(O IN THE MI6H COURT OF JUOICATURE AT BILASPUR CHHATTISSARH Wr't Ps+sf.on No. ^&8 Spf 2QQ6 p BENCtt ^ ril^®<^8B y'E^.B^^-i: PPTITTONPR: ^^ 9%€G-""" ..••'"....?'' \n;k!y ^^" ^•" RESPON&ENTS: ^ - Versus 1. ,:'<--' p^^ \^y 2. 4. 5. rf^- »-" Prcsdhcm Ram, 5/o Jagfu Ram, Ageei about 37 years, Casfe,: Uraon, Stirpesnch, Gram Panchayat: Jamargi 8i, R/o Viihge: Jamargi 3i, Tehsil; Pathaiaaon, &istrict: Jashpur, Chhottisgarh. Bhagwati Sing'n, S/'o Dhiraj Singh, Aged about 52 years, Caste; Konwar, ft/o Vilbga: Jamargi Bi, Tehsii: Pathalgaon, OisTi'i'cT: Jashpur, Chhattisgarh. Hiron Sai, S/o Negi B<xm, Caste: Uraon. R/o Viilage: Jamcsrgi Bi, Tehsii: Pathalgoon, £)istcict:Jashpur, Chhatt'isgarh. be'/endra, S/o Adi-ryas Slngh, Caste: Kanwcu-, ft/o Viilcge: Jamargi Bi, Tehsil: Pathafgaon. &istrict: Jashpur, ChhaTrisgarh. Eiection Officer, Pctkaigaon, Tehsil; Patiiaigaon, District: Jcshpur, Chhaftisgarh. Sub &ivisiono! Officer-cum- Specified Officer under the Chhattisgnrh Panchayat Raj Avam 6ram Swaraj Adhiniyam, 1993, Pnthaigaon, Tehsii; Pa-tiiaigaon, Oistricr: Jashpur, Chhattisgarh. T' L^ WRIT PETTTION UNOEft -4RTICLE 226/227 OF THE CONSTrrUTIGN OF INDIA FOR ISSUANCE OF APPROPRIATE WRrT/WRH-S. OIRECTIONS ETC.. IN THE NATURE OF MANDAMVS. CERTIORARI ^ND/<^ AW OTHER SUIT^BLE WKTT OF UKE NATURE. The pen'tioner, obove named, most respecfuiiy begs to subRsit as under; - XI-HC-22 3^ '^WM^, ®T(lti'is,Ridltiy 311^1 'Oltb r.^^0,..^ fire^ iiiwi sh«nq» °t 200 3II^T»RT R-ii+an^T aifro <fRn 3n^r?RiRrcof?cr 11-7-2006:- Shri Sanjay K. Agrawal with »l)l<lfcl<fl-lt||t«"ilfffei<fl <|SltdK ^ ^SlRfTSn^T hri Sourabh Sharma, counsel for the petitioner. Shri Sanjay S. Agrawal, coun^el for respondent No.1. None for respondents No.2 afid 3. Shri Satish Gupta, Deputy (povt. Advocate for respondents No.4 and5. !y this writ petition, the petii and correctness of the impugned Specified Officer, Paththalgaon \vh| |ioner has questioned legality, validity order dated 7-4-2006 passed by the 3reby Specified Officer after aiiowing election petition of respondent N|3.1 herein heid the eiection of the petitioner to be void on the groun(l that the petitioner herein has more than two iiving children one of whorji i.e. 5 child was born on or after 26"' January 2001 and simuitaneousl^, whiie holding the election of the petitioner as void, declared responc^ent No.1 as duiy elected Sarpanch. Brief facts leading to filing c|f this writ petition are that election for the post of Sarpanch of Gram 29.1.2005 and in fhat eiection, tfl No.1, 2 & 3 i.e. four persons conte^ herein was dectared as elected witfli a margin of 26 votes and the nearest defeated candidate was respond challenged election of the petitioi Chhattisgarh Panchayats (Electi<| Panchayat Jamargi Bi was heid on le petitioner herein and respondents ted eiection. At the end, the petitioner snt No.1 who filed eiection petition. hereafter, respondent No.1 her^in, the nearest defeated candidate, her herein under Section 122 of the in Petitions, Corrupt Practices and Disqualification For Membership) pules, 1995 (hereinafter referred to as "the Rules, 1995") questioningthe |e!ection ofthe petitioner. Notice ofthe ('fl^y^-) k"- XI-HC-22 sn^rw f^iwan^r fenfer shfwa 3F^ '^nwi, w^ww, Rldltiy 3ii^i '4ach 111CTI s»)*||tB---•---•-•••••••••••• gq- 200 Ri<>«d sii^i gwiwflfer -2- 0)1 same was sent to the petitioi petitioner herein. tn para-3 of the petitior petitioner herein was Sarpanct earlier term and on account of made a report to the Coliector herein, but due to notification of to the record. in para-3 of the| mentioned that 5 chlid was bor faise and no finding was recordep Learned Specified Office[ issued notice for 14 Mareh present and he filed reply. Lea| births and deaths register from and fixed the matter for 28.3.; tour and the matter was fixed H Kotwar and Aangan Badi Karya| matter vras adjoumed for 25.4.2^ On 25.4.2005, advocate^ documents and the matter wasl learned Specified Officer recorc|s argue the matter and the matter) day learned