Prem Kunwar vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Heard learned Counsel for the parties.

By this petition, the Petitioner seeks to quash the order dated 5-4-2010 (Annexure P/l) passed by the Sub Divisional Officer (Revenue), Surajpur, District Sarguja, in election petition No. A-89/2009-10 whereby the Respondent No. 2 has been declared as returned candidate and has further been declared Sarpanch of Gram Panchayat, Mahuli, District Sarguja.

Learned Counsel appearing for the Petitioner submits that the learned Election Tribunal has decided the matter without framing issues and without affording proper opportunity to the parties to adduce evidence, documents, thus, the impugned order is bad in law. Learned Counsel relies on a decision of this Court rendered in Parvatia v. Padmini 2005 (2) CGLJ 335 and Shyam Ratan v. Siyaram in support of his submission that no election petition can be decided without framing issues and examining the witnesses produced by the parties:

Learned Counsel appearing for the State as well as Respondent No. 2, fairly submit that the impugned order suffers from deficiency and infirmity on account of the above stated reasons. Thus, 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.

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 Code of Civil Procedure"), 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 of the Rules, 1995 reads as under:

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 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 motu 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 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.

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, it appears, has been passed without complying with the substantial procedure as provided under the provisions of law.

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 petition 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/l) is quashed. The matter is remitted back to the Tribunal to restore in its original file and decide the case in accordance with law.

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.

In the result, the petition is allowed to the above extent with no order as to costs.