$mi‘3LE EENC“ IN HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (c) No. g>j &$0F 2010 PETITIONER Shri Bisunram Rathore, aged 34 years, Voter No.1189, Occupation— Sarpanch, Gram Panchayat Kodiya, resident of Ward No.13, Village Kodiya, Gram Panchayat Kodiya, Block Masturi, Tehsil Masturi, Balaram Rathore, son of RE‘SPONDENTS State of Chhattisgarh, through the Sub Divisional. Officer (Revenue) / Prescribed Officer under the C.G. Panchayat Raj & Gram Swaraj VAdhiniyam, 1993, Bilaspur .Horilal Yadav, son of Shri Tularam' Yadav, aged about 53 years, Voter No.524, ‘resident of Ward No.6, Village Kodiya, Gram Panchayat Kodiya, District Bi‘laspur (CG) 3r” 1 . Block Masturi, Tehsil Masturi, District Bilaspur (CG) Officer (Panchayat), Masturi, Block Masturi, Tehsil Masturi, District Bilaspur (CG) Officer, Polling Booth No.92, Gram Panchayat Kodiya, Block Masturi, (CG) (R.S. Pandey, Agriculture Development Officer, Bahtarai, Tehsil and District Bilaspur CG) 5.Authorized Officer, Polling Booth No.93, >Gram Panchayat Kodiyafi" Block Masturi, (CG) (Aasharam Jaiswal, Upper Division Techer, Amtara, Tehsil and District Bilaspur CG) 6.Authorized Officer, Polling Booth No.94, Gram Panchayat Kodiya, / . 3. Returning (4. Authorized yo 5 Block Masturi, (CG) (G.P. Pandey, Agriculture Development Officer, Tifra, Tehsil and District Biiaspur CG) ‘Authorized Officer, Poiiing Booth No.94A, Gram Panchayat Kodiya, Bio‘ck Masturi, (CG) (Shiv Kumar Kashyap, Head Master, Primary School, Koilabhata, Tehsil and District Bilaspur CG) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA ff HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (C) N’O.3573 OF 2010 PE‘T‘ITIONE-R Ba!aram Rathore Versus RESPONDENTS $tate of Chhattisgarh & Others (Writ Petition under Article 226 0f the CO iStitution of India) Single Bench : Hon’ble Shri Satish K. Agnihotri, J. Pm-‘sent :-- Shri Malay Shrivastava, Advocate for the petitioner Shri P.K. Bhaduri, Panel Lawyerfor the State. Shri Vinay Pandey, Advocate for the respondent No.2. Shri Shailendra Soni, Advocate for the respondent No.5. Shri Vijéy Deshmukh, Advocate for the respondent No.6. \ ORDER (ORAL) (Passed on this 315‘ day of August, 2010) Heard learned counsel for the parties. By this petition, the petitioner seeks te quash the order dated 7—712010 (Annexure P/t) passed by the Sub Divisional Officer (Revenue), Bilaspur, in case No.19/A-89 (21)/9~1O whereby a direction for recounting of votes, was made Learned counsel appearing for the petitioner submits that the learned election Tribunal has ordered for recounting o‘l' 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 taw. Learned counsel relies on the decisions of this Court rendered in Parval'ia v. Padm/‘n/ & Others1 and Shyam Ratan v Siyaram &‘ Othersz in support of his submission that no order can be passed tor recounting ot votes without framing issues and examining the witnesses produced by the parties. 4. Learned counsel appearing for the State as well as respondents No.2, 5 & 6, 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 tribunat for deciding the same i2005 (2) CGLJ 335 Q; Z WP NO 4270 of 2005 (decrded on 19-41 $2008) x 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 that there has been a delay on account of the impugned decision, which could not sustain in the eye of law. 6. 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 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 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, shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect cf 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; examination of witnesses on oath; 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." 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 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 f 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/i) is quashed. The matter is remitted back to the Tribunal to restore in i‘ its original file and decide the case in accordance with law. 1’1: 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. ‘12. ln the result, the petition is allowed to the above extent with no order asto costs. Satish K. Agnihtrii Gowri Judge Sd/- o