'•(K y^L —(^? •^; J^7 3"\ 9 HIGH COURT OF CHHATTISGARH. BILASPUR S.B.: Hon'ble Shri Sunil Kumar Sinha, J W.P.(Q No.3472/2010 Smt. AnitaChandra Vs. Mem Bai and others ORDER PostforOrder : 22/03/2011 Sd/- Sunil Kumar Sinha Judge r HIGH COURTQF CHHATTISGARH AT BILASPUR S.B.: HON'BLE SHRI SUNIL KUMAR SINHA. J. PETITIONER RESPONDENTS W.P.(ClNo.3472/2010 Smt. Anita Chandra, W/o Jaleshwar, aged about 25 years, R/o Village Kirari, Tahsil Malkharoda, District Janjgir- Champa (C.G.) Versus 1 Mem Bai, W/o Pawan Kumar, aged about 24 years, R/o Village Kirari, Tahsil Malkharoda, District Janjgir- Champa (C.G.) 2 Returning Officer, Panchayat Malkharoda, District Janjgir- Champa (C.G.) 3 Sub Divisional Officer (Revenue)Sakti, District Janjgir- Champa (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA Appearance: Mr. Awadh Tripathi, Advocate for the petitioner. Mr.Pawan Shrivastava, Advocate for respondent No.1. Mr. Arvind Dubey, Panel Lawyer for respondents 2 & 3 . ORDER (22, .03.2011) (1) Respondent No.1 is an elected Panch of Gram Panchayat - Kirari, Block - Malkharoda. Her election was called in question by the petitioner, a defeated candidate, by filing an Election Petition under Section 122 of the Panchayat Raj Adhiniyam, 1993. The aforesaid Election Petition was registered as E.P. No.S/A-89 (21)/09-10 before respondent No.S/Specified Officer. The Election Petition was filed on 06.02.2010. Notices were directed to be issued on the same day. Process Fee was also paid. After service of the notice, respondent No.1 appeared and filed preliminary objection on 15.03.2010. The preliminary objection was in -.'\ (^ W.P.(C) No.3472/2010 relation to non-payment of process fee for service of respondent No.2 and non-impleadement of the Presiding Officer as a party respondent in the Election Petition. The Specified Officer/respondent No.3, after hearing the arguments on the preliminary objection, allowed the same and dismissed the Election Petition vide impugned order dated 17.05.2010. (2) Mr. Awadh Tripathi, learned counsel appearing on behalf of the petitioner, in light of the provisions of Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rules, 1995"), would submit that this preliminary objection was not maintainable and P.F. for appearance of respondent no.2 was already paid; therefore, the dismissal of Election Petition , upholdingthe preliminary objections on the above grounds, was wholly unjustified. (3) On the other hand, Mr. Pawan Shrivastava, learned counsel appearing on behalf of respondent No.1 and Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of respondents 2 & 3 opposed these arguments and supported the order passed by the Election Tribunal. (4) I have heard learned counsel for the parties at length and have also perused the records ofthe Election Petition. (5) Admittedly, the Rules relating to procedure of Election Petitions filed under Section 122 of the Panchayat Raj Adhiniaym, 1993, are Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995. Rule 11 of the aforesaid Rules prescribes that subject to the provisions of these rules, every election petition shall be enquired into by the specified officer as nearly, as may be, in accordance with the procedure applicable underthe Code of Civil procedure, 1908 (for short "the CPC"), to the trial of suits. The proviso to sub-rule (1) of Rule 11 ofthe Rules, 1995 provides that it shall only be necessary for the specified officer to make a memorandum of the substance of evidence of any witness examined by him. (6) Rule 11 ofthe Rules, 1995 reads as under:- "11. Procedure before the specified officer and his powers.- (1) Subject to the provisions of these rules, every election petition shall be enquired into by the specified '<& ^, W.P.(Ct No.3472/2010 officer as nearly, as may be, in accordance with the procedure applicable under fhe Code of Civil Procedure, 1908,tothetrialofsuits; Provided that it shall only be necessary for the specified officer to make a memorandum of the substance of evidence of any witness examined by him. (2) The specified officer, shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:- (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of document; (d) examination of witnesses on oath; (e) reception of evidence taken on affidavit; and (f) issuing commission for examination of witnesses and summoning andexamining suo moto any person whose evidence, appears to him to be material. (7) Order VIIRule 11 C.P.C. provides for rejection of the plaint. Order VII Rule 11 C.P.C., which would be applicable by virtue of Rule 11 ofthe Rules, 1995 in these matters, provides the circumstances on which the plaint shall be rejected. Likewise, Rule 8 of the Rules 1995 provides the consequence of dismissal of the Election Petition at the threshold on non- compliance of Rule 3 or Rule 4 or Rule 7. These are the only two provisions under which an Election Petition filed under Section 122 ofthe Panchayat Raj Adhiniyam, 1993 could be dismissed by the Specified Officer at the threshold. (8) A perusal of the impugned order would show that the Election Petition was dismissed on the grounds that no steps were taken for service of respondent No.2; and that the Presiding Officer was not arrayed as a party respondent in the Election Petition. Though no finding has been recorded by the Election Tribunal that the Presiding Officer was a necessary pari:y, but on that account, the Election Petition has been dismissed at the threshold. So far as non-service of respondent No.2 is concerned, we find from the records that the petitioner had already paid P.F. for service of respondent No.2 in the prescribed proforma, therefore, .the above finding was factually incorrect. About parties to the petition, W.P.(ClNo.3472/2010 Rule 4 of the Rules, 1995 provides that 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 candidate has been duly elected he shall join as respondents to his petition all the contesting candidates at the election. Admittedly, this mandate would not apply for joining or non-joining the Presiding Officer as a party respondent in the Election Petition. Therefore, none of the grounds either under Order VII Rule 11 C.P.C. or under Rule 8 of the Rules, 1995, were available on which the Election Petition could have been dismissed at the threshold. (9) For the foregoing reasons, the impugned order passed by the Specified Officer/respondent No.3 cannot be sustained. (10) In the result, the petition is allowed. The impugned order dated 17.05.2010 passed by respondent No.S/Specified Offieer is set aside. The matter is remitted back to the Election Tribunal/respondent No.3 for deciding the Election Petition afresh in accordance with law. (11) No order as to cost(s). SdJ- Sunil Kumar Sinha Judge shyna