cU= ^^. c?jigr^ S^^lii.F IN THE HIGH COURT OF CHHATTISGARH. BILASPUR WRIT PETITION (C) No. ^^H /2010 Petitipner RespondentNo.1 «:^iS^^ ^^lgf^. p^es^1'" ,....,.-T- ^^••"""" RespondentNo.1 Election Petitioner Vs ^" Respondent No.2 Respondent No.2 2.'^' Respondent No.3 Respondent No.3 3. t 4. Dulorin W/o Manmohan Verma Aged about 35 years R/o Vill: Loharsi (Sone) Tahsil: Masturi Dist: Bilaspur Vimla Devi Verma W/o Dinesh Verma Aged about 34 years R/o Vill: Loharsi (Sone) Tahsil: Masturi Dist: Bilaspur Kejabai W/o Kholbahra Aged about 40 years R/o Vill: Loharsi (Sone) Tahsii; Masturi Dist: Bilaspur Returning Officer Block+Tahsil Masturi Dist: Bilaspur (CG) Sub Divisional Officer Bilaspur District Bilaspur (CG) 6 WRIT PETITION UNDER ARTICLE 226 / 227 OF THE CONSTITUTION OF INDIA. F''' p^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRITPETITIONfC) No. 5214 pf20 10 PETITIONER RESPONDENTS Dulorin. VERSUS Vimla Devi Verma & Others. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri SatislLK. Agnihotri, J. Present: Shri Gary Mukhopadhyay, Advocate for the petitioner. Shri Shailendra Soni, Advocate for the respondent No. 1. Shri Arun Sao, Govemment Advocate for the State/respondent No.4. ORDER (Passed on 01st day ofNovember, 2011) 1. Challenge in this petition is to the order dated 13.08.2010 (Annexure P/l) passed by the respondent No. 4, whereby the recounting ofvotes for the election of Panch, Ward No. 20, Gram Panchayat Loharsi (Sone), held on 03.02.2010, was ordered. 2. The facts, in brief, as projected by the petitioner are that election for the post of Panch for ward No. 20, Gram Panchayat Loharsi (Sone) was held on 03.02.2010. The petitioner as well as the respondent No. 1 and respondent No. 2 participated in the said election and the petitioner was declared retumed candidate. The respondent No. 1 filed an election petition before the respondent No. 4 under the provisions ofsection 122 ofthe Chhattisgarh Panchayat Raj Adhmiyam, 1993 on 16.02.2010. The respondent No. 4, vide the impugned order dated 13.08.2010 (Annexure P/l), aflter hearing all the parties, directed recounting ofvotes on 25.08.2010. Thus, this petition. 1 (3 3. Shri Mukhopadhyay, leamed counsel appearing for the petitioner submits that the impugned order is erroneous as recounting of votes can be ordered only in two conditions, firstly, setting aside an election contains an adequate statement of material facts on which the election petitoiner rlies in support of his case, and secondly, the Election Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of ballot papers is necessary, which is completely missing in this case. The respondent No. 1 did not make out any strong grounds for recounting of votes. Further^ there was no pleading in the election petition that irregularities were committed in counting of votes and in absence of any such pleading, a roving enquiry was uncalled for and thus, the impugned order deserves to be quashed. Shri Mukhopadhyay further submits that the respondent No.4 has failed to appreciate that the vital issue was not framed asto whether the candidates were given counting slip after the declaration ofthe result. The respondent No. 1 in election petition had pleaded that the counting slip was given to the candidates whereas the petitioner had specifically pleaded that none of the candidates were given any counting slip. It was for the election petitioner to prove that all the candidates were given the counting slip. The respondent No. 1 did not make the application for recounting of votes as per the provisions of Rule 80 of the Chhattisgarh Nirvachan Niyam, 1995. The respondent No. 4 further erred in accepting the photocopied documents produced by the respondent No. 1 and relying on the affidavit of Shyam Sunder Verma, when the counsel for the petitioner did not cross examine him, after the respondent No. 1 had ^.t^\ 1 1 '^.35^ "l''--?ft^.^^:'-i' 9« stated as per the order sheet dated 28.06.2010 that she did not want to produce any more witnesses except herself. 