3?) HIGH COURT OF CHHATTISGARH. BILASPUR w.P.(C) No.69321201o PETITIONER Ramdayal S/o Nahar Singh, aged about 42 years, R/o Village Gore, Block Baramkela, Tahsil Baramkela, District Raigarh (C.G.) (Non-applicant No.1) Versus RESPONDENTS 1 Gajanand Gadhatiya, S/o Gangadhar Gadhatiya, aged about not known, R/o Village Badenawapara, Block Barmkela, Tahsil Baramkela, District Raigarh (C.G.) (Applicant) 2 Bharat Choudhary S/o Laxmi Prasad, aged about not known, R/o Village Ameri, Block Baramkela, Tahsil Baramkela, District Raigarh (C.G.) 3 Omprakash, S/o Rajendro, aged about not known, R/o Village Ameri, Block Barmkela, Tahsil Baramkela, District Raigarh (C.G.) Girdhari Lal, S/o Ghasiram, aged about not known, R/o Village Khairgadhi, Block Barmkela, Tahsil Baramkela, District Raigarh (C.G.) 5 Assistant Returning Officer, Constituency No.13, Block Baramkela, Tahsil Baramkela, District Raigarh (C,G.) (Respondents 2 & 4 were non-applicants 2 to 4 before the learned Specified Officer) 6 Additional Collector, Raigarh cum Specified Officer under ,Sect'ion 122 of the Panchayat Raj Adhiniyam, Raigarh, District Raigarh (C.G.) 2 W.P.(C) No.6932/2010 WRIT PETITION UNDER ARTICLE 226/227 OF THE CON$TITUTION OF INDIA Appearance : Mr. Dashrath Prajapati, Counsel for the petitioner. Mr.Sunil Sahu, Counsel for respondent No.1. Mr.Arvind Dubey, Panel Lawyer for respondent No.6. ORAL ORDER (24.01.2011) SUNIL KUMAR SINHA. J. Heard tinally with the consent of learned counsel for the parties. Petitioner —Ramdayai is an eiected member of Janpad Panchayat, Baramkeia, District Raigarh. The eiection of the petitioner was caiied in question by tiling Election Petition by respondent No.1 under Section 122 of the C.G. Panchayat Raj Adhiniyam, 1993. The petitioner was called upon to tile his reply. The petitioner filed his reply and denied the allegations made in the Election Petition. The Tribunal thereafter heard the arguments of the concerning parties and passed the impugned order dated 15.11.2010 (Annexure P/1). The Tribunal, without framing issues and without taking evidence of the parties, directed that recount is necessary in the matter of Election Petition filed by respondent No.1. The Tribunal, therefore, fixed the date and time of recount by the impugned order. Mr. Dashrath Prajapati, learned counsel appearing on behalf of the petitioner, argues that the Election Tribunal has ordered for recounting of votes without framing issues and without affording proper opportunity to the parties to adduce evidence, thus, the impugned order deserves to be quashed/He relies on the decisions of this Court rendered in Parvatia -Vs- Padmr'ni & Others, 2005 (2) CGLJ 335, Shyam Ratan —Vs- Siyaram & Others‘ WP No. 4270 of 2005 (decided on 19.11.2008) \ ,\ 3L 3 W.P.(C) No.6932I2010 and Umrila Bai Vs. Foolkumari & Others, W.P.(Cl No.5398/2010 (decided on 18.01.201 1) On the other hand, Mr. Sunil Sahu and Mr. Arvind Dubey, 'earned counsel appearing on behalf of the respective respondents, however, oppose» these arguments. I have heard learned counsel for the parties at length and have also perused the records of the writ petition. 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. lt 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 amemorandum 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 e 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 b $$ 4 W.P.(C) No.6932l2010 under the Code of Civil Procedure 1908 when trying a suit In respect of the followmg . matters- (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; compelling the production of document; (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. (C) at ( 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 subject of a distinct issue. and thereafter, provisions have been made for framing of issues Rule 3 of Order XIV/provrdes for material from which issues may be framed and Rule 4 provtdes for examination of wrtnesses and documents before framing issues. In the case on hand, there is a material denial of the proposition, as affirmed by the election petitioner 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, appears to have been passed without complying with the substantial procedure as provided under the provisions of law. \ y l r l l as/ 5 W.P.(C) No.6932l2010 3w 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 invaiid 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. 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 15.11.2010 (Annexure-P/t) passed by the Election Tribunal cannot be sustained. ’ For the foregoing reasons, the writ petition is allowed. The impugned order dated 15.11.2010 passed by the Election Tribunal in Election Petition No. 07/A- 89/2010-11 is hereby quashed. The matter is remitted back to the Election Tribunal who shall decide the Election Petition, afresh in accordance with law. No order as to cost(s). shyna