(17% ‘ HIGH (:OURT OF CHHATTISGARH BILASPUR W.P.(C) N0. 3106 of 2010 Smt. Sarita Thakur, aged about 28 years, W/o Dharmendra Kumar Thakur By Caste Gond, R/o ViHage Pangiri, Tahsil and Vikaskhan Gunderdehi, District Durg Versus The State of Chhattisgarh; through Secretary, Panchayat, and Rural, Deveiopment Department, D.K.S. Bhawan, District Raipur ‘ 2 Sub Divisional Officer, (specified Officer), Patan, Durg Avadhesh Kumar Yadav aged about 27.years, S/o Shiv Kumar Yadav R/d" Village Pangiri Vikaskhand Gunerdehi, District Durg , Chief Election Officer through Mahesh Chandraker, Locai Gram n Panchayat Officer, Pradhan Pathak a Govt. Primary School Pangiri, Vikaskhand Gunderdehi, istrict Durg WRIT PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTiTunon OF INDIA, ~ r RESPONDTS EN "l/\i Appearance : Mr. Yogesh Chandra, Advocate for the petitioner. Mr. Arvind Dubey, Panel Lawyer for the State/respondents 1 & 2. Mr. Anurag Jha, Advocate for respondent No.3. Mr. Praveen Dhurandhar, Advocate for respondent No.4. , ORAL ORDER (21.02.2011) SUNIL KUMAR SINHA, J. Heard finally with the consent of learned counsel for the parties Petitioner— Smt Sarita Thakur was an elected Up-Sarpanch Her election was calle In question by filing an election petition by respondent No 3 before respondent No 2 u/s 122 of the Chhattlsgarh Panchayat Ra} Adhlnlyam 1993 The petitioner was called upon to fle reply on i29.3.2010. The petitioner could not fie reply, thereafter, respondent ,x ’ d ' D ’ , d 2 W.P. C No. 3106 of20l C No.2/Specified Officer, without recording evidence of the parties, directly ordered for re-count of votes and then a recount was conducted on 18.6.2010 and after the re—count, the election petition was allowed. The election of the petitioner was set-aside and respondent No.3 was declared as elected. Up-Sarpanch. Mr. Yogesh Chandra, learned counsel appearing on behalf of the . petitioner, argues that the Election Tribunal ordered for re~count of votes without following the proper procedure and without affording proper t opportunity to the parties to adduce the evudence thus the impugned order deserves to the quashed He relies on the decismns of this Count r rendered in Parvatia -Vs- Padmmi & Othersl 2005 (2) ¢GLJ 336w Shyam Ratan —Vs- Siya'ram & Others, WP No. 4270-of 2005 (decided , on 19.11 209g) and Umrita Bai —Vs- Foolkumari & Others, W.P.(C) No. ~ 5398/2010 (decrded on 18.01.201 1) On the other hand Mr Arvund Dubey, Panel Lawyer Mr Anurag Jha & Mr. Praveen Dhurandhar, Advocates appearing on behalf of ‘ respective respondents, opposed these arguments. l have heard the leamed counsel for the parties and have also I perused the records of the writ petition. Rule ‘11 of the Chhattisgarh PanchayatsvtElection Petitions, Corrupt Practices and Disqualihcation for Membership) Rules, 1995 (for short “the Rules, 1995”) provides for procedure before the specified z officer and his powers. it is prescribed that subject to the provisions of these rules, every election petition shall be enquiredrinto by thespecifled . officer as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (for short “the CPC’t), 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 examinedby him. ln case on hand the Specified Officer has even not taken the written statement of the petitioner who was return candidate Even the parties were not called upon to adduce their eVIdence and re-oount was a conducted and the impugned order dated 18.6.2010 was passed. i i i l ,1 ~ , 3 w.P.(C)No. 3106 ofzow “(<3 ‘ To get an order of re-count of votes proper foundatjon is required r to be Iaid‘by the election petitioner indicating the prgcise materiai on ‘the‘r - basis of which it could be urged by hirn 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 eiected x candidate which had in reality been cast in favour of the defeated f candidate. 'ln the present case, no finding as above has been recorded and even the mandatory procedures have not been followed. On due consideration of the submissions madehby the learned counsel for thew- parties and the ground taken in the writ petition as also the facts and i circumstances upon which the Election Tribunal has passed the impugned orderrdated 18.6.2010 (Annexure—PI3),_ the impugned order passed by the Election Tribunal cannot be sustained For the foregorng reasons the writ petition is allowed The r Impugned order dated 18 6 2010 passed by respondent N02 in Electron v Petition No 23-A-89/2009—2010 is quashed The matter is remitted back r to the Election Tribunal who shall give opportunity to the petitioner to file written statement, if any, and thereafter if requiredfit shall frame issues y and shall call‘upon the parties to lead evidenceand shall decide the Sd/- Sunil Kumar Sinha Judge eiecticn petition afresh in accordance with law. No order as to cost. \‘ .