Smt Punimati and Parwati Bai vs State of Chhattisgarh and Others and Smt Punimati Bai and Others

Hon''ble Shri Satish K. Agnihotri, J

Heard learned counsel for the parties.

Since W.P. (C) Nos.3106 & 4785 of 2011 arose out of same cause of action; they are being considered and decided by this common order.

W.P. (C) No. 3106 of 2011 : In this petition, the petitioner seeks to quash the order dated 11-5-2011 (Annexure P/1) passed by the Sub Divisional Officer-cum Specified Officer, Bilaigarh, in revenue case No. 1-A/89 (21) year 2009-10 Smt. Parwati Bai v. Smt. Punimati & Others whereby the election petition preferred by the respondent No. 2 (petitioner in W.P. (C) No. 4785 of 2011) herein has been allowed and the election of the petitioner herein has been set aside. The petitioner has been declared disqualified for being elected as Sarpanch.

Learned counsel appearing for the petitioner submits that the impinged order has been passed without framing issues and without affording proper opportunity to the parties to adduce evidences, documents, thus, the impugned order is bad in law. Learned counsel relies on a decisions of this Court rendered in Parvatia v. Padmini & Others1 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.

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 order 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 is unsustainable in the eyes 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 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 andinspection;

(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 moto 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 passed by the election tribunal, it appears to have 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, the impugned order dated 11-5-2011 (Annexure P/1) is quashed. The matter is remitted back to the Tribunal to decide the case.

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 preferably within a period of three months from the date of receipt of a copy of this order.

In the result, the petition i.e. W.P. (C) No. 3106 of 2011 is allowed to the above extent with no order asto costs.

W.P. (C) No. 4785 of 2011 : In view of the order passed in W.P. (C) No. 3106 of 2011, whereby the matter has been remitted back to the Tribunal for taking fresh decision after following the due process of law, no direction can be issued to the Sub Divisional Officer-cum-Specified Officer to declare the petitioner in W.P. (C) No. 4785 of 2011 as Sarpanch of village Dhandhani, at this stage. However, the petitioner (Parwati Bai) is at liberty to make an appropriate application, in accordance with law, before the Tribunal, if so advised.

Accordingly, W.P. (C) No. 4785 of 2011 is disposed of.