Urmila Bai vs Smt. Foolkumari and Others

Sunil Kumar Sinha, J.—The Petitioner is an elected Sarpanch of Gram Panchayat Nagoi, Tehsil-Kharsia, District Raigarh (C. G.). The election of the Petitioner was called in question by filing an election petition by Respondent No. 1 u/s 122 of the C.G. Panchayat Raj Adhiniyam, 1993. The Petitioner was called upon to file her reply. The Petitioner filed her reply and thereafter on 13-9-2010, all of a sudden, the Tribunal heard the arguments and passed an order for recount of votes. The Tribunal held that there was difference of only one vote between the Petitioner and the Respondent No. 1, Respondent No. 1 had applied for recount before the Presiding Officer, but it was refused, therefore, it was necessary to order recount to get correct result. The Petitioner challenged the aforesaid order before this Court and the said order was stayed by an interim order dated 20-9-2010 which is continuing till date.

Mr. Manoj Jaiswal, learned Counsel appearing on behalf of the Petitioner, argued that the election Tribunal has ordered for recounting of votes without framing issues and without affording proper opportunity to the parties to adduce evidence, thus the impugned order deserves to be quashed. He relied on the decisions of this Court rendered in Parvatia v. Padmini and Ors., 2005 (2) CGLJ 335 and Shyam Ratan v. Siyaram and Ors., W.P. No. 4270 of 2005 (decided on 19-11-2008).

On the other hand, Mr. Amit Sharma, Mr. Shashank Thakur and Mr. Arun Sao, learned Counsel appearing on behalf of the respective Respondents, however, opposed these arguments.

I have heard the learned Counsel for the parties at length and have also perused the records of the writ petition.

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 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 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 of Order XIV 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 of Order XIV 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 election Petitioner before the election Tribunal. Thus, framing of issues and examination of witnesses is necessary before passing the order. The impugned order passed by the election Tribunal, appears to have been passed without complying with the substantial procedure as provided under the provisions of law.

To get an order of recount of votes proper foundation is required to be laid by the election Petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid 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 elected candidate which had in reality been cast in favour of the defeated candidate.

On due consideration of the submissions made by the learned Counsel for the parties and the grounds taken in the writ petition as also the facts and circumstances upon which the election Tribunal has passed an order of recount, the impugned order dated 13-9-2010 (Annexure-P/1) passed by the election Tribunal cannot be sustained.

For the foregoing reasons, the'' writ petition is allowed. The impugned order dated 13-9-2010 passed by the election Tribunal in election petition No. 4A-/89/2009-10 is hereby quashed. The matter is remitted back to the election Tribunal who shall decide the election petition, afresh in accordance with law.

No order as to cost.