counsei for the pai| and the matter was adjourned show cause notice issued by th|e fixed for arguments on 27.6.; order to ascertain as to on wl .20dl5 »i<<lCT<fl-<><i*<(iTfffeI^<Riwi< ^73ri^lT3TI^T |ier hereln and reply was filed by the 20b5 respondent No.1 mentioned that the of Gram Panchayat Jamargi Bi in the faving more than two children the S.D.O. 15.1.2002 for dismissal of the petitioner |the new election, the fite was consigned rep!y fiied by the petitioner herein, it is •(i on 15.1.2001, the earlier complaint was by the Collector. on receiving the petition on 25.2.2005 p on which date the petitioner hersin was rned Specified GfRcer summoned for the the Kotwar and Aangan Badi Karyakarta >, on that day, Specifled Officer was on )r 4.4.2005, on that day, birth register of carta was produced before the Court, the P05. for the parties asked for time to produce ladjourned for 27.5.2005. On 27.5.2005, sd that advocates for the parties want to |was adjourned for 30.5.2005 and on that ties wanted time to argue on application Tpr 13.6.2005. On 13.6.2005, copy of the |e Collector was fiied and the matter was and on that day, it was ordered that in iat basis the Station House Officer, PS (<<»^fe») -(&;;. XI-HC-22 aii^r?;r f^ifesn^r sniiii tilsa 3^ •^lWf, snS\w\ia, Rlcfl+fy ;<?1 ^SKft iiiCTisnii'n """"""""""" Wi" 200 R'b^l' 911^1 BwisKBfer •s- attedted iagb.ahar has given birth certifica^ should remain present with origina| was adjourned to 8.7.2005 and on| 25.7.2005. On 27.7.2005, certificate were produced by the ^ for and the matter was adjourned tQ 29.8.2005 and on that day, ora| parties were heard and fhe mattei that day, the matter was again adj(] On 17.2.2006, learned Spe| of the record in order to record therefore, invoking inherent power) Sadi Karyakarta and S.H.O., PS was also ordered that jf fhe petitio[ or documentary evidence, they ar^ adjourned to 10.3.2006. On 10.3.( Badi Karyakarta was recorded. Kotwar and Aangan Badi Karyak^ record evidence of S.H.O., argunl fhe matter vi/as fixed for orders on| there, therefore, the matter was day order could not be passee) 3.4.2006, on that day, the matter ^ impugned order was passed on7.\ ! have heard tearned counst Learned counsel for the pe| Officer had not given opportunit^ q>i<ifii<fl-i ii>«iTffr6'<ii<Ri'tci< ^i^f^ITSn^T tioher |e, report be called for and the Kotwar births and deaths register. The matter |that day, the matter was adjoumed for copies of the births and deaths [otwar, report of the S.H.O; was called |for 12.8.2005. Again it was adjourned arguments of learned counsel for the was fixed for orders on 19.9.2005, on lurned for 26.9.2005. ;ified Officer ordered that after perusa! ^orrect finding, evidence is necessary, he summoned village Kotwar, Aangan fagbahar atong with original record. It or respondents want to file any oral entitled to produce and the matter was ?006, evidence of Kotwar and Aangan was further ordered that evidence of arta is taken and there is no need to lents have also been heard, therefore, 24.3.2006, on that day, officer was not djourned for 27.3.2006. Again on that and the matter was adjourned for yas again adjourned and ultimately, the t.2006. il for the parties. itioner submitted that learned Specified to the petitioner to adduce evidence. Cft^^^) XI-HC-22 an^rqir f^TRTSn^T SBIII) uRa 3^ •^WM<<, ©Tflwis,Ridiyy< W 4^<tl llini (n*<l«t>'"""""""""" H^' 200 Rre^ Even statement of the petitionei| envisaged in Rutes 11 and 12of| therefore, the vvhole proceeding sf On the other hand, iearn< petitioner in the election petiticjn proceeding dated 17.2.2006 thaf adduce evidence. Rule 12 of th^ the parties to produce their wit^ Therefore, the petitioner could not produced by the petitioner h| produce witness. in order to appreciate the for the parties, it wouid be benefi^ 12 ofthe Rules, 1995. Rule 11 c<l was not recorded. The procedure as |the Rules, 'iQQS has not been followed, tands vitiated. (d counsel for respondent No.1 i.e. the argued that it is evident