(^T^ \±^ ^^-- BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR W. P (Cl No. ^^U3of 2010 PETITIONER Pradeep Kumar Chandrakar, S/o Devgan Chandrakar, aged about 3< years. R/o Village Bhainsbod, Block- Patan, District-Durg (C.G.) ^fS^ VERSUS RESPONDENTS '?»•tf 2. ...--^ Jeevan Lal Sahu, S/o Late Jetha Ram Sahu, aged about 58 years, R/o Village Pauha,' Block-Patan, District-Durg (C.G.) Chetan Lal Chandrakar, S/o not known, Rio Village Bhainsbod, Block-Patan, District-Durg (C.G.) 3. * Manoj Kumar Sahu, S/o not known, R/o Village Pauha, Block-Patan, District-Durg (C.G.) 4.., Presiding Officer Booth No. 194, Bhainsbod, Block-Patan, District- Durg (C.G.) 5. , Returning Officer, Karyalaya Durg (C.G.) Nirvachan 6. State of Chhattisgarh, through District Election Officer, Office of District Election, Durg ,(C.G.) ^" 7. Sub-Divisional Officer, Patan, District-Durg (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. AF^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (0 No. 2743 of 2010 PETITIONER : Pradeep Kumar Chandrakar. VERSUS RESPONDENTS : Jeevan Lal Sahu & Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J. Present: Shri Avinash Chand Sahu, Advocate for the petitioner. Shri Om. P.Sahu, Advocate for the respondent No. 1. Shri Shashank Thakur, Panel Lawyer for the State/ respondent No. 6 and 7. ORDER (ORAU (Passed on ao'" day of August, 2010) 1. Heard learned counsel for the parties. 2. By this petition, the petitioner seeks to quash the order dated 28.04.2010 (Annexure P/1) passed by the respondent No.7 i.e. Sub Divisional Officer (Revenue), Patan, District Durg, whereby the respondent No. 7 has directed for recounting of votes polled for the election of Sarpanch, Gram Panchayat, Bhainsbod, Block Patan, Distriet Durg, without framing of issues. 3. Learned counsel appearing for the petitioner submits that the learned election Tribunal has directed recounting of votes without framing issues and without affording proper opportunity to the parties to adduce evidences, documents, thus, the impugned order is bad in law. Learned counsel relies on a decisions of this Court rendered in Parvatia v. Padmini & Others1 and Shyam Ratan v. Siyaram & Others in support of his submission that no election petition can be decided without framing issues and examining the witnesses produced by the parties. 4. Learned counsel appearing for the State as well as respondent No.1, fairly submit that the impugned order suffers from deficiency and infirmity on account of the above stated reasons. Thus, the impugned order may be quashed and further the matter may be remitted back to the election ' 2005 (2) CGLJ335 2 WP No.4270 of 2005 (decided on 19-11 -2008) tribunal for deciding the same in accordance with law after framing issues and examining witnesses properly. 5. Learned counsel for the parties further submit that a stipulated time may be fixed for decision of the election petition in view of the fact that there has been a delay on account of the impugned decision, which could not sustain in the eye of law. 6. Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rules, 1995") provides for procedure before the specified officer and his ' powers. It is prescribed 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 under the 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. 7. 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 officer as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: 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; compelling the production of document; examination ofwitnesses on oath; (c) (d) (e) reception of evidence taken on affidavit; and k (f) issuing commission for examination of witnesses and summoning and examining suo moto any person whose evidence, appears to him to be material." 8. Order XIV of the CPC provides for settlement of issues and determination of suit on issues of lawor on issues agreed upon. Rule 1 Order XIV of the CPC provides that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other shall form the subject of a distinct issue and thereafter, provisions have been made for framing of issues. Rule 3 Order XIV of the CPC provides for material from which issues may be framed and Rule 4 provides for examination of witnesses and documents before framing issues. 9. In the case on hand, there is a material denial of the proposition, as affirmed by the applicant before the election tribunal. Thus, framing of issues and examination of witnesses is necessary before passing the order. The impugned order passed by the election tribunal, it appears to have been passed without complying with the substantial procedure as provided under the provisions of law. 10. Having regard to the facts situation of the case and considering the submissions made hereinabove, as the principle of law is well settled that recounting of votes cannot be ordered without framing proper issues and examining witnesses, if produced by the parties, the impugned order dated 28.04.2010 (Annexure P/1) is quashed. The matter is remitted back to the Tribunal to decide the case in accordance with law. 11. In view of theforegoing, it is expedient and proper to direct the election tribunal to consider and decide the case afresh, in accordance with law and on its own merits, .as early as possible. 12. In the result, the petition is allowed to the above extent with no order asto costs. -- — Sd^^~ Satish K. Agnihotri Judge Amit