IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12770 of 2011 Sachidanand Singh Versus The Bihar State Panchayat Election Commission & ors. ----------- ORDER 06. 16.11.2011 Heard the learned counsel, Mr. Sanjay Kumar No.1 on behalf of the petitioner and Mr. Sanjeev Nikesh, the learned counsel appearing on behalf of the State Election Commission and learned counsel, Mr. Umakant Shukla on behalf of respondent no.2. (2) This application under Article 227 of the Constitution of India has been filed by the petitioner, Sachidanand Singh challenging the order dated 20.06.2011 passed by Sri Shashi Kant Roy, Munsif-cum-Election Tribunal, Jehanabad in Election Petition No.8 of 2011 whereby the learned Court below allowed the amendment petition filed by the respondent no.2 under Order 6 Rule 17 of the C.P.C. (3) The respondent no.2, Kush Kumar filed the Election Petition No.8 of 2011 praying for setting aside the election of Sachidanand Singh, present writ petitioner as returned candidate and after the recounting of the votes, the petitioner be declared as an elected Mukhiya, Uber Gram Panchayat. The said writ petitioner claimed the aforesaid relief on allegation that the writ petitioner brought Opposite Party No.3 under his conspiracy and at the time of counting under collusion with him the Opposite 2 party No.3 i.e. Returning Officer, Panchayat Election Ghoshi Block misused the power vested in him. He influenced the Gram Panchayat and got committed a number of bungling in counting of votes in favour of the Opposite Party No.4 who is writ petitioner who approached him for undue help. From paragraph 9 onwards, the petitioner has given specific instances of bungling in counting the votes. (4) The result was published on 15.05.2011. The Election Petition was filed by the respondent no.2 on 01.06.2011. On 26.06.2011, amendment petition was filed by the election petitioner alleging that he came to know on 16.06.2011 that some of the voters named in Schedule-1 of the amendment application exercised their voting rights in two booths under the same Gram Panchayat in favour of the writ petitioner. All such votes are void votes. So these invalid votes casted in favour of the writ petitioner and counted in his favour and if they are rejected as void votes, the writ petitioner will be holder of less number of valid votes than the Election Petitioner. By the impugned order, the learned Court below allowed this amendment finding that it is only formal in nature and the same will not change the nature of the case. (5) The learned counsel for the petitioner submitted that Election Petition is governed by special law and according to the Bihar Panchayat Election Rules, 106 the 3 Election Petition has to be filed within 30 days. Here, the result was declared on 15.05.2011 and within 30 days, Election Petition was filed on 01.06.2011. 30 days completed on 14.06.2011 whereas the amendment application was filed after expiry of 30 days i.e. on 26.06.2011. In such circumstances, the amendment applied for was barred by law of limitation and the Election Tribunal has no jurisdiction to condone the delay. In such circumstances, the impugned order passed by the Court below is liable to be set aside. (6) The learned counsel in support of his submission relied upon 2003(4) P.L.J.R. 407(Satyanarain Singh vs. Om Prakash). The learned counsel next relied upon A.I.R. 1969 Supreme Court 872(K. Venkateswara Rao vrs. Bekkam Narasimha Reddi), 2009(4) P.L.J.R. 722 (Kameshwar Singh vs. Suryanarain Rai), 2008(3) P.L.J.R. 187 (Neelam Kumari vs. State of Bihar), A.I.R. 2010 S.C. 1227(Ramsukh vs. Dinesh Agrawal) in support of his contention. (7) On the other hand, the learned counsel for the respondent relied upon a decision reported in 2007(1) P.L.J.R. 327(Jageshwar Rai vs. State of Bihar). The learned counsel submitted that the learned Court below has the jurisdiction to allow amendment if it is necessary for just decision of the case as has been held by the Division Bench. According to the learned counsel, the 4 election petitioner pleaded the fact of bungling in the original Election Petition and then subsequently filed the amendment application giving details of the bungling and, therefore, the amendment sought for was only to elaborate the facts already alleged in the Election Petition. (8) Admittedly, in the present case, originally the respondent no.2 alleged conspiracy between the writ petitioner and the Returning Officer and alleged bungling in the counting of votes. The Election Petition was filed within 30 days as provided under the rule. It is also admitted fact that the amendment application was filed after the expiry of 30 days from the declaration of the result and in the said amendment application a new ground has been alleged that many persons named in the Schedule of the amendment application casted their votes in two booths. So far this ground is concerned, admittedly it is beyond the period of limitation. (9) In 2008(3) P.L.J.R. 187 Neelam Kumari(supra), this Court held that the period of 30 days provided under Rule 106 of the Bihar Panchayat Election Rules is mandatory. In C.W.J.C. No.10105 of 2006(Shambhu Lal vrs. State of Bihar) disposed of on 27.02.2007, the same very question i.e. will the limitation period of 30 days provided under Rule 106 of the Bihar Panchayat Election Rules, 2006 for institution of an Election Petition from the date of declaration of the result be 5 absolute or will it be emenable to condonation under the Limitation Act by excluding the time spent in obtaining the certified copy of the documents assailed