from the the parties were given opportunity to Ruies, 1995, in particular, cast duty on lesses on the date fixed for evidence. produced his witnesses which was (mself, therefore, he was not entitled to hteve "Subject to the provisions shail be enquired into by the| in accordance with the proj Civil Procecfure, 1908, tothe) Provided that it shall officer to make a memorandj any v/itness examined by hirf Ruie 12 contemplates tha( "It shal! be the duty of the p4 date fixed for evidence, at adjournment for' non-attencla|- 'niitci'fl-f ii*<Ml'fffe>^l <RlWI< ^.gf^Tsn^r irguments advanced by learned counsel ial to have giance over the Rulesl 1 and ntemplates that:- >f these rules, every eiection petition ipecified officer as neariy, as may be,. ;edure applicable under the Code of. trial of suits: only be necessary for the specified im of the substance of the evidence of rties to Droduce their witnesses on the id they shall not be entitled to an ice of their witnesses: (<fl^^l^) XI-HC-22 sn^rqiT f^iwsn^r Sfliqidfer 3^ '<ll<liw<<, ®Tfl'y'ls,Rldltiy 3ll^l 4^cb t|TWTrai*nw"""""""""" g^ 200 Rl'b.A sii^i ewiwofer s-4 Provided that the sp order the issue of summor process fee and costs being Perusal ofthe above rules parties were complete, learned s asked the parties that if they war to adduce evidence which was n' evident from the proceeding refe he fixed the matter for argumeni the parties were heard and the rr\ of a sudden, on 17.2.2006, wh^ recorded that in order to ascertai legal and justified to record evi| Aangan Badi Karyakarta as wel Therefore, in the first instance foliow the mandate of the Ruie 1 he was duty bound to give oppor particularly, when there was spec|i of the election petition in para-3 i.e. 11 days before the notified d^ Moreover, there was no the wife of the respondent i.e. tt'ji on or after 26th January 2001. ln| case was recommended by the the petitioner herein on account| concluded and no final findingl eiection void on that ground r^ •:ni<<f<']<flf *<ii<iTffte^'<Ri+<ii< ^srf^Tsn^r |citied omcer may, ai nis aiscreiion, 1^ to any witness on the necessar/ |eposited by the party concerned." |shows that as soon as pleadings offhe (secified officer was duty bound to have to adduce evidence, they are at liberty [)t done by the specified officer which is 1-red hereinabove. In the first instance, and arguments of learned counse! for tatter was fixed for orders, thereafter, all ;n the matter was fixed for orders, he correctness in proper manner it wiil be tJence and he summoned Kotvi/ar and as S.H.O. P.S. Bagbahar with records. itseif, learned specified officer did not of the Rules, 1995, particularly, when tunity to the parties to adduce ew'dence, fic denial of the petitioner herein in reply that his 5th child was born on 15-1-2001 tei.e. 26.1.2001. >ecific pleading of respondent No.1 that petitioner herein gave birth to 5 child para-3, it is simply mentioned that some rescribed authority for disqualification of of birth of 5 chi!d, but enquiry was not was given, therefore, in order io hold ipondent No.1 ought to have made a (•fl^y^) XI-HC-22 sn^r^r R:iN)3n^r stiiiw Nmf^cT 3^''<<l'i|Kl<l,(9'^^'l<S, Rldlti^ Sll^l <<5ich ll*ntTsn*iitn """"""""""""""• g^ 200 |c|'b«^ specific pleading regarding the 26.1.2001. Now, coming to the argi respondent No.1 that once learn that if the parties wish, fhey can it was the duty of the petitioner h It js true that opportunity A* 17.2.201B but in the first instar iiven at the time of beginning b orders. Particularly, proceedlni recording evidence of Kotwar ev'dence of S.H.O. was not reci that evidence of Kotwar and proceeding dated 10.3.2006 dos parties whether they want to recorded that parties do not inference can be drawn that ths evidence. When the petitione| mentioned that 5 chi!d was b<| specified offlcer to have asked and ifthe petitioner faiied to ad(| evldence. There is no mentiorl the petitioner either faiied to ac does not want to adduce evicji aspect, as such argument of ie^! petitioner js