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 P R E S E N T 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