was considered. This Court after considering the provisions of Representation of Peoples Act and Bihar Panchayat Raj Act and also various decisions of Hon’ble Supreme Court and High Court held that the Limitation Act does not prescribe any period for filing of an election petition. The R.P. Act is a complete code and a special law in so far as presentation and trial of election dispute is concerned. The provision of Section 4 to 24 of the Limitation Act did not apply. (10) The aforesaid decision of this Court was upheld by a Division Bench in L.P.A. no.243 of 2007 by terms of order dated 28.05.2007. In L.P.A., it has been held that the omnibus provision made in the Limitation Act, 1963 in Section 5 does not apply to the election petition. In this case also Gram Panchayat Election Rules, 2006 was considered. (11) In (1974) 2 SCC 133(Hukumdeo Narayan Yadav vrs. Lalit Narayan Mishra), the Hon’ble Apex Court held that the provision of Section 5 of the Limitation Act does not govern the limitation for presentation of the election petition. The time limit prescribed for presentation of the election petition could not be extended, altered unless there are statutory provision. The Apex Court was considering scope and ambit of Section 81 of the R.P. Act. 6 This provision of R.P. Act is in paramateria with the provisions of Bihar Panchayat Raj Act and Rules. The only difference is that in R.P. Act, 45 days is the time limit for presenting election petition whereas in Panchayat Raj Act, it is 30 days. (12) In A.I.R. 1969 Supreme Court 872(K. Venkateswara Rao vrs. Bekkam Narasimha Reddi), the Apex Court while examining the provisions of Representation of Peoples Act, 1951 held that the trial of an election petition is not the same thing as the trial of a suit. Under Order 6 Rule 17 C.P.C., a Court of law trying the suit has very wide powers in the matter of allowing amendments of pleadings and all amendments which will aid the Court in disposing of the matter in dispute between the parties are as a rule allowed subject to law of limitation. High Court is not to allow amendment of a petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. In the present case at our hand by amendment the election petitioner introduced particulars of corrupt practice which were not alleged in original petition. It can not be said that this particulars of corrupt practice furnished in the amendment application is in fact the elaboration of the corrupt practice alleged in the election petition. (13) In 2009(4) P.L.J.R. 722(Kameshwar Singh vrs. Surya Narain Rai), this Court at paragraph 12 7 has held as follows: “12. In the aforesaid view of the matter, this court is clearly of the view that the provision of Section 137(2) and Rule 106(2) of the Act and the Rules respectively are mandatory and the election petitioner ought to have impleaded the necessary parties within a period of 30 days from the declaration of the result of the election and in any case no application for amendment of parties after the mandatory period of 30 days can be entertained by the election tribunal.” (14) Now therefore, if amendment for impleadment of a necessary party can not be allowed after mandatory period of 30 days, how can the amendment be allowed for introducing new facts and particulars of corruption after mandatory period of 30 days. To hold otherwise in the present case will create anomalous situation rendering the statutory mandatory provision of 30 days and the intention of the legislature as redundant. Then in such circumstances there shall be no distinction between a regular suit and election petition. No doubt the provision of C.P.C. will be applicable but it will be always subject to the Gram Panchayat Raj Act and the Rules thereunder. (15) Even the decision relied upon by the respondent i.e. 2007(1) P.L.J.R. 327, Jageshwar Rai case, the Division Bench held at paragraph 14 that not only the principle but even the procedures including the 8 provisions of amendment prescribed in the code will be applicable in such election matters, except those which are specifically barred by any provision of the Act or the Rules under which the elections were held. (16) In 2008(3) P.L.J.R. 187(Neelam Kumari vrs. State of Bihar) also it has been held by this Court that the provisions of Section 137 and Rule 106 of the Act and Rules are mandatory but provision of Rule 109 of the Bihar Panchayat Election Rules will not make the mandatory provisions of Section 137(2) of the Bihar Panchayat Raj Act and Rule 106(2) of Bihar Panchayat Election Rules nugatory and infructuous. (17) In view of the above discussion, it becomes clear that the period of 30 days prescribed under the provision of Section 137 read with Rule 106(1) of the Bihar Panchayat Election Rules, 2006 is mandatory. The amendment to election petition can be allowed within the said period of 30 days but not beyond that, if the amendment sought for is new facts and particular of corrupt practice which was not alleged in the original election petition. Here as stated above by amendment totally new facts were sought to be introduced alleging new corrupt practice unconnected with the corrupt practice alleged in election petition but the learned Court below allowed the same without considering the relevant laws and thereby exercised a jurisdiction not vested in it by law. 9 In my opinion, therefore, the impugned order is not sustainable. (18) In the result, this application is allowed and the impugned order is set aside. The amendment application of Election Petitioner is rejected. Saurabh ( Mungeshwar Sahoo, J.)