C^r los"/— IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) WRIT PETITION (C) N0. /2010 SINi VKK ^'*•?§§ PETITIONER RESPONDENTS ^^ ^".:^\0} > v~.^y C7 \^'\s?" ^^"' ,>;•>" Teejan Bai W/o Shri Shankarlal Markandey, Age about 45 years, R/o Village - Thakurtola, Thana /Post - Somni, Tahsil & Distt. Rajnandgaon (C.G.) VERSUS ir" Yashoda Bai Tamaskar W/o Shri Rohit Kumar.Tamaskar, Age about 38 years, R/o Village - Thakurtola, Thana /Post - Somni, Tahsil & Distt. Rajnandgaon (C.G.) 2. ^ Returning Officer, Booth No. 191, Panchayat Thakurtola, Distt. - Rajnandgaon (C.G.) ^" 3. Presiding Officer, Booth No. 191, Panchayat Thakurtola, Distt. - Rajnandgaon (C.G.) 4. Sub Divisional Officer (Revenue), Rajnandgaon, Distt. Rajnandgaon (C.G). 5. State of Chhattisgarh Through: The Secretary, Panchayat Department, D.K.S. Bhawan, Raipur Distt. Raipur (C.G.) •'^t;,. WRIT PETITION UNDER ARTICLE 226 OF CONSTITUTION OF INDIA ^^s^. f:7'' ^ •s"' ^-- '-', & ti ' ...-•.^- "?'s ^ '^ HIGH COURT OF CHHATnSGARH AT BILASPUR PETITIONER WRIT PETITION fC) No. 6069 of2010 Teejan Bai. RESPONDENTS VERSUS Yashoda Bai Tamaskar. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri. J, Present: Shri Parag Kotecha, Advocate for the petitioner. Shri Samir Singh, Advocate for the respondent No. 1. Shri Shashauk Thakur, Panel Lawyer for the State/respondent No. 2 to 5. ORDER(ORAL) (Passed on 03d day ofAugust, 2011) ^p^ 1. Challenge in this petition is to the order dated 13.09.2010 (Annexure P/l) passed by the respondent No. 4 i.e. Sub Divisional OfRcer (Revenue) Rajnandgaon, whereby re-counting offhe votes has been ordered. 2. The facts, in brief, as projected by the petitioner are that the petitioner contested the election for the post of Panch of Gram Panchayat, Thakurtola, Tahsil & District Rajnandgaon. Polling was conducted on 03.02.2010 and the petitioner was declared as retumed candidate. A certificate to this effect was also issued in her favour and was invited for attending the oath. The respondent No. 1, who had also contested the election, filed an Election Petition under provisions of section 122 of the Chhattisgarh Panchayat Raj Adhiniyam,1993 read with Rule 80 of the Chhattisgarh Panchayat Election Rules,1995. The presiding officer issued notice in the petition and fuced the matter oa 29.03.2010 and after service ofthe notice, the petitioner appeared and filed her written statement on 18.08.2010 (Annexure P/4). Shri Kotecha next submits that the Presiding Officer, instead of acting as per Rule 5, 11 and 12 of the Chhattisgarh Panchayat (Election Petitions, Cormpt Practices & Disqualification of Membership) Rules, 1995 passed fhe order on 27.08.2010 calling the Retuming Officer for recounting ofvotes on 13.09.2010. Shri Kotecha next submits that the Presiding Officer, without framing issues and taking evidences or affording opportunity to cross examine the witnesses, has directly ordered for recountmg of votes, which is illegal. He further contends that after recounting, fhe respondent No. 1 was declared as retumed candidate. Thus, the entire exercise offhe Presiding Officer is illegal. 3. On the ofher hand, Shri Samir Singh, leamed counsel appearing for the respondent No. 1 submits that in fact, the petitioner had secured only 6 votes in her favour and the respondent No. 1 had secured 73 votes. There was a clerical mistake in the notification which is evident that after recounting, the respondent No. 1 secured 73 votes and petitioner secured only 6 votes. Before , recounting, the petitioner was shown to have secured 73 votes and the respondent No. 1 to have secured 6 votes. Even fhe recountmg was done in presence of fhe Advocate for the petitioner. Thus, there is no illegality in the order passed by the Presiding OfGcer. So far as submission of written statement by the petitioner is concemed, fhe petitioner, even after getting several opportunities did not submit her written statement. On l"3;-'Sv7\ 27.08.2010, the petitioner was directed to submit her written statement till 06.09.2010. In the event of failure, the Chief Executive Officer and the Tahsildar, Rajnandgaon i.e. the Retuming Officer, were directed to appear wifh ballot box on 13.09.2010 for recounting ofthe votes. It was on account ofnon- submission of the written statement by the petitioner which led the respondent No. 4 to proceed in accordance with Order VIII Rule 10 ofthe Code ofCivil Procedure, 1908. 