contained code, and the provisions of Section 5 of 1963 Act are inapplicable.
20. We now consider the judgment of the learned single Judge of this Court in Birendra Kumar (supra). That raised just the same question as in the present writ petition. Relying entirely on the judgment of Supreme Court in Hukumdev Narain Yadav (supra), a learned single Judge of this Court came to the conclusion that the provisions of sections 5 to 29 of the 1963 Act are inapplicable to the predecessor Act of 2006 Act. It is relevant to state that the learned single Judge had, inter alia, noticed the provision of section 86 of 1951 Act in paragraph 11 of his judgment. We wish to place some emphasis on this aspect of the matter because the order of reference states that the judgment in Birendra Kumar (supra) was rendered in ignorance of section 86 of the Act which is really an error of record. This judgment fully supports the petitioner's case. We agree with the view taken by the learned single Judge in Birendra Kumar's case.
21. We next notice the judgment of a learned single Judge of this Court in Shambhu Lal (supra), presented an identical situation with the only difference that 18 Birendra Kumar's case dealt with Bihar Panchayat Raj Act 1993, whereas Shambhu Lal (supra) dealt with the Bihar Act, the successor Act. Furthermore, the learned single Judge has examined more judgments of the Supreme Court and reached the same conclusion as in Birendra Kumar(supra). In other words, the learned single Judge has held that the provisions of sections 5 and 29 of 1963 Act are inapplicable to an election petition under the Bihar Act. We agree with the view taken in Shambhu Lal (supra).
22. A provision of law enabling institution of proceedings can be bereft of a provision for condonation of delay is not unknown to other branches of law. Section 3 of 1963 Act provides that, subject to provisions contained in sections 4 to 24 (inclusive), every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence. Section 5 provides for extension of prescribed period in certain cases and does not include a suit. A conjoint reading of sections 3 and 5 of 1963 Act makes it abundantly clear that the provision for condonation of delay is not available to suits. Suit is the basic remedy of a citizen in this country for adjudication of civil rights and liabilities, and is unaided by the provision for condonation of delay. Such a restriction is generally to be found in the proceedings in the first instance, and not appeals, revisions, etc.,for example, a suit in the Civil Court, or an election petition. Therefore, we prefer to take a view different from the one taken in the order of reference. We agree with the views taken by learned single Judges of this Court in the case of Birendra Kumar (supra), and Shambhu Lal (supra). To conclude, an election petition under the provisions of section 137 of the Bihar Act read with rule 106 of the Rules has to be filed within the prescribed period of limitation, and there is no provision for enlargement of the prescribed period of limitation.
23. We must make it clear that we have examined the question of condonation of delay and applicability of 1963 Act to an election petition, and not appeal, revision, and review.
24. In the result, the writ petition is allowed, and the impugned order dated 23.4.2007, passed by the learned Munsif, Biraul at Benipur, Darbhanga, in Election Petition No.8 of 2006, is hereby set aside. We hold that Election Petition No.8 of 19 2006 is barred by limitation. In the circumstances of the case, there shall be no order as to costs.
( S K Katriar,J.)
Birendra Prasad Verma, J. I agree.
( Birendra Prasad Verma, J.)
Patna High Court, Patna
The 4th day of August 2010
AFR/mrl
.