#f ‘\ Cogugm/K‘ Q?) IN THE HON’BLE HIGH COURT OF CHHATTISGARH RESPONDENTS (i 1. Smt. Punimati Bai, W/o Ghasiya Ram, aged 46 years, Caste Dhobi, a resident of Kisda, village panchayat Dhandhani, Janpad Panchayat Bilaigarh, Dist. Raipur (C.G.) 2. Mongara Bai, W/o Chunnilal, aged about 36 years, caste Sahu, resident of Pachpedi, Gram Panchayat Dhandhani Janpad Panchayat Bifaigarh, Dist. Raipur (co) /3. Fulkunwari, w/o Shyamlal, aged about 30 years, caste Lohar, resident of Kisda Gram Panchayat ‘Dhandhani, Janpad Panchayat Bilaigarh, Dist. Raipur (C.G.a) 4. Sukanti Bai, W/o Babulal, caste Marar, aged about 44 years, resident of Dhandhani, Gram Panchayat Dhandhani, Janpad Panchayat Bilajgarh, Dist. Raipur (C.G.) He‘m Kumari, W/o Jeevan Lal, caste Teli, aged aobut 22 years, resident of Dhandhani, Gram Panchayat Dhandhani, Janpad Panchayat Bilaigarh, Dist. Raipur (C.G.) 6. Padmini, W/o Shankar Lal, aged about 32 years, caste Gadafresident of Dhandhani, Gram Panchayat Dhandhani, Janpad Panchayat / M Bilaigarh, Dist. Raipur (C.G.) Assistant Election Offlcer, Gram Panchayat Dhandhani, Janpad i Panchayat Bilaigarh. a’ AT BILASPUR w.P. (C) No. WW; I 2011 PETITIONER / Parwati Bai, W/o Jagat Ram, aged about 38 years, Caste Satnami, resjdent of Pachpedi, village Pahchayat Dhandhani, Janpad Panchayat, Bilaigarh, Dist. Raipur (C.G.) VERSUS C33 ReEurning Officer (Panchayat) Janpad Panchayat Bilajgarh, Dist. Raipur(C.G.) ) 9. State of Chhattisgarh, Through — District Collector, Raipur(C.G.) WRIT PETITION UNDER ARTICLES 226 227 0k THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS PROHIBITION CERTIORARI ETC. OR ANY OTHER DIRECTION OR ORDER TO DO JUSTICE IN‘ THE MATTER . /8. / 3%AF/< jg ., [2v?-I) HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench : Hon‘ble Shri Satish K. Agnihotri, J. WRIT PETITION (C) NO.3106 OF 2011 PETITIONER/ Smt. Punimati RESPONDENT No.1 Versus State of Chhattisgarh & Others (Writ Petition under Anicle 226 & 227 of the Constitution of India) Present :- Shri Manoj Paranjape, Advocate for the petitioner. Shri Ajit Singh, Panel Lawyer for the State. Shri Sunil Otwani, Advocate for/the respondent No.2. 1' RESPONDENTS And WRIT PETITION (C) NO.4785 OF 2011 PETITIONER Parwati Bai Versus Smt. Punimati Bai‘& Others RESPONDENTS (Writ Petition under Article 226 & 227 of the Constitution of India) Present :- Shri Sunil Otwani, Advocate for the petitioner. Shri Manoj Paranjape, Advocate for the respondent No.1. p“ Shri Ajit Singh, Panel Lawyer for the State. O R D E R (Passed on this 12' day of September, 201 1) 1. Heard learned counsel for the parties. 4‘! 2. Since W.P. (C) Nos.3106 & 4785 of 2011 arose out of same cause of action; they are being considered and decided by this common - order. 3. W.P. (C) No.3106 of 2011 : in this petition, the petitioner seeks to quash the order dated 11-5-2011 (Annexure P/1) passed by the Sub Divisional Ofticer—cum—Specified Officer, Bilaigarh, in revenue case No.1-A/89 (21) year 2009-10 (Smt. Parwati Bai v. Smt. Punimati & Others) yvhereby the election petition preferred by the y“m, . respondent No.2 {petitioner in W.P. (C) No.4785 of 2011) herein has been allowed and the election of the petitioner herein has been set aside. The petitionerhas been declared disqualified for being elected as Sarpanch. Learned counsel appearing for the petitioner submits that the impinged order has been passed 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 & Othersz in support of his submission that no election petition can be decided without framing issues and examining the witnesses produced by the parties. Learned counsel appearing for the State as well as respondent No.2, 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 tribunal for deciding the same in accordance with law after framing issues and examining witnesses properly. ‘ 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 is unsustainable in the eyes of law. Rule 11 of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rule‘s, 1995") provides for procedure before the specified officer and his powers. It is prescribed that subject to the V 1 2005 (2) CGLJ 335’ \ 2 WP No.4270 of 2 (decided on 19—1 1-2008) x 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 offlcer to make a memorandum of the substance of evidence of any witness examined by him. Rule 11 of the 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, shal 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 matter :-- (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of document; ‘examination of witnesses on oath;" (e) reception of evidence taken on affidavit; and issuing commission for examination of witnesses (d) l and summoning and examining suo moto any person whose evidence, appears to him to be material.“ Order XIV of the CPC provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. Ruie 1 Ordr XIV of the CPC provides that issues arise when a material propoition 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, provisins have been made for framing of issues. Rule 3 Order XIV of the PC provides for material from which issues may be framed and Rule‘4 provides for examination of witnesses and documents before framing issues. In the case on hand, there is a material denial of the proposition, as affirmed y the applicant before the election tribunal. Thus, framing of issues and examination of witnesses is necessary before passing th 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. Hving regard to the facts sitUation of the case and considering the submissions made hereinabove, the impugned order‘ dated 11—5—2011 (Annexure P/1) is quashed. The matter is remitted back to the Triunal to decide the case. b In view of the foregoing, 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 preferably within a period’ of three months from the date of receipt of a copy .of thi order. s ln the result, the petition i.e. WP (C) No.3106 of 2011 is allowed to the abov extnt th no‘order asto costs. um: wags my.“ m e s o C “ b e a e e wi ‘W 2 W.P. (C) No.4785 of 2011 : in view of the order passed in W.P. (C) No.3106 of 2011, whereby the matter has been remitted back to the Tribunal for taking fresh decision afterfoHowing the due process of law, no direction can be issued to the Sub DiviSional Officer—cum- Specified Officer to declare the petitioner in W.P. (C) No.4785 of 2011 as Sarpanch of viliage Dhandhani, at this stage. However, the petitioner (Parwati Bai) is at liberty to make an appropriate. application, in accordance with law,-before the Tribunal, if so- advised. Accordingly, W.P. (C) No.4785 of 2011 is disposed o . if”; , ,Satish K. Agnihetr ll: ‘ Judge 3*? i