f'- ^ ^ -sms ^ ^^s^ ^^^^ ^ cl>- HSGH COURT OF CHHATTSSGARH. BILASPUR W.A.No.402/2011 D8ihON!BLE_SHRLSUN!LJ<UMAR^SN!^^^^^ HON'BLE SHRI RADHE SHYASV! SHAR^X, J. Ap.pE.LLArr Petstloner BESPONDENTS 3 Sumitra Bai w/o Bhagirathi Kanwar, aged about 40 years, R/o viiiage Pasid, Tehsit Shakti, District janjgir Champa (CG) Versus Anupam s/o Shri Malik Ram Sidar, R/o viiiage Pasid, Tehsll- Shakti, District Janjgir Champa (CG) Karmu Singh s/o Shri Masat Ram Gond R/o viilage Pasid Tehsl! Shakti, District Janjgir Champa (CG) Returning Officer Polling Booth No.96, 97, 98 Shakti, District Janjgir Champa Sub Division Officer cum specified offjcer under Chhattisgarh Panchayat Raj Adhiniyam, Gram Swaraj Adhiniyam, Tehsi! Shakti, District Janjgir Champa (CG) WRiTAPPEALUhLDERSECTION^UlOFJ^^E^^^^ CHHATTISGARH (APPEAL TO DIVSSION BENCH) ACT. 200S RW RVJ-E_158ilO) OFTHEEilHCOURTROLES. 2007 Ap_s3earance: Shri Basant Dewangan, Advocate for the appeilant. Shri Vimlesh Bajpai, Advocate for respondent1. Shri U.N.S. Deo, Government Advocate for the State/respondents 3 and 4. 23 WA 402/2011 ^RAL^RDER (10.10.2011) Sunil Kumar Sinha, J. Thisappeai is directed against the order dated 15 Juiy, 2011, passed in W.P.(C.) No.4268/2010 by the VVrit Court. By the impugned order, the Writ Petition filed by the appeliant/petitioner has been dlsmlssed by the said Court. The appeliant and respondents 1 and 2 contested eiection for the post of Sarpanch of Gram Panchayat Pasid, Tehsil Shakti, District Janjgir Champa. Respondent No,1 was deciared as eiected on 05.02.2010. The appellant fiied an Eiection Petition under Section 122 of the Panchayat Raj Adhiniyam, 1993, chailenging the election of respondent No.1. The aforesaid Election Petition was registered as E.P. No.9/A-89(21)/2009-2010. After issuance of the process in the Election Petltion, the concerned respondents appeared before the Tribunal. Repiy was also filed on behalf of respondent No.1. Respondent No.1 denied the grounds taken in the Eiection Petition. The Election Tribunal, without framing any issue in the matter, heard the arguments of the counsel for both the parties and ultimately, by the Impugned order dated 30.4.2010, the £lection Petition filed by the appellant was dismissed. The said order was challenged in the Writ Petition before the Writ Court. The Writ Court did not find any infirmity in the said order passed by the Election Tribunal and therefore, the Writ Petition was also dismissed. Shri Basant Dewangan, iearned counsel appearing on behaif of the appellant, in light ofthe provisions of Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification tor tVlembership) Rules, 1995 (for short "the Ruies, 1995) would submit that the Election Tribunal erred in law by not foltowing the provisions contalned in Ruie 11 ofthe aforesaid Rules, therefore, the order passed bythe Tribunal was bad in law. On the other hand, Shri Vimlesh Bajpai, learned counsel appearing on behatf of respondent 1 and Shri U.N.S. Deo, learned Government Advocate appearing on behalf of respondents 3 and 4 —^-- "'^? -^ ^i .r ^ WA 402/2011 T opposed these arguments and supported the order passed by the ESection Tribunai, as also the Single Judge. We have heard iearned counse! for the parties at length and have perused the records of the Writ Court. Admittedly, the Rules relating to procedure of Election Petition filed under Section 122 of the Panchayat Raj Adhiniyam, 1993, are Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rufes, 1995. Rule 11 of the aforesaid Ruies prescribes that subject to the provlsions of these ruies, every election petition shall be enquired into by the specified officer as neariy, as may be, in accordance with the procedure applicable under the Code ofdvil Procedure, 1908 (C.P.C.), to the trial of suits. The proviso to sub-rule (1) of the Ruie 11 of the Rules, 1995 provides that it shall on!y be necessary for the spedfied officer to make a memorandum of the substance of evidence of any witness examined by him. Rule 11 ofthe Rules, 1995 reads as under: "11. Procedurje before the specified offlcer and his powers.- (1) Subject to the provislons of these rules, every election petition shail be enquired into by the specified officer as neariy, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits; Provided that it shalt onty be necessary for the specified officer to make a memorandum of the substance of evidence of any witness examinedby him. (2) The specified officer, shatl have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the foliowing matters :' (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compeiiing the production of document; (d) examination of witnesses on oath; (e) reception of evidence taken on affidavit; and 4 WA 402/2011 (f) issuing commission for examination of witnesses and summonlng and examining suo moto any person whose evidence, appears to him to be material. Order XIV of the CPC provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule 1 of Order X!V provides that issues arise when a materiai proposition of fact or iaw is affirmed by one party and denled by the other and shatf form the subject of a distinct issue and thereafter, provisions have been made for framiffg of issues. Rule 3 of Order XiV provides for material from which issues may be framed and Rule 4 provides for examination of witnesses and documents before framing issues. in case on hand, there is a material deniai of the proposition, as affirmed by the election petitioner before the electlon Tribunai. Thus, framing of issues and examination of witnesses was necessary before passing the order. The impugned order passed by the election Tribunal, appears to be passed without compiying with the substantia! procedure as provided under the provisions of !aw. In the facts and circumstances of the case, the Tribunal erred in iaw in deciding the Election Petition in the above manner and the order passed by the Election Tribunal, cannot be sustained. We are of the view that the Writ Court ought to have interfered with the order passed by the Election Tribuna! and the Writ Petition ought to have been allowed on appropriate terms. For the foregoing reasons, the appeai is allowed. The impugned order passed by the Writ Court, as also the Election Tribunal in the above Election Petition, are set aside. The matter is remanded to the Election Tribunai for deciding the same in accordance with iaw. The parties shall bear their own cost. Sd/- Sunil Kumar Sinha Judge Sd/- R.S. Sharma Judge