IN THE HIGH COURT’OF CHHATTISGARH, BILASPUR WRIT PETmON (C) No. N95 12010 3E§§§3LE 3EN€H Petitioner fntoni Respondent No.1 Aged about 4O years s/o Silwanus Cast; Uraon, R/o Vill: Perwara Tahs: Farsabahra Dist: Jashpur (CG) Resgondent No1 Prafull Tirki Election Petitioner Aged about 33 years S/o Suieman Cast: Uraon, R/o Vill: Sagjor Tahsil: Farsabahra Dist: Jashpur (CG) Resgondent No.2 2.‘ Returning Officer Respondent No.2 Booth No.65 Gram Panchayat Sagjor Tahsil: Farsabahra Dist: Jashpur (CG) Respondent No.3 3t” Returning Officer \\ Rewndent No.3 Booth No.66 ‘ Gram Panchayat Sagjor Tahsil: Farsabahra Dist: Jashpur (CG) Respondent No.4 Returning Officer Respondent No.4 Booth No.67 Gram Panchayat Sagjor Tahsii: Farsabahra Dist: Jashpur (CG) Respondent No.5 . . Shri H.N.Nag Respondent No.5 Election Officer Tahsil: Farsabahra Dist: Jashpur (CG) Sub Divisional Officer Kunkuri District Jashpur (CG) T I WRIT PETlTlON UNDER ARTICLE 226 I 227 OF THE CONSlTUTlON OF INDA. HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (C) NO.6495 OF 2010 PETITIONER/ Respondent No.1. Antoni Versus RESPONDENT NO.1/ Prafull Tirki & Others Election Petitioner (Writ Petition under Article 226/227 ofthe Constitution of India) Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Present :- Shri Pawan Kesharwani, Advocate forthe petitionert . Ms. Sharmila Singhai, Advocate for the respondent No.1. Shri P.K. Bhaduri, Panel Lawyer forthe State. ORDER (ORAL) (Passed on this 18‘“ day of July, 201 1) Heard learned counsel for the parties 2. By this petition, the petitioner seeks to quash the order dated 19-10—2010 passed by the respondent No.6 Sub Divisional Officer Kunkuri, Jashpur, in revenue case No.29/A—89(21)/2009—10. 3. Learned counsel appearing for the petitioner submits that the learned election Tribunal has ordered for recounting of votes without framing issues and without affording proper opportunity to the parties to adduce evidences and produce documents, thus, the impugned order is bad in law. Learned counsel relies on the decisions of this Court rendered in Parvatia v. Padmini & Othersl and Shyam Ratan v. Siyaram & Othersz in support of his submission that no order can be passed for recounting of votes without framing issues and examining the witnesses produced by the parties. 4. Learned counsel appearing for the State fairly submits 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. 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 i 2005 (2) CGLJ 335 \L. ‘\2 WP No.4270 of 2005 (decided on 19—1 1—2008) L\\\\L that there has been a delay on account of the impugned decision, which could not sustain in the eye of law. Rule 11 ofthe Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short “the Ruies, 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 tomake 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, 1908,40 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 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." 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 Order XIV of the CPC 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 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. 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 no order can be passed for recounting of votes without framing proper issues and examining witnesses, if produced by the parties, the impugned order dated 7-7-2010 (Annexure P/1) is quashed. The matter is remitted back to the Tribunal to restore in its original file and decide the case in accordance with law. 11. ln 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. ln the result, the petition is allowed. to the above extent with no order asto costs. ’f"’i Gowri Sdl- Satish K. Agnihotri Judge