not entitled to a( reasoning, therefore,! am ofth^ ctii<<lCT<fl-< >iit«iT¥tet<'l<Ri+i;i< ^arf^iTsn^T act that 5" cniia was oorn on or aner [utnents advanced by learned counsel for id specified officer ordered on 17.2.2006 t>roduce ora'-and documentary evidence, srein to adduce evidence. jvas given to the parties vide order dated ;e, the opportunity ought to have been 'fore the matter vi/as heard and fixed for dated 10.3.2006 -ihows that after >rij Aangan Badi Karyakarta, even the >rded by the specified officer mentionini igan Badi Karyakarta !s sufRcient. This |s not show that whether SDO asked the ladduce evidence or not. He has not rant to adduce evidence, as such no petitioner was not interested to adduce In para-3 of the reply has specificaliy rn on 15.1.2001, it was fhe duty of the the petitioner herein to adduce evidence iuce evidence, he could have closed the in the proceeding dated 10.3.2006 that !duce evidence or he expressed that he ;nce. The proceeding is siient on this rned counsel for respondent No.1 that the dduce evidence is not based on sound sonsidered opinion Ehat learned specified (^ys^) XI-HC-22 sn^TW R-fi'tisn^r icr>y[?a Sh*11cb^r 3^ '^Nld'tl, ®Tn*f'l<o,Rldltfll< 3ii^i Mach iiiCTiaiHitti ""••"•••••••••"•• g^ 200 fire^ 3£) sii^i e'wiiWBfer officer has failed to comply with th Rules, 1995, as such whote proce' As far as decianng respond' is no pieading and finding in conso Learned specified officer ought te respondent No.1 as elected on envisages that- "if any person who has filed ai calling in question the electior declaration that he himself or I elected and the specified officf (a) that in fact the petitioner majorlty of valid votes, or (b) that but for the votes obtc petitioner or such other majority of valid votes; the specified officer shall, e| returned candidate to be vc| other candidate, as the case rt There is no finding on thes^ the petitioner or such other candi^; the petitioner or such other candif vaiid votes. There were 4 candi necessary for {he specified offic^i Rule 23(2)(b) that but ror the v^ respondent No.1 wouid have obt^i finding in there, therefore, declari| <oi<<Ia<fl-l t||t«aT^'tecA<.Rlt<il< ^sil^Tsn^r provisions of Kules n ana iz OT ine ^ding stands yitiated. ^nt No.1 as elected is concerned, there ihance with Ruie 23 ofthe Rules, 1995. have read Rule 23 before declaring |the post of Sarpanch. Rule 23 (2) election petition has in addition to ofthe retumed candidate, claimed ^ny other candidate has been duly ;r is of opinion - ir such other candidate received a ined by the retumed candidate the ;andrdate would have obtained a |fter declaring the election of the id, declare the petitioner or such iay be, to have been ctuly eteoted." two points by the specified officer that ate received a majorityof valid votes or late would have obtained a majority of iates in the elecfion, therefore, it was to have recorded finding in terms of tes obtained by the petitioner herein, ined a majority of valid votes. No such ig respondent No.1 as eiected, nnding (<ft^y^) h- .fe.: XI-HC-22 3^ •^I'MK'I^, CTTntf'IS, Rlc11ti^< 3ii^i Msich *<i*«iisniitft --••••••••••---•••••• g^ 200 f&^t sn^rw R-<i+3T1^5T ShliqiWfer Barve ^ '<' w^\ ^wiwnfer •? of legrned specified officer is no( Rutes,1995. In the result, the impugned matter is remitted back to learnetJ election petition in consonance w| and to decide the petition on its ov| parties and hearing the argument^. 2005 since then more than on^ therefore, it is expected that tl| proceeding and decide theelectioi| Parties are entitled for certifle <t>i-sifci<11-< ii*«iTfffel<!)<R|'WI< iisri^nsn^r in consonance with Rule 23 of the brder dated 7.4.2006 is set aside. The specified officer to hold triai of the jth the Rules, 1995 as referred above |'n merit after recording evidence of the As the election was held in the year year S months' time has elapsed, tie specified officer to expedite the petition at the earliest. id copy of this order. ____- Sdl- (_.G. Bhadoo .ludge Cf^y^r)