Rama vs State Of Chhattisgarh

Challenge in the present writ petition is to the order passed by the Election Tribunal dated 30.12.2020 in an Election Petition No.01/A-89(21)/2019-20.

The facts relevant for disposal of the present writ petition is that the petitioner participated in an election to the post of Sarpanch of Gram Panchayat, Hirri under block Pamgarh, District Janjgir Champa. Apart from the petitioner, there were four other contestants for the post of Sarpanch. The date of election was notified on 31.01.2020. The dispute is in respect of an election that was conducted at Booth Nos. 157 and 158. The total number of votes that were casted in the said Booth was 1036, of which 14 were declared invalid and total valid votes were 1022. Of which, in Booth No.157 the votes casted were 537 and in Booth No.158 the votes casted were 485. 9 votes were declared invalid in Booth No.157 and 5 votes were declared invalid in Booth No.158. The petitioner lost the election to the respondent No.5-Sharda W/o Mukesh Jyoti by 92 votes. Total votes casted in favour of the respondent No.5 was 321 and total votes casted in favour of the petitioner was 229.

The petitioner immediately had raised objections before the Returning Officer in respect of the various irregularities and illegalities in the course of election and counting. It was also alleged that the objection that the petitioner intended to file was refused to be accepted by the Returning Officer. Thereafter, the petitioner has preferred the Election Petition before the Election Tribunal under Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam which was duly registered and entertained by the Election Tribunal and proceeded to decide the same vide the impugned order Annexure P/2 dated 30.12.2020.

The main contention challenging the said order of the Election Tribunal by the petitioner is that the impugned order has been passed in contravention to the procedure that was adopted inasmuch as the issues were not framed before deciding the election petition itself which is otherwise a mandatory requirement. The counsel for the petitioner referring to the provisions of Rule 11 of The Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification from Membership) Rules, 1995 (in short, the Rules, 1995) submits that the rules prescribed the proceedings to be adopted by the Election Tribunal is that which is prescribed under the provisions of the Code of Civil Procedure, 1908. In the instant case, after the notices were issued by the Tribunal and the respondents having entered appearance and submitted their reply, the matter was straightaway fixed for the evidence of either parties without framing any of the issues in respect of various objections that the petitioner has raised in the Election Petition and straightaway the impugned order has been passed taking into account the evidence which has come on record.

The counsel for the petitioner has referred to decision of this Court in case of Gouri Baghel Vs. Savitri Baghel & Others, WPC No.1186 of 2016, decided on 17.11.2016 and also that which has been laid down by this High Court in case of Parvatia Vs. Padmini and Others, 2005(2)CGLJ335 and Ajuram Vs. Shatruhan Sahu & Others, WPC No.2583 of 2011, decided on 28.08.2012.

Relying upon the aforesaid decision, the counsel for the petitioner submitted that given the aforesaid legal pronouncements by this High Court in similar set of facts, the impugned order in the instant case also deserves to be set aside as the issues as is otherwise required was not framed.

The respondents though they have been served and are represented, but there is no representation on their behalf today when the matter is taken up for hearing.

The State counsel on the other hand opposing the petition submits that it is a case where the petitioner has been given a fair and reasonable opportunity of establishing their case before the authorities concerned. It was the contention of the State Counsel that the petitioner had also fully participated and availed the opportunity of leading evidence in her support. That, after recording of the evidence and the cross examination of the witnesses the petitioner now cannot cry fowl of the impugned order being passed without the issues being framed. He relied upon a decision of Division Bench order in Writ Appeal No.68 of 2016 (Santosh Nishad Vs. State of Chhattisgarh & Ors.) decided on 23.06.2016.

Having heard the contentions put forth on either side and on perusal of the records, this court is of the opinion that the facts which have been given in the preceding paragraphs stands undisputed. Now what is to be seen is the contents of the Election Petition which the petitioner has raised. Election Petition is enclosed along with the writ petition as Annexure P/1. Paragraph 6 to 10 reflects various objections and grounds which the petitioner has raised assailing the Election Petition. It was these grounds which were contested by the respondents by their reply denying these facts. Under the circumstances, it becomes incumbent upon the Tribunal to have framed specific issues in respect of each of the specific grounds which the petitioner has raised in the Election Petition.

It is necessary at this juncture to refer to Rule 11 of the aforesaid Rules of 1995. For ready reference Rule 11 is reproduced hereinunder:

“11. Procedure before the specified officer and his powers.-

(1) Subject to the provisions of these rules, every election 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 the evidence of any witness examined by him.”

