IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.528 of 2008 Manzoor Alam son of Late Abdul Salam, Resident of Village & Post Hirdaya Chowk, P.S. Kaler District Arwal Versus 1. The State of Bihar 2. The Commissioner, Bihar state Election Commission, Sone Bhawan, R. Block, Patna. 3. The District Magistrate-cum-Chief Election Officer, Arwal. 4. The Circle Officer-cum-Returning Officer, Kaler, Arwal. 5. Narendra Sharma Son of Late Basisth Narayan Singh, Resident of Village & P.O. Hirdayachack, P.S. Kaler District Arwal. ----------- For the Appellant : M/S. Rajendra Prasad Singh, Sr. Advocate, Rajeev Kumar Singh & Nand Kishore Singh For the Respondents: None. ------------ P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 19th November, 2008. We heard Mr. Rajendra Prasad Singh, Senior Counsel for the appellant. The appellant is a returned candidate (Mukhia) of Teri gram panchayat, Kaler block, district Arwal. His election was challenged by Narendra Sharma (respondent no. 5 herein) by filing election petition before the Civil Judge (Junior Division)-cum- Election Tribunal, Jehanabad. The present appellant filed written statement and raised diverse objections including that election petition - 2 - was not maintainable. In the light of the pleadings of the parties, the Election Tribunal framed 11 issues which read thus: i) Is the Election petition as framed maintainable? ii) Has the petitioner cause of action for presenting election petition? iii) Is the Election petition barred under Bihar Panchayat Raj Act, 2006 and Bihar Panchayat Raj Election Rule, 2006? iv) Is the election petition bad for non-joinder of election commission? v) Had Opposite party no. 4 and his family members exercised right of voting from ward no.5 and ward no. 7 of gram panchayat Terri or only from ward no. 7? vi) Is the election petition barred by law of limitation? vii) Had there been more casted ballots at booth no. 135 of Terri Gram panchayat than no. of votes reported to be casted at that booth by the Presiding Officer and had there been any mal practice exercised by O.P. No. 4 and his supporters at the time of voting? viii) Had some valid votes of petitioner rejected and invalid votes of O.P. No. 4 counted at the time of counting? ix) Is the petitioner entitled for declaration of election of O.P.No. 4 as returned candidate of Terri Gram panchayat illegal and his election is fit to be cancelled? x) Is the petitioner entitled for re-counting of votes of Terri gram panchayat by the court and declare the petitioner elected as returned candidate? xi) To what relief or reliefs the petitioner is entitled?” 2. The Election Tribunal held the election petition partly maintainable and although ultimately dismissed the election petition, decided certain issues in favour of the election petitioner. The election petitioner as well as the returned candidate being aggrieved by and dissatisfied with the judgment of the Election Tribunal dated 5th May, 2007 filed two writ petitions before this Court being C.W.J.C. No. 7928 of 2007 (by the election petitioner- respondent - 3 - no. 5 herein) and C.W.J.C. No. 10100 of 2007 (by the returned candidate- appellant herein). 3. The Single Judge by a common order dated 23rd June, 2008 formed an opinion that the matter required fresh adjudication. Consequently, he remanded the matter back to the Election Tribunal. However, while remanding the matter, the Single Judge also made certain observations. While remanding the matter the learned Single Judge further observed that the matter will be considered afresh by the Election Tribunal on the basis of the evidence having already let in by the parties and no further evidence will be led. 4. Aggrieved by the order of the Single Judge passed on 23rd June, 2008, the present Letters Patent Appeal has been preferred by the returned candidate. The principal grievance of the appellant is that the Election Tribunal, after remand, may confine consideration with regard to the aspects observed by the Single Judge in the operative portion of the order and may not consider the issue concerning the maintainability of the election petition. 5. Having perused the order dated 23rd June, 2008 carefully, we are of the view that the apprehension of the appellant that the issue with regard to the maintainability of the election petition may not be re-examined by the Election Tribunal is un- founded. The Single Judge in the order dated 23rd June, 2008 has remanded the matter back for fresh adjudication which, obviously, means that all issues have to be considered afresh. The only - 4 - limitation is that the parties shall not be permitted to let in any fresh evidence. 6. With this clarification, we are satisfied that the Letters Patent Appeal does not deserve to be admitted. It is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-