4. On the other hand, Shri Soni, learned counsel appearing for the respondent No. 1 submits that the evidence ofrespondent No. 1 and Shyam Sunder Verma were produced on affidavit under Order 18 Rule 4 ofthe Code ofCivil Procedure, 1908 on 05.05.2010 and thereafter, was cross examined on 19.05.2010 and further on 28.06.2010 and thereafiter only, the order sheet dated 28.06.2010 was recorded that the respondent No. 1 did not want to produce any more witness. Thus, the affidavit of Shyam Sunder Verma was rightly relied on. Shri Soni next submits that due to tabulation mistake committed by the Retuming Officer, Masturi was though, later.on discovered but the Retuming Officer declined to forward the same for proper action. Thus, the respondent No. 1 was constrained to file election petition. Shri Soni further contends that all the issues required for adjudication of the election petition were properly framed and have been properly explained in the impugned order. It is next submitted that the documents produced in support of election petition were original one and the certified copies were provided and as such, the respondent No. 4 had rightly relied upon the same for deciding the election petition. 5. Heard leamed counsel appearing for the parties, pemsed the pleadings and documents appended thereto. 6. On pemsal ofthe order dated 13.08.2010, it appears that there was some typographical mistake as the respondent No. 1 had obtained 87 votes but in the register, it was entered as 78, whereas the petitioner had obtained only 83 votes.The said error was detected and intimated y^-^^, t'l •mys'"^ j ^. "iwy ^'^M^^ ^ ^^»l»WN««BNfc, to the Retuming Officer by the respondent No. 1, but since the Retuming Officer had no competence to make any corrections in the register, the respondent No. 1 was advised to make an application for correction, to the higher authorities. The petitioner has not produced any documents in regard to obtaining votes, as stated above, nor had controverted the submission of the respondent No. 1 before the respondent No. 4 in the election petition. After considering all the aspects of the matter, the respondent No. 4 has rightly directed for recount of votes to clarify the dispute with regard to obtaining of the votes by the parties. 7. The election tribunal has duly framed the issues as stated in para 14 of the impugned order on the basis of statement of facts pleaded in the election petition and submissions made by the parties. There was specific issue asto whether the respondent No. 1 had moved an application for recounting ofvotes before the Retuming Officer, it was answered in affirmation. The second issue asto whether the countmg slip was supplied to the respondent No. 1, it was also answered in affirmation. The third issue asto whether the result of counting of votes ofward No. 20 in polling booth No. 270-A was supplied to the respondent No. 1, it was held that the result was supplied. The Tribunal has considered each and every issue raised therein at length and thus, the contention of the petitioner that no cause of action was shown in the election petition to pass an order of recounting, is baseless and deser^es to be rejected. 8. In respect of second contention that the affidavit of Shyam Sunder Verma was accepted without affording an opportunity to the returned ;-<^ 'A.\ •'^S^ 1 ^ candidate to cross examine him, on perusal of the documents, it is found that the affidavit in the election petition filed under the provisions ofOrder 18 Rule 4 ofthe CPC, is treated as examination in chief. The contention that the respondent No. 1 did not want to produce any other witness has no impact on the affidavit filed by Shyam Sunder Verma, before recording of the statement. On query asto whether the returned candidate wanted to cross examine Shyam Sunder Verma, the answer was negative. In view of the above fact, it cannot be held that the reliance of the Tribunal on the affidavit of Shyam Sunder Verma, was erroneous. 9. Thus, the petitioner has farther not pointed out any jurisdictional error, infirmity or irregularity in the impugned orders. Thus, this Court, in exercise of its power under Article 226/227 of the Constitution of India, is not inclined to interfere with the impugned order which is legal, just and proper. (See : Abdul Razak (D) Thr. L.Rs. & Ors. v. Mangesh Rajaram Wagle & Others , Shalini Shyam Shetty & Another v. Rajendra Shankar Patil .\ 10. Accordingly, the writ petition is dismissed. No order asto costs. Sd/- Satish K. Agnihotri Judge Amit 1 2010 AIRSCW 1414 2 (2010)88cc 329