IN THE HIGH COURT OF JUDICATURB AT BILASPUR CHHATTISGARH W.P. (U/A 2271 N0. 12010 PETITIONER RESPONDENT No.2 Annu Devi Anchal, aged about 25 years W/o. Rohit, R/o. Village Daldali, village Panchayat dondki, Block 8s Tahsil - Masturi, Distt. Bilaspur (C.G.) i«S RESPONDENTS .-^ .ff/y/ ^%^ j^wy ^yy €-''••• 4*'^ ^" ./ <y VERSUS 1] Smt. Anupama Singh Tilakchadi, Aged 34 years, W/o. Shri Raghuraj Singh, R/o. Village Dondaki, Village Panchayat Dondki, Block Masturi, Tahsil Masturi, Distt. Bilaspur (C.G.) ....(Election Petitioner) ^f- ^ •• ^ . 2] Anjali Devi Shriwas, aged about 33 years, W/o Akhileshwar Prasad, <--"' 3] Kaushilya Bai Kuwbhani, Aged about 63 years, W/o. Anjori Singh, 4] Gayatri Sonwani, aged 21 years, W/o. Shivraj. 5] Dashmat Khushal, aged about 30 years, W/o. Jairain Singh, 6] Bahura Bai Markam, aged about 32 years, W/o. Dasheram 7] Shakuntala Sinha, aged 37 years, W/o. Jagannath Prasad Res. No. 2 to 7 are R/o. Village Dondki, Block & Tahsil - Masturi, Distt. Bilaspur (C.G.) 8] Kanti Bai Rai, Aged about 30 years W/o. Shrawan Kumar <2) s 9] Bhukhaiya Rai, aged 39 years, W/o. Laxman 10] Rameshwari Anchal, aged 26 years, W/o. Dilharan 11] Sukhin Anchal, aged 48 years, W/o. Kishan, All above Res. No. 8 to 11 are R/o. Village Daldali, village Panchayat Dondki, Block & Tahsil -Masftjri, Dist. Bilaspur (C.G.) I<^" 12]' Sub Divisional Officer/ Specifeid officer, Bilaspur Distt. Bilaspur (C.G.) WRIT PETITIONUNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA 'l B'; i-C^ • R,: ^S^ S^l1' 'ti®g!» i^-.'. • .BB • B. SK aas: ? eis' llil^ BS:1,': iSIJI:'! HIGHCOURT OF CHHATTISGARH AT BILASPUR PETITIONER RESPONDENTS WRIT PETITION f227) No. 2709 of2010 Annu Devi Anchal. VERSUS Smt. Anupama Singh Tilakchadi. & Others. WR1T PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF DMDIA SB: Hon^bleShnSatish K. Agnihotri, J. Present: Shri Sunil Otwani, Advocate for the petitioner. None for the respondents. ORDER fORAL) (Passed on 30th day of September, 2010) 1. Challenge of the petitioner is to the orders dated 28.05.2010 (Annexure P/l) and 21.05.2010 (Annexure P/2) passed by the Sub Divisional Officer, (Revenue) Bilaspur, (Election Tribunal) in a petition filed by the respondent No. 1 wherein the Sub Divisional Officer has ordered for recounting of the votes and consequent thereupon, the respondent No. 1 has been declared as returned candidate for the election of Sarpanch of Gram Panchayat Dondki, Tahsil Masturi, Disti-ict Bilaspur. 2. Leamed counsel. appearing for the petitioner submits that the impugned orders are bad in law on the ground that firstly, a copy of the election petition was not served upon the retum candidate i.e. the petitioner and further, no notice has been served upon the petitioner. Secondly, the impugned orders have been passed without framing issues, and considering the case as required under the provisions ofthe Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short "the Rules, 1995"). He relies on a decisions ofthis Court rendered in Parvatia v. Padmini & Others} and Shyam Ratan v. Siyaram & Others in support of his submission that no election petition can be decided without framing issues and examining the witnesses produced by the parties. 3. Despite service of notice, the contesting respondents have failed to appear before this Court. However, on perusal of the documents and ' 2005 (2) CGLJ 335 2WP No.4270 of2005 (decided on 19-11-2008) ;.. -'i ^ ^? ss: K the retum filed by the respondent No. 1, it appears that the Election Tribunal has passed the impugned orders in a very casual manner without eomplying with the statutory provisions as prescribed under the provisions ofthe Rules, 1995. Shri Otwani submits that the impugned orders 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. He further submits 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 eyes of law. Rule 11 ofthe 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-mle (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 ofany 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 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 ofsuits: 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 ofCivil Procedure, 1908, when trying a suit inrespect ofthe following matters:— (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit oftheir expenses; •&!t' ^i. fc •s B: BS'^! w 9iK (c) compelling the production of document; (d) examination ofwitaesses on oath; (e) reception of evidence taken on affidavit; and (f) issuing commission for examination of witnesses and summoning and exammmg suo moto any person whose evidence, appears to him to be material." 7. 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 ofthe GPC 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 witoesses and documents before framing issues. 8. Thus, framing of issues and examination of witnesses is necessary before passing the order. The impugned orders passed by the Election Tribunal, it appears, have been passed without complying with the statutory procedure as provided under the provisions oflaw. 9. Having regard to the facts situation of the case and considering the submissions made hereinabove, as the principle of law is well settled that election can not be set aside and recounting ofvotes cannot be ordered without framing proper issues and examining witnesses, if produced by the parties. Thus, the impugned orders dated 28.05.2010 (Annexure P/l) and 21.05.2010 (Annexure P/2) are quashed. The matter is remitted back to the Tribunal to decide the case in accordance with law. 10. 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. 11. In the result, the petition is allowed to the above extent with no order asto costs. — ^ Sd/- SatishK-Agnihotri