^ ^ Bc'rei.K IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C)NO. ^F 2010 PETmONER : RESPONDENTS : o-.-' .<A?^ '^ ^•1".\y'^w--' ^'^y w!"~^.'-'^-"" ^•".•^ "^l.. .-^y' Prem Kunwar W/0 Rampal Gond, aged about ^®years, R/0 Village- Kolhuaa, Gram Panchayat- Mahuti, Police Station- Biharpur, Tahsil- Odangi, District- Ambikapur, Sarguja, (C.G.). VERSUS 1." State of Chhattisgarh, through Secretary, Panchayat Department, D.K.S. Bhawan, Mantralay, Raipur, Distt- Raipur, (C.G.). 2. Ramkali W/0 Ram Sai, By Caste- Khairwar, R/0 Village- Mahuli, Police Station- Biharpur, Tahsil- Odangi, District- Ambikapur Sarguja, (C.G.). 3. Rajkal Bai W/0 Ramsaran, By Caste- Pando, R/0 Village- Kolhuaa Gram Panchayat Mahuli, Police Station- Biharpur, Tahsil Odangi. 4. Hiramati W/0 Manohar By Caste- Khairwar, R/0 Village- Mahuli, Police Station- Biharpur, Tahsil- Odangi. 7 5. Suresh Kumar Sarthi Presiding Officer Election Booth No. 71 . Tahsil Odangi, District Ambikapur, Sarguja, (C.G.). 6. M.K. Dohre, Presiding Officer, Election Booth No. 70, Tahsil Odangi, District Ambikapur, Sarguj'a, (C.G.). 7. Shri Dhalendra Returning Officer, Tahsil- Odangi, District Ambikapur Sarguja (C.G.) 8. Sub Divisional Officer (Revenue) Surajpur, District Sarguja, (C.G.) _Ji"fc. WRIT PETITION UUNDER ARTICLES 226/0F THE CONSTITUTION OF INDIA. WWSE: ^isw3siW'.V.":' ; •' ^:-, © MIGM COURT OF CHHATTISGARhl : BILASPUR PETITIONER WRIT PETITION (0 N0.1684 OF 2010 Prem Kunwar Versus State of Chhattisgarh & Ofhers RESPONDENTS (Writ Petitionunder Articte 226/227 of theConstitution oflndia) Single Bench : Hon'bte Stlri Satish K;AgnihQtri, J. Present:- Shri Sunil Sahu, Advocate fof-thepetitioner. Shri N.N. Roy, Panel Lawyer for the State. ShriRavindraAgrawal;Adyocatefc>rthferespQndentN0.2. f QRDER_(O.RAL1 ' ! (Passed onthte 13th day.ofAugust, 2010) l 1. , Meard learnedcouhselfortheparties. i . 2. By this petition,the petitioner seeks to quash the Qrder dated < 5-4-2010(AnnexureP/1) passed by the Sub Diyisional Officer (Revenue), Surajpur, District Sarguja, in election petitionNo. A-89/2009-10 whereby the respondent N6.2 has been dedared as returned candidate and has further beeh declared Sarpanch Of Gram Panchayat, Mahuli, District Sarguja. 3. Learriecl counsel appearing for the petitipner syfcimits that the learned election Tribuhal has decided ihe matter without framing . issues and without affording proper.6p|3ortunity fo the parties tol adduceevidences.documents, thus, the impugned order is bad in; law. Learned counsel relies on a decisions ofthis Court rendered in Parvatia v. Padmini & Others and Shyam Ratan v. Siyaram & Others in supportof his sutimission that no election pefition cah be decided without framing issues and examiriing the witnesses produced bythe parties. ;\ 4. Learned counsel appearing forfte State as well as respondent No.2, fairly submit that the impygned OFder suffers from deficieney and infirmity on accQunt of the aboye stated-reasons. Thus, the impugned orders may be quashed and furtfter the matter may be remitted back'.to the eleetion triburial for deciding the same in '2005 (2) CGU 335 . 2WP No.4270 OT2005 (deeided on 1.9-11-2008) \(p 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 could not sustain in the eye of law. 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 ofthe 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. Rule 11 ofthe Rules, 1995 reads as under: "11. Procedure before the specifled officer and his powers.—(1) Subject to the provisions ofthese 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 oftheir expenses; (c) compelling the production of document; (d) examination of witnesses on oath; (e) reception of evidence taken on affidavit; and .Q (•- Gowri (f) issuing commission for examination of witnesses and summoning and examining suo moto any person whose evidence, appears to him to be material." 8. 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 the one party and denied by the other 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. 9. In the case on hand, there is a material denial ofthe 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, it appears, has 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 election petifion can be decided finally without framing proper issues and examining witnesses, if produced by the parties, the impugned order dated 5-4-2010 (Annexure P/1) is quashed. The matter is remitted back to the Tribunal to restore in its original file and dedde the case in accordance with law. 11. 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. 12. In the result, the petition is allowed to the above extent with no - order asto costs. - - —^—_ Sd/- Satish K. Agnihotri Judge