Writ Petition (C) No. W3 /2012 v. State

HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (C) N0.1813 OF 2012 PETITIONER/ Respondent No.1 Tilak Versus RESPONDENTS State of Chhattisgarh & Others (Writ Petition underArticle 226 & 227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K.Agnihotri, J.

1.: Present:- Shri Manoj Paranjape, Advocate for the petitioner. Shri Ajit Singh, Panel Lawyer for the State. Shri Jitendra Pali, Advocate for the respondent No.4. ORDER rOPEN COURT^ (Passed on this 1st day of May, 2013) Heard learned counsel for the parties.

2. Challenge in this petition is to the legality and validity of the order dated 25-9-2012 (Annexure - P/1) passed by the Sub Divsional Officer (Revenue), Jagdalpur, Bastar, in revenue case No.08/ A-89A(21)/2009-10 (Neelavati v. Tilak & Another) wherebythe election petition preferred by the respondent No.4 herein has been allowed and the election of the petitioner herein has been set aside.

3. Learned counsel appearing for the petitioner submits that impugned order has beeri passed without framing issues and without affording proper opportunity tothe 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 & Oftere2 in support of his submission that no election petition can be decided without framing • issues and examining the witnesses produced by the parties. •2005 WP No.4270of2005 (decided on 19-11-2008) (2) CGLJ 335 '•/s Leamed counsel appearing for the State as well as respondent No.4, 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 ^ properiy. Leamed counsel forthe parties further submitthata 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 ofthe Chhattisgarh Panchayats (Election Petitions, Cormpt Practices and Disqualification for Membership)Rules, 1995 (for short "the Rules, 1995°) provides for procedurebefore the specified ofRcer 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 Rute 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.

7. Ryle 11 oftheRules, 1995 reads as under: "11. Procedure before 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 Code of Civil Procedure, 1908, to the trialofsuits: ^StS^ 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 ofRcer, shall have the powers which are vested in a Court of Civil Procedure, 1908, when trying a suit in respect of the following matters:- the Code (a) (b) (c) (d) (e) (f) discovery and inspection; enforcing the attendance of witnesses, and requiring expenses; deposit compelling the production of document; examination of witnesses on oath; reception takenonaffidavit; and evidence commission issuing examination of witnesses summoning examining suo moto any person whose evidence, him to be appears material."

8. 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 theCPC provides for material from which issues may be framed and Rule 4 provides for examination of witnesses and documents before framing issues. ll^itllliilM irtixiiiJ.- r, \^.Vf-.-f-*fyyr-yy~f— E^ •saA "I / ^•nrff'.a- ^ 1. '!<gl,. In the case on hand, there is a material denjal of the proposition, as affinned by the applicant before the election tribunal. Thus, framing issues and examination of witnesses is necessary before passing the order. The impugned order passed by the election tribunal, it appeare to have been passed without complying with the substantial procedure as provided underthe provisions of law.

10. Having regard to the facts situation of the case and considering the v' submissions made hereinabove, the impugned order dated 25-9-2012 (Annexure P/1) is quashed. The matter is remitted back ~1 to the Tribunal to decide the case. 11 In view of foregoing, it is expedient and proper to direct the election tribunalto 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.

12. In the result, the petition is allowed to the above extent with no order asto costs. Gowri \'. Sd/- safehK.Agny,otri Judge