T ^^. ^ ^S^s ^' .\^ HIGH COURT OF CHHATTISGARH. BILASPUR V Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. J. W.P.(C)No. 4954 of 2010 Smt. Yashoda Vs. Sub-Divisional Officer Kunkuri & .others. ORDER Postfor0rder:///02/2011 Sd/- Sunil Kumar Sinha Judge E^j? ,-^"TK%^ /^' %>. "•.•.•^^ ^-^^ HIGH COURT OFCHHATTISGARH. BILASPUR % (Sinale Bench: Hon'ble Shri Sunil KumarSinha. J) W.P.(ClNo. 4954 of 2010 PETITIONER Smt. Yashoda, wife of Shashi Bhusan, aged about 38 years, Kanwar Caste, Sarpanch of Gram Panchayat Simabari, resident of village Simabari, Tahsil Farsabahar, Jashpur (Chhattisgarh). RESPONDENTS Versus 1. Sub-Divisional Officer Kunkuri, District Jashpur (Chhattisgarh). 2. Suman Ku. Nirala (Buth No. 30) Middle School Ghatmunda, Presiding Officer Gram Panchayat Simabari, Tahsil Farsabahar, District Jashpur (C.G.) 3. Prem Ram Bhagat, (Bhuth No. 31) Govt. Higher Secondary School Pathalgaon, Presiding Officer Gram Panchayat Simabari, District Jashpur (Chhattisgarh). 4. H.C. Nag Returning Officer Farsabahar, Tahsil Farsabahar, District Jashpur (Chhattisgarh). 5. Smt. Deonandani, wife of Shivsagar, aged about 35 years, resident ofVillage Simabari, Tahsil Farsabahar, District Jashpur (C.G.) (Writ Petition under Article 226/227 of the Constitution of India) Appearance: Mr. J.S. Baraik, Advocate ofthe petitioner. Mr. Shashank Thakur, Panel Lawyerforthe State/respondent No.1 Mr. Arun Shukla, Advocate for respondent No. 5 W.P.(QNo. 4954 of 2010 ORDER (11.02.2011) Sunil Kumar Sinha, J. 1. Petitioner- Smt. Yashoda is an elected Sarpanch of Gram Panchayat, Simabari. The election ofthe petitioner was called in question by filing Election Petition by respondent No. 5 under Section 122 of the C.G. Panchayat Ram Adhiniyam, 1993. The petitioner was called upon to file her reply. The petitioner appeared on 06.04.10, but she could not file reply on the said date. Thereafter, she could not appear on 29.04.10 and ^<y she, proceeded ex-party. On 06.05.10, the petitioner fiied an application for setting aside ex-party proceedings against her. The said application was rejected by the Tribunal on 07.07.10. By that time; the matter was fixed for appearance of the other respondents. It appears that without taking written statements and without framing issues and further without recording evidence of the parties, the Tribunal, after hearing preliminary arguments only, directed by the impugned order dated 17.08.10 (Annexure-P-1) for recounting ofthe votes. 2. Mr. J.S. Baraik, learned counsel appearing on behalf of the petitioner, argued that the Election Tribunal has ordered for recounting of votes without framing issues and without affording proper opportunity to the parties to adduce evidence. Even the written statements have not been taken. Though, the petitioner was proceeded ex-party, but she had appeared on the subsequent dates with an application for setting aside ^^•^^.^, ^s^^ W.P.fClNo. 4954 of 2010 ex-party proceedings, which was wrongly rejected. He submitted that even thereafter, since the matter was going on forappearance of other parties, the Tribunal would have allowed the petitioner to file written statement and to participate in further proceedings. He relied on the decision of this court rendered in Parvatia -Vs- Padmini & Others. 2005 f2) CGLJ 335. Shvam Ratan-Vs- Sivaram & Others. W.P No. 4270 of 2005 fdecided on 19.11.2008) and Umrila Bai -Vs- Foolkumari & Others. W.P.(C) No. 5398/2010 (decided on 18.01.2011). 3. On the other hand, Mr. Shashank Thakur and Mr. Arun Shukla, learned counsel appearing on behalf of respective respondents, however, opposed these arguments. 4. I have heard learned counsel for the parties at length and have also perused the records of the writ petition. 5. 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 of the 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. ^ y^g^ //'^. ''^.:^^" .^ W.P.(ClNo. 4954 of 2010 Rule 11 ofthe Rules, 1995 reads as under:- ^\ B "11. Procedure before thespecified 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; c) Compelling the production of documents; d) Examination of witnesses on oath; e) Reception of evidence taken on affidavit; and f) Issuing commission for examination of witnesses and summoning and examining suo moto any person whose evidence, appears to him to be material. 6. Order XIV of the CPC provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. Rule 1 of Order XIV provides that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other and shall form the I '"'^^'f^5:^ ff ^^' .:^ W.P.(C)No. 4954 of 2010 subject of a distinct issue and thereafter, provisions have been madefor framing of issues. Rule 3 of Order XIV provides for material from which issues may be framed and Rule 4 provides for examination of witnesses and documents before framing issues. 7. In the case on hand, the Tribunal has not taken the written statements and no issues have been framed, the witnesses have also not been examined and the order of recount has been passes only after preliminary arguments. The impugned order passed by the Election Tribunal appears to have been passed without compliance of the substantial procedure as provided under the provisions of law. 8. To get an order of recount of votes proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which had in reality been cast in favour of the defeated candidate. 9. On due consideration of the submissions made by the learned counsel for the parties and the grounds taken in the writ petition as also the facts and circumstances upon which the Election Tribunal has passed an order of recount, the impugned order dated 17.08.10 (Annexure-P-1) passed by the Election Tribunal cannot be sustained. i0. For the foregoing reasons, the writ petition is allowed, the impugned order dated 17.08.10 passed by the Election Tribunal in ^ i :-'^^^. ^l. • '... .•': "y-.y ^: •^.^•^y" W.P.(ClNo. 4954 of 2010 ^ ll7 Election Petition No. 06/A-89(Ga)/2009-10 is hereby quashed. With a view to give complete justice to the parties, it is directed that the Tribunal shall call upon the parties to file their written statements and written statements filed by the parties including the petitioner, if any, shall be accepted by the Tribunal and thereafter, the Tribunal shall decide the Election Petition in accordance with law. ^. No order as to cost(s). Sd/- Sunil Kumar Sinha Judge Rahul