The contents of the aforesaid Rules would clearly prescribe that the procedure to be adopted by the Tribunal is that which is prescribed under the Code of Civil Procedure. Keeping the said provision of law, it would be relevant at this juncture to take note of the order passed by this court  in case of Ajuram (Supra) wherein in paragraph 5 to 7 it has been held as under:

“5. After going through the record, it appears that the Election Tribunal has not framed any issue(s) in the matter. After reply submitted by Respondent Nos.9, 10 & 11, the Presiding Officers of the respective Polling Booths with respect to whom, the election irregularities in polling and recounting has been alleged, even if the petitioner did not submit his reply, when the contents of the election petition have been controverted by some of the non-applicants/defendants, it was the duly of the Election Tribunal to have framed issues and recorded evidence on those issues. Not only, this, the Election Tribunal recorded the statement of witnesses on a date which was not fixed in the order sheet. When the matter was fixed for evidence on 12.01.2011 and for any reason, whatsoever the matter could not be taken up it was the duty of the Election Tribunal to have informed the parties about the change of date of hearing instead of writing some other dates in the order sheet and then proceed to record evidence on the date of hearing. Similarly when fresh application was moved under Order 6 Rule 17 of CPC by which the election petitioner has made substantial change in his election petition with respect to ground of recount and corresponding prayer in the relief clause, copy of this application should have been served and the application should have been taken up for hearing in the presence of the petitioner.

In the matter of Parvatia vs. Padmini and others, 2005 (2) CGLJ 335, this Court has taken a view that the Election Tribunal cannot proceed to decide the election petition u/s 122 of the C.G. Panchayat Raj Adhiniyam without framing issues and without recording evidence in those issues. This judgment has consistently been relied upon by this Court in number of cases. Thus, the trial of election petition as conducted by the Election Tribunal is vitiated on account of non-adherence to the procedure and being in violation of law laid down by this Court in Parvatia (supra).

Similarly, in the matter of Uday Chand vs. Surat Singh and other, (2009) 10 SCC 170 Para 32, Hon'ble the Supreme Court has held that even if the recount has taken place and it has produced a result whereby the election of the returned candidate has been set aside and the election petitioner has been declared elected, that will not render an appeal against the said order infructuous.”

The aforesaid decision by this Court in case of Ajuram (Supra) was reiterating the earlier decisions in the similar set of facts in case of Parvatia Vs. Padmini (Supra).

The said view of this High Court has been followed in series of decisions rendered by this court which includes the one which has been cited by the petitioner in the case of Gouri Baghel (Supra) decided on 17.11.2016.

Even the judgment cited by the State Counsel also would clearly indicate that the law while deciding an Election Petition is to be treated like that  of the Civil Trial and framing of issues is an important aspect in a Civil Trial which cannot be ignored.

The Supreme Court in case of Makhan Lal Bangal Vs. Manas Bhunia & Others, 2001(2)SCC 652 in paragraph 19 dealing with the importance of framing of issues has held as under:

“19. An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the 'two sides differ'. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided.”

So also in Kalyan Singh Chouhan Vs. C.P Joshi, 2011(11)SCC 786, the Supreme Court in paragraph 25 and 27 referring to the aspect of non framing of the issues has held as under:

“25. The object of framing issues is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court. The issues are framed so that no party at the trial is taken by surprise. It is the issues fixed and not the pleadings that guide the parties in the matter of adducing evidence.

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There may be an exceptional case wherein the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation thereof by the other side. In such an eventuality, absence of an issue would not be fatal and it would not be permissible for a party to submit that there has been a mistrial and the proceedings stood vitiated.”

The said view was further reiterated in Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari & Another, 2014(5)SCC 312, wherein also the Supreme Court in paragraph 16 has held as under:

“16. There may be an exceptional case where the parties proceed to trial fully knowing the rival case and lead all the evidence not only in support of their contentions but in refutation of the case set up by the other side. Only in such circumstances, absence of an issue may not be fatal and a party may not be permitted to submit that there has been a mistrial and the proceedings stood vitiated.”

The Division Bench in case of Santosh Nishad (Supra) in paragraph 17 even though dismissing the appeal has in very categorical terms held  that under the normal circumstances it is required for the Election Tribunal to frame issues and decide the case. For ready reference paragraph 17 is also being reproduced hereinunder:

“17. We again however clarify that normally we expect the Election Tribunal to frame issue(s) and decide the case issue-wise. It is only in the peculiar facts of this case that we have held that the non-framing of issues does not materially affect the result of the case.”

Given the said legal position as it stands and taking into consideration the specific objections that the petitioner has raised in the Election Petition, Annexure P/1, this court is of the firm view that the impugned order to the extent of non framing of the issues and passing of the impugned order is bad in law. The impugned order therefore is not sustainable and the same deserves to be and is accordingly set aside/quashed. The matter stands remitted back to the Election Tribunal to proceed further with the Election Petition from the stage of the filing of reply by the parties. After framing of the issues the Tribunal may proceed further in accordance with law and decide the matter afresh.

Considering the fact that the matter pertains to the election that was held on 31.01.2020 i.e. almost 3 years back, it is expected that the Election Tribunal shall take an appropriate decision within an outer limit of four months.

The writ petition accordingly stands allowed and disposed of.