4. Shri Shashank Thakur, leamed Panel Lawyer appearing for the State/respondent No. 2 to 5, in addition to the submissions made by leamed counsel for the respondent No. 1, submits that fhe petitioner is relying on a certificate issued by the Presiding OfBcer with regard to declaring her as a retumed candidate, which is apparently an outcome of human error as the petitioner had secured only 6 votes whereas the respondent No. 1 had secured 73 votes which was crystal clear after recounting ofthe votes. Thus, on the ground of mere technicalities, fhe entire election petition cannot be set aside. 5. Heard leamed counsel appearing for the parties, perused the pleadmgs and documents appended thereto. 6. Election is the basic pillar ofthe democratic set up. A candidate who participates m fhe election process gets elected by majority of votes polled in his favour. Thus, election of a candidate, who has been elected by substantive votes, cannot be set aside merely on the techmcal ground like framing of issues ete. in the election petition. In the case on hand, by order dated 13.09.2010, the re- counting of votes in presence of all the persons including the Retuming Officer was directed. 73 votes were found in favour of the respoadent No. 1 and 6 votes were found in favour of fhe petitioner. According to leamed counsel appearing for the retumed candidate, the certificate was wrongly issued in favour of the petitioner. In view of the fact fhat the dispute was not raised by the petitioner by filing written statement, it was not necessary to frame issues. The statement ofthe petitioner fhat fhe written statemenf was filed on 19.08.2010 (Annexure P/4) appears to be incorrect as in the proceedmgs dated 27.08.2010, the petitioner was granted one more opportunity to file written statement by 06.09.2010. In the proceedings dated 06.09.2010, it was clearly recorded that since written statement was not filed by that date, therefore, it was directed to hold countmg of votes on 13.09.2010. It was clearly mentioned m the election petition that the respondent No. 1 (election petitioner) obtained 73 votes and the petitioner had obtained 6 votes. Despite that, by mistake, the petitioner was declared successfiil. On recounting, it was found that the allegation of wrong declaration of result and issue of certificate was found proved. Thus, the election petition was accordingly allowed. 7. In Jibontara Ghatowar v. Sarbananda Sonowal & Others , fhe Supreme Court observed as under: "16....This Court noted the observation made eal-lier in Bhag Mal v. Ch. Parbhu Ram that the Constitution and connected laws aim at ensuring troe democracy ' (2003) 6 SCC 452 2 (1985)18cc 61 functioning in the country, and the will of the people to prevail. That can be achieved by allowing the one to represent the constituency who has obtained the majority of valid votes by proper and due process of law. It would really be a mockery of fhe procedure of law in a situation where it is demonstrated duly in fhe court that a person who obtained four votes less than the other next candidate should be declared elected in preference to the others and allowed to represent the constituency." 8. In view ofthe foregoing, and for the reasons stated heremabove, flus Court, in exercise of its power under Article 226 of the Constitution of India, is not inclined to interfere with the impugned order which is legal, just and proper. 9. Accordingly, the writ petition is dismissed. No order asto costs.\ Sd/- Satish K. Agnihotri Judge Amit